Oxford Street Holdings Pty Ltd v Mid-Coast Council

The Site and Locality

1. The subject site is described as Lot 2 in DP 1012758, currently known as 6 Waratah Close, and Lot 312 in DP 774361 currently known as 1 Bottlebrush Close, Green Point. The subject site has an area of 5.59 hectares and is located on the northern side of the Green Point Village residential area. The site has existing access to Lot 2 from Waratah Close and to Lot 312 from Bottlebrush Close.
2. As part of the development, vehicular access to the subject site is proposed from Bottlebrush Close, off Green Point Drive, which is the main access to the village of Green Point.
3. The subject is generally flat, with increased slopes in the southern parts of the site of approximately six degrees (Exhibit B). It contains limited vegetation in a managed setting and the vegetation is predominantly located on Lot 312.
4. The sites northern boundary is adjacent wetlands and the Booti Booti National Park.
5. The existing development fronting Green Point Drive is small scale residential development. Within Bottlebrush Close there is a small recreation reserve, community hall and tennis courts.
6. The subject site also has frontage to Waratah Close, but no access is proposed from this road. The site adjoins the rear boundaries of a series of residential dwellings which front Seabreeze Parade.
7. The location of the subject site, and the proposed development is identified in the following aerial photo: (Exhibit 9)

Relevant Planning Controls

1. As the site contains a registered Aboriginal site, pursuant to s 4.46(1) of the EPA Act it is integrated development. An Aboriginal Cultural Heritage Report was submitted with the development application and referred to the Office of Environment and Heritage who have advised that they have no objections to the application, subject to the imposition of conditions of consent.
2. The subject site is mapped as 'bushfire prone land' and, in accordance with s4.14 of the EPA Act, is integrated development. The application was referred to the NSW Rural Fire Service who have issued a Bushfire Safety Authority, subject to conditions. These conditions have been addressed by the amended plans or incorporated in the draft conditions of consent.
3. The subject site is zoned RU2 - Rural Landscape zone under the provisions of the Great Lakes Local Environmental Plan 2014 (LEP 2014). The aims of LEP 2014 relevant to the subject application are: (a) to facilitate the orderly and sustainable economic development of land, … (c) to protect and enhance environmental, scenic and landscape assets, … (g) to promote public transport patronage and encourage walking and cycling, … (i) to minimise land use conflict, …
4. The consent authority must have regard to the objectives for development in a zone when determining a development application. The objectives of the RU2 - Rural Landscape zone are: •To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. •To maintain the rural landscape character of the land. • To provide for a range of compatible land uses, including extensive agriculture. •To provide for rural tourism in association with the primary industry capability of the land which is based on the rural attributes of the land. • To secure a future for agriculture in the area by minimising the fragmentation of rural land and loss of potential agricultural productivity.
5. The Respondent argues that the development is inconsistent with the zone objective 'to maintain the rural character of the land'.
6. The development application seeks approval for a 'manufactured home estate'. This use is not defined in LEP 2014. However, a 'caravan park' is a permissible use in the RU2 - Rural Landscape zone.
7. SEPP 36 applies to the proposed development. Clause 6 of SEPP 36 states that development for the purposes of a manufactured home estate may be carried out on any land on which development for the purposes of a caravan park may be carried out, with the exception of areas excluded by Schedule 2 of the instrument.
8. The parties accept that none of the exclusions in Schedule 2 of SEPP 36 applies to the subject application as the subject land is identified in the Mid North Coast Regional Strategy (March 2009) as part of the 'Great Lakes North urban growth area' as endorsed by the Minister for Planning. This notation is replicated in the Hunter Regional Plan 2036.
9. The preceding provisions of SEPP 36 result in a manufactured home estate being a permissible use on the subject site.
10. The aims of SEPP 36 are: (a) to facilitate the establishment of manufactured home estates as a contemporary form of medium density residential development that provides an alternative to traditional housing arrangements, and (b) to provide immediate development opportunities for manufactured home estates on the commencement of this Policy, and (c) to encourage the provision of affordable housing in well designed estates, and (d) to ensure that manufactured home estates are situated only in suitable locations and not on land having important resources or having landscape, scenic or ecological qualities that should be preserved, and (e) to ensure that manufactured home estates are adequately serviced and have access to essential community facilities and services, and (f) to protect the environment surrounding manufactured home estates, and (g) to provide measures which will facilitate security of tenure for residents of manufactured home estates.
11. Clause 9(1) of SEPP 36 states: A council may grant a development consent pursuant to this Policy allowing development for the purposes of a manufactured home estate only if it is satisfied: (a) that each of the sites on which a manufactured home is or will be installed within the manufactured home estate is or will be adequately provided with reticulated water, a reticulated sewerage system, drainage and electricity, and (b) that the manufactured home estate is or will be provided with adequate transport services, and (c) that sufficient community facilities and services, whether situated within or outside the estate, are or will be available and reasonably accessible to the residents of the manufactured home estate, and (d) that the development will not have an adverse effect on any: • conservation area • heritage item • waterway or land having special landscape, scenic or ecological qualities, which is identified in an environmental planning instrument applicable to the land concerned.
12. The satisfaction of cl 9(1)(b),(c) and (d) are in dispute between the parties.
13. Pursuant to cl. 9(2) the consent authority is also required to consider: (a) the cumulative impact of the proposed development and other manufactured home estates in the locality, (b) any relevant guidelines issued by the Director, (c) the provisions of the Local Government (Manufactured Home Estates) Transitional Regulation 1993.
14. Clause 7(3) of SEPP 36 provides that nothing in that Policy requires a separate development consent to authorise the placing of each manufactured home within a manufactured home estate. As such all matters of significance are required to be addressed and determined at this stage: Wakefield Planning Pty Limited v Yass Valley Council [2014] NSWLEC 1131 at [87]-[88].
15. SEPP 71 was repealed on 3 April 2018. By virtue of cl 21(1) of State Environmental Planning Policy (Coastal Management) 2018 (Coastal SEPP), the provisions of SEPP 71 apply to the proposed development as the subject site is located in the Coastal Zone and the development application was lodged, but not finally determined, prior to the repeal of SEPP 71.
16. Clause 7(a) of SEPP 71 requires the consent authority to take into consideration the matters listed under cl 8 of the SEPP in determining a development application. Clause 8 states: The matters for consideration are the following: (a) the aims of this Policy set out in clause 2, (b) existing public access to and along the coastal foreshore for pedestrians or persons with a disability should be retained and, where possible, public access to and along the coastal foreshore for pedestrians or persons with a disability should be improved, (c) opportunities to provide new public access to and along the coastal foreshore for pedestrians or persons with a disability, (d) the suitability of development given its type, location and design and its relationship with the surrounding area, (e) any detrimental impact that development may have on the amenity of the coastal foreshore, including any significant overshadowing of the coastal foreshore and any significant loss of views from a public place to the coastal foreshore, (f) the scenic qualities of the New South Wales coast, and means to protect and improve these qualities, (g) measures to conserve animals (within the meaning of the Threatened Species Conservation Act 1995) and plants (within the meaning of that Act), and their habitats, (h) measures to conserve fish (within the meaning of Part 7A of the Fisheries Management Act 1994) and marine vegetation (within the meaning of that Part), and their habitats (i) existing wildlife corridors and the impact of development on these corridors, (j) the likely impact of coastal processes and coastal hazards on development and any likely impacts of development on coastal processes and coastal hazards, (k) measures to reduce the potential for conflict between land-based and water-based coastal activities, (l) measures to protect the cultural places, values, customs, beliefs and traditional knowledge of Aboriginals, (m) likely impacts of development on the water quality of coastal waterbodies, (n) the conservation and preservation of items of heritage, archaeological or historic significance, (o) only in cases in which a council prepares a draft local environmental plan that applies to land to which this Policy applies, the means to encourage compact towns and cities, (p) only in cases in which a development application in relation to proposed development is determined: (i) the cumulative impacts of the proposed development on the environment, and (ii) measures to ensure that water and energy usage by the proposed development is efficient.
17. Relevant to subcl (a) the aims of SEPP 71 are: (a) to protect and manage the natural, cultural, recreational and economic attributes of the New South Wales coast, and (b) to protect and improve existing public access to and along coastal foreshores to the extent that this is compatible with the natural attributes of the coastal foreshore, and (c) to ensure that new opportunities for public access to and along coastal foreshores are identified and realised to the extent that this is compatible with the natural attributes of the coastal foreshore, and (d) to protect and preserve Aboriginal cultural heritage, and Aboriginal places, values, customs, beliefs and traditional knowledge, and (e) to ensure that the visual amenity of the coast is protected, and (f) to protect and preserve beach environments and beach amenity, and (g) to protect and preserve native coastal vegetation, and (h) to protect and preserve the marine environment of New South Wales, and (i) to protect and preserve rock platforms, and (j) to manage the coastal zone in accordance with the principles of ecologically sustainable development (within the meaning of section 6 (2) of the Protection of the Environment Administration Act 1991), and (k) to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area, and (l) to encourage a strategic approach to coastal management.
18. It is agreed between the parties that the submitted report by Travers Bushfire and Ecology (2017) confirms that the subject site does not meet the definition of Core Koala Habitat as defined by State Environmental Planning Policy 44 - Habitat Koala Protection and a Koala Plan of Management is not required.
19. State Environmental Planning Policy (Primary Production and Rural Development) 2019 commenced on 28 February 2019. Clause 9 states: If a development application has been made before the commencement of this Policy in relation to land to which this Policy applies and the application has not been finally determined before that commencement, the application must be determined as if this Policy had not commenced. Accordingly, this instrument does not apply to the current application.
20. State Environmental Planning Policy (Rural Lands) 2008 applies to the development as it seeks a boundary adjustment (subdivision) as part of the application. This policy requires all development undertaken on land within a rural zone to be considered against the 'Rural Planning Principles' and the 'Rural Subdivision Principles' at cl 7 and 8 of the instrument.
21. Further, the Respondent argues that the consent authority is required to consider the matters listed in cl 10 of the instrument prior to the determination of an application where a subdivision of land is proposed 'to be used for the purposes of a dwelling' (cl 10(2)(a)). Those matters are: (a) the existing uses and approved uses of land in the vicinity of the development, (b) whether or not the development is likely to have a significant impact on land uses that, in the opinion of the consent authority, are likely to be preferred and the predominant land uses in the vicinity of the development, (c) whether or not the development is likely to be incompatible with a use referred to in paragraph (a) or (b), (d) if the land is not situated within a rural residential zone, whether or not the development is likely to be incompatible with a use on land within an adjoining rural residential zone, (e) any measures proposed by the applicant to avoid or minimise any incompatibility referred to in paragraph (c) or (d).
22. The application is also subject to the provisions of LEP 2014. The clauses of the instrument applicable to the proposed development (in addition to those identified at [17] and [20] are as follows:

• Clause 4.1: Minimum subdivision lot size - In the RU2: Rural landscape zone the minimum lot size is 40ha.
• Clause 4.1(C): Exceptions to minimum subdivision size for boundary adjustments - The objective of this clause is to permit boundary adjustments between 2 or more lots where one or more of the resulting lots will be less than the minimum.
• Clause 7.1: Acid sulfate soils - subcl (3) states that development consent must not be granted under this clause for the carrying out of works unless an acid sulfate soils management plan has been prepared for the proposed works. An updated acid sulfate soils management plan is tendered as Exhibit F.
• Clause 7.2: Earthworks - subcl (3) requires the consent authority to consider specific matters prior to consent. Specifically: (a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development, … (d) the effect of the development on the existing and likely amenity of adjoining properties, .. (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
• Clause 7.3: Flood Planning - subcl (3) requires the consent authority to satisfied of the following prior to the grant of consent. Specifically: (a) is compatible with the flood hazard of the land, and (b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.
• Clause 7.5: Stormwater Management - subcl (2) requires the consent authority to satisfied of the following prior to the grant of consent. Specifically: (a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and (b) is designed to minimise the use of impervious surfaces on the land, directing run off to piped drainage systems and waterways, and (c) is designed to integrate water sensitive design measures, including stormwater, groundwater and waste water management, to minimise environmental degradation and to improve the aesthetic and recreational appeal of the development, and (d) incorporates an appropriately managed and maintained stormwater management system that will maintain or improve the quality of stormwater discharged from the land, and (e) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and (f) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland, groundwater, wetlands and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

1. The Respondent argues that the proposed boundary adjustment is inconsistent with cl 4.1C(3)(b) in that the boundary adjustment will result in an increase in the 'opportunities for dwellings on each lot'. The clause states: (3) Despite clause 4.1, development consent may be granted for the subdivision of land by way of an adjustment of boundaries between adjoining lots where the size of one or more of the lots resulting from the subdivision would be less than the minimum lot size shown on the Lot Size map in relation to the land if the consent authority is satisfied that the subdivision will not result in: (a) an increase in the number of lots, or (b) an increase in the number of dwellings or opportunities for dwellings on each lot.
2. As the site contains a registered aboriginal site of heritage significance, cl 5.10 Heritage conservation applies to the site. The objectives of cl 5.10 of LEP 2014, 'Heritage Conservation' at subcl (1), are to conserve the environmental heritage of Great Lakes; to conserve the heritage significance of heritage items, including associated fabric, setting and views; to conserve archaeological sites and to conserve Aboriginal objects and places of heritage significance. The consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area, at subcl (4).
3. The application is subject to the provisions of the Great Lakes Development Control Plan 2014. The relevant provisions are detailed in the following, where relevant.

Public Submissions

1. The application was advertised in accordance with Council's policy and residents/property owners within the vicinity of the subject site were notified of the proposed development. As a result of this notification 73 submissions were received by the Council. A petition of 165 signatories was also received in opposition to the development. One submission was received in support of the application. The submissions in objection raise the following concerns:

• That the scale, lot and building size proposed are not consistent with the existing village.
• That the development proposes an unreasonable increase in population density, traffic and impacts on residential amenity.
• The development of 87 new permanent dwellings in a caravan park is not appropriate.
• The development is inconsistent with the provisions of SEPP 71. In particular, as it will detract from the scenic qualities of the coastal location and adversely impact on existing wildlife and plants. The development is contrary to the strategic approach to coastal management.
• It represents a gated community with potential anti-social outcomes.
• The proposed facilities within the development will not be accessible to existing Green Point residents. However, the existing community facilities in the village run by the progress association will be available to the new residents. This will over-tax the existing facilities.
• The development is inconsistent with the rural zoning of the land.
• The development is inconsistent with a previous Council resolution that required a minimum site area of 600m² for new lots in the village.
• Additional vehicle trips generated by the development will impact the safety of the intersection of Green Point Road and The Lakes Way. Further, the width of Green Point Road is unsuitable for the additional traffic generated.
• Large vehicles associated with the construction of the proposed development, delivery and removal of the homes and recreational vehicles such as caravans, RVs and boats will impact existing residents and infrastructure.
• The risk arising from a single egress from Green Point in the event of a bush fire will be exacerbated by the increased population proposed by the development.
• The absence of facilities and services in the village of Green Point and inadequate public transport will result in residents having to use private cars to access services in Foster and Tuncurry.
• That the development will case adverse stormwater impacts and the proposed rain gardens will exacerbate the breeding of mosquitos.
• The proposed fill will impact water drainage from adjoining properties.
• The subject site is a natural depression and receives surface water flows from the surrounds. The increase of hard surfaces resulting from the proposed development will reduce the infiltration of this water, may affect the ground water table, or create standing water in the subject site.
• Existing stormwater drains from Green Point Drive and Sea Breeze Parade run through the subject site and will need to be accommodated.
• The subject site is located in a natural low-lying amphitheatre. Development of the site close to the property boundaries will impact the visual privacy of adjoining residents. The proposed clubhouse, swimming pool and new residents will create additional noise that will impact the acoustic privacy of adjoining and proximate properties.
• That there is no demand for this form of accommodation in the local area. If there is a demand, the use would be better located closer to town (Forster).
• The fact that the dwellings are premanufactured means that the development will create no local employment.
• Approval of the development will result in a reduction in property values for adjoining and proximate properties.

1. The submission in support states that, in their view, the proposed development would be of benefit to local residents and is a positive step to addressing housing affordability.
2. At the commencement of the proceedings, onsite evidence was heard from a number of objectors to the application. At the request of the objectors, the Court also attended two of the properties adjoining the subject site. This evidence raised the preceding issues as well as the following additional concerns:

• that if the development is approved, it will provide the precedent for the expansion of the use into the remaining lot;
• how the development will change the effectiveness of the stormwater and drainage management over time, and whether it has the potential to have a detrimental impact on Wallis Lake and the adjacent wetlands.
• the geotechnical report, on which the Applicant relies, locates the ground water table 0.7m below the surface. However, a resident has dug pits at five locations around the subject site and has encountered ground water at 350-450mm.
• The intersection of Lakes Way and Green Point Drive does not comply with the required sight distance requirements. Green Point Drive is unsuitable for the level of development proposed. The developer should be required to undertake upgrade works on this road infrastructure.
• the development generates no benefit to the community and will further stretch the community resources, many of which are provided by volunteers.
• the adjoining neighbours will experience a loss of amenity from noise, overlooking, light spill and a reduction in their scenic outlook.
• the movement of stormwater from homes fronting Seabreeze Parade downhill and into the subject site, as well as the fill proposed, needs to be considered to ensure that adjacent properties are able to drain.
• the property at 122 Green Point Drive (at the corner of Bottlebrush Close) will be disproportionately affected. Traffic will increase from approximately 6 cars per day to 160 traffic movements per day. During construction and delivery of homes, all heavy vehicles will gain access past their property. This impact is unreasonable.
• the developer's estimate of three truck movements per week arising from the delivery of the prefabricated homes. If this is correct it would result in the full occupation of the park taking some 58 weeks.
• there is potential for adjoining homes, and their foundations, to be affected by the heavy vehicles and their frequency during construction and delivery of homes.

Expert Evidence

1. Consistent with the matters in dispute in the proceedings the parties engaged the following experts: Area of Expertise Applicant Respondent Planning Expert Gavin Maberly-Smith Kerry Nash Engineering Expert Phillip Lidbury Geoffrey Dowling Traffic Expert Matthew McCarthy Ken Hollyoak

1. The experts produced joint expert reports that were tendered in the proceedings. I have read and considered these expert reports.

Adequate transport services and the sufficiency of community facilities and services available

1. Pursuant to cl 9 of SEPP 36, the Court may only grant consent if it is satisfied by the matters listed at cl 9(1).
2. Relevant to this question the Respondent argues are the following matters in this clause are not satisfied: (b) that the manufactured home estate is or will be provided with adequate transport services, and (c) that sufficient community facilities and services, whether situated within or outside the estate, are or will be available and reasonably accessible to the residents of the manufactured home estate …

Adequate Transport Services

1. Mr Nash argues that the manufactured home estate will not be provided with adequate transport services through reliance on the existing public bus provision to the subject site on the following grounds:

• there is no bus provision on weekends or public holidays;
• during school holidays, there is one service into Forster and one return each day;
• during the remainder of the year, it is only possible to travel into Forster and back to the subject site in the same day if residents take either the 7.40AM or 9.40 AM service and return on the 1.40PM or 3.45PM services; and
• that only nine of the sites are within 400m of the bus stop on Green Point Drive, and the additional bus stop at Seabreeze Parade is not readily accessible due to the gradient of Waratah Close.

1. Mr Maberly-Smith notes that the Applicant's proposed development has been amended to include the provision of a 'community bus'. He argues that; "The provisions of clause 9 of SEPP 36 provide that a manufactured home estate must be provided with adequate transport services. These transport services are not required to be public transport systems and they may be provided by private transport, public transport or a combination of both" (Exhibit 9).
2. Further, Mr Maberly-Smith relies on Mid Coast Council's policy: Caravan Park for Long Term Residence Policy (Caravan Park Policy). This policy states Caravan Parks for Long Term Residence will be permitted: "… d) Where Council is satisfied that residents of the Caravan Park will have access to i) shops, bank service providers and other retail and commercial services that residents may reasonably require, and ii) community services and recreation facilities, and iii) the practice of a general medical practitioner, and iv) educational facilities. The facilities and services referred to above are to be located at a distance of not more than 400 metres from the site of the caravan park or there is a public transport service available to the residents who will occupy the caravan park: • that is located at a distance of not more than 200 metres from the site of the proposed development, and • that will take those residents to a place that is located at a distance of not more than 200 metres from the facilities and services, and • that is available both to and from the proposed development at least once between 8am and 12pm per day and at least once between 12pm and 6pm each day from Monday to Friday (both days inclusive) …" (Exhibit 5)
3. Mr Maberly-Smith argues that the combination of the community bus agreed by the Applicant and the existing public bus service satisfies the requirement of cl 9(b) of SEPP 36.
4. Following the resolution of the agreed condition for the provision of a community bus, Mr Nash accepted in cross-examination that the community bus proposed by the Applicant, by way of condition, would now provide an adequate transport service. The agreed condition is proposed as follows: 85. Community Bus The development shall provide a community bus with a minimum of 10 seats that will provide a service for residents as demanded for community outings etc. The bus shall also provide a service to and from Stocklands Forster and Forster Town Centre at least once between 8am and 12 noon each day and once between 12 noon and 6pm each day and during the gazetted school holidays. (Exhibit 11)
5. The traffic experts retained by the parties also provided evidence in relation to access to essential services and the provision of public transport to the subject site.
6. Mr McCarthy notes that State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD) requires one AM and one PM service per day. He relies on the 307 bus route (run by Forster Buslines) which provides two services from 8am to 12pm and one service from 12pm to 6pm to Foster. Mr McCarthy argues that the provision of morning, midday and afternoon service allows for day return trips (Exhibit 7).
7. Mr McCarthy's evidence concludes that: based upon the frequency requirements of the Caravan Park Policy; and clause 43 of SEPP HSPD; the manufactured home estate will be provided with adequate transport services (Exhibit 7).
8. In the alternative, Mr Hollyoak argues that whilst public transport is available, and accords with the requirements of the Caravan Park Policy, in his view the bus provision is a relatively infrequent service. In particular, he notes there is no bus provided on the weekends. Further, he notes that the requirements of SEPP HSPD are not met as the requirement for one AM and one PM service per day is not met on the weekend (Exhibit 8).
9. In relation to the proximity of the bus service, it is Mr McCarthy's evidence that "at least 90% of dwellings are located within 400m to 500m from the nearest bus stop, being either Seabreeze Parade or Green Point Drive" (Exhibit 7). Further, he notes that the Applicant has agreed to provide a footpath from the southern side of the site, along the eastern side of Bottlebrush Lane and the northern side of Green Point Drive to improve access to the bus stop.
10. Mr Hollyoak agrees that the majority of the site is within a 400m walk of a bus stop but argues that the lack of proximity will likely affect patronage (Exhibit 7).

Community Facilities and Services

1. The planning experts agree that the amended plan for the proposed 'clubhouse' makes provision for a "convenience store" adjoining the office. They note that there are 'no details as to its management, (the) scale of operation, hours of operation and products sold have been provided' (Exhibit 9).
2. In regards to cl 9(1) (c) of SEPP 36, accessibility to sufficient community facilities and services Mr Maberly-Smith's evidence is: "In terms of community facilities, as noted in the facts and contentions in reply, there are numerous facilities provided on the site and in the surrounding area, including recreational facilities and community halls etc. In terms of access to retail facilities, it is the opinion of GMS that the following services that are available to the site would be sufficient to the needs of the residents: - the site is well connected to Forster by a short drive (less than 10 minutes) or bus/taxi trip allowing access to extensive services at Stockland Forster and Forster Main Street, as well as clubs etc. - Green Point is serviced by Woolworths delivery allowing residents to order a complete range of groceries etc. which will be delivered to their home. - the amended community centre plans include provision of a small convenience store which can stock daily consumables such as bread, milk and other regular convenience items. The store can open when the manager is in the office during normal business hours." (Exhibit 9)
3. In the alternative Mr Nash argues: "In respect to Clause 9(1)(c) of SEPP 36 relating to access to 'sufficient community facilities and services', it was observed by KN at the time of the site inspection in October 2018 that there were no retail facilities or community services in Green Point other than a public telephone and a post box. The proposal by the Applicant in the revised design for the clubhouse to provide a 'convenience store' within may provide some limited value to local residents of the development, however, in the absence of details as to its operation, management, hours of operation and products held, it is not possible to determine whether it will be adequate in the context of satisfying Clause 9(1)(c) of SEPP 36. Also the other question would be how to ensure such (a) facility is maintained for the life of the development." (Exhibit 9)
4. Mr Nash concludes that in his opinion "in the absence of adequate public transport, shopping and community services and facilities in Green Point, the proposal fails to satisfy the requirements of cl. 9(1)(b) and (c) of SEPP 36" (Exhibit 9). As noted at paragraph [53] with the addition of the community bus in his oral evidence Mr Nash accepted that the provision of transport services now meets the standard of 'adequate' in cl 9(b) of SEPP 36. However, in cross-examination, he maintained his view that the threshold of sufficient community facilities being available and reasonably accessible to the residents of the manufactured home estate is not met.

Submissions

1. Mr Staunton notes that there is no definition in SEPP 36 that defines what "adequate transport services" means for the purposes of the satisfaction of cl 9 of the instrument. He submits it is appropriate for the Court, in determining it's satisfaction, to consider the Council's policy: 'Caravan Parks for Long Term Residents' on the basis that this is the most recent position of the Council on the location of caravan parks for long term residency. He draws the Court's attention to the extracts of the policy at paragraph [51].
2. Further, in determining what is adequate in relation to transport services Mr Staunton gives emphasis to the requirement in cl 26(1)(d) of SEPP HSPD which requires: A transport service available to residents who occupy the proposed development: (i) which is located at a distance of no more than 400 metres from the site of the proposed development and the distance is accessible by means of a suitable access pathway, and (ii) that will take those residents to a place that is located at a distance of not more than 400 metres from the facilities and services referred to in sub clause (i), and (iii) that is available both to and from the proposed development during daylight hours at least once each day from Monday to Friday (both days inclusive), and the gradient of the footpath from the site to the public transport services (and from the transport services to the facilities and services referred to in (i)) complies with subclause (3).
3. Mr Staunton notes that the Applicant agrees to the imposition of the following condition on any consent: "84. Community bus The development shall provide an accessible community bus with a minimum of 10 seats that will provide a service for residents of the manufactured home estate as demanded for community outings. The bus shall also provide as a minimum a service to and from Stocklands Forster and Forster Town Centre at least once between 8am and 12 noon each day and at least once between 12 noon and 6pm each day to ensure that residents have reasonable access to services. A community bus timetable is to be developed and distributed to residents and is to be reviewed annually in consultation with the residents by site management to ensure the community bus service is meeting the needs of residents."
4. Mr Staunton summarises the Applicant's position that the development will be provided with adequate transport services for the following reasons: 1. it is consistent with the requirements of the latest policy of the Council in relation to transport requirement and access to services and facilities for caravan park uses. 2. it meets the requirements of SEPP HSPD for land that is within a local government area that is not within the Greater Sydney (Greater Capital City Statistical Area) at cl 26(2)(b). 3. The development, and the agreed conditions, meet the requirements of SEPP HSPD in cl 43, namely: 43 Transport services to local centres (1) A consent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purpose of serviced self-care housing on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied that a bus capable of carrying at least 10 passengers will be provided to the residents of the proposed development: (a) that will drop off and pick up passengers at a local centre that provides residents with access to the following: (i) shops, bank service providers and other retail and commercial services that residents may reasonably require, (ii) community services and recreation facilities, (iii) the practice of a general medical practitioner, and (b) that is available both to and from the proposed development to any such local centre at least once between 8am and 12pm each day and at least once between 12pm and 6pm each day. 1. The traffic engineers agree that the community bus will provide adequate transport services within the meaning of SEPP 36. 2. The traffic engineers agree the development meets the requirements for residential subdivisions in clause 4.6 of the RMS Guide for Traffic Generating Developments 2002. 3. Each dwelling site is provided with on-site car parking 4. The site is serviced by Foster Taxi service which provides a private transport service.
5. To provide additional assurance to the Council on the operation of the community bus Mr Staunton notes in his closing submissions that the Applicant accepts the following condition being imposed on any consent (the italicised component is added to the Council's draft conditions): "83. Plan of Management for Community Facilities The Applicant is to prepare a Plan of Management for the operation and management of the communal facilities associated with the manufactured home estate, including but [not] limited to the following: the Clubhouse, including the Convenience Store, outdoor area and BBQ. • swimming pool • maintenance of communal landscaped area and street tree planting • complaint handling procedures • annual review process with Council and Green Point community; and • the operation of the community bus, including minimum frequency, available routes, capacity and booking procedures. The plan of management is to be submitted to Council for approval prior to the issue of a construction certificate and a copy of the approved Plan of Management is to be provided to each of the 86 households within the estate and displayed within the clubhouse." (Applicant's written submissions 16.5.19)
6. Moving to the second component of clause 9, Mr Staunton submits that the satisfaction of sufficient services and facilities, required by cl. 9(1)(c) of SEPP 36 can be achieved through facilities onsite or offsite. He notes that the requirement is that they be sufficient, available and reasonably accessible. He submits that the Court should accept the evidence of Mr Maberly-Smith that the subject site's proximity to Foster, the provision of Woolworths home delivery of groceries, and the provision of a small convenience store onsite, are sufficient to satisfy this requirement.
7. Ms Irish submits, to the extent the comparisons are made between the requirements of SEPP HSPD and the Caravan Park Policy by the Applicant and the experts, there is no transport service that allows travel to and from the site to Foster (the local centre) at least once between 8am and 12 noon each day.
8. Ms Irish argues that the second aspect of the adequacy of transport services is the distance from the subject site to access such services. Ms Irish argues that, on the evidence of Mr Nash and Mr Hollyoak, both the distance and the gradient of the access to the bus stops makes them not readily accessible. She submits, on the evidence of the experts, that this will affect their usability by the residents of the manufactured home estate.
9. Ms Irish submits that the Court has relevantly considered the issue of whether community facilities and services were reasonably accessible from the site in INA Operations Pty Ltd AFT INA Operations Trust No. 6 v Hawkesbury City Council [2018] NSWLEC 1582 (INA Operations). In that case, the judgment notes that a local bus service provided a bus connection between Windsor interchange and Riverstone railway station via the caravan park a number of times a day, although the service was described by Commissioner O'Neill as infrequent on the basis there was between 1.5-2 hours between services and none provided on Sundays.
10. In particular Ms Irish notes the consideration of the Commissioner at [47] and [48] of INA Operations which states: [47] The proposal includes a mini-bus to transport residents of the caravan park, however, there is no commitment to the operation of the mini-bus in the Plan of Management (Ex N) or in the requirements for the updated Plan of Management (Conditions 52 and 101, Ex P) or in the Social Impact Assessment, other than 'village courtesy bus and pool car(s)' (ex M, section 6.3). [48] Having considered the list at cl 10 of SEPP 21, I am not satisfied that the necessary community facilities and services within the locality of the site are reasonably accessible to the proposed significant increase in long-term residents of the caravan park. For those residents without access to a private vehicle, the proposal does not include a commitment to providing a mini-bus and access to public transport is inadequate for the proposed population of the caravan park.
11. Ms Irish notes that in INA Operations at [55] the Commissioner concluded: "I am not satisfied that this site is suitable for the intensification of the caravan park on the scale proposed because of its location in an area not yet sufficiently well serviced by public transport'."
12. Ms Irish submits that the lack of adequate provision of public transport is not appropriately 'cured' by the Applicant's proposed community bus. Her reasoning is summarised as follows:

• What is proposed by the Applicant does not obviate the possibility that residents of the facility will not always be served by the provision of a community bus as it may be deployed elsewhere (such as a community outing);
• Clause 9 of SEPP 36 is not concerned with private vehicles or their ownership and instead is focussed on 'adequate transport services'. Further, she argues that there is a public policy purpose served by the provision of adequate public transport services to the residents of a proposed manufactured home estate;
• The Court would appropriately reject the evidence of Mr Maberley-Smith about private vehicles, Woolworths home delivery and the like;
• That there is insufficient certainty as to the commitment of the applicant to the provision of the community bus.

1. Finally, in relation to the satisfaction of sufficient services and facilities, Ms Irish submits (original emphasis): "The proposed convenience store, offering a range of small convenience items in the nature of milk, bread, toiletries, toilet paper and newspapers in the context of no existing retail facilities in Green Point village (and no evidence of the likelihood of prospects or re-opening past retail facilities in Green Point village) is a poor substitute, and there is no provision for restriction of sale to residents of the manufactured home estate only (cf. residents of Green Point generally), to ensure that its supplies to meet the needs of an estimated 84 manufactured homes always remain adequate. Lack of certainty about the extent of products outside the presently proposed range of goods is not cured by the catch-all phrase "will no doubt be determined by demand". There is no commitment to more." (Respondents written submissions 29.5.19)
2. Ms Irish concludes that on the evidence the Court would not be satisfied that there are sufficient community services or facilities that are available and reasonably accessible for the purposes of cl 9(1)(c) of SEPP 36.
3. Given that the provisions of cl.9 of SEPP 36 are not satisfied, Ms Irish argues the proposed development warrants refusal.
4. In response to Ms Irish's concerns in relation to the certainty of the provision of the community bus, Mr Staunton argues: "The applicant's proposed conditions for a plan of management and frequency of services with ongoing review is sufficient to ensure that the bus will be available in addition to the public transport and other transport options." (Applicant's written submissions 6. 6.19)

Findings

1. Clause 9 of SEPP 36 requires the Consent Authority to be positively satisfied, prior to the grant of consent, that the manufactured home estate: 'is or will be provided with adequate transport services' (cl 9(1)(b)) and 'that sufficient community facilities and services, whether situated within or outside the estate, are or will be available and reasonably accessible to the residents of the manufactured home estate' (cl 9(1)(c)).
2. I accept the evidence of Mr Nash at paragraph [49] that the current level of transport services to the site is inadequate. I am not satisfied on the following grounds:

• the services are infrequent, with a long duration between bus services;
• there is a limited ability for a resident to travel to and from Forster in one day;
• the bus stops in themselves are relatively distant from the site; and
• there are no buses provided on weekends or on school holidays, which represents a reasonable portion of the overall year.

1. Equally, I accept Mr Nash's evidence in the joint report, and my own observations, that at the time of the Court's attendance on site there were no retail facilities or community services in Green Point, other than a public telephone and a post box.
2. In the Applicant's Statement of Facts and Contentions in reply they state: "There are retail and community facilities in Green Point, including café and gift shop, boat ramp and parks, as well as the following facilities directly adjoining the site: • tennis court • skate park • community centre • RFS station In addition, the residents are provided with facilities within the estate, including a pool, clubhouse, BBQ areas and open space. Access to higher order services is available in Forster Tuncurry via public and private transport. The creation of additional population in the village would only assist in the encouragement of the opening of the General Store and other small scale commercial uses in the village." (Exhibit 9)
3. I accept that as part of the development some facilities and services will be provided within the manufactured home estate.
4. The two pre-conditions in dispute between the parties, by their wording, allow for prospective satisfaction. I am satisfied that this encompasses the consideration of the community bus and the proposed community store, despite them not forming part of the development application. Section 4.17(1)(g) of the EPA Act allows a condition to modify details of the development subject of the consent.
5. The condition proposed by the Applicant in relation to the community bus is detailed in paragraph [66].
6. Following is the Applicant's proposed condition referencing the convenience store: "85. Operation of Convenience Store The convenience store area within the community building shall be operated to provide a supply of a range of small convenience items for sale to residents including: • Milk • Bread • Toiletries • Toilet Paper • Newspapers The store will be open for minimum hours of 8am to 3pm Monday to Friday and 9am to 12pm Saturday and Sunday." (Applicants closing submissions 16/5/2019)
7. Importantly, a condition of consent must satisfy s 4.17(4) of the EPA Act: (4) Conditions expressed in terms of outcomes or objectives A consent may be granted subject to a condition expressed in a manner that identifies both of the following: (a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve, (b) clear criteria against which achievement of the outcome or objective must be assessed.
8. I am satisfied the proposed conditions in relation to the community bus and meets the requirements at (a) and (b) of s 4.17(4) of the EPA Act.
9. I am unsatisfied that the Applicant's proposed condition for the operation of the convenience store meets the requirements at subs (a) and (b) of s 4.17(4) of the EPA Act. The information before the Court, and the condition itself fail to detail what outcome this specified part of the development must achieve, nor any criteria against which its future operation could be assessed.
10. Further Newbury District Council v Secretary of State for Environment [1981] AC 578 (Newbury) determined three principal 'tests' of validity for conditions. They can be summarised as:

• the condition must be imposed for a planning purpose;
• the condition must fairly and reasonably relate to the development proposed in the application; and
• the condition must be reasonable.

1. I am satisfied that the proposed conditions in relation to the community bus and the convenience store meet these requirements.
2. Finally in considering the proffered conditions, in Mison and ors v Randwick Municipal Council (1991) 23 NSWLR 734 (Mison) the Court of Appeal held invalid a development consent for a dwelling house because it included a condition: "Overall height of the dwelling house being reduced to the satisfaction of Council's chief town planner" (at 736). The Court held that the condition left the approved height undetermined and that it may fall at any point within an undefined range.
3. In general terms, Mison decided that there are two potentially overlapping categories of conditions which may invalidate a development consent. First, a final and certain condition that significantly alters the development in respect of which the application is made. The consent is invalid because it is not a consent to the development for which approval was sought. Secondly, a condition which lacks finality or is uncertain so that, in substance, there is no effective consent to the application. The second category includes a condition that is final in that it does not foreshadow any further judgment but is in terms that are uncertain: Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23, at [24] - [28] and [54] - [55].
4. I am satisfied that the Applicant's proposed condition in relation to the community bus, at [66], satisfies the requirements of the EPA Act, is not unreasonable in the 'Newbury' sense, doesn't significantly alter the development and is appropriately final and certain.
5. Further, I am satisfied pursuant to cl 9(1)(b) of SEPP 36 that the manufactured home estate is or will be provided with adequate transport services.
6. However, in relation to the convenience store I accept the evidence of Mr Nash (at paragraphs [62]-[63]) and the submissions of Ms Irish (at paragraph [76]) that the level of detail of the proposed convenience store, its services and operation available to the consent authority at the time of determination is insufficient.
7. In addition to my comments at [90], I find that the terms of the proposed condition that imposes the convenience store are uncertain in relation to the management, operation and service provision provided by it. I am satisfied this uncertainty is of importance given the need for the consent authority to be satisfied with the sufficiency of community facilities and services and their availability at cl 9(1)(c) of SEPP 36.
8. I am satisfied that the access to the opportunity to purchase groceries is one such facility encompassed by cl 9 (1)(c) of SEPP 36. I note this is consistent with the Council Caravan Park Policy which states "Persons who reside long term in caravan parks often have a greater need for access to services and facilities including shops, banks, community services and doctors." (Exhibit 5)
9. I am satisfied that the uncertainty of the convenience store, in combination with the resident's reliance on public or community bus access to Forster, if private transport is not available, leads to a conclusion that services within the meaning of cl 9(1)(c) are not 'reasonably accessible' to residents of the manufactured home estate. Even if private transport is considered, I am not satisfied that a twenty minute round trip (on Mr Maberley-Smith's evidence) meets the requirement of reasonably accessible.

Consideration of the suitability of the site and the appropriateness of the proposed development in its context

1. In its submissions, the Respondent argues that 'each of Contentions 2, 3 and 5 goes to the proposed development being contextually inappropriate'. This grouping of issues is concordant with the relevant considerations under the applicable planning instruments, as outlined below.
2. As detailed in [32], the matters listed under cl 8 SEPP 71 are required to be taken into account in determining this development application. The aims of SEPP 71 are captured as a matter for consideration at cl 8(a).
3. The matters for consideration under SEPP 71 at cl. 8(a), (d) and (f) broadly require an assessment of the appropriateness of the built form of the development, its relationship with the surrounding area, and an assessment of its relationship with the scenic qualities of the locality.
4. Further, the objectives of the RU2: Rural Landscape zone are a matter to which the consent authority must have regard when determining a development application (cl 2.3(2) of LEP 2014). In part, these objectives seek 'to maintain the rural character of the land'.
5. The suitability of the site for the development is also a factor for consideration under s 4.15(1)(c) of the EPA Act.

Expert Evidence

1. It is Mr Nash's evidence that the aims of SEPP 71 relevant to the Court's considerations under the following matters: (e) to ensure that the visual amenity of the coast is protected, and … (g) to protect and preserve native coastal vegetation, and … (k) to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area, and …
2. Further, he argues that the following matters for consideration under cl. 8 of SEPP 71 are relevant: (d) the suitability of development given its type, location and design and its relationship with the surrounding area, … (p) only in cases in which a development application in relation to proposed development is determined: (i) the cumulative impacts of the proposed development on the environment, and …
3. Mr Nash argues that the preceding aims and provisions focus on the issue of the proposed development's "intensification of the use of the current rural site and the impact of the proposal on the character of the locality and the environment" (Exhibit 9). Mr Nash's evidence concludes that the proposed development is unsuitable for the site and will have detrimental impacts on the locality of Green Point in terms of its character and its social structure. On these bases, he concludes that the development should be refused. I have outlined his reasoning in the following paragraphs.
4. Firstly Mr Nash argues that the subject site is 'land having special landscape qualities' pursuant to cl 9(1)(d) of SEPP 36 as it is zoned rural landscape. He emphasises that an objective of RU2: Rural Landscape zone is: To maintain the rural landscape character of the land.
5. Mr Nash describes this rural landscape character, as it applies to Green Point, as being influenced by:

• the village having clearly defined boundaries formed by the foreshores of Wallis Lake and the National Park;
• the rural nature of the development site affording views of the National Park and Reserve to the east from Green Point Road, Seabreeze Parade and from the existing residences at 88-114 Seabreeze Parade and 2 and 4 Waratah Close.
• the minimum allotment size prescribed by LEP 2014 being 40 ha.
• the containment of existing residential development to the village area.
• the interspersing of urban development with stands of canopy trees.
• (Exhibit 9)

1. Mr Nash argues that the proposed development is inconsistent with the rural character of the locality. He contends that when the development is viewed from the adjoining residences and from vantage points in the public domain, the outlook will be dominated by a 'sea of roofs' as a result of the density of the development, the site design, the tight clustering of sites, and lack of appropriate landscape screening. Mr Nash concludes that: "The proposed development, comprising 86 single storey manufactured homes on relatively small allotments, vary in size from 174m²- 444m², will have a density and character of built form incompatible with the outlook currently enjoyed" (Exhibit 9).
2. It is Mr Nash's evidence that the proposed development will remove the landscaped character of the site and replace it with a dense form of urban development more akin to medium density development found in an R3 Medium Density Residential Zone. This intensity of development, the provision of little space between the proposed homes, narrow roads and a limited area within the subject site overall being allocated for landscaping are, in Mr Nash's evidence, indicia of the incompatibility of the proposed development with the rural character of the land. He concludes that the development fails to satisfy the relevant aims of SEPP 71 (at cl 2(1)(e) (g) (k)) and the matters for consideration at cl 8(k) of SEPP 71.
3. Further, Mr Nash argues that the approval of the development application would result in an expansion of the footprint of the village and a material increase in population. He states: "The proposed development, with 86 dwellings, would result in a 32% increase in the number of dwellings in Green Point as at the time of the 2016 census. If one assumes an occupancy rate of 2 persons per dwelling, the addition of 172 people would represent an increase of 33% in the population of Green Point." (Exhibit 9)
4. Mr Nash concludes that the impact of the proposed development on the scale and character will be significant and is directly attributable, in his view, to the density of the development proposed.
5. Finally Mr Nash argues that the speed of the increase will add to the adverse impact on the character of the village as the approval of the proposed development has the potential to result in the occupation of all 84 sites within a four year period. Further, he argues that the increased density is proposed to be placed at the northwestern edge of Green Point village at the interface with the natural environment, expanding the footprint of the village and altering its setting.
6. Mr Nash concludes that "the proposed development and the resultant urban built form outcome are neither consistent nor compatible with the RU2 - Rural Landscape (zone) objectives" (Exhibit 9).
7. In the alternative, Mr Maberly-Smith argues that as the development gains it's permissibility through the provisions of SEPP 36, this instrument should be given significant weight in the assessment of the proposed development.
8. Further, Mr Maberly-Smith contends that SEPP 36 has 'examined provisions in coastal local government areas and specifically allows this form of development on lands where they are identified for future urban development as is the case for this land. As such, the provisions of that SEPP allows this form of development on this type of land in coastal areas. GMS says this is in recognition that manufactured home estate development on the land will have similar outcomes (including visual and environmental) for the land as would residential development planned for the land' (Exhibit 9).

Submissions

1. Mr Staunton submits that in taking into account the matters for consideration under SEPP 71 (refer paragraph [32]) the Court should not ignore the provisions of SEPP 36. He argues that SEPP 36 specifically identifies this land as being an appropriate location for a manufactured home estate. He submits the intent of the policy is to provide immediate opportunities for manufactured home estates and that this intent should be given weight in the Court's consideration. He notes the relevant aims of SEPP 36 are: (a) to facilitate the establishment of manufactured home estates as a contemporary form of medium density residential development that provides an alternative to traditional housing arrangements, and (b) to provide immediate development opportunities for manufactured home estates on the commencement of this Policy, and …
2. In response to the evidence of Mr Nash about the visual impact of the proposed development, and cl 2(1)(e) of SEPP 71, Mr Staunton submits that, on the evidence of Mr Maberly-Smith:

• the site does not have a wide visual catchment
• that 'whilst there is a localised impact in that there will be a visual change that localised impact does not impact on the visual amenity of the Coast' (Applicant's written submissions 16. 5.19)
• the dwellings adjacent the site with elevated views will continue to have views over the site to Booti Booti National Park.

1. Further in response to concerns of Mr Nash that the bulk, scale and size of the development is inappropriate for the location (cl. 2(1)(k) of SEPP 71), Mr Staunton argues that:

• SEPP 36 specifically identifies rural zoned land in coastal areas which: adjoin urban land; are identified as suitable for future urban development; and are located in the coastal zone, as suitable for manufactured home estates.
• in designated manufactured home estates as permissible in these locations, SEPP 36 'anticipates a character in the nature of a contemporary form of medium density housing' (Applicant's written submissions 16. 5.19).
• caravan parks are permissible in the RU2 - Rural Landscape zone under LEP 2014 and may incorporate manufactured homes.
• in terms of bulk and scale, the development has sites generally in the order of 200-240 sqm. The proposed development has a floor space ratio (FSR) of 0.25:1 including roads or 0.32:1 excluding roads. This FSR is less than the 0.4:1 permitted in the adjoining RU5- Village zone.
• on the evidence of Mr Maberly-Smith, the dwellings and clubhouse are single storey and will be adequately screened by perimeter landscaping and setbacks of between three and seven metres.
• tree planting is also proposed throughout the site "with the result that the development will sit in a landscaped setting immediately adjoining a village in an area of land identified for future urban growth" (Applicant's written submissions 16. 5.19).

1. In regards to the Court's consideration of the zone objectives Mr Staunton submits it should be tempered by the following factors. "Firstly, that the objectives themselves are broadly descriptive of the land uses which are deemed acceptable in the zone. Second, that the objectives themselves have no operative effect. Third, that the objectives were not written to address land uses whose permissibility derives from another planning instrument - in this case SEPP 36. Fourth, zone objectives frequently relate to disparate land uses contemplated by the land use table and accordingly a finding that a particular land use does not meet or align with one or another objective does not disqualify that land (use) from acceptability particularly where that land use does respond to an objective of the zone" (Applicant's written submissions 16. 5.19).
2. Mr Staunton argues that cl 2.3 of LEP 2014 does not require the Court to find consistency with the zone objectives. Rather he argues the Court could, on merit, determine the application is inconsistent with the zone objectives but approve the development having regard to the provisions of SEPP 36.
3. However, on the evidence of Mr Maberly-Smith, Mr Staunton argues that the proposed development, while different in form from the adjoining village, remains appropriate for the location and protects and improves the scenic quality of the surrounding area within the parameters of the form of development anticipated in the RU2 Rural Landscape zone and under SEPP 36 (Applicant's submissions 16.5.19).
4. In concluding his submissions on the zone objectives Mr Staunton submits that the "visual change from open paddocks to single storey houses and single storey community facilities set in a landscape setting will not result in any unacceptable visual or physical impacts" (Applicant's written submissions 16. 5.19). Further, he argues the proposed development is consistent with the identified urban use of the land and the extensive range of land uses permissible in the RU2 Rural Landscape zone.
5. Mr Staunton rejects the evidence of Mr Nash that the subject land has 'special landscape qualities' (as noted in paragraph [110]) which are identified in LEP 2014. He argues that any land identified as having special landscape qualities of this type are identified in the LEP as zoned E3: Environmental Management or E4: Environmental Living.
6. Rather Mr Staunton argues that, consistent with the evidence of Mr Maberly-Smith, the effect of the landscape quality arising from the proposed development is consistent with the effect contemplated by the development resulting from the wide range of permissible uses available in the RU 2 Rural Landscape Zone and contemplated by the future urban development of the land.
7. Mr Staunton argues the Court should give consideration to the findings at [117] - [119] of BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 (BGP Properties) as they apply to SEPP 36. The relevant extract of the judgment is: [117] In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened. [118] In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. [119] However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project.

• will not maintain the rural character of the land (second objective)
• will not be a compatible (ie. capable of existing in harmony) land use (third objective), and
• is inconsistent (ie. lacking harmony or lacking in agreement or not consistent in principles) with the other three objectives of the RU2 Rural Landscape Zone.

1. Ms Irish submits that on the evidence of Mr Nash the proposed development fails to satisfy the relevant aims of SEPP 71 generally, and cl 8(d): the suitability of the development given its type, location and design and its relationship with the surrounding area; in particular.
2. Ms Irish argues that Mr Nash's evidence is to be preferred to that of Mr Maberley-Smith on the following reasoning: 1. his assertion that a manufactured home estate will have similar outcomes to the residential development for land and the development exceeding the minimum standards in Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 is relevant but not determinative. He fails to address the required consideration of the suitability of the type, location and design of the development (cl 8(d) of SEPP 71) and the type, bulk and scale (cl 2(1)(k) of SEPP 71). 2. his assertion that the site does not have a wide visual catchment is not an assessment of whether the development 'is appropriate for the location and protects and improves the scenic amenity of the surrounding area' (cl 2(1)(k) of SEPP 71). 3. The visual amenity of the surrounding area is not protected by the proposed landscaping detailed in Concept Plan Issue K (Exhibit 11) and the applicant has failed to demonstrate 'dense planting' will be achieved and maintained. This landscaping is relied on by Mr Maberley-Smith's evidence.
3. Ms Irish concludes that 'the Court would find that the type, bulk, scale and size of development is not appropriate, and not suitable for the location, and that it does not protect and improve the scenic quality of the surrounding area for the purposes of cll 2(1)(k) and 8(d) of SEPP 71'. Further, she argues that the Court would conclude that the type, location and design of the development has an unsatisfactory relationship with the surrounding area. On this basis, Ms Irish submits the application should be refused.

Findings

1. I disagree with the evidence of Mr Maberly-Smith that manufactured home estate development on the land will have similar outcomes (including visual and environmental) for the land as would residential development planned for the land. I accept the evidence of Mr Nash that the form of development proposed is more akin to a medium density form of development. This is consistent with the intent of SEPP 36 to 'facilitate the establishment of manufactured home estates as a contemporary form of medium density residential development…'. The density of residential development 'intended' for the subject site in the Tuncurry Forster Conservation Strategy 2003, against which Mr Maberly-Smith draws a comparison, at Table 3.9 is approximately 42 lots (in the nominated 7.5 hectares). This equates to a density of development lower even than the current minimum lot size in LEP 2014 and materially lower than under this development application.
2. I accept the submission of Mr Staunton that, SEPP 36 identifies this land as being an appropriate location for a manufactured home estate and that the intent of the policy is to provide immediate opportunities for manufactured home estates. I have given weight to these provisions in the assessment of the proposed development.
3. However, I agree with the evidence of Mr Nash that when regard is had to the zone objectives; particularly 'To maintain the rural landscape character of the land' the development as proposed is not supportable. My reasoning is as follows:

• The proposed development places a density of development and facilities on the site that is of a form and character that is not compatible with the existing rural landscape. I accept Mr Nash's description of the characteristics of the locality at paragraph [110]. I would also add from my observation that the current built form characteristics of the locality include significant side and front setbacks which create a sense of openness which will not be replicated in the site planning of the proposed development.
• Whilst SEPP 36 provides permissibility for a manufactured home estate which of itself may have a greater density that development permissible under LEP 2014, the appropriateness of such a use to a specific site or context will depend on site design, planning and the constraints of the location.
• I am satisfied that the evidence of Mr Nash on the visual impact of the proposed development is to be preferred. The subject site is in a natural landform depression and given the elevated nature of the surrounding streets and houses will be a visible element from many public and private viewpoints. Visibility of itself is not an impact, but given incongruity of the density and tightly packed nature of the site planning proposed on the subject site, the lack of certainty of the landscape treatment of the boundary of the site and the within the development I am satisfied the proposed development will have a detrimental visual impact. The attempt to minimise this impact through landscaping is unsuccessful as it provides only peripheral landscaping if it could be established and maintained. I find that the development is contrary to cl 8(f) of SEPP 71 in that it will not improve the scenic quality of the NSW coast.

1. Further, I adopt the evidence of Mr Nash and his reasoning at paragraphs [107] - [109] and [111] - [117] and find that the proposed development is inconsistent with cl 8(d) of SEPP 71. I find that the proposed development is unsuitable given its type, location, design and relationship with the surrounding area and I find that the development will have a detrimental impact on the natural and built environment of the locality (s. 4.15(b) of the EPA Act).
2. Under s 4.15(1) of the EPA Act, it is appropriate to give weight to the intent and provisions of SEPP 36, and to the potential for the subject development to deliver affordable housing to the locality in making a determination on the application. This approach is consistent with the submission of Ms Irish at paragraph [138]. It is the specifics of the current development application that render it unacceptable, not the proposed use of the site for the purposes of a manufactured home estate.
3. BGP Properties makes it clear that determinations must generally reflect an assumption that, in some form, a development that is consistent with the zoning will be permitted. I accept the submission of Mr Staunton that the reference to 'zoning' is equally applicable to the provisions of SEPP 36 in this instance. However, I am persuaded that the presumption is inappropriate in this instance on the following grounds: 1. • as noted in BGP Properties the development should result in 'acceptable environmental impacts'. In this case, I have considered the form of the development proposed and its impacts and found they are unacceptable. 2. • at [119] of BGP Properties McClellan CJ notes that there will be some cases were the zoning (or in this case the operation of SEPP 36) may have been imposed many years earlier and may need to be reconsidered against contemporary standards. As noted at paragraph [24] the designation of the subject site as 'suitable for urban development' in March 2009 as part of the Mid North Coast Regional Strategy results in none of the exclusions in Schedule 2 of SEPP 36 applying. I have had regard to the age of the Mid North Coast Regional Strategy document and its high-level strategic nature in giving consideration to the principles of BGP Properties.
4. I accept that a finding that the proposed development is inconsistent with the objectives of the zone does not mandate refusal. However, I am satisfied after a careful evaluation of the evidence and the submissions that in conjunction with the inconsistency of the proposed development with the provisions of SEPP 71, the application is not acceptable on its merits. This finding is supported by the conclusion that the site is unsuitable for the form and density of development proposed by the development application (s 4.15(c) of the EPA Act) and the detrimental impacts to the natural and built environment of the locality that arise (s 4.15(b) of the EPA Act).

Conclusion

1. Further to the reasons given in the preceding paragraphs, which warrant the refusal of the application, it is appropriate to note that a significant number of residents provided the Court with detailed submissions detailing their concerns about the proposed development.
2. As part of these submissions the resident's raised concern about the impact of the scale of the development, its density and the impacts that the significant increase in population would have on the character of Green Point village. Some of these issues were also canvased by the evidence of Mr Nash and Mr Maberley-Smith.
3. I am satisfied that many of these submissions are reasonable and lend support to the proceeding conclusion that the site is unsuitable for the form and density of development proposed by the development application (s 4.15(1)(c) of the EPA Act).

Orders

1. The Court orders that: 1. The Appeal is dismissed; 2. Development Application No. DA/545/2017 for construction of a manufactured home estate and boundary adjustment on Lot 2 DP 1012758 and Lot 312 DP 774361 known as 1 Bottlebrush Close, Green Point is refused; 3. The exhibits are returned with the exception of Exhibit 1, A, and B. ……………. D M Dickson Commissioner of the Court

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