Baker v Gosford City Council

[59]

59 As a consequence, the final form of the Housing Management Plan was only settled late in the proceedings. As it is necessary to refer to the various options in the analysis in this decision, it is appropriate that they should be set out in full. The options read: Option 1 - Move into one of the new self-care units 10. Option 1 is only available to residents of the residential park in occupation at the date of granting of a development consent to development application DA 16387/2002, who are over 55 years of age or have a disability as at the commencement of the stage on that part of the land on which that resident's existing dwelling is located. Option 1 is also available to the carer of any resident with a disability. 11. Pursuant to Option 1, the residential park owner, Tingari Village South Pty Limited (ACN 079 855 511), will: (a) purchase the existing dwelling from the resident at an agreed value; (b) arrange for and pay for the removal costs for the resident to move into a new self-care unit in the proposed development. 12. The purchase price of the existing dwelling to be paid by the residential park owner in accordance with paragraph 11(a) above will be either: (a) A value agreed between the residential park owner and the existing resident the owner of the dwelling; or, if a value cannot be agreed, (b) then a value determined by a valuer selected by the resident from a panel of valuers appointed by the President for the time being of the Australian Property Institute Incorporated NSW Division. Such valuer shall value the dwelling on an as is, where is basis and as if no development consent for the proposed development had been granted and the use of the land for a residential park would continue. That valuation will be binding on both the resident and the residential park owner. The cost of the valuation will be borne by the residential park owner; AND if the value of the existing dwelling to be purchased by the residential park owner is less than the sum of money which the resident actually paid for that dwelling at the time of his or her entry into the residential park, then the residential park owner will pay to the resident the higher of those two figures. 13. The purchase price will constitute the Ingoing Contribution in the Residence Contract entered into between the resident and the residential park owner for the purposes of the Retirement Villages Act 1999 and the Retirement Villages Regulation 2000 . (See paragraph 23 below for some explanatory notes on the Residence Contract). 14. In addition to the matters noted in paragraph 11 above, when the resident leaves the proposed development, the residential park owner will pay to the resident a payment (referred to in this Plan as the "Outgoing Payment"). The Outgoing Payment will comprise the amount of the Ingoing Contribution paid in accordance with clauses 12 and 13, and a share of any increase in the capital value of the self-care unit between the date of the Residence Contract by which the resident moves into the proposed development, and the date of entry of any subsequent incoming resident or date of buy-back of the unit by Tingari Village South Pty Limited or, if appropriate, its successor. The resident's share of any increase in the capital value of the self-care unit will be determined by the value of the dwelling as a percentage of the market value of the self-care unit at the date of the Residence Contract - ie. If the dwelling is worth 10% of the market value of the self-care unit at the date of the Residence Contract then the resident will receive a 10% share of the increase in the capital value of the self-care unit. (See paragraph 27 below for some explanatory notes on Outgoing Payments). 15. In the event that the Retirement Villages Regulation 2000 changes so as to provide a different prescribed form of Residence Contract, the residential park owner proposes that such contract, if entered into pursuant to this option, shall contain provisions in or to the effect of clauses 7 and 9 of appendix 4.

[60]

Option 2 - Residents staying in their existing dwellings 16. Pursuant to this option, a resident may decide to stay in their existing dwelling within the residential park, and the residential park owner will: (a) Give notice, as required pursuant to s.127 of the Residential Parks Act 1998 , requiring a resident to relocate to a different residential site within the residential park. Under this option the resident will only be required to relocate within the residential park. (See paragraph 24 and 25 below for some explanatory notes on a notice pursuant to section 127.) (b) Pay for: (i) the reasonable costs of relocating the resident's dwelling from its site in the residential park on the land (including the costs of disconnecting any services to that dwelling); (ii) the reasonable costs incurred in transporting the dwelling to its new location within the park; (iii) the reasonable costs of transporting the possessions of the residents of the dwelling to their new place of residence; (iv) the reasonable costs of repairing any damage to the dwelling arising from its relocation; and (v) the reasonable costs of reconnecting services to the dwelling at its new location. 17. In accordance with s.129 of the Residential Parks Act 1998 , the residential park owner does not need to issue a notice pursuant to s.127 of the Residential Parks Act 1998 if the residential park owner and the resident agree to the relocation of that resident and his or her existing dwelling to a different residential site whether within the same residential park or some other residential park operated by the same park owner. In such event, the residential park owner still agrees to pay the costs as noted in paragraph 17(b) above. Option 3(a) - Compensation for resident leaving the residential park 18. Under this option, the resident chooses to leave the residential park at his or her volition after the date of consent to development application DA 16387/2002, in which case the residential park owner will terminate the residential site agreement and agrees to pay compensation including: (a) the reasonable costs of removing the resident's dwelling from its site in the residential park on the land (including the costs of disconnecting any services to that dwelling); (b) the reasonable costs incurred in transporting the dwelling to its new location within 300km of the land or the reasonable costs of its disposal; (c) the reasonable costs of transporting the possessions of the residents of the dwelling to their new place of residence (whether at the dwelling's new location or at some other location); (d) the reasonable costs of repairing any damage to the dwelling arising from its relocation; and (e) the reasonable costs of reconnecting services to the dwelling at its new location. 19. If the resident wishes to relocate his or her existing dwelling to a new location further than 300km from the land, the residential park owner agrees to pay the reasonable costs of transporting the dwelling for a distance of 300km, as well as the costs noted in paragraphs 18(a), (c), (d) and (e) above. Option 3(b) - Resident wishes to leave the park but not remove the existing dwelling 20. Under this option, the residential park owner will terminate the residential site agreement and agrees to purchase the dwelling from the resident in accordance with the formula set out in option 1 used to determine the agreed value and Ingoing Contribution.

[200]

206 In her written statement evidence, Ms Nesbitt set out a table containing three columns. In this, she dealt with a range of social issues; the matters which she regarded as the relevant mitigation measures proposed by the applicant and her assessment of the resultant social impacts. Omitting the column relating to the mitigation measures, her evidence read: Social issue Resultant social impact 1. Relocation of existing residents Positive - Existing residents have the option to remain in their existing dwelling 2. Provision of affordable housing for existing residents Positive - Existing residents have option to live in more appropriate housing at the same cost they are currently paying 3. Limited availability of sites in other residential parks Positive - Existing residents have housing choice and are not required to move. If a resident chooses to relocate their existing dwelling, the amount of compensation paid by the park owner will cover relocation to a range of locations 4. Determination of market value of home if existing resident chooses to sell to park owner Positive - Process established to ensure existing residents receive fair market price for their dwelling 5. Significant relocation costs for existing residents Positive - All existing residents choosing any of the three options will have their relocation costs cover regardless of which option they choose. Existing residents who choose to sell their existing dwelling to the park owner will have sufficient financial compensation to cover their own relocation costs 6. Access to government support services Positive - Existing residents who choose to remain at Tingari Village South will continue to be able to access appropriate support services and the design of the SEPP 5 units improves the ability of service provides [sic] to meet resident needs 7. Supply of low-cost housing in Gosford/Wyong region Positive - Existing residents will not be affected. 8. Effect on pensions and benefits received by existing residents None/Uncertain - The Housing Management Plan seeks to ensure existing pensions and benefits received are not effected [sic] but individual advice by each existing resident will need to be sought from Centrelink 9. Provision of physically appropriate "accessible" housing with secure tenure for older residents and residents with a disability in the LGA Positive - Existing residents have choice of more physically appropriate housing with secure tenancy. Future older residents and residents with a disability in the LGA have increased supply of appropriate housing 10. Fear and uncertainty about proposed development/change Positive - Existing residents have all been provided with information about the development and opportunity to discuss concerns/issues. Continuing information will be provided. 11. Loss of amenity of the residential park for existing residents if the development is staged Positive/Negative - Measures will assist in maintaining an acceptable residential amenity consistent with other developments. Over the development period however, amenity will vary but will not be unacceptable. 12. Difficulty coping with changes as a result of proposed redevelopment/change Positive/Negative - Will assist existing residents of the process provided the residents are willing to utilise the information and consultation services provided 13. Loss of established social networks of existing residents Positive/Negative - Existing residents will have the choice to remain within Tingari Village South and therefore maintain their relationships. The extent to which social networks will be lost by those who relocate is likely to be variable.

[209]

215 Ms Nesbitt's issue 8 relates to possible impact on pensions and benefits. Although there was considerable questioning concerning the possible effect on pensions and benefits received by existing residents should they elect to adopt Option 1, I am satisfied that the uncertainty as to whether the attributed ingoing payment value might cause a difficulty for residents should be able to be dealt with in a fashion which would lead to little likelihood of potential disadvantage to any resident exercising this option. However, to the extent that this might be a possibility for a extremely limited number of potentially affected beneficiary residents whose dwellings might have a valuation higher than the relevant Centrelink threshold, I am satisfied that this would not, in itself, warrant refusal of the application if it transpired that any condition dealing with this did not remove the problems. I also do not consider it necessary, given my broad conclusions on social impact, to attempt to respond to matters relating to security of residents' capital should they select Option 1. Given the relative paucity of the evidence before me on this matter, it would be a denial of procedural fairness to the applicant if I were to make any finding based merely on the fears expressed to me. 216 With respect to issue 9, I accept Ms Nesbitt's conclusion contained in the first sentence of her assessment. I also accept that there will be an increased supply of appropriate housing in Gosford local government area if appropriate is read so as to apply solely to the physical facilities of the housing provided. However, it is clear, from the applicant's evidence concerning the likely commercial sale price of units in the proposed development, that this increased supply, except for those existing residents who exercise their right pursuant to Option 1 of the Housing Management Plan, will be targeted at a significantly different socio-economic population than those who are the present residents of Tingari Village South. This broader issue is one which is discussed further in the context of Ms Nesbitt's 13.

Baker v Gosford City Council - [2004] NSWLEC 467 - NSWLEC 2004 case summary — Zoe

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