Ocean Point Assets Pty Limited v Shoalhaven City Council

[2022] NSWLEC 1291

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ocean Point Assets Pty Limited v Shoalhaven City Council [2022] NSWLEC 1291

Hearing dates:

6 - 7 April and 28 April 2022

Date of orders:

8 June 2022

Decision date:

08 June 2022

Jurisdiction:

Class 1

Before:

McEwen AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) DA 19/1102 for demolition of existing structures and construction of a manufactured home estate containing 49 dwelling sites, community building, barbecue area, outdoor exercise equipment area, lawn bowling green, twenty-seven (27) visitor parking spaces including one (1) accessible space, landscaping, street tree planting and associated civil infrastructure at 252 Princes Highway, Ulladulla and being Lot 1 DP 784732 is determined by the grant of consent subject to the conditions set out in Annexure “A”.

(3) Exhibits are returned with the exception of Exhibits B, H, N, 4, 11 and 12 which are retained.

Catchwords:

DEVELOPMENT APPLICATION – manufactured home estate – State Environmental Planning Policy No 36 – whether adequate transport services will be provided – whether community facilities and services will be available and reasonably accessible to residents – appeal upheld

Legislation Cited:

Biodiversity Conservation Act 2016

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Local Government Act 1993

Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021, s 23

Roads Act 1993, s 138

Rural Fires Act 1997, s 100B

Shoalhaven Local Environmental Plan 2014, cll 2.3, 2.7, 4.3, 5.1A, 7.1, 7.2, 7.11

Standard Instrument – Principal Local Environmental Plan 2006, s 2.3

State Environmental Planning Policy (Housing) 2021 State Environmental Planning Policy No 36 – Manufactured Home Estates, cll 2, 4, 6, 7, 9

State Environmental Planning Policy (Resilience and Hazards) 2021, cll 2.11, 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, cl 2.118

Texts Cited:

Shoalhaven Development Control Plan 2014

Category:

Principal judgment

Parties:

Ocean Point Assets Pty Limited (Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Foundation Law Group (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2021/231401

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings are a class 1 Appeal lodged on 13 August 2021 and made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Shoalhaven City Council’s refusal of Development Application DA/19/1102 (DA) on 13 July 2021 for the demolition of existing structures, and construction of a manufactured home estate (MHE) comprising 49 dwelling sites, community building, barbecue area, outdoor exercise equipment area, lawn bowling green, 27 visitor parking spaces (including one accessible space), landscaping, street trees, planting and associated civil infrastructure upon land described as Lot 1 DP 784732, also known as 252 Princes Highway, Ulladulla (site). The DA is accompanied by an offer to enter into a Voluntary Planning Agreement (VPA) (Ex. D). The DA was recommended for conditional approval by council staff (Tab 40 Ex. 7).

2. In exercising the functions of the consent authority on appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.

3. The hearing took place on 6, 7 and 28 April 2022 and included a view of the site and its surroundings in the company of the parties’ representatives on the last-mentioned date and particular attention was paid to matters of concern to the residents.

Outcome of the appeal

4. For the reasons set out below, I have determined that the appeal should be upheld and that development consent should be granted to the application, as amended, subject to the conditions in Annexure ‘A’.

The site and its context

5. The site is an irregular shaped lot with a frontage of 98 m to the Princes Highway and a frontage of 183 m to Pitman Avenue. An existing dwelling with associated structures currently occupies the site in its north-west corner. The remainder of the site is cleared of vegetation and is used for equine grazing. The site has an area of 1.82 hectares.

6. The site is predominantly located on land zoned SP3 Tourist pursuant to the provisions of Shoalhaven Local Environmental Plan 2014 (LEP 2014) save for a narrow strip of land along the western boundary fronting the Princes Highway located within Zone SP2 Infrastructure, which will not be developed. A small parcel of land in the southwest corner of the site is to be dedicated to the respondent for road purposes. This will assist in facilitating a new roundabout on the Princes Highway opposite the western boundary of the site which the applicant has agreed to construct.

7. Within the visual catchment of the site and adjoining to its north is the Highway Christian Church at 240 Princes Highway Ulladulla, which is located within Zone SP3 Tourist.

8. Development to the east and south of the site (on the opposite side of Pitman Avenue) is located within Zone R2 Low Density Residential and contains a mix of one and two storey dwellings of both older and new building stock.

9. To the west of the site, on the opposite side of the Princes Highway is developed industrial land which is located within Zone R1–General Residential.

Issues remaining in dispute

10. The respondent maintains that the development in its amended form (Ex H) warrants refusal on two grounds, both founded on cl 9(1) of State Environmental Planning Policy No 36 – Manufactured Home Estates (SEPP 36).

11. Specifically, the respondent submits that on the evidence, or by reason of the lack thereof, the Court could not form the opinion of positive satisfaction in respect of two matters each of which are pre-conditions to the exercise of the power to grant development consent.

12. The first matter is that the Court could not be satisfied that the development is or will be provided with adequate transport services: cl 9(1)(b) of SEPP 36.

13. The second matter is that the Court could not be satisfied that sufficient community facilities and services (in the form of health services) are or will be available, and reasonably accessible to the residents of the development which is a ‘manufactured home estate’: cl 9(1)(c) of SEPP 36.

14. I will consider each of these matters in detail in the course of this judgment.

15. Other contentions, originally raised by the respondent in an Amended Statement of Facts and Contentions filed on 23 March 2022 (Ex 4) and relating to services, site planning and insufficient information, were resolved to the satisfaction of the respondent by amended plans, supplementary documentation, expert evidence and conditions to be imposed in the event of the grant of development consent.

Public notification, submissions and resident evidence

16. The DA in its original and amended forms was notified to the public on three occasions between August 2019 and March 2022 and numerous submissions were received (Ex. 2). In the course of my determination of this appeal, I have considered these submissions as required by s 4.15 (1)(d) of the EPA Act.

17. In addition, the Court had the benefit of oral evidence given by residents of Ulladulla, a number of whom live in close proximity to the site. A written summary of that evidence was provided by the parties (Ex 11). Their evidence mirrored the gravamen of the written submissions and included the following concerns:

• Density of the proposal was not in keeping with the character of the area or appropriate in its likely appearance for the ‘gateway’ to Ulladulla.

• Traffic and safety impact particularly at the intersection of Pitman Avenue and the Princes Highway and the high volume of traffic currently dependant on Pitman Avenue to access the Princes Highway.

• The narrowness of Pitman Avenue would be exacerbated by additional on street parking as a result of the development.

• Safety in the event of bushfire.

• Inadequate transport services and poor pedestrian access to the town centre.

• Light spill from night time use of the Pitman Avenue exit.

• Inadequate landscaping and screening on the development site.

• Inconsistency in scale and density with what was expected for the SP3 zone.

• Unaffordability of the housing and no security of tenancy.

18. Having taken into consideration the above submissions and evidence, the parties were of the opinion, and I agree with them, that the major concerns of the local community were addressed or were not a reason to refuse the DA.

19. In particular, the proposed density is comfortably within the parameters set by the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021 (2021 Regulation) which applies to the design and installation of manufactured home estates (MHE) and will govern the final design of this development.

20. Further, the zoning of the land specifically nominates ‘caravan parks’ as a permissible use in the SP3 Tourist Zone and SEPP 36 (cl 6) permits development for the purposes of an MHE on any land on which development for the purpose of a caravan park may be carried out except on land with certain attributes which the subject land does not possess. It should also be noted that ‘caravan parks’ is an optional rather than compulsory land use in the SP3 Tourist Zone under s 2.3 of the Standard Instrument – Principal Local Environmental Plan 2006 which applies to the making of local environmental plans such as LEP 2014. At the time of making LEP 2014 the respondent must be taken to have chosen to include ‘caravan parks’ as a use permissible with consent in this zone. The built character of the MHE will be different from the less dense surrounding residential development but will be compatible with it in the sense that it will be able to co-exist in harmony.

21. With respect to traffic and parking, the application was referred to Transport for NSW which raised no objection to the proposal and provided general terms of approval which are embodied in the proposed conditions. These conditions require the applicant to construct a roundabout and associated refuges, and pedestrian pathways before occupation of the development can occur. The expert traffic evidence demonstrates that the development is forecast to generate up to 32 additional trips in the am and pm peak hour (Tab 6 Ex B) and that the required works will operate to improve safety and current and future traffic flows rather than exacerbate them. Proposed parking substantially exceeds required visitor parking numbers (12 spaces are required, 27 will be provided: s 23 2021 Regulation) and each dwelling will have individual resident parking on site.

22. Bushfire and fire safety has been assessed and the Rural Fire Service has issued General Terms of Approval which have been included in the proposed conditions and that Authority has also issued a Bushfire Safety Authority.

23. Potential light spill has been minimised by the driveway location and acoustic impacts have been considered and have been found to be acceptable.

24. Landscaping and external fencing have been the subject of discussion between relevant experts and amended plans have been prepared (Ex N) and conditions have been agreed (Ex 12) to the satisfaction of both the applicant and the respondent. Compliance with these conditions will assist to preserve the visual presentation of the development, both from within the site and from the public domain.

Expert evidence

Town Planning

25. Expert town planning evidence was given by Mr J. Mead for the applicant and Mr G. Turrisi for the respondent. A joint expert report was prepared by them (Ex 5) and brief oral evidence was also given to the Court. As a result of amendments made to the development each of the respondent’s contentions in relation to the provision and availability of services, the site planning, including distribution of visitor spaces, location of services and the nature of landscaping and fencing design along the Princes Highway and Pitman Avenue, were satisfactorily resolved and I accept their evidence in that regard.

26. The town planners, quite appropriately, deferred to the social planners upon the likely social planning outcomes in the context of the locality.

Social Planning

27. Social planning evidence was given by Dr J. Stubbs for the applicant and by Professor R. Ryan for the respondent. They are both recognised experts in their field and have wide experience with the social issues which require consideration prior to the establishment of development for the purpose of manufactured home estates in proximity to rural towns. In order to assist the Court they prepared individual reports which were annexed to their joint report (Ex 6) and also prepared a supplementary joint report (Ex 10) where they updated their earlier evidence and considered it in light of proposed additional conditions of consent, amendments to the plans and additional information.

28. The social planners analysed the site location and its benefits and detriments primarily through the lens of SEPP 36 and in particular cl 2 and cl 9 thereof. This is the primary instrument for determining site suitability from a social planning perspective. Both experts relied upon statistical and census data and locational information which was both empirical and anecdotal.

29. Relevantly, cll 2 and 9 are in the following terms:

2   Aims and strategies

(1)  The aims of this Policy are—

(a)  to facilitate the establishment of manufactured home estates as a contemporary form of medium density residential development that provides an alternative to traditional housing arrangements, and

(b)  to provide immediate development opportunities for manufactured home estates on the commencement of this Policy, and

(c)  to encourage the provision of affordable housing in well designed estates, and

(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, and

(e)  to ensure that manufactured home estates are adequately serviced and have access to essential community facilities and services, and

(f)  to protect the environment surrounding manufactured home estates, and

(g)  to provide measures which will facilitate security of tenure for residents of manufactured home estates.

(2)  The strategies by which those aims are to be achieved are—

(a)  by allowing, with development consent, manufactured home estates on certain land on which caravan parks are permitted if the land meets the suitable locational criteria stipulated in this Policy (which it would not do if, for example, it contains important resources, is subject to natural or man-made risks or has sensitive environmental or ecological features), and

(b)  by applying this Policy to areas where there is likely to be a demand and suitable opportunities for the development of manufactured home estates, and

(c)  by allowing manufactured home estates to be subdivided with development consent either by way of leases for terms of up to 20 years or under the Community Land Development Act 1989, and

(d)  by enabling the Minister for Planning to exclude from this Policy any land that is subject to a local environmental plan prepared in accordance with the principles of a direction issued in conjunction with this Policy under section 117 of the Act.

9   Matters to be considered by councils

(1)  A council may grant a development consent pursuant to this Policy allowing development for the purposes of a manufactured home estate only if it is satisfied—

(a)  that each of the sites on which a manufactured home is or will be installed within the manufactured home estate is or will be adequately provided with reticulated water, a reticulated sewerage system, drainage and electricity, and

(b)  that the manufactured home estate is or will be provided with adequate transport services, and

(c)  that sufficient community facilities and services, whether situated within or outside the estate, are or will be available and reasonably accessible to the residents of the manufactured home estate, and

(d)  that the development will not have an adverse effect on any—

•  conservation area

•  heritage item

•  waterway or land having special landscape, scenic or ecological qualities,

which is identified in an environmental planning instrument applicable to the land concerned.

(2)  A council may grant a development consent pursuant to this Policy allowing development for the purposes of a manufactured home estate only after it has considered the following—

(a)  the cumulative impact of the proposed development and other manufactured home estates in the locality,

(b)  any relevant guidelines issued by the Director,

(c)  the provisions of the Local Government (Manufactured Home Estates) Transitional Regulation 1993.

30. With respect to the above provisions, the evidence of Dr Stubbs and Professor Ryan was in broad agreement on the following matters:

• The development is likely to provide housing for approximately 74 persons. They will be drawn from the existing and new residents to the Local Government area (Ex 6 p 9).

• The MHE residents are likely to be older and not in the workforce and with limited economic means (Ex 6 p 12).

• Whilst not the most affordable of housing options, MHEs do provide an option that is more affordable and/or lower cost than some other forms of private housing in the locality (Ex 6 p 15). The extent of the affordability and its affordability over time was not agreed.

• In terms of available accommodation, Professor Ryan notes that rental vacancy rates for dwellings are extremely low (1%) and that there are seven MHEs in Shoalhaven LGA (including two at Ulladulla 3-4 km from the subject site). There are a further six caravan parks, some of which have long-term permanent sites. However, site availability is very rare and both MHEs and caravan parks are usually always at capacity (Report of Prof. Ryan 1 April 2022 annexed to Ex 6). Social housing waiting times in the Ulladulla district are between 5 – 10 years for a two-bedroom property and ten years plus for a one-bedroom property (Ex C Tab H).

• In terms of proximity to facilities and services, the site is approximately 1.5 km from the Ulladulla town centre. There is a footpath outside the site which connects with the town and which will be extended to the site entry as a condition of any development consent, but it is agreed that this distance is not walkable for many of the residents likely to live on site. The township of Milton is approximately 8 km from the site. Both Milton and Ulladulla are readily accessible by motor vehicle. There is a wide range of facilities and services available in Ulladulla. Milton and Mollymook provide additional facilities.

• Regarding transport services, it is expected that many residents will have their own motor vehicles or will be able to rely on other residents to take them into Ulladulla. There is a bus stop on either side of the Princes Highway located directly outside the site. The applicant will be required to improve footpaths to the bus stops and to provide a pedestrian refuge for those persons seeking to cross the highway to access the bus stop on the opposite side. There are two bus routes connecting the site to the Ulladulla town centre and beyond. They are wheelchair accessible and operate with adequate frequency Monday – Saturday but do not run on Sundays. Taxi services are readily available for hire. Further, there are two community transport services which are available to service the site. Between them they provide bus services to retail premises and other facilities and there is an additional service by seven cars with 110 volunteer drivers to take frail or aged persons to medical appointments and the like. Statistically only about five of the 74 expected residents will need this last-mentioned form of assistance (based on an accepted 7% frailty rate).

• In addition to the transport availability set out above, the applicant has agreed to provide for “a scheduled twice weekly community transport service for the site, and the ability for individuals to book transport for medical appointments, social outings, shopping and the like” and accepts a condition should be imposed to require this to be implemented (see proposed condition 6 Ex 12 filed 27 April 2022).

• As for health services, there are currently 25 General Practitioners (GPs) in Ulladulla and four medical service providers in Ulladulla and Milton. The Milton Ulladulla hospital is approximately 8 km (10 – 15 minutes’ drive) from the site. In addition, allied and other health services are located in Ulladulla. These include dental, psychology, physiotherapy, podiatry and chiropractic services. Fortuitously, a new community health centre providing multiple support services was opened in Ulladulla by NSW Health during the hearing of the appeal. Statistically the Australian Government Department of Health publishes data which includes ‘General practitioner full time equivalents” (GPFTE) for Australia. The NSW average in 2020/2021 was reported at 122.3 GPFTE per 100,000 population and for large rural towns similar to Ulladulla the average rate was 135.5/100,000 population. Dr Stubbs calculated that for the Ulladulla/Milton/Mollymook region the current rate is approximately 307 GPFTE per 100,000 population (attachment JS3 Ex C, Ex 6 and oral testimony of Dr Stubbs).

• With respect to access to GPs in particular, it was agreed that there were waiting lists and that some practices were not currently accepting new clients. It was further agreed that many GPs did not bulk bill but Dr Stubbs made further telephone enquiries prior to giving evidence and reported that there was limited availability to see a GP in the following week and that some of the clinics and centres did in fact offer bulk billing or discounts for aged pensioners, health care card holders, Veteran Affairs gold card holders and children under 16 years of age. This availability of bulk billing was corroborated by the current advertised billing practices of a number of the Milton and Ulladulla medical services (Ex L).

31. In their supplementary joint report (Ex 10) which was prepared during the hearing Professor Ryan and Dr Stubbs confirmed that they had reached agreement that ‘adequate transport services’ would be available to the development and that suitability of the site for an older demographic and site amenity issues were resolved. This was based on the agreed amendments to the proposal:

“The social planning experts agree that additional conditions of consent, amendments to plans and additional information have satisfactorily resolved the outstanding issues, apart from health service adequacy”.

32. The social planning experts further confirmed that they remained in disagreement about whether health services would be ‘reasonably accessible’ to residents of the development:

“There is still some disagreement with regard to access to health services including GPs in the locality. Dr Stubbs considers that the locality has an above average level of provision of GPs and considers that the major issues relate to small towns and remote areas as per the JER (Joint Planning Report Ex 6). Professor Ryan considers that access to bulk billing and immediate access to a GP is poor.”

33. The respondent did not concede that there would be ‘adequate transport services’ despite the evidence of Professor Ryan and I will accordingly consider and make findings on both matters as they are framed in cl 9 of SEPP 36, as part of my determination of this appeal.

Preconditions to consent – the relevant planning controls

34. Prior to considering the outstanding contentions, it is necessary that I address any relevant pre-conditions to the grant of consent. In this regard the Court was greatly assisted with detailed submissions on jurisdictional matters by both parties.

35. In conformity with s 4.15(1) of the EPA Act I have taken into consideration the following planning controls:

Shoalhaven Local Environmental Plan 2014 (LEP 2014)

36. LEP 2014 applies to the site. Development for the purpose of ‘caravan parks’ is permitted with development consent on that part of the site zoned SP3 Tourist. The proposed development is confined to that land and use for the purpose of an MHE is permissible because a caravan park is a permissible land use (SEPP 36 cl 6).

37. As required by cl 2.3(2) I have had regard to the objectives for development in the SP 3 Tourist zone which are:

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

• To enable compatible residential and recreational uses

and I am satisfied that the proposed development is consistent with them.

38. I have considered cl 2.7 (demolition), cl 4.3(2) (height of buildings), cl 5.1A (land acquisition), cl 7.1 (acid sulphate soils), cl 7.2 (earthworks) and cl 7.11 (adequate arrangements for essential services) and am satisfied that they are complied with by design of the development and the imposition of proposed conditions.

Rural Fires Act 1997

39. The site is bushfire prone. A s 100B certificate has been obtained and the requirements of NSW Rural Fire Service have been incorporated in the conditions.

Roads Act 1993

40. The DA proposes works within the Princes Highway road reserve. The concurrence of Transport for NSW pursuant to s 138 of the Roads Act 1993 has been obtained.

State Environmental Planning Policy (Transport and Infrastructure) 2021

41. As the site shares a boundary with the Princes Highway, a classified state road, this SEPP applies. Required notification to the electricity supply authority (Endeavour Energy) has taken place and the authority does not oppose the development.

42. In accordance with cl 2.118 I am satisfied that access to the site will not be via a classified road because it will be provided solely from Pitman Avenue. The safety, efficiency and ongoing operation of the Princes Highway will not be adversely affected by the development. In fact, it will be improved by the proposed roundabout. Further, an acoustic report demonstrates that acoustic impacts from the highway are acceptable and within relevant criteria (Ex B Tab 10, Ex C Tab G, Ex M).

State Environmental Planning Policy (Resilience and Hazards) 2021

43. On 1 March 2022, both State Environmental Planning Policy No 55 – Remediation of Land and State Environmental Planning Policy (Coastal Management) 2018 were repealed and subsumed into Ch 4 and Ch 2 of this SEPP.

44. Clause 4.6 requires the Court to consider whether the land is contaminated. The required preliminary site investigation has been undertaken (Ex C Tab F) and compliance with it, mandated in the conditions (Ex 12), will ensure that the land is suitable for the proposed use.

45. The site is located within the ‘coastal use’ area. I have considered the matters in cl 2.11(1)(a) and am satisfied as to the matters identified in cl 2.11(1)(b).

Biodiversity Conservation Act 2016

46. I accept the submissions of the applicant and am satisfied that the development is not likely to significantly affect any threatened species, or their habitats. No native vegetation is being cleared and the site has a history of continued use for grazing purposes.

Local Government (Manufactured Home Estates, Caravan Parks, CampingGrounds and Moveable Dwellings) Regulation 2021 (The 2021 Reg)

47. The 2021 Reg replaces the Local Government (Manufactured Home Estates) Transitional Regulation 1993 (1993 Reg) for the purposes of cl 9(2)(c) of SEPP 36. Clause 9(2)(c) of SEPP 36 requires the Court to consider the 2021 Reg prior to the grant of development consent for the subject proposal. Division 3 of the 2021 Reg sets standards for land and dwelling site requirements, setbacks, roads and utility services. I have been addressed by the parties in support of their agreement that the development, as amended, is capable of complying with all relevant controls. I accept and agree with their submissions.

Shoalhaven Development Control Plan 2014 (SDCP 2014)

48. I have taken SDCP 2014 into consideration as required by s 4.15(1)(a)(iii) of the EPA Act in the determination of this DA and in particular the chapters identified by the respondent in Ex 4 as those being relevant to this appeal. The parties do not submit that the proposal offends those controls and I agree with them.

State Environmental Planning Policy (Housing) 2021 (Housing SEPP)

49. This SEPP has commenced. The provisions of SEPP 36 have been transferred to Ch 3 Pt 7 of the Housing SEPP but a savings provision in the Housing SEPP has the consequence that its provisions do not apply to the determination of this DA. SEPP 36 therefore remains the applicable instrument.

State Environmental Planning Policy No 36 – Manufactured Home Estates (SEPP 36)

50. The contentious provisions of SEPP 36 (subcll 9(1)(b) and (c)) have been separately set out in paragraph 29 above and I will consider them separately below.

51. Clause 3 applies SEPP 36 to the land. Clause 2(1) sets out the aims of the Policy and cl 2(2) identifies the strategies by which those aims are to be achieved. The provisions of the Policy embody that strategy with the result that compliance with the provisions will meet the stated aims and implement the strategies of the Policy. Clause 4 provides that SEPP 36 prevails over LEP 2014 in the event of an inconsistency and cl 6 permits development for the purpose of a MHE to be carried out with consent (cl 7(1)) on the subject land. Clause 7(2) obliges the Court to impose as a condition of consent a requirement that an approval to operate a HME on the land be obtained under Pt 1 Ch 7 of the Local Government Act 1993. Condition 3 and Condition 67 (Ex 12) satisfy this obligation. Clause 9(1)(a) requires the Court to be satisfied that each site on which a manufactured home is to be installed will be adequately provided with reticulated water, sewerage, drainage and electricity. I am satisfied as to each of these matters based upon the evidence before the Court and the terms of the proposed conditions of development consent (Ex 12).

Transport services will be adequate: cl 9(1)(b) SEPP 36

52. Having considered the evidence, which is summarised in paragraph 30 above, I am satisfied that the manufactured home estate “is or will be provided with adequate transport services” (cl 9(1)(b) SEPP 36) for the following reasons:

53. First, the site is close to Ulladulla township (1.5 km), making it convenient for commuting purposes by vehicle. There are regular public bus services Monday – Saturday from bus stops directly outside the site. Most residents will own or have access to a private vehicle to facilitate travel seven days per week.

54. Second, there are two community bus services available to service the site and taxis are also available as required.

55. Third, Condition 6 of the proposed Conditions of Consent (Ex 12) will require the applicant to provide a scheduled twice weekly community transport service for the site to take residents to locations for medical appointments, social outings, shopping and the like. This is an additional service to which people living outside the site do not have access.

56. Fourth, and importantly, I am persuaded by the evidence of both Dr Stubbs and Professor Ryan that, taken in combination, the existing and proposed services resolve their original disagreement as to adequacy of provision of transport services (Ex 10). I place substantial weight on their agreement on this issue given their experience on this topic and with respect to manufactured housing estates in particular. It must be clearly noted that cl 9(1)(b) refers to ‘adequate transport services’. I take this to mean ‘sufficient’ or ‘reasonable’ and in the Court’s opinion the evidence comfortably meets this requirement.

Sufficient medical facilities and services are and will be available and reasonably accessible to the residents of this development: cl 9(1)(c) SEPP 36

57. I am satisfied upon the evidence that despite the position of the respondent and the concerns of Professor Ryan, the range and number of medical providers is sufficient to accommodate the needs of the 74 persons who may be expected to reside in this development upon its completion. I am also satisfied that these facilities and services are or will be available and reasonably accessible to the future residents of the development. My reasons are as follows:

58. The primary concern of the respondent was focused upon a claim that medical services, particularly those provided by GPs, would not be available or reasonably accessible due to wait times and cost in the absence of or minimal availability of bulk billing. There is little doubt, on the evidence which I have summarised in paragraph 30 that there are ‘sufficient’ medical services. The question is whether they are ‘available’ and ‘reasonably accessible’ to future residents. Put simply, can they get an appointment with a GP or other service provider within a reasonable time frame and is the cost of a consultation or procedure reasonably affordable for a person of more limited economic means.

59. As previously noted, Professor Ryan who gave evidence for the respondent, based her concerns upon her opinion that “access to bulk billing and immediate access to a GP is poor” (Ex 10). She stated that the Illawarra Shoalhaven region had significant regional health challenges (a current crisis) in terms of availability of health care services. Dr Stubbs referenced the published data and concluded that the number of GPs per 100,000 population for Ulladulla, Milton and Mollymook, which I have referred to in paragraph 30, was well above both state and rural averages. She stated “the major issues relate to small towns and remote areas” (Ex 10). In other words, that any shortcomings identified by Professor Ryan were generally typical in country areas similar to the locality of Ulladulla.

60. I prefer the evidence of Dr Stubbs on this issue. The evidence satisfies me that Ulladulla and its surrounding residents are reasonably well serviced with medical and allied facilities. Whilst there may be limited opportunities for immediate access to a GP, there is consultation availability within a week and a number of the local practices have availability for new patients. In addition, Milton Ulladulla Hospital is 7.7 km from the site. It is a rural acute facility that provides emergency, inpatient and outpatient services as required (Expert Report Professor Ryan dated 1 April 2022 and an attachment to Ex 6).

61. The limited availability of bulk billing and fee discounts to cap or reduce the cost of medical services, whilst regrettable, is not unique to Ulladulla and, on the evidence, will be available by way of discounts for aged pensioners and health care card holders, and Department of Veteran Affairs card holders. GPs have discretion to bulk bill in response to particular age and economic circumstances (Ex L). In summary, I do not regard that the absence or presence of bulk billing or eligibility for fee reduction is a determinant of whether medical services are available or reasonably accessible to future residents of the proposed development. It is an issue faced by all residents who use medical services regardless of the type of accommodation in which they live.

Conclusion

62. Following an assessment of all of the evidence including the evidence of residents and other persons opposed to the development, I am satisfied that the DA in its amended form is acceptable on its merits. In the Court’s opinion the DA warrants approval subject to the conditions set out in Ex 12 which are agreed between the parties. Exhibit 12 is reproduced as Annexure A to the Orders of the Court.

Orders

63. The Court orders that:

1. The appeal is upheld.

2. DA 19/1102 for demolition of existing structures and construction of a manufactured home estate containing 49 dwelling sites, community building, barbecue area, outdoor exercise equipment area, lawn bowling green, twenty-seven (27) visitor parking spaces including one (1) accessible space, landscaping, street tree planting and associated civil infrastructure at 252 Princes Highway, Ulladulla and being Lot 1 DP 784732 is determined by the grant of consent subject to the conditions set out in Annexure “A”.

3. Exhibits are returned with the exception of Exhibits B, H, N, 4, 11 and 12 which are retained.

C McEwen

Acting Commissioner of the Court

Annexure A (2169066, pdf)

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Decision last updated: 08 June 2022