Balcon Pty Ltd v Tweed Shire Council
[2005] NSWLEC 31
•02/10/2005
Land and Environment Court
of New South Wales
CITATION: Balcon Pty Ltd v Tweed Shire Council [2005] NSWLEC 31
PARTIES: APPLICANT
Baclon Pty LtdRESPONDENT
Tweed Shire CouncilFILE NUMBER(S): 10961 of 2004
CORAM: Bly C
KEY ISSUES: Development Consent :- Amend development consent to create an additional home site - Drainage - Access - Amenity.
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Tweed Local Environmental Plan 1987
Local Government (Manufactured Home Estates and Manufactured Home) Regulation 1995DATES OF HEARING: 04/02/2005
DATE OF JUDGMENT:
02/10/2005LEGAL REPRESENTATIVES: APPLICANT
Mr P Clay, barrister
instructed by Gadens LawyersRESPONDENT
Mr A Smith, solicitor
of Stacks/Northern Rivers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
10 January 2005
10961 of 2004 Baclon Pty Ltd v Tweed Shire Council
JUDGMENT
Introduction
1 This appeal relates to the refusal of an application under s.96 of the Environmental Planning and Assessment Act 1979 to amend Development Consent No 95/442 so as to create an additional home site to allow the erection of a manufactured home ("the proposed home") on the site which is a manufactured home estate known as Noble Lakeside Park, ("the estate"). The estate is located at the end of Monarch Drive in Kingscliff.
2 The site of the proposed home ("the proposed home site") is to have an area of about 320 sq m. It is to be located directly opposite the main entrance to the estate and it is the positioning of the proposed home that has generated the principal issue in the case.
3 The proposal also includes a corridor along the south-west side of the proposed home site that will facilitate the retention of existing vegetation, emergency vehicle and pedestrian access and a stormwater overland flow path.
4 The site is bounded by Chinderah Road to the west, a drainage reserve to the east, vacant land to the south, residences and a sewage treatment works to north. All necessary infrastructure, including stormwater drainage, water supply and sewerage are in place and there is sufficient spare capacity for the proposal.
5 The estate presently comprises 254 manufactured home sites together with other amenity and recreation facilities including a clubhouse, tennis courts, gazebos and a large lake with a jetty. There is an administration facilities centre adjacent to the main entrance. The home sites are leased and the homes are owned by the occupants.
Previous applications
6 The site has been the subject of two relevant development applications:
- Development Consent 95/442 for 234 manufactured home sites plus manager's residence.
- Developments Consent K99/1447 for an additional 20 manufactured home sites and site amalgamation.
Statutory provisions
7 The site is subject to the provisions of Tweed Local Environmental Plan 1987 although no provisions of that plan are relevantly applicable to this application.
8 The relevantly applicable provisions of the Local Government (Manufactured Home Estates and Manufactured Home) Regulation 1995 are complied with. The area of the proposed home site significantly exceeds the minimum site area of 130 sq m and as noted above would be fully serviced. The proposed home site is to occupy an existing area of open space but the estate has a total area of more than 20% of the site area, significantly exceeding the 10% requirement. Vehicular access is available and required setbacks can be complied with.
9 There was no dispute that the proposed home site and the proposed home will comply with the guidelines of the NSW Department of Urban Affairs and Planning's publication Manufactured Homes: a Guide to Planning and Design of Manufactured Home Estates (1993).
Advertising and council's decision
10 The application was advertised, resulting in thirteen objections from residents of the estate. In addition there was a petition containing 186 signatures also objecting to the proposal.
11 On 21 Jul 2004 the council considered an officer's report recommending that the application be approved subject to a number of conditions. Despite this report the council decided to refuse the application for reasons relating to the loss of the open space where the proposed home is to be located and the loss of the available views from the estate's entrance across the lake.
The issues
12 A number of issues were initially raised by the respondent including drainage and access for emergency/service vehicles. These issues have been resolved by relatively minor changes to the proposal and proposed conditions of consent, which were acceptable to the applicant. Having inspected the site and its environs and considered all of the evidence including the submissions of the advocates, the central issue to be determined by the Court is:
Whether the erection of a home on the proposed home site would adversely affect the amenity of the estate, to the detriment of the estate's residents.
The evidence
13 The appeal was conducted as an on-site hearing, which in my estimation, was attended by the majority of the residents of the estate. The Court heard evidence from the following residents who objected to the proposal:
- Mr J Mulligan of Site 11
- Mrs J Morris of Site 16
- Mrs M Wall of Site 88
- Mr C Williams of Site 151
- Mr G Berrell of Site 156
- Mr A Larkan of Site 123
- Mrs R Newton of Site 133
- Mr J Walton of Site 72
- Mr W Noble of Site 246
- Mr E Brown of Site 216
- Mrs D Stephens of Site 122
- Mr B Hosie of Site 98
- Mrs R Elden of Site 245
- Mr R Hope of Site 67
14 The residents expressed a number of concerns in relation to the proposal but those concerns mainly focused on the positioning of the proposed home resulting in the removal of what one resident described as the wonderful vista that presents itself to residents and visitors alike when entering the estate. More particularly the vista to the lake and beyond is, together with the avenue of palm trees, the entry bridge and fountain, an important element in the entrance to the estate. It is also an important element in the character and ambience of the estate generally. The erection of a home on the proposed home site would cut off the vista replacing it with a wall of homes.
15 The Court was shown several advertising brochures, which depict the proposed home site as open space and a cover photograph featuring the entry vista. A number of residents explained that they relied on these brochures and that their expectation that the open space be maintained was entirely reasonable.
16 The residents stressed that this open space where the proposed home is to be located was either proposed or in existence as such when they leased their home sites and they are concerned that their use of this particular area of open space will be denied by the proposal. It provides an important level access to the parkland surrounding the lake and a level playing area for visiting children.
17 Whilst they acknowledged that the lake and landscaped areas surrounding it provides a significant area of open space, there is little open space in the midst of the over 250 home sites. The loss of this particular piece of open space would worsen this situation.
18 The Court also received evidence from the applicant's town planner Mr J. Glazebrook and the respondent' s town planner Mr G. Smith. In addition to their written reports the two planners provided a joint report detailing the conclusions reached at their conference. They were unable to reach agreement in relation to the amenity issue although they did agree that the aesthetic values of the site might be diminished by the placement of a dwelling on the proposed home site and that landscaped treatment needs to be carefully considered. They agreed that the loss of available recreation space was not a significant issue.
19 In relation to the central issue Mr Smith's report was of little assistance, expressing the view that matters of amenity, views and ambience could best be expressed by the residents of the estate.
20 Mr Glazebrook was of the opinion that the amenity impacts described by the residents are likely to be minor and not of significant consequence. He reached this conclusion for the following reasons:
- Significant parts of the estate are oriented to the lake or onto other open space. The diminished vista arising from the proposed modification is, in my opinion, not significant in this context.
- The two existing homes adjoining the proposed home site would maintain their use of, and access to, the lake and foreshore open space. The ability of these residents to enjoy that amenity would, in my opinion, not be detrimentally affected
- The proposed modification does not in my opinion, restrict or change the way in which the common open space areas can be used or enjoyed.
- The principal functions of the land containing the proposed home site were to provide a storm water flow path and an emergency vehicle access. These functions have been retained.
Court's findings
21 I do not find the evidence of Mr Glazebrook persuasive instead I have been persuaded by the evidence of the residents that their amenity will be so adversely affected that the appeal should be dismissed.
22 I am not concerned about possible impacts on adjoining homes, loss of vegetation or access to the lake. Instead I have been persuaded that the impact on existing amenity and ambience will be significant and that this impact will affect residents and visitors alike
23 The existing entrance to the estate comprises an avenue of palm trees, the entry bridge and fountain, and the open space between the existing houses that facilitates views of the lake and the vegetation beyond. If this proposal were to proceed, the trees, bridge and fountain would remain but the very character of the entrance to the estate would be fundamentally and seriously adversely changed by the loss of the open space and the views beyond, these being important and integral elements of the total vista. The provision of an access corridor beside the proposed home site does not alter this conclusion.
24 There are more than 250 home sites in the estate probably accommodating in excess of 400 people. The main, if not the only access into the site is across the bridge at the end of Monarch Drive and the view from the bridge across the proposed home site to the lake and the parkland beyond will be lost to these residents and their visitors every time they come home or come to the estate for the first time.
25 Whilst on site I contemplated the character of the entrance and vista and the amenity that it provides for the residents. I agree that the proposal would cause a significant adverse impact on this amenity for a large number of people sufficient to warrant the refusal of the application.
26 Also contributing to this conclusion is the fact that this is a particularly useful area of fairly level open space associated with a gazebo and it would be unfortunate if it’s benefits to the residents were lost.
Orders
27 It is therefore the decision of the Court that:
1. The appeal is dismissed
3. Exhibits A and 7 are retained.2. The application under s.96 of the Environmental Planning and Assessment Act 1979 to amend Development Consent No 95/442 so as to create an additional home site to allow the erection of a manufactured home on the manufactured home estate known as Noble Lakeside Park, at 34 Monarch Drive Kingscliff is determined by refusal.
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T A Bly
Commissioner of the Court
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