Tresize Investments Pty Limited v Albury City Council - [2007] NSWLEC 686

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Tresize Investments Pty Limited v Albury City Council [2007] NSWLEC 686
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Tresize Investments Pty Limited
RESPONDENT
Albury City Council

FILE NUMBER(S): 10412 of 2007

CORAM: Murrell C

KEY ISSUES: Development Application :- Section 97 appeal for Manufactured home estate comprising 152 dwellings.
Traffic, parking, landscape, fencing built form and design incosistent with streetscape and character of existing residential area.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Albury Local Environment Plan 2000
Albury Development Control Plan 2000
State Environmental Planning Policy No. 36- Manufactured Home Estates
Local Government Regulation No. [2005-486] entitled Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings

CASES CITED: Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70

DATES OF HEARING: 23/07/2007, 24/07/2007 and 27/07/2007

DATE OF JUDGMENT:
31 October 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr S. Griffiths, solicitor
of Pike Pike and Fenwick
RESPONDENT
Ms S. Duggan, barrister
Instructed by Mr M. Rogers
of Kell Moore Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

31 October 2007

10412 of 2007 Tresize Investments Pty Limited v Albury City Council
JUDGMENT

1 This judgment is for an appeal under s 97 of The Environmental Planning and Assessment Act 1979 (the Act) against Albury City Council’s refusal of a development application for a manufactured home estate comprising 152 dwelling sites, community facilities and landscaping. Figure 1 shows the proposed site layout and the relationship to adjoining residential allotments and streets in the area.

The proposal

2 The total site area is some 5.6 hectares in size and is a vacant parcel of land. Figure 2 is the masterplan for the estate that depicts lot layout and dwellings, the central community facility, visitor parking spaces and storage area.

3 The proposal incorporates a community centre building with function room, billiard room, library/business centre, kitchen, theatrette, three rink bowling green, pool, gym/changing rooms and visitor car parking.

4 The allotments range in size from 161 to 378 square metres in area, with an average of 196 square metres. Three conventional sites of 760 square metres on the southern extremity of the site facing Kemp Street are also proposed. The width of the frontage for each dwelling site in the estate ranges between 11.7 and 20 metres, with a greater percentage being 12.2 metres or greater.

5 A 10 metre wide buffer zone to Kemp Street and Strauss Street is proposed. Boundaries to the drainage reserve to the west and the existing residential area to the south west also have buffer zones of three metres minimum width.

6 The landscape design plan, exhibit E, shows tree plantings proposed along the internal roads and intersections. The plan also shows a schedule of trees for the landscaping of the buffer along Kemp and Strauss Streets. Figure 4, the urban design concept plan, also reflects the proposed landscaping.

Site and Environs

7 The subject site is Lot 665 in Deposited Plan 1092789 located adjacent to Kemp Street, Springdale Heights in the city of Albury. The land is on the south western corner of Kemp Street and Strauss Street about 2 kilometres to the north of the town centre of Lavington and 5 kilometres from the Albury CBD.

8 The Kemp Street frontage provides a boundary of 293 metres and the Strauss Street frontage is 244 metres. The land is generally level with a slight slope towards the south. The only vegetation is a few mature trees along the Kemp Street frontage and along the western boundary.

9 Figure 3 shows a locality map and it can be seen that the site adjoins existing residential developments. The surrounding residential development includes dual occupancies and medium density developments, however single detached dwelling houses predominate. The area to the east of Kemp Street is a recently developed residential subdivision while the areas to the south and west include older residential areas. The western boundary of the subject site is adjoined by a drainage reserve and to the south there is an existing open space area.

Statutory Planning Framework

10 State Environmental Planning Policy No. 36- Manufactured Home Estates (SEPP 36) sets out a number of aims and strategies as follows:

Community Land Development Act 1989,

11 Clause 4 of SEPP 36 refers to the relationship of the SEPP to other environmental planning instruments and states:

(1) in the event of any 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.

12 The following clauses are relevant to the subject development application.

Local Government Act 1993.

Local Government Act 1919

Community Land Development Act 1989,

Local Government (Manufactured Home Estates) Transitional Regulation 1993.

conservation area
heritage item
waterway or land having special landscape, scenic or ecological qualities,

Local Government (Manufactured Home Estates) Transitional Regulation 1993.

13 The dictionary to SEPP 36 includes a definition of manufactured home as follows:

Traffic Act 1909

Manufactured Home Estate

14 The Albury Local Environment Plan 2000 (the LEP) zones the subject site Living Area.

15 Clause 61 of the LEP specifies that consent for caravan parks and manufactured home estates must not be granted by council unless the site:

16 Under the LEP the definition of manufactured home estate means land on which manufactured homes are, or are to be, erected.

17 Clause 8(2) states that:

the consent authority must not grant consent to the carrying out of development on land that is within a zone unless the consent authority is of the view that the development is consistent with the objectives of the zone.

18 Subclause (3) states:

however the consent authority may grant consent to development on land within a zone that is inconsistent with one or more of the objectives of the zone if in the circumstances of the case;

An non compliance with the objective would not result in any significant adverse social, economic or environmental effect.

19 The zone objectives for the Living Area Zone are contained in clause 16 as follows:

(g) to encourage medium density housing that is designed to achieve a high standard of amenity and that is located in an evenly balanced manner throughout the residential areas.

20 The Albury Development Control Plan 2000 (DCP) contains a chapter on the Living Area Zone and provides for various matters for consideration when assessing a development within the zone including:

Other Legislation

21 The appeal before the Court is for the development application under the Environmental Planning and Assessment Act. I note that SEPP 36 states that approval to operate a manufactured home estate is also required under the Local Government Act 1993.

22 The Local Government Regulation No. [2005-486] entitled Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings provides standards and requirements for a manufactured home estate. The object of this Regulation is to provide opportunities for affordable alternatives in short term and long term accommodation. In its contentions below the Council states the Regulation is not complied with in terms of site facilities. An extract is provided at attachment 1.

23 The Regulations also provide for the manufactured home and associated structure to be not more two thirds of the area of the single dwelling site and if there is no carport or garage on the dwelling site an area with minimum dimensions of 6 metres by 3 metres accessible from the access road and usable for carparking must be provided on the dwelling site.

24 Division 4 sets out minimum open space requirements for each dwelling to be at least 30 square metres where there is no building structure or carparking space. The open space area must have a minimum width and depth of 3 metres and any space less 2 metres must be disregarded from calculating the area of open space for each dwelling site.

25 The Regulations also provide requirements for structural soundness, ceiling height, lighting and ventilation and construction requirements including glazing external waterproofing, plumbing and drainage, electrical wiring and smoke alarms. Clause 69 requires Certificates of Completion that the council must issue 5 days after receiving Notice of Completion and installation of a manufactured home if not the council is to provide a written notice that states why such a certificate is not being issued.

Contentions

26 The respondent raises the following Contentions in the proceedings.

79C(l)(b), 79C(l)(d) and 79C(1)(e) of the Environmental Planning and Assessment Act 1979;
Clause 16 of the Albury LEP relating to Living Area Zone;
in particular, the proposal fails to comply with objectives (2)(d) and (f) thereof;
The maters for consideration outlined in Chapter C of the Albury DCP, by reason of:
(i) The proposal being contrary to the prevailing character of the locality in that it does not address the street, in particular;
(ii) The quality and quantity of landscaping is uncharacteristic in the locality; and
(iii) The nature and type of manufactured homes, which may be placed upon the land have an architectural form, materials and aesthetic which is uncharacteristic with the locality.

Clause 13(1) of the Local Government (Manufactured Home Estate, Caravan Parks, Camping grounds and Moveable Dwellings) Regulation 2005; and
Clauses 2(e) and 9(1)(c) of the SEPP 36.

Evidence and Submissions

27 The Court met on site the first day of the hearing and heard from some 15 local residents who represented the 50 local resident objectors also in attendance.

28 The objectors who gave evidence included Mrs H. Bishop and she is of the opinion that the proposed development is very intrusive and aesthetically displeasing in that it will represent a whole field of uniform homes with a high fence that cordons off the development and denies access to surrounding suburbia, and would be a gated community with a lack of any social interaction with the adjoining residential area. She expressed concern that it will represent cheap housing to cater for the over 55’s and that a far better option is a retirement village.

29 Mr M. Ribstein informed the Court that he had bought into the area some two years ago as did many young families and that the built form of their dwelling houses complied with the council requirements however the proposed development would be a much greater density and a gated community with no other interaction with other residents in the area.

30 Ms J. Bush expressed concern about the limited vehicle and emergency services entry and exit to the site as well as visitor parking for the proposed dwellings.

31 Mr A. Carter considers that the proposed fence surrounding the development will be ugly. He also expressed concern about the traffic that will be generated by the proposed development and the parking.

32 Ms J. Mitchell expressed concern that the future outlook from her dwelling would be cabins and rooftops and not enough room for trees. She was of the understanding that the land would be developed as a residential estate and that the development proposed would not provide for children to attend the local school and as a consequence it will suffer a decrease in numbers.

33 Mr Bush who’s property backs on to the subject site with an access road is concerned about the maintenance of the estate.

34 Mr D. Tymczuk is concerned about the appearance and the intensity of the development compared to the existing residential area and that the lot sizes are significantly below the existing lots of 500 to 700 square metres. He said that the traffic flow would be enormous and that the stormwater from the site would overload the existing infrastructure. He is concerned that other large parcels would potentially be developed for similar manufactured home estates and this would lead to a decrease in valuation of properties in the surrounding area.

35 Mr J. Dwyer expressed concern a decrease in values of properties and the inadequate road widths for emergency vehicles, in particular fire trucks.

36 Mr P. McDermott said that the density of the proposed development is 2.4 times other residential development in the area and there would be a concentration of traffic in Kemp Street. Furthermore he considered the visual impact of the fence was unacceptable he also had concerns about the lack of visitor parking and concerns for the safety of children. He is of the opinion that the proposed estate would be out of character with the surrounding residential area and that it would create a ghetto that does not conform to council standards.

37 Mr W. Bashford expressed concern that the proposed development did not provide financial security to future residents and that it targeted pensioners and that the proposal represented over priced cabins.

38 Mrs S. Walters said that the number of people who oppose the development in it self says a lot about the social impact of the proposal. She like many others expected subdivision of the subject land to take place as shown on plans when she purchased her property. She said the proposal represented cabin development and it would deter future development of the area for residential dwellings. She also expressed concern about the potential for the area to flood and the subject site represented a retardation basin. She expressed concern about the boundary fencing that would end up with graffiti and a gated community. Furthermore the increase of traffic from the development is not satisfactory and the density would be five cabins to one house block which she considered to be overcrowding and that a quality retirement village would be a better proposition.

39 Mr T. Gabriel said that he would have 4 cabins on his rear boundary and that a total of 152 cabins would ‘not be pretty’. The development represents 6 cabins on his block of 996 square metres and it would be a sea of cabins with a wall around it.

40 On behalf of the applicant evidence was given to the Court by: Mr Brian McDonald, architect planner and heritage consultant; Mr George Porter, consultant social planner; and Mr Citroen consultant civil engineer. For the respondent evidence was given by: Ms Kerry Gordon consultant town planner; and Mr Smedley consultant engineer.

41 The experts prepared joint reports and further conferred during the proceedings and provided concurrent evidence.

Traffic

42 A joint statement was prepared by Mr Smedley and Mr Citroen to address a number of issues including traffic flow and safety along Kemp Street; pedestrian footpaths external to the site; visitor parking; storage; construction; emergency vehicle access and intersection treatment.

43 Mr Citroen agreed that the traffic assessment has demonstrated the impact of traffic generated by the development will have a minimal impact on traffic congestion and safety in Kemp Street and is not expected to reduce the current level of service at the intersection with Dalbirra Place. Furthermore, Mr Citroen agrees that the assessment has made the appropriate provision for future growth in residential development and associated traffic generation to the north of Strauss Street and represents an accurate estimate of traffic volumes. As such he considers no further action is required on the issue of traffic flow and safety along Kemp Street.

44 On the issue of pedestrian footpaths external to the site Mr Citroen agreed that the agreement by the developer to provide the footpaths along both boundaries of the property would satisfy council requirements and resolve this issue.

45 On the issue of additional visitor parking within the site Mr Citroen accepts the quantum of parking satisfies the requirements of the Regulations and that the additional parking bays distributed throughout the site as proposed in Figure 2 provide a variety of further parking locations for visitors in close proximity to the destination unit. He also comments that there may also be the opportunity for visitors to park in the driveways of some units in front of the carport. He considers that the provision of the additional parking bays will satisfy visitor needs provided the bays are constructed as clearly defined hard standing parking areas separated from the internal road ways and signed for use by visitors.

46 The question of storage for caravans, boats and trailers Mr Citroen states that a secure area is proposed to accommodate up to 17 trailers thereby complying with the rule of thumb of one space for every 10 units for such storage provision. However he considers the irregular shape of the storage area may make it difficult to achieve the target storage capacity and a concept parking layout that also caters for caravans is considered necessary to demonstrate the adequacy of the proposed storage provision.

47 On the issue of the delivery of housing units in the construction phasing Mr Citroen states:

The preparation of a construction management plan that defines the sequence of unit construction is the most appropriate means of addressing this issue…

The need for future semi-trailer access to interchange units is considered so remote that it is not a matter that should be provided for in the village layout.

48 On the issue of the emergency vehicle access Mr Citroen states that:

The proponent has indicated that verbal agreement has been reached with emergency service authorities on emergency access procedures to the village.

Written confirmation of these agreements is still required to satisfy this council requirement.

49 The need for a concept design of the intersection access treatment Mr Citroen notes that the features of the proposed driveway layout include the following:

It caters for entry and exit movements by single unit buses, trucks and service vehicles;
Out of kerb radii of 13 metres, carriageway widths of 5.5 metres and the island width of 2.5 metres are all considered appropriate;
The proposed threshold treatment is consistent with that provided at Dalbirra Place;
It’s location directly opposite Dalbirra Place is as required by council.
The intersection will require regulatory, give way, signing and markings to complete the treatment;
The existing trees along the western of Kemp Street have the potential to obstruct visibility for existing drivers. Construction of the entrance should ensure sufficient tree removal to achieve the minimum site triangles.

50 In summary the traffic experts consider that all traffic related issues have been resolved:

Amenity and Character

51 The planners Ms Kerry Gordon and Mr Brian McDonald prepared a joint report.

52 For Contention 1, that is, “that the proposal will have an unacceptable impact on the amenity of the area as a result of its visual impact”. Ms Gordon is of the opinion that the desirable element of the existing character and the desired future character of the area is for a low density housing character interspersed with small pockets of scattered medium density housing equating to approximately 10% of the area. She is further of the opinion that medium density (that she considers this proposal is) development should be a minimum separation in the order of 50 metres and not concentrated in large areas. As such she considers that the proposal is completely inconsistent with the character of the area.

53 On the other hand Mr McDonald is of the opinion that the proposal is not comparable to medium density development and compares the floor space to dwelling site ratios for single dwellings and integrated housing in Albury. He finds the average FSR would be 0.38:1 which is less than the achievable FSR’s for other types of development permissible in the locality, including single dwelling houses. He states that while the number of dwellings at 152 is about twice the number calculated for single dwelling development and 10% medium density at 74 dwellings the proposed development will comprise dwellings averaging at least half the floor area of other types of family dwellings. He further states that while the development would have a different urban texture, this would be evident more in aerial views or distant views from high advantage points. However, given that the development would increase the range of housing choice and affordability in the area he does not see this as a problem. He also considers that the development can deliver a comfortable and secure form of housing at more affordable cost depends greatly on its planned use of smaller house sites reducing the land cost component per dwelling.

54 On the question of fencing Ms Gordon states that the character of the area with regard to front fencing is either of open fencing or no fencing with small pockets of higher fencing around medium density housing. The latter are specified in the Albury DCP where fencing is required to a public road to be constructed to have a maximum solid height of 1.5 metres and thereafter to be 50% open to a maximum height of 1.8. She is of the opinion that the 1.5 metre high lapped and capped fence with 300 metres of lattice is uncharacteristic in the area and would be a discordant element in the streetscape preventing causal surveillance and visually isolating the development from its surrounding neighbours. She further comments that it was not envisaged that a solid fence of this nature would enclose such large lengths on two streets.

55 On the issue of fencing Mr McDonald states that the on going security of residents and overall site management means that the proposed development will have a different presentation to the street. He further states that the fact the length of fenced and landscaped boundary would be greater than for other development is not disadvantageous in urban design terms. He said that the fence would be staggered up to 2 metres in its setback with landscaping on both sides of denser and higher plantings and mounds outside of the fence. He said it would be properly managed and maintained by the estate administration on both sides of the fence. He is of the opinion that a recreational walk way within the fence in a zone varying 4 to 6 metres wide with low shrub and ground covers and a lower 900 millimetre mesh fence to house sites would contribute significantly to social interaction and surveillance within the site. On the question of surveillance he says that given the widths of Kemp and Strauss Streets, as distributor roads rather than housing precinct access roads, that surveillance of the surrounding streets from the development itself is not seen to be an essential requirement.

56 On the question of streetscape presentation Ms Gordon states that the desirable elements of the existing character and desired future character of the area with regard to streetscape presentation are of dwellings addressing the street and not a monotonous row of structures of the same design, materials and setbacks. She comments that the existing area is characterised by a range of dwelling types, architectural character, materials, colours and setbacks. In her opinion effectively turning their backs to the public roads results in an unacceptable level of casual surveillance and provides a barrier to interaction between the estate and surrounding residential areas. As such she considers that the streetscape presentation of the proposal is not compatible with the character and the amenity of the neighbourhood.

57 Mr McDonald states that the fundamental disagreement centres on the fact that the development does not have houses presenting to the street but a fence and landscaped buffer zone enclosing the site. He is of the opinion that this form of development is predicted by the detailed controls of the Local Government Regulation 2005 wherein a minimum setback of dwelling sites of 10 meters from road frontages is required, or some form of screening, fencing or enclosure. In the event that a council might allow a lesser distance of 10 metres, that does not include screening, fencing or enclosure, when the distance is 10 metres or more.

58 Mr McDonald states that this form of housing is not comparable to conventional residential development and that the SEPP relies on the ability to achieve a number of dwellings sufficient to support the related infrastructure and management and the ability to create smaller than usual houses on smaller than usual sites to achieve affordability compared to conventional single house development. Furthermore, he is of the opinion these estates rely on a secure living environment and community atmosphere and he considers it inappropriate to impose controls that do not anticipate this. As such he states that it should be judged against its performance in terms of SEPP 36 and the Local Government Regulation with which the proposed development complies.

59 A joint report on contention 2, “the proposal does not provide sufficient or adequate site facilities; and contention 3” the proposal is not sufficiently proximate to off site services”, was the subject of a joint report by Ms Kerry Gordon and Mr George Porter. It was agreed that as the applicant has agreed to the condition, limiting the occupation of the dwellings such that at least one resident is over 55 years, then facilities for younger persons are not required to be provided on site.

60 Ms Gordon states that landscaping is separately identified from community amenities in the Regulation and in her opinion unless landscaping can be used for recreational or for other communal purposes it would not constitute a community amenity. She states that the central area containing the community facilities has an area of 3,875 square metres. This facility with the managers residence and storage area, equates to 8.6% of the site. She is not satisfied that the walking track around Strauss Street and Kemp Street should be included as a community amenity because the walking track is located between a high fence facing the streets, and 1.5 metre high back fences to the dwelling sites, and such a design would not afford an appropriate level of safety to the development. Furthermore, she is of the opinion that this space for a walking track would result in unacceptable overlooking of the private open space areas of the dwelling sites that back onto Strauss Street and Kemp Street. Ms Gordon notes that the proposal is to provide for five additional landscape areas but in her opinion they would need to be expanded and located away from adjoining residential properties outside the estate. In Ms Gordon’s overall opinion she considers that the on site provision of community facilities including recreational facilities is inadequate and she has recommended a number of conditions that would resolve the issue, however, these are not agreed to by Mr Porter.

61 Mr Porter states that in his opinion well over 10% of the site will be available for community recreation and activities. He calculates 15% of the area of the site will be available for community areas. That is 7,900 square metres. This is made up of: the central community area - 3,875; the managers residence - 258; the peripheral buffer zone – 2,488; miscellaneous open areas – 776; and storage area of 505 square metres.

62 On the buffer zone where the walking track and seats are proposed he considers that this space is beneficial for the reasons that it not only provides an open space with visual and urban design benefits for residents but also it provides a substantial area for recreation and provides a walking track and seating within landscaping. He notes that the bulk of the landscaping is on the external side of the fence and is not included in the calculated area. He considers that a 5 metre wide strip is a good width and entirely suitable for recreation for instance for walking or for exercising dogs. He said that this space also performs a community safety function that ensures that the periphery of the site is an active zone and that this will help prevent crime. He disagrees that the recreation zone is a narrow corridor whose users will adversely effect the amenity of residents’ private space and the adjacent rear gardens. He anticipates that many of the adjoining residents will welcome the fact that other residents are passing by and take the opportunity to go out into the garden and have a chat over the fence. He said social support and a sense of community is one of the key attractions of this type of development for older people. As for the internal rooms at the rear in the dwelling these will not be overlooked and will be some metres away and users of internal roads of the front of the homes will pass much closer to internal rooms.

63 With respect to the suitability of the small local open space areas, Mr Porter considers they are suitable for recreational use and particularly for informal socializing. He disagrees that there is a need for an expanded local open space for another barbeque facility because they are better located in the central community area.

64 Like wise he does not agree with the contention that a community garden should be provided as there is no basis to seek this provision within a manufactured home estate and it is certainly not needed because any potential resident seeking a small space for a garden will be able to acquire a larger dwelling site to provide for this on their own parcel of land.

65 He notes that Ms Gordon accepts that 505 square metres would constitute a community facility for the storage of boats, trailers etc. However he does not agree that it should be free of charge as this would lead to goods being dumped and abandoned there and a small fee should be permitted.

66 On the question of the need for a convenience store Mr Porter agrees that essential items should be available for sale at the management office. However, he does not consider that an on-site convenience store is necessary and it would be uneconomic. He notes that there is an existing local store a short walk from the site, 250 metres by foot and 600 metres by car and this will more than for fill residents needs. Furthermore he states that as in any other residential situation residents will do the bulk of their shopping at a supermarket because prices are lower. He states the population catchment required to support a corner store has been found to be several thousand people in new residential developments. He also notes that it is usual for the management office of a manufactured home estate to stock a small range of very basic items and for the residents committee to decide what items they would like to have available and he considers this to be the appropriate course of action.

67 On Contention 3 it was agreed that the range of services and facilities provided within the area were appropriate and accessible by public transport (time tables and route maps of the two bus services are provided).

68 While it was agreed that a community bus is appropriate it was not agreed as to how it should be operated. Ms Gordon considers that guidance on the acceptability of access to off site facilities and services can be provided by the consideration of the provisions of the Seniors Living SEPP which sets out standards for accessibility for the least mobile members of society (over 55 years and disabled persons). She considers given the target market and an agreed condition limits occupation to this category of persons. Ms Gordon says the Seniors Living SEPP requires facilities and services to be within 400 meters of the site or for public transport to provide accessibility to services with a bus stop being within 400 metres. She agrees that access to the bus stops are within 400 metres however the level of service will provide for shopping and other trips but caters poorly for entertainment travel and travel on Sundays. As such she considers the community bus should make a minimum one trip each way to Albury town centre on Thursday, Friday and Saturday evenings and also to places of public worship on Sundays. She considers the service should be made available on booked request from residents at a reasonable cost and that the service does not need to run unless residents have booked the same in advance. She considers that the manager should be responsible for organising the service.

69 Mr Porter notes that there is agreement as to the range of external services and facilities in the district including a local shop and local tavern and churches and shopping centre and that there is also a frequent bus service linking the site to these facilities. He concludes that the requirements of the SEPP are therefore met. He does not consider a comparison with the Seniors Living SEPP appropriate but he notes that the availability facilities and public transport would fully satisfy the Seniors Living SEPP requirements. He notes that the Seniors Living SEPP requires only one bus service a day in each direction on weekdays.

70 He states that the applicant has proposed a village bus not because there is a need for it but as a lifestyle attraction to the potential residents. It would be acquired as a cost to the development and run as a community service by and for residents with overheads met by site rent charges. Mr Porter considers that the condition proposed is inappropriate because:

The provision of a village bus is provided voluntarily as a bonus and there is no requirement or expectation that a bus should be provided in association with this type of development.

Any requirement to use a village bus to ferry one or two residents to a restaurant for dinner effectively defines it as a taxi service. This is entirely inappropriate as there are existing taxi services in the area.

The use of the bus will be determined by the residents themselves and it is reasonable that they should decide when the bus is to be used.

71 Mr Porter further comments that the Residents Committee, that must be set up under clause 66 and 66A of the Residential Parks Act has a duty to: improve the lifestyle and well-being of the residents of the residential park and as such it will be responsible for decisions about the best use of the bus.

Findings

72 In my assessment of the development application for a manufactured home estate I have considered all the evidence to the Court including that of the resident objectors as well as the experts. I have considered the application in the context of section 79C of the Environmental Planning and Assessment Act 1979 and in the context of council’s local planning regime as well as SEPP 36.

73 I accept the respondent’s submission that the ‘federation theme’ proposed and the precise form and style of manufactured home to be placed on each site is uncertain as individual approval is not required for same if the ‘manufactured home estate’ is approved. Therefore my assessment has not had regard to the detailed design elements and range of dwellings referred to in the applicant’s evidence. The development application must be assessed on the basis of 152 individual sites within the manufactured home estate with the landscaping and internal road and open space system only.

Traffic and Parking

74 On these issues I note the concerns of the local residents and further to the joint statement of the experts further evidence was adduced in Court on this issue. I am satisfied that traffic and parking has been comprehensively addressed and I accept the experts advice. Mr Citroen and Mr Smedley agreed that the traffic assessment has demonstrated the impact of traffic and generated will have a minimal impact on traffic and safety in Kemp Street and the intersection with Dalbirra Place.

75 Mr Citroen accepts that the amount of parking satisfies the requirements of the regulations and notes also that additional parking bays have been distributed through out the estate.

76 The question of storage for caravans, boats and trailers complies with the standard however Mr Citroen notes that a concept parking layout should be prepared.

77 The applicant has provided a Plan of Management Exhibit P for the removal of manufactured homes from an area within the estate where it is difficult or impracticable to access the home site with a semi-trailer. This matter is no longer pressed by the council.

78 For access by emergency vehicles it is noted that while verbal agreement has been reached with emergency service authorities with access to the estate written confirmation is required. I am satisfied on the basis of the evidence to the Court that it is unnecessary for the village to have 24 hour management and that satisfactory arrangements can be entered into with emergency services to access the estate.

79 The experts agreed that the concept design of the intersection access treatment includes a number of criteria and as such the experts do not consider this to be an issue as it can be appropriately conditioned.

80 The experts agreed that delivery of the housing units and construction phasing can be addressed in a construction management plan to be approved by the council prior to commencement of any construction on site.

Impact on amenity and character of area

81 Ms Gordon states that the critical issue in relation to this contention is whether the appearance of the development will be compatible with the character and amenity of the surrounding neighbourhood.

82 Mr McDonald considers that the estate will introduce a different form of housing to the locality but would add another housing option to the existing mix of residential accommodation. Furthermore he states that as the building sites are well in excess of a 130 square metres allowed under the regulations the average density per site would be less than the maximum permissible for single dwellings and integrated housing and comparable with the actual densities of other forms of development existing in the area. He considers the project represents an efficient orderly and sustainable development and it would not be intrusive or aesthetically displeasing.

83 I am persuaded by Mr McDonalds evidence and I have concluded that the proposed development while it will represent a different form of development it will not be antipathetic or incompatible or incongruous with the surrounding environment of residential dwellings and the undeveloped land and open space. It could be seen on the view that there is a mixture of architectural styles and densities and age of the residential development surrounding the subject site and the proposed development will not appear as an aberration.

84 SEPP 36 provides for ‘manufactured home estates’ and these are permissible in the Living Area Zone of the Albury LEP with consent. The proposed development will be read as an integrated residential development, as are retirement villages, and it must be accepted that while these represent a different form of development this is not the test. But rather there must be an assessment that includes whether the proposal will have adverse impacts on surrounding development and whether it will be out of character or incompatible.

85 The scale and bulk of the manufactured homes to be located on the individual sites will generally represent smaller dwellings than the existing surrounding homes but this is not a reason to refuse the application. The overall density is appropriate and could be contemplated by Council’s planning regime and the proposal is not an overdevelopment of the site in my assessment.

86 I do not accept Ms Gordon’s evidence that medium density development should only be scattered throughout the residential area. Clearly the zone contemplates many uses. That is, many residential forms of development as well as non residential uses. As for a retirement village it would be unrealistic to expect a smattering of the provision of such units within a residential zone on the basis of a 10% distribution. Similarly it is also unrealistic and not consistent with the provisions, aims and strategies of SEPP 36 for a manufactured home estate in providing affordable housing.

87 On the issue of the streetscape presentation Ms Gordon considers that the dwellings should have frontage to the major external streets however in my assessment this would be undesirable from an urban design point of view given the width of the sites, and unnecessary. It could lead to the external streets being visually impacted and dominated by carports and vehicles. Alternatively orienting the dwellings to the major roads could require rear lane access from within the estate and diminish the sense of community and place sought within the manufactured home estate. Furthermore, the proposal does not create a precedent and is not inconsistent with other residential development in the adjoining area.

88 The issue of the timber palling fence and its presentation to the major external streets was a concern to the Court and this was the subject of discussion during the proceedings. At the end of the proceedings the applicant agreed to the provision of an open palisade style of fencing on the boundary of the site with Strauss and Kemp Streets.

89 In my assessment an open form of fence to a maximum height of 2 metres to provide for appropriate security is a desirable outcome. However, in my assessment such a fence should still be generally located as proposed for the timber fence. That is, a variation in setback from the boundary and the landscaping and mounding as proposed. I am satisfied that the visual presentation to the external streets will be enhanced by this change. I am satisfied that on balance having regard to the landscaping that adequate privacy can also be achieved for the rear yards of the sites within the estate.

90 The proposal has the advantage of a planned estate that includes landscaping and while this may differentiate it from surrounding development, in my assessment this would not warrant refusal of the application. As indeed the landscaping could only be seen to enhance and contribute to the amenity of the general area, consistent with the zone objectives.

91 In terms of clause 8 (2) I must be satisfied that the carrying out of the development is consistent with the objectives of the zone. These objectives are cited above. In my assessment the proposed development satisfies the principal of the Living Area Zone. That is to identify land for residential land uses and other land uses that are compatible with residential uses.

92 With respect to the particular objectives in clause 16(2) the proposed development is consistent with these objectives. Council contends that objective (d) and (f) are not satisfied however in my assessment the proposed development is consistent and provides “freedom from intrusive, offensive, hazardous, aesthetically displeasing and environmentally unsatisfactorily development”. The proposed development will not be aesthetically displeasing and will not be visually offensive and will read as an integrated development with community facilities and providing a landscaped buffer to the adjoining areas that incorporates an active walking track to provide visual surveillance. Similarly the proposal is not inconsistent with (f) “to recognise and improve the residential character (details which are provided in development control plans)”. In this regard the master plan for the proposed estate recognises the interface of the proposed development with the surrounding residential area and provides appropriate landscaping.

93 I agree with Mr McDonald that the proposed development is consistent with the objective to promote the “efficient, orderly sustainability of the City”. Furthermore it promotes an adequate range of choice of housing types, particularly affordable housing to meet the needs of the community consistent with objective (e) of the Living Area Zone.

94 In my assessment the proposed manufactured home estate is not discordant or incompatible with the living area zone. The definition of consistent in the Macquarie Dictionary is “agreeing or accordant; compatible” and the definition of compatible is “1. capable of existing together in harmony and 2. capable of orderly, efficient integration with other elements in a system”. In my assessment while the proposal is not the same as other housing in the neighbourhood it is capable of existing in harmony.

95 In my assessment I have made the DCP a central and focal consideration I note that there is not a specific DCP or reference in the DCP to manufactured home estates nonetheless I have had a holistic reading of the DCP to guide my assessment. In terms of matters for consideration in Chapter C the proposal is compatible with the character and the amenity of the surrounding neighbourhood and the proposal will provide adequate community services and facilities where possible and it is noted that a section 94 contribution is also required.

96 In terms of compatible development the proposal is not “out of scale or adversely bulky or contextually inappropriate to neighbouring residential development”. The proposed development is not listed as an incompatible land use in the DCP.

97 I appreciate that many of the objectors see the proposal as a different form of development but that does not mean that it is inconsistent or incompatible and the planning framework permits the development subject to a merits consideration. In this regard the proposal is not a minimalist development in terms of a manufactured home estate and the design recognises the context of the surrounding area. I am satisfied there will be no significant adverse impacts on the environment, both natural and built or social or economic impacts in the locality.

98 Furthermore in terms of the assessment under section 79(C) I have concluded that the site is suitable for the proposed development and I have considered the submissions made and the public interest and in my assessment these would not warrant refusal of the application.

99 In my assessment under the SEPP 36 the proposal satisfies the aims of the Policy and these are cited above. In particular the proposal promotes the aims of providing an alternative to traditional housing arrangements and providing affordable housing in a well designed estate and the proposal protects the environment surrounding the estate by virtue of its design and proposed management structure.

100 In my assessment under clause 9 of the SEPP the matters for consideration (cited above) are satisfied. This includes adequate transport services and sufficient community facilities and services are available and reasonably accessible to the future residents. In terms of subclause (2) I have also considered the cumulative impact of the proposed development and other manufactured home estates in the locality, of which there are none. I have also had regard in my assessment to the Local Government Regulation.

101 The council contends that the proposal does not provide sufficient or adequate on site facilities in accordance with clause 2(e) and 9(1)(c) of the SEPP. Having regard to all the evidence to the Court I am satisfied that the proposed development provides sufficient and adequate internal facilities and that there is access to a central community facilities and services whether situated in or outside the estate and these services are available and reasonably accessible to the residents.

102 Based on the evidence to the Court the applicant being prepared to accept the condition that one resident be over 55 years of age and the facts provided by Mr Porter on the availability of services and his assessment of community facilities and open space for the development the proposal in my assessment is satisfactory.

103 Clause 4 of SEPP 36 establishes that in the event of any inconsistency between planning instruments, then the SEPP prevails to the extent of that inconsistency.

Conditions

104 During the proceedings the question of whether the landscaping would be sustainable given the water restrictions prevailing in the City was discussed. The landscaping of the proposed development will make a positive contribution and therefore it is necessary to ensure that such landscaping is established and maintained for the life of the estate and this will require an irrigation system to be supplied by the capture of rainwater on the site. In the circumstances a deferred commencement condition for the design and capacity of same is imposed.

105 A deferred commencement for an amended plan is to be submitted for the intersection of Kemp Street and Dalbirra Place as a deferred commencement.

106 I have also determined that it is necessary to submit amended plans as part of a deferred commencement for the mangers residence to be located adjacent to the Kemp Street entrance and that these plans should be approved by the council prior to the consent operating.

107 I have determined that the plan should be amended to incorporate the storage area on the southern boundary of the site to the south of dwelling site 12 and 22 for use by residents. However I am persuaded by the applicants evidence that it is not necessary or appropriate to make this at no cost to residents for the storage of boats, trailers etc.

108 For the general conditions in Part B the applicant objects to a restriction under section 88B of the Conveyancing Act, however I am satisfied that such a restriction is appropriate in the circumstances of this case as it is for a proper planning purpose as the assessment has been based on the estate catering for 55 years of age and over because of the facilities provided on site as opposed to parks and playgrounds that maybe found where there is no age restriction. I acknowledge that a limitation of one resident being 55 years and over would not prevent children being on the estate but these would be far few in number than if this restriction was not imposed. I also acknowledge while the lease agreement is to include a clause to this effect for the sale of sites at the same time if the whole of the estate was to be on-sold then the future owner of the estate would be aware of this restriction. The judgment of Her Honour Pearlman J in Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70 states that where a restriction is imposed for a proper planning purpose then the use of such an instrument is appropriate.

109 Condition A7 for a community garden is deleted as I am not persuaded by Ms Gordon’s evidence that it is necessary to impose such a condition as there would appear to be no basis for same.

110 Condition A10 to A27 the applicant objects to the imposition on all of the dwelling sites in the estate the applicant will accept 5% of sites to comply with these conditions but considers that it is onerous and would frustrate the proper operation of SEPP 36 in providing affordable housing for all the dwelling sites to be required to comply with the Seniors Living State Environmental Planning Policy. It was submitted on behalf of the applicant that the council is seeking for the estate to provide for over 55 year olds and the applicant is prepared to accept this restriction however, it is unreasonable to require all of the provision under Seniors Living SEPP to apply to the subject development application. In this regard I am persuaded by Mr Porters evidence that it is not necessary for all of the dwellings and sites to be provided with disabled facilities. He stated to the Court that “because of the design and use of materials for the dwelling that the adaptation of the dwellings for disabled use could be carried out on a needs basis at the time required”. I accept his evidence therefore I have determined that the condition A10 through to A27 should only relate to 5% of the dwellings and sites.

111 The condition to maintain the Strauss Street entry for the life of the development is considered appropriate and not onerous and I accept council’s submission in this regard.

112 The regulations require that the estate be managed and it is not necessary in my assessment that the development be provided with on-site 24 hours management 7 days a week. The need to access the site for emergency service providers can be accommodated by other mechanisms including swipe cards and the installation of a boom gate and in my assessment it is not necessary for 24 hour management to be available to residents and emergency services.

113 The condition relating to the walking track has been amended to delete the current boundary fence as shown on the plan to be replaced in the same location with palisade/open fencing to a maximum height of 2 metres. I am persuaded by the applicant that for the secure management of the estate that a fence is required. Given the size of the rear yards being of a smaller nature than the traditional size allotments then the communal walking track provides increased amenity and opportunity for social interaction in a landscaped setting. A palisade fence will provide the necessary security while at the same time providing an appropriate interface with the adjoining neighbourhood.

114 The condition proposed by the council for a communal barbeque area to be increased in size to include dwelling site 13 will in my assessment enhance the amenity and provide an alternative community facility for the estate and the condition is therefore imposed.

115 The requirement for a community bus to be available for use by residents at a reasonable cost is not disputed. It would also seem to be reasonable that such a bus should be 12 seats or less so that it may be driven by residents without the need to acquire a special licence.

116 I have attached additional conditions, and these are shown in bold in Annexure A. This includes: the timing of the provision of the central community facilities to be constructed and operational before the 40th manufactured home is placed on the estate; an occupation or interim occupation certificate can only be issued following completion of works for the internal roads and all the landscaping; and approval is required for the operation of the estate under the Local Government Act.

117 The Local Government Act in Chapter 7 sets out the approval requirements for manufactured home estates and when such approvals lapse or may be revoked or modified. This provides greater certainty in the operation and ongoing management of manufactured home estates. This is a separate process and additional to the requirements to comply with the conditions imposed as a part of this development consent.

Orders

118 Accordingly on the basis of my assessment above the formal Orders of the Court are:

___________________

J S Murrell
Commissioner of the Court
ljr

ATTACHMENT 1

Extract from Local Government Regulation No [2005-486]
‘Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings’

Division 3 Manufactured home estates

Subdivision 1 Land and dwelling site requirements

Cl 12 Minimum size of estate

A manufactured home estate must not have an area of less than one hectare or, if a lesser area is permitted by a relevant environmental planning instrument, that lesser area.

Cl 13 Community amenities

Cl 14 Size of dwelling sites

A dwelling site must have an area of at least 130 square metres.

Cl 15 Site identification

Subdivision 2 Setbacks

Cl 16 Dwelling sites to have road frontage

A dwelling site must have vehicular access to an access road.

Cl 17 Setbacks of community buildings

Cl 18 Setbacks of dwelling sites from road frontages

Cl 19 Use of buffer zones

Subdivision 3 Roads

Cl 20 Entrance and exit roads

portion

of

Cl 21 Width of roads

Cl 22 Speed restrictions as part of road design

Cl 23 Visitor parking

Cl 24 Visitor parking for people with disabilities

Parking facilities-Off street parking.

Cl 25 Road surfaces

All access roads, including all passing and parking bays, must have an all-weather sealed or other surface finish specified in the approval for the manufactured home estate, and must be adapted to the topography to allow for adequate drainage and to eliminate excessive grades.

Cl 26 Lighting

All access roads must be adequately lit between sunset and sunrise.

02/11/2007 - para 108 typographical error on-sold - Paragraph(s) paragraphs renumbered from para 85

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Citations

Tresize Investments Pty Limited v Albury City Council [2007] NSWLEC 686

Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

5

Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70

CITATION:	Tresize Investments Pty Limited v Albury City Council [2007] NSWLEC 686 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT Tresize Investments Pty Limited RESPONDENT Albury City Council
FILE NUMBER(S):	10412 of 2007
CORAM:	Murrell C
KEY ISSUES:	Development Application :- Section 97 appeal for Manufactured home estate comprising 152 dwellings. Traffic, parking, landscape, fencing built form and design incosistent with streetscape and character of existing residential area.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Albury Local Environment Plan 2000 Albury Development Control Plan 2000 State Environmental Planning Policy No. 36- Manufactured Home Estates Local Government Regulation No. [2005-486] entitled Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings
CASES CITED:	Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70
DATES OF HEARING:	23/07/2007, 24/07/2007 and 27/07/2007
DATE OF JUDGMENT:	31 October 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr S. Griffiths, solicitor of Pike Pike and Fenwick RESPONDENT Ms S. Duggan, barrister Instructed by Mr M. Rogers of Kell Moore Solicitors