Pacific Rim Accommodation Group Pty Ltd v Mid Coast Council

[2017] NSWLEC 1640

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pacific Rim Accommodation Group Pty Ltd v Mid Coast Council [2017] NSWLEC 1640

Hearing dates:

25 October 2017

Date of orders:

14 November 2017

Decision date:

14 November 2017

Jurisdiction:

Class 1

Before:

Adam AC

Decision:

The Court orders:

 

(1) The appeal is upheld.

 

(2) Development Application No.279/2016 is approved subject to the conditions in Annexure ‘A’.

 (3) Exhibits may be returned except for Exhibit 1 and A.

Catchwords:

DEVELOPMENT APPLICATION - subdivision - caravan park - manufactured home estate - modifications to creek

Legislation Cited:

Environmental Planning and Assessment Act 1979
Great Lakes Local Environmental Plan 2014.
Land and Environment Court Act 1979
National Parks and Wildlife Act 1974
Roads Act 1993
Rural Fires Act 1997
State Environmental Planning Policy No 21 – Caravan Parks
State Environmental Planning Policy No 36 – Manufactured Home Estates
Water Management Act 2000

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Pacific Rim Accommodation Group Pty Ltd (Applicant)
Mid Coast Council (Respondent)

Representation:

Solicitors:
Mr G Long, Long Legal (Applicant)
Mr A Pickup, Local Government Legal (Respondent)

File Number(s):

2017/00040519

Publication restriction:

No

Judgment

1. This matter is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (EPPA) against the deemed refusal by Mid-Coast Council of DA No.279/2016 made by Tattersall Lander Pty Ltd on behalf of Pacific Rim Accommodation Group Pty Ltd.

2. The applicant seeks approval for a caravan park on land at 223 The Lakes Way, Forster. The proposal will include (see Exhibit A):

• site filling;

• 362 long-term sites with staged construction;

• community facilities comprising a community hall, covered bowling green, tennis courts and swimming pool;

• eight manager’s and staff residences;

• two advertising structures;

• roads and drainage;

• relocation of Dunns Creek; and

• other associated services and infrastructure.

3. The development is proposed to be carried out in 10 stages, stages 1-5 being on the western side of the proposed relocated creek and stages 6 – 10 on the eastern side of the creek.

4. The site is lot 402 in DP 773088 and is known as 223 The Lakes Way, Forster. The information given below about the site is largely derived from the Statement of Facts and Contentions (Exhibit 1) The site has an area of 23.07 ha and is relatively flat. A constructed creek, known as Dunns Creek, flows through the site. The site has a frontage to The Lakes Way and has access by a long handle to Tea Tree Road to the west of the site. The owner of the property on Tea Tree Road adjoining the handle (Lot 601 DP 77308) has a legal right of carriageway over the handle.

5. A large part of the site is relatively clear of woody vegetation, and historically has been used for grazing. However, in the southern part of the site there is native vegetation including stands of two Endangered Ecological Communities (EEC) – Swamp Oak Floodplain Forest and Swamp Sclerophyll Forest on Coastal Floodplain. The site is also utilised by several threatened fauna species.

6. The site is approximately 5 km from Forster town centre, and is adjacent to the current residential outskirts of the town. The land to the south is predominantly native vegetation. To the east is a combination of rural and vegetative state. To the east is a combination of rural land and vegetation. In the north, with a frontage to The Lakes Way is lot 496 in DP 101896 which is surrounded by the subject land on three sides. Lot 496 is not developed. Across The Lakes Way from the site is a mixture of residential and rural/agricultural land. To the west are large residential lots. To the south west is currently vacant land (16 Tea Tree Road) for which a tourist facility has been approved. To the south-west beyond 16 Tea Tree Road is Wallis Lake.

7. Along Tea Tree Road, and adjoining the site, there is a number of single storey properties.

8. By virtue of s 91 of the EPAA the proposed development is integrated development, with approvals required from the Department of Primary Industry – Water for a controlled activity approval under the Water Management Act 2000, from the NSW Rural Fire Service under the s 108 of the Rural Fires Act 1997, and from Road and Maritime Services under the Roads Act 1993. In addition the proposal was referred to the Office of Environment and Heritage in respect of s 90 of the National Parks and Wildlife Act 1974 and the potential impact on a known Aboriginal site in the southern part of the property. OEH advised that it had previously issued an Area-based Aboriginal Heritage Impact Permit under s 90 of the National Parks and Wildlife Act and had no additional concerns.

9. The applicable local environmental plan is Great Lakes LEP 2014. The site has different areas under three zonings – R2 (Low-density Residential), R3 Mid-density Residential) and E2 (Environmental Conservation). The objectives of the zones are:

“Zone R2 Low Density Residential

1 Objectives of zone

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

Zone R3 Medium Density Residential

1 Objectives of zone

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To achieve increased population density in locations that support the business centre.

Zone E2 Environmental Conservation

1 Objectives of zone

• To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values.

• To prevent development that could destroy, damage or otherwise have an adverse effect on those values.”

The proposed development is permitted with consent.

10. The E2 land is at the southern part of the site and virtually all of the development which is proposed will occur outside of this area.

11. State Environmental Planning Policy No 21 – Caravan Parks (SEPP 21) and State Environmental Planning Policy No 36 – Manufactured Home Estates (SEPP 36) apply. Although the proposal is described as a caravan park what is proposed to be installed on the site are manufactured homes. Clause 4 of SEPP 36 provides that:

“4 Relationship to other environmental planning instruments

(1) In the event of an inconsistency between this Policy and any other environmental planning instrument whether made before or after this Policy, this Policy prevails to the extent of the inconsistency.

(2) Nothing in State Environmental Planning Policy No 21—Caravan Parks prevents development consent from being granted pursuant to this Policy for the use of land for the purposes of a manufactured home estate.

(3) This Policy amends State Environmental Planning Policy No 21—Caravan Parks:

(a) by omitting clause 3 (2) (a),

(b) by omitting from clause 6 the definitions of caravan park and Ordinance No 71 and by inserting instead the following definition: “caravan park means land (including a camping ground) on which caravans (or caravans and other moveable dwellings) are, or are to be, placed or erected.”

(c) by inserting after clause 5 (3) the following subclause:

(4) Nothing in State Environmental Planning Policy No 36—

Manufactured Home Estates prevents development consent from

being granted pursuant to this Policy for the use of land as a

caravan park in which manufactured homes are or are to be

placed.”

12. The revised Statement of Facts and Contentions (Exhibit 1) documents a range of other policies applicable to the proposal; by the time of the hearing these no longer gave rise to the matters in contention and need not be discussed.

13. The applicant lodged the development application with council on 11 January 2016, following which there was referral to relevant external agencies and sections of council and the DA was advertised in local press and notified to neighbours. There was an exchange of correspondence and meetings between the parties and other agencies including a number with DPI – Water. On 13 February 2017, Council not having determined the proposal, the applicant filed the appeal on the basis of council’s deemed refusal.

14. 14 On 31 May 2017 a Conciliation Conference pursuant to s 34 of the Land and Environment Court Act 1979 was held, commencing on site. The parties and their experts made an inspection of the whole site. In addition to the parties’ experts, Mr Sutas of DPI – Water was in attendance and contributed to the subsequent discussions held the same day at the Mid-Coast Council Offices. The conciliation conference was adjourned and, as agreement between the parties did not eventuate, was terminated on 25 July 2017.

15. The applicant was granted leave to rely upon plans which modified the proposal in the following ways:

• reduced the number of long-term sites to 362 sites;

• relocated components of the development from the E2 areas;

• revised the design of the relocated Dunns Creek; and

• provided for access to the western side of Dunns Creek (stages1-5) by the access handle from Tea Tree Road.

16. The amended plans were notified to neighbours and to the Department of Primary Industry – Water.

17. 17 On 18 August 2017 the Department of Primary Industries – Water issued General Terms of Approval for the amended proposal. (Exhibit 2, folio 234 – 237). Revised General Terms of Approval from NSW Rural Fire Service were issued on 23 October 2017 (Exhibit 5).

18. Throughout the period from the conciliation conference to the start of the hearing there had been continuing discussion between the parties, resulting in agreement over most of the matters originally in contention.

19. At the start of the hearing there was an agreed set of relevant plans (Exhibit A), and there was agreement on most of the proposed conditions of consent, with only two substantive matters remaining in dispute. These were:

• details of proposed works on the access handle to Tea Tree Road

• presentation of the development to The Lakes Way, and details of noise attenuation measures adjacent to The Lakes Way

20. A joint expert report (Exhibit 3) was prepared by the planning experts, Mr Lander for the applicant, Mr Andrews for the respondent. The experts discussed a number of contentions in the amended statement of facts and contentions (Exhibit 1) but, in the conjoint oral evidence, the discussion concentrated on the proposed conditions 2 and 3 in Exhibit 4.

21. Proposed condition 2 in Exhibit 4 required construction of a vegetated earth embankment adjacent to The Lakes Way as part of the works for approved Stage1 of the development.

22. The requirement for a vegetative mound arose from proposed condition 3(b). Council proposed the mound to address two issues – visual screening and noise attenuation. The Lakes Way is a major access route to Forster and the development would be sited at what Mr Andrews regarded as being the southern gateway to the town and that attractive vegetation screening is necessary to create an appropriate entrance.

23. Mr Andrews was concerned the traffic noise levels would be high and that there could be potential adverse impacts on residents in the development.

24. Mr Lander pointed out that although The Lakes Way was a major road, the current traffic numbers did not approach those that would trigger a requirement for noise barriers. He also considered that vegetation would provide little effective noise attenuation and that a physical barrier would be required. A much higher solid structure than the proposed 1.5 m earth mound would be necessary. Mr Lander considered that noise issues should be addressed through construction requirements for those dwellings close to The Lakes Way

25. The visual appearance could be addressed through planting and Mr Lander suggested that a higher density of the proposed Melaleuca linariifolia plants in the bio filter would be appropriate.

26. Condition 39(a) requires amendment to provide further detail of the works on the handle connection to Tea Tree Road. The handle is 20 m wide. The applicant proposes to construct a sealed road surface 7 m wide. Mr Andrews considered that more detail was required on features such as kerbing, drainage and landscaping.

27. Mr Lander pointed out that the neighbouring owner of adjoining the handle had the benefit of a right of carriageway over the entire handle and would not allow any works which would prevent access from any point in the carriageway (Exhibit 2 at Folio 126 -131 and Folio 249).

28. After discussion between the parties, agreement was reached on how the disputed conditions should be reworded. There was also agreement to consider some clarification of the small number of other conditions.

29. Although the parties reached agreement on conditions, submissions by objectors need to be considered. The concerns relate to the access from Tea Tree Road have been discussed above.

30. The issues raised included seeking clarification as to whether what would be on the site would be caravans or manufactured homes, concerns about proposed access to The Lakes Way, and concerns about interference with drainage upstream. In large part these concerns related to possible impacts of any works on the land on the other side of The Lakes Way from the subject site. Work outside the site is not part of the current application. The hydrological evidence suggested that the works proposed for Dunns Creek would not worsen, and might improve, flooding risk upstream.

31. Following the hearing the parties have prepared agreed conditions of consent (Annexure A). I am satisfied that the conditions are appropriate and that the issues originally in contention or raised by objectors have been addressed. In regard to the access handle Condition 3 (a) requires that plans for proposed works be submitted with the application for a construction certificate, but the proposed work should have ‘regard to the neighbour’s right of carriageway over the land handle’. Condition 3(b) requires that details of noise attenuation measures ‘from a suitably qualified acoustic consultant’ be submitted with the application for a construction certificate.

Orders

32. There being no reason not to approve the development application, I make the following orders

1. The appeal is upheld.

2. Development Application No.279/2016 is approved subject to the conditions in Annexure ‘A’.

3. Exhibits may be returned except for Exhibit 1 and A.

Paul Adam

Acting Commissioner of the Land and Environment Court of NSW

Annexure A (C) (502 KB, pdf)

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Decision last updated: 14 November 2017