PRJM Pty Ltd v Hawkesbury City Council

Land and Environment Court (NSW)|2016-04-29

Solicitors: Shaddicks Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 2016/00154471 (formerly 10790 of 2015)

TABLE OF CONTENTS Contentions The Evidence Background/ facts Statutory controls The objectors' evidence Contention (1) - Whether or not the development can be described as being low density and therefore is consistent with the objective outlined in bullet-point 1 of the R2 Low Density Residential Zone - "to provide for the housing needs of the community within a low density residential environment" Applicant's position The Council's position Finding contention (1) Contention (2) - Whether or not the development will be consistent with the objectives outlined in bullet-points 3 and 4 of the R2 Low Density Residential Zone - "to protect the character of traditional residential development and streetscapes" and "to ensure that new development retains and enhances that character" Applicant's position The Council's position Finding: contention (2) Contention (3) - Whether or not the development application satisfies the matters for consideration listed in cl 10 of the State Environmental Planning Policy No 21 (SEPP21)" The applicant's position Finding contention (3) Contention (4) - The relevance of the Council's Hawkesbury Residential Land Strategy (the Strategy) to the proposed development and the statutory weight (if any) which should be applied Conclusion Orders Annexure A

Judgment

The applicant, PRJM Pty Ltd, has appealed the Hawkesbury City Council's (the Council) refusal of its development application (DA 0591/14) for a caravan park for long-term residences on land at 66 Wattle Crescent, Glossodia.
The proposed development, as described in the Council's Amended Statement of Facts and Contentions (Exhibit 2), comprises: 1. the demolition of existing buildings on the site; 2. the location and use of 150 sites, having areas of between 144 square metres and 150 square metres, for long-term residences and locating premanufactured dwellings (cabins) on each site, except for sites 77 and 78 which will be used for the placement of caravans; 3. the location of the sites designated for the future manager's dwelling and office, one common room, a shed, 18 visitors' car-spaces, and the six waste skip-bin storage collection area; 4. the location of access roads, asset protection areas (as required by the Rural Fire Service (RFS)) and landscaping.
The proceedings were commenced pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) and the subject of a Court-facilitated conciliation conference convened under s 34 of the Land and Environment Court Act 1979 (the Court Act). Although the conference did not resolve the matter entirely, it did result in an amendment of the plans (see Annexure A) and the submission of further information which reduced the dispute to the following matters:

Contentions 1. Whether or not the development can be described as being low density and will be consistent with the objective outlined in bullet-point 1 of the R2 Low Density Residential Zone in part 2 of the Hawkesbury Local Environmental Plan 2012 (HLEP 2012): To provide for the housing needs of the community within a low density residential environment. 1. Whether or not the development will be consistent with the objectives outlined in bullet-points 3 and 4 of the R2 Low Density Residential Zone: To protect the character of traditional residential development and streetscapes. and To ensure that new development retains and enhances that character. 1. Whether or not the development application satisfies the matters for consideration listed in cl 10 of the State Environmental Planning Policy No 21 (SEPP21). 2. The relevance of the Council's Hawkesbury Residential Land Strategy (the Strategy) to the proposed development and the statutory weight (if any) which should be applied. 3. Whether or not approval of the development would be in the public interest.

The Evidence

The parties rely on the expert evidence from the Council's Senior Town Planner, Ms Haron, and the applicant's Consultant Town Planner, Mr Montgomery. The Experts' Joint Town Planning Report is (Exhibit 6).
The Court has also considered the written submissions from the local residents who oppose the development, including the 383 objections lodged with the Council in response to its notification of the development application between 23 September 2014 and 23 October 2014 (Exhibit 4). Some of the objectors attended the view at the commencement of the hearing and made further submissions to the Court. Their additional oral evidence has been reduced to writing by the parties' lawyers and tendered as Exhibit 1.

Background/facts

The site is comprised of Lot 156 in DP 214751 and known as 66 Wattle Crescent, Glossodia. It is of an irregular shape and bounded by Howes Creek to the north.
The land has an area of approximately 8.66ha and presently contains a single dwelling, garage, cabana, shed, two yards and a dam.
There is a mixture of treed areas and cleared paddocks on the site. Some of the vegetation has been identified as Shale Sandstone Transition Forest, which is a critically endangered Ecological Community under the Threatened Species Conservation Act 1995 (the TSC Act).
The surrounding properties are predominantly larger lots used for rural residential purposes.
On 13 January 2015 the NSW Office of Water issued its general terms of approval for the development.
On 17 December 2014 the NSW Rural Fire Service issued a Bush Fire Safety Authority for the development, subject to conditions. These GTAs and conditions have been incorporated in the Council's draft conditions of consent (Exhibit 7).
The Council determined to refuse the development application at its Ordinary Council Meeting on 12 March 2015.
The Notice of Determination issued to the applicant on 12 March 2015 identifies nine grounds of refusal. However, as noted, the grounds of refusal in relation to bushfire, water, traffic, flooding, earthworks and ecology are no longer pressed since the provision of further information.

Statutory controls

The site is located within the R2 Low Density Residential Zone in Part 2 of the HLEP 2012, and "caravan parks" are a permissible use with consent.
The parties' experts accept that the development is correctly defined as a "caravan park" for 150 long-term residence sites.
They also accept that cl 2.3(2) of the zone objectives and Land Use Table of HLEP 2012 requires the Court to: …have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
However, there are competing views about the application of the zone objectives in this case. Mr Montgomery does not accept that the existing development in Wattle Crescent has a traditional residential character; therefore, he contends that the zone objectives in respect of this character do not apply. Ms Haron adopts the opposite view.
The objectives of the R2 Low Density Residential Zone at issue in these proceedings are highlighted below.

To provide for the housing needs of the community within a low density residential environment.
To enable other land uses to provide facilities or services to meet the day-to-day needs of residents.
To protect the character of traditional residential development and streetscapes.
To ensure that new development retains and enhances that character.
To ensure that development is sympathetic to the natural environment and ecological processes of the area.
To enable development for purposes other than residential only if it is compatible with the character of the living area and has a domestic scale.
To ensure that water supply and sewage disposal on each resultant lot of a subdivision is provided to the satisfaction of the Council.
To ensure that development does not create unreasonable demands for the provision or extension of public amenities or services.

The State Environment Planning Policy No 21 - Caravan Parks (SEPP No 21) also applies to the development application.

The objectors' evidence

Put simply, the local residents believe that the scale and density of the development is not in keeping with the existing character of their quiet, open-spaced, rural, residential streetscape, and that the introduction of an additional 417 permanent residents into Wattle Crescent is an overdevelopment of the site.
The residents are also concerned about the impacts of a large influx of permanent residents "in one hit" into the small suburb of Glossodia, without the provision of additional public amenities and services. They submit that public transport services into and out of Glossodia are extremely limited. They said there is a private bus service - which transports the school children to and from school and also carries other people from the area to larger centres such as Windsor, Richmond and North Richmond. However, given that the intermittent bus timetable does not accommodate workers, and there is limited local employment in Glossodia, most local people rely on their private cars to access employment because they cannot rely on public transport for that purpose.
At the request of the parties, I observed the closest bus-stop to the site. It is approximately 700m from the front driveway of the proposed development. I also observed that Wattle Crescent has no footpaths and that the terrain to get to that bus-stop is both steep and rough underfoot. I accept, as the objectors' submit, that such access may be difficult for young children and less agile residents of the caravan park.
Given the lack of public transport, public services and facilities in Glossodia, the objectors are concerned that the caravan park residents will be isolated from essential services unless they have access to a private car. As it currently stands, there is no doctor or medical/ambulance service in Glossodia. All medical services are located in the larger centres such as Windsor, Richmond or North Richmond. According to the residents, a trip to the nearest doctor/medical centre by car is approximately 40 minutes and the locals cannot, and do not, rely on public transport to get to these emergency/essential services in a hurry.
The objectors at the view said that they are reliant on private cars to access all essential services public amenities located outside of Glossodia. And, given the limited availability of public transport in Glossodia, they generally have more than one car per household. They believe that the residents of the caravan park will also need more than one car per household. As each dwelling site only offers a single car-space - the existing residents of Wattle Crescent are concerned about where the new residents' cars will be parked. They believe that the residents of the development will park in their quiet, residential street and this will change the character of their street.
Notwithstanding the RFS's views about fire safety, the local residents are very worried about bushfire in the area, and on the site which is adjacent to the bush and only contains one driveway egress point. In the event of a fire, the local residents believe that safe evacuation of the caravan park residents and the existing residents of Wattle Crescent will be problematic. I am told that there are no emergency services in Glossodia - they are all on the other side of the river. Consequently, there is a delay before the fire trucks reach the site of a fire in Glossodia. Having experienced bushfires in Wattle Crescent in the past, Ms Stubbs (who gave evidence on behalf of her father - whose property adjoins the site) described the site as a potential firetrap for the residents. She explained that, in her experience, safe egress from Wattle Crescent during a fire is already difficult because the fire trucks block the street and, on the last occasion, parked to access the bush near the proposed driveway of the development site. For those reasons, Ms Stubbs fears for the safety of the 417 residents of the caravan park and her family in the event of a fire. As a psychologist/social worker who has worked with lower income families in the area for the last eight years, Ms Stubbs told me that she understands the existing demands on the community services available within the nearby larger centres. In her opinion, these services are already overburdened. She is very concerned about any additional demand on these existing services generated by the caravan park residents and fears that their needs will not be met.
The Court took a view of the existing public amenities and services available within the village of Glossodia. It observed the location of the local school and the Glossodia shopping centre, containing some takeaway food shops, a butcher, a chemist and an independent general goods store. I also observed the preschool and a small community facility with an adjoining play area which, I understand, provides before- and after-school care. These public amenities and services are located about 1,000m from the development site.
Some of the objectors believe that the introduction of an additional 417 residents from the development will place unreasonable demands on these local facilities and services. They are critical of the fact that the developer is not providing any additional public services and public amenities within Glossodia to meet the needs of the residents of the development. While the residents appreciate that the development incorporates one small community room and some passive and active play areas around the built form of the development, they consider these facilities to be insufficient to meet the needs generated by the development.
Mr Watkins, who resides at 27 Wattle Crescent, was the last speaker to address the Court at the view. In my assessment, his evidence succinctly summarises the views of the majority. He said Wattle Crescent presently contains large blocks with single dwellings and garages with open spaces between lots. The increase in the number of dwellings on Wattle Crescent generated by the development is unacceptable. The increase will be in the order of 500% - moving from the existing 30 dwellings to over 150 dwellings within Wattle Crescent. The resulting permanent population in Wattle Crescent will increase from approximately 120 people to over 600 people. With reference to the objectives of the relevant planning controls, Mr Watkins said that the proposed development does not provide for the housing needs of the community within a low-density environment, nor protect the character of traditional residential development and streetscapes. Therefore, it does not meet the objectives of the R2 Low Density Zone. For those reasons, he submitted that the development is simply unsuitable for the site and not in the public interest. It should not be permitted.
I will now deal with each of the contentions.

Contention (1) - Whether or not the development can be described as being low density and therefore is consistent with the objective outlined in bullet-point 1 of the R2 Low Density Residential Zone - "to provide for the housing needs of the community within a low density residential environment"

There is no definition of the word "density" in the HLEP 2012 and the experts do not agree about the meaning of the term or the density of the proposed development in this case.

Applicant's position

Mr Montgomery, who was employed with the Council between 1997 and March 2006 in the positions of Executive Manager Town Planning Services and Manager Building and Development, said that he understands the historical development of the planning regime in the Hawkesbury area. Based on that understanding, he is of the opinion that the "current zoning is wrong" and that the Council has adopted a "lazy approach" to forward planning for the Glossodia area by maintaining the 40ha subdivision minimum standard.
He believes that if the Council wanted to ensure that the current subdivision pattern in Wattle Crescent was maintained, then the area should not have been zoned R2 which, in his assessment, seeks to achieve low-density residential development/traditional residential development as illustrated in the photographs tendered as Exhibit F (sheets 1 to 5).
Mr Montgomery maintains that the proposal - comprising the 150 dwelling sites - will achieve the same density as a traditional residential development of the land under the traditional low-density residential minimum lot size contained within the help 2012. Whilst he acknowledges the comments made by Ms Haran in relation to density, he does not believe that it is reasonable to measure the density of the proposal based on the developed area only. Nor is it reasonable to use the 4,000-square-metre lots in Wattle Crescent as a measure of acceptable density, as these lots are not connected to a reticulated sewer and must be at least this size to cater for on-site wastewater disposal.
By contrast, the majority of the residential zone in Glossodia, which is connected to reticulated sewer, comprises lots down to 500 square metres. Given that the HLEP 2012 does not adopt the floor space ratio clause of the standard instrument, nor contain any site coverage controls, Mr Montgomery is of the opinion that the most appropriate way to assess density is to divide the number of dwellings by the area of the land i.e. dwellings per hectare. When one expresses the density of the development as dwellings per hectare (17.3 dwellings per hectare), this presents a traditional residential character like other parts of the Glossodia in Chestnut Drive, Grand Parade and Golden Valley Drive and, on that basis, the proposed development satisfies the term "low density". For those reasons the development, in his assessment, satisfies the objective of providing for The housing needs of the community within a low-density residential environment.

The Council's position

Ms Haran adopts the Macquarie Dictionary definition of the word "density", which is: 1. the state or quality of being dense, compactness, closely set or crowded conditions.
In the joint report at [3.14] she states: In general, with the minimum lot size for subdivision within the Low Density Residential R2 zone being 450 m², it would be expected that one dwelling per 450 m² would be the maximum density permitted to meet the definition of 'low density' . However, density is also dependent on the area of land taken up by buildings and associated setbacks and open spaces, as these contribute to the area's sense of compactness, or not. Whilst this is the case, it is also identified that different residential areas, due to existing development and the character that that development has created, will give a different perception of low-density. For example, within the R2 zoned areas of Windsor, Richmond and North Richmond, where there is a minimum lot size of 450 m² for subdivision, single dwelling house development on these lots would appear more compact compared to the R2 zoned land of Wattle Crescent Glossodia, where the lots are 4047 m² and 1027ha in size. Therefore, the definition of low-density is also subject to the characteristics of the locality.
Accordingly, Ms Haron is of the opinion that the character of the traditional residential development in Wattle Crescent is different from other parts of Glossodia. It is defined by the following characteristics: 1. Large lots of predominately 4,047 square metres to 1.012ha along the southern and eastern sides of the street and approximately 1ha to 8ha along the northern and western sides. 2. Separation between buildings and outbuildings on a property and those on the adjoining properties are generous. 3. Landscaping or retained native vegetation within front setbacks and surrounding dwellings.
In fact, Ms Haron believes that the density of residential development in Wattle Crescent bears little relationship with the density and character of the other residential developments found in Chestnut Drive, Grand Parade, and Golden Valley Drive, Glossodia. Not only are those other residential areas visually removed from Wattle Crescent but they have much smaller, more uniform lots.
In order to determine the density of the proposed development, Ms Haron believes it is necessary to consider the built area of the site and compare it with the built area on other sites in Wattle Crescent. The fact that the proposed development - as a whole- is located so as to provide generous setbacks from the street and side boundaries does not mean that the proposed development is a "low density residential environment" and compatible with the existing low-density character of the other Glossodia residential areas.
According to Ms Haron, the applicant's reliance upon the whole site area to derive a density of one dwelling per 557 square metres is misleading because, in physical terms, the layout proposed will result in approximately four dwellings being located within a 577-square-metre area (557 square metres divided by 150 square metres) - resulting in a crowded or dense appearance. The applicant's methodology ignores the fact that the 150 individual dwellings will be clustered or compacted in the centre of the property and occupy approximately 43,000 square metres of the whole site which, in broad terms, results in a density of approximately one dwelling per 218 square metres - when, in fact, each dwelling site will have an even smaller area, between 144 square metres and 150 square metres.
Based on the building footprint of the indicative premanufactured home designs provided with the application (Exhibit C), Ms Haron has assessed that the proportion of each site to be occupied by building is likely to be in the order of 66% to 76%. This level of building on each site, together with the abutting and clustered nature of the sites, will, according to Ms Haron, inevitably result in a higher density residential environment.
In the ultimate, Ms Haron believes that the proposed 144-square-metre to 150-square-metre dwelling sites will not permit building separation, open spaces and landscaping that would be compatible with that associated with the existing low-density residential development in Wattle Crescent and that it cannot be said that the proposal meets the first objective of the zone.

Finding contention (1)

In circumstances where the HLEP 2012 does not contain a definition of density or adopt the floor space controls of the standard instrument or contain any site coverage controls, I find that it is entirely reasonable to adopt the Macquarie Dictionary definition of "density" (in Exhibit 6, p5 at [3.12]), namely: The state or quality of being dense; compactness; closely set or crowded condition. Furthermore, I accept for the purpose of this case that density is best measured by having regard to the developed area of the site, which Ms Haron describes as: … the area taken up by the buildings and associated setbacks and open spaces which contribute to the area's sense of compactness or not… I also accept Ms Haron's reasoning that: … Different residential areas, due to existing development and the character that that development has created, will give a different perception of density. I observed that to be the case during the view of the Glossodia streets beyond the immediate locality of the site. They do have a different density. As Ms Haron explains: … within the R2 zoned areas of Windsor , Richmond and North Richmond, where there is a minimum lot size of 450m2 for subdivision, single dwelling house development on these lots would appear more compact compared to the R2 zoned land of Wattle Crescent in Glossodia, where the lots are 4047m2 and 1.012ha. Therefore the definition of "low density" is also subject to the characteristics of the locality.
In this case, I accept Ms Haron's opinion that the density of the proposed development is informed by the context of the existing development in the immediate locality of Wattle Crescent and not by the streets in Glossodia (Chestnut Drive, Grand Parade and Golden Valley Drive) which are visually removed and comprised of much smaller lot sizes in the order of 550 square metres.
Having walked Wattle Crescent, I accept Ms Haron's description of the development and her views about the character of Wattle Crescent (at [3.16] of the joint report (Exhibit 6)).
For the reasons stated by Ms Haron, I cannot accept Mr Montgomery's reasoning that the most appropriate way to assess the density of the development is to divide the area of the entire property by the number of dwellings created to derive a lot size, and then apply the usual low-density minimum lot size to the subject land to support a conclusion that the development is low density (Exhibit 6 at p8 at [3.20]). This approach ignores the fact that the development application specifies a particular site layout and lot size which centralises the built form in the middle of the property. I am not being asked to approve a caravan park for 150 long-term sites of any dimension "somewhere" on the property. The application proposes a specific density of development identified in the application which, if approved, can only be modified upon application and the approval of the Council or the Court.
As Ms Haron explains in her evidence, the relevant locality for a consideration of density of the proposal is that of Wattle Crescent. Due to the existing development, and the character that that development has created, Wattle Crescent has a different perception of low density to other areas of Glossodia where the blocks may be 450 square metres. Nonetheless, it remains an example of a low-density residential environment, albeit characterised by lots of 4,000 square metres, or larger, containing single dwelling houses surrounded by gardens and bushland.
The experts agree that each dwelling site within the development will have an area of 144 square metres to 150 square metres (with site dimensions of 12m x 12m, 10m x 15m or 9m x 16m). When I consider the built area of the proposed development, including the size of each dwelling site, the limited space between buildings, the minimal landscaping on each dwelling site and their clustered relationship in the middle of the property, and compare it with the character of the existing residential development in Wattle Crescent, as outlined, I cannot accept the proposed application offers a low-density residential environment. While I accept that it may be possible to design a caravan park which offers a low-density residential environment, this application does not fall into that category. Accordingly, I find that the development does not "provide for the housing needs of the community within a low density residential environment". Therefore, the application, in my assessment, is not consistent with the first dot-point objective of the R2 Low Density Residential Zone, which is a relevant consideration in my assessment of this development application (cl 2.3 of the HLEP 2012).

Contention (2) - Whether or not the development will be consistent with the objectives outlined in bullet-points 3 and 4 of the R2 Low Density Residential Zone - "to protect the character of traditional residential development and streetscapes" and "to ensure that new development retains and enhances that character"

Applicant's position

Mr Montgomery is of the opinion that the land in the immediate vicinity of the development site has not been developed in accordance with the R2 zone and, therefore, it does not exhibit any of the characteristics of traditional residential development the subject of the zone objective. In his assessment, the immediate locality of the development is best described as rural/residential land with a bushland character (Exhibit 6, p10 at [3.30]). Therefore, as there is no traditional residential character evidenced in the immediate locality, objectives 2, 3 and 4 should not be applied to the subject land.
According to Mr Montgomery, "traditional residential character" is recognisable largely from the streetscape it presents. A traditional residential streetscape is generally characterised by:

a planned allotment layout, with similar sized lots and similar street frontages;
single dwellings on each lot with orientation and presentation to the street;
constructed kerb-and-gutter along the street;
a formed and defined public footway between property boundaries and the road; and
a consistent rhythm of buildings and/or gardens

In the Hawkesbury Local Government Area, the "traditional residential character" also generally comprises:

lot sizes of between 500 square metres and 1,000 square metres;
dwelling setbacks from the front boundary between 6m and 10m; and
lot frontages between 13m and 20m wide.

Mr Montgomery believes that this traditional residential character can be readily observed in parts of Glossodia, such as Golden Vale Drive, Grand Parade and Nightingale Square. However, the subject land and immediate surrounds possess none of the characteristics which would be associated with a "traditional residential character".
Ultimately, Mr Montgomery told me that he believes the proposed development is not inconsistent with the rural/residential bushland character of the locality and fits in with the streetscape of Wattle Crescent. He said the development does not impact on the street because the proposed dwelling sites (located some 140m from the road) will not be visible from Wattle Crescent. Other than an upgraded entry driveway, Mr Montgomery believes that there will be little or no difference after the development is completed when viewed from the street.

The Council's position

Ms Haron disagrees. In her opinion the term "traditional residential character" is the character/nature of a residential area which has prevailed over time. She does not accept Mr Montgomery's view that the character of "traditional residential development" is a defined planning term for a particular style of residential development. Rather, she is of the opinion that the term needs to be understood with reference to the existing development within the relevant streetscape.
In expressing this opinion, Ms Haron accepts that "traditional residential development" can be characterised by the style of development depicted in the photographs taken by Mr Montgomery in Exhibit F (sheets 1-5) with the features he describes in his evidence. However, these features, in her opinion, only describe one type of character of "traditional residential development". Sheet 6 of the photographs (Exhibit F) depict the existing streetscape of Wattle Crescent and, although it is different from the character of traditional residential development in other residential areas in Glossodia such as; Golden Vale Road, Wattle Crescent does have a particular character of traditional (or longstanding) residential development.
Given that the subdivision pattern in Glossodia has not changed since its creation in the early 1950s and 1960s, due to past and present planning controls (the subdivision minimum lot size is 40ha under the HLEP 2012), Ms Haron believes that the nature and density of the development within the residential precinct of Glossodia which has predominately remained the same will remain the same for some time in the future.
In her assessment Wattle Credent contains a character of traditional (or longstanding) residential development for that area. It is typified by lots of 4047 square metres and 1.012 ha, to the south and east, and lots ranging from approximately 1ha to 8ha, to the north where the site is located. Therefore, the relevant character of the "traditional residential development" in this case is comprised of larger lots containing a single dwelling house with separation between dwelling houses and the size of the properties providing a low-density open character. Accepting that the immediate streetscape of the site informs the character referred to in the zone objective, Ms Haron believes the zone objective seeks to protect the character of large lots containing a single dwelling house with the separation between dwelling houses and the size of the properties providing a low-density open character. Ms Haron rejects Mr Montgomery's conclusions that "the subject land and immediate surrounds possess none of the characteristics which would be associated with a traditional residential character" or that there is "…no traditional character evident in the immediate locality…" (Exhibit 6, pp10-11 at [3.33]-[3.35]). In her assessment, Ms Haron believes that the proposal, comprising 151 (including the manager's residence) densely clustered dwellings is not consistent with the existing low-density residential development within this northern section of Glossodia residential zoning. Therefore, the character of the traditional residential development and streetscape is not protected by the proposed development. Nor is it retained and enhanced by the proposed new development. Objectives 2, 3 and 4 are not achieved by this development. Despite setting the built form well back on the property, behind extensive landscape screening at the front and side setbacks - to limit the development's visibility from the street, Ms Haron remains firmly of the view that the development is out of character with the "traditional residential development" in Wattle Crescent which is the immediate locality of the site. In short, she has here asserted that the introduction of 150 clustered dwellings on identified sites with areas between 140 square metres and 150 square metres in the middle of the property is at odds with the longstanding character of traditional residential development presently found in Wattle Crescent.

Finding: contention (2)

I accept Ms Haron's evidence that the term "traditional residential development" is not a defined planning term. It can be characterised by the type of development depicted in the photographs tendered by Mr Montgomery and have the features he lists in the joint report (p10 at [3.31] of Exhibit 6) or it may not. As Ms Haron states (at p9 [3.27, Exhibit 6): Traditional residential character cannot be defined as one single entity. It is dependent on the character/nature of the development which has been maintained within the locality, including subdivision patterns and allotment sizes, open spaces and landscaping, building locations and separation, setback and building sizes and densities.
Therefore, in order to understand the character of traditional residential development and streetscapes sought to be protected, retained and enhanced by the zone objectives, in this case one must look at the immediate area of the site, which is Wattle Crescent. Different streetscapes will evoke a different character of residential development. And, if that residential development has been unchanged for some time, then I accept it can be classified as traditional, or longstanding, as Ms Haron suggests.
After a view of the site and a consideration of all of the evidence, I cannot accept Mr Montgomery's view that the immediate surrounds possess none of the characteristics which would be associated with a traditional residential character. I accept that Wattle Crescent does not have the same residential characteristics observed in other parts of Glossodia, such as Golden Vale Road, Grand Parade and Nightingale Square (being areas which Mr Montgomery considers to be traditional residential development), but this does not mean that Wattle Crescent does not have the character of a traditional residential development for that streetscape. For the reasons articulated by Ms Haron, the character of the immediate locality of Wattle Crescent is the relevant streetscape. In this case, it is comprised of larger lots containing single dwelling houses with separation between dwelling houses and the size of the properties providing for a low-density open character. It is, without doubt, different from other residential areas of Glossodia.
The residents of the area who addressed the Court identified this character in their evidence. They described Wattle Crescent as being characterised by single dwellings on large blocks with space between dwellings and open yards. They said it is a longstanding or traditional residential character - having prevailed over time. One of the residents who addressed the Court said her family had lived in this existing residential subdivision pattern for over 30 years, while other residents said that they had moved into Wattle Crescent more recently, drawn to the large lots with open space between dwellings.
Having reached the conclusion that Wattle Crescent contains a form of traditional residential development, cl 2.3 of the HLEP 2012 requires that I must have regard to the objectives listed at bullet-points 3 and 4. Having carried out that exercise, I find, after a consideration of the expert evidence, the lay evidence and my inspection of the immediate locality of the site, that the proposed development does not contain any of the identified characteristics of the immediate locality of Wattle Crescent. I accept Ms Haron's evidence that the construction of 151 (including the manager's residence) densely clustered dwellings on the site is not consistent with the existing low-density residential environment within the northern section of Glossodia residential zoning.
Based on the evidence outlined above, it is my considered opinion that the new development does not retain or enhance the character of that traditional residential development and streetscape in Wattle Crescent. Accordingly, I find that the development is inconsistent with the zone objectives in bullet-points 3 and 4 which are relevant considerations in my assessment of the application.

Contention (3) - Whether or not the development application satisfies the matters for consideration listed in cl 10 of the State Environmental Planning Policy No 21 (SEPP21)"

The experts agree that cl 10 of SEPP 21 applies to the proposed development. Clause 10 states: 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.
However, they disagree as to whether the proposed development satisfies the matters for consideration listed in cl 10 of SEPP 21.
The Court has received both written and oral evidence from the experts on this issue. However, in the ultimate, Mr Seton, the advocate for the Council, submitted that the applicant has not provided sufficient information to the Court to properly consider whether the necessary community facilities and services referred to in cl 10(d) are reasonably accessible to the occupants of the caravan park.
As the development does not incorporate community facilities in this application (other than the small community room), the occupants of the caravan park must find these community facilities and services elsewhere in the locality. As it stands, the Council submits that Court has not received any objective information about the availability of the necessary community facilities and services in the locality to the occupants of the caravan park. In particular, the Council submits that the Court has no information about the capacity of the local school, preschool, before- and after-school facilities, or the existing bus service to cater for the needs of the additional 417 people anticipated by this development.
According to Ms Haran, the Hawkesbury is an area of high transport disadvantage, and Glossodia, particularly, is an area of significantly high transport disadvantage resulting in high car ownership. As the application offers no additional transport services for the residents of the development, it is reasonable to assume that they will be dependent upon existing public and private services unless they have access to a private car. Based on the available information, Ms Haron is of the opinion that the increase in the population resulting from the development will negatively impact on the existing residents of Glossodia because there will be increased demand and competition for the limited services and facilities available in the locality. Although Ms Haron had not made specific enquiry about the availability of existing services and community facilities in the locality or nearby centres, she told the Court that, based on her understanding of the "Jacaranda Ponds" development, she believed that the childcare facility in Glossodia had limited childcare space available. She was unable to comment in any detail about the availability of places at the local school or the before- and after-school care to accommodate the needs of the occupants of the development.
That said, Ms Haron was able to express some general views about the availability and accessibility of facilities and services within the development site and the locality. She confirmed that, apart from one small community room and some passive and active recreation areas on the site, the application does not propose any on-site community facilities or services. There is no local park or oval for the occupants to use and, given the density of the development and the lack of private open space on each dwelling site, she believes that the occupants will need to leave the site to access necessary community facilitates and services outside of Glossodia and is concerned about how they will reasonably access such community facilities and services.
In giving this evidence, she focused upon the distance of the site from the local shops - some 1000m from the site - and the difficulty of access to those facilities and services for the young or less mobile occupants, particularly as there are no footpaths in Wattle Crescent and the terrain is uneven. She referred to the limited local bus service which is essentially a school bus which offers irregular services within and out of Glossodia and the proximity of the local bus-stop some 700m from the site, and the limited employment opportunity within Glossodia and, therefore, the requirement that occupants who work will more than likely need to rely on the local bus to access nearby centres to get to their employment. She also confirmed the fact that there is no doctor/medical service presently in Glossodia. For those reasons, she said the necessary community facilities and services (if available) are certainly not "reasonable accessible to the occupants of the caravan park" (cl10 (d)).
As cl 10(a) of SEPP 21 also requires the Court to consider "whether, because of its location and character, the land concerned is particularly suitable for use as a caravan park … for long-term residence", and (c) "whether there is adequate low-cost housing, or land available for low cost housing in the locality", Ms Haron also addressed these matters. She told the Court that she was of the opinion that the consideration in subcl (c) implies that caravan parks used for long-term residences provide a form of low-cost housing, and thereby attract people with lower incomes who require reasonable access to a higher level of services. These services are located in Windsor, Richmond and/or North Richmond. With that in mind, Ms Haron said that she is firmly of the view that Glossodia is not a suitable location for lower income families, as there is no reasonable access to essential services in the village; no convenient access to the services in the towns of Windsor, Richmond and/or North Richmond; and without car ownership, the associated cost of car ownership will have a negative impact on lower income families.
Ultimately, Ms Haran's position is that there is no evidence that the site or the locality has the necessary community facilities and services available to support the needs of the increased population resulting from the proposed development and, if available, that they are reasonably accessible to the occupants of the caravan park. She believes, on the available information, that the development is inconsistent with objectives (b), (c) and (d) of cl 10 of SEPP 21.

The applicant's position

Mr Montgomery told the Court that the proposed population in Glossodia in 2011 was 2,809. In the event the development is approved, the site will contain 417 occupants and this will result in a minor increase to the population of Glossodia of between 10% to 13%. In his assessment, the demands of these new occupants on existing services and facilities in Glossodia will be easily accommodated and, if there is a particular need identified once the caravan park is occupied, these services could be provided to meet that demand (Exhibit 6, p19 at 3.60(d)).
According to Mr Montgomery, the reasonable needs of the residents generated by the development will be serviced by the services and facilities available to all residents within the Hawkesbury area in the town centres of Richmond and Windsor, and the North Richmond Village Centre. He told the Court that each of these centres provides a range of medical, banking, shopping, commercial/professional and community services to satisfy the needs of the Hawkesbury population.
In Mr Montgomery's assessment, this development does not generate a need for the provision of additional services and amenities by the developer. The application is very different from the recently approved "Jacaranda Ponds" residential development located some 1,300m from the site at the southern edge of Glossodia. Mr Montgomery explained to the Court that "Jacaranda Ponds" required a rezoning of the land from rural to residential to facilitate the development of up to 580 large-lot residential sites and low-density residential sites. And, given that the "Jacaranda Ponds" development is likely to increase the population of Glossodia by 50%, Mr Montgomery said it is reasonable to require the provision of additional facilities and services as part of the application. However, it is unreasonable, in this instance, to require the developer to provide additional services and facilities. This is not a rezoning application, or a planning proposal, but an application for a permissible use under the current zoning.
Mr Montgomery's evidence in respect of the matters raised by cl 10 of SEPP 21 is detailed at p18 of the joint report. He states: (a) Suitability of the land for a caravan park: The land is located at the edge of an existing residential community. The site provides sufficient area to allow for riparian and bushland conservation and enhancement and to locate the built form such that it will not be visible from the street. I consider that this location is particularly suitable use as a caravan park for long term residence. (b) Existing or adequate tourist accommodation: Glossodia is not a tourist destination per se. Existing tourist accommodation within the Hawkesbury LGA is mainly focusses around the Grose, Hawkesbury, McDonald and Colo Rivers, and in the escarpment and mountain areas of Kurrajong, Kurrajong Heights and Bilpin and Berambing. In my opinion there is no demand for tourist accommodation in Glossodia. No existing or potential tourist accommodation will be displaced by the use of sites for long - term residences. (c) Low- cost housing: The median sale price for houses in Glossodia for the 12 months to September 2015 is $522,000. It is noted that only 58 house sales were recorded in this period. The median rental price for house rentals in the 12 months to October 2015 was $420 per week. There were 40 house rentals recorded in this period. The median household income in Glossodia in 2011 is 1,577 per week. It is proposed to sell dwellings within the development for between $320,000 and $350,000. In my opinion there in no land available for low cost housing in the locality and the proposal represents a viable alternate to the traditional housing model for families which otherwise could not own their own home. (d) Community Facilities and Services: The development does not incorporate community facilities. However, it may be anticipated that if there is a particular need identified once the caravan park is occupied, services could be provided to meet the demand. In terms of the locality, Glossodia village comprises a public school, a child care centre offering long day care and early learning programs, a community information and neighbourhood centre (which also provide after school care). A public hospital, a range of specialist medical services, government offices, professional services, banking, full size supermarkets and speciality shops are located in Windsor. In my opinion these facilities are reasonably accessible by occupants of the caravan park".
With respect to cl 10(d), Mr Montgomery agreed with Mr Seton that he had made no independent enquiry about the availability of the existing community facilities and services in the locality (i.e. current vacancy rates at the school, childcare centre, before- and after- school care) or in nearby centres to support his conclusion that they could accommodate the needs of the occupants of the caravan park.

Finding contention (3)

Clause 10 provides that the Court may consent to a development application only after it has considered the matters listed in cl 10.
The parties agree that the proposed development does not provide any additional community facilities or services on the site or within the Glossodia locality to cater for the needs of the future residents of the caravan park. The focus is, therefore, on the existing services and facilities in the locality and nearby centres.
It is also agreed that the development is likely to generate a population of about 417 people. This represents an increase in the population of Glossodia in the order of 13%.
The applicant submits that when considering the matters listed in cl 10 of SEPP 21 it needs to be remembered that the SEPP applies statewide, including the remotest tourist and rural areas of New South Wales. When considered in that context, the applicant submits this development is proposed within an established urban area where necessary community facilities and services are both available and reasonably accessible to the occupants of the caravan park. The suggestion is that the SEPP is not really concerned about the development of a caravan park in an urbanised context.
Moreover, Mr Montgomery told me that he believed the development could be approved, and if a particular need is identified once the caravan park is occupied services could be provided to meet the demand (Exhibit 6, p19 at [3.6]). By way of example, he said an extra bus service could be provided - although he conceded that he had made no such enquiry but understood his client had rung the bus company about this. The community room could be used for childcare .
Unfortunately, the approach suggested by Mr Montgomery bypasses the express requirement of cl 10 of SEPP 21. The clause requires a consideration of the matters raised by cl 10 in order to inform the decision to approve the development. This means that I must understand, on the evidence, whether the necessary community facilities and services are available and whether they are reasonably accessible to the occupants of the caravan park before any decision to approve is made. Subclause (d) does not ask whether they can be made available if required after an approval at some future time.
Nor do I accept, as submitted, that it is intended that cl 10 of SEPP 21 be interpreted differently, depending upon where the caravan park is proposed. The terms of cl 10 are clear and they do not differentiate between caravan parks in different areas of New South Wales. An urban area may be more likely to have a greater number of community facilities and services than a remote rural area or tourist beach, but that fact alone does not satisfy the enquiry required under cl 10(d). The consideration invited by SEPP 21 goes to the availability and reasonable accessibility of those facilities and services to the occupants of the caravan park.
The clause asks me to consider the "necessary community facilities and services" and other specified matters before a decision to grant development consent for a caravan park. There is no issue about the meaning of the term "necessary community facilities and services". The experts refer to those facilities and services in their evidence, namely, public transport, childcare, schools, medical services etc. Given that the development does not incorporate community facilities and services on site, the Court in this case must consider those available and reasonably accessible to the occupants in the locality.
As it stands, the Court does not have sufficient information to consider whether the necessary community facilities and services referred to in cl 10(d) are reasonably accessible to the occupants of the caravan park. As Mr Seton submits, the Court has not received any objective information about the availability (or capacity) of the local school, preschool or before- and after-school facilities to cater for the needs of the occupants of the caravan park or the availability of public transport - namely, the availability of the existing bus service to accommodate the additional 417 people expected by this development. Mr Montgomery concedes he has not investigated the availability of the existing services and facilities. The only evidence the Court has about the availability and reasonable accessibility of these necessary community facilities and services has come from the residents (as summarised earlier). That evidence, in my assessment, raises concerns about the availability of the existing community facilities and services and their accessibility for the occupants of the caravan park.
For those reasons, I must agree with the Council and find that there is insufficient information before the Court to enable it to undertake the consideration required by cl 10(d), in particular, of SEPP 21.

Contention (4) - The relevance of the Council's Hawkesbury Residential Land Strategy (the Strategy) to the proposed development and the statutory weight (if any) which should be applied

The experts agree that the Council's residential land strategy adopted on 10 May 2011 provides some guidance for planning proposals about the future investigations needed before the provision of additional dwellings within the Hawkesbury Local Government Area.
However, in this case, the document has no statutory weight in my assessment of this application. It is, as Mr Montgomery states, a high-level, strategic document and forms part of the background context to this application. It is, at its highest, relevant under the public interest.

Conclusion

The applicant submits that "where the zoning of 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 the site": BGP Properties Pty Ltd v Macquarie City Council [2004] NSWLEC 399; 138 LGERA 237 per McClellan CJ at [117]. However, permissibility to carry out the use of the land is but one consideration under s 79C.
Wattle Crescent presently contains large blocks with single dwellings and garages with open spaces between lots. The current zone objectives of the HLEP 2012 support this character of traditional residential development. The proposed development increases the number of dwellings in Wattle Crescent from the existing 30 dwellings to over 181 dwellings - with 151 of the dwellings located on the development site. The resulting permanent population in Wattle Crescent will increase from approximately 120 people to over 600 people. With reference to the objectives of the relevant planning control, the proposed development does not provide for the housing needs of the community within a low-density environment or precinct, retain or enhance the character of the traditional residential development and streetscape in Wattle Crescent. Therefore, it does not meet the objectives of the R2 Low Density Zone.
While inconsistency with the zone objectives does not necessitate the refusal of an otherwise acceptable application, in this case, after a careful assessment of all of the evidence, I do not believe that development is acceptable on its merits.
I must agree with Ms Haron that an influx of 417 permanent residents on the site at the density proposed will dramatically alter the existing amenity and character of the traditional residential development in Wattle Crescent. Without reasonable access to public transport, these new residents will be car-dependent and otherwise isolated from necessary community facilities and services - if they are available, which is unclear on the evidence. I simply do not have sufficient information to undertake the consideration required by cl 10 of SEPP 21 .
The application has generated significant community objection and the opinions of the residents are, in my assessment, reasonable and lend support to the Council's submission that this site is simply not suitable for the proposed development and not in the public interest: s 79C(1)(c) and (e) of the EPA Act.

Orders

The Court orders: 1. The appeal is dismissed. 2. The exhibits are returned apart from exhibits 2 and A. Susan Dixon Commissioner

Annexure A - Site Plan of the Proposed Development 1. 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: 03 June 2016

At a glance

Court

Decision date

Source

Judgment (23 paragraphs)

Parties

Cases Cited (1)

Cited By (3)