Ingenia Communities Pty Ltd v Mid-Coast Council

A summary of the Council's position and the outcome of the appeal

1. The Council opposes the grant of development consent, based on a number of issues that can be summarised as follows:

• The proposed development is contrary to the objectives of the zone (contention 2);
• The Site is contaminated and the Court cannot be satisfied that it will be made suitable for the intended use (contention 3);
• The proposed development will displace short term tourist accommodation, contrary to the terms of the State Environmental Planning Policy No 21 - Caravan Parks ("SEPP 21") (contentions 4 and 5) and contrary to the Mid Coast Council's Destination Management Plan (contention 7);
• The proposed development does not provide the community facilities required and will have poor access to services and facilities and public transport (contentions 6, 9, 10 and 13(b));
• The Site of the proposed development is not particularly suitable for long-term accommodation (contention 6C);
• The proposed development creates a residential density that is unacceptable for the zoning (contention 11);
• The proposed development will have adverse amenity impacts on adjoining residential development and on future residents (contentions 12-13);
• The proposed development does not achieve compliance with the relevant regulations (contention 6A);
• The proposed development will displace existing long term residents of the Site (contention 6B).

1. A contention raised by the Council concerning the details required for the proposed earthworks (contention 8) has been resolved.
2. For the reasons that are set out below, I have determined that the proposed development is consistent with the objectives of the zone, that the Site will be suitable for the intended use following remediation, that there is acceptable access to community facilities and services, and that the proposed development does not create excessive density or cause unacceptable adverse impacts. I have therefore resolved that the Site is suitable for the proposed development, and that consent should be granted subject to conditions.

The Site and the locality

1. The Site of the proposed development is known as 321 Boomerang Drive, Blueys Beach, and is legally described as Lot 1 DP 862876. It has an area of approximately 7.39ha, and the area of the existing caravan park is 6.2ha. The Site is elongated with a frontage of 694m to Boomerang Drive. It is relatively flat and has a slight fall from the northeast to the western corner of around 5m over a distance of 600m.
2. The Site currently accommodates a caravan park known as Palms Oasis, with a mix of short term, long term and camping sites. There are 155 short term sites, 22 long term sites and 9 camping sites. At present 25 long term sites are leased. The short term sites have been vacated, some of which were leased on an annual basis for the purpose of holiday accommodation, which contained vans owned by a lessee that could be occupied for up to 180 days per year by the van owner (in addition to 150 days occupation by a person who is not the owner/lessee).
3. On its frontage to Boomerang Drive, the Site also contains a decommissioned petrol station. The convenience store associated with the petrol station now serves as a community facility for the caravan park.
4. The existing long term sites that are intended to be retained are along the eastern edge of the Site, as shown in Figure 1. Each contains a manufactured home or moveable dwelling. Caravans and annexes are located throughout the middle of the Site. A proportion of the western side of the Site is vacant for camping grounds.
5. Adjoining the Site to the north, west and opposite to the south is land zoned E2 Environmental Conservation. Directly to the south and east the land is zoned R2 Low Density Residential. Immediately to the east of the site is a newly approved residential subdivision known as Blueys Ridge Estate, with the some of the dwellings now constructed or under construction.

The planning framework

1. The Site contains some land zoned E2 Environmental Conservation, with the remaining land zoned RE2 Private Recreation, pursuant to the provisions of the Great Lakes Local Environmental Plan 2014 ("GLLEP 2014"). The proposed development is within the RE2 zoned land.
2. Caravan parks are a nominated permissible use in the RE2 zone. A 'caravan park' is defined in the GLLEP 2014 and the SEPP 21 as follows: caravan park means land (including a camping ground) on which caravans (or caravans and other moveable dwellings) are, or are to be, installed or placed.
3. In both the GLLEP 2014 and SEPP 21, the term 'moveable dwelling' has the same meaning as in the Local Government Act 1993.
4. A 'moveable dwelling' is defined in the Local Government Act as follows: moveable dwelling means - (a) any tent, or any caravan or other van or other portable device (whether on wheels or not), used for human habitation, or (b) a manufactured home, or (c) any conveyance, structure or thing of a class or description prescribed by the regulations for the purposes of this definition.
5. A 'manufactured home' is defined in the Local Government Act as follows: manufactured home means a self-contained dwelling (that is, a dwelling that includes at least one kitchen, bathroom, bedroom and living area and that also includes toilet and laundry facilities), being a dwelling - (a) that comprises one or more major sections, and (b) that is not a motor vehicle, trailer or other registrable vehicle within the meaning of the Road Transport Act 2013, and includes any associated structures that form part of the dwelling.
6. A 'caravan' is defined in the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (the Regulation) as follows: caravan means a moveable dwelling that is designed so as to be capable of being registered (within the meaning of the Road Transport Act 2013) as a trailer, but does not include a camper trailer.
7. The proposed development meets the definition of a 'caravan park' as defined in the GLLEP 2014 and SEPP 21, as it is proposed that caravans and other moveable dwellings will be established on the Site. It is therefore a permissible use within the zone and on the Site.
8. Clause 2.3 of the GLLEP 2014 requires the consent authority to have regard to the zone objectives when determining a development application in respect of the land within the zone. The objectives of the RE2 zone are: • Enable land to be used for private open space or recreational purposes. • Provide a range of recreational settings and activities, and compatible land uses. • Protect and enhance the natural environment for recreational purposes. • Provide for caravan parks and camping grounds and ancillary activities.
9. SEPP 21 sets out a number of provisions concerning caravan parks. Its aims and objectives are set out in cl 3, as follows: 3 Aims, objectives etc (1) The aim of this Policy is to encourage - (a) the orderly and economic use and development of land used or intended to be used as a caravan park catering exclusively or predominantly for short-term residents (such as tourists) or for long-term residents, or catering for both, and (b) the proper management and development of land so used, for the purpose of promoting the social and economic welfare of the community, and (c) the provision of community facilities for land so used, and (d) the protection of the environment of, and in the vicinity of, land so used. (2) The strategies by which that aim is to be achieved are - (a) (Repealed) (b) by requiring that development consent be obtained from the local Council for development for the purposes of caravan parks, and (c) by providing that development consent may be granted that will authorise the use of sites for short-term stays (whether or not by tourists) or for long-term residential purposes, or for both, and (d) by requiring that development consent be obtained from the local Council for the subdivision of land for lease purposes under section 289K of the Local Government Act 1919.
10. Clause 8 makes it clear that consent is required for development for the purposes of a caravan park, and sets out the following: 8 Development consent required for caravan parks (1) Development for the purposes of a caravan park may be carried out only with the development consent of the Council. (2) Before granting development consent to the use of land for the purposes of a caravan park, a Council must determine - (a) the number of sites (if any) within that land that the Council considers are suitable for long-term residence, within the meaning of the Local Government (Caravan Parks and Camping Grounds) Transitional Regulation 1993, and (b) the number of sites (if any) within that land that the Council considers are not suitable for long-term residence, but are suitable for short-term residence, within the meaning of that Regulation. (3) A Council must not grant development consent to the use of land for the purposes of a caravan park unless it imposes as a condition of that consent a condition specifying the maximum number of sites (if any) within that land that may be used for long-term residence. …
11. Clause 10 sets out a number of matters that are required to be considered in granting a development consent, as follows: 10 Matters to be considered by Councils A Council may grant a development consent required by this Policy only after it has considered the following - (a) whether, because of its location or character, the land concerned is particularly suitable for use as a caravan park for tourists or for long-term residence, (b) whether there is adequate provision for tourist accommodation in the locality of that land, and whether existing or potential tourist accommodation will be displaced by the use of sites for long-term residence, (c) whether there is adequate low-cost housing, or land available for low-cost housing, in that locality, (d) whether necessary community facilities and services are available within the caravan park to which the development application relates or in the locality (or both), and whether those facilities and services are reasonably accessible to the occupants of the caravan park, (e) any relevant guidelines issued by the Director, and (f) the provisions of the Local Government (Caravan Parks and Camping Grounds) Transitional Regulation 1993.
12. The Local Government (Caravan Parks and Camping Grounds) Transitional Regulation 1993 has now been repealed and the relevant provisions are those in the Regulation, which are considered further below.
13. Clause 7(1) of the State Environmental Planning Policy No 55 - Remediation of Land ("SEPP 55") requires that consideration be given as to whether the Site is contaminated. Further, if the proposed development includes a change of use for land specified in cl 7(4), the consent authority must "consider a report specifying the findings of a preliminary investigation of the land concerned". The Site comprises land specified in cl 7(4)(b), as it contains a disused petrol station is and is therefore "land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out". The full terms of cl 7 are as follows: 7 Contamination and remediation to be considered in determining development application (1) A consent authority must not consent to the carrying out of any development on land unless - (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. (3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation. (4) The land concerned is - (a) land that is within an investigation area, (b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out, (c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital - land - (i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and (ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).
14. The Great Lakes Development Control Plan 2014 ("GLDCP") also applies to the proposed development, and the relevant provisions are considered below.

Resident evidence

1. The development application was advertised and notified as integrated development from 10 October 2018 to 9 November 2018. Over 300 submissions were received throughout the notification period. Further, on the listing of the appeal for a hearing, a number of Pacific Palms residents and former owners of vans on the Site, gave evidence and made submissions on the development. The concerns of the residents and former owners of vans, expressed in the written submissions and at the hearing, can be summarised as follows:

• The loss of short term tourist accommodation will cause an impact on local economy and on other tourism in the area, and will change the character of the area.
• The Site is not suitable for the proposed development, and the development is out of character of the area.
• There will be a loss of property values in the area.
• There are issues concerning bushfire risk, increased traffic, stormwater, acid sulphate soils, removal of trees and visual impacts.

1. Additionally, a number of the long term occupants of the caravan park made submissions in support of the proposed development, one of whom gave evidence at the hearing.
2. The evidence of the objectors is considered below in determining the contentions raised by the Council. Other matters raised by the objectors that are outside the scope of those contentions, such as fears over the loss of property value, are not supported by evidence and do not warrant refusal of the development application.

Expert evidence

1. Expert opinion evidence concerning the engineering issues was given in joint reports prepared by Mr Lincoln Gibbs, an engineer engaged by Ingenia, and by Mr Geoff Dowling, the engineering development officer employed by the Council. They agree that the concerns regarding earthworks that were initially raised in contention 8 can be resolved by way of appropriate conditions of development consent. They agree that the pedestrian pathway from the driveway entrance location to Reef Circuit will not achieve the grades required by Australian Standards 1428.1-2009 Design for access and mobility, which are standards set to allow access for people with disabilities. Notwithstanding this evidence, the pathway does not require steps and nevertheless otherwise complies with the Council's requirements for pedestrian pathways. They also agree that, to deal with the cross-fall, a retaining wall of up to 1.8m in height is required where the path rises on the eastern boundary of the Site.
2. Expert opinion evidence on the town planning issues was given by Ms Marion Lourens, a consultant town planner engaged by Ingenia, and Mr Kerry Nash, a consultant town planner engaged by the Council. Their evidence is considered further below.
3. Social impact evidence is given by Dr Sheridan Coakes, a social impact expert engaged by Ingenia, and Dr Judith Stubbs, a social impact expert engaged by the Council. They agree that a community bus should be provided as a condition of consent to provide services to the local Blueys Beach and Charlotte Bay shopping areas, and to Forster/Tuncurry, and that the operations of the bus should be detailed in the operational plan of management. However, they disagree in relation to whether the necessary community facilities are available, whether the facilities are "reasonably accessible", and on the social and economic impact of the development.
4. Evidence on contamination is given by Ms Fiona Robinson, an accredited contaminated land auditor and certified environmental (site contamination) practitioner engaged by Ingenia, and Mr Ryan Fenning, an environment health officer employed by the Council. They agree that the service station use has caused contamination of the Site in the vicinity of the service station, and that the detailed site investigation dated October 2020 ("DSI") identified a vapour intrusion risk from soil and groundwater contamination. They also agree that the appropriate residential land use criteria has been applied to assess the suitability of the Site. However, Mr Fenning maintains that the DSI does not provide sufficient information to assess the vapour intrusion risk, whereas Ms Robinson's evidence is that there is sufficient information to assess the vapour intrusion pathway and that the risks can be managed. Their evidence is considered further below.

Consistency with the objectives of the zone

1. The Council contends that the proposed development is contrary to the objectives of the zone (contention 2). The Council submits that the proposal is not compatible with the objectives of the RE2 Private Recreation zone, and will thwart "the achievement of tourist accommodation and private recreation on the site". In support of its position that the objective of the RE2 zone is directed toward tourist accommodation, the Council points out that "dual occupancies", "attached dwellings", "dwelling houses", "group homes", "multi dwelling housing" and "residential accommodation" are all prohibited uses in the zone. The Council therefore submits that, given the caravan park is primarily for the provision of long term accommodation, it is beyond the scope of the use intended for caravan parks in the RE2 zone, which can be contrasted to the context of the permitted use of caravan parks in the R2 Low Density Residential zone.

The proposed development is not contrary to the objectives of the zone

1. I do not accept the Council's position on this contention. In Codling v Central Coast Council [2019] NSWLEC 1158, I considered the consistency of the proposed development with the zone objectives and stated as follows: "84 It is clear from the terms of cl 2.3(2) that there is no requirement for development within the zone to comply with, or to achieve, each of the objectives of the zone. Nevertheless, the clause requires that the consent authority "have regard to" those objectives. They are therefore a mandatory consideration in the assessment process and a proposed development ought not be antipathetic to those objectives. … 86 Instead, as established by McClellan J in BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [117], there is a general assumption that "development which is consistent with the zoning will be permitted". Indeed, he goes on to state that "[t]he more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects.""
2. Given the confined number of nominated permissible uses in the RE2 zone, with all other uses prohibited in the zone, it can be assumed that each of those uses is compatible with the zone and falls within the uses contemplated by the second objective, "To provide a range of recreational settings and activities and compatible land uses". That is, the nominated permissible uses that cannot be described as "recreational settings and activities" must therefore be considered to be one of the "compatible land uses". Therefore, a caravan park is one of the "compatible land uses" within a zone that is directed to recreational settings and activities.
3. Additionally, the proposed development falls within the definition of "caravan park", and the objectives of the RE2 zone include the specific objective to "provide for caravan parks and camping grounds and ancillary activities". It is axiomatic that a permissible use of the type specifically sought to be achieved by an objective, is consistent with that objective.
4. Contrary to the Council's submission, there is no word or expression in the objectives, nor anything that arises implicitly, that is consistent with their position that the RE2 zone is for tourist accommodation. The first three objectives concern providing recreational purposes and settings, and the fourth concerns providing for "caravan parks and camping grounds and ancillary activities". Nothing about the use of the word "recreational" implies the provision of tourist accommodation. Indeed, as submitted by Ingenia, tourist and visitor accommodation is prohibited in the zone, other than backpackers' accommodation and bed and breakfast accommodation.
5. Further, contrary to the Council's position, there is no basis upon which the objectives of the RE2 zone can be used to confine the acceptable permissible use "caravan park" to short term accommodation or short term caravan sites. The prohibition on the various types of residential accommodation is not relevant and certainly does not mean that the definition of the nominated permissible use of "caravan park" can be legitimately read down to exclude long term accommodation.
6. Therefore, in circumstances where the proposed development is for a caravan park, which is a nominated permissible use that is considered as a compatible land use (objective 2) and is specifically sought to be provided for in the zone (objective 4), I find that the proposed development is entirely consistent with the objectives of the zone and does not thwart their achievement in any way.

Contamination

1. The Council contends that the Site is contaminated and that the Court, in exercising the functions of the consent authority, cannot be satisfied that the Site can be made suitable for the proposed development, as required by cl 7(1) of SEPP 55 (Contention 3).
2. In Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40, Preston CJ found that cl 7 of SEPP 55 contains two preconditions to the grant of development consent. At [46]-[57] he sets out the first precondition, and at [58] he outlines the second: "46 First, cl 7(2) of SEPP 55 establishes a precondition to the exercise of the power to determine a development application for consent to carry out development that would involve a change of use on any of the land specified in s 7(4) of SEPP 55. The precondition is consideration of "a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines". 47 The "contaminated land planning guidelines" are defined in cl 4(1) of SEPP 55 to mean guidelines under s 145C of the EPA Act. The current planning guidelines under s 145C of the EPA Act are "Managing land contamination planning guidelines: SEPP 55 - remediation of land", NSW, 1998. … 58 Secondly, cl 7(1) of SEPP 55 establishes further preconditions to the exercise by the consent authority of the power to determine a development application by granting consent. The preconditions are sequential and inter-dependent: first, consideration by the consent authority of whether the land on which development is proposed to be carried out is contaminated; secondly, if the land is contaminated, satisfaction of the consent authority that the land either is suitable in its contaminated state, or will be suitable after the remediation, for the purpose for which the development is proposed to be carried out; and thirdly, if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, satisfaction of the consent authority that the land will be remediated before the land is used for that purpose."
3. In dealing with the relationship between these two preconditions, Preston CJ states: "61 For the land specified in cl 7(4) of SEPP 55, and for a development application for consent to carry out development that would involve a change of use on such land, the consent authority's consideration of and satisfaction about the matters in cl 7(1) may be informed by the report specifying the findings of a preliminary investigation of the land concerned, provided to the consent authority by the applicant under cl 7(3) of SEPP 55."
4. Ingenia relies on a preliminary site investigation report, which is the Phase 1 Environmental Site Assessment dated August 2018, a remedial action plan dated September 2018, and the DSI. Each of these documents were prepared by Ramboll Australia Pty Ltd.
5. Although the Council does not raise a contention or make a submission that the jurisdictional pre-condition contained in cl 7(2) and 7(3) are not met, it contends that the DSI does not address the requirements set out in the "Managing land contamination planning guidelines: SEPP 55 - remediation of land", NSW, 1998 ("the Guidelines").
6. Further, the Council submits that the DSI does not provide sufficient detail with respect to the potential vapour risks to residents as a result of benzene concentrations, such that the Court cannot be satisfied that the Site can be made suitable, following remediation, for the proposed development.

The requirements for a site investigation

1. As set out above, cl 7(2) and (3) of SEPP 55 are as follows: (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. (3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation.
2. It is clear from cl 7(2) and (3) of SEPP 55 that the jurisdictional pre-condition requires the consideration of a report "specifying the findings of a preliminary investigation", and requires the applicant to carry out the preliminary investigation and provide the report to the consent authority. The second sentence in cl 7(2) then gives the consent authority the discretionary power to compel the applicant to carry out a detailed investigation if it considers that one is warranted, but it does not impose any additional requirements that are pre-conditions to the grant of consent.
3. The Guidelines describe a preliminary investigation in the following way: "3.5.2 Stage 1 - Preliminary Investigation The preliminary investigation contains a detailed appraisal of the site's history and a report based on a visual site inspection and assessment. It is important that all relevant information about the site is assessed to determine the potential for site contamination. Where contaminating activities are suspected to have had an impact on the land, sampling and analysis will be required to confirm and support any conclusion reached from the site history appraisal. Through the assessment of sampling results, an assessment of contamination can be established. A preliminary investigation is an important step in deciding whether a more detailed investigation is needed. Where the results of a preliminary sampling program demonstrate the potential for, or the existence of contamination, a detailed investigation should be undertaken; not necessarily immediately after the preliminary investigation but before the new use commences. Where the preliminary investigation shows a history of non-contaminating activities at a site and, in the absence of other contrary evidence, there will be no need for further investigation. Issues to consider • Is the information about the site's history adequate: - are the descriptions of activities on the site detailed enough to identify a use listed in Table 1? - are there any big gaps in the history that might hide a use listed in Table 1? - are the sources reliable? - is the information verifiable? • Does the information conform with the relevant EPA guidelines? • If contamination or a contaminating activity, whether previous or existing, is confirmed should the proponent conduct a detailed investigation to further define the extent and degree of contamination? • If the site history suggests that the site is unlikely to be contaminated but there are gaps in the history and Table 1 uses were permissible under the zoning during those periods, is limited site sampling needed to confirm the site is not contaminated? Consult a site auditor if necessary. • Does this site pose a significant threat to human health or the environment? If so, refer to the CLM Act [Contaminated Land Management Act 1997] in relation to duty to notify the EPA. • Is a site audit of the preliminary investigation necessary? See section 3.6.1. If there is sufficient information to satisfy the planning authority that the site is suitable for the proposed use, the planning process should proceed in the normal way."
4. Although cl 7(2) does not mandate the provision of a report on a detailed investigation, and does not set a pre-condition that requires a report on a detailed investigation to be provided prior to the grant of development consent, the detailed investigation is described as being what is referred to in the Guidelines. The Guidelines set out the requirements for that detailed investigation as follows: "3.5.3 Stage 2 - Detailed Investigation A detailed investigation should provide information about the extent and degree of contamination. It should also include an assessment of the risk posed by the contaminants to health and the environment. Generally, the risk can be assessed by comparing the levels of residue on-site with appropriate predetermined thresholds such as the soil investigation levels specified in the EPA's guidelines (1998a). The risks can also be determined by a site-specific risk assessment undertaken by the proponent's consultant. Issues to consider • Is the sampling program that has been undertaken by the consultant adequate to identify hot spots of contamination on the site? Does it conform with the relevant EPA guidelines? Check the sampling program against the EPA's guidelines or consult a site auditor if necessary. • Have appropriate thresholds and criteria been used for the assessment? Compare with appropriate criteria or consult a site auditor if necessary. • Do the levels of contamination on the site need to be reduced in order for the site to be suitable for the proposed use? If so, progress to Stage 3 - Site Remedial Action Plan. • Does this site pose a significant threat to human health or the environment? If so, refer to the CLM Act in relation to duty to notify the EPA. • Is a site audit of the detailed investigation necessary, or required under the CLM Act? See section 3.6.1."

The Council's position on the DSI and contamination

1. The Council's position is that the DSI has not provided a sufficient assessment of the extent and degree of contamination, contrary to the requirements of the Guidelines, such that the state of satisfaction required by cl 7(1) of SEPP 55 cannot be reached. The Council points out that whilst the DSI identified likely soil contamination in the area surrounding the service station and advised that the extent of soil contamination was unknown, justification for not undertaking further investigation was not provided. Further, the Council submits that the vapour risk assessment is inadequate as it does not consider measured soil vapour concentrations or preferential pathways for vapour migration, and relies on the risk being low "as the service station and convenience store are not occupied". The Council submits that, therefore, the conceptual site model is not adequate to assess the risks.
2. In support of its position, the Council relies on the Environment Protection Authority, Technical Note: Investigation of Service Station Sites (April 2014) ("EPA Technical Note") and the National Environment Protection (Assessment of Site Contamination) Measure 1999 (Cth) ("NEPM"). The Council says that the EPA Technical Note requires a comprehensive assessment of the presence of contamination and likely pathways, and that if soil vapour risk is not considered to be significant, the DSI should demonstrate why pathways and vapour intrusion are unlikely. At p 14, it states: "the CSM should assist in identifying vapour intrusion pathways to potential receptors and whether vapour assessment needs to be conducted at a site. If vapour assessment is considered necessary, details on the location and number of sampling points, depth (soil vapour) and frequency of sampling events should be included in the SAQP. Where a soil vapour risk is not considered to be significant, the DSI should demonstrate why pathways and vapour intrusion are unlikely to be present."
3. The Council submits that, similarly, the NEPM requires details of preferential pathways for vapour migration, and multiple lines of evidence concerning vapour intrusion/emission pathways. The NEPM, at Volume 3, Section 9.3.4 provides as follows: "If there is significant vapour migration via preferential pathways that connect a contaminant source to a building, then the measurement of contaminant concentrations in soil vapour may not be representative of vapour concentrations that would migrate into the indoor environment. Other investigative techniques (for example, vapour measurements in utilities or indoor air measurements) may provide more representative data for the evaluation of the inhalation exposure pathway in these circumstances (API, 2005)."
4. The Council also points out that the remedial action plan currently before the Court does not provide contingencies should contamination extend to underneath the existing building to demonstrate how/if the Site can be made suitable for the proposed development.
5. The Council submits that the evidence of Ms Robinson can be given little or no weight because it is contradictory to the DSI, and when asked whether anything in the DSI should be corrected, she answered in the negative, notwithstanding that the DSI contained an erroneous presumption that the structure was vacant.
6. Further, the Council says that little reliance can be given on an earlier consent to remediate the land (DA 150/2019), as the Guidelines make it clear that there "must be substantial planning justification to refuse an application for remediation".
7. As a result, the Council submits that the groundwater contamination underneath the building is unknown, the extent of soil contamination is unknown and no assessment in relation to vapour impacts to future users inside the building has been undertaken. This means that in carrying out remediation, the extent of excavation under the building that is required is not known. The Council submits that the remedial action plan will not address these issues, and the Court cannot be satisfied of the requirements of cl 7 of SEPP 55.

Ingenia's position that the jurisdictional preconditions are met

1. Whilst Ingenia's position is that there is no change in use that triggers the jurisdictional pre-condition for the provision of the preliminary site investigation specified by cl 7(2) of SEPP 55, it submits that the reports nonetheless satisfy all of the relevant requirements.
2. Ingenia submits that the requirements of SEPP 55 are for compliance with the Guidelines, and that the EPA Technical Note and the NEPM relied upon by the Council are outside the scope of the requirements of SEPP 55. Ingenia submits that when one does consider the steps it has taken against the stages set out in the Guidelines, the Court would come to the conclusion that the requirements of SEPP 55 are met.
3. Additionally, Ingenia submits that the remedial action plan, the DSI and the evidence of Ms Robinson are sufficient to satisfy the Court of the matters in cl 7(1). Ingenia points out that it is clear from the terms of the remedial action plan and from the evidence of Ms Robinson that it was known that the proposed use of the building was a community building, and that none of the assessment or remediation was based on the building remaining vacant.

The Site can be made suitable for the proposed development

1. I am satisfied that each of the jurisdictional matters that arise under cl 7 of SEPP 55 are satisfied, and that nothing raised by the Council concerning the preliminary site investigation, DSI or remedial action plan warrant refusal of the development application.
2. Firstly, the precondition that requires "a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines" is met by the preliminary site investigation report, which is the Phase 1 Environmental Site Assessment dated August 2018. Consistent with the Guidelines, the report provides a history of the Site and identifies the risks associated with the use as a service station, and reports on the results of soil sampling and groundwater modelling (from October 2016 and February 2018). Based on those results, it recommends a detailed site investigation be completed and indicates that remediation work will be required for any affected soils and groundwater. It also considers the current risk to human health and the environment. The content of that report is required to be considered by the Court before determining the application, pursuant to cl 7(2) of SEPP 55.
3. Secondly, I am satisfied that the DSI adequately complies with the Guidelines. It is clear from the note to the EPA Technical Note that the Technical Note is advisory only, and nothing in SEPP 55 or the Guidelines compel the DSI to take each step identified therein. Similarly, the NEPM are national guidelines but nothing in cl 7 of SEPP 55 compels compliance with them for the preparation of the DSI. I accept the submission of Ingenia in that regard. Nor does cl 17 of SEPP 55, which sets out the requirements for remediation work, require that the DSI specifically address matters raised in the EPA Technical Note or the NEPM. Nevertheless, the DSI uses the NEPM to set the appropriate criteria for the assessment of the site samples, including the health screening levels. Consistent with the Guidelines, the DSI reports on the results of additional sampling carried out on the Site, and assesses the risk posed by a range of potential contaminants. This included identifying areas of concern from the preliminary site investigation, and undertaking intrusive investigations at areas of concern, and collecting soil, surface water and ground water samples. In considering the extent and degree of contamination, it concludes that there is no indication that contamination has migrated beyond the service station site, and that there was a potential linkage to the building occupant from soil vapour intrusion. As such, the DSI concludes that the Site is not suitable for the proposed development in its current state, but can be made suitable for the proposed use following the successful removal, remediation and validation of the underground petroleum storage system ("UPSS"). This is supported by the remedial action plan, notwithstanding that it pre-dates the DSI, which clearly outlines the objectives of the remediation, the steps for removal of the UPSS, and the validation criteria.
4. Thirdly, I am satisfied that the land will be suitable, after remediation, for the purpose of a caravan park and that the land will be remediated before it is used for that purpose, in accordance with the requirements of cl 7(1) of SEPP 55. I reach this satisfaction based on the evidence of Ms Robinson and the contents of the DSI and the remedial action plan. I am not confined to the contents of the DSI in considering whether the Site can be made suitable for the proposed development. Ms Robinson's evidence is that the successful remediation of the Site is protective of any vapour intrusion risk to occupants of the building as soil validation criteria include soil health screening levels for vapour intrusion relevant for a residential site, and a validation report will be required prior to any residential use. In other words, compliance with the soil validation criteria will mean that the soil vapour does not exceed the relevant criteria. Her evidence is also that, based on the levels of concentrations of hydrocarbon impacts to groundwater in monitoring wells, the location of those monitoring wells, the reduction in concentrations over a period of time, and the distance of the building from the tank pits and bowser area, the extent of impact beneath the building is likely to be limited and sampling within the building is not required. She also gave evidence that testing for vapour prior to consent would not change the form of the remedial action plan, and the presence of vapour or a vapour risk has been assumed for the purposes of the remedial action plan.
5. I do not accept the Council's submission that Ms Robinson's evidence cannot be relied upon because of a reference within the DSI that the building is unoccupied. Instead, I accept the submission made on behalf of Ingenia that the evidence of Ms Robinson and the substantive content of the DSI make it clear that it was known that the building is to be occupied for the purpose of the caravan park, which Ms Robinson, in both her evidence and the DSI, assessed as being for residential purposes. This is clear from Section 1.1 of the DSI, which states that the "objective of the DSI was to assess the suitability of the site for the proposed use as a lifestyle village", and recommends implementation of the remedial action plan to remove the UPSS and address soil and groundwater contamination. Further, the remedial action plan makes it clear, for the purpose of validation, that the site currently occupied by the service station "will be used in this development potentially as a community building as part of the proposed lifestyle village" (p 11).
6. There is no expert opinion evidence from Mr Fenning that contradicts the evidence of Ms Robinson. The evidence of Mr Fenning is instead confined to whether the DSI provides sufficient information by reciting the terms of the EPA Technical Note and the NEPM, without engaging with or contradicting the substantive evidence given by Ms Robinson. For example, Ms Robinson gives evidence of the likely extent of soil contamination in and around the UPSS in par 105 of the joint report (Ex 6), explains why sampling beneath the building could not be undertaken in par 106, and then states "whilst the extent of the impact to soil and groundwater immediately surrounding the UPSS is not defined the likely extent is known and the likely extent is sufficient information to inform the requirements for remediation". Instead of engaging with this opinion, Mr Fenning repeats that soil testing was not undertaken between the UPSS and the building and states "justification for not undertaking further investigation was not provided [in the DSI]". As such, there is no evidence that contradicts the expert opinion of Ms Robinson that the concentrations in monitoring wells and their locations means that the extent of impact beneath the building is likely to be limited (Ex 6 par 56), that validation samples at the perimeter of the building are likely to meet the validation criteria and further contingency options will not be required (Ex 6 par 161-162), and that the likelihood of not achieving successful validation is low (Ex 6 par 159). I therefore accept the evidence of Ms Robinson that the Site will be made suitable for the proposed use, following remediation.
7. For these reasons, I have considered the report of the preliminary site investigation pursuant to cl 7(2) of SEPP 55, and, taking into account the evidence of Ms Robinson and the content of the DSI and the remedial action plan, have reached the conclusion that the Site will be suitable, after remediation, for the purpose for which the development is proposed to be carried out. Further, I am satisfied that the land will be remediated before it is used for that purpose, as the conditions of consent agreed to by Ingenia include conditions requiring the Site to be remediated in accordance with the remedial action plan and requiring a validation report to be provided to and approved by the Council prior to the issue of an approval to operate for the first stage.

Displacement of tourist accommodation

1. The Council contends that the removal of 143 sites for short term accommodation (caravan sites) and the removal of 8 camping sites is contrary to the aim in cl 3(1)(a) of the SEPP 21 to encourage "the orderly and economic use and development of land used or intended to be used as a caravan park" (contention 4), and contrary to the requirement in cl 10(b) to consider "whether there is adequate provision for tourist accommodation in the locality of that land, and whether existing or potential tourist accommodation will be displaced by the use of sites for long-term residence" (contention 5).
2. There are four grounds that the Council advances as to why the removal of 143 short term caravan sites, and 8 camping sites, is unacceptable. The first is that their removal causes adverse economic impacts. The second is that their removal causes adverse social impacts. The third is that, to do so, is contrary to the aims, objectives and actions in the Mid Coast Council's Destination Management Plan ("the DMP") (contention 7). The fourth ground advanced by the Council as to why the removal of short term sites is unacceptable is that there is inadequate provision of alternative tourist accommodation in the locality, which is a relevant matter for consideration pursuant to cl 10(b) of SEPP 21. In support of each of these submissions, the Council relies on the expert opinion evidence of Dr Stubbs.
3. Ingenia instead submits that cl 3(1)(a) contains flexibility in relation to caravan parks catering for short-term residents or long-term residents, or catering for both. It relies on the evidence of Dr Coakes that there is adequate provision for tourist accommodation in the locality and the region. Ingenia also points out that it does not intend to re-establish the short term sites, use of which has ceased, so there is no loss of "potential" tourist accommodation that could cause an economic or social impact. Further, in relation to the DMP, Ingenia submits that the DMP does not advocate for caravan parks for short term tourist use, and makes little mention of caravanning and camping other than to outline that it has increased in popularity for domestic tourism.
4. Whilst I accept that the proposed development results in a loss of sites that could be made available for the accommodation of tourists in accordance with the previous use of the Site, I do not consider that this warrants its refusal, for the following reasons.
5. Firstly, I accept the submission of Ingenia that cl 3(1)(a) of SEPP 21 contemplates that caravan parks can provide accommodation "catering exclusively or predominantly for short-term residents (such as tourists) or for long-term residents, or catering for both" and nothing in cl 3(1) sets out an objective that one is preferred over the other.
6. Secondly, there is no evidence of actual quantitative economic impacts that will be occasioned by the proposed development. The Council relies on Dr Stubb's analysis of the objector evidence to support its position that there will be an economic impact. The concerns expressed by the objectors are that there will be a reduction in revenue for local businesses and a loss of employment opportunities as long-term residents will spend less money and with less frequency than tourists. However, this is not supported by quantitative evidence of any economic loss. As explained by Lloyd J in New Century Developments Pty Limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 at [61]: "the consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area (Dixon at [53]). In Broad, de Jersey J explained (at 304) that whilst the court is clearly entitled to have regard to the views of residents of the area, those views will be accorded little, if any, weight if there is no objective, specific, concrete, observable likely consequence of the establishment of the proposed use."
7. There is no objective, specific, concrete or observable evidence that the proposed development will cause any economic loss to local businesses or any job losses.
8. Thirdly, the social impacts relied upon by the Council are similarly confined to the analysis by Dr Stubbs of the concerns expressed by the objectors. That social impact is primarily the loss of opportunity for those who owned vans on the Site for temporary holiday use before that type of use ceased (see Ex 4 at par 8, 29-30). However, both Dr Stubbs and Dr Coakes agree that these impacts have already been experienced, due to annual site residents being given notice to vacate the Site in August 2018. The displacement of those without a freehold interest in the land by reason of the development of the land is a common unfortunate consequence of development, but it does not warrant its refusal. In the proposed development, the displacement is restricted to those who had "annual sites" and were limited to staying on those sites for 180 days per year. The 25 existing long-term residents will remain on the Site and be provided with accommodation throughout the construction of the proposed development, and will be managed through the provision of a Social Impact Management Plan. Therefore, none of the social impacts identified by Dr Stubbs warrant refusal of the development application.
9. Fourthly, I accept that there is adequate tourist accommodation in the locality in a range of price brackets. In considering whether there is adequate provision for tourist accommodation in the locality, there is no basis upon which I ought to confine my consideration to caravan parks or to tourist accommodation suitable for a particular demographic or in a particular price range. There are 380 caravan, camping and cabin sites across 5 caravan parks and campsites in the Pacific Palms area, which are located on, or close to, tourist attractions such as the beach or lake (Ex 4 par 15). Additionally, there are 9 caravan parks located around 20km north in the Forster/Tuncurry area and 700 caravan and camping sites operated by National Park and Wildlife Services across the Mid Coast region. The Pacific Palms area is also host to three holiday retreats and resorts, and over 150 homes listed for short term rental stays. Dr Coakes points out that, in accordance with the Mid Coast Council's Urban Land Monitor (2016), vacancy rates in the Pacific Palms locality in 2016 were higher than those in other centres. There is therefore a range of available tourist accommodation in the locality, in the form of camping and caravan parks, camping sites, holiday rentals, resorts and retreats. As set out in the report by Dr Stubbs dated 22 October 2020 (Ex 4 Appendix JS1), the cost of that accommodation ranges from $28 per night for a camping/caravan site in off peak periods to holiday rentals with a median cost of $266 a night in off peak periods. As a result, I do not accept Dr Stubbs' evidence that the remaining forms of tourist accommodation following the loss of the caravan and camping sites at Palms Oasis "would often be unsuitable and generally out of reach of families". For the same reason, I do not accept her evidence that the loss of the sites at Palms Oasis creates a "permanently lost opportunity for this form of holiday for families and people who would not be able to afford other holiday options available". Further, the shortage of vacancies in the Easter, Christmas and New Year period is typical across all holiday destinations, and is not an indicator of under supply. Indeed, Appendix 2 to the DMP makes it clear (at p 63) that "there may have been some oversupply in the market" for overnight accommodation in the region.
10. Fifthly, there is nothing in the DMP that the proposed development is contrary to. I accept the evidence of Dr Coakes in that regard. The focus of the DMP is on short and long term initiatives to attract and increase visitors to the area for the purpose of growing the visitor economy. The bulk of the DMP concerns providing signature and supporting experiences within the visitor market, and on marketing and branding strategies. None of the goals (p 11) concern the provision of accommodation. Although "Accommodation (Quality and Range)" is identified in the gap analysis (p 18), and there is recorded growth in camping and caravanning across NSW (pp 23-24), the focus of the high level objectives is nonetheless to "strengthen appeal of the destination to existing markets" and "target higher value markets" including by "development of higher yield experiences and accommodation offer". Similarly, none of the strategic themes (p 39) concern the provision of tourist accommodation. One of the action items is to develop a visitor accommodation strategy to: "adopt a proactive approach to attracting investment in a more diverse range of visitor accommodation. This includes ecolodges, holiday parks, nature-based accommodation and adaptive reuse of heritage assets for boutique accommodation."
11. This visitor accommodation strategy, which may or may not have eventuated, is described as being intended to audit existing visitor accommodation, but nothing in the description of the strategy seeks growth of accommodation for tourists. Indeed, nothing in the DMP sets out a growth target for tourist accommodation or sets a requirement that tourist accommodation is to be delivered in preference to the provision of other forms of accommodation. The Council's submission that the proposed development is contrary to the DMP is therefore unfounded and I do not accept Dr Stubbs' evidence in that regard.
12. Further, I accept Dr Coakes' evidence that the proposed development may serve to provide a more stable population in the locality, and reduce the hyper-seasonality over summer that creates a variation in population in the locality between high peak season and quieter winter months. The economic benefits of this are outlined in the Social Impact Assessment Update (April 2019), which compares the economic contribution of tourists to that of household expenditure of persons in NSW aged 65 years and over, and concludes that "the household expenditure of new residents associated with the proposed site would compensate for this loss over the course of the year, providing a stable source of income for local businesses" (Ex A, Tab 21, p 16).
13. For those reasons, the loss of the short term sites for tourist accommodation does not create a discernible unacceptable impact that warrants refusal of the proposed development. Nothing in cl 10(b) of SEPP 21 requires that I refuse the proposed development on the basis that existing or potential tourist accommodation will be displaced by the use of sites for long-term residence. Instead, I consider that there is adequate provision for tourist accommodation in the locality, and that the displacement of the tourist accommodation that was previously provided through the use of the short-term sites does not create an unacceptable impact.

Access to services and facilities

1. The Council contends that the proposed development does not have adequate access to shopping, commercial, community services and facilities, contrary to the matters required to be considered by cl 10(d) of SEPP 21, which also requires that the Court consider "whether those facilities and services are reasonably accessible to the occupants of the caravan park" (contentions 6, 9, 10 and 13(b)).
2. The proposed development includes a community building that will provide a communal kitchen, bar, outdoor recreation area, lounge, games area, library, pool/billiards area, laundry facilities and amenities.
3. In addition, the proposed development will include the construction of a footpath along the 250m distance between the driveway entrance to the Site and the intersection of Boomerang Drive with Reef Circuit, which will result in a walkable footpath from the Site to the Bluey's Beach shopping centre, a distance of around 1.1km.
4. The facilities and services at Bluey's Beach include a number of cafes, a medical centre, a pharmacy, osteopathy and chiropractic services, a natural health centre, pathology, a liquor store, and a newsagency that also sells supermarket goods, known as Blueys News and Supermarket.
5. Charlotte Bay shopping area is located around 1.3km from the site, although there is no formed walking path from the Site to the shopping area. The facilities and services at the Charlotte Bay shopping area include a Foodworks supermarket, a café, a post office, and a service station.
6. Ingenia intends to provide a private 12 seater bus service that is capable of accommodating persons with a disability, which will provide a daily service to Bluey's Beach and Charlotte Bay shopping areas, weekly scheduled services to Forster/Tuncurry, and a booking service for resident group social outings (see Ex H). The bus service will be owned/leased and operated by Ingenia, and will be available to park residents and visitors.
7. In addition to this, there is a public transport bus service, number 307, which operates on weekdays and services the bus shelter located immediately at the front of the Site when the driver is signalled. This bus service provides two services in the morning from the Site to Forster town centre, via Blueys Beach Shops and Elizabeth Beach. There is then an afternoon service for the return trip. The community facilities and services available at Forster include a Stockland shopping centre, the Forster Tuncurry Community Centre, golf club, the Great Lakes Aquatic and Leisure Centre, a hospital, and a range of medical services, cafes, restaurants, places of public worship and retail services.
8. In the opposite direction, the 307 bus service provides an afternoon service from the Site to Coomba Park, which could be used to access the Charlotte Bay shopping area.
9. Further, the Site is serviced by taxi and Uber services, and by MidCoast Assist, which offers a range of aging and disability transport services, including transport to and from appointments, shopping assistance, social outings and home maintenance.
10. In addition, the Pacific Palms Recreation Centre and Bowling Club both operate courtesy buses to and from their respective venues for residents in the surrounding suburbs.
11. The evidence is also that there is a high vehicle ownership amongst residents of the proposed development, such that 91.8% of residents will own at least one vehicle (Ex 4, Appendix JS1 p 136).

The Council's position concerning access to services and facilities

1. The Council submits that the community building provided on the Site will be insufficient to provide access to services and facilities. The Council's position is that the distance of the Site from the local shops, together with the fact that the distance is not walkable for a person with a disability and that the bus services don't cater for wheelchair access, means that the services and facilities are not reasonably accessible to the occupants of the caravan park. The Council says that the lack of access to services and facilities is likely to result in adverse social impacts, as it does not meet the needs of permanent older residents who will live on site and will age in place.
2. The Council relies on the evidence of Dr Stubbs, who opines that the demographic characteristics of the residents of the proposed development would include a "very old age profile", with a median age of 64 years, compared to a median age of 52 for the Mid Coast local government area and 43 for NSW. She opines that 13% would have a serious disability requiring assistance with core daily activities, and more than 8% will not own a motor vehicle. In circumstances where the proposed development is to be promoted as a lifestyle village for over 55s, this will result "in an even higher rate of disability than the average for local caravan parks". She therefore concludes that: "Excellent access to public transport, a walkable neighbourhood, and to the full range of services and facilities likely to be needed to meet the needs of people as they age, become less mobile and have increasing levels of disability are crucial to successful aging in place. Further considerations include the rapid cessation of driving after the age of 70-75 years of age, and the fact that people aged 70-75 and older use health services at around 2.5 times the average rate of usage. Although Blueys Beach shopping centre has a range of shops that would reasonably meet the daily and weekly needs of future residents, it does not have the range of higher order services and facilities likely to be needed, as listed above, and is not physically accessible."
3. Her evidence is that access is needed to full service supermarkets, general hospital, community health centre, a diversity of medical specialists and paramedical services, public library and other higher order services such as financial services, places of public worship and clubs, which can only be achieved by providing access to the Forster/Tuncurry regional centre on a daily basis. Mr Nash agreed with this evidence.
4. The Council therefore submits that the private bus provided by the proposed development must be wheelchair accessible and provide a daily service to Forster in order to meet the requirement for access to adequate services and facilities that are reasonably accessible to the occupants of the caravan park. Further, the Council submits that there is no evidence that the public transport 307 bus service has the capacity to accommodate those who will reside at the proposed development, or the capacity to expand their services, particularly in circumstances where it is also a school bus. Similarly, the Council submits that the evidence of Dr Coakes that the hospital transportation services for the entire Foster Hospital Catchment area had sufficient capacity to address the needs of the proposed 146 residents was an unquantified assertion. Further, the Council submits that there is no evidence that the medical centre at Blueys Beach has sufficient capacity to accommodate the provision of services to the residents of the proposed development.
5. The Council submits that the draft Plan of Management also fails to comply with the one of the essential requirements of Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 (Renaldo). The Council says that it was conceded by Dr Coakes and Ms Lourens in cross-examination that the requirements in the Plan of Management require absolute compliance to achieve an acceptable outcome.

Ingenia's position that there is adequate access to services and facilities that are reasonably accessible

1. Ingenia submits that the proximity of services, the available methods of transport and the proposal for a private bus ought to satisfy the Court that relevant services are available within the locality and will be reasonably accessible to the occupants of the caravan park.
2. Ingenia submits that the proposed development complies with Section 17.2.6 of the GLDCP, which requires the following: "a) The entrance of a development with more than 25% long-term/permanent occupancy sites, is to be within 400m of a bus stop serviced with daily bus services or provided with a private daily bus service for residents."
3. Ingenia says that the Site is within 400m of a bus stop that is serviced with a daily bus on Monday to Fridays, and a private daily bus service for occupants will be provided. It points out that the GLDCP does not require the bus to be wheelchair accessible. Indeed, Ingenia points out that the Council's requirement for a wheelchair accessible bus is more onerous even than what is required for a development application made pursuant to State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 ("SEPP HSPD"), which requires access to a bus service pursuant to cl 26(2)(c) but does not require the provision of an accessible private bus. In the circumstances of the proposed development, Ingenia is providing a private bus which will be accessible, however it will not provide for wheelchair bound persons. Ingenia submits that it is providing more than what would have been required had the SEPP HSPD applied to the development application.
4. Ingenia points out that the provision of the bus will be reviewed annually to ensure it meets the needs of the occupants of the proposed development, which is reflected in the draft Plan of Management. This includes an annual review mechanism which will involve an independent specialist consultant and consultation with the occupants and the park operator.

There is adequate access to community facilities and services

1. I consider that the necessary community facilities and services are available through a combination of the community building onsite and the locality, and that the facilities and services within the locality are reasonably accessible to the occupants of the caravan park.
2. The community building provides "community facilities and services" by the provision of facilities that can be enjoyed as a community, including the communal kitchen, bar, outdoor recreation area, lounge, games area and pool/billiards area, and by providing services through the library, laundry facilities and amenities.
3. The combination of high vehicle ownership, the weekday public transport to and from Forster, the daily private bus service to Blueys Beach and Charlotte Bay, the weekly private bus service to Forster, and the courtesy buses provided by the Pacific Palms Recreation Centre and the Bowling Club, mean that occupants of the proposed development will have ready access to all of the shops, community facilities and services at Blueys Beach shopping area, Charlotte Bay shopping area and Forster. Those without their own vehicle will have daily access to the facilities and services at Blueys Beach and Charlotte Bay by private bus, and access to Forster on weekdays by public transport and once a week by private bus.
4. These regular means of transport are also complemented by taxi and Uber services, and by MidCoast Assist, all of which enable the occupants to access community facilities and services in the local area using a demand-based service.
5. The sufficiency of the available means of transport is supported by the report of Dr Stubbs concerning the experience of residents who have lived on the site. They reported that "they were happy with local shops and services for 'day to day needs', and that the bus service was 'quite good' to larger service centres, although most drove" (Ex 4, Appendix JS1, p 45).
6. In addition, those with sufficient mobility (around 87% are not likely to require assistance with core daily activities) will be able to access Blueys Beach by footpath, once the new section of the footpath is completed.
7. I do not accept the Council's position that the lack of wheelchair accessible transport services is not acceptable. The Council has not identified any statutory or environmental planning basis for requiring wheelchair accessible bus services. I accept the submission of Ingenia that to so require is more onerous than the requirements of SEPP 21 and the GLDCP, and that it is even beyond the requirements for seniors living developments under the SEPP HSPD.
8. Further, contrary to the submission made by the Council, no analysis of the capacity of the public transport service is required. The Council has not established that the capacity of the service is a genuine issue, for example, by providing evidence that it is currently at full capacity. The evidence of the residents is that the bus service was "quite good". Further, I accept the evidence of Ms Lourens that the bus service will continually re-evaluate its services to ascertain whether the demand would create a need for additional services. I accept that evidence on the basis that, in relation to a public transport route, an assumption can be made that the provider of the service adjusts the level of service as demand changes. To require an analysis into the capacity of individual public transport services is unreasonable without the Council establishing that it is a genuine issue. Such an analysis is beyond the scope of the requirements of SEPP 21 and the GLDCP, and it is even beyond the requirements for seniors living developments under the SEPP HSPD. In any event, there is no basis for a conclusion that all 146 occupants of the proposed development will use the public bus service, in circumstances of high level of car ownership, the provision of a private bus and the walkable path to Blueys Beach.
9. Further, there is no requirement to assess the capacity of the doctor at Bluey's Beach to accommodate the increase by 146 "aged individuals", as contended by the Council. Given that the public bus service provides services to Forster, and many will have their own cars, there is no basis to assume all residents will seek to use the medical centre at Bluey's Beach.
10. Additionally, I do not accept that there is anything deficient about the draft Plan of Management. Contrary to the submission of the Council, the planning principle in Ronaldo is not authority for the refusal of a development application on the basis that strict compliance with the Plan of Management is required in order to achieve an acceptable outcome. To the contrary, Ronaldo simply requires consideration of the extent of impact for "a single breach or small number of breaches" (at [62]). The draft Plan of Management clearly sets out the requirements for the private bus service. If there is non- compliance with those requirements, then there may be a number of days that the residents will only be able to access shops through the public transport service on weekdays or by taxi. This is a temporary and minor inconvenience, but does not warrant refusal of the development application, particularly given that the current residents have reported their satisfaction with the current transport arrangements to local centres. The draft Plan of Management is supported by a condition of consent that requires the provision of the private bus service, and together, this will ensure that the bus service is provided for the life of the development.
11. For those reasons, I am satisfied that all of the necessary community facilities and services are reasonably accessible to the occupants of the caravan park, as they are available either through the community building or in the locality. Where those facilities and services are within the locality, they are reasonably accessible by the various means of transport described above.

Density of the proposed development

1. The Council contends that the proposed development will result in the site accommodating 91 long term residential dwellings, which creates a residential density that is equivalent to a R3 Medium Density Residential zone under the GLEP 2014 and is unacceptable in the context of the RE2 zoning and the remote location of the site.
2. The Council's contention is supported by the evidence of Mr Nash, who opines that "it is reasonable … to characterise the density of the proposed Manufactured Home Estate as being that equivalent to a R3 Medium Density Residential zone which is not compatible with the objectives and purpose envisaged under the RE2 Private Recreation zone under the Great Lakes LEP 2014" (Ex 5 p 30).
3. Ingenia instead submits that the proposed development is less dense than the approved operation of the Site, and complies with all of the requirements of the Regulation that control matters that are relevant to density. It relies on the evidence of Ms Lourens, who opines that the proposed development is properly characterised as a caravan park located in a zone in which it is permissible and designed to meet the requirements of the Regulation.
4. In addition, Ms Lourens points out that there is no minimum dwelling site area specified in SEPP 21 for a caravan park, but that cl 85 of the Regulation specifies a minimum area of 80m² for long term sites. The majority of the long term sites are sized between 250m²-270m², which significantly exceeds the minimum size for long term sites. Ingenia submits that this is the appropriate control on density, which must be assumed to be the benchmark for design and facilitates affordability.
5. Further, the Site has an area of 7.39 ha (73,900m²). Ingenia submits that this equates to 1 dwelling per 812m², which is not suggestive of the density of R3 Medium Density Residential zone. Ingenia points out that the Council has recently approved a 77 lot residential subdivision directly across the road from the Site, where the majority of the lots on this R2 land are between 550-750m².
6. Ingenia also points out that it will require further approvals under the Regulation, which will require compliance with Part 3 Div 3, which include:

• Clause 83 - Minimum size of caravan park or camping ground.
• Clause 84 - Community amenities.
• Clause 85 - Size of dwelling sites and camp sites.
• Clause 86 - Site identification.
• Clause 87 - Dwelling sites to have a road frontage.
• Clause 88 - Setbacks of community buildings.
• Clause 89 - Setbacks of dwelling sites and camp sites from road frontages.
• Clause 90 - Use of buffer zones.
• Clause 91 - Separation distances.

1. Ingenia points out that the Council does not contend that any of the above requirements, which are relative to the density of the built form, are not achievable as a consequence of the proposed site lot layout.

The density is acceptable

1. The Council's contention on density should be rejected, for the reasons submitted by Ingenia. I do not accept the evidence of Mr Nash that the density of the proposed development should be characterised as "being that equivalent to a R3 Medium Density Residential zone". The proposed development is for a caravan park, which is permissible in the RE2 private recreation zone and meets a specific objective of the zone. Contrary to the evidence of Mr Nash, there is nothing about the use of the proposed development that changes its characterisation from that of a caravan park. Long term sites, which may be used as a person's residence, are equally part of the use for the purpose of a caravan park as short term sites.
2. The assessment report dated 24 July 2019 (Ex 5 Appendix B) acknowledges that the proposed development complies with Part 3 Div 3 of the Regulation concerning the total land area, the size of the community amenities, the size of the long-term sites, road frontage, setbacks and separation distances. There is no evidence to contradict this position. The proposed development provides site areas for long-term sites that are three times the minimum size under the Regulation, and therefore provides less dense development than what is potentially possible for a caravan park in the zone. The Council has not identified any other control on the development of caravan parks that regulates density. The density of the proposed development is therefore clearly consistent with the character intended for the RE2 private recreation zone, which specifically seeks to provide for caravan parks and relies on the provisions of the Regulation to regulate the size of the sites.

Whether the proposed use is particularly suitable

1. The Council argues that the proposed development is contrary to cl 10(a) of SEPP 21, which requires consideration of "whether, because of its location or character, the land concerned is particularly suitable for use as a caravan park for tourists or for long-term residence". The basis for the Council's position is that the location is isolated and the public transport service is inadequate, and the character of the proposed development is contrary to the desired future character for the Pacific Palms locality. The desired future character is expressed in Section 3.2.1.2 of the GLDCP as follows: "The desired future character of the Pacific Palms locality is derived from its inherent natural attributes associated with the National Park, Wallis Lake and proximity to the expansive Pacific Ocean and Marine Park. The beachside villages will continue to be defined and contained by the existing green spaces associated with Booti Booti National Park, Wallis Lake and the Pacific Ocean. Hand in hand with protection of the existing natural assets and vegetation will be the creation of a safe environment for people and assets from bushfire hazard. The overall built form of the locality is to be of a high quality design with an architecture suited to a sensitive coastal location. A low scale 'bushy' coastal setting is to be maintained by small scale sympathetic infill development in the low density residential areas and sensitive low scale development in the low density greenfield areas. Areas zoned for open space purposes and environmental protection purposes are to be maintained as natural assets for the locality. The Blueys Beach Neighbourhood Centre is to function as the main village service centre; it will serve the daily retail and service needs of the locality with a predominance of small specialised business."
2. Specifically, the Council submits that the proposed development does not maintain the "low scale 'bushy' coastal setting", which is required to be "maintained by small scale sympathetic infill development in the low density residential areas and sensitive low scale development in the low density greenfield areas".
3. Contrary to the position of the Council, I consider that due to the location and character of the Site of the proposed development, the land is particularly suitable for use as a caravan park predominantly for long-term residence. I note that, in considering the location of the proposed development pursuant to cl 10(a) of SEPP 21, there is no requirement to consider accessibility to services and facilities for those in a wheelchair, contrary to what is put by the Council.
4. Firstly, I accept that the location is particularly suitable given that it is in a zone in which caravan parks are specifically sought in the objectives, it is on a public transport route with a bus stop directly in front that provides weekday access to both Blueys Beach shopping precinct and Forster, a walkable path will be available for future occupants so that they can walk to Blueys Beach shopping area, and the short distance from the Blueys Beach shopping area also enables easy access for the high proportion of occupants who will have their own vehicle. As acknowledged in the desired future character statement above, the "Blueys Beach Neighbourhood Centre is to function as the main village service centre; it will serve the daily retail and service needs of the locality with a predominance of small specialised business."
5. Secondly, the character of the land makes it particularly suitable for use as a caravan park for long-term residence in circumstances where it has an existing approval as a caravan park, and where long-term sites continue to be occupied by long-term residents of the Site. That is, its existing use as a caravan park and occupation by long-term residents means that it already forms part of the character of the area.
6. In support of its position that the character of the land was not particularly suitable for long-term residence, the Council relied on an admission by Ms Lourens that the proposed development is not consistent with the desired future character of the locality. This was not the admission made by Ms Lourens. Instead, she agreed that the character of the proposed development was not a "'bushy' coastal setting", notwithstanding that nothing in the GLDCP requires it to be of that character. The GLDCP statement is for such a setting to be "maintained by small scale sympathetic infill development in the low density residential areas and sensitive low scale development in the low density greenfield areas" (emphasis added). The Site is neither a low density residential area, nor a greenfield area. It is a RE2 Private Recreation zone rather than a "low density residential area", and it cannot be described as a "greenfield area", which is a term used to describe an area of vacant or rural land that is available for urban development (see Ryan v Port Stephens Council [2008] NSWLEC 66 at [33]).
7. Instead, its location in a RE2 Private Recreation zone, on a public transport bus route with weekday services, and around 1.1km walk or drive from Blueys Beach shopping area, together with the fact that it is currently approved for use as a caravan park with both short and long term sites, make it clear that it is suitable for the proposed use of predominantly long term residence.

Adverse amenity impacts

1. The Council contends that the proposed development has an adverse impact on the amenity of adjoining neighbours and residents of the retained long term sites in the eastern portion of the Site. There are two sources of impact that it identifies. The first is the extent of visibility of the proposed lots 116, 118 and 119 and the five retained long term sites from the adjoining sites that form part of the Blueys Ridge estate, where four of the dwellings in the estate will be located. The evidence of Mr Nash and Ms Lourens is also that the rear private open space of proposed lots 116, 118 and 119 and the five retained long term sites will be overlooked by those four dwellings, although this was not raised as a contention. The second source of impact that the Council has identified is that the construction of the footpath will create overlooking of the five retained long term sites.
2. None of these amenity impacts warrant refusal of the proposed development. Firstly, in terms of the visual outlook from the adjoining residential dwelling sites that form part of the Blueys Ridge Estate, I accept the evidence of Ms Lourens that the existing outlook is undesirable given the poor state of repair of the existing caravan park, and that the proposed redevelopment will provide a significantly more desirable outlook for both existing and neighbouring residents. Secondly, the overlooking from those four residential dwelling sites toward the rear private open space of proposed lots 116, 118 and 119 and the five retained long term sites is not exacerbated in any way by the proposed development. Rather, that overlooking is comparable to what would occur if the caravan park was in full operation as approved. Thirdly, this overlooking will be mitigated by the landscaping that forms part of the proposed development. Although a final landscape plan has not yet been prepared, there is a significant area for landscaping that forms part of the site layout, and the current landscape plan clearly shows that there will be "planting of large trees and shrubs to provide privacy on eastern boundary" (Ex A Tab 9). Fourthly, existing vegetation will provide screening from overlooking from the shared pathway. The existing vegetation, combined with the provision of new landscaping, the separation distance between the pathway and the existing sites, and the transient use of the pathway, is such that any overlooking will be minimal and not unacceptable.
3. For those reasons, none of the amenity impacts identified by the Council warrant refusal of the development application.

Compliance with the Regulations

1. The Council contends that the proposed facilities for the 13 short term sites do not comply with the Regulations in respect to the provision of accessible parking (cl 98), the provision of accessible shower/toilet and associated facilities (cl 108), the provision of ironing facilities (cl 118), and the provision of a Plan of Management to comply with cll 121-123 and 125-126. The Council also says that the proposal to build the moveable homes in situ is contrary to cll 124 and 135.
2. Contrary to the Council's contention, accessible parking is provided in 3 accessible parking spaces, in accordance with cl 98. The Council has not identified any manner in which those parking spaces breach the requirements of AS/NZS 2890.1:2004. Further, the distance of the spaces from the short-term sites is not unacceptable in circumstances where visitors to the short term sites would generally park on the sites. In that respect, I accept the evidence of Ms Lourens, as follows: "Visitors to the short term sites are expected to park their vehicles on the designated sites as is typical for any short term caravan park site. In the event that visitors to the short term sites require use of an accessible parking space, they are able to use one of the designated spaces located across the site."
3. In relation to the provision of accessible shower/toilet and associated facilities (cl 108), Ingenia has agreed to a condition of consent that requires the installation of an access ramp to the community facility that complies with the AS1428:2009 Design for Access and Mobility at the completion of Stage 1 civil works, as well as the installation of an accessible toilet/shower within the facility prior to the approval to operate for the Stage 2 works.
4. The evidence of Ms Lourens, which I accept, is that ironing facilities can be provided within one of the two designated laundry areas identified on the community facility proposed floor plan. This will be required to be addressed as part of the application to operate the caravan park, which is required by s 68 of the Local Government Act.
5. Clauses 121-123 and 125-126 concern operational requirements, including the maximum number of persons per dwelling site or camp site (cl 121), maintaining a register of occupiers (cl 122), the information that is to be given to the prospective occupiers (cl 123), and requirements concerning a community map (cll 125-126). There is no evidence that cll 121-123 and 125-126 cannot be met by the proposed development, and there is no basis for the Council's contention that they are required to be addressed in the development application process through a proposed Plan of Management. In the absence of evidence that cll 121-123 and 125-126 cannot be complied with or impose some obligation that needs to be satisfied prior to the grant of consent, I accept the evidence of Ms Lourens that compliance with these matters can be addressed during the operational phase and will be required to be addressed as part of the s 68 application.
6. Finally, cll 124 and 125 prevent the use of a caravan park for the manufacture, construction or reconstruction of moveable dwellings and require that relocatable homes are to be constructed and assembled off-site. Whilst Ingenia intends to seek approval for the construction of dwellings in-situ and will make an objection under s 82 of the Local Government Act against the provisions that require their construction off-site, that does not form part of this proposed development. As set out in the evidence of Ms Lourens in the joint report, this is clear from the Statement of Environmental Effects, which states: "Separate application will be made to Council under the Local Government Act 1993, seeking the following: • Application to install moveable dwellings and operate a caravan park under Section 68 of the Local Government Act 1993 (LG Act); and • Objection under Section 82 of the LG Act against provisions in the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005, which require the construction of moveable dwellings off-site. It is proposed to construct the relocatable dwellings in-situ, rather than transporting modular sections of dwellings to the site for installation."
7. The evidence of Ms Lourens concerning the proposal to construct the dwellings in-situ is as follows (Ex 5 p 26): "There are a number of significant benefits to building relocatable dwellings in-situ. This includes improved accessibility, providing for ground level access and avoiding the need for stairs. This is highly beneficial for the target market and contributing toward resident safety. In the event that a future Section 82 objection is lodged and not supported, the applicant will be required to transport modular sections of dwellings to the site for installation in accordance with the regulations."
8. The installation of the dwellings does not form part of the proposed development before the Court, and I accept the evidence of Ms Lourens that there is a basis for lodging an objection against the provisions in the Regulation, which Ingenia is entitled to do when it makes its application pursuant to s 68 of the Local Government Act.
9. For the above reasons, none of the matters raised by the Council that arise from the Regulation warrant refusal of the proposed development. Further, the parties agree to a condition of consent that requires compliance with the requirements of Part 3 Div 3 of the Regulation, or any approved objection pursuant to s 82 of the Local Government Act.

Displacement of long-term residents

1. The Council contends that the proposed development is contrary to cl 10(c) of SEPP 21 as there is inadequate low cost housing, or land for low cost housing, for the existing long term residents who will be displaced from the Site due to its redevelopment.
2. However, none of the current residents of the Site will be displaced from the Site due its redevelopment. All of the existing residents have indicated their preference to remain within the park (Ex 4, p 13). The majority of them, 17, occupy sites identified for retention, and they can remain there on an ongoing basis. Another 8 occupants, across 4 caravans and 4 mobile homes, will need to be relocated from their existing sites to other sites or mobile homes within the park, and will be offered accommodation within the park that is superior to their current accommodation at no additional expense to them. Dr Stubbs and Dr Coakes agree that this can be managed through a social impact management plan.

Outcome of the appeal and the appropriate conditions of consent

1. I have therefore determined that none of the contentions raised by the Council are established on the evidence or warrant refusal of the development application. Instead, the alterations and additions sought by the proposed development are an acceptable outcome for the Site. As set out above, remediation will be carried out on the Site to make it suitable for the proposed use, the Site is located in a zone that has a specific objective for the provision of caravan parks, the Site is on a public transport bus route with weekday services to Blueys Beach and Forster, and there will be a walkable path of around 1.1km to Blueys Beach. I have considered the matters required to be considered by cl 10 of SEPP 21, and pursuant to cl 8(2) of SEPP 21 I also find that 91 sites are appropriate for long term accommodation and 13 sites are suitable for short term accommodation. Development consent should therefore be granted subject to appropriate conditions.

Conditions of consent

1. There are a number of conditions of consent that were in dispute between the parties.
2. The Council seeks the imposition of deferred commencement conditions. The first two require additional site investigations to determine the extent of soil contamination and potential vapour impact, and the preparation of a remedial action plan. Given my findings in [63]-[69] above, the site investigations carried out to date are adequate to satisfy me that the Site can be made suitable for the proposed use following the carrying out of remediation work in accordance with the remedial action plan dated September 2018. Accordingly, neither of those conditions are required.
3. The third deferred commencement condition sought by the Council requires that, if the community building is required to be demolished by the remedial action plan, separate consent is to be obtained for its demolition and reconstruction. There is no basis for this condition to be imposed on its terms, or as a deferred commencement condition. The remedial action plan dated September 2018 does not require the demolition of the community building, and the evidence of Ms Robinson is that it is unlikely that contamination is under the building such that its demolition is required. Ingenia has alternatively proposed an operational condition that requires development consent if "the outcome of the Remediation Action Plan requires demolition or reconstruction of the community building or requires building works to be carried out" (condition 6). The condition proposed by Ingenia is sufficient to deal with the unlikely event of the remediation works resulting in works being required to the community building.
4. The fourth deferred commencement condition sought by the Council requires the preparation of a detailed landscape plan. The Council submits that it is appropriate as a deferred commencement condition so as to prevent it being approved by a private certifier. This alone is not a sufficient basis for imposing the requirement as a deferred commencement condition, and I prefer Ingenia's alternative condition that acknowledges that there are already landscape plans that are acceptable but requires an amended landscape plan to address specific matters to be approved by the Council prior to the issue of a construction certificate (condition 20 of Annexure A).
5. In relation to the remaining conditions in dispute, I determine each in favour of Ingenia, for the following reasons:

• There is no basis in SEPP 21 for the imposition of a "maximum number of new sites that may be able to be used for long term residents" or a "minimum number of short-term sites", as proposed by the Council in condition 2. The imposition of a condition that specifies the maximum number of long term sites across the whole of the Site, which is 91, is sufficient to satisfy the requirements of cl 8(3) of SEPP 21.
• The Council has not advanced any evidentiary or policy basis upon which a condition should be imposed requiring kerb and gutter, and half road carriageway construction, from the driveway to the western side of the proposed stormwater control area. Whilst I accept it ought to be provided where the footpath is to be constructed from the property entry east up to the kerb and gutter in front of the adjoining site at 295 Boomerang Drive, there is no evidence that it is required on the western side of the driveway of the Site for an engineering reason or based on a planning control. As such, I cannot be satisfied that such a requirement falls within s 4.17(1) of the EPA Act or is appropriate.
• The Council has not advanced any evidentiary or policy basis upon which a condition should be imposed requiring the full width asphaltic concrete resheet of the road carriageway, and as such I cannot be satisfied that such a condition falls within s 4.17(1) of the EPA Act or is appropriate.
• I do not accept that the community bus needs to provide daily services to Forster/Tuncurry, for the reasons set out above concerning the high level of car ownership, the location of the Site on a public transport route with weekday services to Forster, and the daily community bus service to Blueys Beach and Charlotte Bay shopping areas. However, I have inserted the word "weekly" to make it clear that the bus should be made available for weekly scheduled services to Forster/Tuncurry, consistent with what is proposed in the draft Plan of Management (Ex H).

1. Annexure A to the orders sets out the final conditions of consent that I consider appropriate.

Final orders

1. The Court orders that: 1. The appeal is upheld. 2. The development application for alterations and additions to an existing caravan park at 321 Boomerang Drive, Blueys Beach, is granted subject to the conditions of consent in Annexure A. 3. Exhibits 1-3 and 6-10 are returned.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 March 2021