Najask Pty Ltd v Palerang Council

[2007] NSWLEC 792

Land and Environment Court

of New South Wales

CITATION:	Najask Pty Ltd v Palerang Council [2007] NSWLEC 792
PARTIES:	APPLICANT Najask Pty Ltd RESPONDENT Palerang Council
FILE NUMBER(S):	10362 of 2007
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- 100 long-term manufactured dwelling sites, sewage, potable water supply, loss of privacy, noise nuisance, permissible or prohibited, social impact, shadows, sustainability
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Yarrowlumla Local Environment Plan 2002 Yarrowlumla Development Control Plan for the Rural Residential Zone Environmental Planning and Assessment Regulation 2000 Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and moveable Dwellings) Commission 2005 Technical Bulletin No. 13 - NSW Planning & Environment Commission 1978 Planning for Bushfire Protection 2001 Local Government Act 1993 State Environment Planning Policy No. 21 - Caravan Parks Local Government Act 1919 - Ordinance 71 Yarrowlumla Local Environment Plan 1993
DATES OF HEARING:	26/09/07, 27/09/2007, 28/09/2007
DATE OF JUDGMENT:	29 November 2007
LEGAL REPRESENTATIVES:	APPLICANT Ms S. Duggan, barrister Instructed by: Mr S. Griffiths of Pike Pike and Fenwick RESPONDENT Mr J. Robson, QC Instructed by Mr A Bradbury of Minter and Ellison

JUDGMENT:

- 1 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

29 November 2007

10362 of 2007 Najask Pty Ltd v Palerang Council

JUDGMENT

1 This is a Class 1 Appeal No. 10362 of 2007 between Najask Pty Ltd and Palerang Council in regard to the refusal in 2006 and confirmation after s 82A Review, of DA2005/DV-056 for an additional 159 long-term manufactured dwelling sites at the White Ibis Tourist Park at Lot DP245156, Bidges Road, Sutton in the Parish of Goorooyaroo. The site is off the Federal Highway not far north of Canberra.

2 At the s82A Review the proposal was amended to seek 160 long-term sites. Before this Hearing the proposal has been amended to seek 100 long-term sites.

The site

3 The Land is located in Sutton fronting Bidges Road, which runs off the service road to the Federal Highway. The Land has a total area of 17.64 hectares and a street frontage of 110.25 metres. The area proposed for the 100 new sites is vacant land in the north end of the site.

4 The Land undulates gently between high points at the south-western corner fronting Bidges Road and the north-easterly corner at the furthest side. The aspect of the area proposed to be developed faces the south-west The current development on the site is concentrated on the lower lying areas in the middle and on the southern end of the land fronting Bidges Road.

5 The White Ibis Tourist Park was approved by agreement of the parties to Consent Orders of the Land and Environment Court on 18 August 1986 as a 'tourist village” Comprising:

· 30 drive-through caravan sites.

· 100 back-in caravan sites.

· 20 mobile home sites,

· 25 camping sites and a manager's residence (the 1986 consent).

6 The consent conditions incorporate a report by Victoria Grounds with associated drawings, and subsequent consents refer to the site as “tourist village” “tourist park” and “caravan park and camping ground”.

The locality

7 Bidges Road serves approximately 43 Rural Residential allotments as well as the existing tourist park.

8 The Land is bounded by four private properties. These four lots are approximately 12.5 hectares, 16.5 hectares, 7 hectares and 16 hectares. The median lot size within a 500 metre buffer around the Land is approximately 13 hectares and typically each lot contains a single residence.

9 The applicable local environmental plan is the Yarrowlumla Local Environmental Plan 2002 (YLEP).

10 The Land is within Zone No 1 (d) (Rural Residential Zone) under the YLEP. All land in Bidges Road is zoned Zone No 1(d) (Rural Residential Zone) since the Yarrowlumla Local Environmental Plan 1993 (Amendment No 8) was gazetted in 1998.

11 Council's Yarrowlumla Development Control Plan for Rural Residential Zones applies to all land within Zone No 1 (d) (Rural Residential Zone) and Zone No 1 (a) (General Rural Zone) and thus applies to the Land.

1. The respondent contends that the development the subject of these proceedings is not permitted by the YLEP or otherwise. The respondent contends, as a consequence, that the application must be refused.

2. The respondent contends that the applicant enjoys the benefit of an existing development consent which enables the land to be used as a ‘tourist village'. Any further development of the land for that or any other purpose may be carried out only if it is permitted by the YLEP .
3 The respondent contends that the proper characterization of the proposed development is as a 'caravan park’ or `manufactured home estate' as defined in the YLEP. Development for either purpose is prohibited within Zone 1(d) under the YLEP.
4. While development for the purposes of a tourist facility, .is permitted with development consent within Zone 1(d), the proposed development cannot fall within this land use as it will provide residents with permanent residential accommodation, rather than holiday accommodation.
5. If development for the previously approved use as a tourist village remains permissible under the YLEP, that use cannot be an “existing use” under s106 of the Environmental Planning and Assessment Act 1979. Accordingly the provisions of the Environmental Planning and Assessment Regulation 2000 that permit enlargement, expansion or change of an existing use cannot apply.
6. In the alternative, if, contrary to the contentions set out above, the current use of the tourist village is an 'existing use' within the meaning of s106 of the Act, the respondent contends that the existing use is confined to the land on which that use has been actually, physically and lawfully carried out and does not extend to the land the subject of the current development application.
7. The proposed development, if permitted, is most likely to attract low income and, potentially socially disadvantaged residents. The respondent contends that the range of services proposed will not meet the needs of the likely residents. After Bungendore, Braidwood, and Captains Flat the park, if permitted, would become the fourth largest concentration of population in the Palerang Local Government area. The range of community and health services proposed fall short of those available in these villages, such as library services, post office, rural fire service, schools, churches, community organizations such as Rotary, CWA and a variety of support services for the aged, frail, disabled or parents with young children. The majority of the proposed facilities are recreational or sport facilities that may prove to be inappropriate for future households. The proposed communal hall, small convenience store, community bus and facilitation of a community nurse on a needs basis are considered to be inadequate to meet the potential needs of a community with greater and more complex needs. The respondent contends that, on this basis, the application must be refused.
8. The design of the proposed development is not appropriate having regard to solar orientation and aspect of individual dwelling sites, therefore not facilitating sustainable design and residential amenity. The respondent contends that, without further design enhancements, the application must be refused on this basis.
9. The respondent contends there is insufficient information to assess the application namely:
(a) the location of sewage treatment plant, effluent treatment ponds, and turkeys nest dam have not been examined in relation to potential odour impacts within and external to the development
(b) it is unclear whether, as a result the most recent design of the proposal, the proposal is “designated development” and
(c) the location of groundwater bores in the area have not been identified or adequate provision made for capping and buffering.
10. The respondent also contends that there has been insufficient analysis of the impacts of the development on the sustainable use of water, both within the development and the catchment more broadly. In this regard, the respondent says that further information is required on:
(a) existing and proposed groundwater use for the site:
(b) existing and proposed surface water use for the site:
(c) existing and proposed importation of water to the site; and
(d) existing and, proposed flows to and fro m the site.

The Evidence

12 The respondents evidence came from:

· Mr P and Mrs M Taylor resident/objectors of site 48 Spoonbill Crct, White Ibis Tourist Park.

· Mrs C Butterworth resident/objector of site 47 Spoonbill Crct, White Ibis Tourist Park.

· Mr B McFarlane manager development and environmental services of council.

· Ms A Shumaker, development assessment officer of council.

13 A number of written objections were tendered from residents of the existing village and from the rural residential area near the site. A letter was tendered from Dept of Infrastructure Planning & Natural Resources in 2005 in reference to the 159 site proposal.

14 The applicants evidence came from:

· Ms D Laidlaw consultant town planner in regard to the physical and environmental issues.

· Mr D Brindle consultant town planner in regard to the social issues.

· Mr A Norris consultant civil engineer.

· Mr M Lindsay a director of the applicant company

15 The application was referred to the Roads and Traffic Authority, and the NSW Rural Fire Service and to the then, Department of Infrastructure, Planning and Natural Resources.

16 The application was notified to seventeen adjoining and adjacent landowners and landowners considered potentially affected by the development proposal. Residents within the White Ibis Tourist Park were notified. As the applicant did not apply for integrated development, it was not advertised.

17 Thirteen (13) submissions were received by council, one (1) providing support for the proposal and twelve (12) submissions against. One submission was in the form of a petition with nineteen (19) signatures. Planning related issues identified in the objections and petition include the following:

(a) Loss of privacy;
(b) Increase in noise to the area;
(c) Increase in motorized traffic and related safety concerns particularly children walking to and from the bus stop along Bidges Road;
(d) Development not in keeping with the rural residential character of the area;
(e) Loss of wildlife;
(f) Loss of rural lifestyle and rural setting;
(g) Water supply, water pressure and contamination of the underground aquifer servicing the area;
(h) Bushfire risk and emergency access;
(i) Impact on outlook from the Federal highway;
(j) Loss of rear gardens including improvements such as garden sheds, landscaping and washing lines for existing householders;
(k) The grey water treatment dam on the eastern part of property leaks and overflows. If the land is developed there will be nowhere for this water to go;
(l) Loss of pine trees that act as a windbreak;
(m) Isolation of the development from services, including social services and public transport;
(n) Development is contrary to Councils aim to minimize the cost to the community of fragmented and isolated development of rural land and the cost of providing, extending and maintaining public amenities and services;
(o) Development proposes dwellings within 50 metres of the boundary, which is contrary to the generally accepted Council requirements;
(p) Lighting associated with the development would be inconsistent with rural residential living,
(q) Possibility of increased crime rates including trespassing onto adjoining properties;
(r) Loss of privacy for adjoining owners;
(s) Originally approved plan for the White Ibis showed the area between the rear perimeter fence and the home allocation sites as recreation areas;
(t) Requirement for building envelopes for single dwellings in new subdivisions in the area, yet this proposal can be developed with dwellings over the whole land.

18 The application was referred internally to Council's Development Engineer and Council's (consultant) Health and Building Inspector. Comments from the Health and Building Inspector were that, as the applicant had provided only an overview of the water and wastewater proposals and of the construction methods of the proposed new buildings, that no work of any kind is to commence until normal approval has been obtained in respect of water and wastewater systems (Local Government Act 1993 Section 68 approval). Further, a Construction Certificate is to be obtained prior to construction of new buildings commencing.

19 Comments from the Development Engineer highlighted the fact that the proposed road layout did not meet the requirements of Planning for Bushfire Protection 2001. Also, recommended conditions if approval was to be given, included payment of Section 94 Contributions and that designs for pavements, access roads, internal access roads, road junctions, parking and turning areas, storm water, water supply and sewerage works are all to be designed and constructed in accordance with relevant specifications.

20 Mr I and Mrs B Buckley resident objectors of the nearest house on the north side of the site could not attend the hearing due to illness and sent a letter confirming their objections. The north end of the site is currently vacant and that is where the new manufactured dwelling lots are proposed. The Buckley’s concerns supported those mentioned above and said:

· The area proposed for development is shown on the original consent as being for recreation,

· There are existing disturbances such as loud music played until “all hours of the night”

· The proposal will bring dwellings to within 56 m of their house (sic. when at the moment the nearest is about 260m away by scale).

· The existing residents of the tourist park trespass onto the Buckley’s land, and occupants of 100 new sites closer to the common boundary must increase this problem

· The proposal will almost double the activity on the site and must increase the existing nuisances that adversely affect rural residential amenity.

· The Buckley’s driveway is alongside the common boundary and generates dust and noise when a car drives on it. At the moment the vacant land on the subject site is a buffer. Mobile home permanent sites close to the boundary will be affected and cause complaints that should be avoided by retention of the existing buffer.

21 Mrs Butterworth did attend the hearing, but had not lodged a written objection. She said she agreed with Mr & Mrs Taylor’s objections. In addition to the concerns raised above the residents of the park are concerned:

· they had to learn of the proposal from others and were not consulted by the applicant until then.

· The residents on the uphill side of Spoonbill and Plover Crcts have rural views and rear courtyards now that will become just views of other manufactured homes.

· A line of pine trees that forms a windbreak will be removed to complete the bushfire protection perimeter road.

· The vacant area proposed for development is shown as recreation area on the existing consent and although it is fenced there are gates that might enable its use by residents of the village. In his recollection the gates are often padlocked, but should be available always for recreation. The area is frequented by kangaroos and other wildlife that add to the rural amenity. That will be lost if the proposal goes ahead. The animals push their way under the fence and come amongst the dwellings too, it adds to the attraction of the site.

· The effluent pond uphill of Spoonbill Crct overflows in storms and is diverted by an existing table drain that runs through the proposed development area. It will have to be piped to the new stormwater pond downhill that is said to be reused for drinking water. What will be the quality of the water?

· Also with only 39 permanent dwellings now, there have been drinking water supply shortages, what will happen with 100 extra permanents?

22 The initial consent was for a “tourist village” in 1986 and was Consent Orders from the Court by agreement of the parties. The conditions were few and embraced the plans and detailed description of the proposal in a Report by Victoria Grounds submitted with the application.

23 In 1987 a further application was made for an Administration Building that contained a small supermarket, a bistro, kitchen, cool room, store room, TV room, reception desk, office, a foyer and large roofed space called a Central Plaza, a surgery, office and check-up room and managers residence. This was approved and the exterior is substantially the same now, as approved, but some alterations have occurred inside.

24 Without a more detailed check, the main change seems to be conversion of some rooms to enable expansion of the kitchen and dining areas.

25 During the view of the “village” it was noted some buildings are demolished and some new manufactured homes have been installed but not shown on the plan of the proposal in Exhibit J.

26 Nothing in this appeal turns on that observation, except to know the applicant regards the existing consent to be for the manufactured dwelling/caravan/tent lots and what goes on the lots changes from time to time and no council consent is needed for that.

27 The “village” is largely self sufficient in regard to fresh water supply and sewerage disposal. There are bores for fresh water. There is a Pasveer Ditch aeration biological sewer treatment plant, and three treatment ponds on site. There is another large ornamental pond that starts near the drive entry and extends up to the administration building and some dwelling lots. Existing effluent disposal is by its use for irrigation of vegetation on site, the effluent quality after passing through the three “polishing ponds” is acceptable for this.

28 The existing tourist village has facilities including swim pool, tennis court, putt-putt golf, basketball, beach volleyball, lawn areas, BBQ, reception/meeting room and several toilet and shower blocks.

29 During the view I was shown another sewer treatment “cell” stored on site. It would be installed as part of the proposal. Revised and enlarged areas for irrigation disposal are proposed as shown on Exhibit L. Another stormwater detention pond would be created on the western boundary of the site, and it would provide the additional capacity for all fresh water needed by the 100 new lots. A treatment plant additional to the bore water, will convert the stormwater into potable drinking water.

30 The new lots of the proposal are to be accessed by a new road coming off an existing roundabout at the southern end of the site near the entry off Bidges Rd. This gives the long-term residents a certain separation from the shorter term residents and tourists. The separate access is intended to avoid vehicle congestion that may occur if the new traffic had to pass through the existing manufactured dwelling/caravan/tent areas.

31 For bushfire and emergency purposes and servicing of the new lots and their dwellings, the new internal road system located amongst the new lots does connect with the existing at the north end.

32 The new lots will also have their own central amenities of an indoor swim pool, change rooms, toilets, office, kitchen and meeting room, pergola covered outdoor area, tennis court, lawn bowls, visitor parking, BBQ and lawn area.

33 A 20m setback from the property boundary is proposed to the new lots. There is a perimeter road around the outside of the lots closest to the boundaries. It is 4m wide with passing bays so the landscape setback to the boundary is about 16m. At the northern corner of the site that is near the neighbouring Buckley house, there is a greater setback. The perimeter road “cuts the corner” to give about a 50m setback at the widest point. This will give about 90 m separation to the Buckley house. Also the “cut off” is adjacent the 50 m length of boundary that the Buckley driveway adjoins.

34 This 50m setback is a change to the plans that were before the council, the respondent said. Also the amenities complex has been relocated to a central position amongst the new lots. The earlier drawings had them against the western boundary. A further change was a service road past the back of Mr Taylor’s dwelling, put there to complete a perimeter ring-road for bushfire vehicles. It does take out the row of Pine trees existing there. The applicant says they are not indigenous trees and the new landscaping will be more appropriate.

35 The landscape plan No. PSC3433 – LP01 – C by Integrated Site Design had not been updated to the revised application. The applicant said any final plan would be similar. It proposed boundary trees and shrubs of fire retardant species as a screen, supplemented by trees scattered amongst the lots. A row of trees along the fire ring road would be located about the same place as the pines.

36 Mr McFarlane said there were two aspects to the issue of unsustainable water supply as a result of the proposal. One aspect is the potential taking of more groundwater from the existing bores (since they are not metered) and whether it will remain drinking quality (potable). The other aspect is the collection of storm runoff in the dam exceeding the Maximum Right of Harvest, plus the fact that much of the stormwater will come off effluent irrigated land and may be too contaminated for drinking water even after treatment.

37 Mr Norris said his design is changed to eliminate stormwater flowing into the effluent ponds that in the past caused them to overflow in high rainfall. The stormwater would be piped to the new stormwater dam directly.

38 In periods of high occupancy of the existing “village” and high useage of fresh water, Mr McFarlane said the bore water is insufficient and tanker water has to be brought in. He anticipated that the addition of the stormwater reuse system will not eliminate this occasional necessity. Mr Norris said he had done a detailed water balance analysis (supply Vs useage). The previous scheme of the 159 new lots had required 99% of potential new potable water supply from the stormwater dam. The current reduced number of 100 new lots would easily be supplied. The analysis for 170 new sites showed water tanks would only be needed 5 times in 30 years. And, that was without allowing for restricted usage during times of drought. He had not modelled the 100 new lot proposal. He used his experience and the results of the 159 lot analysis to conclude it would be okay.

39 The residents nearby had bore water too, and Mr Mc Farlane said their bores are shallower than the existing bores on the site. The residents told him their bore water is not useable for drinking (potable). They are concerned that the on-site sewer plant is contaminating groundwater, and the enlargement of it would increase that.

40 He said the site’s bores being deeper than the neighbours’ may not have contaminated water now, but enlarging the sewer plant could do so and then the site would have to import all its water. An EIS is needed he said. He suspected the proposal is unsustainable. He said this locality is already stressed as far as groundwater is concerned, and this “village” is the major user. Its existing bore is unmetered and so there is no way of checking how much it uses.

41 In cross-examination he agreed:

· He is not an engineer and not qualified to assess these matters

· Mr Norris had given him any data asked for, and it showed sufficient volume for potable and irrigation water.

· The existing potable bore water quality, and the future stormwater reuse for drinking and the effluent pond water for irrigation is and will be checked regularly by NSW Health Authorities (not the council). In the past it has been maintained at acceptable quality in both cases. The only non-compliance (now fixed) has been the need for spray irrigated areas to be sign posted. The drip-irrigated areas do not need signs.

· There are no other bores on adjoining properties within 100m of the site bores and the sewer treatment plant and ponds, and that is the statutory separation distance. Mr Norris countered that the site’s own bores are very close to the primary effluent treatment pond.

· He had no tests of neighours’ bore water to verify their claims it is not potable.

· He had not sent Mr Norris’s modelling of drinking and irrigation water supply, for checking to Department of Natural Resources or Department of Infrastructure Planning and Natural Resources, or the Department of Water and Energy.

· The embargoes on new farm dams in some areas of Palerang that are stressed for groundwater do not apply to this locality.

· No licence is required to construct the stormwater collection dam.

· There are no hydrological impacts downstream sufficient for refusal.

42 He was concerned that failure of the sewer plant could lead to groundwater contamination. Mr Norris said before that could occur, the ponds provided 60 days storage capacity of effluent, that should be more than enough time to have the plant repaired or bring in secondary pumps. In the worst scenario pump-out trucks would be brought in to cart the effluent away.

43 Mr Norris said a number of the draft conditions appeared to be at cross-purposes for instance a septic tank system was referred to and the treatment plant is not that. Mr Norris and Mr McFarlane agreed on changes to the draft conditions.

44 It was put to the engineer Mr Norris that the water and sewer system for the proposal would be new and would constitute designated development for which an Environmental Impact Statement (EIS) had not been prepared. He said he regarded the system as existing plant with augmentation for the new lots. That is his “engineers opinion” and he did not venture a legal opinion on whether it is designated or not. He had agreed in conference with Mr McFarlane that if the development includes components in cl 29 Sched 3 of the Environmental Planning and Assessment Regulations, it would be designated development.

45 Mr McFarlane maintained his concern that potential impacts regarding:

· Public health

· Contamination of ground water

· Re-use of stormwater that has been collected from areas that are irrigated with effluent

Had not been adequately investigated, and would not arise for investigation at certification under s 68 of the Local Government Act 1993 .

46 Mr Norris maintained his opinion that those matters are directly related to the Dept of Health regular checks of effluent quality and potable bore water quality that must reach the required standard in each case. He did not think anything more would be needed.

47 Ms Laidlaw had done detailed assessment of the solar access of the 100 new sites on the assumption that any manufactured dwellings would have to comply with the Local Government (Manufactured Homes Estates, caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005. She also assumed BASIX assessment does not apply to dwellings on the lots, but the layout of the lots is a matter for s79C consideration under the Environmental Planning & Assessment Act 1979, and that brings in the YLEP and relevant controls.

48 Mr McFarlane agreed on these points.

49 This meant in summary that any dwelling could cover up to 66% of its lot (including a car space) and must have a minimum of 3m separation from any dwelling on an adjoining lot. Ms Laidlaw assumed that dwellings would be single storey, but mounted on a chassis giving a floor level 700mm above finished ground level in each lot, and if the dwelling has a pitched roof, its ridge would be a maximum of 5m above ground.

50 The lots vary in shape depending on location and road layout, but are generally rectangular with 12m frontage and 16m depth. This gives an area of 192 sq m.

51 Mr McFarlane said that the YLEP and controls had adopted the NatHERS rating for energy efficiency and it applies to “manufactured dwelling estates”. The proposal must be equivalent to them, even though such are not permitted in the Zone1(d). In that control 80% of lots must achieve a 5 star energy rating, and the remaining lots a minimum of 3 stars. He thought the generally east-west orientation of the lots would prevent that achievement.

52 He thought his conclusion is supported by the applicants April 2007 report saying, in summary, currently most moveable dwellings in the village are 2-3 bedrooms and about 100-140 sq m area. On the 66% lot coverage regulation the lots need to be 190-230 sq m area. Given the normal width of a dwelling plus its carport at 10-12m wide, and the 3m dwelling separation requirement, the lots need to be 13-15m width, and the depth 15-17m. The proposed lots are generally a little less than those sizes, and larger lots would make solar access a lot better.

53 Ms Laidlaw had not allowed for the shadow impact of dwellings plus carport or garage. It could be seen on-site that the permanent residents had carports or garages. The weather in this region suited that because of the hot summers and quite cold and often wet winters.

54 Ms Laidlaw insisted that her investigations of manufactured dwellings showed there are many variations in plans that allow living rooms to face any desired side of a dwelling. Given that flexibility, she had looked at the lot layout and found many lots faced the perimeter road or the communal open space in the centre of the new lots. This gave at least unobstructed sun to one side of those lots for a considerable period each day mid-winter.

55 Any owner of those lots could get sun to living rooms by choosing the appropriate floor plan. Other lots were more difficult to check, so she took into account the slope of the land to the west and south-west, that would step lots down the hill, and the width of access roads amongst the 100 lots that gave separation between lots so that shadows mainly fell on the access roads.

56 By doing sun angles from Technical Bulletin No.13 – NSW Planning & Environment Commission 1978 Ms Laidlaw calculated 85% of proposed lots could get 3 hours of sun to an unobstructed side of a lot (usually the road frontage side) and therefore to any manufactured home on these lots. Her opinion is that the proposal achieves an acceptable level of solar access to a high percentage of new lots such that poor solar access could not be sufficient for refusal. Even the lots with poor orientation should, with sensible choice of floor plan and window location, be able to obtain reasonable winter sun.

57 Mr McFarlane said the mainly north-south road orientation meant most lots are east-west, and therefore the midwinter shadows of dwellings must fall on most of the lots on their south side. Ms Laidlaw’s calculations had to rely on living rooms facing the roads, there is not much flexibility there. Some owners might want to go 2-storeys. The 3 hours of solar access midwinter is a minimum standard, a better lot layout could achieve more. In his opinion the calculations just show most lots only achieve a bare minimum.

58 He agreed that while single storey dwellings did not need council approval so long as they complied with the regulations, any 2-storey dwellings needed council approval. As a result council could determine those cases. He had not checked Ms Laidlaw’s calculations sufficiently to say whether or not 85% of the lots could have dwellings with a 5 star NatHERS rating.

59 He said apart from the solar access and water and sewer issues, there is the fact that the council had deliberately made manufactured dwelling estates permissible only next to existing towns so that they could have adequate access to community services and facilities.

60 Ms Schumaker and Mr Brindle gave evidence on social planning issues.

61 It was put to Mr Brindle that current site has 50 permanent sites with 34 occupants including 7 children. With another 100 he estimated about another 180 persons on the 100 permanent lots including 20 children. That is based on expected demand.

62 If the majority of “permanent” lots totaling 150 with the proposal, are occupied, it could be a ”new village” with over 200 residents. It will have a separate access road, permanents will have their own area. Mr Brindle disagreed saying it would be an extension of existing.

63 It was put to him it is a type of urban living. He said not typical because the lots are only leased up to a maximum of 20 years, although the occupants own and install a moveable dwelling on their lot

64 In distance to services, he said a 10 minute drive to medical services is acceptable and a district nurse would be on-call. An on-site community bus would do regular transport to shops and services. The council had a mobile library that could come to site. The meeting rooms could be adapted to various uses such as church services, activities etc.

65 He agreed that the social issues for 150 permanent lots are similar to a “manufactured home estate”.

66 Ms Schumaker said the survey of existing residents showed a mix of employed/retired occupants. The larger scale development may appeal to a different socio/economic mix for whom the on-site recreational based facilities may be insufficient especially if a lower socio/economic group predominates as permanent occupants.

67 Mr Brindle thought the latter group would not predominate because the new residents would have to afford to buy and install their moveable dwelling.

Conclusions

68 Mr Norris had, in his report Exhibit D table 10, listed the EP&A Regulation cl 29 sched 3 components of the sewage treatment and effluent re-use that might have rendered the proposal “designated development”. The table shows no component reaches the threshold for designation, and Mr McFarlane brought no evidence sufficient to dispute the table. I must conclude therefore the proposal is not “designated development”.

69 Based on Mr Norris’s other evidence on the proposed water supply and stormwater re-use for potable and non-potable purposes, and reuse of treated effluent for irrigation, and the sustainability of the water cycle system, I conclude that component of the proposal is feasible. I turn to the other matters in dispute before final determination.

70 In regard to solar access, it arises indirectly from council’s subdivision controls on lot orientation. Mr McFarlane used that only, without checking Ms Laidlaw’s evidence in detail, or drafting an alternate lot layout for assessment.

71 Ms Laidlaw adopted the Residential Flat Design Code in the absence of any formal applicable solar access requirement. It requires 3 hours of sun to living room windows midwinter between 9am-3pm. Her graphic analysis in Exhibit Q adopted the maximum site coverage and the required setbacks for single storey manufactured/moveable dwellings under Div 4 Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds & Moveable Dwellings) Regulation 2005.

72 The analysis found that given a sensible choice of internal dwelling plan to put living room windows in the appropriate facade, 85% of lots could get 3 hours sun mid-winter to at least one wall of a dwelling on each lot. Since there is no requirement for council consent for installation of manufactured/moveable homes on lots provided they comply with the regulations, there is no way to know if this hoped-for amenity issue will eventually be achieved. It is really up to the management and the individual owner to choose, but it is achievable.

73 Mr McFarlane is correct that larger lots would give greater assurance of solar access, but really no convincing evidence was brought to show that the proposed lot sizes are too small in that regard. They are above the minimum regulation size, so a smaller dwelling could have more “yard” and more sun if desired. And “over-sized” dwellings are prevented in theory by the maximum lot coverage of 66%.

74 The last two issues of social impact and statutory permissibility in the Rural 1(d) zone are where final determination must rest.

75 In the original consent that adopted the Victoria Grounds report and attached plans, the reference to Long-stay sites is for:

………permanent rental of caravan and mobile home sites, particularly by retired people and people with young families. These two groups typically rent sites on an annual basis and keep their accommodation vehicle permanently parked there, which they use during school holidays, or weekends, or on long visits away from their main domicile.

76 Also of interest in the original consent is the objectors impression that the lands subject of this application were set aside for recreation. On the plan A3 in Exhibit 2, the Recreation Areas are clearly marked between caravan sites and “man-proof fencing around sewerage treatment works”. Beyond the man-proof fencing is shown as “grassland” and is presumably part of the original consent that included the overall sewerage effluent irrigation system. Part of the grassland in the northern corner of the land is the area proposed for the 100 new lots.

77 The logical conclusions from the above are:

· that the original consent did not envisage “permanently resident people”, it only intended people to have their caravan or mobile home kept permanently on-site so they did not have to tow it around, and used it as a holiday cottage or secondary home to their “main domicile”, and,
· the area the subject of the current application may be considered for another use if the sewerage treatment system is updated to require less land area, or an alternate area is provided.

78 The first of these two points was a prime issue in the second appeal determined in 1988. The judgment said in summary the application for the administration complex was seen by the council as changing the tourist village from being for transient visitors to a “quasi-residential area involving long-stay, if not permanent caravan park dwellers”.

79 In 1988 learned Senior Assessor concluded that the administration building would not lead:

“…..inexorably to a fundamental change in operation of the caravan park………….the previous approval contained conditions going to the composition of short-stay and long-stay accommodation, which will stand until the Consent Authority decides to approve a change”.

80 The argument in regard to the appropriateness of the “land use” put by the respondent, was based on the original consent that did not permit permanent residents. The contention being that the use is now prohibited and should not be allowed to do a major extension for more permanent residents than already exists.

81 The word “land” used in the statutory sense applied only to the existing area used for permanent residents. Any new area on the village property could only be used for a permissible use.

82 The applicant said that various statutory instruments since 1988 have changed the nature of the original consent. SEPP No.21-Caravan Parks was gazetted on 28 November 1986 so it applied when the Senior Assessor approved the administration building. In cll 5 & 7 it allows long-term residence in caravan parks with consent.

83 The applicant says that in the Rural 1(d) zone “tourist facilities” are permissible and that caravan parks are included in the definition, and the SEPP 21 provisions for long-term residence prevail.

84 The respondent counters that the definition of “tourist facility” provides for holiday accommodation and may include inter alia, a caravan park used in conjunction with any tourist activities. Permanent or long-term residents are not tourists, so as a result, long-term residence cannot be the intention of a caravan park within a tourist facility.

85 Further, the existence of the existing tourist facilities on the land does not render the proposal ‘tourist related”. Due to the terms of the only two planning consents, the respondent says the site is now characterised as “tourist facility” and is not a prohibited use, and does not enjoy statutory existing use rights. So the proposed extension for permanent or long-term residence lots is prohibited.

86 The various approvals of the existing 50 “permanent sites” can only have been under the terms of the original consent permitting permanent or long-term location of caravans/mobile homes on the land, and the occasional use of them by their owners for holiday accommodation. Any use of them for permanent residency must have been unlawful and has been prohibited since 7 March 1998 under Yarralumla LEP1993 (Amendment No.8), and, Yarralumla LEP 2002.

87 The applicant tendered consents from council, the last one dated 29 June 1989, that is after the date of the Senior Assessor’s judgment. The report to council acknowledged the changes in legislation around that time that enabled permanent residency. Council granted approval for a total of 37 permanent long-term sites under DA147/88 and re-imposed all the conditions of previously granted Development Application D31/86 and Building Application 190/86. The terms of the council officers report fully recognised, as must the council in making the decision under the EP&A Act, that the application was for “long term occupancy” and “long-term resident” sites, as then applicable under Ordinance 71.

88 I note also the senior assessor’s conditions of approval attached to the judgment refer to “permanent residence sites” in Conditions 10, 28, 47. Condition 48 applied all the conditions in approval D10/86 that is the original consent containing the Victoria Grounds report defining “long-stay” as being only sites for people to keep their caravans/mobile homes in the village and use them for holidays away from their permanent domicile.

89 I conclude that the existing permanent residence lots must be lawful at the time of that becoming prohibited and therefore they have existing use rights. The question then becomes does that enable the extension of new permanent residence sites onto the whole of the site, or is that use restricted to “the land” on which they exist?

90 Apart from this primary submission, the respondent says that if the site is characterised as a “caravan park” and if it has existing use rights, it is only on that part of the “land” used as a caravan park, and cannot be extended onto new land, cl 42 Environmental Planning & Assessment Regulation 2000, and, North Sydney V Ligon [1996] 185CLR.

91 The respondent says, in any case, the proper characterisation of the proposal is a “manufactured home estate” and that also is prohibited in Zone 1(d).

92 Mr Lindsay said that the area of the site beyond the chain link fence in what was named “grassland” in the original consent was available for recreation to the park residents. Mr Taylor said he had never seen residents use it and the gates into it are padlocked. On the subject plans regarding irrigation areas Drwg Da03-C showed existing irrigation areas, and that land intended for the new 100 sites is not used for that purpose. Mr Lindsay agreed he is on-site only 1 day a week and mainly in the office, so his observation of the grassland area is only glances when walking through the caravans/mobile/homes/moveable dwellings.

93 It was put to Mr Lindsay that the “permanents” would have a separated area from the “tourists”. He said no, except that the permanents would have their own access road as previously described and it would have a boom gate up at the entry roundabout operated by electronic card. It was put to him that the property’s web site advertised the tourist facilities as Capital Country Caravan Park, and the permanents as the White Ibis Residential Village. The village is advertised to be expanded with “resident only facilities” with social club building, heated indoor pool, tennis court, bowls rink, library and secure residents’ entrance. He did not know what is on the web site, he said he is only one director, but the Board must have approved the web site. He said on purchase of the property the Board was satisfied by the caravan park licence that there is consent for 20 permanent resident sites, and it wanted to expand that.

94 After considering the submissions I have formed the opinion that the proposal is prohibited in the zone, and has existing use rights only for the land within its property that the use is and has been carried out upon since it became prohibited. In the alternate argument that the current use is a “tourist facility” and a permissible use, then permanent residents cannot be part of such a facility and the proposal is again prohibited. It brings about the same conclusion.

95 Therefore the orders of the Court are:

1. The appeal is dismissed.

2. The exhibits are returned to the parties except Exhibits 3, 9, 11, C, D, E, F G, H, J, K, L, M, N, P.

___________________

K G Hoffman
Commissioner of the Court