Australia, March 20 -- New South Wales Land and Environment Court issued text of the following judgement Feb. 20:

1. Enzo Developments Pty Ltd (Enzo) have planted an orchard on their farm at 92 Jerrara Road, Jerrara, Lot 202 DP 1095943. The orchard contains approximately 250-300 plants consisting of trees, shrubs and vines, and it is the use of this orchard, and the construction of a netting structure around and over it, for which Enzo seeks consent in development application 10.2023.109.1.

2. The site is zoned RU2 Rural Landscape pursuant to the Kiama Local Environmental Plan 2011 (KLEP), with a small area in the north-western corner, outside the development footprint, zoned as C2 Environmental Conservation. The orchard is planted directly to the west and north west of the heritage listed property 'Park Mount' at 82 Jerrara Road, and broadly speaking, it is the impacts on this neighbouring property that form the basis of Kiama Municipal Council's key contentions in this appeal.

3. This appeal was brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) as a result of the Council's deemed refusal of the development application.

4. For the following reasons, I find that the impact of the development on the heritage significance of Park Mount, views from the dwelling at Park Mount, and on the rural landscape character, is acceptable, and that the appeal should be upheld.

The proposed development

5. The application is for the use of an existing orchard, and the construction of a netting structure to surround it. The orchard is 1.9 hectares in size, and the corresponding netting structure will be maximum 140m long x 140m wide x 4.5m high, supported by galvanised poles set out on a 10 x 8m grid. The black netting, used primarily to protect the fruit from birds, hail and wind will cover the top and all sides of the orchard, pulled taut to the pole structure.

6. The orchard is located to the west of the site, on a slope that falls approximately 12m towards the north. It is set back from the western boundary fence of Park Mount by 48m, which the parties agree sufficiently addresses the setback requirement of 50m established in the Kiama Development Control Plan 2020 (KDCP) control 8.1.1.

7. The orchard falls under the definition of 'intensive agriculture' as set out in the KLEP, and as per the zoning table, is permissible with consent in the RU2 zone. The parties concur that, although the KLEP is silent on netting structures, that the proposed structure most appropriately falls under the definition of 'ancillary structures'.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/195175b705bc22f2f5f3d19a)

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