PRJM Pty Ltd v Hawkesbury City Council

Background

1. The Subject Site is located on the northern side of Wattle Crescent, and is bounded by Howes Creek along its northern margin. It has an area of 8.66 Ha, and is of irregular shape having: 1. a front boundary of 30.48m; and 2. side boundaries of 91.44m, 233.68m, and 578.49m.
2. The adjacent properties at 62 and 70 Wattle Crescent have areas of 6.278 Ha and 3.117 Ha, respectively.
3. At the commencement of the appeal the Court undertook a view of the Subject Site, during which submissions were received from five objectors in relation to the Proposed Development and its potential impacts, as follows: 1. Ms Amy Stubbs, who said that her principal concerns related to: 1. potential impacts on the privacy and security of her father's property adjacent to the Subject Site, which was his sole asset; 2. the potential risk associated with bushfires and related potential impacts on the Proposed Development; 3. potential traffic impacts on the local roads; 4. potential impacts of flooding on the Proposed Development; 5. the suitability of the Subject Site for the Proposed Development; and 6. the potential impact of the Proposed Development, and in particular its proposed removal of trees, on wildlife. 1. Mr John Peters, who endorsed the submissions of Ms Stubbs and who added that he held particular concerns in relation to the availability, or otherwise, of sewerage and energy infrastructure for the Proposed Development, the paucity of public transport in the area, and the risk associated with potential bushfire impact on the Proposed Development. 2. Mr Donald Price, who expressed concerns in relation to: 1. the viability of the Proposed Development; 2. the potential impact of the proposed Development on vegetation and wildlife; 3. the potential impact of construction traffic, including in relation to noise generation and road deterioration; 4. the construction of infrastructure through local road corridors to provide the required services to the Proposed Development; 5. the collection of waste from the Proposed Development; and 6. the potential impact of bushfires on the Proposed Development, particularly in relation to climate change. 1. Ms Sabine Donny, a resident of the property adjacent to the Subject Site at its rear, who adopted the submissions of previous speakers, and said that her principal concerns related to: 1. potential impacts on privacy of residents on properties adjoining the Subject Site; and 2. the potential impacts of bushfire on the Proposed Development; 1. Mr Paul Watkins, a resident of Wattle Crescent, who supported the submissions of other speakers and noted that his principal concerns related to: 1. the poor state of local roads, and in particular Wattle Crescent, and their ability to support the traffic generated by the Proposed Development; 2. the potential risk posed by traffic from the Proposed Development to the children living in Wattle Crescent, including to his own children; and 3. the Proposed Development being, in his assessment, out of character with the local area.

Environmental Planning and Assessment Act 1979

1. The objects of the EP&A Act are as follows: (a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources, (b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment, (c) to promote the orderly and economic use and development of land, (d) to promote the delivery and maintenance of affordable housing, (e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats, (f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage), (g) to promote good design and amenity of the built environment, (h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants, (i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State, (j) to provide increased opportunity for community participation in environmental planning and assessment.
2. Section 4.15(1) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (1) Matters for consideration - general … (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
3. Section 4.15(3A) of the EP&A Act further provides that: Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application.

Hawkesbury Local Environment Plan 2012

1. Development on the Subject Site is subject to the provisions of the Hawkesbury Local Environmental Plan 2012 (HLEP), and under the provisions of cl 2.1 of HLEP it is zoned R2 Low Density Residential.
2. The objectives of the R2 zone are to: * provide for the housing needs of the community within a low density residential environment. * enable other land uses that provide facilities or services to meet the day to day needs of residents. * protect the character of traditional residential development and streetscapes. * ensure that new development retains and enhances that character. * ensure that development is sympathetic to the natural environment and ecological processes of the area. * enable development for purposes other than residential only if it is compatible with the character of the living area and has a domestic scale. * ensure that water supply and sewage disposal on each resultant lot of a subdivision is provided to the satisfaction of the Council. * ensure that development does not create unreasonable demands for the provision or extension of public amenities or services.
3. A caravan development, such as is proposed by the Applicant, is a permissible form of development within this R2 Low Density Residential zone, although the dictionary within HLEP also states that tourist and visitor accommodation or caravan parks fall outside the definition of "residential accommodation".
4. The following further provisions of HLEP are also of particular relevance in this appeal: 1. Clause 6.1 of HLEP concerning acid sulfate soils which provides under subcl 6.1(3) that: 2. 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 in accordance with the Acid Sulfate Soils Manual and has been provided to the consent authority.Clause 6.2 concerning earthworks, which provides within subcl 6.2(3) as follows: Before granting development consent for earthworks, the consent authority must consider the following matters - (a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. 1. Clause 6.4, concerning terrestrial biodiversity, which provides: 1. that its objective is to maintain terrestrial biodiversity by: 1. protecting native fauna and flora, and 2. protecting the ecological processes necessary for their continued existence, and 3. encouraging the conservation and recovery of native fauna and flora and their habitats. 1. as follows under subcll 6.4(3) and 6.4(4) in relation to the considerations of consent authorities: (3) Before determining a development application for development on land to which this clause applies, the consent authority must consider- (a) whether the development - (i) is likely to have any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and (ii) is likely to have any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and (iii) has any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and (iv) is likely to have any adverse impact on the habitat elements providing connectivity on the land. (b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. (4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that - (a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or (b) if that impact cannot be reasonably avoided by adopting feasible alternatives - the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised - the development will be managed to mitigate that impact. 1. Clause 6.7 concerning essential services which provides as follows: Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the proposed development are available or that adequate arrangements have been made to make them available when required - (a) the supply of water, (b) the supply of electricity, (c) the disposal and management of sewage, (d) stormwater drainage or on-site conservation, (e) suitable road access.

State Environmental Planning Policy No 21 - Caravan Parks

1. The proposed development is for a caravan park and so requires consideration in relation to the provisions of State Environmental Planning Policy No 21 - Caravan Parks (SEPP21).
2. The aims of SEPP21 are to encourage: (a) the orderly and economic use and development of land used or intended to be used as a caravan park catering exclusively or predominantly for short-term residents (such as tourists) or for long-term residents, or catering for both, and (b) the proper management and development of land so used, for the purpose of promoting the social and economic welfare of the community, and (c) the provision of community facilities for land so used, and (d) the protection of the environment of, and in the vicinity of, land so used..
3. Within SEPP21: 1. a caravan park is defined as: "caravan park means land (including a camping ground) on which caravans (or caravans and other moveable dwellings) are, or are to be, installed or placed". 1. a moveable dwelling is defined as having the same meaning as in the LG Act, which defines it as follows: "moveable dwelling means - (a) any tent, or any caravan or other van or other portable device (whether on wheels or not), used for human habitation, or (b) a manufactured home, or(c) any conveyance, structure or thing of a class or description prescribed by the regulations for the purposes of this definition"
4. Clause 5 of SEPP21 addresses the relationship of SEPP21 to other environmental planning instruments and provides under subcl (1) that: (1) In the event of an inconsistency between this Policy and another environmental planning instrument (whether made before or after this Policy) this Policy prevails to the extent of the inconsistency. This subclause is subject to section 36 of the Environmental Planning and Assessment Act 1979.
5. Clause 10 of SEPP21 includes matters that must be taken into consideration by Councils before consent can be granted for a caravan park, as follows: 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.

State Environmental Planning Policy No 55 - Remediation of Land

1. State Environmental Planning Policy No 55 - Remediation of Land (SEPP55) provides for a State-wide planning approach to the remediation of contaminated land.
2. Relevantly, cl 7 of SEPP55 provides as follows: (1) A consent authority must not consent to the carrying out of any development on land unless - (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. (3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation. (4) The land concerned is - (a) land that is within an investigation area, (b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out, (c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital - land - (i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and (ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).

Local Government Act 1993

1. The purposes of the LG Act include the following: (a) to provide the legal framework for the system of local government for New South Wales, (b) to set out the responsibilities and powers of councils, councillors and other persons and bodies that constitute the system of local government
2. By virtue of the provisions of s 68(a) of the LG Act, a person may operate a caravan park only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without that approval.

Hawkesbury Development Control Plan 2002

1. Development on the Subject Site is subject to the provisions of Hawkesbury Development Control Plan 2002 (HDCP), which contains guidelines for applicants, as well as others involved and interested in the development of the City. HDCP complements the statutory provisions contained in the HLEP 2012.
2. HDCP was initially adopted by Council on 12 March 2002, and has been subject to amendments outlined in section1.6 of Part A of the plan. The objectives of HDCP are: "a) To provide a comprehensive document that contains detailed development controls for development which meets community expectations and addresses the key environmental planning issues of the Hawkesbury LGA; b) To promote economically, socially and environmentally sustainable development within the City of Hawkesbury; c) To enable an aesthetically pleasing and functional development that sympathetically relates to adjoining and nearby development; d) To maintain and enhance the environmental and cultural heritage of the Hawkesbury LGA; e) To involve the local community in the planning process by ensuring openness, accountability and transparency in the decision-making process; f) To set out clear processes, procedures and requirements to facilitate an integrated and consistent framework for dealing with development assessment; g) To ensure that development will respond to its context and not detrimentally affect the surrounding development; and h) To promote the Ecologically Sustainable Development (ESD) principles including water sensitive urban design, climate responsive building design, energy efficiency, and selection/use of recycled materials. The provisions of the following parts of SDCP are of particular relevance in this appeal."
3. The following parts of HDCP are of particular relevance in this appeal: 1. Part 1 of Appendix E concerning design specifications for civil works, and which, within section 6, provides guidance on road design including: 1. the following aims for the design and construction of roads: "The design and construction of a road system that provides the following; - a high level of safety for all users; - acceptable levels of amenity and protection from the impact of traffic; - a reasonable level of convenience for all users; and - economy of construction and maintenance." 1. a statement within section 6.1.1 that: "This section of the manual sets out Council's requirements for the design of roads. It is in no way a comprehensive design manual and it is intended to be read in conjunction with and as a supplement to: - AUSTROADS (1988) - Guide to Traffic Engineering Practice, Parts 1-14; - AUSTROADS (1993) - Rural Road Design, Guide to the Geometric Design of Rural Roads; - AUSTROADS (1992) - Pavement Design, A Guide to the Structural Design of Road Pavements; - ARRB, Transport Research (1995) Sealed Local Roads Manual - Guidelines to Good Practice for the Construction, Maintenance and Rehabilitation of Pavements; - AMCORD - A National Resource Document for Residential Development; - Department of Housing Road Manual; and - Roads and Traffic Authority Road Design Guide." 1. direction on the alignments and widths of roads that require that local roads such as Wattle Crescent, should have a minimum carriageway width of 8m, a footway of 3.5m, within a road reserve of 15m.

Contentions

1. At the commencement of the hearing the Applicant sought further leave to rely on amended landscape plans which had not been the subject of leave granted by the Court on 5 November 2019, and that further leave was granted, without objection.
2. The Respondent also agreed that certain matters that had been in contention had been resolved through the Applicant's provision of amended plans, and through the recommendations and agreements of the Parties' expert ecologists, planners, urban designers and expert traffic engineers (see below at [37]) within the joint expert reports they had prepared. In particular, the Respondent noted that, based on the evidence of the experts, it accepted that: 1. the Proposed Development would not have a significant impact on any endangered ecological communities, the habitat of any endangered species, or the vegetated riparian on the Subject Site; and 2. other contentions, or elements of contentions, relating to the potential impact of the Proposed Development on the natural environment, other than in relation to the loss of trees of high landscape value, were not pressed; 3. contentions concerning the riparian corridor, other than in relation to certain landscaping details, had been resolved; 4. contentions concerning planning for bushfire protection had been resolved through the provision of general terms of approval by the NSW Rural Fire Service, which had been embraced by the Applicant; 5. a contention concerning the adequacy of the Applicant's landscape plans could be resolved by the Applicant's amended landscape plans, for which leave had been granted, and conditions of consent, if required; 6. contentions relating to the provision of adequate sewer connections; and 7. contentions relating to the volume of earthworks proposed as part of the Proposed Development, which it said could be addressed through proposed conditions of consent.
3. The Respondent noted in opening that the Proposed Development was compliant with the following development standards and controls applicable to development on the Subject Site: 1. the minimum 40 ha lot size applicable to the Subject Site under cl 4.1 of HLEP; 2. the height of buildings development standard of 10m under cl 4.3 of HLEP; 3. the requirements of cl 6.2 of HLEP (see above at [18(2)]) concerning the grant of consent for development that includes excavation works; 4. the requirements of cl 6.4 of HLEP (see above at [18(1)]) in relation to terrestrial biodiversity; and 5. the requirements of cl 6.7 (see above at [18(4)]) of HLEP concerning essential services.
4. Further, the Respondent noted the opinion of its engineering expert that, notwithstanding the provisions of s 6.3.1 of HDCP, a 6m width of the Wattle Crescent carriageway was sufficient for the purposes of the Proposed Development, and that its non-compliance with the 8m carriageway width control in HDCP should not be a reason to refuse the Applicant's development application.
5. Finally, within their joint report, and in relation to the provisions at cl 10 of SEPP21 (see above at [23]), of the expert town planners (see below at [37(2)]) had agreed that: 1. the provisions of cll 10(b), 10(e), and 10(f) were either not applicable or not relevant to the Court's assessment of the Proposed Development; 2. the provisions of cl 10(c) had been considered by them and they agreed that there is not adequate low cost or affordable housing in the locality of Glossodia based on the findings of the Hawkesbury Residential Land Strategy 2011; 3. all sites within the proposed caravan park would only be used for long term residences; 4. the provisions of cl 10(a), concerning the suitability of the location or character of the Subject Site for its use as a caravan park for tourists or for long-term residence, require consideration in the appeal; and 5. the provisions of cl 10(d), concerning the availability and accessibility of necessary community facilities and services, require consideration in the appeal.
6. As a consequence of the above, the principal questions remaining and requiring consideration and/or resolution in this appeal are: 1. consistent with the provisions of cl 10(1) of SEPP21, is the location or character of the Subject Site such that it is particularly suitable for use as a caravan park for long-term residences? 2. is the character of the Proposed Development consistent with the provisions objectives of the R2 zoning of the Subject Site? 3. consistent with the provisions of cl 10(d) of SEPP21, will necessary community facilities and services be reasonably accessible to the occupants of the caravan park, either within the Proposed Development or in the locality (or both)? 4. are the potential impacts of the Proposed Development on trees of high landscape value acceptable? 5. is the access available to the Subject Site via Wattle Crescent acceptable, particularly in relation to the proposed 6m width of carriageway proposed by the Respondent's traffic engineering expert? 6. does the Applicant's investigation of contaminated land on Subject Site satisfy the requirements of cl 7 of SEPP55? and 7. is the proposed development in the public interest?
7. The Court was assisted in its consideration of these questions by the expert written evidence and oral testimony of: 1. the expert traffic engineers: 1. Mr Dean Brodie, for the Applicant, and 2. Mr Prayog Pradhan, for the Respondent. 1. the expert town planners and urban designers: 1. Mr Neil Kennan, expert town planner for the Applicant; 2. Mr Alan Cadogan, urban design expert for the Applicant; and 3. Ms Natalie Piggott, expert town planner and urban design expert for the Respondent. 1. the arboricultural experts: 1. Mr Russell Kingdom, for the Applicant; and 2. Mr Guy Paroissien, for the Respondent. 1. The social impact experts: 1. Dr Rigmor Berg, for the Applicant; and 2. Dr Alison Ziller, for the Respondent. 1. the expert ecologists: 1. Ms Elizabeth Ashjby, for the Applicant; and 2. Mr Roger Lembit, for the Respondent. 1. the bushfire experts: 1. Mr Matthew Willis, for the Applicant; and 2. Mr Stuart McMonnies, for the Respondent. 1. the contaminated land expert, Mr Chris Jewell.

Is the location or character of the Subject Site such that it is particularly suitable for use as a caravan park for long-term residences?

1. Provisions of cl 10(a) of SEPP21 (see above at [23]) require a consideration of the location and character of the Proposed Development.
2. Clause 10(a) of SEPP21 provides that: 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.
3. The requirements of cl 10(a) SEPP21 are that the "land concerned", that is Subject Site, should be "particularly suitable" for use as a caravan park for long-term residence for reasons of either location or character.
4. The Macquarie dictionary defines "particularly" as "in a particular or exceptional degree".
5. The Parties' expert planners had agreed that the Applicant's proposed caravan park was not intended for use by tourists but rather was intended for the use of long term residences.
6. As a consequence, and in response to the provisions of cl 10(a) of SEPP21, the Court should consider the following two resulting questions: 1. is the Subject Site particularly suitable for use as a caravan park for long-term residence because of its location? 2. is the Subject Site particularly suitable for use as a caravan park for long-term residence because of its character?
7. I will first consider whether the Subject Site is particularly suitable for use as a caravan park for long-term residences because of its location, before then addressing whether it is particularly suitable because of its character.

Is the Subject Site particularly suitable for use as a caravan park for long-term residences because of its location?

1. The expert town planners, within their joint report, had considered the particular suitability of the Subject Site's location in relation to its use as a caravan park for long term residences. That joint report was tendered as evidence at the hearing, and within it the experts provided the following opinions on this question: 1. Mr Kennan said that, in his view, the Subject Site is "suitable" for a caravan park for long term residences for reasons related to: 1. the provision of water and sewer services which Sydney Water had confirmed could be made available to the Subject Site; and 2. the community services and transport options that would be available in the Glossodia locality to future residents of the Proposed Development. 1. Ms Piggott said that, in her opinion, the location of the Subject Site was not suitable for use as a caravan park for long term residences because: 1. public transport, community services, employment opportunities, major shopping and commercial precincts, emergency and medical services, mental health and youth services, and recreational facilities, are not available in the locality; 2. the nearest major commercial and employment centres are located in Richmond and Windsor, at a distance of some 14km from the Subject Site; and 3. the Subject Site is located in excess of 1km from the nearest bus stop in Spinks Rd/Grande Parade, from which point future residents requiring public transport to Windsor or Richmond would need to catch a bus.
2. During the hearing: 1. Mr Kennan stated that while he had described the Subject Site within the joint expert report as being "suited" for use as a caravan park for long term residences, he had meant to use the phrase "particularly suited", and noted that his use of the incomplete descriptor "suited" had been an error on his part. 2. the expert town planners also provided further evidence in relation to the provisions of cl 10(a) of SEPP21. However, while the expert town planners confirmed their evidence above in relation to the location of the Subject Site (see above at [45]), they did not add substantively to that evidence, but rather concerned themselves with the question concerning the character of the Subject Site and whether this made it particularly suitable for use as a caravan park for long term residences (see below at [49] to [52]).
3. Having considered the opinions of the expert town planners in relation to whether the location of the Subject Site makes it particularly suitable for use as a caravan park for long term residences, I have concluded that: 1. the opinions of Mr Kennan ( see above at [45(1)] and [46(1)]) do not assist me to resolve this question because the factors that he identified as contributing to the Subject Site's suitability for the Subject Site's use as a caravan park for long term residences, could be satisfied by many lots within a R2 zone in Glossodia, or elsewhere. In my assessment, while these factors may demonstrate that the use of the Subject Site for a caravan park is possible, they do not demonstrate that the Subject is "particularly suitable" for this purpose as they do not assist in discerning whether there is some aspect of the Subject Site's location that clearly differentiates it from other locations in Glossodia in terms of its suitability for use as a caravan park. 2. the opinions of Ms Piggott are of greater utility, in my assessment, in responding to the question, as her reasons for the non-suitability of the Subject Site's location for the purposes of a caravan park, while not differentiating the Subject Site from other potential locations in Glossodia, suggest that all such R2 zoned locations within Glossodia may be unsuitable for use as a caravan park for long term residences. This submission is of relevance, in my assessment, to the Court's consideration of the location of the Subject Site and its "particular suitability" for the Proposed Development.
4. Consequently, having considered the evidence of Mr Kennan and Ms Piggott, and consistent with my observations above at [47], I favour the submissions of Ms Piggott on this point, and agree with her that the Subject Site is not "particularly suitable" for this use by reason of its location.

Is the Subject Site particularly suitable for use as a caravan park for long-term residences because of its character?

1. The expert town planners also considered the "particular suitability" of the Subject Site's character in relation to its proposed use as a caravan park for long term residences. In relation to this: 1. Mr Kennan had stated: "I am of the opinion that the character of the site is such that, with suitable conditions in place to ensure that the environmental significance of the site is not adversely impacted by the proposed caravan park, the character of the site is such that it is suitable for the establishment of a caravan park and, indeed, the caravan park which is the subject of the application currently before the Court." 1. Ms Piggot said that, in her opinion: 1. the character of the Subject Site is of a large allotment with a single dwelling within a heavily vegetated setting which includes endangered ecological communities and a riparian corridor. 2. based on her assessment of the Subject Site's character, she disagreed with the opinion of Mr Kennan above at [49(1)], because the Proposed Development would require the removal, for the purpose of bushfire asset protection, of significant amounts of vegetation that could not be replaced elsewhere on the Subject Site. She concluded that the establishment of the caravan park would not retain any of these characters of the land.
2. The expert town planners also addressed this matter in oral evidence at the hearing, during which the following further opinions were provided for the Court's consideration: 1. Mr Kennan, in response to questions from the Respondent, stated that: 1. as previously noted (see above at [49(1)]), while he had described the Subject Site within the joint expert report as being "suited" for use as a caravan park for long term residences, he had meant to use the phrase "particularly suited". 2. in addition to his evidence in the joint report, he was also of the opinion that the Subject Site was "particularly suited" for use as a caravan park for long term residences because: 1. the historic clearing of trees on the Subject Site had created a site that would require little further clearing for use as a caravan park; 2. the historic clearing of the Subject Site had provided a loop road that could be used for the Proposed Development; 3. the additional earthworks proposed by the Applicant, and required for the Proposed Development, were not major in their scale; 4. any use of the Subject Site for a permissible development in the R2 zone would require some further clearing of trees; and 5. while the Subject Site would also be particularly suitable as a location for a dwelling, other qualities of the site, including its potential to have walking tracks within a riparian zone, made it particularly suitable for use as a caravan park. 1. Ms Piggott, in response to questions from the Applicant, said that: 1. she agreed with the Applicant that: 1. the Subject Site has an irregular shape; 2. as a consequence of its configuration, any development must be located away from the street, and that this was a benefit of the Subject Site; 3. the Subject Site was substantially cleared, and was weed-infested across much of its extent; 4. the RU4 (Primary Production Small Lots) zoning of certain lands adjacent to the Subject Site would increase the amenity of the Subject Site for future residents of the Proposed Development as amenity was an important consideration for a caravan park; and 5. the Proposed Development could assist to improve the condition of the riparian lands on the Subject Site. 1. she did not agree with the Applicant that, as a consequence of the points identified above at [a], that the Subject Site was "particularly suitable" for use as a caravan park for use by long term residences.
3. I have considered the evidence of the expert town planners and the submissions of the Parties, and I have concluded that the Subject Site is not "particularly suitable" for use as a caravan park for long-term residence because of its character for the following reasons: 1. I agree with Ms Piggott that the Proposed Development would have an adverse impact on vegetation on the Subject Site, most notably in relation to trees of high landscape value (see below at [87] to [100]) and this supports a conclusion that the character of the Subject Site is not particularly suitable for use as a caravan park for long term residences. 2. I disagree with the assessment of Mr Kennan above at [49(1)], that "the character of the site is such that, with suitable conditions in place to ensure that the environmental significance of the site is not adversely impacted by the proposed caravan park, the character of the site is such that it is suitable for the establishment of a caravan park" because, the environmental significance of the Subject Site would be adversely impacted by the Proposed Development, most notably in relation to the proposed loss of high landscape value trees (see below at [86] to [100]). 3. while there are certain features of the character of the Subject Site that may be beneficial in relation to its potential use as a caravan park for long term residences, there are other features that are dis-benefits and which make the Subject Site less suitable for use as a caravan park. The potential beneficial features include the facts that the development must be located away from the street, and that Subject Site has been substantially cleared and weed infested across much of its extent. The potential dis-benefits include the current presence, and proposed removal, of 30 high landscape value trees on the Subject Site. When taken together, I find that the potential benefits and dis-benefits do not support a conclusion that the character of the Subject Site makes it "particularly suitable" for use as a caravan park for long term residences.
4. Consequently, based on my conclusions at above [51], I further conclude that, on balance, the Subject Site is not particularly suitable for use as a caravan park for long-term residences by reason of its character.

Is the character of the Proposed Development consistent with the provisions objectives of the R2 zoning of the Subject Site

1. Clause 2.3(b) of HLEP requires that a consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
2. The zoning table within HLEP includes the following two objectives, to which a consent authority must have regard, and which concern the character of the Proposed Development: - To protect the character of traditional residential development and streetscapes. - To ensure that new development retains and enhances that character.
3. These objectives give rise to two matters to which the Court must have regard in determining the Proposed Development. Those matters are: 1. whether the Proposed Development protects the character of traditional residential development and streetscapes? 2. whether the Proposed Development retains and enhances the character of traditional residential development and streetscapes?
4. These matters were considered by the expert urban designers (see above at [37(2)]) within their joint expert report, and were the subject of further oral evidence from the experts during the hearing. I will address each of these matters in turn.

Whether the Proposed Development protects the character of traditional residential development and streetscapes?

1. Within their joint report, the urban design experts had stated as follows: 1. they agreed that: 1. the objective was unclear in its meaning from an urban design perspective particularly in relation to what is meant by "protect" and what is meant by "traditional residential development"; 2. the character which is to be protected is of "traditional residential development and streetscapes" in combination rather than separately; 3. the character of development in closest proximity to the Subject Site is more important than the character of more distant development; and 4. in terms of urban design, the character, as determined at a human scale, that is as experienced at eye level, is more important than character as it is perceived from other vantage points. Ms Piggott said that this urban design perspective of character differed from that which would be adopted in assessing character from a town planning perspective. 1. Ms Piggott said that: 1. the character of the immediate locality of Wattle Crescent had been confirmed within paragraph [60] of PRJM Pty Ltd v Hawkesbury City Council [2016] NSWLEC 1217 by a Ms Heron, a witness in that appeal before Commissioner Dixon, as she was then, and referred to hereafter as "the initial PRJM decision", which was: "Larger lots containing single dwelling houses with separation between dwelling houses and the size of properties providing for a low density open character". 1. this character had been maintained for reasons relating to the minimum lot size applicable to allotments within Wattle Crescent, and infrastructure and services limitations in the area; 1. Mr Cadogan said that, in his opinion, the character of residential development and streetscape of Wattle Crescent was: "A heterogeneous mix of housing with no predominant or consistent architectural style and of varying sizes, materials, quality and density, generally detached dwellings with several sheds, garages and other outbuildings set in a highly modified landscape of gardens and remnant bush and forest canopy, with relatively consistent deep landscaped front setbacks with driveways and often gates connecting to a sealed road without road markings, and with little or no other public domain facilities such as formed gutters, footpaths or consistent street tree planting".
2. During oral evidence at the hearing: 1. Ms Piggott said that: 1. she also agreed with the description of the character of residential development and streetscape provided by Mr Cadogan above at [57(3)]; 2. she agreed that the interface of the Proposed Development between the public and private domains was acceptable; and 3. she agreed that the Proposed Development was "residential" in character. 1. Mr Cadogan said that: 1. notwithstanding his proposed description of the character of residential development and streetscape in Wattle Crescent provided within the joint report of the urban design experts, prepared with Ms Piggott, he also agreed with the description of the character of Wattle Crescent provided above at [57(2)(a)], and as noted by Ms Piggott, and said that this was particularly true of the north side of Wattle Crescent near to the Subject Site; 2. he agreed that the built form of the Proposed Development is compacted within one portion of the Subject Site; 3. he did not agree that the built form of the Proposed Development was tighter than forms of development found within other parts of Glossodia; 4. as noted above at [57(1)(c)], he agreed that the character of development in closest proximity to the Subject Site is more important than the character of more distant development; 5. he further agreed that: 1. the built form of the Proposed Development is more dense than the form of development evident on the lots on either side of the Subject Site on Wattle Crescent, and on lots on the north side of Wattle Crescent; and 2. while the character of the Proposed Development as perceived from the adjacent property at 70 Wattle Crescent was relevant, he was not of the opinion that the character of the Proposed Development, as perceived from 70 Wattle Crescent, was out of character with the form of development on that adjacent property, which he described as a wall of development, albeit of a single storey form.
3. Having considered the evidence of the urban design experts, I have concluded that: 1. I agree with the expert urban designers that: 1. character of traditional residential development and streetscapes within Wattle Crescent is consistent with the descriptions provided by Ms Heron within the initial PRJM decision, as well as with that provided by Mr Cadogan in the joint expert report of the urban designers, and I do not find that these descriptions, while different, are in conflict; and 2. the character of development in closest proximity to the Subject Site is more important than that of more distant development; 1. I agree with Ms Piggott that: 1. the Proposed Development is residential in character; and 2. the interface of the Proposed Development between the public and private domains is acceptable. 1. I agree with Mr Cadogan that: 1. the built form of the Proposed Development is compacted within one portion of the Subject Site (see above at [58(2)(b)]), and is more dense than the form of development evident on the lots on either side of the Subject Site on Wattle Crescent (see above at [58(2)(e)(i)]); 1. the character of the Proposed Development does not "protect the character of traditional residential development and streetscapes" as required within the objective of the R2 zone, because: 1. the character of development in closest proximity to the Subject Site is more important than that of more distant development; 2. while the interface of the Proposed Development between the public and private domains is acceptable, the built form of the Proposed Development is more dense than the form of development evident on the lots on either side of the Subject Site on Wattle Crescent; 3. the form of the Proposed Development, which would include some 98 individual dwellings on the Subject Site, is not consistent with the description of character within the initial PRJM decision, and so would not protect a character of "traditional residential development and streetscapes" that contains single dwelling houses with separation between dwelling houses and the size of properties providing for a low density open character; 4. the form of the Proposed Development, while including moveable dwelling which are technically detached dwellings, is also not consistent with the character of residential character provided by Mr Cadogan, which says that detached dwellings are typically "accompanied by several sheds, garages and other outbuildings".
4. In their submissions in closing, the Parties noted that, while the decision of Commissioner Dixon in the initial PRJM decision was relevant to the current appeal, the Court in this matter was neither bound by that decision nor was it required to consider its reasons, citing Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310. Rather the Parties submitted, and I accept, that the Court's decision in this current matter must be based up the evidence as it comes forward in the appeal. My observation above at [57(2)(a)], concerning the evidence of Ms Piggott, is made in this context.
5. Based on my conclusions above at [59], and mindful of the submissions of the Parties, I further conclude that the Proposed Development is inconsistent with the objective of the R2 zoning of the Subject Site that seeks to protect the character of traditional residential development and streetscapes.

Whether the Proposed Development retains and enhances the character of traditional residential development and streetscapes

1. Within their joint report, the urban design experts had agreed that: 1. the use of the phrase "retain and enhance" within the relevant R2 zone objective, was "problematic", as, in their opinion, it is not possible simultaneously to hold the place of something (retain) while also raising it to a higher level (enhance); 2. the presentation of the Proposed Development to the street is similar to a number of existing residential developments along Wattle Crescent; and 3. only part of the Proposed Development would be visible from Wattle Crescent.
2. The further evidence of the urban design experts, both in their joint expert report and their oral evidence, did not assist in resolving the question as to whether the Proposed Development is consistent with the objective of the R2 zone requiring that development on the Subject Site should "retain and enhance" the character of traditional residential development and streetscapes. For similar reasons, the submissions of the Parties in closing were also, understandably, of limited assistance in this matter.
3. Having considered the evidence of the experts, and the submissions of the Parties, I agree with them that the use and interpretation of the phrase "retain and enhance" is problematic, and constrains the degree to which a consent authority can have regard to the objective in relation to the proposed development.
4. Notwithstanding the objective's problematic language, I recognise that the objective does seek to ensure that any development on land zoned R2 should, as a minimum, "retain" the character of traditional residential development and streetscapes.
5. I have already found (see above at [61]) that the Applicant's Proposed Development is not consistent with an objective requiring that it should "protect" the character of traditional residential development and streetscapes. I made this finding on the basis that the Proposed Development was not consistent with either of the descriptions of the character of traditional residential development or streetscapes provided within the initial PRJM decision or that drafted by Mr Cadogan within the joint report of the urban design experts.
6. On the basis of my earlier finding that the Proposed Development would not "protect" the character of traditional residential development and streetscapes, I am also satisfied that the Proposed Development would not be consistent with an objective requiring that it should "retain" that same character.
7. Consequently, and notwithstanding the problematic language of the objective, I am satisfied that the Proposed Development cannot be consistent with the objective of the R2 zone requiring that the Proposed Development should retain and enhance the character of traditional residential development and streetscapes.

Will necessary community facilities and services be reasonably accessible to the occupants of the caravan park, either within the Proposed Development or in the locality (or both)?

1. The aims of SEPP21 were provided above at [20], and, inter alia, encourage: 1. the proper management and development of land so used, for the purpose of promoting the social and economic welfare of the community, and 2. the provision of community facilities for land used as a caravan park.
2. Clause 3(2) of SEPP21 states that these and other aims of the instrument will be achieved by three strategies, the first two of which are of relevance in this appeal, as follows: - by requiring that development consent be obtained from the local Council for development for the purposes of caravan parks, and - by providing that development consent may be granted that will authorise the use of sites for short-term stays (whether or not by tourists) or for long-term residential purposes, or for both, and
3. The third strategy concerns the subdivision of land, which is not proposed by the Applicant.
4. Clause 10 of SEPP21 supports the implementation of these strategies by providing matters to be considered by Councils in relation to the grant of consent for development applications concerning caravan parks.
5. Clause 10(d) of SEPP21 states that a Council, or the Court on appeal, may grant a development consent required by this Policy only after it has considered the following matter, which is of relevance to the aims of SEPP21 identified above at [69]: (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.
6. The consideration of cl 10(d) of SEPP21 must commence with a consideration of what "necessary community facilities and services" should be available within the caravan park to which the development application relates. The clause also identifies that these "necessary community facilities and services" might also be located "in the locality".
7. A further consideration is whether those facilities and services would be reasonably accessible to the future occupants of the caravan park.
8. The Proposed Development was described above at [4(4)], and includes the following proposed facilities and services, all of which would be available to future residents: 1. an on-site common room with kitchenette, laundry facilities and consultation room; 2. a tennis court, and a playing field; 3. a community garden, and walking tracks.
9. At the commencement of the hearing the Court, together with representatives of the Parties and their experts, including the social impact experts, visited the village of Glossodia, which is located at a distance of around 1km from the entry to the Subject Site on Wattle Crescent.
10. That visit confirmed that the Glossodia village centre included a medical practice, a chemist, a grocer, a butcher, a bottle shop, a hairdresser/beauty salon and a community centre. The village of Glossodia also includes a primary school.
11. The Applicant said that, in addition to the facilities that would be provided within the Proposed Development, the Applicant would provide a community bus that would be available to future residents to facilitate, daily, their movement to and from the Glossodia village centre, as well as to and from a bus stop which would be serviced by bus transport between Glossodia and the larger regional centres of Richmond and Windsor. Those centres are located some 15km from the village of Glossodia.
12. The Applicant also submitted that, while the village of Glossodia was within walking distance of the Subject Site and so would generally be accessible by foot to future residents of the Subject Site, it would be reasonable to anticipate that future residents of each manufactured home or caravan within the Proposed Development would own a car, that could be used to access the facilities within Glossodia village.
13. The Respondent noted that the social impact experts, Dr Berg and Dr Ziller, had agreed that the demographic profile of future residents was unknown and not possible to predict with any certainty. As a consequence, these experts had also agreed that it was also difficult to predict the facilities and services that might be required by those future residents.
14. Finally, the Respondent also submitted that, while the Applicant had characterised the Proposed Development as providing long term sites for manufactured homes or caravans that would be owned by residents, it was open to the Applicant to install its own manufactured homes or caravans on the Subject Site, and to rent these to prospective residents. As a consequence, the Respondent said that this would further complicate the task of identifying what facilities and services might be required by future residents.
15. Having considered the evidence of the experts and the submissions of the Parties, I have concluded that, should the Proposed Development be approved: 1. the facilities and services that would be available to future residents of the Proposed Development, either on the Subject Site or in the locality, would include: 1. an on-site common room with kitchenette, laundry facilities and consultation room; 2. a tennis court and a playing field; 3. a community garden; 4. walking tracks; 5. a medical practice and a chemist; 6. a grocer, a butcher and a bottle shop; 7. a hairdresser/ beauty salon; 8. a community centre; and 9. a primary school. 1. the facilities and services identified above at [(1)] would, in my assessment, exceed those that might reasonably be expected to be necessary, and available, within a caravan park; 2. because the facilities and services identified above at [(1)] would be located either on Subject Site or within a 1km walking distance of the Glossodia, and because access to these facilities and services would be supported by a community bus provided by the Applicant, or would be accessible by residents' using their own motor vehicle: 1. the community facilities and services are available either within the caravan park to which the development application relates or in the locality (or both), and 2. those facilities and services are reasonably accessible to the potential future occupants of the caravan park; 1. the provisions of cl 10(d) of SEPP21 are satisfied;
16. As already noted above at [69], the aims of SEPP21 are, inter alia, to encourage: 1. the proper management and development of land so used, for the purpose of promoting the social and economic welfare of the community, and 2. the provision of community facilities for land so used.
17. Based on my conclusions above at [83], I am satisfied that, to the extent that the objectives identified at [84] relate to the potential future residents of the Proposed Development, those objectives have been adequately addressed by the Applicant.
18. To the extent that the objectives identified at [84] relate to the promotion of the social and economic welfare of a broader community beyond potential future residents of the Proposed Development, this matter was not in contention between the Parties, and was not the subject of expert evidence, and so is not required to be addressed in this judgment.

Are the potential impacts of the Proposed Development on high landscape value trees acceptable?

1. The provisions of HLEP cl 6.4 concerning terrestrial biodiversity, including in relation to flora, were identified above at [18(3)], including the specific provisions of subcll 6.4(3) and 6.4(4).
2. The provisions of this clause apply to the Subject Site, which is land identified as "significant vegetation" and "connectivity between significant vegetation" on the terrestrial biodiversity map within HLEP.
3. The Applicant had submitted in closing that: 1. the Respondent had not explicitly identified within the contentions section of its statement of facts and contentions that the provisions of cl 6.4 of HLEP had been engaged; 2. notwithstanding the submission above at [(1)], the advice, which I accept, of the expert ecologists and bushfire experts, both within their joint expert reports and during the site view at the commencement of the proceedings, was that: 1. the Proposed Development would have no significant impact on endangered ecological communities, nor on any threatened species; and 2. any residual biodiversity issues had been satisfactorily resolved through proposed conditions of consent.
4. However, the provisions of cl 6.4 of HLEP require consideration of terrestrial biodiversity in terms of the flora and fauna found on the Subject Site, and not only those elements of terrestrial biodiversity that are classified as endangered ecological communities or threatened species.
5. Further, I note that: 1. the Respondent had identified within its statement of facts and contentions that cl 6.4 of HLEP was a relevant statutory control for the purposes of determining the Proposed Development, and 2. section 4.15 of the EP&A Act provides that: Evaluation ...In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and …. (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development,
6. As a consequence of the points identified above at [90] and [91], I am satisfied that the provisions of cl 6.4 of HLEP require further consideration in determining the Applicant's development application because, in my assessment: 1. they are relevant provisions of an environmental planning instrument; 2. they concern the likely impacts of the Proposed Development on the natural environment; 3. they are directly relevant to the suitability of the Subject Site for the Proposed Development; and 4. the potential impact of the Proposed Development on trees of high landscape value was in contention between the Parties, and was the subject of lengthy testimony from the arboricultural experts, during the hearing.
7. The Respondent had contended that the Applicant's site analysis had not taken account of site constraints associated with trees on the Subject Site, and so had not properly considered, or responded to, the constraints relating to remnant high landscape value trees in the design of the Proposed Development.
8. The arboricultural experts had provided differing opinions in relation to this matter within their joint expert report, prepared together with the ecology and bushfire experts, as follows: 1. Mr Kingdom had stated that: 1. the Proposed Development would "provide a great opportunity for a replanting program to enhance the proposed residential units and ensure that the long-term amenity of the area is maintained"; 2. in his opinion, the site analysis did take into account relevant arboricultural information; 3. an initial arboricultural assessment had been prepared by an arborist other than himself, and this information would have been taken into account in developing the layout of the Proposed Development; 4. the Proposed Development did take into account areas of disturbed vegetation as well as landscape features including an exposed sandstone rock wall located in the centre of the Subject Site; 5. once a detailed assessment of the trees on the Subject Site had been prepared the most significant trees on the Subject Site have been retained; and 6. the planting of suitable replacement trees throughout the Subject Site would enhance its amenity. 1. Mr Paroissien stated that: 1. "proper site analysis and retention of established high value trees supplemented by additional plantings would result in a better outcome"; 2. it was "apparent that the 'site analysis' did not take into account any site constraints associated with trees at the site and the proposed layout is simply a uniform layout maximising yield rather than properly considering and responding to existing trees"; 3. the Proposed Development included the proposed removal of 31 high landscape value trees, amended to 30 trees in the agreed oral evidence of the arboricultural experts during the hearing, of which some 10 were identified as habitat trees, along with a further 20 medium landscape value trees and 4 low landscape value trees; and 4. the loss of these 30 high landscape value trees, including 10 habitat trees, would take many decades to replace.
9. I note that the Applicant's expert ecologist, Ms Ashby, had also commented, within the joint report of the arboricultural, ecological and bushfire experts, that the design of the Proposed Development had, in her opinion, responded to certain ecological, bushfire and landscape constraints on the site. In particular, Ms Ashby had noted that the Proposed Development, as amended, had adjusted the location of a road and certain proposed lots to avoid impacts on three significant trees, being the trees identified as trees T52, T53 and T54.
10. Having considered the evidence of the arboricultural experts, together with that of Ms Ashby on relevant points, I favour the evidence of Mr Paroissien in relation to the extent to which the design of the Proposed Development has taken account of site constraints associated with trees on the Subject Site. Further, while recognising that some refinements to the design of the Proposed Development have reflected the most recent arboricultural advice, I agree with Mr Paroissien that the Applicant's Proposed Development: 1. could not have been planned with reference to the initial arboricultural report as that report was prepared after the Applicant's initial plan for the Proposed Development had been prepared; 2. would have a significant environmental impact, through removal, of some 30 high landscape value trees on the Subject Site, including 10 habitat trees; and 3. notwithstanding the amendments made by the Applicant to the design of its Proposed Development following the preparation of the most recent arboricultural and ecological advice, as noted by Mr Kingdom and Ms Ashby (see above at [94(1)(d)] and [95] respectively, these are, nevertheless, minor with respect to reducing the overall impacts of the Proposed Development on high landscape value trees on the Subject Site.
11. I have already made reference to the evidence of Mr Kingdom within the joint expert report (see above at [94(1)(d)]) in relation to the manner in which the design of the Applicant's Proposed Development had taken account of arboricultural advice through taking advantage of areas of disturbed vegetation and avoiding the exposed sandstone rock wall in the centre of the Subject Site.
12. However, in my assessment, while these design features are meritorious, they are not consistent with an approach to the design of the Proposed Development that reflects site constraints associated with trees, and particularly high landscape value trees, on the Subject Site.
13. Turning to the provisions of cl 6.4 of HLEP, and based on my findings above at [96] and [98], and notwithstanding that matters relating to the broader ecological impacts of the Proposed Development have been resolved by the advice of the ecology experts, I conclude that: 1. in relation to the provisions of subcl 6.3(3), the Applicant's Proposed Development, as amended: 1. is likely to have an adverse impact on the condition, ecological value and significance of flora on the Subject Site, specifically through the proposed removal of 30 high landscape value trees; and 2. is likely to have an adverse impact on the importance of the vegetation on the Subject Site to the habitat and survival of native fauna through the proposed removal of ten habitat trees identified by the arboricultural experts as habitat trees. 1. in relation to the provisions of subcl 6.4(4), I am not satisfied that: 1. the Applicant's Proposed Development, as amended, is designed, sited and will be managed to avoid significant adverse environmental impacts, because it does not avoid significant impact on high landscape value trees on the Subject Site, but rather proposes that 30 of these trees should be removed; 2. notwithstanding the Applicant's amendments to the proposed design of a road and the proposed retention of trees T52, T53 and T54, the Proposed Development is not designed and sited, and nor would it be managed, to minimise impact on high landscape value trees on the Subject Site; and 3. notwithstanding the Applicant's tree planting proposals within its landscape plans, the Proposed Development does not, in my assessment, adequately mitigate its impact on high landscape value trees on the Subject Site, including in relation to impacts on habitat trees. I conclude this, because, as supported by the evidence of Mr Paroissien, the Applicant's proposed replacement plantings would take "many decades" to mitigate the loss of the 30 high landscape value trees, including 10 habitat trees.
14. Based on my conclusions above at [99], I have further concluded that the Proposed Development does not satisfy the provisions of subcll 6.4(4)(i) or (ii) or (iii) of HLEP.
15. Finally, I note that the matter of the potential impact of the Proposed Development on high landscape value trees, is a relevant matter in relation to the consideration of the character of the Subject Site, as discussed above at [51(1)] in relation to the provisions of cl 10(a) of SEPP21.

Is the access available to the Subject Site via Wattle Crescent acceptable?

1. Within their joint expert report, tendered as evidence at the hearing, the traffic engineering experts (see above at [37(1)], had included a series of 14 photographs of Wattle Crescent, taken at various positions along that road, and within 11 of which the carriageway width at that point on Wattle Crescent had been noted.
2. Those photographs illustrated that the width of the Wattle Crescent carriageway varied between 5.6m outside No. 23, to 6.0m recorded at a position outside No. 50. A second position outside No. 50 has been recorded as having a carriageway width of 5.8m. Other width measurements recorded, ranged between 5.7m and 5.9m and these represented the majority of the measured carriageway widths on Wattle Crescent.
3. The expert traffic engineers agreed that Wattle Crescent was best defined as either a "local road" or a "minor collector road" for the purposes the controls in section 6.3.1 of HDCP that are applicable to Wattle Crescent.
4. The experts had also agreed that the relevant road width controls for both of the "local road" or a "minor collector road" were the same within HDCP, and were: 1. carriageway width: 8m 2. footway width: 3.5m 3. road reserve width: 15m
5. Mr Brodie noted that: 1. section 6.1.1 of HDCP stated that the Council's requirements for the design of roads within HDCP is in no way a comprehensive design manual and it is intended to be read in conjunction with, and as a supplement to, a range of other documents including a document produced under the Australian Model Code For Residential Development (AMCORD), entitled AMCORD - A National Resource Document for Residential Development; and 2. the AMCORD carriageway width specification for an "access street", which he said was the correct classification for Wattle Crescent in the AMCORD system, recommended a carriageway way width of between 5.0m to 5.5m for traffic volumes of between 300 and 1000 vehicles per day, which was consistent with the anticipated daily traffic volume of Wattle Crescent.
6. Mr Brodie said that, having considered the points identified above at [106], it was his opinion that the current carriageway width of Wattle Crescent was acceptable, and did not require widening as a consequence of the Proposed Development.
7. Mr Pradhan said that, in his opinion, a 6m carriageway width, together with a 1.2m unsealed shoulder width on either side of the carriageway, would be sufficient to achieve the aims in section 6 of HDCP in relation to the design specifications for road systems.
8. Mr Tomasetti, for the Applicant, asked both experts whether, in their opinion, there was a material difference between a carriageway way width of 5.8m and 6.0m, and in response: 1. Mr Brodie said that, in his opinion there was no material difference between these widths in the context of the carriageway of Wattle Crescent, and that the matter of greater concern to him was the availability of an adequate shoulder adjacent to each side of the carriageway to facilitate passing of vehicles. He added that in his opinion, Wattle Crescent in its current configuration would be safe for two vehicles to pass at low speed, using the roadway shoulder, if required. 2. Mr Pradham, said that he agreed with Mr Brodie and aid that his primary concern was that there should be an adequate road shoulder width available for the use of motorists. He added that he remained concerned that the width of the carriageway should also be adequate.
9. Having considered the submissions of the Parties on this matter, and the evidence of the expert traffic engineers, I have concluded that: 1. the current width of the road carriageway in Wattle Crescent is acceptable should consent be granted to the Proposed Development because it is of a width that accords with the AMCORD recommendations for pavement width and those recommendations are recognised within HDCP as a matter for consideration in the design of roads in areas subject to HDCP; 2. I cannot be satisfied that the unformed shoulders of Wattle Crescent are acceptable for the purposes of the Proposed Development because: 1. the width of those shoulders was viewed by both experts as being important to the functionality of Wattle Crescent for the volume of traffic anticipated should consent be granted to the Proposed Development; 2. notwithstanding that Mr Pradham indicated that, in his opinion, a shoulder width of 1.2m would be acceptable, albeit in circumstances where a pavement width of 6m was available: 1. the provisions within HDCP and the AMCORD recommendations require that the footway, as it is referred to in HDCP, or the verge, as it is referred to in AMCORD, should have width of either 3.5m or 4m, respectively; 2. the widths of the road shoulders along Wattle Crescent have not been documented within the evidence before me, other than in certain limited locations which were the subject of photographs within the joint report of the traffic engineering experts, but which also did not specify shoulder widths at those locations; 3. while I accept that certain parts of Wattle Crescent do provide a shoulder width of 1.2m or more, the photographs provided by the experts confirm, on visual assessment, that other parts of the road provide a shoulder width of less than 1.2m, including in locations where the road shoulder is occupied by drainage pits; 4. my inspection of Wattle Crescent at the commencement of the hearing provided me with an opportunity to view the configuration of Wattle Crescent along its length, and confirmed to my satisfaction that much of Wattle Crescent does not provide a road shoulder width of 1.2m, and so would not provide a width that would comply with either the recommended minimum width identified by Mr Pradham, nor with the controls in either s 6.1.1 of HDCP or within the AMCORD guidelines.

Does the Applicant's investigation of contaminated land on the Subject Site satisfy the requirements of cl 7 of SEPP55?

1. The provisions of cl 7 of SEPP55 were provided above at [25], and, inter alia, require that: (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause(4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. (3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. …..
2. The Applicant had provided: 1. a phase 1 investigation report prepared on 14 January 2014 by CM Jewell & Associates Pty Ltd, and signed by its principal Mr Chris Jewell, submitted in fulfilment of the requirements of cl 7(2) of SEPP55; and 2. a letter from Mr Chris Jewell, dated 30 May 2019, stating that, while the report dated 14 January 2014 had been by issued by CM Jewell & Associates Pty Ltd: 1. it had been prepared for the purpose of a proposed rezoning of the Subject Site, and not for the Proposed Development; 2. it had addressed the requirements of cl 6 of SEPP55, but had not specifically addressed those of cl 7 of SEPP55; 3. the requirements of cll 6 and 7 of SEPP55 were similar and that document prepared for the purposes of cl 6 of SEPP55 would also be satisfactory to address the requirements of cl 7 of SEPP55.
3. At the commencement of the hearing, the Court, along with the Parties and their experts, but not including Mr Jewell, had undertaken an inspection of the Subject Site during which it was noted that a part of the Subject Site was occupied by livestock, and specifically pigs.
4. It was further noted that neither the original report prepared by CM Jewell and Associates Pty Ltd, nor the subsequent letter drafted by Mr Jewell, had identified that livestock, that is pigs, were being kept on the Subject Site, and no mention had been made within those documents of whether or not the keeping of livestock had given rise to any concerns in relation to contamination of the Subject Site.
5. During the hearing the Applicant tendered: 1. a communication from the current tenant of the Subject Site that stated that he, the tenant, had kept ten pigs on the Subject Site for a period covering the previous two years, and that the pigs remained within a penned location and did not roam more broadly across the site; 2. a further communication from Mr Jewell confirming that: 1. the phase 1 investigation report prepared in 2014, and signed by him, had in fact been authored by his employee Mr Peter Dupen, who had included an inspection of the Subject Site at that time; 2. while, at that point in 2014, Mr Jewell himself had not visited the Subject Site, he was confident that had pigs been kept on the Subject Site at the time of Mr Dupen's site inspection, that fact would have been mentioned by Mr Dupen in the 2014 report; 3. he had seen the communication from the tenant of the Subject Site confirming that the tenant had kept pigs on the site for a period of two years; 4. the presence of the pigs would not affect the suitability of the Subject Site for residential use, as proposed by the Applicant.
6. Mr Jewell made himself available to the Court to provide oral evidence during the hearing, during which he confirmed that: 1. he had now visited the Subject Site on the morning of 6 December 2019 and had examined the pens in which the pigs were held; 2. he had also inspected the previously used fish pens and ponds on the Subject Site; 3. the areas occupied by the pigs were clean and showed no evidence of run-off of pig waste from the pens; 4. that there was no evidence that he saw of an accumulation of pig waste on the Subject Site as he was advised that any pig waste had been bagged and was transported off the Subject Site; 5. there was a risk of what he described as "minor contamination" near former buildings on the Subject Site that was likely to include some paint, roofing materials, and some asbestos sheeting, and that this would be a matter for remediation as part of, and following, any demolition works, and that the land would be suitable for its intended use after the remediation; 6. the Subject Site is generally in good condition and any contamination issues could be satisfactorily addressed; 7. the Applicant's proposed condition 12 would adequately address the requirements of SEPP55 with respect to remediation of the Subject Site in order that it would be made suitable for proposed residential use.
7. In response to questions from the Respondent during the hearing, Mr Jewell also said that: 1. he agreed that the 2014 phase 1 report prepared by his company and signed by him had been prepared for the purposes of a rezoning application and had included a note stating that the report should not be used for other purposes than those for which it was commissioned; 2. while he was of the opinion that little had changed on the Subject Site since the 2014 had been prepared, other than in relation to the presence of pigs for the past two years, he agreed with the Respondent's propositions that: 1. the 2014 phase 1 report may not be valid for the purposes of fulfilling the requirements of SEPP55; 2. it would have been preferable if the 2014 phase 1 report had been updated for the purposes of the Court's consideration of the Proposed Development; and 3. the 2014 phase 1 report did not address the current activities on the Subject Site and any related contamination issues.
8. Mr Jewell added that the agricultural activities undertaken on the Subject Site since the preparation of the 2014 phase 1 report would not trigger a need for more a detailed site investigation as the activity was of a small holding nature and the level of any contamination arising from it would not impede the use of the Subject Site for residential land use.
9. Mr Jewell concluded that an updated phase 1 report would be helpful for the purposes of satisfying the provisions of SEPP55, and he agreed that an updated phase 1 report could be provided to the Court for this purpose.
10. In closing submissions, the Respondent said that: 1. the issue of contamination of the Subject Site was simply one of the Court's jurisdiction on this matter; 2. notwithstanding the evidence of Mr Jewell in relation to the significance of contamination on the Subject Site, whether from livestock or other sources, the Applicant's 2014 phase 1 assessment report was not prepared for the purposes of the Proposed Development, and does not relate to the Subject Site in its present form; 3. in order for the Court to be able to determine the Applicant's development application, it required that the Applicant provide a report that would satisfy the provisions of cl 7(2) of SEPP55 which are that: Contamination and remediation to be considered in determining development application … (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. 1. should the Court not have available a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines, the Court could not determine the Applicant's development application.
11. Following the conclusion of the hearing, and at the direction of the Court, the Applicant filed a further phase 1 assessment report prepared by CM Jewell and Associates Pty Ltd which confirmed the oral evidence of Mr Jewell, and which concluded that: 1. although the Subject Site had been used for agricultural purposes, agricultural use has been on a small scale and has been restricted to known and defined parts of the site; 2. the further phase 1 assessment had assessed that the associated risk to future residential users of the Subject Site is very low; 3. there is a low risk associated with the potential presence of hazardous materials in the buildings; 4. the risk can be effectively managed without further site investigation by application of standard procedures and regulatory compliance; and 5. no further investigation of the Subject Site is recommended.
12. Consequently, I have concluded that: 1. the Applicant has satisfied the jurisdictional provisions of cl 7 of SEPP55; and 2. the Court has power to determine the Applicant's development application in relation to the provisions of cl 7 of SEPP55.

Conclusions

1. Having considered the submissions of the Parties, and the evidence of the engineering experts, I am satisfied that: 1. for reasons provided above at [83], the necessary community facilities and services are available and accessible within the caravan park to which the development application relates, or in the locality of the proposed Development; 2. having considered the Applicant's phase 1 assessment report which details the findings of a preliminary investigation of the Subject Site, and which has been carried out in accordance with the contaminated land planning guidelines, the provisions of cl 7 of SEPP55 with respect to potential contamination on the Subject Site have been addressed; 3. for reasons provided above at [47] and [48], the Subject Site is not "particularly suitable" for use as a caravan park for long term residences by reason of its location; 4. for reasons provided above at [51] and [52] on balance, the Subject Site is not "particularly suitable" for use as a caravan park for long-term residences because of its character; 5. for reasons provided above at [59], the character of the Proposed Development does not "protect the character of traditional residential development and streetscapes" as required within the objective of the R2 zoning of the Subject Site; 6. for reasons provided above at [67], the Proposed Development is not consistent with the objective of the R2 zone requiring that the Proposed Development should retain and enhance the character of traditional residential development and streetscapes 7. for reasons provided above at [96]: 1. the Applicant's Proposed Development could not have been planned with reference to the initial arboricultural report as that report was prepared after the Applicant's initial plan for the Proposed Development had been prepared; 2. the Applicant's Proposed Development will have a significant impacts, through removal, of some 30 high value trees on the Subject Site, including 10 habitat trees; 3. the amendments made by the Applicant to the design of its Proposed Development following the preparation of the most recent arboricultural and ecological advice are minor with respect to reducing the overall impacts of the Proposed Development on trees on the Subject Site; 1. for reasons provided above at [110(2)], the unformed shoulders of Wattle Crescent are not acceptable for the purposes of the Proposed Development;
2. Based on these considerations: 1. while I have concluded that: 1. consistent with my findings above at [123(1)], the Proposed Development satisfies the provisions of cl 10(d) of SEPP21 in relation to the availability and accessibility of necessary community facilities and services; and 2. the provisions of cl 7 of SEPP55 with respect to potential contamination on the Subject Site have been satisfied; 1. nevertheless: 1. consistent with my findings above at [123(3)] and [123(4)], and in relation to the provisions of cl 10(a) of SEPP21, I consider that the Subject Site is not particularly suited for use as a caravan park for long-term residences, and the grant of consent to the Proposed Development is not supported by this finding; 2. consistent with my findings above at [123(5)] and [123(6)], and not withstanding its permissibility, the Proposed Development cannot be consistent with at least two objectives of the R2 zoning of the Subject Site; 3. consistent with my findings above at [123(7)], [123(7)(b)], and [123(7)(c)], I find that development consent should not be granted to the Proposed Development on the Subject Site because I am not satisfied that the provisions of scll 6.4(4)(i) or (ii) or (iii) are met; and 4. consistent with my findings above at [123(8)], the unformed shoulders of Wattle Crescent would not provide a width that would comply with the controls in either s 6.1.1 of HDCP or within the AMCORD guidelines. 1. for reasons provided above at [(2)], I find that the Applicant's Proposed Development is not in the public interest and should not be approved.
3. I note that, while not relying on it in reaching my conclusion above at [124(3)], the Proposed Development was the subject of some 254 objector submissions, along with those made on site as part of the view prior to the hearing commencing in Court (see above at [11]).

Orders

1. The orders of the Court are: 1. The appeal is dismissed. 2. Development application DA0560/19, for demolition of existing structures, and construction of a 98 site caravan park at 66 Wattle Crescent, Glossodia, is determined by the refusal. 3. The exhibits are returned, except Exhibits A, D and 2.

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