INA Operations Pty Ltd ATF INA Operations Trust No. 6 v Hawkesbury City Council

[2018] NSWLEC 1582

Land and Environment Court

New South Wales

Medium Neutral Citation:	INA Operations Pty Ltd ATF INA Operations Trust No. 6 v Hawkesbury City Council [2018] NSWLEC 1582
Hearing dates:	29 – 30 October 2018
Date of orders:	07 November 2018
Decision date:	07 November 2018
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	(1) The appeal is dismissed. (2) Development Application No. 0685/16 for the staged alterations, additions and expansion of an existing caravan park to accommodate an additional 208 long term residential sites is refused. (3) The exhibits, other than Exhibits 2, A and G, are returned.
Catchwords:	DEVELOPMENT APPLICATION: expansion of an existing caravan park to add 208 long term residential sites; whether the development is inconsistent with the zone objectives; whether the development, including the increase in residential density, is incompatible with the rural character of the area; whether the necessary community facilities and services are available in the locality; whether separation to adjoining land is adequate; resident objectors.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Hawkesbury Local Environmental Plan 2012 Land and Environment Court Act 1979 Local Government Act 1993 Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 State Environmental Planning Policy No 21—Caravan Parks
Cases Cited:	BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237
Category:	Principal judgment
Parties:	INA Operations Pty Ltd ATF INA Operations Trust No. 6 (Applicant) Hawkesbury City Council (Respondent)
Representation:	Counsel: Adrian Galasso SC (Applicant)   Solicitors: McCullough Robertson Lawyers (Applicant) Adam Seton, Marsdens Law Group (Respondent)
File Number(s):	2017/345848
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 0685/16 for the staged alterations, additions and expansion of an existing caravan park to accommodate an additional 208 long term residential sites (the proposal) at a caravan park known as the Avina Van Village at Vineyard and adjoining land at Oakville, by Hawkesbury City Council (the Council).

2. The site consists of ten parcels of land, with the following addresses:

The existing caravan park known as Avina Van Village is located on the following land:

• 213 Commercial Road Vineyard

• 217 Commercial Road Vineyard

• 227 Commercial Road Vineyard

It is proposed to expand the development into the following land:

• 22 Bocks Road Oakville

• 38 Bocks Road Oakville

• 184 Stahls Road Oakville

• 194 Stahls Road Oakville

• 204 Stahls Road Oakville

• 214 Stahls Road Oakville

• 1 Menin Road Oakville

3. The appeal was subject to conciliation on 3 May 2018, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation was terminated as agreement was not reached, pursuant to s 34(4) of the LEC Act.

4. Leave was granted by the Court on 15 August 2018 for the applicant to rely on an amended proposal which reduced the number of long term residential sites proposed to 208.

Issues

5. The Council’s contentions can be summarised as:

• The proposal is contrary to the zone objectives of the RU4 zone because the proposal does not propose a primary industry and does not propose a land use that is compatible with primary industries;

• The residential density of the proposal is inconsistent with the character of the rural area;

• The proposal is inconsistent with the strategic planning framework for the orderly growth of the area and pre-empts any future land release;

• The proposal is inappropriately located because the necessary community facilities and services are not reasonably accessible from the site;

• The proposal provides unsatisfactory separation to adjoining land;

• Approval of the proposal would not be in the public interest as evident from the number and nature of objections to the proposal.

The site and its context

6. The site is located on the block bounded by Commercial Road, Menin Road, Stahls Road and Bocks Road and the site excludes four parcels of land also located on the same block. The site has and irregular shape and a total area of approximately 19.46Ha.

7. The site falls to a low point that traverses the land and drains to the west.

8. The site contains the existing caravan park which includes 37 long term residential sites and communal facilities such as a general purpose hall and swimming pool.

The proposal

9. The proposal is for the following works (Ex C, as shown in Exs A and B):

• Demolition of existing structures and removal of trees;

• Site preparation works including dewatering of existing dams, removal of contaminated fill, decommissioning of existing on-site sewage treatment facility and earthworks;

• Augmentation of infrastructure and services including stormwater, sewer, electricity, gas and communications;

• Construction of new internal roads, footpaths and visitor parking spaces;

• Establishment of 208 additional long term residential sites which are each 19 x 14m or 12m and capable of accommodating a two or three bedroom, two bathroom dwelling with garage and landscaping within the setbacks (Ex B, Dwgs 0011-0013);

• Construction of a new community facilities including a community building with kitchen, multifunction rooms, gym, dining and lounge areas, a heated outdoor swimming pool and lawn bowling green;

• Landscaping and retention of bushland comprising endangered ecological communities; and

• New vehicular entry and exit points on Stahls Road and Bocks Road.

10. The installation of moveable dwellings on the long term residential sites is not part of this application and is subject to separate approval under the Local Government Act 1993, because a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993 are specifically excluded from the definition of ‘building’ in s 1.4 of the EPA Act.

Planning framework

11. State Environmental Planning Policy No 21—Caravan Parks (SEPP 21) applies to all land in NSW at cl 4(1). Caravan park is defined to mean land (including a camping ground) on which caravans (or caravans and other moveable dwellings) are, or are to be, installed or placed.

12. At cl 8 of SEPP 21, the consent authority must, before granting development consent to the use of land for the purposes of a caravan park, the following:

(a) the number of sites (if any) within that land that the Council considers are suitable for long-term residence, within the meaning of the Local Government (Caravan Parks and Camping Grounds) Transitional Regulation 1993, and

(b) the number of sites (if any) within that land that the Council considers are not suitable for long-term residence, but are suitable for short-term residence, within the meaning of that Regulation.

13. The proposal is for all new sites to be long term residential sites.

14. Development consent for a caravan park must, pursuant to cl 3 of SEPP 21, specify the maximum number of sites (if any) within the land that may be used for long-term residence.

15. Matters for consideration at cl 10 of SEPP 21 is in the following terms:

10 Matters to be considered by Councils

A Council may grant a development consent required by this Policy only after it has considered the following:

(a) whether, because of its location or character, the land concerned is particularly suitable for use as a caravan park for tourists or for long-term residence,

(b) whether there is adequate provision for tourist accommodation in the locality of that land, and whether existing or potential tourist accommodation will be displaced by the use of sites for long-term residence,

(c) whether there is adequate low-cost housing, or land available for low-cost housing, in that locality,

(d) whether necessary community facilities and services are available within the caravan park to which the development application relates or in the locality (or both), and whether those facilities and services are reasonably accessible to the occupants of the caravan park,

(e) any relevant guidelines issued by the Director, and

(f) the provisions of the Local Government (Caravan Parks and Camping Grounds) Transitional Regulation 1993.

16. The site is zoned RU4 Primary Production Small Lots pursuant to Hawkesbury Local Environmental Plan 2012 (LEP 2012) and the proposal is permissible with consent. The objectives of the RU4 zone, to which regard must be had in determining a development application at cl 2(3) of LEP 2012, are:

• To enable sustainable primary industry and other compatible land uses.

• To encourage and promote diversity and employment opportunities in relation to primary industry enterprises, particularly those that require smaller lots or that are more intensive in nature.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

• To ensure that development occurs in a way that does not have a significant adverse effect on water catchments, including surface and groundwater quality and flows, land surface conditions and important ecosystems such as waterways

17. Part of the site is identified as ‘significant vegetation’ on the Terrestrial Biodiversity Map Sheet BIO_008D of LEP 2012. Clause 6.4 Terrestrial Biodiversity applies to land identified as ‘significant vegetation’ and ‘connectivity between significant vegetation’ on the Terrestrial Map, at cl 6.4(2) of LEP 2012. Clause 6.4 of LEP is in the following terms:

(1) The objective of this clause is to maintain terrestrial biodiversity by:

(a) protecting native fauna and flora, and

(b) protecting the ecological processes necessary for their continued existence, and

(c) encouraging the conservation and recovery of native fauna and flora and their habitats.

(2) This clause applies to land identified as “Significant vegetation” and “Connectivity between significant vegetation” on the Terrestrial Biodiversity Map.

(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider:

(a) whether the development:

(i) is likely to have any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and

(ii) is likely to have any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and

(iii) has any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and

(iv) is likely to have any adverse impact on the habitat elements providing connectivity on the land.

(b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that:

(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b) if that impact cannot be reasonably avoided by adopting feasible alternatives—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

18. A moveable dwelling is defined in the Local Government Act1993 as follows:

“ moveable dwelling” means:

(a) any tent, or any caravan or other van or other portable device (whether on wheels or not), used for human habitation, or

(b) a manufactured home, or

(c) any conveyance, structure or thing of a class or description prescribed by the regulations for the purposes of this definition.

19. The installation of a manufactured home, moveable dwelling or associated structure on land requires the approval of the Council pursuant to s 68 of the Local Government Act1993.

20. A long term residential site in a caravan park must have a minimum area of 80m2 at cl 85(1) of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005.

21. The Vineyard Precinct Stage 1 (Stage 1) is the rezoning of the land to the south of the site on the opposite side of Menin Road. Stage 1 includes low density residential land in the northern part of Stage 1 closest to the site and Stage 1 includes a village centre on the eastern side of Stage 1. The Vineyard Precinct Stage 2 is to the west of Stage 1.

Public submissions

22. Seven resident objectors gave evidence at the commencement of the hearing onsite. Their concerns regarding the proposal can be summarised as:

• The proposal is not consistent with the rural character of the locality due to the increase in the density of dwellings and population on the site;

• The proposal represents a quadrupling in size of the existing caravan park which in inappropriate within the RU4 zone;

• The density of the proposal is unacceptable, for example, five existing dwellings on Stahls Road will be replaced by 150 long term dwellings;

• The proposal is a residential housing development, it is urban development ‘by stealth’ and the future occupants will have an expectation of urban amenity which will create a conflict with the rural character of the area; the term ‘moveable dwellings’ is contentious as each dwelling is constructed on a permanent concrete slab;

• Caravan parks are not a permissible use in the RU4 zone of other Local Environmental Plans;

• The proposal will result in an unacceptable increase in local traffic and there is insufficient visitor parking on the site which will result in an overflow of parking onto the local roads;

• The proposal will have a negative social impact and result in an increase in antisocial behaviour and crime in the local area;

• The public transport is inadequate to service the proposal and there are no nearby shops;

• The proposal is not compatible with a nearby intensive started pullet farm (poultry farm) on the opposite side of Stahls Road because the operation of the poultry farm is likely to disturb the residents of the proposal and cause them to complain about a legitimate activity within the rural zone which may result in the farm being closed; and because started pullets are sensitive animals and they react to sudden disturbances, such as noise, light spill or construction vibration.

Expert evidence

23. The applicant relied on the expert planning evidence of Mr Warwick Gosling and the Council relied on the expert planning evidence of Mr Glenn Apps.

Consideration

Zone objectives

24. The parties agreed that two of the zone objectives are relevant to the proposal, as follows:

• To enable sustainable primary industry and other compatible land uses.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

25. The parties agreed that the only primary industry within the vicinity of the site is the poultry farm at 199 Stahls Road, Oakville. The planning experts agreed that the distance between the proposal and the poultry farm is approximately 40m.

26. The applicant submits that the proposal is a ‘compatible land use’ within the meaning of the first objective, because it is a permissible use within the RU4 zone and the existing caravan park has existed in harmony with the primary industries and other uses in the vicinity of site. The proposal, including the access points, is not incompatible with primary industries.

27. Mr Apps estimated the total population on the site to be 570 people based on an occupancy rate of 1.2 people per household (Exhibit 6, p 12 and Exhibit M, section 6.6). Mr Gosling agreed with this estimate in his oral evidence. According to Mr Gosling, the density of the future population occupying the proposal is equivalent to a medium density, or R3, urban environment.

28. The planning experts disagreed on whether the proposal is compatible with the poultry farm.

29. According to Mr Gosling, the relocation of the driveway access to the proposal on Stahls Road opposite the poultry farm has addressed the potential impact of light spill from headlights of cars exiting the proposal on the operation of the poultry farm. Mr Gosling noted that the site is not currently being used for primary production but is instead currently used for rural residential purposes.

30. According to Mr Gosling, the proposal will not interfere with the continued operation of the poultry farm, nor will the proposal prevent another future primary production use from operating in the vicinity of the site. The proposal is therefore compatible with sustainable primary industry.

31. The applicant submits that the future residents of the proposal will not be impacted by way of odour from the poultry farm, as demonstrated by the Odour Assessment (Ex L), which indicated that minimal odour impacts from the poultry farm were detected within the site. Mr Gosling noted that the poultry farm sheds are optimally located on a hill falling away from the site and Stahls Road.

32. The Council submits that the Odour Assessment was carried out over a 6 week period; whereas the poultry farm’s batching period is 17 weeks, so the Odour Assessment cannot be relied upon to indicate the maximum odour that the future residents of the proposal will experience. It is the Council’s submission that the proximity of the proposal to the poultry farm and the density of the population proposed by the proposal make it incompatible with this sustainable primary industry in the vicinity of the site. In Mr Apps’ view, the future residents of the proposal may complain about the operation of the poultry farm and this may result in restrictions being placed on its operation, such as expansion being prevented or production being limited, and this represents a conflict between the two uses.

33. The permissibility of the use as a caravan park in the RU4 zone is a neutral factor as it is one of a long list of uses permitted with consent in the RU4 zone under LEP 2012 (BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237, 262-263).

34. I accept the applicant’s submission that the existing caravan park exists in harmony with nearby sustainable primary industry; although it does not necessary follow that an intensification of the existing use on the scale proposed will maintain the status quo. I do not accept that the proposal is a compatible land use with sustainable primary industry if it can be demonstrated that there is no conflict between the existing poultry farm and the proposal. The objective of enabling land uses within the zone that are compatible with sustainable primary industry is not confined to an existing sustainable primary industry within the vicinity of a proposal.

35. I am not satisfied, for the reasons given below, that the proposal is its current configuration is acceptable.

Whether the residential density of the proposal is inconsistent with the character of the rural area

36. The planning experts disagreed on whether the proposal will impact on the existing character of the area.

37. According to Mr Apps, although there is an existing caravan park and it forms part of the existing character of the area, the proposal will impact on the rural character of the area because the rural character is defined by the sparsity of built form in the landscape, whereas the proposal has a tight clustering of dwellings. In his view, the proposal imposes itself of the area.

38. According to Mr Gosling, the uncharacteristic layout, a function of the scale and intensity of the proposal, is separated from the surrounding properties by a buffer of landscaping along Stahls Road intended to screen the proposal from view.

39. The character of the area is reflected in the minimum lot size of 2Ha for properties in the RU4 zone. I accept the agreement of the planning experts that the proposal is indeed uncharacteristic in the RU4 zone and I do not accept that a minimum setback of 10m to provide a buffer of landscaping to screen the proposal will successfully ameliorate the wall of buildings that will eventuate if the long-term residential sites are approved in their current size, configuration and density.

36. I do not accept that a comparison between the front setback of rural dwellings on large rural lots (Exhibit R) can be compared to the setback of long rows of long term residential sites which are intended to accommodate large dwellings with narrow side setbacks. The area is substantially characterised by isolated dwellings on a large lots with significant curtilages, whereas the proposal, particularly on the eastern portion of the site, has long term residential sites ranging between 202m2 and 379m2 densely packed along a grid of roads with a minimum 10m setback between adjoining properties and public roads.

37. The scale of the proposal, the number of sites and the extremely generous proportions of the individual sites results in a density of long-term residential sites and future dwellings that is completely contrary to the rural character of the local area. The blanket of long-term residential sites and roads across the site leaves very little opportunity to retain existing vegetation amongst the long term residential sites.

Consistency with the strategic planning framework

42. The applicant submits that the proposal is consistent with the strategic planning framework for the orderly growth of the area and does not pre-empt any future land release. The applicant further submits that the proposal does not rely on the infrastructure proposed as part of the Vineyard Precinct (Stage 1).

43. The planning experts agreed that the proposal seeks to expand the existing caravan park and the proposal would have been proposed regardless of the Vineyard Precinct (Stage 1) release. The planning experts agreed that the proposal should provide facilities to meet its own demands and not rely solely on services in the locality.

Whether the necessary community facilities and services are reasonably accessible from the site

44. The applicant submits that the existing facility caters for short and long-term stays and includes a shop, restaurant, swimming pool, tennis court and barbeque area and these facilities will be available to the future residents of the caravan park. The proposal includes an additional community building as the focal point of the expanded park and a bowling green. In addition, Ingenia operates a program called the Ingenia Care Assist, which is a free service that connects residents of the caravan park with a range of care services (Exhibit C, p 27).

45. The planning experts disagreed on whether the proposal includes adequate onsite facilities for the anticipated population of 570 people. Mr Apps noted that the population of the proposal is akin to a neighbourhood and, in his view, the proposal should provide additional convenience and recreation facilities and should include a commitment to providing sufficient onsite services. Mr Apps noted that the mini-bus to be provided for the use of occupants of the caravan park is not always a feasible or convenient option.

46. There is a local bus services (Ex S) which provides a bus connection between Windsor Interchange and Riverstone Station via the caravan park a number of times a day, although this service is infrequent with 1.5-2 hours between buses and does not operate on Sundays. The planning experts agreed that it is a 2km walk to the nearest railway station and that there is little pedestrian infrastructure to facilitate that journey.

47. The proposal includes a mini-bus to transport residents of the caravan park, however, there is no commitment to the operation of the mini-bus in the Plan of Management (Ex N) or in the requirements for the updated Plan of Management (Conditions 52 and 101, Ex P) or in the Social Impact Assessment, other than “village courtesy bus and pool car(s)” (Ex M, section 6.3).

48. Having considered the list at cl 10 of SEPP 21, I am not satisfied that the necessary community facilities and services within the locality of the site are reasonably accessible to the proposed significant increase in long-term residents of the caravan park. For those residents without access to a private vehicle, the proposal does not include a commitment to providing a mini-bus and access to public transport is inadequate for the proposed population of the caravan park.

Separation to adjoining land

49. The planning experts disagreed on an appropriate setback from shared boundaries and road boundaries in the rural context and they disagreed on whether an adequate mid-block separation is achieved by the proposal.

50. According to Mr Gosling, the proposal has carefully considered the interface to the adjoining properties at 15 Menin Road and 48 Bocks Road, by locating 4 long-term residential sites with a 10m setback from each of the two shared boundaries of 15 Menin Road and 6 long-term residential sites with a 10m setback from the shared boundary of 48 Bocks Road, partly screened by the existing shed on 48 Bocks Road. The setbacks are intended to be landscaped to provide a screen to the adjoining properties. Mr Gosling noted that rural sheds are required to be setback only 5m from the boundary.

51. Mr Apps proposed to delete 24 long-term residential sites on the periphery of the layout, including those sites with a 10m setback to the adjoining properties. According to Mr Apps, deleting these sites will assist by providing a greater buffer to the existing adjoining development and allow for greater perimeter planting. Mr Apps also proposed to delete some internal sites to create opportunities to retain trees in order to maintain the character of the area, which is in his view defined by scattered trees.

52. I am not satisfied that the proposed setbacks from shared boundaries are sufficient to provide a satisfactory separation to adjoining land, nor am I satisfied that the amendments proposed by Mr Apps are sufficient to provide a satisfactory separation to adjoining land. The proposal cannot be compared to the setback required for a rural shed because the long-term residential dwellings will create a wall of structures clearly visible from adjoining properties and will not be similar in any way to a rural shed, because a shed is an isolated single structure and it is not habitable. The proposal will present as rows of tightly spaced dwelling devoid of the existing vegetation on the site when viewed from adjoining properties.

53. The proposal provides an unsatisfactory separation to adjoining properties. The rows of tightly spaced long term residential sites along a grid of roads with little opportunity to retain the existing vegetation among the long-term residential sites is contrary to the existing rural character which is established by open spaces and generous setbacks and separation between dwellings.

Conclusion

54. The scale of the proposal, the number of sites, and the extremely generous proportions of the individual sites laid out in continuous rows results in a density of long-term residential sites and future dwellings that is inconsistent with the rural character of the local area.

55. I am not satisfied that this site is suitable for the intensification of the caravan park on the scale proposed because of its location in an area not yet sufficiently well serviced by public transport.

Orders

56. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 0685/16 for the staged alterations, additions and expansion of an existing caravan park to accommodate an additional 208 long term residential sites is refused.

3. The exhibits, other than Exhibits 2, A and G, are returned.

____________

Susan O’Neill

Commissioner of the Court

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Decision last updated: 07 November 2018