TMT Devco Pty Limited v Cessnock City Council

[2016] NSWLEC 1161

Land and Environment Court

New South Wales

Medium Neutral Citation:	TMT Devco Pty Limited v Cessnock City Council [2016] NSWLEC 1161
Hearing dates:	29, 30 March 2016
Date of orders:	04 May 2016
Decision date:	04 May 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is dismissed. 2. Development Application No. 8/2015/49/1 for the demolition of existing buildings and the staged construction of 302 manufactured home sites and ancillary facilities at 18 Fletcher Street, Nulkaba is refused. 3. The exhibits are returned.
Catchwords:	DEVELOPMENT APPLICATION: demolition of existing buildings and construction of 302 manufactured home sites and ancillary facilities – whether a permissible use – whether zone objectives satisfied – whether proposal has unacceptable scenic impacts - whether adequate information provided to consider application in relation to landscaping, management, evacuation, flooding, water management and protection of the riparian corridors
Legislation Cited:	Cessnock Local Environmental Plan 2011 Environmental Planning and Assessment Act 1979 Local Government Act 1993 State Environmental Planning Policy No. 21 State Environmental Planning Policy No. 36 Uniform Civil Procedures Rules 2005
Cases Cited:	BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399
Category:	Principal judgment
Parties:	TMT Devco Pty Limited (Applicant) Cessnock City Council (Respondent)
Representation:	Counsel: Mr P Rigg, solicitor (Applicant) Mr T Robertson SC (Respondent)   Solicitors: - (Applicant) Sparke Helmore Lawyers (Respondent)
File Number(s):	10573 of 2015
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal by Cessnock City Council of Development Application No. 8/2015/49/1 that seeks consent for the "Demolition of existing buildings and construction of 302 manufactured home sites, club house, indoor pool, bowling green, tennis court, internal roads, drainage and utilities" in the following five stages:

• Stage 1 - sites 1 to 34 and club house, bowling green and central pavilion areas;

• Stage 2 - sites 35 to 106;

• Stage 3 - sites 107 to 197;

• Stage 4 - sites 198 to 259 and indoor pool, tennis court and work shed;

• Stage 5 - sites 260 to 302 including caravan and RV storage area.

2. The location of the proposed development is 18 Fletcher Street, Nulkaba (the site).

3. The council maintains that the development application must be refused as the proposed use is prohibited. If the Court finds that the proposed development is permissible, the development application ought be refused because the development application:

• has provided inadequate information to properly consider the application,

• is inconsistent with the zone objectives,

• is inconsistent with the aims and mandatory considerations of state environmental planning policies,

• has unacceptable social impacts,

• has unacceptable impacts on the riparian environment, and

• has a negative impact on the scenic qualities of the area.

The site

4. The site is Lot 11 DP 749628. It is irregular in shape and has a total area of approximately 34.87 ha. The site is currently occupied by a single dwelling and associated outbuildings. There are eight ponds on the site and it is predominantly cleared of vegetation. It is bounded by Oakey Creek along the western boundary and a dry drainage depression with several dams along the eastern boundary. Vehicular access is obtained from the end of Fletcher Street.

5. The site is located to the southwest of the village of Nulkaba and about 4.5km to the north of the Cessnock business and commercial precinct. Development within the surrounding area is characterised by single dwellings on large rural residential sized allotments ranging between 2000 sq m and 80 ha in size.

Relevant planning controls

6. The site is zoned RU2 Rural Landscape under Cessnock Local Environmental Plan 2011 (LEP 2011). Clause 2.3(2) states that the Court must have regard to the zone objectives when determining a development application. The RU2 zone objectives are:

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

• To maintain the rural landscape character of the land.

• To provide for a range of compatible land uses, including extensive agriculture.

• To enable other forms of development that are associated with rural activity and require an isolated location or support tourism and recreation.

• To ensure that the type and intensity of development is appropriate in relation to the rural capability and suitability of the land, the preservation of the agricultural, mineral and extractive production potential of the land, the rural environment (including scenic resources) and the costs of providing services and amenities.

7. State Environmental Planning Policy No. 36 - Manufactured Home Estates (SEPP 36) is relevant. SEPP 36 applies to the site by way of cl 3(1). Clause 4(1) states “that 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”.

8. Clause 6 states:

6 Where development for the purposes of a manufactured home estate may be carried out

Development for the purposes of a manufactured home estate may be carried out pursuant to this Policy on any land on which development for the purposes of a caravan park may be carried out, except:

(a) land within one or more of the categories described in Schedule 2, or

(b) land dedicated or reserved under the National Parks and Wildlife Act 1974, or

(c) land within a Crown reserve.

9. Relevantly, Schedule 2 includes the following exception:

6 Land which under any environmental planning instrument is within an area or zone identified in that instrument by the description:

•

•

•

• rural (where the land is not adjacent to or adjoining land zoned for urban use).

10. Clause 9 states:

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.

11. The Dictionary provides the following relevant definitions:

manufactured home estate means land on which manufactured homes are, or are to be, erected

manufactured home means a self-contained dwelling (that is, a dwelling that includes at least 1 kitchen, bathroom, bedroom and living area and that also includes toilet and laundry facilities), being a dwelling:

(a) that comprises 1 or more major sections that are each constructed, and assembled, away from the manufactured home estate and transported to the estate for installation on the estate, and

(b) that is not capable of being registered under the Traffic Act 1909,

and includes any associated structures that form part of the dwelling.

12. State Environmental Planning Policy No 21 - Caravan Parks (SEPP 21) was addressed by the parties, particularly, cll 3, 5(4), 6, 8 and 10. SEPP 21 applies to the site by way of cl 4(1). Clause 5(1) states “in the event of an inconsistency between this Policy and another environmental planning instrument (whether made before or after this Policy) this Policy prevails to the extent of the inconsistency. This subclause is subject to s 36 of the Environmental Planning and Assessment Act 1979”.

13. Clause 6 states:

6 Definition

In this Policy:

caravan park means land (including a camping ground) on which caravans (or caravans and other moveable dwellings) are, or are to be, installed or placed.

moveable dwelling has the same meaning as it has in the Local Government Act 1993.

14. The Dictionary to the Local Government Act 1993 provides the following definition:

moveable dwelling means:

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

(b) a manufactured home, or

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

15. Clause 8(1) provides that development for the purposes of a caravan park may be carried out only with the development consent of the council. Clause 10 identifies matters to be considered in determining whether to grant consent.

16. State Environmental Planning Policy (Rural Lands) 2008 (RL SEPP) applies to the site.

17. Cessnock Development Control Plan 2010 (DCP 2010) applies with Chapter C.8 addressing Social Impact Assessment and Crime Prevention though Environmental Design Guidelines for a Proposed Development; Chapter D.2 addresses Urban Housing; Chapter E.3 addresses Vineyards District and Chapter E.7 addresses Cessnock Airport.

18. The following other policies and documents addressed at the hearing are:

• Department of Planning's Lower Hunter Regional Strategy 2006-31 (Lower Hunter Regional Strategy);

• Cessnock City-Wide Settlement Strategy (Settlement Strategy);

• Vineyards Visioning Statement 2012 adopted by Council on 1 August 2012;

• Department of Primary Industry's (DPI) Maintaining land for agricultural industries Policy 0-104, 20 May 2011;

• DPI's Guidelines for riparian corridors on waterfront land, 2012;

• DPI's Guidelines for vegetation management plans on waterfront land;

• NSW Government's Floodplain Development Manual 2005;

• NSW Government's Strategic Regional Land Use Plan for the Upper Hunter 2012; and

• NSW Government's Strategic Agricultural Land Map Sheet 4, Upper Hunter, Critical Industry Cluster (Viticulture), 25 July 2014.

Is the proposed development permissible and if so, which planning controls apply?

The evidence

19. The parties differed on whether the proposed development is permissible. Mr Robertson SC and Mr Rigg however agreed that in the RU2 zone, “Residential accommodation” is a prohibited use. The Dictionary to LEP 2010 defines “Residential accommodation” as:

residential accommodation means a building or place used predominantly as a place of residence, and includes any of the following:

(a) attached dwellings,

(b) boarding houses,

(c) dual occupancies,

(d) dwelling houses,

(e) group homes,

(f) hostels,

(g) multi dwelling housing,

(h) residential flat buildings,

(i) rural workers’ dwellings,

(j) secondary dwellings,

(k) semi-detached dwellings,

(l) seniors housing,

(m) shop top housing,

but does not include tourist and visitor accommodation or caravan parks.

20. It was also agreed that a “caravan park” is not a form of residential accommodation and is an innominate use that is permissible, with consent in the R2 Zone. It is defined in the Dictionary to LEP 2010 as:

caravan park means land (including a camping ground) on which caravans (or caravans and other moveable dwellings) are, or are to be, installed or placed.

21. Mr Robertson submits that a “manufactured home estate” (MHE) is prohibited in the RU2 Zone because it is “multi-dwelling housing”, a subset of the prohibited use of “residential accommodation”. Further, it is not a caravan park because no caravans are "installed or placed"; terms which import the location of caravans on particular sites for accommodation purposes, and not merely parking or storage. If it is a caravan park, it is permissible in the RU2 Zone, but contrary to its objectives and should be refused on its merits for that reason and also the need to consider those matters in s79C(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act).

22. SEPP 36 does not apply because the site is described in the RU2 Zone as rural but does not adjoin "land zoned for urban use". The adjoining R5 Zone is not zoned "for urban use" because extensive agriculture and horticulture are permissible uses, which are antipathetic to urban use. The intention of SEPP 36 is to site MHEs in or adjoining urban areas.

23. In summary, as the use is characterised as a MHE, it cannot be approved under LEP 2010 as the proposed use is prohibited as “multi-dwelling housing”, under SEPP 36 it cannot be approved as the proposed use is excluded from the application of this policy as the site is rural (and not adjacent to or adjoining land zoned for urban use) and it cannot be approved as the proposed use is not a caravan park and is excluded from the application of SEPP 21. Consequently, the proposed development is prohibited under the three possible planning scenarios and as such, the appeal must be dismissed and the development application refused.

24. Mr Rigg submissions on permissibility relate largely to SEPP 36 and the question of whether the site adjoins "land zoned for urban use". He submits that the application has been submitted in reliance of SEPP 36. Contrary to the submission of Mr Robertson, Mr Rigg states that the site adjoins "land zoned for urban use” and as such falls within the ambit of SEPP 36. He comes to this conclusion for a number of reasons. First, and while cl 1.5 of LEP 2011 provides that Notes in LEP 2011 are provided for guidance and do not form part of this plan, no such limitation is placed on the title for the different zones. In this case, the site adjoins land within Zone R5 Large Lot Residential. Mr Rigg submits that the reference to the word “Residential” in the zone title suggests an urban zone (as distinct from a rural zone) and supports the conclusion that the site adjoins "land zoned for urban use".

25. Second, the objectives of the RU2 Zone, while largely addressing agriculture also seek to “provide for a range of compatible land uses, including extensive agriculture”. Similarly, the permissible uses in this zone allow “caravan parks”, with consent. Mr Rigg submits that the R5 Zone provides a range of uses that provide services and facilities for the day to day needs of the residents living in that area – consistent with land used for an urban purpose.

26. Third, Mr Rigg submits that, pursuant to pt 6 of LEP 2011, DCP 2010 can be taken into account and the R5 Zone considered a future urban release zone but not one that has not come into effect at this time. He notes that there was no evidence to suggest that the R5 Zone was to be revoked by the council.

27. In response, Mr Robertson submits that Zone R5 is identified in LEP 2011 as "Large Lot Residential". What is meant by these words, in context, is explained by the Zone R5 objectives. These objectives are:

• To provide residential housing in a rural setting while preserving, and minimising impacts on, environmentally sensitive locations and scenic quality.

• To ensure that large residential lots do not hinder the proper and orderly development of urban areas in the future.

• To ensure that development in the area does not unreasonably increase the demand for public services or public facilities.

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

28. The first objective is to provide "residential housing in a rural setting while preserving, and minimising impacts on, environmentally sensitive locations and scenic quality". Although residential housing may be an urban use, it is to be provided in this zone "in a rural setting" which is indicative of an intention that residential housing not alter the rural character of the land and minimise impacts on environmentally sensitive locations and the scenic quality of the area.

29. The second objective is to ensure that large residential lots "do not hinder the proper and orderly development of urban areas in the future". Mr Robertson submits this is an important objective because it suggests that non-urban uses may continue, but not to compromise the future urbanisation of the area. It is not zoned for urban use at present as its objective is to preserve it for future urban use. Equally, it might be argued that if the end to be achieved by the zone is urbanisation, this end can be achieved without excluding rural uses and that view is confirmed when regard is given to the LEP 2011 controls for urban release areas.

30. The third objective is to ensure that development in the area does not unreasonably increase the demand for public services or public facilities. This is a typical provision in zones permitting rural residential uses which discourage closer settlement before utility providers have the capacity to expand reticulated water and sewerage facilities.

31. The fourth objective is to minimise conflict between land uses within the zone and land uses within adjoining zones. In adjoining zones, rural activities are permissible, and might be expected to give rise to potential conflicts with residential use. Spray drift, noise and odour are potential nuisances which arise from rural use and are usually mitigated by buffers on spacious adjoining lots. Mr Robertson submits that this is characteristic of a town or city where closer settlement prevails and buffers would not usually be expected to be provided by residential lots to minimise impacts from adjoining zones. It is also possible that this objective is intended to explain that one function of the R5 zoning is for it to buffer rural activity on adjoining land from more densely populated land in a different zone. In other words, the R5 Zone itself is a buffer between rural and urban zoned land.

32. None of the objectives impart an exclusively urban flavour or character to the R5 Zone. On the contrary, the objectives suggest either that the land has a rural character which the zoning intends to preserve or that the land in the zone may await future urbanisation, but is designed to prevent premature subdivision, and hence maintains a generous minimum area standard for residential lots. Whether the land is zoned for urban use is more likely to depend on the permissible and prohibited uses in the zone.

33. Only home occupations are permissible without consent. Permitted with consent are bed and breakfast accommodation, dwelling houses, extensive agriculture, horticulture, neighbourhood shops, roads, sewage reticulations systems and any other development not specified as permissible without consent or prohibited. Mr Robertson submits that some of these uses are neutral in the sense that they can just as easily be accommodated in an urban as in a rural area. Such uses are bed and breakfast accommodation, dwelling houses, neighbour shops and roads. Sewerage reticulation systems are more naturally an urban use. However, extensive agriculture and horticulture are not and both are permissible, with consent in the R5 Zone. Extensive agriculture is defined to mean any of the following:

(a) production of crops or fodder (including irrigated pasture and fodder

crops) for commercial purposes,

(b) the grazing of livestock for commercial purposes,

(c) beekeeping,

(d) a dairy (pasture-based).

34. Although agriculture is prohibited in the R5 Zone, that does not, because of cl.2.3(3)(b) of LEP 2011, prohibit a nominated permissible use which nests within it. Extensive agriculture is (with the possible exception of beekeeping) quintessentially a rural use. The subdivision of pastoral land and the construction of roads and drainage and the provision of services such as electricity, sewerage and reticulated water typically converts rural land to urban use. Grazing etc is precluded, indeed, terminated when land is converted from rural land to urban use. The intended continuation of grazing etc in the R5 Zone demonstrates that the land is not zoned "for" urban use’: it is one of the continued or continuing ends to be attained by the zoning. Horticulture is another use permissible with consent which would not be expected to be permissible in an urban zone. Horticulture is a use which nests within intensive plant agriculture, and be permitted within the zone, because that would confound the objectives of ensuring that large residential lots do not hinder the proper and orderly development of urban areas in the future, and of ensuring that development does not unreasonably increase demand for public services or facilities. These uses may also have been prohibited to maintain a rural residential flavour to the zone. This is speculation, and a surer guide to the purpose of the zone lies with its permissible uses, its objectives and the other controls applicable to it in LEP 2011.

34. Mr Robertson also submits that the area of the lots may be arguably relevant. While accepting the title to the R5 Zone refers to "Large Lot Residential” the area of the allotments is a relevant consideration in determining the character of the zone. The land north of Fletcher Street adjoining the site has a minimum lot size of 4ha. This is typical of rural land and certainly not urban land. South of Fletcher Street within the R5 Zone, the adjoining land has two minimum lot sizes of 2,000 sq m and 4,000 sq m. LEP 2011 relevantly provides that the minimum lot area is 2 ha if the subdivision will result in the creation of lots that are not able to be serviced by a reticulated water and sewerage system. Mr Robertson submits that these provisions are reasonably inflexible prohibitions because of cl.4.6(6) of LEP 2011. That provision prohibits the grant of development consent if a subdivision of land in the R5 Zone will result in two or more lots of less than the minimum area or at least one lot that is less than 90% of the minimum area specified for the lots by the standard. In other words, it is permissible for one lot to be less than the minimum area, but no more can be less than 90% of the minimum area. In most cases, this will result in the minimum lot area development standard operating in the R5 Zone as a prohibition upon consent rather than a standard which can be set aside where its application would be unreasonable or unnecessary. The constraint it places upon further subdivision in the R5 Zone makes it less likely that that zone could be used for closer urban settlement and is clearly designed to maintain as far as possible, generous lot sizes which in some cases to enable the maintenance of rural activities. Mr Robertson submits that the limitation on lot size imposed by cl.4.1 (4A) probably does not apply because subdivision into 2,000 sq m lots cannot presently be serviced. The minimum lot size will be 2 ha, on which intensive plant agriculture can be readily conducted. However, even if all land was subdivided to the lowest minimum area within cl.4.1, Mr Robertson submits that the use of those lots for residential purposes would not constitute an urban use where agricultural uses would still remain permissible.

35. Mr Robertson concludes by submitting that, based upon an analysis of the objectives and the permissible and prohibited uses within the R5 zone, a conclusion could be reached that the critical element that excludes that the R5 zone land as being land that “is not adjacent to or adjoining land zoned for urban use” is the express permissibility of horticulture, an intensive form of plant agriculture, and extensive agriculture, essentially grazing, both of which require large land areas and cannot be carried out on urban land. Also, the potential for subdivision of the R5 Zone land is unlikely in a form that could be regarded as an urban use.

The findings

37. In considering the different submissions, I agree with Mr Robertson for a number of reasons. First, I accept that it is necessary to go beyond the mere name of the zone to understand whether the R5 zoned land constitutes land used for urban use. The use of the words “Large Lot Residential Zone” and particularly the word “Residential “ would superficially suggest an urban use however the use of the word “urban” in cl 6 of Sch 2 and the absence of this word in any zone title clearly suggests that it is necessary to go beyond simply the title of any zone to answer the question posed by cl 6 of Sch 2. The further investigation would involve a consideration of the relevant clause in the local environmental plan and if necessary, any development control plans to answer the question in cl 6 of Sch 2.

38. Second, I agree with Mr Robertson on the assessment of the objectives in relation to the question of whether the R5 Zone objectives lead to a conclusion that the land could not be regarded as zoned "for urban use". Essentially, the R5 Zone is a “holding zone” for future urban expansion. The fact that it is designated as such does not guarantee when it will be used for that purpose or more importantly, that it will ever be used for such a purpose. Importantly, the R5 Zone is currently not “used” for urban purposes. No evidence was provided to suggest that any planning had been undertaken for the R5 zoned land to be used for urban purposes. The objectives suggest that rural uses may continue, but in a form that does not compromise any future urbanisation of the R5 zoned land as well as ensuring that any development is located in a rural setting while preserving, and minimising impacts on environmentally sensitive locations and scenic quality. The clear emphasis being on maintaining a rural character.

39. Third, I also accept that the range of uses in the R5 zone does not support the proposition that the land could be regarded as urban land. In my view, the zone objectives provide a greater level of comfort in answering the question of whether the R5 zoned land could be regarded as urban land rather than the range of uses in the R5 Zone. The range of permissible uses in the R5 Zone include what could be regarded as urban uses, such as Neighbourhood shops and Dwellings. This is unsurprising and uncontroversial given that people in the R5 Zone (and other zones, including other non-urban zones) still require basic facilities that provide day to day goods and facilities. In my view, having permissible uses that provide day to day goods and facilities does not make the land “urban” for the purposes of the test in cl 6 of Sch 2.

40. Fourth, the limitations on subdivision of R5 zoned land also support the proposition that the land could not be regarded as urban land. The constraint the subdivision controls place upon further subdivision in the R5 Zone makes it less likely that that zone could be used for urban use and would suggest that the subdivision controls have been designed to maintain large lot sizes which would to enable the retention of some rural activities and at the same time, allow for the more efficient future subdivision of the land, if it was considered that this was appropriate.

41. Under SEPP 36, the application would be permissible by way of cl 6 of SEPP 31(as caravan parks are permissible in the RU2 zone) but for the exceptions in Sch 2. The relevant exception in Sch 2 is within a rural area or a zone identified in LEP 2011 by the description rural but where the land is not adjacent to or adjoining land zoned for urban use. Having found that the proposed development is “not adjacent to or adjoining land zoned for urban use”, SEPP 36 does not provide the opportunity for the application to be approved.

42. For completeness, I find that under LEP 2011, a “manufactured home estate” (MHE) is prohibited in the RU2 Zone because it is characterised as a “multi-dwelling housing”, a subset of the prohibited use of “residential accommodation”.

43. I also find that the proposed development is not a “caravan park” under SEPP 21. The SEE identifies the use as “construction of 302 manufactured home sites”. The application is clearly for a MHE rather than a caravan park. I note a different assessment regime exists for a caravan park than a MHE and importantly, Mr Rigg confirmed that the application has been submitted in reliance of SEPP 36. While the application identifies a location for “caravan parking and RV storage”, there was no suggestion that this area was to be used as part of the MHE but only a location where caravans and recreation and vehicles are stored when not in use. The area designated “caravan parking and RV storage” would be ancillary to the use of the site as a MHE.

44. As the proposed development is not permissible under LEP 2011 or SEPP 36 or SEPP 21, the development application must be refused and the appeal dismissed.

45. For completeness, I will briefly deal with the other matters in contention.

Merit considerations

46. The remaining contentions in dispute are:

visual impact,

zone objectives,

landscaping/ecology,

social impact, and

drainage/flooding.

The evidence

47. The council provided expert evidence from the following experts:

• Dr Phillip Pollard - visual impact,

• Ms Sarah Hyatt - zone objectives/planning,

• Ms Marilyn Woodland - landscaping/ecology,

• Ms Natalie Drage - social impact, and

• Mr Craig Maher - drainage/flooding

48. The applicant provided a single report from Mr Matthew Wales in response to the range of reports provided by the council. Mr Wales’ company (Wales & Associates Pty Ltd) was responsible the preparation of the development application. Even though the report of Mr Wales acknowledged the Expert Code of Conduct, his report was challenged by Mr Robertson because the curriculum vitae attached to his report contained no reference to any specific qualifications. The report was ultimately tendered as Exhibit E, but not on the basis of an expert report but a report based on Mr Wales previous experience in establishing MHE’s. In response to the council’s expert reports, Exhibit E largely responded to the concerns expressed by the council by reference to the various reports contained in the Statement of Environmental Effects (SEE) that accompanied the development application. These reports were not prepared as expert reports nor were their authors available for cross examination. Mr Wales ultimately did not provide any oral evidence at the hearing.

49. In closing submissions, Mr Robertson further raised concern over Mr Wales involvement in the proceedings. He tendered extracts from the Australian Securities and Investment Commission database that identifies Mr Wales as a Director of the applicant company, TMT Devco Pty Ltd.

50. I am satisfied that Exhibit E should be given no weight in the proceedings because of the requirements of Division 2 of Pt 31 of the Uniform Civil Procedures Rules 2005 and the Expert Witness Code of Conduct in Schedule 7 have not been complied with. The evidence clearly establishes that the evidence of Mr Wales could not be seen as having ”an overriding duty to assist the court impartially”.

51. The effect is that the applicant provided no evidence to refute the matters raised by the council, although Mr Rigg cross examined each of the council expert witnesses.

Visual impact

52. Dr Pollard states that the proposed development will be perceived from both the immediate area and from a middle distance as medium density. The achievable landscaping on the site as proposed, will not assist in any meaningful way in concealing the medium density character of the proposal.

53. The proposal is very different from the rural lands, riparian areas and airport to the south, west and north respectively. It is also markedly different from the large-lot rural residential development to its north-east, east and south-east. Whereas existing development in Nulkaba currently becomes sparser and more semi-rural in character towards the outskirts of the village, the proposal upends this desired pattern by placing a quite different and dense development at the outer transition from semi-rural to rural.

54. Dr Pollard does not accepts that it is possible to design a manufactured housing development for the site that would achieve a density approaching that proposed, and simultaneously achieve a satisfactory outcome that fits acceptably in its rural and semi-rural context. However, the rudimentary design of the proposal creates even more adverse impacts than a more sensitively designed proposal would do; particularly if combined with a reduced density. While a more responsive design would never be capable of achieving a satisfactory outcome in terms of context, it would at least potentially provide a greater level of amenity for its residents.

Zone objectives/planning

55. Ms Hyaytt states that that the proposed development:

• does not satisfy the objectives of the RU2 Rural Landscape zone;

• is inconsistent with the established rural residential character of the built environment within the locality, dominated by single dwelling on large residential allotments;

• will not be located in an area suitable for the intended use, with the proposed housing type and density being inconsistent with the character of the built environment within the vicinity of the site;

• is inconsistent with aim (f) of SEPP 36 with respect to the density of development and the established built character of the locality; and

• will, and in particular the housing type and density proposed, have a significant impact on the existing rural amenity and character of the site and the surrounding area.

Landscaping/ecology

56. Ms Woodland states that the landscaping depicted in the Landscape Concept Plan suggests a capacity for landscaping density and a scale of planting at maturity that does not correlate with the physical capacity for landscape planting as provided in the Site Master Plan. The Concept Plan misrepresents what can possibly be achieved under the Site Master Plan and even if the concepts depicted on the Concept Plan were achievable (a situation Ms Woodland describes as a misrepresentation of landscape information), Ms Woodland states that it would still not be sufficient to ameliorate the substantial visual impacts of the proposed development.

57. The absence of nominated species on the Concept Plan is seen by Ms Woodland as inadequate and unacceptable as is the absence of a comprehensive soil survey and land capability assessment to determine the site's suitability for commercial viticulture, any other agricultural pursuit or even the ability to sustain the proposed landscaping.

58. Ms Woodland also notes that the Site Master Plan depicts landscaping in the floodways and other perimeter areas around the dense residential areas; these are to be relatively bare and untreed - presumably because of the need to maintain them as an Asset Protection Zone (APZ) for bushfire risk. There is no indication on the Concept Plan of the accurate APZ, which by its nature, cannot be part of the inner 15m of the riparian zone. In her opinion, the entire 30 m riparian zone should not be compromised as this zone contains an ecological system that although limited, is a listed Endangered Ecological Community that an effort should be made to rehabilitate, extend and restore within the Vegetation Rehabilitation Zone (VRZ).

59. Ms Woodland concludes by stating that the Concept Plan, though presenting a very attractive development site on paper, is not viable. When carefully examined, the Concept Plan has many inaccurate and improbable placements of trees, zones, footpaths, drainage lines and roadways that in many cases contradict the policies and guidelines for APZs, riparian zones and pollution filtration control requirements in conservation zones.

Social impact

60. Ms Drage states that the proposed development is located at a significant distance to essential services including shops, health care and community support services. Limited and insufficient detail has been provided regarding the availability and provision of a transport service. The site is also not in a location that is accessible and requires a 1.5 km journey to the nearest public bus stop.

61. Also, the target market of the proposal is people aged over 55 years. As people age, they are likely to require increased accessibility support. The proposed development does not provide design standards targeted to seniors housing. The on-site management procedures are insufficient and uncertain, in particular, due to the applicant's failure to submit a Plan of Management.

62. Further, the proposed development does not satisfy the criteria set out in Chapter 8 of DCP 2010 including mitigation strategies for Social Infrastructure; Housing, including Affordable Housing, Social Cohesion, Social Connectivity, Sense of Place; and Health.

Drainage/flooding

63. Mr Maher states that the proposed development cannot be supported in its current form. In his opinion, the proposed development is deficient because of an absence of information that relates to:

• an unacceptable risk to vulnerable user groups with respect to the lack of emergency and evacuation procedures to cater for this group,

• an adverse impact with respect to flooding due to the failure to address the projected changes as a result of climate change,

• an adverse impact with respect to the lack of management of stormwater runoff leaving the site,

• an adverse impact due to an increase in peak flows leaving the site in its post development state, and

• an adverse impact on downstream receiving waters through a loss of capacity due to increased peak flows.

Findings

64. As a starting point to the merit assessment, Mr Robertson and Mr Rigg disagreed on the role of s79C(1) of the EPA Act in the assessment of the application. As I have found that the proposed development is prohibited, it is not necessary to deal with the differing submissions beyond saying that the submission of Mr Robertson that nothing in SEPP 36 does or can displace the mandatory consideration of the matters in s 79C(1) is the correct approach.

65. While the Court is not bound to accept the evidence of the council’s experts, even though there was no contrary evidence, I am satisfied that if the application was not prohibited, then the evidence provided by the council would be sufficient to refuse the application, on its merits. Even though Mr Rigg cross examined the council witnesses, their conclusions were not seriously challenged, in my view.

66. I agree with general approach of the council experts that having regard to the RU2 zone objectives; particularly “To maintain the rural landscape character of the land”, the proposed development is unacceptable. The proposed development effectively places an urban, and a relatively high urban form and character, on the site. The attempt to minimise this impact through landscaping is unsuccessful as it provides only peripheral landscaping, if it could be established and maintained. I share the concern of the council based on the evidence of Ms Woodland. Internal landscaping was not sufficiently addressed to provide any comfort that it could be achieved, even without considering its ability to survive any reasonable period of time. As a general approach, I do not accept that landscaping should be used in this context where the maintenance of a rural character is a fundamental objective of the RU2 zone.

67. In BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399, McClellan CJ makes the following relevant comments:

117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.

119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project.

68. BGP Properties makes it clear that “planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted” – the critical words are “in some form” and “results in acceptable environmental impacts”. The appropriateness of the form of the building proposed and the impacts has been considered and found to be unacceptable.

69. Deficiencies in the information provided to assess the application were numerous and could have resulted in the application being refused for any one, but not exclusively, the following:

• the ability of providing landscaping that will be sustainable in the long term,

• the conflict between the ability to revegetate the riparian zone and at the same time provide an APZ for fire protection along riparian zones,

• the absence of a Plan of Management to understand how the MHE would operate, including access to essential services including shops, health care and community support services and the provision of internal services,

• the absence of emergency and evacuation procedures to cater for the anticipated user groups, and

• the potential impact with respect to the lack of management of stormwater quality runoff leaving the site.

Orders

70. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 8/2015/49/1 for the demolition of existing buildings and the staged construction of 302 manufactured home sites, club house, indoor pool, bowling green, tennis court, internal roads, drainage and utilities at 18 Fletcher Street, Nulkaba is refused.

3. The exhibits are returned.

____________

G T Brown

Commissioner of the Court

Decision last updated: 04 May 2016