Andersen v Tamworth Regional Council

[2019] NSWLEC 1580

Land and Environment Court

New South Wales

Medium Neutral Citation:	Andersen v Tamworth Regional Council [2019] NSWLEC 1580
Hearing dates:	27-29 March 2019; 8-9 May 2019; joint expert report filed with the Court on 2 July 2019; final conditions filed with the Court on 19 July 2019
Date of orders:	26 November 2019
Decision date:	26 November 2019
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders that: (1)   The appeal is upheld. (2)   Development consent is granted to Development Application No. 2019-0037 for the purpose of a manufactured home estate comprising 99 dwellings sites and community facilities with clubhouse, swimming pool and bowling green on Lot 2 DP 864981 and Lot 120 DP 1105753, Greg Norman Drive, Hillvue, New South Wales, subject to the conditions of consent in Annexure A. (3)   All Exhibits are returned except for Exhibits 1 and X.
Catchwords:	DEVELOPMENT APPLICATION – construction of a manufactured home estate – Longyard golf course – proposed development near Tamworth’s Sports and Entertainment Precinct – compatibility with adjoining land uses – playability of the golf course – consideration of impacts relating to acoustics, transport, town planning, stormwater and sewerage, amenity and lighting – site suitability
Legislation Cited:	Environmental Planning and Assessment Act 1979 Local Government Act 1993 Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 Roads Act 1993 State Environmental Planning Policy No 36 – Manufactured Home Estates Tamworth Regional Local Environmental Plan 2010
Cases Cited:	Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343 BGB Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237 Mobil Oil Australia Limited v Baulkham Hills Shire Council (No 2) [1971] 2 NSWLR 314 Stockland Developments Pty Ltd v Wollongong Council (2004) 139 LGERA 374
Texts Cited:	AS/NZS 4282:2019
Category:	Principal judgment
Parties:	Bob Andersen (Applicant) Tamworth Regional Council (Respondent)
Representation:	Counsel: C McEwen SC with M Staunton (Applicant) A Pickles SC with S Nash (Respondent)   Solicitors: Sparke Helmore Lawyers (Applicant) Coutts Solicitors and Conveyancers (Respondent)
File Number(s):	2018/361228
Publication restriction:	No

Judgment

1. COMMISSIONER: The Longyard Golf Course (“Longyard”) is a privately owned golf course located approximately 6km from the Tamworth CBD. It offers an 18-hole golf course, a club driving range, and three ancillary residences, a putt putt golf course and pro shop and also contains an additional dwelling, machinery and storage sheds. The property address is Lot 120 DP 1105753 and Lot 2 DP 864981, Greg Norman Drive, Hillvue, New South Wales (“the site”).

2. In May 2018, the Council approved subdivision of the land into two lots pursuant to development application (DA 2017/0267). The proposed Lots 100 and 101 have not yet been registered with the NSW Land Registry Services.

3. The subdivision approval was followed with an application (DA 2019/0037) for the construction of a manufactured home estate (“MHE”) on part of the site (“DA”). The development included the construction of 120 dwellings sites and community facilities, including a clubhouse, swimming pool and bowling green in 6 stages. This DA was refused by the Council on 7 November 2018 on the basis that it did not satisfy the objectives for the relevant zones, being Zone RE2 Private Recreation and Zone SP3 Tourist within the Tamworth Regional Local Environmental Plan 2010 (“TRLEP 2010”). The development was also deemed to be inappropriate on the basis that it was incompatible with adjoining land uses, the character of the area and the existing sewerage services. For these reasons, the development was determined to not be in the public interest.

4. In response to the Council’s decision, the applicant, Mr Bob Andersen, lodged this appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). It is based on an amended application which seeks consent for the construction of 99 dwelling sites, including a manager’s residence, a temporary and permanent community facility including a clubhouse, swimming pool and bowling green, private roads, a men’s shed and community open space on that part of the site currently being used as a driving range (Applicant’s written submissions (“AWS”) at par 1).

5. At the hearing, in response to the concurrent expert evidence, the applicant sought and was given leave to carry out further investigations and report further in respect of acoustics, light spillage, sewerage pipes/swales and flooding. This necessitated an adjournment of the hearing which the Council quite appropriately accommodated as the further information was aimed and in fact achieved a resolution of the issues in relation to light spillage, flooding and sewerage.

6. The experts who gave written and oral evidence in these proceedings were:

Expertise	Applicant	Respondent
Acoustic	Mr C Gordon	Mr R Tonin
Drainage Engineering	Mr D Crompton	Dr D Martens
Electrical Engineering	Mr P Kemp
Geotechnical Engineering	Dr M Allman
Lighting	Mr J Sawras	Mr R Shamier
Town Planning	Mr S Pollock	Mr S Barwick
Traffic	Mr B Chen	Mr G Higgns
Visual Impact	Mr J Aspinall	Dr R Lamb
Stormwater	Mr D Crompton	Dr D Martens
Sewerage	Mr J Allen	Dr D Martens
Golf Safety	Mr B Hogan

7. In addition to the expert evidence, the Court has considered the written submissions lodged in response to the Council’s notifications of the development. Several of these submitters also gave oral evidence at the site view at the commencement of the hearing. Generally speaking, those in support of the development emphasised the need to redevelop the golf course to ensure it is economically viable in the future. Those opposed to the DA expressed a concern about the playability of the club after the development – with the loss of the driving range, and the inherit safety and amenity conflicts between the existing and proposed residential and sporting uses at the site and the adjoining regionally significant Sports and Entertainment Precinct.

8. In opening, Mr Pickles senior counsel for the Council, identified the following contentions from the Council’s Amended Statement of Facts and Contentions (“ASOFC”) as remaining in issue:

1. Land use conflict between residential use for MHE and sporting facilities and golf course (Contention 5(b); Contention 7(a)(viii), (ix), (x) and (xi); Contention 7(b)(ii), (iv) and (v); Contention 18(i); Contention 22 and Contention 23);

2. Inconsistency with the RE2 and SP3 zone objectives (Contention 7(a) and (b));

3. Buffer distances under Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (“Regulations 2005”) (Contention 4(d) and (e));

4. Adequacy of communal space areas (shape and co-location with golf course, and quality) (Contention 4(a); Contention 18(j));

5. Location of items/features in electricity transmission line easements (e.g. height of proposed vegetation) (Contention 4(a); Contention 3C(b); Contention 18(k));

6. Amenity issues (solar access (Contention 18(g); light spill from vehicles (Contention 18 h); adequacy of bin storage area (Contention 18(a)).

9. In his closing submissions, Mr Pickles submitted that given the various amendments during the hearing, the nature and extent of the contentions had changed and that the “extant contentions of the Council” could be dealt with by reference to the following topic areas:

1. Acoustics;

2. Town Planning;

3. Transport;

4. Stormwater and sewage;

5. Visual impact; and

6. Lighting.

10. The applicant’s closing address also dealt with the evidence and contentions by these topics and so does this judgment.

Decision

11. For the reasons that follow, I have decided to grant development consent to the use of the site for the purposes of a MHE and clubhouse subject to the conditions filed on 19 July 2019.

Facts

12. The Longyard has an area of 6.3km and, as stated, the land is zoned RE2 Private Recreation and SP3 Tourist under the TRLEP 2010.

13. The development is proposed to be located on the land presently occupied by the driving range, the dwelling house, the machinery/storage shed, Putt-Putt golf course and Pro Shop. This area of the site is gently undulating with natural drainage to the north-eastern corner of the site towards Barnes Gully.

14. The site is predominately cleared vegetation with the exception of the landscaping associated with the golf course located on the peripheries of the site. There are a number of easements over the site for services, including multiple easements for transmission lines. There are various dams (some used for irrigation purposes) and water features throughout the site.

15. Proposed Lot 100 is 3.2 hectares and accessed from an internal road within the adjacent Sport and Entertainment Precinct via a right of carriage way which benefits Lot 2 DP 864981 and commonly known as Longyard Drive. Proposed Lot 101 is 3.1 hectares and accessed from Jack Smyth Drive.

16. The surrounding locality comprises recreational, tourist and residential land uses. The land fringing the golf course is zoned R1 General Residential, R2 Private Recreation and R5 Large Lot Residential under the TRLEP 2010.

17. The residential areas located amongst the golf course zoned R1 contain predominately single dwellings on lots between 600m² and 900m² designed to capitalise upon the vista of the golf course.

18. The residential subdivision known as the “the Trails” is located to the south west of the site and contains large single dwellings and ancillary structures on lots of 4000m² in area and is within the R5 zoning. There are some vacant allotments, predominately in the western portion of the subdivision that are yet to be developed.

19. The Northern Inland Centre of Sporting Excellence and the Australian Equine and Livestock Events Centre (“AELEC”) are located to the east and southeast of the site. These form part of Tamworth’s Sport and Entertainment Precinct (“the Precinct”) that also incorporates the Tamworth Regional Entertainment and Convention Centre. The Precinct is zoned SP3 Tourist and is currently under development pursuant to the Precinct Master Plan and Northern Inland Centre of Excellence Report dated December 2014, which was formally adopted by the Council on 16 December 2014.

20. The development is situated in close proximity to the existing and future facilities in the Precinct, all of which are noise generators.

21. The context of the site and its relationship with adjoining land uses can be understood from the architectural plan (DA SOO1) in Exhibit X reproduced below.

22. The plan shows the various zones around the site and how the development will relate to the different residential developments abutting the golf course. It also includes the rectangular piece of land adjoining the golf course within the Grange estate approved for the development of 14 new dwellings; and the proposed Arcadia residential subdivision, presently planned to provide approximately 1900 new lots ranging from 600m² to 4000m² within the R1 and R2 Low Density Residential zoning is located on the plan to the north west together with a small commercial centre within the B1 Neighbourhood Centre.

23. The TRLEP 2010 prohibits “residential accommodation” on land that is within the RE2 and SP3 zones.

24. In terms of permissibility, “caravan parks” are an innominate permissible use in the R2 zone and a nominated permissible use in the SP3 zone under the TRLEP 2010.

25. State Environmental Planning Policy No 36—Manufactured Home Estates (“SEPP 36”) permits with consent the development of a “manufactured home estate” pursuant to cll 6, 7 and 9 on land approved for caravan use. However, the design of the MHE is controlled by SEPP 36 and its explicit deference to s 68 of the Local Government Act1993 (“LGA Act”) and the Regulations 2005.

26. SEPP 36 defines a “manufactured home” as a dwelling that comprises one or more major sections that are each constructed and assembled away from the development site and then transported to the development site for installation. This development includes the construction of the dwellings offsite and then transportation to the dwelling site by truck.

27. Clause 4(1) of SEPP 36 provides that in the event of an inconsistency between this SEPP and any other environmental planning instrument, this SEPP prevails to the extent of the inconsistency.

28. In the absence of an inconsistency (in which event the SEPP prevails), there is no particular hierarchy of provisions of either planning instrument except as provided by cl 1.9 of the TRLEP 2010.

29. Clause 2.3(2) of the TRLEP 2010 provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

30. The objectives under the TRLEP 2010 of relevance here, are:

Zone RE2 Private Recreation

1 Objectives of zone

• To enable land to be used for private open space or recreational purposes.

• To provide a range of recreational settings and activities and compatible land uses.

• To protect and enhance the natural environment for recreational purposes.

Zone SP3   Tourist

1   Objectives of zone

•  To provide for a variety of tourist-oriented development and related uses.

•  To facilitate development that recognises the unique characteristics of the nationally and regionally significant tourist precincts that are the Australian Equine Livestock and Events Centre and the Tamworth Regional Racing Precincts.

Permissibility

31. The parties agree that SEPP 36 operates to override the TRLEP 2010 Land Use Table and make MHEs a permissible land use upon land which caravan parks are permissible, provided that such land is not excluded by the locational suitability provisions in SEPP 36.

32. I accept on the evidence that the subject land is not so excluded.

33. There is “gateway” land use permissibility under the TRLEP and SEPP 36 for the proposed development. (Noting, that I am only dealing with the use of the site of the MHE because I am not required to take the Regulations 2005 into consideration. That consideration is had by observing that the Regulations 2005 contain detailed design controls which must be addressed by a proponent after development consent before the land use is obtained).

LEP zone objectives

34. In considering the objectives of the relevant zones, the applicant submits that any such consideration will be tempered and influenced by the fact the development for the purposes of the MHE is an innominate permissible use. Accepting that the aims of the zone are principally met by the nominated permissible uses it may be, quite legitimately, that an innominate purpose is not consistent with any of the zone objectives.

35. In this case, the Council contends that the SP3 zone objectives and objectives 1 and 3 of the RE2 zone do not ‘speak to’ the subject development. Only the second objective of the RE2 zone is said to be directly relevant to the MHE development. The second objective seeks to encourage a range of recreational settings and activities and compatible land uses. And, because the proposed use is not a recreational activity the Council contends that the MHE should be compatible with the nominated and existing land uses.

36. Focussing on whether the proposed land use is compatible with the RE2 zone, the incompatibility is claimed to arise due to a perceived land use conflict between the MHE and the sporting Precinct and the Longyard golf course use. The identified sources of conflict with the sporting facilities at the commencement of the hearing were light spillage and acoustical issues. With respect to the golf course, the Council claimed that there is safety issues including errant balls which may injure the residents of the MHE problems with the quality of the communal open space in areas 2 and 3 given the shared zones, the transmission easement and drainage swales (playability was not ultimately pressed).

37. While a finding of positive consistency with the objectives of the zones is not necessary to enliven jurisdiction to approve the application (the obligation is only to have regard to the objectives), the Council submits, when the objectives are considered in the context of the adjoining land uses, and s 4.15(1)(c) of the EPA Act, the inability to support any of the objectives of the zones is reason not to approve the MHE, on the basis of site suitability.

38. The applicant takes a different view and submits that the evidence before the Court establishes that the development consent should be granted subject to conditions because when regard is had to the zone objectives of the RE2 zone, the proposal is a compatible land use with the golf course. The playability of the golf course is not jeopardised. The future of the golf club is better secured thereby preserving the asset and furthering the zone objective of enabling land to continue to be used for private open space or recreational purposes. Proper regard and mitigation measures have been introduced to ensure the safety of the future residents of the MHE and a strike zone has been incorporate in the estate design.

39. With respect to the SP3 zone objectives, the development has recognised the unique characteristics of the nationally and regionally significant tourist precinct that is the AELEC and the adjacent sports Precinct by incorporating design controls, landscaping and acoustic fencing which will satisfactorily address any acoustic impacts which could have the potential to cause land use conflict.

40. Visual compatibility with the surrounding locality, particularly the golf course and residential development fringing the course, is achieved by single storey design and buffer landscaping and the siting of the development in a location that is not highly exposed to the public domain. Relying on the evidence of Mr Aspinall, the applicant submits that the MHE will fit in with the existing character which is that of open space surrounded by residential development and, as designed, will make a “pleasant aesthetic contribution to an area that absolutely can be built upon”.

41. The light emanating from the existing and proposed sporting facilities has been agreed by the lighting experts to be compliant with the AS 4282:2019 which is intended to ensure appropriate residential amenity and thereby avoids the likelihood of land use conflict (Joint Report, Rev D, 6 May 2019) (AWS at par 13).

Incompatibility between the MHE land use and the sporting facility land use

42. In addressing this issue of compatibility with the adjoining sporting facilities, the applicant’s planner, Mr Pollock, accepted the importance of considering and satisfactorily managing any impacts between the MHE and the sporting facilities particularly as there is no other residential development as proximate as the proposed development (with the exception of the eastern end of Rodeo Drive (Tcpt, 29 March 2019, p 235(44-50); p 237(1-4)). He also acknowledged that for the first time, the MHE will bring residents into an RE2 Private Recreation zone abutting a SP3 Tourist zone with extensive existing and proposed sporting facilities with potential attendant impacts, particularly acoustic impacts. An interface, which Mr Pollock accepted, may well be more keenly felt than similar interfaces at Coffs Harbour, Lismore, and Albury referred to in his evidence (Tcpt, 29 March 2019, p 247(50); p 238(1-20)).

43. However, Mr Pollock emphasised that the other existing sporting/residential interfaces he referred to in his evidence do in fact co-exist because potential impacts are properly managed. On the same basis, it is Mr Pollock’s expert view that the MHE interface with the AELEC and the Precinct will be a compatible land use with existing uses (Tcpt, 29 March 2019, p 239(3-15)).

42. Mr Pickles sought to differentiate Mr Pollock’s evidence about the compatibility of other sporting/residential interfaces on the basis that these were existing urban contexts before the introduction of the sporting use. And, in speaking broadly towards recreational uses and compatible uses, Mr Pickles said that the RE2 objectives and the TRLEP 2010 are really driving at recreational activities, and private recreational activities such as a golf course use which is entirely compatible with the SP3 zone (i.e. the Longyard). Mr Pollock did not disagree with Mr Pickles. However, he highlighted that Schedule 2 of SEPP 36 specifically precludes development for the purpose of MHE on land zoned open space but identifies private recreational land as not excluded, which is this site. When considered in that context, together with the other locational criteria in SEPP 36 (including the aims in cl 2(1)(d) and strategies cl 2(2)(a) and cl 6), Mr Pollock said he is satisfied that the development is compatible with the adjoining land uses.

43. At all times, Mr Barwick held the view that there is an inherent incompatibility between the MHE land use and the sporting facility land use (Tcpt, 28 March 2019, p 241(1-17)). And, because this site is a “Greenfield site”, Mr Barwick said that this provided a development opportunity to avoid the introduction of the land use conflicts identified in his evidence. In his assessment, primacy should be given to the sporting Precinct uses which are entirely consistent with the zone in which they are located. The objectives of the SP3 zone seek to facilitate the development of major regional sporting facilities and compatible tourist related development and this development does not further that objective. It has the potential to limit the use of the sporting Precinct in order to avoid acoustic impacts for the residents of the MHE.

Incompatibility between the golf use and the MHE

46. The incompatibility between the MHE and the golfing use as stated above is in relation to the area on the plans shaded dark green, identified for dual uses.

47. Based on Mr Hogen’s evidence, the applicant has identified this area as part of the MHE site for a grassed buffer of open space between the golfing use and the dwelling use, while at the same time being available exclusively for the golfers during play to slow stray balls. To facilitate this, the applicant has proposed an easement in favour of the club, to enable golfers to use the area for golfing purposes while still providing a green buffer. Signage is proposed to be erected in that area to stop people wandering through it during day time play. This golf zone also accommodates the overflow path essential for the management of water on the golf course. It is proposed to be managed according to the needs of the golf course, and accommodate the needs of the MHE residents. The Council raises issue as to whether this arrangement is able to be accommodated through an easement. It is concerned about maintenance and serving the needs of two conflicting uses. Additionally, the Council is concerned about the relocation of the maintenance sheds intended to be removed to accommodate the MHE because the DA has not identified a new location on the Club site. The Council submits this is a necessary incident of the proposal and should be part of this application (Exhibit 8). It also believes that the common communal open space areas in the southern part of the site shaded pink do not function (Open Space Plan Site Concept Layout 08, Issue Date 29/4/2019), due to their size, shape and location. Put simply, the submission is that these areas are disjointed as there is no real connectivity from these open spaces to the other communal facilities. They are essentially “left over” land which is a liability for the MHE. As such, the Council submits that this aspect of the design is poorly resolved and again evidences unacceptable and unresolved conflicts with adjacent land uses.

Incompatibility between the residential and the MHE

48. At the hearing, Mr Barwick agreed with Mr McEwen SC that the interface between the dwellings and the golf course was not in issue in terms of residential amenity impacts (Tcpt, 29 March 2019, p 240(35-38)). Mr Pollock agreed.

49. To a large extent, the planners’ evidence in respect of land use conflict is dependent upon the other expert evidence, particularly acoustic and lighting expert evidence. I have summarised that evidence and my findings before setting out my findings about compatibility/zone objectives below.

Acoustics

50. With respect to the acoustic issues, I note that the experts agreed that the sporting facilities create noise at levels that exceed the criteria that was agreed upon and accordingly, there is residual impact (Tcpt, 27 March 2019, p 39(45)). The acoustic experts also agreed that the noise impacts for the inside of the residential dwellings can be treated by closing the windows, (Tcpt, 27 March 2019 p 38(35)).

51. They did not agree on whether the residual impacts are reasonable for the external shielded outdoor area, in times when there are multiple sporting events occurring at once (Tcpt, 27 March 2019, p 46(47)(54)). The proposed mitigation strategy for this impact is for residents to remain inside or to move from the yard to the shielded area of the dwelling if the noises disturb them (Tcpt, 27 March 2019, p 47(15)).

52. In relation to sleep disturbance, Dr Tonin, contends that there is insufficient information in the applicant’s report in order to satisfactorily determine whether the usage and exiting of the sport facilities after 10pm will cause sleep disturbance (Tcpt, 27 March 2019, p 60(25); p 66(15); p 67)). Albeit, he accepted that there will not be any sleep disturbance on the available information (Tcpt, 27 March 2019, p 67(45)).

53. The Council contends that it is unreasonable to expect people who reside in the proposed MHE development to accept these residual impacts from the sporting facilities and the AELEC. It submits that it is the noise generator or source which should address the noise issues not the recipients – the residents in the MHE: see Stockland Developments Pty Ltd v Wollongong Council (2004) 139 LGERA 374 at [6]. And, in circumstances where the sporting facility is consistent with the planning of the zone in which it sits, the Council contends that this permissible use should not be controlled or fettered as a consequence of this application. The question for the Court, according to the Council, is whether this development site, with the acknowledged residual noise impacts, can appropriately site adjacent the sporting Precinct without unreasonable adverse impacts and conflicts with the Precinct. Although this is really a town planning issue, the Council essentially relies on Dr Tonin’s evidence to demonstrate that even with noise amelioration such as the noise barrier walls and other measures, the MHE is not “compatible” with the existing land use at the sporting Precinct.

54. Whereas, the applicant submits on its evidence that the implementation of a barrier along the eastern boundary of the site, and a portion of the southern boundary and adjacent to the golf club car park, as well as upgraded glazing, altered building orientation and installation of mechanical ventilation in order to allow for windows to be closed, are sufficient to keep noise at the receivers within the agreed project noise goals during major events (Tcpt, 27 March 2019, p 40(22); p 25(15)). It accepts Dr Tonin’s recommendations and conditions (Exhibit Y, p 5 of Appendix A) and submits, on that basis, all residual external impacts are appropriately dealt with.

55. The applicant rejects the suggestion that there is insufficient predictions made about the impacts of the facility on the MHE because there is no clear understanding of what is ultimately proposed in terms of the number of events and attendees at the Precinct (Tcpt, 27 March 2019, p 59(42-50); p 60(25-35); p 61(8-14); p 62(44-50); p 63(1-6); p 64(1-6)), and relies on the information provided by the Council in Exhibit M in relation to the proposed use of the stadium.

Acoustics – findings

56. Given the proximity of the development to the Precinct, it will, at times, cause noise disturbances to residents. However, I am satisfied that the mitigation controls proposed by the applicant and Dr Tonin in their supplementary report and the revised design controls in Exhibit Y are reasonable and will reduce any residual noise disturbance to acceptable levels, both internally and externally and in the event that the agreed criteria is on occasion exceeded. This is based on the agreed internal and external noise goals and sleep disturbance criteria which should be applied. I am told that the AELEC is subject to noise conditions and assuming compliance with them, I understand that this would eliminate the risk of sleep disturbance.

57. The evidence is that there are a maximum of 26 dwellings of the 99 proposed that potentially may be affected on limited occasions by noise from the stadium and the car park use. The likely hours of use of these facilities by the Council is set out in Exhibit M and this information has informed the calculation of the noise levels and the assessment generally. It is likely that the approval of the stadium will include a standard condition to protect existing residents and thereby future residents of the MHE; and this will also assist control acoustic impacts. At the end of the day, some people will choose not to live in the MHE because of its proximity to the stadium and the sporting Precinct more generally. Those that decide to reside there will appreciate that they will be living next door to potential noise from regional sporting facilities at various times of the year. They will also appreciate that the applicant has incorporated several mitigation measures to address unacceptable acoustic impact. There is no requirement which prevents movement by a resident to obtain that amenity on infrequent occasions. It is agreed that most of the events that are conducted in the Precinct will be compliant without the need to rely upon any mitigation measures (Tcpt, 27 March 2019, p 43). The only facilities of concern to Dr Tonin are the regional stadium during AFL (not cricket), the netball courts and perhaps the athletics track (after 7pm only) and the conditions seek to address any anticipated impacts. AFL and netball events are played between April and September in the afternoon period. Five annual regionally significant events may be held. At least 80% of events fully comply with the agreed acoustic criteria. The frequency of exceeding events is set out in Tables 1 to 4 of Annexure C to Exhibit 10 and, the experts have agreed there is no noise criteria exceedance when the facilities are used for training purposes.

58. Appropriate conditions to address acoustic impacts have been incorporated into the Council’s proposed conditions (including those drafted by Dr Tonin) intended to preserve the amenity for the agreed 26 “at risk” dwellings. The applicant accepts these conditions and they are included in the proposed design controls. For the reasons outlined, I am satisfied that acoustic amenity at the site will be acceptable and is not likely to cause land use conflicts or unreasonable restraint of the future use of the sporting complex.

Golf Course – findings

59. The Council agreed with the applicant’s expert evidence with regards to the playability of the golf (Tcpt, 28 March 2019, p 109(10)) However, it raised a safety concern due to the potential conflict between land uses, being MHE and golf course. The concern is the relationship between the proposed dwellings that abut the fairway 18 and the risk of errant golf balls (Tcpt, 27 March 2019, p 8(10-20); p 109(20)) if residents decide to wander through the 60m setback line (Tcpt, 28 March 2019, p 115(35)) because they are used by golfers (Tcpt, 28 March 2019, p 116(15)).

60. In appreciating this point, the implementation of a safety zone is an effective way to deal with the issue and the plans have been amended accordingly. The proposal is to allow for a 60m buffer which will remain grassed to slow balls and be maintained by the MHE for use during the day by the golfers to retrieve their errant balls under an easement arrangement with the owner of the MHE. It will not be an exclusive use arrangement. It will be able to be used by the owner of the land or operator of the MHE in a legal sense for the purpose of landscaping, draining and maintenance. When the golf course is not in play, the residents of the MHE will have free access. At all times, the area will operate as common open space for use by the residents of the MHE and contain paths which the residents can use during play (Tcpt, 28 March 2019, p 116(20); 9 May 2019, p 33(5-50); p 34(5-40)). Condition 3.5 in Exhibit AE refers to the need to landscape and maintain and there will be a plan of management which would accompany the easement (Condition 4.7).

61. The applicant accepts these conditions and I am satisfied that there is no issue arising in respect of safety or playability if the conditions as proposed are imposed.

Lighting – findings

62. At the hearing, the Council’s lighting expert, Ryan Shamier, contended that there is insufficient information to decide whether the hockey fields (Tcpt, 28 March 2019, p 121(45)) will comply with the Australian Standard (AS/NZS 4282:2019) for the existing flood-light illuminating the Precinct (Tcpt, 28 March 2019, p 121(25); p 27(35)) and the obstructive lighting impact on the proposed development (Tcpt, 28 March 2019, p 130(45)). The insufficient information related to the tilt of the lights which is important for determining the hockey field’s compliance with the standard (Tcpt, 28 March 2019, p 125(30)).

63. Further investigation into the tilt of the lights was conducted by both lighting experts (Tcpt, 28 March 2019, p 146(45)). The Joint Expert Report marked Exhibit 13 was tendered on 8 May 2019 to supersede the previous report (Exhibit 2, p 5 at par 35) and evidence an agreement between the experts that lighting from the adjoining sports and entertainment Precinct will not have an unacceptable impact on the proposed development (Council’s written submissions at par 50).

Drainage – findings

64. The defendant’s drainage expert, Dr Daniel Martens, contends that a deferred commencement condition is appropriate if I grant consent to this proposed development without a flood study being undertaken (Tcpt, 28 March 2019, p 158(15)). The parties agreed to conduct a flood study and geotechnical report in order for Dr Martens to give a determinative assessment of the suitability of the site for the proposed purpose (Tcpt, 28 March 2019, p 160(20), (40)).

65. A final Joint Expert Report was tendered on 14 June 2019 and this issue is now resolved subject to a design requirement for a 500mm freeboard.

Visual impact – findings

66. In regards to landscaping, the parties agreed that there are many solutions to overcome the concerns expressed by the Council’s visual assessment expert, Dr Richard Lamb, in the joint expert report (p 175 at par 5). Changes to the landscape plan were agreed upon by both of the parties (pp 174-176).

67. A design guideline was accepted by the applicant as a condition of the proposed landscaping plan in relation to the planting of some trees and bushes in order to break up the visual lines of landscaping mass (Tcpt, 29 March 2019, p 183(40); p 191(20)).

68. In relation to density and character from outside the site, Dr Richard Lamb is of the opinion that the character can be improved by having a larger variety of house types (Tcpt, 29 March 2019, p 193(10)). Conversely, the applicant’s visual assessment expert, John Aspinall, contended that the continuity of the proposed development improves the otherwise incongruous built forms surrounding the site. Ultimately, the final design of the dwellings is not my concern in this application for use of the land for the MHE. That said, I agree with Dr Lamb’s evidence on this issue. The existing varied built character within the visual catchment is in my opinion testimony to the catchment’s continuing capacity to absorb additional residential development without creating visual disharmony Buffer landscaping, a single-storey design and the siting of the development in a position and location that is not highly exposed to the public domain are submitted to achieve the RE2 objective of visual compatibility with the surrounding locality (Exhibit 2, pp 23, 40 and AWS par 13(c)).

Buffer zones – findings

69. There are two areas of concern:

• The western setback of the community building from the western boundary being less than 10m and for dwelling sites 1, 16, 17, 18; and

• Dwelling site 20 not achieving the 3m buffer to the boundary.

70. Mr Barwick has also raised issue with the proposed jetty encroaching over the boundary.

71. As discussed by Mr Pollock (in Exhibit C pars 45-53 and in the Joint Report (Exhibit 8)), it is agreed that the 10m setback can be reduced under the Regulations 2005. The experts also agree that an encroachment of the community building into this 10m setback is appropriate given it will be sufficiently separated from the other land uses by the dam (Exhibit 8 at par 29). This matter can be dealt with by condition.

72. The only remaining issue is then the 3m buffer to the northern boundary. The question is whether there should be a common landscaped space between the boundary fence of the site and a boundary fence of the relevant dwelling sites. Mr Barwick said that while this would provide physical and visual separation, it would result in an enclosed 3m buffer – corridor of landscaping. I prefer Mr Pollock’s evidence to allow a landscaped buffer along the rear yard of the lots which provides the physical and visual separation without the need for the corridor of landscaping between fences.

Adequacy of the communal open space – findings

73. Clause 13 of the Regulations 2005 requires at least 10% of the total land area reserve for recreation or communal activities. Plan DA 103 Revision H2 Open Space Plan identifies the land reserved for recreation and other communal activities. It is in pink and does not include the dark green areas which constitute the golf zone. The area is 11.6% and Mr Barwick is satisfied that the amended proposal now complies with the area required under the Regulations 2005.

74. While there was concern expressed about the quality of the spaces under the transmission lines, Transgrid have approved the proposed use and this issue, in my opinion, is satisfied.

75. The largest open space is space 1 which includes the clubhouse. It is agreed that this space provides generous areas of landscaped space with walkways and a barbeque pavilion and recreation facilities including a bowling green and swimming pool. In my assessment, the space provided offers good amenity and there are further recreation options off-site and in close proximity. This issue is resolved by the amended plans. (I have dealt elsewhere with the concern expressed about the shared zone space).

Compatibility / zone objectives / site suitability – findings

76. Generally, zone objectives relate to disparate land uses contemplated by the Land Use Table. They set the framework in which the LEP operates. Sometimes the objectives within the same zone are inconsistent or conflict, but this is inevitable as they reflect the conflicting demands upon development within the particular LGA. And, as Mr McEwen, senior counsel for the applicant submitted in Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343 at [42], the Court made plainly clear that the objectives in the LEP are not provisions that control development.

77. In this case, I accept that the proposed land use does not respond to all of the objectives of the relevant zones. However, that of itself does not disqualify the proposed MHE land use from acceptability. The EPA Act invites a weighted assessment of all relevant considerations including the objectives in order to determine whether development consent should be granted and on what basis. Obviously, permissibility of the form of development does not mean that the use is suitable for the particular site. To that end, I agree with the Council that the term “suitable locations” in the fourth aim of the SEPP 36 cl 2(1)(d):“(d) to ensure that manufactured home estates are situated only in suitable locations and not on land having important resources or having landscape, scenic or ecological qualities that should be preserved ” should be construed to mean that every site that is permissible is not necessarily a suitable site within the meaning of s 4.15 of the EPA Act.

76. I also accept that where a use is an innominate permissible use to which the objectives do not address themselves, the zoning of the land is even less likely to warrant any greater weight BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237 at [117]. The fact that a particular use is permissible on a site is a neutral factor in the consideration: Mobil Oil Australia Limited v Baulkham Hills Shire Council (No 2) [1971] 2 NSWLR 314 at 318-319.

77. Once the SEPP deems the MHE use permissible, the TRLEP 2010 directs me to consider the development’s limited ability to support the stated objectives in the context of SEPP 36 and the adjoining land uses and s 4.15(1)(c) of the EPA Act. The Council contends that the second objective of the RE2 zone is directly relevant. It seeks to encourage a range of recreational setting and activities and compatible land uses. The MHE is not a recreational facility therefore the Council submits that the proposed development should be compatible with the RE2 and established uses. To require compatibility with the adjoining uses in my opinion elevates the zone objectives to dictating site suitability in circumstances where the SEPP brings in another layer of considerations.

78. That said, the applicant contends on the evidence that this development with the acknowledged residual noise and other impacts can appropriately sit adjacent to the sporting precinct, the golf course and the residences without unreasonable adverse impacts because any conflicts can be managed acceptably. Furthermore, the use and future growth of the sports Precinct will not be compromised by the MHE. The proposal does not require the sporting Precinct to adapt to the needs and requirements of the MHE. There is simply no evidence to support a finding that the sporting Precinct will be forced to alter its operations in a manner which will constrain the use of the Precinct.

79. Accepting that the zones’ objectives are not swept away by reason of SEPP 36 (Tcpt, 29 March 2019, p 231(15-19)), having considered them, I am satisfied for the reasons outlined by the applicant as summarised above that the proposed use is compatible with existing uses and thereby the relevant zone objective in the RE2 zone. In forming this view, I have carefully considered the lay objectors genuine concerns about playability of the course, the affidavit evidence of Dr Broadbent (Exhibit 18) and Mr Worldon (Exhibit 19), and the concerns about safety and visual amenity issues, particularly from the residences in Peak Drive. I have also relied on my observations during the extensive view of the site and the locality at the commencement of the hearing. Noting that my observations of the site and locality accord with the evidence of Mr Pollock, Mr Apinall and Dr Lamb.

80. Subject to the amendments suggested by Dr Lamb, I am satisfied that the proposal is visually compatible for a number of reasons including the single storey design, the large buffer of landscaping with the AELEC and the landscape treatment proposed between the car park, the siting of the development in a position or location where it is agreed that the site is not highly exposed to the public domain. In my assessment, the MHE appropriately fits into the character of the open space surrounded by residential development with the proposed landscaping and buffer zones.

81. The MHE will be installed in accordance with the detailed specifications contained in Part 2 of the Regulations 2005. Therefore, it can be reasonably assumed that those specifications are intended to result in a medium density built form providing affordable housing in a well-designed, liveable estate as the applicant submits. The estate is intended to be enhanced by landscaping, with a streetscape and building mix in accord with the design control specifications, offering the golf course vista and a large community facility available to residents and their guests, proximate to the regional sporting complex and the retail facilities established in the Tamworth CBD. Residential development is an established adjoining use of the existing golf course as was apparent at the view. The MHE will be largely screened from the sporting Precinct and the golf course car park by fencing and its visibility for the course and surrounding development will, as the applicant submits on the evidence, be significantly limited by distance and the buffer landscaping to be established within the southern and western community land (Exhibit 11, Appendix 6).

82. After development of the MHE, there will be low scale dwellings not dissimilar to the photographs of the other developments in (Exhibit B, tab 8). And, if different façade treatments are ultimately applied to the various styles of dwelling designs within the estate, as suggested by Dr Lamb, I am satisfied that this will assist to visually integrate the development (Tcpt, 29 March 2019, p 193(30-40)). While I accept that the built form will be different to the existing golf course, it will be located within the existing character of the area which already contains residential development abutting a golf course. As such, the MHE will fit in with the surrounding context and thereby be compatible.

83. With respect to the SP3 zone objectives, the development has, in my opinion, recognised the unique characteristics of the nationally and regionally significant tourist precincts that AELEC and the adjacent sporting Precinct, by incorporating design controls and acoustic fencing which will satisfactorily address any acoustic impacts which have the potential to cause land conflict.

Conditions

86. Following the receipt of the 3rd Joint Drainage Report of the Engineers on 2 July 2019, the Council amended its draft conditions to incorporate the further conditions recommended by Mr Crompton and Dr Martens. The final draft was submitted to the Court on 19 July 2019.

87. Relevantly, it includes a deferred commencement condition requiring development consent, if required, for the removal or relocation of the machinery shed located on proposed Lot 100 and changes to the golf course layout and modified fairways, rough areas and greens within 24 months from the grant of development consent. This satisfactorily addresses the Council’s concern about this issue as the consent will not operate unless these matters are addressed within the timeframe identified.

88. The conditions provide that the development for 99 manufactured home sites shall be undertaken in accordance with the approved Staging Plan (Condition 4.8). In accordance with cl 7(2) of SEPP 36, the consent requires a separate application to operate the MHE under s 68 of the LGA Act must be lodged for the approval of the Council prior to commencement of each stage. The stages must be completed in numerical order.

89. They also require prior to the issue of construction certificate further geotechnical investigations about the embankment and flood modelling and the preparation of updated civil engineering plans. The easements for shared golf course zones are identified in Condition 4.7 and a s138 approval under the Roads Act 1993 is required for the works in the road reserve which include the construction of the new shared pedestrian pathways referred to in Condition 94. Condition 4.30 deals with light spillage in accordance with the experts’ agreed position. Condition 9.10 provides for a community bus to be available for the residents of the MHE established as a component of Stage 1. There will be an onsite manager resident at all times as required by Condition 4.15.

90. Importantly, the conditions require that the MHE shall be designed, constructed, maintained and operated in accordance with Division 3 of the Regulations 2005, except as otherwise provided by an approval under s 68 of the LGA Act. The placement and position of the manufactured homes on the site must comply with the provision of Division 4 of the Regulations 2005, except as otherwise provided by an approval under s 68 of the LGA Act (Conditions 4.22 and 4.23). All manufactured homes installed on the site shall comply with the requirements of the Development Design Guidelines dated 30 April 2019.

91. Condition 4.29 requires that all prospective purchasers shall be provided with a copy of the Northern Inland Centre of Sporting Excellence master plan map (the version current at the time of sale) in their contract of sale to ensure that they are aware of the facilities planned in the Precinct. A Community Engagement Plan is also required to address any risk of complaints from residents about the new and ongoing activities in the Precinct and it will also be referenced in all site lease agreements. These measures will ensure that any residents of the MHE will have an opportunity to understand the adjoining land use before choosing to reside in the MHE.

92. Having considered all of the conditions in the Council’s draft dated 19 July 2019, I am satisfied that they are appropriate and should be imposed on the development consent without amendment as they address all relevant issues raised by the parties and the objectors.

Conclusion

93. The development application is compliant with cl 9 of SEPP 36 because it provides an adequate provision of reticulated water and sewerage, drainage and electricity to each individual site on which a manufactured home is to be installed as well as providing adequate transport services by way of a community bus and access to existing bus services. The applicant has secured approval from the electricity authority in respect of its latest amended plans (Exhibit W).

94. The sewerage experts were not required for cross-examination because they ultimately agreed about the existing and proposed location of the sewer pipe and that the drainage matters could be the subject of operational conditions of consent rather than deferred commencement conditions as originally proposed by the Council (Exhibits 7, 21 and F).

95. The traffic experts were not required at the hearing for cross-examination as ultimately they agreed all issues other than the issue of the bus service which is now dealt with by the imposition of Conditions 2.6, 2.7, 2.15, 4.7 and Conditions 9.2 and 9.4, noting that the applicant is required to provide a pedestrian path to the development from the public bus stop adjacent to the Tamworth Regional Entertainment and Conference Centre and Longyard commercial precinct in Longyard Drive. Similarly, construction access involving the secondary access off Jack Smyth Drive has now been satisfactorily addressed in the application and proposed conditions. The amended plans reveal that there is now adequate space to store 5 bins adjacent to the shared space in the car park without impacting vehicle circulation (Exhibit 8 at par 108).

96. The golf course is described by the applicant as a recreational asset that will be better maintained if this development application is approved. This maintenance is said to be in the public interest, and I accept that this is a relevant consideration under s 4.15 of the EPA Act. The development, also relevantly promotes the aims of SEPP 36 by facilitating the establishment of a contemporary form of medium density development as an alternative to traditional housing forms, located where it will adequately serviced, and have access to essential community facilities and services. The evidence is that the estate will be provided with adequate transport services which are likely to be extended upon the establishment of the MHE and planned development of the sporting facility. Accordingly, subject to the imposition of the Council’s conditions, I am satisfied for the reasons stated above that the development is acceptable on its merits after assessment.

Orders

97. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application No. 2019-0037 for the purpose of a manufactured home estate comprising 99 dwellings sites and community facilities with clubhouse, swimming pool and bowling green on Lot 2 DP 864981 and Lot 120 DP 1105753, Greg Norman Drive, Hillvue, New South Wales, subject to the conditions of consent in Annexure A.

3. All Exhibits are returned except for Exhibits 1 and X.

……………………..

S Dixon

Senior Commissioner of the Court

Annexure A (164 KB, pdf)

Decision last updated: 14 January 2020