Baclon Pty Limited v Tweed Shire Council

Baclon Pty Limited v Tweed Shire Council - [2013] NSWLEC 1239 - NSWLEC 2013 case summary — Zoe

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Background and the proposal 6Two development consents have been issued by the council providing for the establishment of the estate. Development consent 95/442, issued on 12 April 1996 (the 1996 consent), granted consent for a manufactured home estate comprising 234 sites in 7 stages including an administration centre, community facilities and manager's residence. The site had been filled and the lake formed prior to the grant of that consent. 7A subsequent consent, K99/1447, was granted for twenty additional home sites on 10 December 1999. 8DA09/0727, was lodged with the council in November 2009. The Joint Regional Planning Panel (JRPP) was the consent authority. The application sought consent for the addition of 45 new manufactured home sites on the northern side of the lake. The JRPP refused consent. 9The subject application was lodged with the council on 22 September 2011 as integrated development and sought consent to add 32 new manufactured home sites on the northern side of the lake. The installation of each dwelling does not form part of the application however, indicative plans have been lodged indicating potential layouts. Each home would be constructed off-site and transported and installed within the site and would contain two bedrooms, a study/media room and a deck as well as a garage. 10To facilitate flood free access to the home sites from within the existing estate, filling around the western and northern boundary of the site is required. Depth of fill varies from approximately 2 to 3.5m and would be contained by retaining walls and landscaped batters. An internal road would be constructed on the filled area to provide access to the home sites. The northern edge of the lake would be retained by walls at least 2.9m in height above the water line of the lake with pier foundations within the lake to support the building platform required to support the proposed new dwellings. Those dwellings would be partially cantilevered over the existing lake and in part supported by the fill material, retaining walls and pier structures. 11A lakeside recreation area, additional carparking for 15 cars, an emergency access point from Tweed Coast Road, tree removal, site landscaping, construction of acoustic walls, revegetation and provision of compensatory habitat also forms part of the application. Three areas have been identified for that planting, Area A, along the south-western edge of the lake, Area B at the north-eastern edge of the lake and Area C, to the north of the four most northern existing dwellings on the eastern side of the estate. 12Council refused the application on 26 October 2012. Reasons for refusal are as follows (1)The proposed development is considered to have a detrimental impact on the natural and built environment and detrimental social and economic impact in the locality as the development will result in

Loss of visual amenity for existing residents in the development because of loss of vegetation and change of view to urban environment.
Loss of amenity for existing residents due to loss of access to the nature walk.
Loss of amenity for existing residents due to increased noise from the proposed residences affecting the open space on the southern side of the lake.
Loss of visual amenity to adjoining properties due to the impact of the proposed fill, retaining walls and noise attenuation fencing.
There is insufficient information to demonstrate that the development will not have a negative impact on flooding affecting neighbouring properties.
The noise level impact assessment indicates noise from the adjoining trotting track will exceed background noise levels. (2)The site is not considered suitable for the proposed development for the following reasons:
The proposed development will have a negative impact on the natural environment as the site is of ecological significance as part of a regional wildlife corridor and in providing habitat for wading birds and other wetlands species, a number of which are the listed as threatened on the Schedule of Threatened Species Conservation Act 1995 (TSCA) and significant parts of the existing vegetation is proposed to be removed.
A geotechnical report addressing the potential impact of the development has not provided certainty that the site was suitable for the development.
The design of the internal road as a combined road and walkway will adversely affect the safety and amenity of all residents.
The development requires extensive fill and alterations to the natural landform and the proposed cantilevered buildings overshadowing the lake, which demonstrates that the proposal is an overdevelopment of the site

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The planning controls 13The site is zoned 1(a) Rural under the Tweed Local Environmental Plan 2000 (LEP). A manufactured home estate is prohibited in that zone and the application relies on existing use rights. The objectives of the 1(a) zone are: Zone objectives Primary objectives • to enable the ecologically sustainable development of land that is suitable primarily for agricultural or natural resource utilisation purposes and associated development. • to protect rural character and amenity. Secondary objectives • to enable other types of development that rely on the rural or natural values of the land such as agri- and eco-tourism. • to provide for development that is not suitable in or near urban areas. • to prevent the unnecessary fragmentation or development of land which may be needed for long-term urban expansion. • to provide non-urban breaks between settlements to give a physical and community identity to each settlement. 14Tweed Shire Council Development Control Plan 2008 (DCP) also applies to the site. 15Relevant sections of the DCP are Part A - A1 - Residential and Tourist Development Code; A2 - Site Access and Parking Code; A3 - Development in Flood Liable Land and B4 - West Kingscliff. 16The table to Clause A3.2.6 Emergency Response Provisions - (b) Habitable Development of the DCP contains specific provisions for caravan parks and moveable dwellings. The DCP adopts the LEP definition of caravan park (clause A3.1.5) and a moveable dwelling is defined in Schedule 1 to the LEP as including: (a)Any tent, or any caravan or other van or other portable device (whether or not on wheels or not), used for human habitation, or (b)A manufactured home. 17Where new development is proposed (except for caravan parks and moveable dwellings), all new development is to have permanent high level road/pedestrian evacuation route(s) to land above PMF level and/or adequate PMF refuge, subject to the recommendations of an acceptable Flood Response Assessment Plan. In relation to the issue of evacuation versus shelter in place for Residential Development, Note 3 states: Evacuation of occupants is the preferred risk management approach for residential developments proposed below PKF level. Adoption of evacuation as the risk management response for a development requires a Flood Response Assessment Plan that specifically addresses the following evacuation requirements:

Expected number of occupants/evacuees
Typical demographics of evacuees (families with children, retirees etc)
Mode of transportation (private vehicles, bus provide by facility etc)
Intended evacuation destination
Level of service provided by evacuation centre (medical, security, accommodation etc)
Any special requirements for evacuation centre to cater for evacuees (food, water, waste, medicines etc) In the above requirements are not able to be satisfied for all future occupants of the development, a PMF refuge shall be provided in accordance with design criteria in Note 4. 18Note 4 establishes minimum requirements for a PMF refuge. These include the floor level to be at the PMF level; Minimum floor area is 9sqm based on a single bedroom occupancy with an additional 4sqm for each additional bedroom; Must comply with Building Code of Australia (BCA) with external components rated appropriately for storm, wind and moisture; Minimum 2.1m floor to ceiling/roof frame height; provision of permanent internal and external access (may be a fixed ladder) with external access unobstructed for emergency boat access during flooding; Must have natural lighting and ventilation; Support structures must be capable of withstanding flood forces and continuous submergence for up to one week; Must have a cupboard storage area for flood emergency kit to service all residents with provisions of isolation up to one week. 19For development of existing caravan parks, the DCP states that no expansion of existing facilities by the addition of moveable dwelling sites is permitted, unless a permanent high level road evacuation route to high land external to the site is available, or high land internal to the site can be accessed by the additional sites via road and/or pedestrian routes. 20The site is proposed to be zoned RU2 - Rural Landscape under draft Tweed Local Environmental Plan 2012. The development would also be prohibited under the provisions of that plan. The draft plan has been exhibited, adopted by council and forwarded to be Minister to be made. The parties agree that the plan in both imminent and certain in relation to the future zoning of the land. A minimum allotment size of 40ha would apply within that zone. 21Local Government (Manufactured Home Estates, Caravan Park, Camping Grounds and Movable Dwellings) Regulation 2005 (LGRegulation) provides standards for manufactured home estates, manufactured homes, the siting of manufactured homes so as to promote the health, safety and amenity of the occupiers of those homes. 22The development is Integrated Development and required the concurrence of the Rural Fire Service (RFS) and the Department of Environment, Climate Change and Water (DECCW) as the site is located in a bushfire prone area and within close proximity of a waterway. Both authorities have issued General Terms of Approval.

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Existing use rights 23Existing use rights provisions are contained in Part 4, Division 10 of the Environmental Planning and Assessment Act 1979 (EPAAct). Clause 108 states: (1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to: (a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and (b) the change of an existing use to another use, and (c) the enlargement or expansion or intensification of an existing use. (d) (Repealed) (2) The provisions (in this section referred to as the incorporated provisions) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument. (3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force. (4) Any right or authority granted by the incorporated provisions or any provisions of an environmental planning instrument extending, expanding or supplementing the incorporated provisions do not apply to or in respect of an existing use which commenced pursuant to a consent of the Minister under section 89 to a development application for consent to carry out prohibited development. 24Part 5 of the Environmental Planning and Assessment Regulation 2000 (Regulation 2000) makes provision for existing use rights and, in accordance with the provisions of clause 41: (1) An existing use may, subject to this Division: (a) be enlarged, expanded or intensified, or (b) be altered or extended, or..... with consent. 25For these provisions to apply to the application, I must be satisfied that the site enjoys existing use rights. It is common ground that this is the case and, having considered the submissions made by the parties on this issue and reviewed an advice provided as Exhibit N, I am so satisfied. The area of the site that is to be developed has, at all times since the estate was established, been used as part of the estate. 26The relevant date against which the use must be measured is 7 April 2000, the date the LEP was made. Prior to that date, the provisions of Tweed Local Environmental Plan 1987 applied to the site and whilst the same zoning applied (Rural 1(a)), a manufactured home estate was not prohibited but rather, permissible with consent as an innominate use. The 1996 consent was issued under the provisions of that plan. The development approved included works to that part of the site now the subject of the application. That work involved landscaping to provide the open space and pathway network enjoyed for recreational use by residents of the estate. 27Having regard to the authority provided in Lemworth v Liverpool city Council [2001] 53 NSWLR371 and Salvation Army v Newcastle City Council [2000] NSWLEC36, I am satisfied that the whole of the site enjoys existing use rights for the purpose of a manufactured home estate.

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Traffic and parking 33Expert reports on traffic and parking were provided by Mr P Trethewey for the applicant and Mr C McLaren for the council. They were not required for cross-examination. 34Their joint report considered amended plans that increased the width of the proposed access road from that originally included with the development application. That road consists of a 6.0m wide carriageway dedicated for vehicle use and a separate minimum 1.2m wide footpath (delineated from the carriageway by a raised kerb with a height difference of 100mm) for pedestrians. They agree that the new road design resolves potential conflicts and adverse safety and amenity issues that existed with the previous shared (dual) use proposal and that the proposed estate road would sufficiently cater for the passing of standard car traffic and council's garbage truck and incorporated adequately spaced 1.5m wide wheelchair passing areas that will provide sufficient space for pedestrians and wheelchair users. 35The traffic experts agree that the elevation of the road and its associated batter require the installation of protective barriers and that this infrastructure should be provided external of the 7.2m wide corridor required for the vehicle carriageway and footpath, addressed through consent conditions. They also agree that the same condition should be applied to the low-level bollard street lighting. 36The experts agree that the 15 additional parking spaces (including one accessible space) is acceptable and have recommended appropriate conditions to ensure those spaces are constructed in accordance with the appropriate Australian Standards. 37Construction access to the site is proposed directly off Tweed Coast Road and the experts have agreed that the location of that access could provide safe and adequate access to the site during construction and recommend a Construction Traffic Management Plan with relevant Traffic Controls Plan be prepared and approved by the council prior to the issue of a Construction Certificate. 38The number of parking spaces proposed exceeds the requirements of the LG Regulation. Despite this fact, the experts agree that there is sufficient area available within the proximity of the community facility to provide further parking parallel to the main access road.

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Flooding and drainage 39The experts agree that the design and 1 in 100 year flood level for the site is 3.1-3.2mAHD, factoring in an allowance for climate change, increases to 3.5m and the PMF is 8.0m AHD. The 100 year velocities are generally less than 0.2m per second, flood depths in fill area are generally 1m -2m and the development area is high hazard. 40In assessing whether a flood free evacuation route is available from the site, the experts agree that inadequate survey levels are available to define the lowest road levels along the proposed evacuation route. From the information available, they have formed the opinion that the egress route from the site is inundated in a 100 year event and, if residents don't evacuate ahead of the egress route becoming inundated, they may become isolated on site. If residents become isolated on site, or for whatever reason they do not evacuate, they would be exposed to very serious safety risks in extreme events, it is possible for the whole site and the proposed dwelling to be overwhelmed by floodwaters. This situation is the same for the existing dwellings on the site. 41Dr Martens says that there would be approximately 2 days warning of a PMF event and 2.5-3.5 hours to evacuate. During a 100 year event, he says that the depth of water across the evacuation route through the adjacent residential subdivision would be no greater than 300mm and would be low flow so it would be possible to drive through it. The experts did not agree on the peak rate of rise. Mr Bewsher says it could be 30cm in an hour whereas Dr Martens says it is around 15-20cm/hour in a PMF event. 42In response to these findings, the applicant proposed through the hearing, the construction of a flood refuge as a second level above the main community building. After much deliberation during the hearing, it was agreed that this refuge should have a minimum floor area of 150sqm, be fitted with toilets, kitchenette with a flood emergency kit provided. Mr Bewsher noted that this is contrary to the DCP requirement that does not consider flood refuge an appropriate solution to caravan parks (including manufactured homes as per the glossary to the DCP) but rather, requires a permanent high level road evacuation route to high land external to the site is available. 43No details of the design, location, visual appearance, materials, structural adequacy of the building to support the additional structure or means of access to that structure were provided to the Court. For the refuge to be built at the PMF level, its floor level would be at 8.0AHD, some 4.7m above the design road level. No details of the level of the ceiling or roof of the community centre were provided and therefore, no assessment of any impacts of the work can be made. 44The experts agree that, to mitigate the potential flood level impacts on adjacent properties, resulting from the development a total of 5 cells of culverts be provided in a part of the site referred to as Site 1 and 6 cells at Site 3. Each culvert cell would be 2.7m wide and 0.9m long and must allow flow in both directions. Both sites are in the north-western corner of the site. With these in place, the flood level rise was limited to generally less than 30mm in both the 20 year and100 year flood event, the impacts are small and, with the proposed fill and revised culvert arrangement, there will not be any material change to the flood extents or velocities during the 20 or 100 year events on land adjoining the development site. 45Following the site inspection, including consideration of the location and floor levels of the adjacent housing, the experts agreed that none of these properties would be inundated due to the impacts of the development. 46The experts did not agree on the appropriate setback of the proposed the retaining wall along the northern boundary of the site. That detail is shown on the Exhibit Q plans however no dimension nominates the distance between the boundary fence and the outer face of the retaining wall. The height of that wall varies due to the difference in site levels and the need to restrict the batter slope that retains the road to a maximum of 1:2. The distance scales off the plans as approximately 250-300mm. 47Mr Bewsher says that it is necessary for this setback to be increased to allow for the collection of water from the adjacent site and also physical entry into the space to facilitate maintenance and recommends a minimum setback of 900mm. This would have the effect of increasing the height of the retaining wall so that the batter slope could be maintained. He says alternately, additional piping could be installed through the filled area with 375-600mm pipes in 4 or 5 locations. Dr Martens disagrees and says that the area could be maintained from the batter area however did agree that it is appropriate to provide access to the headwalls and at those locations an increased setback would be required. 48In those locations where acoustic walls are provided an additional dish drain would be required. There are three locations where acoustic walls are required. The main wall is located inside the western boundary of the site on varying alignments, with a 2m minimum, to Tweed Coast Road. A section through the roadway midway along the road locates the acoustic wall off centre of the batter slope. The acoustic experts agree that some form of drainage would be required along the inside of the wall so that there was no loss of attenuation. That would limit the opportunity to plant out that space. 49That wall continues to the northern boundary where the wall is shown in close proximity to that boundary with a staggered arrangement to allow screen planting to soften the impact of the wall. The section in this location shows the wall setback between 750mm and 1.35m from the northern boundary with the wall 600mm from the guardrail at the edge of the proposed road. Whilst provision for an open drain along the base of the batter is shown, the acoustic experts have agreed that further drainage would be required along the high side of the wall thereby narrowing the area available for planting. 50Three further sections of acoustic fencing are required along the northern boundary opposite proposed dwelling sites 12-15, 22-27 and 32. That wall would be constructed directly adjacent to the internal road edge and therefore road drainage and a drain at the low point of the batter along the site boundary falling to the proposed headwalls would collect stormwater in these locations.

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Geotechnical 51These experts considered the geotechnical details of the site and the wall shown on the original architectural drawings and agree that as proposed, the wall would have overall stability and settlement problems. They agree that these issues can be resolved by: (a)Providing a 3.5m long cantilever reinforced concrete foundation, 300mm thick, with the base at RL 0.6mAHD. (b)Founding the wall and cantilever footing over driven piles. Typically these would be founded at below RL-2.6mAHD, deeper at locations similar to BH6, of 350mm diameter and at 1.5m centres both ways. The use of driven piles would remove the need for further site investigation; (c)The development lakeside of the 2.4m high wall should be piled; (d)The driven pile type and durability are matters for design. (e)The development, including the portions of the manufactured homes, to the north of the 2.4m high wall should allow for a differential settlement of up to 50mm between the wall and the retained fill. 52To assist in maintaining water quality within the lake and to compensate the loss of foreshore on its northern edge to accommodate the proposed homesites, four new wetland areas are proposed to be constructed along the southern edge of the lake. That area is currently a grassed bank that falls towards the lake and is planted with palm trees at regular intervals. These would be retained however the extent of grassed bank available in front of the existing home sites would be reduced, at the closed point, to the west of the community centre to a width of approximately 5.6m (existing 19m approx). In other areas the setback that would remain from the home site to the wetland varies from 10m to 17m. 53It was proposed that these be retained by a 2H:1V backslope batter behind a 0.6m high retaining wall. The experts agree that this would not be stable and that the retaining wall would need to be increased in height so that the batter slope could be reduced to 3H:1V. 54The experts were asked to explain the compaction requirements of the proposed fill area, roadway and landscaped batter and agreed that it could be constructed in such a manner that would facilitate the planting of trees, shrubs and ground covers in a hole that was dug vertically with an auger so as not to disturb the bank. Consent conditions have been prepared that reflect the agreed position of these experts.

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Acoustics 55These experts agreed with the council's contention that the acoustic modelling submitted with the development application was inadequate and incorrect. Additional modelling was carried out and a further report prepared by Mr Carter dated 1 October 2013 and filed as Exhibit K. That report was based on traffic modelling on the Tweed Coast Road being 25,430 vehicle movements per day and recommended the height of the acoustic walls to be approximately 2.1m. Additional modelling resulted in increased fence heights to address different traffic scenarios. 56The 3.23m height was measured from the location recommended by Mr Carter which is that the acoustic barriers be constructed directly adjacent to the proposed internal road and at the top of the fill/batter. This does not accord with the details shown on the plans Exhibit Q that provide for the barrier to be down slope of the road and, in the north western corner of the site, towards the bottom of the batter. The consequence of this proposal is that the height of the wall would increase to achieve the necessary finished height. In those locations and sections referred to above in the drainage analysis, the plans show a scaled height of the wall above finished batter level of approximately 4m. 57Mr Atkins did not agree with the traffic volumes input or the allowance factor applied by Mr Carter when modelling the scenario. Mr Atkins says a higher traffic volume of 40,000 vehicles per day should be applied, as this is consistent with the council's strategy for the Tweed Coast detailed in Section B9 of the DCP. Mr Carter carried out further modelling applying that traffic volume with the results requiring the height of the acoustic fence to be increased to 3.23m above finished ground level and extended approximately 30m further south as compared to the height of the barrier detailed in Exhibit K or, depending on location, to have a finished height of between 6.70 and 6.78AHD. Mr Atkins says that this should be increased by a further 1.37m, as he calculates a further 4dBA affectation. 58Section B9.5.2 of the DCP states: The Tweed Coast Road will be the main distributor road for local traffic through the District and is proposed to be upgrading (sic) to 4 lanes from the Chinderah roundabout to at least Casuarina Beach and possible Cabarita Beach/Bogangar. This is anticipated to occur in the next 5 to 10 years, and is based on traffic projections of 35,000 - 40,000 vehicle movements per day. Council's Planning and Design Unit is currently investigating associated design issues. 59Mr Carter said he obtained the lower traffic figure from the council staff whereas Mr Atkins relied on the DCP. In response to a request by the Court, the council provided undated information in relation to anticipated timing and traffic volumes along the road as it was apparent that some of the assumptions used to determine the volumes in the strategy had changed. In response to this request, the council provided information, Exhibit 17, as follows: (1)The current traffic volume on Tweed Coast Road north of Cudgen Road is 13,068 vehicles per day (7 day average, June 2013). (2)The 2007 Tweed Road Development Strategy (Veitch Lister) predicts 28,102 vehicles per day on this same section of Tweed Coast Road with all distributor road improvements and full development of urban release areas in Kings Forest and West Kingscliff. This document is based on an "ultimate" scenario occurring between 2030-2040, and was provided for the preparation of Council's Roads Contribution Plan, not as part of the Tweed Coast Strategy. (3)Traffic volumes as high as 40,000 vpd would consume all remaining capacity on the four lane Tweed Coast Road, and could occur as a result of the other road upgrades and connections not taking place, or significant changes in development in the catchment. For example, establishment of a new regional centre in West Kingscliff, or changes from industrial to commercial uses in Chinderah. Additional modelling would be required to confirm how realistic these projections are. (4)As part of Council's approval process for road upgrades, an acoustic report would be required to address any potential noise impacts. This could necessitate construction or upgrading of acoustic barriers. This occurred on our Kirkwood Road extension project. 60In addition to the barriers around the boundary described above, Mr Carter has recommended the construction of 2.5m high "wing walls" between the future manufactured homes on the northern end between Lots 1-13, 14-24 and 26-32 to address noise from the adjoining trotting track. To achieve internal noise levels within affected habitable rooms, bedrooms and living areas with an unobstructed line of sight to the trotting track would also need to be kept closed to exclude the trotting track noise, hence the provision for air-conditioning or sealed mechanical ventilation is required. Similar requirements to install air-conditioning and keep windows and doors closed are required to address road traffic noise. Mr Carter says that if the homes are constructed to Construction Category 2 within Australian Standard AS3671:1989 Acoustics - Road traffic noise intrusion - Building Siting and Construction only lots 1-24 would be affected. Mr Atkins says that to achieve the appropriate standard taking into account the additional traffic, all dwelling would be required to keep doors and windows closed and without the additional traffic, only lots 29-31 would achieve compliance without that restriction.

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Ecology 66Exhibit G is a Seven Part Test Report prepared by Mr Travers. That report considers the impacts of the proposed development on known threatened flora and fauna species found at the site. His report concludes that no threatened species, populations and or endangered ecological communities will be affected and the rehabilitation works and wetland designs will provide an appropriate level of offsetting. Dr Robertson accepts the 7 part test is adequate given the revised studies undertaken and that the aggregate loss is suitably balanced to the loss given the extent of ecological value of the site provided more is put back than is taken and a Plan of Management (POM) is prepared so the offsets areas are satisfactorily improved and maintained. 67Exhibit S corrected details of the area of vegetation to be removed (0.45ha) and the extent of terrestrial revegetation (5000sqm) and constructed wetland (2975sqm). The experts agree that, should consent be granted, the areas need to be the subject of a Vegetation POM, a Wetland Management Plan and a Water Quality Management Plan and that those plans are required for the construction and post-construction stage. 68Dr Robertson remains of the view that the proposed development is likely to have a negative impact upon the natural environment because it will entail removal of trees and other vegetation that form both wildlife habitat and an aesthetic backdrop to the existing site and because it will entail construction and operation of houses over the littoral margins of the lake, putting pressure on the lake ecosystem. Despite the proposed mitigation measures put forward by the applicant, he says there is likely to be degradation of water quality in the longer term that may reduce current values or flora and fauna. He is also concerned about the extent of fragmentation of the offset areas and the loss of littoral vegetation around what he estimates to be a third of the lake. 69Mr Travers says that whilst there will be removal of vegetation with the consequential initial impacts, they are not significant, there is little impact on threatened species and that will be compensated for so on balance, the impact is acceptable. 70The three areas proposed for revegetation are identified as A, B and C. Area A is located adjacent to the south-western corner of the lake commencing at the western boundary of the existing most western dwelling site and extend in a northerly direction between the edge of the lake and the eastern extent of the proposed road for approximately half its length. That area is currently an open, grassed area. 71Area B is located in the north-eastern section of the site adjacent to its boundary with the council's drainage reserve. At the site view, the parties were unable to precisely identify the boundary of the site in relation to a small creek and fencing in that location. The applicant provided additional survey information, Exhibit Y that confirms that this section of waterway is located within the site. Area B includes the creek, its banks and the whole of the area between the northern site boundary and the lake. Further details of the proposed treatment of that area were also included in the plans attached to Exhibit S and include the retention of existing vegetation, weed removal and replacement with endemic species to the north of the creek, provision of compensatory vegetation, minimum 6.5m width from the creek to the edge of the walking trail and retention of the existing casuarinas and batter to the lake. 72The experts agreed that this treatment, if done properly, would be an improvement to the existing, unmanaged area. 73Area C was originally proposed to involve the area to the immediate north of the four most northerly dwelling sites adjacent to the eastern boundary. That area is currently an open grassed area and contains a BBQ gazebo and the pump house associated with the lake. The plans were amended to provide a greater setback to the four existing dwellings so that a minimum distance of 10m would separate the front of the most eastern dwelling and the edge of the revegetation area. The purpose of the amendment was to address the view loss concerns of the residents who own those dwellings. 74The experts agree, that provided the areas to be revegetated are restricted to the three areas proposed with no further fragmentation and that sufficient area is available to plant the number of species detailed, there is no reason why the walking path cannot be constructed through the revegetation areas. They also agree that, in the vicinity of the existing dwellings, that the planting can be stepped up so that it is lower closer to the houses with the height increasing as the planting extends to the north so that the view loss impact is reduced. 75The applicant advises that the BBQ gazebo could be relocated or retained in the revegetation area. Dr Robertson is concerned that there is inadequate information in relation to how the areas around the gazebo and the pump station will be managed and whether the objectives of the revegetation areas will be achieved. 76It is also agreed that the revegetation works within areas B and C should be completed prior to the commencement of earthworks for the development to ensure that these are established to allow the retention of habitat for the species impacted by the proposal. All agreed that the entire wetland areas and areas B and C could be undertaken in advance of development however Area A should be completed last due to likely construction impacts. 77Mr Travers says the wetland would be established within 12 months however the rest would take several years to establish whereas Ms Carlile says the area would be suitable within 3 months of completing the planting provided 100% establishment.

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Planning 78The experts agree that the extent of filling required to achieve flood levels on the northern side of the lake is consistent with the degree of fill associated with the construction of the homes on the southern side of the lake and that the vegetation planted as part of the original development would be replaced by the proposed 32 home sites, roadway and pathway and new areas planted. 79They summarised the planning contentions to be:

Loss of amenity associated with replacement vegetation (and associated nature walk) around the northern side of the lake with 32 new home sites and associated road, path and landscaping;
The suitability or otherwise of the visual appearance of the home sites over the lake, particularly when viewed from the southern side of the lake;
The internal amenity of the development including compliance matters with the LGRegulation;
The degree of external amenity impacts that would be created by the new home sites, both to the northern neighbouring property and to the existing homes on the southern side of the lake;
Whether the proposal is an overdevelopment of the site and whether the proposal would adversely affect the character of the site;
The suitability of the site for the development, particularly given the extent of site modification required to implement the development. 80Mr Betros says that the proposal represents a reasonable planning outcome that will provide 32 additional home sites in an attractive setting which includes abundant replacement planting and outperforms the required landscaped area by 8000sqm, retains a continuous trail and access around the northern side of the site and the vegetated areas around the north-eastern and eastern side of the lake. The proposed plantings with embellished wetlands maintain a landscaped setting, albeit different from the existing landscaped area along the northern side of the lake. He says the outlook for persons using the walking rail will still be very pleasant and is a reasonable outcome given the trail is through private land within a manufacture home estate and to sterilise significant portions of the site for the benefit of the incumbents does not achieve a balance planning outcome. 81Mr Van Iersel says the development will result in significant loss of visual amenity because the lake and its vegetative northern edge are very strong components of the current visual amenity of the site, particularly as experienced by existing residents. Currently, when viewed from the existing manufactured home sites and/or open space areas on the southern side of the lake, the development area presents as a natural vegetation back-drop to the water. This character is strongly contrasted by the existing dense urban character of the park itself, and the contrast makes the naturalness of the lake and its vegetated back-drop an important component of the residential and visual amenity and character of the estate. That naturalness would be largely lost. 82Mr Betros considers the architectural presentation and setting of the intended dwellings represents a significant improvement for the existing dwellings on the site with the deck structure over the lake an attractive interface. He says the minimum distance of 130m across the lake, the single storey scale of the structures and the landscaping in between and behind ensures that the visual appearance will be reasonable in this context. Mr Van Iersel says it is appropriate to assess the visual appearance against the existing character of the northern vegetated lake shore and that the current backdrop of the lake provides a high quality natural visual amenity that would be dramatically altered by the development with those natural elements largely replaced by urban forms. 83Mr Van Iersel questions the viability of the landscaping proposed to ameliorate these visual impacts as the area available is very narrow, contains a 2:1 slope on constructed fill material and, in part, contains a sewer rising main and for this reason, he has doubts whether large trees could be viable in such an environment. 84Mr Betros says the home sites will provide for a high degree of internal amenity due to the provision of homes over a lake whilst the sites allow for 4-sided detached dwellings which achieve abundant natural light and vegetation, enjoys an expansive outlook over the lake and are set in a far less dense environment that the existing homes on the southern side of the lake. He says the deck areas outperform the minimum private open space area and enhance the amenity of the dwellings with the open nature ensuring abundant sunlight and daylight throughout the year. 85Mr Van Iersel says the development, when viewed as a whole, provided poor internal amenity for its future residents and is guided by a 1993 Department of Planning publication, Manufactured Homes: A Guide to Planning and Design of Manufactured Home Estates (Guide). The parties agreed that these documents do not have statutory weight however Mr Van Iersel says that it is a guide to consideration of internal amenity. Applying those guidelines, he says the proposal does not have a central, easily accessible meeting place/focal point and residents will have to walk at least 450m to the existing community building, because there is no opportunity for tandem visitor parking at each site, the visitor parking is inappropriately located, being at the extremities of the development. Similarly, he says there is no provision for caravan and/or boat parking; the development involves a long, straight road enclosed by dwellings with very little space between buildings; the outdoor space is generally provided on the continuous deck structure with internal fences/screens between homes resulting in privacy issues and, the decks, being on the southern side of the dwellings have poor solar access. 86Mr Betros says that there is unlikely to be any external amenity impacts; privacy can be addressed through the raised plantings along the sides of the decks. He disputes the relevance of the Guide and says the LGRegulation, being a 2005 document, is more relevant to the proposal. 87With regard to external impacts, Mr Betros says that the development has a satisfactory relationship with the northern neighbouring site due to the provision of extensive landscaping whilst he considers there is minimal outlook from the primary components of the properties to the north and there are no privacy, noise, shadow or view loss implications from the proposal so he concludes that there are no adverse or unreasonable external amenity impacts generated by the proposal. 88Mr Van Iersel says that the external amenity impacts primarily relate to the dramatic alteration of the existing visual character of this part of the site, when viewed both from external sites and from the southern shore of the lake and will also substantially alter the existing outlook from two properties that adjoin the development site to the north. 89Mr Betros states that the proposal is compliant in regard to car parking whilst there is no exceedance of any density provisions; open space, allotment sizes and private open space also complies with the minimum controls contained in the LGRegulation, with the density of the development far less than those on the southern side of the lake. Mr Van Iersel notes that in order to achieve the proposed development, the site needs to be substantially altered through the removal of all existing vegetation within the development footprint and the importation and placement of substantial amounts of fill varying from around 1.3m to approximately 2.4m above existing natural surface. Even with such significant alteration to the site, the dwelling sites and the associated deck structure must be cantilevered over the lake because the site is not wide enough to accommodate the house sites, internal road and associated infrastructure. He says that the site is located in a transitional area, at the interface between urban and rural character areas and land uses with the land immediately north and south zoned rural so future development will therefore be restricted to land uses at a density and scale allowable under the rural planning provisions so the character of these sites will remain open and natural. He notes that this will continue to be the case when draft Tweed Local Environmental Plan 2012 is made 90The parties agree that the making of this plan is immininent and certain and therefore a matter for consideration. Mr Van Iersel says that the northern part of the development site has a similar character to the adjoining land, being essentially rural/natural and the proposed development would significantly alter this existing amenity, providing a dense urban form directly at the adjoining boundary so the existing transition within the site would be lost, resulting in an abrupt change of character between the rural land and the manufactured home estate. Mr Betros disagrees and says the site is suitable for the proposed development that will provide a quality housing outcome as it provides for a high level of amenity with no adverse external impacts. In acknowledging the sites are over the lake, he says this is a positive feature of the proposal which should not be criticised because it is different and the plans provide for an orderly and attractive living environment. The degree of fill is consistent with the levels required on the southern side of the lake, which will result in a compatible housing and landform outcome. 91Mr Betros agreed that the proposal has adverse impact on views and the nature walk but said that, in the case of the impact on views from those houses adjacent to Area C, because the view is different, that doesn't mean that it is unacceptable. He says that persons using the nature walk will have to follow the footpath to be constructed immediately adjacent to the new dwelling sites which will be more urban but will still be able to see the lake through the trees when walking through areas A, B and C and although he agrees the residents consider the changes will be adverse, he considers it would be appealing to a lot of people. 92Mr Betros says that the proposed indents to be constructed within the acoustic walls were sufficient to address the impact of those walls on adjoining properties because the dwellings were oriented away from those walls, the primary view from those dwellings is not the filtered view currently available through the trees to the lake and there is existing vegetation within those sites to further screen the walls. Mr Van Iersal disagrees and says that this planting is sporadic and only a couple of clumps of bananas and a dead tree and that inadequate provision has been made to screen the walls. 93The planners agree that consideration of the location of the site within a rural zone and the proposed RU2 zone with a 40ha minimum allotment size is a relevant consideration in the assessment of the application. Whilst that zone allows a range of uses with consent such as caravan parks (but not manufactured home estates) and dual occupancy developments, regard should be had to the zone objectives.

[19]

Conclusion and findings 94For consent to be granted, I must be satisfied that the site of the development benefits from existing use rights. My reasons in concluding that these rights apply are provided above and, on the evidence available, I am satisfied that the use of the whole of the site for the purpose of a manufactured home estate has continued since the estate was established. 95Having made that determination, I must now assess the application in accordance with the provisions of the Act as they apply to an existing use. Of particular relevance is s108(3) of the Act that has the effect of setting aside those provisions of the LEP and any other applicable environmental planning instruments (EPI) that derogate or have the effect of derogating from the incorporated provisions. Lloyd J in Fabcot Pty Ltd v Hawkesbury City Council [1997] 93 LGERA 373 addressed this issue where, at [378] he states: Section 108(3) uses the word "derogate" the ordinary meaning of which is "to repeal or abrogate in part; to destroy or impact the force or effect of; to lessen the extent of; to detract from; to disparage, to depreciate"...The relevant provisions of the environmental planning instrument in this case...would clearly derogate from the incorporated provisions. Accordingly, those provisions of the local environmental plan have no force or effect. However, it is only those provisions of the local environmental plan which would derogate or have the effect of derogating from the incorporated provisions which have no force or effect.Since the provisions of the environmental planning instrument on which the respondent relied...derogate from the incorporated provisions, it follows that none of those grounds are relevant. They purport to rely on provisions of the local environmental plan which have "no force or effect" (s 108(3) of the Act). 96Accordingly, the fact that the proposed use is prohibited under the LEP is not a factor that can be taken into account. Nor would the failure of the application to achieve the zone objectives be a relevant matter for consideration. See Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 at [81]. In the absence of those considerations of the LEP that derogate from the incorporated provisions, s79C of the Act establishes those matters that must be taken into consideration when assessing the merits of the application. Section 79C states: In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. 97Having regard to the evidence and taking into account those matters in s79C that are relevant to determination of the application, I consider that the site is unsuitable for the proposed development. That is because of the nature and extent of works required to be carried out and the adverse impact those works will cause to the amenity of the area, both within the site and to the character of the local area. 98One of the contentions in the case is the inadequacy of information provided by the applicant to allow proper assessment of the proposal and, during the hearing, amended plans and additional details were provided in an attempt to overcome these deficiencies. This information lead to a series of conflicts between experts in the manner in which particular issues were addressed. 99The primary area where this occurred was the design of the northern batter slope required to retain the roadway and housing sites and the extent of landscaping proposed within that batter. At the completion of the hearing, it was agreed that the batter slope should not exceed 1:2, that the acoustic wall would have to be constructed within that area and where that wall was located down slope, provision for drainage would be required on either side of the wall. The final masterplan, Exhibit W, showed the acoustic wall set midway through the western batter slope between Tweed Coast Road and the proposed roadway with insets for planting. Where the wall adjoins Lot 1 DP 397479, it is sited adjacent to the common boundary with indentations provided for landscaping. Opposite the home sites, the wall is located at the top of the batter slope. 100The ability to provide the landscaped backdrop that the planners agree is an important element to the proposal, is limited by the density of planting, the time that planting will take to establish, and the need to provide dish drains adjacent to the wall. Mr Travers says that the largest tree species proposed, Melaleuca quinquenervia, would be planted at 20m centres and interspersed with the lower acmena and syzygium species at 4m centres. The evidence is that the melaleucas will take 10 years to achieve a height of 10 m and the other smaller species between 5 and 7 years to achieve 4-5m. 101I am not satisfied that this density of planting compensates for the loss of the current greenspace around the lake edge and, even when it is mature, the bushfire spacing requirements mean that there will be large gaps between the higher melaleucas and limited viewlines to the lower trees, such that the necessary landscaped backdrop will not be achieved. 102I do not consider there to be sufficient evidence that the traffic volumes along the Tweed Coast Road will increase to the 40,000 vehicles per day within the foreseeable future and accordingly, consider that the fence height of 3.23m would be acceptable. Depending on where that fence is located, it would appear, particularly on the northern side, as a long, solid wall with little opportunity for screen planting because of the tree spacing that means the trees would be on one or the other side of the fence rather than in a continuous row on either side. There is currently a timber acoustic fence adjacent to the existing dwelling houses at the southern end of the site. That fence has been constructed with insets for landscaping and, at the time of the site view, all planting had been removed. Even if there had been planting within those spaces, the visual impact of that wall was significant and out of character with the rural area. 103As the development requires the extension of an acoustic wall along the entire boundary with Tweed Coast Road, and returning along parts of the northern site boundary, I consider the visual impacts of that wall, some 300m in length, to be out of character with the rural area and to adversely affect the amenity of the adjoining rural properties to the north. The wall would result in loss of views to the lake from the public road and, whilst the lake is within private property, it is no different to views of a dam in other rural locations and one that adds to the rural feel and openness of the area. 104The impact of the proposed wall in those locations where it is required to address noise associated with the trotting track provides an unsatisfactory outlook to those dwellings opposite the wall. No area is available to ameliorate that impact. The living areas of those dwellings, being north facing to address good solar design, would look directly at that wall. The wall would also provide poor amenity to persons utilising the walking trail around the site. So too would the location of the footpath immediately adjacent to the front of the dwelling sites. Currently residents of the estate enjoy a natural environment when walking through that area and this has not been recreated in the location of the proposed dwellings. 105Similarly, the need to offset the vegetation lost to provide for the roadway and building platform results in the enclosure of open areas that currently provide views across the lake. Whilst I am satisfied from the evidence that the flooding and threatened species impacts can be managed, I am not satisfied that the setbacks proposed to Area C are sufficient to address the loss of views across the lake from those dwellings that currently enjoy an unrestricted view to that lake and the landscaped setting beyond. The amenity of those dwellings in particular but also to users of the walkway around the lake would be adversely affected. The loss of the grassed bank and the replacement of that area with four new wetland areas also reduced the amenity of the open space currently enjoyed by residents. 106The provision of a flood refuge within the manufactured home estate is contrary to the requirements of the DCP. I have insufficient information to assess the suitability of the refuge proposed and am not satisfied that there is safe access to a flood free area in a major flood event as required by the DCP. Whilst I accept that this is the same situation that applies to the existing dwellings within the estate, it is not appropriate to locate additional dwellings within an area that does not enjoy safe evacuation, even if the period in which that access is required is for a short time frame. There is no flood management plan that satisfies me that safe evacuation of residents of the new dwellings can be achieved, nor details of where persons would be evacuated to. I am not satisfied that this matter would be appropriate to address as a deferred commencement condition as there is no certainty in what is proposed and whether it would result in a satisfactory outcome. 107The need to locate the dwellings over the water adds to management requirements to ensure the water quality of the lake is maintained. The applicant proposes a series of management plans to address this as well as the environmental management of the revegetation areas. From the evidence provided, onerous management practices including the type of cleaning products used would be required to maintain water quality and, according to Mr Travers, the management plan should address visitors and children attending the site. This is a further unsatisfactory aspect of the development and there is no evidence of how this is to be managed. Whilst the experts agree that conservation management plans, vegetation management plans and wetland management plans are necessary, I accept Dr Robertson's evidence that there is a need to understand the key performance indicators that are to be met. No such information is available. 108It is a characteristic of dwellings within a manufactured home estate to be located within close proximity to each other and I consider the layout of the proposed home sites to be acceptable however, I do not consider that the visual impact of the raised platform and associated pylons necessary to support the dwellings is acceptable when viewed from the existing dwellings within the estate, the community centre or by persons enjoying the open space on the lake shores. I agree with Mr Van Iersel that the development will result in significant loss of visual amenity for residents of the site and their enjoyment of the current natural character of the northern part of the site. 109I also accept Mr Van Iersel's evidence that the external amenity impacts primarily relate to the dramatic alteration of the existing visual character of the northern part of the site, when viewed both from external sites and from within the estate. As the site is located within a rural zone and will continued to be within a rural zone when the draft LEP is made, with the minimum allotment size of 40ha, that impact is unacceptable and contrary to the primary objectives of the rural zone, that is to protect the rural character and amenity of the area. In accordance with the decision in Stromness the context of the proposed development can be taken into account. At [90] Pain J states: If the assessment under s79C is to be adequate it must consider the proposal in its surroundings, aand that is clearly a fundamental part of any analysis required under s79C(1)(b) and (c). 110Whilst the experts agree the development, with the agreed offsets, will have no ecology impact on threatened species, it will still impact on the general site ecology and landscaped setting. That impact is detrimental to the amenity and character of the area and the natural and built environment. 111For these reasons consent should be refused. 112The Orders of the Court are: (1)The appeal is dismissed. (2)The applicant is to pay the respondent's costs under s97B of the Act, of the amended plans for which leave was granted during the hearing as agreed or assessed. (3)Development application No. 11/0456 for the expansion of an existing manufactured home estate to provide an additional 32 home sites is refused consent. (4)The exhibits, other than exhibits A, L, M, P, Q, U, V, W and 1, can be returned.

Sue Morris Commissioner of the Court

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Judgment (20 paragraphs)

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