Tresize Investments Pty Limited v Albury City Council

Tresize Investments Pty Limited v Albury City Council - [2007] NSWLEC 686 - NSWLEC 2007 case summary — Zoe

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Statutory Planning Framework 10 State Environmental Planning Policy No. 36- Manufactured Home Estates (SEPP 36) sets out a number of aims and strategies as follows: (1) The aims of this Policy are: (a) to facilitate the establishment of manufactured home estates as a contemporary form of medium density residential development that provides an alternative to traditional housing arrangements, and (b) to provide immediate development opportunities for manufactured home estates on the commencement of this Policy, and (c) to encourage the provision of affordable housing in well designed estates, and (d) to ensure that manufactured home estates are situated only in suitable locations and not on land having important resources or having landscape, scenic or ecological qualities that should be preserved, and (e) to ensure that manufactured home estates are adequately serviced and have access to essential community facilities and services, and (f) to protect the environment surrounding manufactured home estates, and (g) to provide measures which will facilitate security of tenure for residents of manufactured home estates. (2) The strategies by which those aims are to be achieved are: (a) by allowing, with development consent, manufactured home estates on certain land on which caravan parks are permitted if the land meets the suitable locational criteria stipulated in this Policy (which it would not do if, for example, it contains important resources, is subject to natural or man-made risks or has sensitive environmental or ecological features), and (b) by applying this Policy to areas where there is likely to be a demand and suitable opportunities for the development of manufactured home estates, and (c) by allowing manufactured home estates to be subdivided with development consent either by way of leases for terms of up to 20 years or under the Community Land Development Act 1989, and (d) by enabling the Minister for Planning to exclude from this Policy any land that is subject to a local environmental plan prepared in accordance with the principles of a direction issued in conjunction with this Policy under section 117 of the Act. 11 Clause 4 of SEPP 36 refers to the relationship of the SEPP to other environmental planning instruments and states: (1) in the event of any inconsistency between this policy and any other environmental planning instrument…whether made before or after this Policy, this Policy prevails to the extent of the inconsistency. 12 The following clauses are relevant to the subject development application. Cl 7 Development consent required for manufactured home estates (1) Development for the purposes of a manufactured home estate permitted to be carried out by this Policy may be carried out only with the development consent of the council. (2) A council must not consent to any such development unless it imposes, as a condition of the consent, a requirement that an approval to operate a manufactured home estate on the land on which the development is to be carried out must be obtained under Part 1 of Chapter 7 of the Local Government Act 1993. (3) Nothing in this Policy requires a separate development consent to authorise the placing of each manufactured home within a manufactured home estate. Cl 8 Subdivision of manufactured home estates (1) Land on which development for the purposes of a manufactured home estate may be lawfully carried out (whether or not because of a development consent granted pursuant to this Policy) may be subdivided: (a) under section 289K of the Local Government Act 1919 for lease purposes, or (b) under the Community Land Development Act 1989, only with the development consent of the council. (2) A council must not grant a development consent for such a subdivision if any of the lots intended to be created by the proposed subdivision would contravene a requirement of the Local Government (Manufactured Home Estates) Transitional Regulation 1993. (3) Any prohibition or restriction on the subdivision of land imposed by any other environmental planning instrument (whether made before or after this Policy) does not apply to such a subdivision. (4) This Policy does not allow the subdivision of land within a Crown reserve. Cl 9 Matters to be considered by councils (1) A council may grant a development consent pursuant to this Policy allowing development for the purposes of a manufactured home estate only if it is satisfied: (a) that each of the sites on which a manufactured home is or will be installed within the manufactured home estate is or will be adequately provided with reticulated water, a reticulated sewerage system, drainage and electricity, and (b) that the manufactured home estate is or will be provided with adequate transport services, and (c) that sufficient community facilities and services, whether situated within or outside the estate, are or will be available and reasonably accessible to the residents of the manufactured home estate, and (d) that the development will not have an adverse effect on any: o conservation area o heritage item o waterway or land having special landscape, scenic or ecological qualities, which is identified in an environmental planning instrument applicable to the land concerned. (2) A council may grant a development consent pursuant to this Policy allowing development for the purposes of a manufactured home estate only after it has considered the following: (a) the cumulative impact of the proposed development and other manufactured home estates in the locality, (b) any relevant guidelines issued by the Director, (c) the provisions of the Local Government (Manufactured Home Estates) Transitional Regulation 1993.

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17 Clause 8(2) states that: the consent authority must not grant consent to the carrying out of development on land that is within a zone unless the consent authority is of the view that the development is consistent with the objectives of the zone. 18 Subclause (3) states: however the consent authority may grant consent to development on land within a zone that is inconsistent with one or more of the objectives of the zone if in the circumstances of the case; (a) there is a preserved inconsistency between objectives or (b) the nature and setting of the development makes it unreasonable to comply with one or more of the objectives or (c) the development is required in connection with a public utility undertaking or any purpose ancillary to such an undertaking An non compliance with the objective would not result in any significant adverse social, economic or environmental effect. 19 The zone objectives for the Living Area Zone are contained in clause 16 as follows: (1) The principal objective of the Living Zone Area is to identify land for residential land uses and other land uses that are compatible with residential uses. (2) The particular objectives of the Living Area Zone are as follows: (a) to promote the efficient, orderly and sustainable development of the City of Albury's living areas and adjoining future urban land, (b) to permit some non-residential uses that are compatible with the Living Area Zone and will not affect the viability of the Business Area Zones and the Employment Area Zone (details of which are provided in a development control plan relating to the residential compatibility of various land uses), (c) to recognise, protect and improve, through sympathetic development, those living areas that contain natural or man-made structures, vegetation or areas of architectural, cultural or historic significance, (d) to provide freedom from intrusive, offensive, hazardous, aesthetically displeasing and environmentally unsatisfactory development, (e) to promote an adequate range and choice of housing types, particularly 4 affordable housing, to meet the needs of the community, (f) to recognise and improve the residential character of different parts of the City of Albury through detailed planning guidelines (details of which are provided in development control plans), (g) to encourage medium density housing that is designed to achieve a high standard of amenity and that is located in an evenly balanced manner throughout the residential areas.

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47 On the issue of the delivery of housing units in the construction phasing Mr Citroen states: The preparation of a construction management plan that defines the sequence of unit construction is the most appropriate means of addressing this issue… The need for future semi-trailer access to interchange units is considered so remote that it is not a matter that should be provided for in the village layout. 48 On the issue of the emergency vehicle access Mr Citroen states that: The proponent has indicated that verbal agreement has been reached with emergency service authorities on emergency access procedures to the village. Written confirmation of these agreements is still required to satisfy this council requirement. 49 The need for a concept design of the intersection access treatment Mr Citroen notes that the features of the proposed driveway layout include the following: o It caters for entry and exit movements by single unit buses, trucks and service vehicles; o Out of kerb radii of 13 metres, carriageway widths of 5.5 metres and the island width of 2.5 metres are all considered appropriate; o The proposed threshold treatment is consistent with that provided at Dalbirra Place; o It's location directly opposite Dalbirra Place is as required by council. o The intersection will require regulatory, give way, signing and markings to complete the treatment; o The existing trees along the western of Kemp Street have the potential to obstruct visibility for existing drivers. Construction of the entrance should ensure sufficient tree removal to achieve the minimum site triangles. 50 In summary the traffic experts consider that all traffic related issues have been resolved: 1 . Provision of traffic flow and safety along Kemp Street has been confirmed as adequate. 2. Pedestrian footpaths around the perimeter of the site are to be provided as part of the development. 3. Additional visitor parking has been provided through out the site and is adequate that these bays are properly constructed and signed. 4. On site storage for vehicles such as caravans, boats and trailers is now included, but requires quantification. 5. Delivery of the housing units in construction phasing will be addressed in a construction management plan to be submitted for council approval… 6. Access procedures for emergency vehicle access have been agreed with the respective authorities but is still subject to written confirmation and 7. The concept details of the intersection access treatment provided are adequate subject to the provision of adequate site lines and installation of control signs and markings. Amenity and Character 51 The planners Ms Kerry Gordon and Mr Brian McDonald prepared a joint report.

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68 While it was agreed that a community bus is appropriate it was not agreed as to how it should be operated. Ms Gordon considers that guidance on the acceptability of access to off site facilities and services can be provided by the consideration of the provisions of the Seniors Living SEPP which sets out standards for accessibility for the least mobile members of society (over 55 years and disabled persons). She considers given the target market and an agreed condition limits occupation to this category of persons. Ms Gordon says the Seniors Living SEPP requires facilities and services to be within 400 meters of the site or for public transport to provide accessibility to services with a bus stop being within 400 metres. She agrees that access to the bus stops are within 400 metres however the level of service will provide for shopping and other trips but caters poorly for entertainment travel and travel on Sundays. As such she considers the community bus should make a minimum one trip each way to Albury town centre on Thursday, Friday and Saturday evenings and also to places of public worship on Sundays. She considers the service should be made available on booked request from residents at a reasonable cost and that the service does not need to run unless residents have booked the same in advance. She considers that the manager should be responsible for organising the service. 69 Mr Porter notes that there is agreement as to the range of external services and facilities in the district including a local shop and local tavern and churches and shopping centre and that there is also a frequent bus service linking the site to these facilities. He concludes that the requirements of the SEPP are therefore met. He does not consider a comparison with the Seniors Living SEPP appropriate but he notes that the availability facilities and public transport would fully satisfy the Seniors Living SEPP requirements. He notes that the Seniors Living SEPP requires only one bus service a day in each direction on weekdays.

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Subdivision 2 Setbacks Cl 16 Dwelling sites to have road frontage A dwelling site must have vehicular access to an access road. Cl 17 Setbacks of community buildings (1) A community building must not be located closer than 10 metres to the boundary of a manufactured home estate, or to the boundary of a dwelling site, unless the approval for the manufactured home estate so allows. (2) The approval for a manufactured home estate must not allow a lesser distance than 10 metres unless the council is satisfied that the community building has been or will be properly screened, fenced, enclosed or otherwise treated. (3) A community building must not in any case be located closer than 2 metres to the boundary of a manufactured home estate or to the boundary of a dwelling site. Cl 18 Setbacks of dwelling sites from road frontages (1) A dwelling site must not be located closer than 10 metres to a public road or 3 metres to any other boundary of the manufactured home estate unless the approval for the manufactured home estate so allows. (2) The approval for a manufactured home estate must not allow a lesser distance than 10 metres unless the council is satisfied that the dwelling site has been or will be properly screened, fenced, enclosed or otherwise treated. Cl 19 Use of buffer zones Nothing in this Part prevents land within a buffer zone arising from the setbacks required by this Subdivision from being used: (a) for community amenities, access roads, car parking spaces, footpaths or landscaping, or (b) for any similar purpose allowed by the approval for the manufactured home estate. Subdivision 3 Roads Cl 20 Entrance and exit roads (1) A road that forms an entrance to or exit from a manufactured home estate must be at least 8 metres wide. (2) In the case of a divided road, the width of the sealed portion of the road on either side of the median strip must be at least 5 metres. (3) The arrangement for the width of an entrance or exit road to taper into or meet the width of the sealed portion of the access roads leading to the entrance or exit may be specified in the approval for the manufactured home estate. Cl 21 Width of roads (1) The width of the road reserve must be: (a) at least 8.5 metres for a major access road, and (b) at least 6 metres for a minor access road. (2) The width of the sealed portion of an access road must be: (a) at least 6 metres for a major access road, and (b) at least 4 metres for a minor access road. (3) If a minor access road exceeds 80 metres in length, a passing bay or bays must be provided within the road reserve. (4) Passing bays must be provided at intervals of not more than 100 metres. (5) The width of the sealed portion of an access road at any point at which there is a passing or parking bay must be: (a) at least 8.5 metres for a major access road, and (b) at least 6 metres for a minor access road.

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Cl 22 Speed restrictions as part of road design Access roads must be so designed as to limit the speed at which vehicles may travel on them to: (a) 30 kilometres per hour for major access roads, and (b) 15 kilometres per hour for minor access roads. Cl 23 Visitor parking (1) A manufactured home estate must contain no fewer visitor parking spaces than the following: (a) 8 spaces for a manufactured home estate containing not more than 35 sites, (b) 12 spaces for a manufactured home estate containing more than 35 sites but not more than 70 sites, (c) 16 spaces for a manufactured home estate containing more than 70 sites but not more than 105 sites, (d) 20 spaces for a manufactured home estate containing more than 105 sites, plus one additional space for each additional 7 sites (or part of a site) over 140. (2) Each parking space is to have, at minimum, dimensions of: (a) 5.4 metres by 2.5 metres, in the case of angle parking, and (b) 6.1 metres by 2.5 metres, in any other case. (3) Visitor parking spaces must be clearly identified as such. Cl 24 Visitor parking for people with disabilities (1) A manufactured home estate must contain at least one visitor parking space for people with disabilities. (2) A manufactured home estate that contains more than 100 sites must contain at least one visitor parking space for people with disabilities for each 100 sites or fraction of 100 sites. (3) Such parking is to be provided in accordance with AS/NZS 2890.1:2004, Parking facilities-Off street parking. (4) Visitor parking spaces for people with disabilities must be clearly identified as such. (5) Visitor parking spaces provided under this clause may be counted for the purposes of clause 23. Cl 25 Road surfaces All access roads, including all passing and parking bays, must have an all-weather sealed or other surface finish specified in the approval for the manufactured home estate, and must be adapted to the topography to allow for adequate drainage and to eliminate excessive grades. Cl 26 Lighting All access roads must be adequately lit between sunset and sunrise.

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