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Baker v Gosford City Council (No 2) [2004] NSWLEC 467 (25 August 2004)

Last Updated: 25 August 2004

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Baker v Gosford City Council (No 2) [2004] NSWLEC 467


PARTIES:
APPLICANT
Edwin Baker

RESPONDENT
Gosford City Council
.


CASE NUMBER: 10518 of 2003


CATCH WORDS: Development Application


LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 5
State Environmental Planning Policy (Seniors Living) 2004
Gosford Planning Scheme Ordinance
Gosford Local Environmental Plan No 443
State Environmental Planning Policy 1
Residential Parks Act 1998
.

CORAM: Moore C

DATES OF HEARING: 16, 17, 18, 19, 23, 24, 25 March 2004 and 10 and 12 May 2004

DECISION DATE: 25/08/2004


LEGAL REPRESENTATIVES

APPLICANT
Mr M Craig QC, barrister
Dr S Beverling, barrister
INSTRUCTED BY
Conditsis & Associates
Solicitors

RESPONDENT
Mr P Tomasetti, barrister
INSTRUCTED BY
P J Donnellan & Co
Solicitors



JUDGMENT:


IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES



MOORE C

25 August 2004

03/10518 Edwin Baker v Gosford City Council

Summary of conclusions

I am of the opinion that a proper construction of cl 49DJ(5)(b) of the Gosford Planning Scheme Ordinance requires that I am satisfied that all four of the tests set out in it have been met concerning the necessary non-Tingari Village South accommodation to make up the numbers required to meet cl 49DJ(5)(a).

I have concluded that the applicant has provided no substantive evidence concerning two (these being facilities and services) of these four matters with respect to the necessary non-Tingari Village South accommodation.

As a consequence, I consider that I am precluded from upholding the appeal even if there were no other impediments to its success.

On the other hand, I am satisfied, on the evidence concerning the other two tests in cl 49DJ(5)(b), that sufficient accommodation, which is comparable in price and type of tenure, is available in the Gosford local government area. I have, therefore, concluded that the appeal should not be dismissed on this basis.

However, I have also separately concluded that the adverse social impacts of the proposal warrant dismissal of the appeal.

Finally, I am satisfied that, apart from the social impacts, there are no discretionary matters raised by cl 49DJ(4) which would warrant refusal.


Judgment

1 COMMISSIONER: This is an appeal, pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act), against the deemed refusal by Gosford City Council (the council) of Development Application 16387/02 to develop housing for older people or people with a disability pursuant to State Environmental Planning Policy No 5 (SEPP 5) on Lot 5 DP 858444 which is located at 12 to 30 Duffys Road, Terrigal (the site).

2 The appeal was filed on 8 May 2003. The council subsequently refused the application by notice of determination dated 2 July 2003.

3 Although SEPP 5 was repealed by State Environmental Planning Policy (Seniors Living) 2004, which came into force on 31 March 2004 (see Government Gazette No 67 of 31 March 2004), the relevant transitional provision is included in the latter instrument at cl 6(1)(a) and preserves any development application made under SEPP 5 on or before 18 February 2004 but not finally determined before the commencement of the repealing SEPP. The development is, therefore, permissible with consent.

Scope of this decision

4 This decision does not deal with the totality of the issues between the parties concerning the proposed development of the site. It is confined to dealing with what may broadly be described as to whether or not the social impacts of the proposal are acceptable.

5 These social impacts are required to be addressed pursuant to the general provisions of s 79C of the Act and pursuant to specific amendments made to the Gosford Planning Scheme Ordinance (the GPSO) by virtue of the proclamation of the Gosford Local Environmental Plan No 443 (LEP 443).

The witnesses

6 During the courtroom hearings, evidence was given on behalf of the council by:

Dr R Berg, social analyst; and
Mr R Meggs, real estate valuer and land economist.

7 The applicant gave evidence and additional evidence on his behalf was given by:

Mr G A McDonald, valuer;
Mr M Hill, valuer; and
Ms H Nesbitt, social planner.

8 Although some informal evidence was taken concerning landscape and visual impact issues during the initial site inspection in company with the parties, given the course of the proceedings subsequently followed, it was not necessary for this evidence to be given formally.

9 In addition, a range of written statements of evidence from other expert witnesses in a variety of disciplines were tendered. These are noted, where appropriate, in the course of this decision.

10 I also spent two days, 17 and 18 March 2004, at the site in company with the representatives of the parties. During this period, I had the opportunity to walk around the site, extensively, and to take evidence, informally, from a wide range of residents of Tingari Village South in their homes. Evidence was also taken, informally, from several of the residents of Tingari Village North.

11 Although the preponderance of the evidence of the residents of Tingari Village South was opposed to the present application, there were also a number of residents with whom I spoke who were enthusiastic about the applicant's proposal and believed that it would provide significant benefits for them.

12 During the course of Mr Hill's evidence, several matters arose which cast doubt on the accuracy of an interpretation of the census figures used in his original statement of evidence. As a consequence, in order to provide the applicant with procedural fairness, I admitted a further supplementary statement of evidence from Mr Hill and permitted him to give further oral evidence. This is dealt with, to the limited extent necessary, in the sections of this decision dealing with cl 49DJ(4) of the GPSO.

13 Finally, with respect to the evidence of witnesses, I have considered whether or not I should make any brief comment concerning the evidence given by Dr Berg and by Mr Baker. Although a matter of balance, I have concluded that it would be appropriate to do so.

14 Dr Berg and Mr Baker were present during the initial stages of the informal taking of evidence from residents of Tingari Village South, on the site. However, I concluded that it was not appropriate to permit this to continue for the totality of that evidence. I advised the legal representatives of the parties of this. In light of that and other matters concerning the evidence of these two witnesses, particularly matters pressed on each of them in cross-examination, I have felt constrained to make these further remarks.

15 I excluded both of them from participating in the evidentiary process with the residents because, merely by their presence, I considered that it was likely that the witnesses might be influenced in giving their testimony.

16 However, separately, I am satisfied that Dr Berg and Mr Baker each gave their own testimony honestly and, with respect to Dr Berg, in the appropriate independent fashion.

17 I should also note, specifically with respect to Mr Baker, that I am satisfied that he honestly believes that what he is seeking to undertake is not merely in his own interest but is also in the overall interests of the present residents of Tingari Village South.

18 In addition, I am also satisfied that his canvassing of support for the project amongst the present residents was undertaken for these joint beliefs (although with a deal of misguided zeal). For reasons discussed elsewhere, however, I consider I should give little weight to the pro forma letters of support so obtained.
The site

19 The site is situated on the western side of Duffys Road to the south of Terrigal Drive, about two kilometres west of the Terrigal Centre and less than three kilometres to the east of the Erina Fair Shopping Centre.

20 The site forms the southern portion of an entity formerly known collectively as Tingari Village. However, it is now known as Tingari Village South and comprises an existing mobile home park with ninety-two (92) sites.

21 There are some 116 persons presently resident in Tingari Village South. Mr Baker said that the maximum capacity of Tingari Village South was approximately 150 persons and Ms Nesbitt and Mr McDonald agreed with this number.

22 However, Mr Hill undertook, for the preparation of his statement in reply, a detailed analysis on a site-by-site basis of the actual occupancy and the carrying capacity of Tingari Village South. This confirmed the actual occupancy as being 116 and sets the maximum capacity of Tingari Village South at 163. This latter number is of significance in my consideration of the terms of clause 49DJ(5) discussed later in this decision.

23 Although not questioned on this point, it is possible (indeed likely) that Mr Hill's calculation of the maximum capacity of 163 may modestly understate the position as, with respect to each of sites 78, 96, 112 and 113, Mr Hill lists them as actually having two occupants but only as having a capability of accommodating one occupant.

24 The northern portion of the entity is now known as Tingari Village North. Tingari Village North is in separate ownership and does not form part of the development application. The original environmental impact statement with the application, however, indicated that Tingari Village North was also intended to be included within the development. It was the applicant's evidence that this was a mistake on behalf of those acting for him to prepare this document and that this inclusion was entirely accidental. This evidence is uncontradicted and I accept it without reservation.

25 Although the applicant was cross-examined as to the management role he has taken in the past for Tingari Village North on behalf of its owners and the nature of his relationship with them and with the accountant who is commonly engaged by them both, I do not consider that anything relevant to the issues I need to determine emerged from this or from the earlier inadvertent inclusion of a mention of Tingari Village North in the original application.

26 Other land uses in the locality comprise a senior citizens centre, sports stadium and childcare centre on the east side of Duffys Road and recently developed residential areas to the west and south. Other residential areas also exist on the northern side of Terrigal Drive.

27 A medical centre housing doctors who are regularly consulted by many of the residents of Tingari Village South is located a short distance away, to the east, on the northern side of Terrigal Drive.

28 The site has an area of 2.672 ha with a width at the front boundary fronting Duffys Road of about 160m and a variable depth of about 185m.

29 The site has a watercourse which drains through it from west to east. This watercourse provides the habitat for a colony of water dragons and a flock of ducks. The presence of these fauna is highly valued by a number of the residents of Tingari Village South. Dr Berg also noted in her September 2003 statement of evidence that some current residents who currently feed the water dragons would be restricted in the present enjoyment of these activities if those residents lived on the upper-level of one of the proposed blocks of units. This is considered in my analysis of the social impacts.

30 Although a number residents also expressed fears that implementation of the proposal would have an adverse impact on these fauna, there is no evidence before me in these proceedings which would cause me to conclude that this might be the case. Indeed, the applicant has offered a specific condition for protecting the water dragons which, on its face, appears to provide an appropriate level of protection during construction.

31 The watercourse, which has been extensively modified and landscaped, forms approximately the western two-thirds of the length of the boundaries between the two villages. A small portion of Tingari Village South, at the eastern edge of the site, lies on the northern bank of this watercourse. This portion of Tingari Village South houses the present administration and reception facility.

32 The site slopes from south to north, to the watercourse, with the exception of that portion of the site where the administration facility is located which has a very slight slope to the south to the watercourse.

The proposal

33 The development is proposed to result in a total of 90 residential units. I do not understand it to be disputed by the council that, in general terms, the accommodation proposed to be provided in the new development is, in its physical attributes and appointments, superior to the accommodation which is presently available in Tingari Village South.

34 The proposed dwellings are to be located in thirteen (13) separate two-storey buildings, each with car parking and landscaping. These will comprise:

Five two-storey buildings each containing 8 x 2 bedroom dwellings with lift access;
Two two-storey buildings each containing 12 x 2 bedroom dwellings with lift access;
Five two-storey buildings each containing 4 x 3 bedroom dwellings with access from the front and rear driveways taking advantage of the difference in levels for access; and
One two-storey buildings containing 6 x 3 bedroom dwellings.

35 The development is to be undertaken in five consecutive stages. These are set out in a document entitled the Staging Plan. The timing of commencement, sequential construction and conclusion of the development was the subject of conflicting evidence and is discussed later in this decision in the more detailed consideration of the staging process.

36 All ninety-two (92) existing relocatable homes are to be removed progressively from the land as the staged development is constructed and occupied.

37 Community and recreation facilities also form part of Stage 3 of the proposed development and, as a consequence of an amendment to the Staging Plan made during the proceedings, at the commencement of that stage. The issue of community and recreation facilities is of some relevance in these proceedings and is also discussed later.

38 Plans showing the proposed layout and design of the development, prepared by Artech Design, accompanied the development application. There is no dispute between the parties that those plans (and subsequent revisions) contain a number of inaccuracies and inadequacies. Although there was some discussion of these matters during the present proceedings, they are matters which have been deferred for future consideration should the applicant be successful on the social impact issues.

The issues

39 Although the council filed a formal Statement of Issues in the proceedings, as noted earlier, this decision is primarily confined to determining the social impact issues. However, I also consider it appropriate to deal, briefly, with the applicant’s objection pursuant to State Environmental Planning Policy 1 (SEPP 1).

The SEPP 1 objection

40 The necessity for the SEPP 1 objection arises because one portion of the underground parking of one of the proposed buildings (Block B) causes a podium height of the building of more than 1 m above ground. As a consequence of the provisions of cl 6A of SEPP 5, this results in it being deemed to be a three-storey building.

41 This building is adjacent to a boundary of the site. As a consequence of the provisions of clause 13(2)(b) of SEPP 5 (which limits buildings adjacent to such boundaries to a maximum height of two storeys), the sustaining of an objection pursuant to SEPP 1 would be a necessary prerequisite to the approval of the application.

42 With the consent of the parties, I undertook a further inspection of the site in their absence on the morning of 7 May, from Duffys Road, to examine this aspect only. I undertook this further inspection, as I had not been invited to examine this specific aspect during the earlier inspection of the site in company of the parties' legal representatives.

43 Given the conclusions which I have reached concerning the substantive preliminary issues dealt with in this decision, I do not propose to deal with the SEPP 1 objection in any detail. However, I do consider it appropriate to record that I have tested the objection against the questions set out by Lloyd J in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46. Having done so, I have reached the conclusion that would be unreasonable, in all the circumstances, for the applicant to comply with this restriction.

44 I have reached this conclusion primarily based on my consideration of the general layout of the proposed development and evaluating this aspect of it in the context of the relevant local streetscape in Duffys Road – this comprising the Gosford City Sports Stadium, the Senior Citizens Centre and the Terrigal Children's Centre on the opposite side of the road and Tingari Village North on the same side of the Road towards Terrigal Drive.

45 I therefore note that, had it been necessary for me to do so, I would have sustained the SEPP 1 objection and provided detailed reasons for doing so.

Evolution of critical documents in support of the application

46 The Staging Plan and the Housing Management Plan each underwent a process of evolution during the course of the proceedings with the changes being made by the applicant in response to matters arising during the evidence of witnesses or matters raised by residents.

47 Each of these documents is of considerable importance to the applicant's case in responding to matters raised on behalf of the council as to the general social impact of the proposal or its compliance with the amendments to the GPSO by virtue of the provisions of LEP 443.

The Staging Plan

48 Stage 1 of the proposed redevelopment is proposed for the site of the existing administration building and does not require removal of any existing relocatable homes. However, each of the remaining four stages envisages progressive removal from the site or relocation within the site of the relocatable homes now located within the precinct to be developed as a new stage is reached for development.

49 During the course of proceedings, an overlay was prepared which permitted a comparison of the stages proposed in the Staging Plan with the layout of residences in the present layout of Tingari Village South. This disclosed that the boundary between Stage 3 and Stage 4 bisected a number of existing residences. As a consequence, the details of the numbers of existing sites affected by the various stages was revised.

50 The table set out below is taken from the final version of the Staging Plan in evidence. It incorporates, as I understand it, those matters which arose from the possible bisection of sites between Stage 3 and Stage 4 – however, nothing turns on the precise accuracy of the details in this table, in my view.

* These are noted as separate 26 week work periods in the Staging Plan and will, therefore, total 52 weeks construction

51 The timing of the construction of the community facilities in Stage 3 was brought forward to the commencement of that Stage rather than at the conclusion that Stage as was originally proposed.

52 At the present time, the community facilities located on Tingari Village South are not extensive. They appear to comprise toilet and laundry facilities in an ablutions block located in the middle of what is proposed to be Stage 3.

53 In addition, the residents of Tingari Village South enjoy use of the hall facilities on Tingari Village North and activities which take place there. However, it was the evidence of the applicant that there was no formal arrangement with the proprietors of Tingari Village North for such use and, by implication, this must be happening on an informal or “grace and favour” basis for the residents of Tingari Village South.

54 The facilities which are proposed to be provided in Stage 3 comprise a bowling green, community facilities, croquet green and pool.

55 Provision of these facilities will undoubtedly be a positive social contribution (from their completion) to the residents of Tingari Village South. The extent to which this should be a point in the applicant's favour is dealt with in my later consideration of social impacts.

56 The Staging Plan gives the estimated construction time as 26 weeks for Block B and all subsequent blocks (including the each of the two community elements in Stage 3). The Staging Plan states that Block C will not be commenced until Block B is completed and an Occupation Certificate has been issued. It notes that this will be the same for each Block in subsequent Stages.

The Housing Management Plan

57 A Housing Management Plan that the applicant considers addresses the housing needs of existing residents also accompanied the development application.

58 However, as noted above, the Housing Management Plan was amended, during the proceedings, in response to matters of concern raised about its terms.

59 As a consequence, the final form of the Housing Management Plan was only settled late in the proceedings. As it is necessary to refer to the various options in the analysis in this decision, it is appropriate that they should be set out in full. The options read:

Option 1 - Move into one of the new self-care units

10. Option 1 is only available to residents of the residential park in occupation at the date of granting of a development consent to development application DA 16387/2002, who are over 55 years of age or have a disability as at the commencement of the stage on that part of the land on which that resident's existing dwelling is located. Option 1 is also available to the carer of any resident with a disability.

11. Pursuant to Option 1, the residential park owner, Tingari Village South Pty Limited (ACN 079 855 511), will:

(a) purchase the existing dwelling from the resident at an agreed value;
(b) arrange for and pay for the removal costs for the resident to move into a new self-care unit in the proposed development.

12. The purchase price of the existing dwelling to be paid by the residential park owner in accordance with paragraph 11(a) above will be either:

(a) A value agreed between the residential park owner and the existing resident the owner of the dwelling; or, if a value cannot be agreed,
(b) then a value determined by a valuer selected by the resident from a panel of valuers appointed by the President for the time being of the Australian Property Institute Incorporated NSW Division. Such valuer shall value the dwelling on an as is, where is basis and as if no development consent for the proposed development had been granted and the use of the land for a residential park would continue. That valuation will be binding on both the resident and the residential park owner. The cost of the valuation will be borne by the residential park owner;

AND if the value of the existing dwelling to be purchased by the residential park owner is less than the sum of money which the resident actually paid for that dwelling at the time of his or her entry into the residential park, then the residential park owner will pay to the resident the higher of those two figures.

13. The purchase price will constitute the Ingoing Contribution in the Residence Contract entered into between the resident and the residential park owner for the purposes of the Retirement Villages Act 1999 and the Retirement Villages Regulation 2000. (See paragraph 23 below for some explanatory notes on the Residence Contract).

14. In addition to the matters noted in paragraph 11 above, when the resident leaves the proposed development, the residential park owner will pay to the resident a payment (referred to in this Plan as the “Outgoing Payment”). The Outgoing Payment will comprise the amount of the Ingoing Contribution paid in accordance with clauses 12 and 13, and a share of any increase in the capital value of the self-care unit between the date of the Residence Contract by which the resident moves into the proposed development, and the date of entry of any subsequent incoming resident or date of buy-back of the unit by Tingari Village South Pty Limited or, if appropriate, its successor. The resident’s share of any increase in the capital value of the self-care unit will be determined by the value of the dwelling as a percentage of the market value of the self-care unit at the date of the Residence Contract – ie. If the dwelling is worth 10% of the market value of the self-care unit at the date of the Residence Contract then the resident will receive a 10% share of the increase in the capital value of the self-care unit. (See paragraph 27 below for some explanatory notes on Outgoing Payments).

15. In the event that the Retirement Villages Regulation 2000 changes so as to provide a different prescribed form of Residence Contract, the residential park owner proposes that such contract, if entered into pursuant to this option, shall contain provisions in or to the effect of clauses 7 and 9 of appendix 4.

Option 2 - Residents staying in their existing dwellings

16. Pursuant to this option, a resident may decide to stay in their existing dwelling within the residential park, and the residential park owner will:

(a) Give notice, as required pursuant to s.127 of the Residential Parks Act 1998, requiring a resident to relocate to a different residential site within the residential park. Under this option the resident will only be required to relocate within the residential park. (See paragraph 24 and 25 below for some explanatory notes on a notice pursuant to section 127.)

(b) Pay for:
(i) the reasonable costs of relocating the resident's dwelling from its site in the residential park on the land (including the costs of disconnecting any services to that dwelling);
(ii) the reasonable costs incurred in transporting the dwelling to its new location within the park;
(iii) the reasonable costs of transporting the possessions of the residents of the dwelling to their new place of residence;
(iv) the reasonable costs of repairing any damage to the dwelling arising from its relocation; and
(v) the reasonable costs of reconnecting services to the dwelling at its new location.

17. In accordance with s.129 of the Residential Parks Act 1998, the residential park owner does not need to issue a notice pursuant to s.127 of the Residential Parks Act 1998 if the residential park owner and the resident agree to the relocation of that resident and his or her existing dwelling to a different residential site whether within the same residential park or some other residential park operated by the same park owner. In such event, the residential park owner still agrees to pay the costs as noted in paragraph 17(b) above.

Option 3(a) - Compensation for resident leaving the residential park

18. Under this option, the resident chooses to leave the residential park at his or her volition after the date of consent to development application DA 16387/2002, in which case the residential park owner will terminate the residential site agreement and agrees to pay compensation including:

(a) the reasonable costs of removing the resident's dwelling from its site in the residential park on the land (including the costs of disconnecting any services to that dwelling);
(b) the reasonable costs incurred in transporting the dwelling to its new location within 300km of the land or the reasonable costs of its disposal;
(c) the reasonable costs of transporting the possessions of the residents of the dwelling to their new place of residence (whether at the dwelling's new location or at some other location);
(d) the reasonable costs of repairing any damage to the dwelling arising from its relocation; and
(e) the reasonable costs of reconnecting services to the dwelling at its new location.

19. If the resident wishes to relocate his or her existing dwelling to a new location further than 300km from the land, the residential park owner agrees to pay the reasonable costs of transporting the dwelling for a distance of 300km, as well as the costs noted in paragraphs 18(a), (c), (d) and (e) above.

Option 3(b) - Resident wishes to leave the park but not remove the existing dwelling

20. Under this option, the residential park owner will terminate the residential site agreement and agrees to purchase the dwelling from the resident in accordance with the formula set out in option 1 used to determine the agreed value and Ingoing Contribution.

60 Clauses 21 and 22 of the Housing Management Plan limit access to the options in the Plan to those residents of the residential park on the land who are the owners of a dwelling on the land and who are both in being and in occupation at the date of granting of development consent and excludes heirs, successors or assigns of the residents from any benefit. This provision ensures that any retention of a “low cost” element of the development is only one off and not long term.

61 The applicant intends the above arrangements to provide a secure tenure to existing residents of the park, while enabling him to carry out a program of redevelopment of the site as a retirement village in accordance with the current zoning of the land.

62 One of the changes to the options, which has some bearing on the social impact issue, is that which removed, from Option 2, the right of the applicant to move a dwelling and its occupants from one location in Tingari Village South to another – contrary to the wishes of those occupants. The removal of this element of Option 2, during the course of the proceedings, removed one matter which might otherwise have been regarded as an adverse social impact.

The evidence of the residents

63 In addition to the on-site evidence from residents, a number of detailed written statements from residents were tendered. The majority were statements opposing the proposal but some were in support of it. A number of documents described as Health Case Studies of residents were also tendered on behalf of the council.

64 Forty-four form letters of support signed by a total of fifty-six residents were also tendered on behalf of the applicant. However, a number of those who had signed these letters gave evidence during the course of the site inspection that they had only done this as they perceived doing so would preserve their interests should the development be approved. There was conflicting evidence between that of the applicant and these residents as to how this perception came to be held by them.

65 In one instance, a letter of support was signed by a resident who was suffering from dementia. I have no doubt, having met and spoken to this resident, that this could not have been an informed expression of support.

66 Although this latter letter, at least, was obtained by Mr Baker, in what I consider to be misplaced zeal in his own cause, I do not consider it appropriate to draw any adverse inferences about the circumstances under which any of these letters were obtained. However, I am satisfied that, in all circumstances, I should give little weight to them.

Changes to the Ordinance

67 LEP 443, which contained the relevant amendments to the GPSO, was published in the NSW Government Gazette No 47 of 27 February 2004 at page 869.

68 The express aim of LEP 443 is stated in cl 2 as follows:

The aim of this plan is to specify particular matters that must be considered by the Council of the City of Gosford when determining development applications for the development of land to which this plan applies for purposes other than caravan parks, camping grounds, manufactured home estates or public utility undertakings.

69 LEP 443 amended the Ordinance (in the manner set out in Schedule 1) by inserting a new cl 49DJ. That clause applies to land described in subclause (1) which includes the site.

70 Three of the provisions of the clause come into play in consideration of the present application.

71 The first of these sets out the objectives of the clause:

2. The objectives of this clause are to:

a. ensure the social and economic wellbeing of residents of caravan parks and manufactured home estates at risk of displacement due to redevelopment of caravan parks and manufactured home estates, and

b. encourage the retention of caravan parks and other forms of low-cost accommodation on certain land in the Gosford local government area, and

c. prevent development which would result in a loss of low-cost accommodation on that land unless sufficient comparable accommodation is available elsewhere in the Gosford local government area.

72 The second contains a range of matters which the consent authority is required to take into account before determining whether to grant consent to an application:

4. Notwithstanding any other provision of this Ordinance, the consent authority must not grant consent to a development application to which this clause applies unless it has taken into account the following matters in deciding whether or not to grant consent to the application:

a. whether the proposed development is likely to reduce the availability of low-cost accommodation on the land to which the development application relates,

b. whether there is sufficient available comparable accommodation in the Gosford local government area to satisfy demand for such accommodation in that local government area,

c. whether the development, if carried out, is likely to cause adverse social and economic effects on the people who live on the land the subject of the application (if any), or on the general community,

d. whether adequate arrangements have been made to assist people who live on the land the subject of the application (if any), to find alternative comparable accommodation in the Gosford local government area,

e. whether the cumulative impact of the loss of low-cost accommodation in the Gosford local government area will result in a significant reduction in the stock of that accommodation.

73 The third enumerates a number of matters about which consent authority is required to be satisfied before consent can be granted. Its provisions are set out below at [76].

The applicability of Clause 49DJ of the Ordinance

74 During the course of the hearing, Mr M Craig QC, senior counsel for the applicant, raised a number of points of law concerning the applicability of LEP 443 and the relationship between cl 49DJ and SEPP 5.

75 These points of law were referred to Bignold J for determination. His decision is to be found in Baker v Gosford City Council [2004] NSWLEC 167 given on 16 April 2004. None of the restrictions contended for on behalf of the applicant were upheld.
Clause 49DJ(5) – a numerical test only

76 Clause 49DJ(5) reads as follows:-

5. The consent authority must not grant consent to a development application to which this clause applies unless satisfied that accommodation is available in the Gosford local government area that:

a. is sufficient to accommodate the maximum number of people capable of being accommodated by existing development on the land the subject of the development application at any point in the 12 months preceding the commencement of Gosford Local Environmental Plan No 443, and

b. is comparable to the accommodation that was provided on that land in relation to price, facilities, services and type of tenure.

77 Mr P Tomasetti, counsel for the respondent, cross-examined Mr McDonald on whether or not he was aware of the existence or extent of the waiting lists for persons seeking sites at other parks in the Gosford local government area which Mr McDonald regarded as being comparable to Tingari Village South. Mr McDonald agreed that he had no knowledge concerning this issue (see T 24/3 30:57 to 31:2).

78 I am satisfied that the wording in the provision which requires me to test whether accommodation is available ............... that is sufficient to accommodate the maximum number of people is a purely numerical one and is not one which invokes consideration of waiting lists.

79 I have reached this conclusion because I am satisfied that the wording envisages merely the ability of the Gosford local government area to absorb an equivalent number of residents to those who would have been able to be accommodated on Tingari Village South rather than the ability to absorb those who were, in fact, accommodated on Tingari Village South but who might otherwise be displaced.

Clause 49DJ(5) – the evidentiary problem

80 Clause 49DJ(5) has obviously been included in LEP 443 to provide specific response to the relevant objective contained in cl 49DJ(2)(b). This objective seeks, inter alia, to ensure the social .... wellbeing of residents of .... manufactured home estates at risk of displacement due to redevelopment.

81 Thus, as part of my assessment against cl 49DJ(5), I am required to be satisfied that off–Tingari Village South accommodation would be available which is comparable when tested on each of price, facilities, services and type of tenure if there is any shortfall in satisfaction of sub-clause (a) of the clause.

82 It is clear that the residents of the site enjoy a significant access to support services. Ms Nesbitt acknowledged this in cross-examination, where she gave relevant evidence concerning the present level of access to support services enjoyed by the residents of Tingari Village. The relevant passage reads:

Q. Residents of Tingari Village do have good access to support services, do they not?

A. I believe that a number of residents there do receive support services, though there has been concern expressed in a general way about accessibility and ability of service providers to service residents in that situation.

Q. There is a medical practice nearby which - I think there are two medical practices nearby?

A. Mm.

Q. Many of the residents have been seeing the doctors or practitioners in those practices for a long time, have they not?

A. Yes.

Q. You're also aware, are you not, that some of the doctors also come to the premises to see residents who have mobility problems?

A. Yes.

Q. You're not aware, I suggest, of any support services that are lacking for any of these residents, are you?

A. At this stage I am not aware. I didn't do a case management particularly on approach on the residents, but I imagine that, from the data, the age-care assessment team in Gosford, if you look at their data, the highest number of referrals that they have, is from people aged 70 to 85 and we have a significant proportion of people in that age group at Tingari Village South so I imagine, and I expect, that a number of those people will be requiring additional support services.

Q. Are you able to identify for the commissioner any particular support service that is not available at the present time to any resident within Tingari Village South?

A. I would imagine home maintenance and modification programme. Access to funds for that service may very difficult for residents to access.

Q. Anything else?

A. I know that a number of residents do get personal care services and those type of issues but I'm not aware of any other services they can't access.

Q. Apart from access to a government-funded support service for doing modifications to dwellings, you're not aware of any other support service which is not presently available to any of the residents in the village. Is that right?

A. I think what the issue more is the efficiency of that delivery.

Q. No, no. Just answer my question. What's the answer to my question?

A. Yes, I'm not aware of any. (T 23/3 25:45 to 26:42)

83 During closing submissions on behalf of the applicant, I put to Mr Craig that

............ I would have to be satisfied that somewhere else in the Gosford local government area, accommodation for the loss of carrying capacity of that one unit would have to be found somewhere else and it would have to be, that elsewhere accommodation, would have to have ticks in four boxes, that is price, facility, services and type of tenure and all four of those tests would have to be satisfied. (T12/5 19:28 to 40).

84 I followed this by informing him that I considered there was evidence before me which related to price and type of tenure but that I was concerned to be guided as to where I would find evidence about the other two. I said:

There is a deal of evidence, it seems to me, without going into what it says or what weight or conclusions I ought to draw from it, from Messrs Meggs, McDonald and Hill that would go to the issue of price and type of tenure. Where do I find, from whose evidence, written or given in court, do I find the information that would satisfy me with respect to that replacement unit as two facilities and services, elsewhere in the Gosford local government area? (T12/5 19:44 to 52).

85 I expanded on this, shortly afterward, by expressing a preliminary view as to what might be an appropriate meaning of these two elements. I said:

You might wish to tell me how you consider I should interpret the words “facilities and services” as separate elemental tests because they are clearly intended to be separate tests, and I should inform you my prima facie reading of them is that essentially facilities means support available within the site generally and services means support available external to the site, as a crude measure of differentiating between the two. (Emphasis added) (T12/5 20:9 to 25)

86 In response, Mr Craig said:

If one takes the approach to 5 that it’s simply identifying objectively a quantum, then as I sit here at the moment I have to confess I cannot identify the evidence that addresses those two matters that you directed my attention to and nor do I have to say candidly, can I recall it. (T12/5 20:27 to 33).

87 Immediately prior to the luncheon adjournment, I said to Mr Craig:

You might want to consider, or get some instructions during the luncheon adjournment as to how you would propose to deal with the matters I raised about the alternative interpretation of clause 5. (T12/5 29:37 to 41).

88 After the luncheon adjournment, Mr Craig indicated that he proposed take up the invitation I had given to make supplementary written submissions on this matter. The following exchange then took place:

................ We believe that it is there, for example, in Mr McDonald's report, there's a reference to the comparable rentals for each of the other caravan parks that were considered. Someone can compare the range of rentals there with here.

COMMISSIONER: I accept that if I accept that evidence in preference to anything that Mr Tomasetti might say I should prefer from his witnesses, that with respect to 5B, I am satisfied that I can identify where I would find evidence to weigh up with respect to both price and type of tenure. It's the--

CRAIG: Facilities and services.

COMMISSIONER: It's those two elements, facilities and services and I understand well that Mr McDonald, and in his own fashion, Mr Hill has addressed the issues of price and type of tenure and the like but it's B and C, if you like, of A, B, C and D in that provision. (T12/5 31:28 to 40).

89 As a consequence, I directed that further material be filed and served by the close of business on 26 May with the respondent to file and serve any material in reply by 5pm on 2 June. I subsequently granted extensions of time because of difficulties in obtaining the transcript.

90 Both parties filed written submissions and the applicant filed written submissions in reply (filed 14 July).

91 The applicant’s approach to the proper construction of cl 49DJ(5)(b) is set out, relevantly, in the applicant's written submissions in the following terms:

11. The understanding of clause 49DJ must be informed by the expressed objectives set out in sub-clause (2). This sub-clause makes clear that the purpose of clause 49DJ is primarily to address the wellbeing of residents who might otherwise be displaced by the redeveloped redevelopment of a manufactured home estate for a different purpose.

12. So understood, the clause does not readily embrace a development application such as the present, the terms of which have as its foundation the desirability of sustaining existing residents in a new form of residential development with price no greater than that currently experienced and facilities, services and type of tenure superior to that presently offered.

13. For reasons expressed in the following paragraphs, it is submitted that the accommodation to be taken into account includes all comparable accommodation in the Gosford LGA available to those seeking to relocate from existing (that is, pre-redevelopment) accommodation. This would include the new accommodation on the site, the accommodation on the site of those who choose to remain and select Option 2 in the Housing Management Plan (exhibit AE + AF), accommodation in other caravan parks and manufactured home estates, and other accommodation (such as in units and houses).

92 There then followed a number of reasons (which are not necessary to set out) in support of the propositions contained in paragraph 13 of the submissions.

93 Subclause 6 of cl 49DJ provides that the clause ceases to have effect two years from the date on which it commenced.

94 The applicant has proposed that one of the conditions of consent would act to prevent construction commencing until after three years have passed from the date consent was given.

95 In this regard, the applicant’s written submissions continued saying:

14. The availability of low-cost accommodation for those occupying Tingari Village South at the present time will not be reduced. So much is secured by the Applicant's proposed condition (that construction is not to commenced for 3 years from the date of the granting of the development consent), the Housing Management Plan and by the Staging Plan.

15. Only in the long-term (i.e. when the current residents no longer live on the site) might there be any suggestion of reduction. This time period is well beyond the life of LEP 443 – see sub-clause 49DJ(6). The Council's intentions for affordable housing beyond the life of LEP 443 cannot be anticipated – see exhibit AD.

16. Thus, it is submitted that paragraph 45DJ(5)(a) should be interpreted taken into account the proposed accommodation on the site.

96 Although, assuming that there is no subsequent amendment to this provision, the tests would disappear by the time of commencement of work if the appeal were to be upheld, the existence of the sunset provision does not alter the applicability of the clause's framework at the time when I am required to make my determination.

97 For the purposes of cl 49DJ(5)(a), the maximum number of people capable of being accommodated by existing development on the land is 163 (see [21] – [23] above].

98 In the context of assessing the capacity to provide comparable accommodation, for the purposes of cl 49DJ(5)(a), I have proceeded on the basis that the accommodation capacities of Tingari Village South, before and after the development, are sufficiently close as to make any difference immaterial for the purposes of my assessment of compliance with this provision of the GPSO. Although it might be possible to undertake a unit-by-unit assessment of the plans of the proposed development to reach a more statistically accurate comparison, given the conclusions I have reached, it is not necessary for me to do so.

99 In cross-examination, the applicant confirmed that he hoped to sell, on a commercial basis, fifty percent of the units that would be developed on the site. He said:

Q. And it will be replaced by the dwellings that you're proposing to build in the 14 buildings identified. You've told us 50 per cent of those you hope to sell, is that right?

A. I hope to sell 50 per cent, yes. (T25/3 62:56 to 63:2)

100 He also explained that this was in the context of what he considered to be a reasonable estimate of the normal turnover of sites (which he would acquire from those wishing to vacate them). It was his opinion that, in light of the turnover of sites, all the present residents who wished to take up Option 1 would be able to so. Mr McDonald supported the applicant's estimate of the turnover rate as being consistent with the general rate of turnover at such facilities elsewhere.

101 As a consequence, if I were to adopt the applicant's approach, I would need to be satisfied that accommodation of ~45 units or for ~80 people which is comparable to the accommodation that was provided on that land in relation to price, facilities, services and type of tenure is available at other locations within the Gosford local government area. This calculation has been made on the basis of the approach set out in the applicant's written submissions coupled with the applicant's evidence as to the proportion of units which he would need to sell at full market value to make the project viable.

Assumptions for assessment against cl 49DJ(5)

102 For the purposes of assessing the adequacy of evidence before me to enable an assessment of the satisfaction or otherwise of cl 49DJ(5), I have commenced by accepting the applicant's evidence and submissions at their highest. That is, I have accepted that the applicant will seek to sell no more than that proportion of the units required for commercial viability and that the remainder of them will be taken up by existing residents pursuant to Option 1 of the Housing Management Plan.

103 In proceeding on this basis, I have set aside the submissions on behalf of the council in this regard. Those submissions argue that, in summary, as a consequence of the disturbances which would be caused by the proposed construction process, the accommodation which would remain available on site would not be comparable. As a consequence of the approach of accepting the applicant's case at its highest, it is only if the applicant meets the tests on his best case basis that I need to make any assessment of the competing positions.

Clause 49DJ(5)(b) – evidence and conclusions as to capability of satisfaction concerning “services” and/or “facilities”

104 I have carefully reread the various statements of evidence and read the transcript of the evidence of the various expert witnesses called by the parties.

105 I satisfied that Dr Berg did not give any evidence which could be construed as dealing with the issues of “services” and/or “facilities” as those terms might relate to accommodation away from Tingari Village South.

106 Mr D Kettle is a town planner retained by the applicant to provide early documents in support of the application and evidence in these proceedings. Although Mr Kettle's supplementary statement of evidence dealt with the original proposed amendments to the GPSO (set out in Draft LEP 439), the provisions of the then proposed cl 49DI(5)(b) effectively raise the same matters as contained in cl 49DJ(5) - although not in the same specific terms, four tests, including those of facilities and services, were included by virtue of the provisions of cl 49DI(7)(a).

107 His written evidence concerning this provision is set out on page 12 of his supplementary statement and provides no assistance with respect to facilities and services at other locations.

108 Mr Kettle also prepared a Social Impact Assessment in November 2002. This document also provides no assistance on these issues. A similar position relates to the Statement of Environmental Effects prepared by him in March 2003.

109 Ms Nesbitt was asked one question on this matter by me. The evidence related to the summary of her conclusions in her written statement evidence (these are set out more fully later in this decision). The exchange was in the following terms:

Q. Can I take you over the page. Second dot point on page 31, second point, relating to the supply of low cost housing on the Central Coast. Have you made the same assumptions that have been made by, I think it's Mr Hill and Mr McDonald, as to what constitutes low cost housing as to price range, services and the like, nature of premises?

WITNESS NESBITT: A. My assessment really looked at housing stress and housing stress, I think, is defined slightly differently to low cost housing. Housing stress is really defined as looking at people who are on household incomes less than the median household income and ensuring that they don't spend more than 30 percent of that income on housing costs. So I've taken that approach which I think is slightly different to what Mr Hill has taken. (T23/3 16:34 to 49)

110 It is clear from this exchange that Ms Nesbitt had not considered any issues of facilities and services off-site.

111 Two of the three expert valuation witnesses who gave evidence concerning alternative accommodation options were asked, by me, about the issue of services and facilities as they might relate to accommodation away from Tingari Village South.

112 The passage of transcript relating to my exchange with Mr Meggs reads:

Q. There are four matters that are set out in that clause as to be the basis of the comparison, do you see that, price, facilities, services and type of tenure? As I have read and endeavoured to understand the statements of evidence that you've given that are in a consequence or in relation to those matters, together with the joint statements that you have given with either Mr Hill or Mr MacDonald or to the extent that they are relevant, you have only really addressed the issue of price have you not?

A. For the main part, yes--

Q. Would you explain to me where, if at all, I find in any of your material anything that deals with either facilities, services or type of tenure, that is on either your statements sole or the joint statements with either of the applicants' witnesses?

A. I cannot point to anything directly. (T23/3 69:39 to 56)

113 The passage of transcript relating to my exchange with Mr Hill reads:

Q. In your examination of your comparison what regard have you had to facilities, services and type of tenure, rather than simply price?

A. Well I define the - I would say again that manufactured homes is a difficult classification because you have the tenant owning the improvements and they have a ground rental and I've given a lot of thought about this and I believe that it falls more closely to rental accommodation, given the fact of the actual value of these improvements, two thirds of the improvements being less than $70,000, and comparing that home contents is not a significant figure. Comparing that to the medium house prices in the area there is quite a significant difference. So I believe in comparison a better analogy is applied to rental accommodation than it is to purchasing of own stock.

Q. I understand that but that wasn't the question that I asked you. The question I asked you was, and I accept that that in your assessment is the appropriate basis for coming to the type of tenure.

A. Mm.

Q. And the rental bands that you have examined?

A. Mm hmm.

Q. My question is what regard have you had in making your assessment of the availability of comparative stock to the issue of facilities or services or type of tenure or any combination of those three elements?

A. Facilities and services I have not looked at. I assume that facilities and services relate to price and tenure I've assumed to be rental. (T24/3 65:30 to 66:4)

114 In addition, in cross-examination, Mr Tomasetti had the following exchange with Mr Hill:

Q. And from your investigations and researches you're unable to identify are you with any specificity the accommodation elsewhere in the local government area of Gosford which is comparable in terms of price, facilities, services and type of tenure which these residents enjoy? You just haven't done that exercise?

A. No I haven't. (T24/3 91:31 to 37)

115 There is nothing else in the written statements of these witnesses or in the transcript of their oral evidence which would provide any assistance in my satisfaction as to the standard of services or facilities at any non–Tingari Village South accommodation which might otherwise arguably be comparable as to price and type of tenure.

116 The evidence given by Mr McDonald, both orally and in writing, almost entirely went to satisfying the tests as to availability of accommodation of similar price and type of tenure. To the extent that he went beyond this so as to express comments on other matters such as the standard of accommodation, he did so in general terms and without reference of any substantive nature (except, to a limited extent, with respect to Pine Needles) to the services or facilities which might be available at the non–Tingari Village South sites which were the subject of his evidence. His evidence in this regard reads:

In respect of facilities: the majority of occupancies have internal facilities such as toilets, bathrooms and laundries. Whilst all have common areas, some parks have additional features, for example, at Pine Needles there is a pool, bowling green, tennis court and a superior community facility.

117 As a consequence, Mr McDonald's evidence provides no substantive assistance to the applicant in satisfying me as to the availability of the necessary non-Tingari Village South accommodation which is comparable either as to services or as to facilities.

118 For the purposes of this analysis, I have proceeded on the basis that the words price, facilities, services and type of tenure comprise four distinct and separate tests each of which requires satisfaction. Although, as noted at [85], I put one possible interpretation of each of the expressions facilities and services to Mr Craig, it is not necessary for the present purposes to determine the meaning of either expression. It is sufficient that I satisfied that a proper construction of the clause does set four distinct and separate tests. I am so satisfied.

119 As a result of the material set out above, I have no alternative but to find that, on a proper construction of cl 49DJ(5)(b) of the GPSO, the applicant has provided no substantive evidence concerning two of the four matters about which I am required to be satisfied concerning the necessary non-Tingari Village South accommodation to make up the numbers required to meet cl 49DJ(5)(a). I consider that, therefore, even if I were satisfied on all other grounds, I would be precluded from upholding the appeal.

120 Having reached this conclusion on the basis of taking the applicant's case at its highest, it is therefore not necessary for me to make any assessment of the submission made on behalf of the council that the residual Tingari Village South accommodation would not be capable of satisfying these provisions.

Evidence and conclusions concerning “price” and “type of tenure” pursuant to cl 49DJ(5)(b)

121 I have undertaken my analysis for the cl 49DJ(5) criteria of “price” and “type of tenure” on the basis used to calculate required off–Tingari Village South accommodation as set out in [101]. I have also undertaken my initial analysis of these issues for this clause by setting aside the submissions on behalf of the council that construction process impacts should exclude my having regard to any of the units to be developed on the site.

122 The oral evidence concerning “price” and “type of tenure” pursuant to cl 49DJ(5)(b) and on the general issues of cost and availability of comparable accommodation was given by the three expert valuation witnesses.

123 As earlier noted, Mr Kettle prepared a Social Impact Assessment in November 2002 and a Statement of Environmental Effects prepared in March 2003. He provided, as also earlier noted, a supplementary written statement of evidence which dealt with the then proposed cl 49DI(5)(b). Although Mr Kettle sets out his overall conclusions with respect the issues under discussion this section of my decision, these conclusions are derivative and founded upon the evidence of Ms Nesbitt, Mr Hill and Mr McDonald.

124 The dwelling owning residents of Tingari Village South are all, it would appear, occupying their sites pursuant to carrying over provisions in residential site agreements which are regulated by the provisions of the Residential Parks Act 1998 (the Residential Parks Act). The provisions for terminating a residential site agreement are set out in Part 12 Division 2 of this legislation. As these tenancies are not ones for fixed terms, the relevant provision for termination of such a site agreement, if the owner of the residential park proposes a change of use of the tenant’s site, are set out s 102(2)(a) of the Residential Parks Act. This provides for at least 180 days notice before vacation of the site can be required. A resident to whom such notice has been given has an opportunity to apply to an independent tribunal for an order extending this period. Although there are other circumstances under which shorter periods of notice may be given, I am satisfied that this is the general standard to which I should have regard.

125 I am fortified in this view by Ms Nesbitt's comment, in her statement of evidence where she states:

Security of Tenure – moving can be very stressful for older people and people with a disability and limits their ability to maintain established networks and service links. For this group, rental accommodation typically does not provide the security of tenure needed. However, housing provided under the NSW Retirement Village Act 1999 provides more protected and longer term tenancies for residents.

126 Her concluding comment applies equally to tenancies pursuant to the Residential Parks Act.

127 Therefore, for the purposes of assessing whether sufficient accommodation exists elsewhere of a comparable type of tenure to that enjoyed by the residents of Tingari Village South, I consider that, effectively, tenure under the Residential Parks Act (and which tenure is not for a fixed term) must be demonstrated to be available for at least ~46 sites or ~80 residents to satisfy the fourth of the tests posed by s 49DJ(5)(b).

128 In reaching this conclusion, I also considered whether or not the possibility of public housing should be included given that, although not directly specifically comparable in terms of statutory protections, it might be reasonable to regard public housing as having the same general security of tenure (or possibly better tenure) than that which is provided for in the Residential Parks Act.

129 However, Mr Meggs comments, in the Joint Statement of Economic Experts, that Public Housing has a waiting period in Gosford LGA that reputedly varies from 4 to 11 years depending on the housing type. More specifically, Dr Berg's statement of evidence of September 2003 says that the applications currently at the top of the public housing lists for one and two-bedroom homes were lodged in January 1989, so the current waiting time for public housing is currently more than 14 years. There are opportunities, in limited and defined circumstances, for persons aged 80 years and over to be given priority which might reduce this waiting time for them.

130 Even taking Mr Meggs's lower waiting period in preference to the more specific information from Dr Berg (in order to assess this at the most favourable to the applicant), I do not consider it appropriate, because of the still lengthy general public housing waiting list time and that restricted circumstances for progression are only available for those aged 80 years and over, to include public housing in this comparison of tenure.

131 As to what constitutes price, for the first of the tests posed by s 49DJ(5)(b), the starting point is that, at the present time, residents of Tingari Village South are paying a site rent of ~ $108. Mr McDonald's statement of evidence of 2 March 2004 sets out a table of information concerning, inter alia, site rental charges for 12 other facilities in the Gosford local government area which he regarded as appropriate for comparison purposes. With respect to the rentals and sites, he said:

The rentals shown are drawn from the nominated parks, with all having necessary comparable basic services such as power, water, sewer, telephone and proximity to public transport. All have comparable tenure provided under the Residential Parks Act 1998.

132 The price bands disclosed for these rentals, where available, are generally comparable with the present site rentals at Tingari Village South. I do not understand the detail of this price information, where provided for truly comparable sites, to be contested by the council. Although the upper end of the site rental band for the Kincumber Nautical Village is significantly above the present site rentals of Tingari Village South, this is the dealt with in my analysis of Mr McDonald's detailed figures.

133 As to the issue of the capital cost of acquisition of such a dwelling, which I also regard as being an aspect of the price test, there is a comparatively broad range of values for the present dwellings on Tingari Village South going as high, in one instance, as ~$150,000.

134 Having considered all of the evidence on these matters, I consider it appropriate to proceed on the basis that, if I find that a particular group of sites are appropriate to be regarded as physically comparable, it is reasonable to assume that they will also be generally comparable in site rental costs and with the range of capital acquisition costs. Whilst there will, undoubtedly, be some variations arising as a consequence of the differing locations of the other parks, I do not consider that this will be sufficiently significant to warrant setting aside these broad assumptions.

135 I therefore accept that, if there are ~46 vacancies likely to occur, in a reasonable period of time, at the facilities from Mr McDonald's list where I accept that they are, in whole or in part, comparable, then the first and fourth tests in cl 49DJ(5)(b) are satisfied if I also accept that the Option 1 accommodation to be available at Tingari Village South also satisfies these two tests. If ~92 vacancies are likely to occur under such circumstances, then there is no need for me to consider whether the Option 1 accommodation should also be included.

136 There was also broad acceptance of Mr McDonald's proposition that ten percent was the appropriate annual turnover rate for sites in these facilities. There was, as I understand it, also broad acceptance that consideration of the adequacy of vacant sites on annual turnover basis was an appropriate basis for my evaluation. Mr Meggs only raised a query as to whether this rate would remain for Tingari Village South, if the proposal were approved, and not as a general proposition (see 19 of Mr Meggs’ statement in reply of 2 March 2004 to Mr McDonald).

137 Mr McDonald's table also set out what he said were the number of long-term sites at each of these facilities. His initial calculation was that that were 1,546 such sites. If this number were correct, the annual turnover would therefore be ~156 sites. Indeed, if this number were correct, there would be no necessity for me to have regard to the Option 1 accommodation to be available at Tingari Village South.

138 Mr McDonald was, however, subject to vigorous cross-examination as to how many long-term sites from these locations were appropriately comparable for the purposes of this test.

139 The relevant columns of the table originally set out in his statement of evidence read:

140 However, as a result of the cross examination, significant modification needs to be made the numbers in this table to arrive at what I consider would be a proper basis of comparison for the purposes of the price test.

141 The following analysis discloses the reasons for the various adjustments which I have made to these numbers to arrive at a revised table which is set out below. For the reasons enumerated with respect to the various sites, I have assumed the worst position, from the applicant's perspective, with respect to each of these sites.

142 Avoca Beach Caravan Park, Pine Needles, Wyoming Caravan Park and Samaldo Caravan Park
I have removed these sites from the table, in their entirety, for reasons which arose during Mr McDonald's initial cross examination. Just as Mr Craig was prepared to remove them for the purposes of a hypothetical proposal he put to Mr McDonald (see T 24/3 42:40 et seq), I consider it appropriate to set them aside for the purposes of the analysis being undertaken by me in this context (see also T 24/3 45:9 to 21 – in response to Mr Tomasetti).

143 The Palms Avoca Village
Mr Craig asked Mr McDonald a number of questions about the housing at this location (see T 24/3 36:45 to 37:16). For the purposes of recalculation, I considered including a bare majority (66 sites). However, Mr Tomasetti put to Mr McDonald, in further cross-examination, that there were only 37 comparable dwellings at this location (see T 24/3 47:21 to 49:7). The result of this exchange is not clear so, for the initial step of this analysis, I have adopted the figure posed by Mr Tomasetti and not expressly rejected by Mr McDonald.

144 The Bungalows
Mr McDonald’s evidence would have “a majority” of these included (see T 24/3 37:39 to 38:2 and 38:21 to 23). I have therefore included 71 sites from this park.

145 Tingari Village North
There was no questioning of the comparability of all these sites.

146 Erina Gardens Caravan Park and Karalta Court together
These two sites are presently subject to a development application(s) for a development which would remove them from any comparison if the application(s) were granted. However, they have been refused and are subject to appeal to the Court (see T 24/3 50:18 to 24). I consider that this does not exclude them from inclusion in these calculations.

147 Sites at Karalta Court are subject to a “buy back” by the park operator (see T 24/3 40:5 to 17 and 50:49 to 51:33). Mr McDonald conceded (T 24/3 51:48 to 52:6) that it was probable that “buy back” by the park operator was also taking place at Erina Gardens Caravan Park. Mr McDonald did not know the extent to which this had taken place. I consider it appropriate to make an overly generous allowance, for the purposes of the present analysis, of the number of sites which might have been bought back. I have, therefore, determined that the total number of sites at Karalta Court should be excluded to make this allowance.
148 Erina Gardens Caravan Park
All 103 sites should be included (see T 24/3 39:15 to 24)

149 Broadland Estate
All 299 sites should be included (see T 24/3 40:33 to 47)

150 Kincumber Nautical Village
This park is in two sections. The sites in what Mr Mcdonald describes as the old section should be included. These number ~180 (see T 24/3 45:35 to 46:8)

151 Ettalong Beach Village
All sites should be included (see T 24/3 42:15 to 38).

152 The resulting minimum table is set out below:

153 On a ten percent turnover per annum basis, ~85 sites per annum would be available which were comparable to those at Tingari Village South – even on this “most worst” basis. Given that there may well be more than ~85 comparable sites per annum available (and, indeed, on the calculation bases I have adopted to reach these numbers, this is so probable as to be almost certain), I consider that the difference between ~85 and 92 (being the relevant total number of sites for the purposes of cl 49DJ(5)) can be treated as de minimis and ignored.

154 Therefore, I am satisfied that there are sufficient sites available at other parks to satisfy the cl 49DJ(5) tests of price and tenure.

155 Under these circumstances, there is no need for me to consider whether the Option 1 accommodation at Tingari Village South should also be included.

156 There is also no need for me to consider, for these tests, the broader evidence concerning availability of low cost rentals in non-park housing elsewhere in the Gosford local government area.

157 I also note that Mr Meggs offered, at 15 in his statement in reply of 2 March 2004 to Mr McDonald, a different reinterpretation of Mr McDonald's data. I do not accept Mr Meggs’ bases for exclusion of various sites which he describes as being proposed to be developed. However, his exclusion of Pine Needles and Kincumber Nautical Village are consistent with my own. On the other hand, I do note that, if his basis of recalculation were to be adopted and Mr McDonald's ten percent per annum turnover figure applied to it, the resultant number of sites annually available would be ~99. This would satisfy the numerical test I have considered appropriate and would also do so without the need to consider Option 1 housing at Tingari Village South.

General issues of cost and availability of comparable accommodation – cl 49DJ(4)(a) and (b) of the Ordinance

158 In addition to the mandatory cl 49DJ(5) criteria, objective (c) in cl 49DJ(2) seeks to prevent development which would result in a loss of low-cost accommodation on that land unless sufficient comparable accommodation is available elsewhere in the Gosford local government area.

159 With respect to cl 49DJ(4)(a), it is clear that, over time, the proposed development is likely to reduce the availability of low-cost accommodation on the site.

160 Even assuming the full implementation and take-up of Option 1 in the Housing Plan, after the eventual expiry of tenure in the development by present residents of Tingari Village South who take up this option, there is no doubt that the resulting development will be one which comprises entirely a resident population at a significantly different and higher market level than that which is presently located on the site.

161 To the extent that it is relevant, I am satisfied, therefore, that although there may be some impacts arising from the proposed development when tested against the first provision of (4), for the reasons discussed in [121] to [154], sufficient comparable accommodation is likely to be available elsewhere in the Gosford local government area on that strict numerical test.

162 However, I am satisfied that, as a consequence of the time period before commencement (let alone conclusion) of the proposed development, this time period ensures that concerns about any such impact as might arise do not provide a basis for refusal of the application nor are they sufficient to contribute to any cumulative basis for refusal.

163 In reaching this latter conclusion, I also accept, for the purposes of this discretionary test, the applicant's submission that the clause does not readily embrace a development application such as the present. Taking into account the various possible timeframes envisaged by the applicant, even at its shortest, I am satisfied that the long-term reduction in low-cost housing which would be caused, if this application would be granted, would occur with a sufficiently lengthy period of notice to the relevant authorities for there to be more than enough time to develop an appropriate public policy response.

164 Consideration against this objective is also picked up by the requirement set out in cl 49DJ(4)(b) which requires me to make an assessment of and to take into account the adequacy of supply of comparable accommodation in the Gosford local government area.

165 As this is a discretionary test and as I have also concluded, as discussed below, that the application should be refused as a consequence of its social impacts, I do not propose to deal with this matter at length.

166 However, the approach to comparability taken by the experts with respect to this provision is, on my understanding of the way the evidence unfolded, not as restrictive as that which arises from the concept of comparability that is required by the tests in cl 49DJ(5)(b).

167 I commence by noting that Mr Meggs and Mr McDonald agree that, effectively, that the only sites to which an existing dwelling at Tingari Village South might be relocated (if such relocation were physically possible for that dwelling) are six sites available at the Kincumber nautical Village. Thus the likelihood of an existing resident of Tingari Village South being able to take up Option 3(a) and remain within the Gosford local government area is remote.

168 Second, there was a conflict between the experts as to what might be regarded as the appropriate rental band for the purposes of this provision as well as for the concept of low-cost accommodation in the immediately preceding subclause.

169 On behalf of the applicant, the evidence supported a price range up to $200 per week whilst that on behalf of the council supported adopting a lower price range as being a more appropriate comparison with the ~$108 per week the site rental being paid by present residents of Tingari Village South. However, for the reasons which I have set out below, I do not consider that it is necessary for me to make a determination on this issue nor to analyse the fine detail of the evidence necessary to resolve the disagreements between the valuation experts on this matter.

170 However, despite the clear inadequacies, for his original statement, of the research undertaken by Mr Hill concerning definitions and the like in the census data, I would have had some reliance on his supplementary statement had this been necessary.

171 Third, the relevant evidence, in this regard, comes not from the valuation experts but from Ms Nesbitt's statement evidence of February 2004. She wrote:

In summary, there is a limited supply of appropriate low income housing for older people and people with a disability in the LGA. Much of the demand has resulted from the high net migration of people aged 55 years and over to the region. PlanningNSW data indicates that during 1991-1996, the Gosford LGA had an influx of 3,734 persons in this age group, the largest net migration of older residents to any LGA in NSW (Department of Urban Affairs and Planning, 2000). This continued net migration together with increasing housing prices in the Gosford LGA and Sydney metropolitan region has resulted in a shortage of appropriate housing for this target group.

172 There is nothing in any of the other evidence which would lessen the present applicability of this conclusion. It therefore follows that there is insufficient available comparable accommodation in the Gosford local government area satisfy demand for such accommodation.

173 However, having reached that conclusion, I turn to consider how I should take that into account in dealing with the present application. It is clear, as detailed elsewhere, that the timeframes proposed for this development range upward from seven and a half years. The length of time to fulfilment of the project coupled with the offer of Option 1, leads me to the conclusion that, on a purely numerical basis, the incremental increase in demand for such accommodation, caused by the proposed development removing such stock, is not unacceptable.

Assessing the social impacts of the proposal – cl 49DJ(4)(c) of the Ordinance and s 79C(1)(b) of the Act

174 The assessment of the social impact arises from the applicability of two planning provisions to the site. One of these is the general invocation of such issues by virtue of the provisions of s 79C(1)(b) of the Act. Second, however, are the provisions of cl 49DJ of the GPSO.

175 Pursuant to s 79C(1)(b) of the Act, 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. ... ...,
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,

176 The GPSO contains the requirement in s 49DJ(4)(c) that I take into account whether the development, if carried out, is likely to cause adverse social and economic effects on the people who live on the land the subject of the application (if any), or on the general community.

177 There are no material differences between the expression in s 49DJ(4) of the GPSO requiring that the enumerated matters be taken into account and that in s 79C of the Act requiring me to take into consideration the matters there set out. There is also no relevant difference between the matters to be considered despite the differences in phrasing.

178 In Kentucky Fried Chicken Pty Limited v Gantidis [1979] HCA 20; (1979) 140 CLR 675 at 687, Stephen J said:

If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. However the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration.

179 Although, in this instance, the community upon which had I am assessing the social impact is a closed one within the boundaries of Tingari Village South, I am satisfied that a proper application of the above principle to social impact considerations renders it appropriate for this to be a potentially determinative matter in these proceedings.

Findings concerning the social impact of the proposal

180 After considering the oral and written evidence Dr Berg and Ms Nesbitt and of the residents of Tingari Village South, there are a number of broad conclusions that I have drawn about the social structure of the village.

181 The first is that the village is not merely physically enclosed by its boundary wall on three sides and by the watercourse on the north but also that this physical enclosure has had the effect, over time, of establishing an integrated (and significantly so) society – although not one which is a totally homogenous one.

182 The second broad conclusion that can be drawn is one which follows from the first. It is that, although Tingari Village South and Tingari Village North are effectively located in a common precinct, the degree of interaction between the residents of them is very significantly less than (relevantly) the internal social interaction within Tingari Village South.

183 Third, although the individuals within the village have a range of individual external links to family and services such as medical practitioners, there is a very strong informal social network within Tingari Village South.

184 Evidence was given on a number of occasions of mutual acts of support by neighbours such as looking after plants, cooking of meals and undertaking of minor maintenance tasks. Similarly, the broad (but not necessarily universal) acceptance of and informal support for a woman suffering from a fairly profound problem with dementia and for a male adult who has severe developmental disabilities and who lives with his mother (who acts as his carer) are also part of this social fabric.

185 Fourth, the village society is an ambulatory one. The residents walk between each other's dwellings and interact informally during the process. The porch or verandah of the dwellings plays an important role in this social life. Groups meet to converse and socialise on the outdoor living areas that are common on most of the dwellings. These social interactions are largely but not exclusively unplanned.

186 In this regard, the evidence of a number of residents, although not unanimously so, was that the development of two-storey dwellings would have an adverse impact on the casual social interaction which currently takes place in Tingari Village South. During the course of the concurrent evidence given by Ms Nesbitt and Dr Berg, I asked Ms Nesbitt a question concerning this issue. The exchange reads:

Q. I think both - this morning there was mentioned, I think by Dr Berg and certainly a number of the residents to whom the Commissioner spoke last week stressed the importance of that social network and instance for example people knocking on the door to check whether they were well that day, or offering to take them to the shops, that sort of social interaction. Any reason to think that that would not be likely to occur in the event that this was a SEPP 5 development in the form that is currently proposed?

WITNESS NESBITT A. No, I would have thought with some new people moving in may be that would be increased, people wanting to get to know each other, that type of thing, same age group. So I would think that process would happen as part of the development. (T23/3 48:28 to 41)

187 There is nothing in further in her oral evidence or in her written statement which might be regarded as going to the type structures which would be involved in the proposed development.

188 I have also drawn what I consider to be a number of relevant conclusions relating to the Staging Plan.

189 Although the Staging Plan divides the development process into five separate elements, I conclude that, in reality, although this is a matter which may assist the applicant in delineating the geographic areas for each of these five elements, it does not accurately reflect the nature of the construction process envisaged.

190 It is clear that the construction process, once commenced, will proceed in a series of twenty-six week elements until all 15 of the residential or community building projects are completed. There will be, the applicant acknowledges, some breaks between various of these building projects to enable marketing of those units which are to be disposed of commercially rather than pursuant to Option 1 of the Housing Plan to existing residents of Tingari Village South.

191 The effect of this, whilst it may well lead to the isolating of the sequential stage elements as these take place (although it is not clear as to whether the five zones will be fenced off or rather each individual building site will be fenced off as it is constructed), is nonetheless that there will be continuous effective construction activity on the site for a period of a minimum of seven and a half years from the time of commencement of Block A through to some longer maximum period dependent on the rate at which commercial disposal of units occurs in each building involved in the process.

192 It is also possible that the development could take place over a much more lengthy period of time. One item of correspondence to a resident envisaged up to 20 years from the time of that letter (undated but approximately July 2002). The applicant's response to the draft conditions of consent envisages a period of up to twenty-three and a half years as a maximum period for construction (calculated by the proposed requirement that construction not commenced three years; the Staging Plan calculation that Stage 1 would take six months to be completed and the proposed condition requirements that each of Stages 2, 3, 4 and 5 be completed no more than five years after the conclusion of the preceding Stage).

193 As earlier noted, Mr Kettle prepared a Social Impact Assessment in November 2002 and a Statement of Environmental Effects prepared in March 2003. Neither of these documents deals with any issue relating to impact on existing residents from construction activities such as the generation of dust or emission of noise.

194 Artech Design Pty Limited, the architect of the project, also prepared a document entitled Environmental Impact Statement and SEPP 5 Design Report for a proposed retirement village. This document is dated May 2002. This document notes, at 19 Staging of the Development, amongst the issues which require be considered in developing the staging processes would be that residents having already moved in, still require privacy and protection from construction noise, dust, etc. However, having raised this issue, no solutions are advanced in this document or, subsequently, in the Staging Plan. Indeed, the commentary, in the Staging Plan, under the heading Summary of Staging and Effect on Current Residents, relates entirely to numerical calculations as to how those residents would be accommodated in the new development as it evolves.

195 Mr Kettle also prepared a written statement of evidence and a further supplementary statement. The first of these documents contains a short, general statement concerning social impact issues and concludes that there are no adverse social effects on existing residents of Tingari Village South. However there is no detailed analysis and, as he correctly notes, these matters are addressed, principally, by Ms Nesbitt on behalf of the applicant.

196 I have undertaken my assessment of the social impact of what is proposed on the assumption that the Staging Plan takes place within the timeframe discussed immediately above and that the Housing Plan operates as the applicant envisages; that its implementation is effected smoothly and does not cause, in itself, adverse social impacts.

197 What I have turned to consider is what will be the adverse social impacts (if any) of the construction process and the creation of two different types of residential accommodation on the site as the project unfolds – those two types of accommodation being the units developed as part of the project, on one hand, and, on the other, the shrinking residual number of existing accommodation units that will remain until the project is completed.

198 The appropriate test is not whether the residents have apprehensions that this process will have adverse social impacts (as it is clear that Dr Berg together with a significant number of the residents have such apprehensions). What I am required to consider is whether there is a reasonable probability that those apprehensions will be realised and, if they are, whether such impacts are unacceptable.

199 Essentially, those apprehensions fall into two broad classes.

200 The first class encompasses the concerns that:

the general nature of the society of Tingari Village South will be significantly adversely impacted by the nature of the construction project;

the staging of construction over a lengthy period of time will lead, effectively, to continuous construction activity generating noise and dust impacts which will be unacceptable;

differences will arise in social interrelationships as a consequence of the residents moving into two-storey dwellings rather than living in a ground level village; and

there will be at least two (and possibly three) classes of people within Tingari Village South as some shift from their traditional dwellings into those proposed to be built and that those who purchased into the new development on a commercial basis will also come from a different socio-economic class.

201 The second class of impacts are those on a comparatively limited number of specific individual impacts which might, together, possibly constitute a sufficient adverse social impact to warrant refusal on a separate basis.

202 In this latter category, I include those who have specific disadvantages of a medical nature so as to warrant specific consideration beyond that of the membership of the general social grouping. For example, these include the impact of the development on two residents in Tingari Village South who have a significant need for medical oxygen.

203 These impacts on individuals relate to:

noise and dust impacts on specific individuals rather than generally on the Tingari Village South society;
the impact on a resident who suffers from severe dementia;
the impact on a resident whose dwelling had been modified, significantly, as a consequence of amputations occasioned by an industrial accident; and
the impact on the developmentally disadvantaged adult male resident.

204 None of Mr Kettle's documents deal with any of these specific issues. However, Mr Kettle's Statement of Environmental Effects notes that subsurface parking will be provided to units 7 – 26 and 47 – 90. An examination of the design plans and of the Staging Plan, in this context, discloses that extensive excavation will, therefore, be required during Stages 2, 3 and 4. Additional excavation will be required during Stage 3 for the proposed swimming pool.

205 Although there was a joint statement of acoustics experts tendered in the proceedings, this dealt with noise issues within the proposed development rather than any noise issues relating to construction processes.

206 In her written statement evidence, Ms Nesbitt set out a table containing three columns. In this, she dealt with a range of social issues; the matters which she regarded as the relevant mitigation measures proposed by the applicant and her assessment of the resultant social impacts. Omitting the column relating to the mitigation measures, her evidence read:

Note: Numbering added for ease of reference

207 After considering these individual conclusions, Ms Nesbitt's statement summarised her overall conclusions in the following terms:

Based on the actions of this report into the reasons expressed, it is my expert opinion that the proposed development will have acceptable social and economic impacts on the existing residents. In particular, those who choose to move into a unit in social and economic impacts will be significantly beneficial.

All or existing residents of Tingari Village South, the proposed Housing Management Plan will provide a range of housing options which are better than those afforded other age and disabled live in come residents living in rental housing in. In addition, the provision of information existing residents about the proposed development, staging and continued consultation between residents, park owner and other interested parties will assist in addressing residents concerns.

208 During the course of her re-examination by Mr Craig, Ms Nesbitt opined that, overall, the proposal had a net positive social impact on the residents of Tingari Village South. The evidence was in the following terms:

Q. To confine yourself to the social impact do you perceive it, having regard to the both positives and negatives that you've identified, as having a nett negative or nett positive social impact?

WITNESS NESBITT A. I think it has a nett positive impact, particularly as I outlined in my report compared to what conditions for social impacts that may result on existing residence as part of the Residential Parks Act and my concerns about residents having, of this age group, having access to appropriate housing. (T 23/3 49:12 to 21)

209 The initial phase of the oral evidence concerning social impact involved Dr Berg and Ms Nesbitt giving concurrent evidence in response to questions raised by me. I asked the these questions by reference to the table in Ms Nesbitt's statement of evidence set out above. These questions related to issues numbered 1, 4, 7, 10, 11 and 13. Matters relating to issue 10 are equally relevant to matters raised under issue 12. Each of the issues about which I did not ask questions can be dealt with in comparatively short compass.

210 With respect to Ms Nesbitt’s issue 2, I accept the proposition that those existing residents who choose to accept Option 1 will live in housing which is more appropriate as to its fittings and layout than may presently be the position. Accepting the proposition with respect to physical facilities, however, does not deal with the issue of the fear fell by a significant number of residents of disruption of existing social networks. This is discussed below in the context of Ms Nesbitt’s issue 13.

211 With respect to Ms Nesbitt’s issue 3, I accept the conclusions drawn by her given the concession by the applicant that existing residents will not be required to move within Tingari Village South during the implementation of the staging process unless they choose to do so.

212 Ms Nesbitt's issue 4 relates to the process proposed by the applicant for the determination of a market price for a dwelling of the resident wishes to sell to the applicant for the purpose of any election pursuant to Option 1 or for some other reason. I am satisfied that the valuation process proposed in the Housing Management Plan is a fair one.

213 Ms Nesbitt's issue 5 relates to relocation costs. I am satisfied that the relocation costs options are fair under the circumstances but only, in this context, to the extent that they deal with the cost of relocation simpliciter rather than with the cost of acquisition of an alternative dwelling.

214 Ms Nesbitt's issue 6 relates to access to government services. I agree with the conclusions reached by Ms Nesbitt on this issue – as did Dr Berg.

215 Ms Nesbitt's issue 8 relates to possible impact on pensions and benefits. Although there was considerable questioning concerning the possible effect on pensions and benefits received by existing residents should they elect to adopt Option 1, I am satisfied that the uncertainty as to whether the attributed ingoing payment value might cause a difficulty for residents should be able to be dealt with in a fashion which would lead to little likelihood of potential disadvantage to any resident exercising this option. However, to the extent that this might be a possibility for a extremely limited number of potentially affected beneficiary residents whose dwellings might have a valuation higher than the relevant Centrelink threshold, I am satisfied that this would not, in itself, warrant refusal of the application if it transpired that any condition dealing with this did not remove the problems. I also do not consider it necessary, given my broad conclusions on social impact, to attempt to respond to matters relating to security of residents' capital should they select Option 1. Given the relative paucity of the evidence before me on this matter, it would be a denial of procedural fairness to the applicant if I were to make any finding based merely on the fears expressed to me.

216 With respect to issue 9, I accept Ms Nesbitt's conclusion contained in the first sentence of her assessment. I also accept that there will be an increased supply of appropriate housing in Gosford local government area if appropriate is read so as to apply solely to the physical facilities of the housing provided. However, it is clear, from the applicant's evidence concerning the likely commercial sale price of units in the proposed development, that this increased supply, except for those existing residents who exercise their right pursuant to Option 1 of the Housing Management Plan, will be targeted at a significantly different socio-economic population than those who are the present residents of Tingari Village South. This broader issue is one which is discussed further in the context of Ms Nesbitt's 13.

217 I now turn to address issues 1, 7, 10, 11, 12 and 13 of Ms Nesbitt's detailed social issues.

218 With respect to Ms Nesbitt's issue 1, Option 2 of the Housing Management Plan provides that a resident may decide to stay in their existing dwelling within the residential park, and the applicant will give notice, as required pursuant to s 127 of the Residential Parks Act, requiring a resident to relocate to a different residential site within Tingari Village South. Under this option the resident will only be required to relocate within Tingari Village South.

219 This was one of the matters to which there was a substantial change made during the course of proceedings. As originally proposed, the option of a resident moving within Tingari Village South could also have occurred at the election and requirement of the applicant. This element was removed as part of the revisions which took place the Housing Management Plan during the course of the proceedings. Whilst there was some testing of propositions concerning the ability to relocate the range of dwellings currently located on Tingari Village South, particularly during the evidence of Mr McDonald, it is clear from cl 16(b)(iv) of the Housing Management Plan that any cost of damage during such a move is to be borne by the applicant should a resident adopt Option 2. I am satisfied that this provides an adequate protection to residents against this eventuality.

220 Although it is possible that there might be one or more residents who adopted Option 2 and who, being resident in Stage 5 at the commencement of that stage (whether originally having been a resident of Stage 5 or having moved from a location in some earlier stage), still did not wish to accept any of Options 1, 3(a) or 3(b), I do not consider that the likelihood of this would be sufficiently high as to provide any contribution to a basis of refusal of the application.

221 With respect to Ms Nesbitt's issue 7, I accept that existing residents will not be affected provided they accept Option 1 or Option 2 of the Housing Management Plan. In addition, for the reasons discussed concerning the general availability of low-cost accommodation elsewhere, in the Gosford local government area, I accept that existing residents selecting Option 3(b) are not likely to be adversely affected. For those residents selecting Option 3(a), however, again for the reasons noted above, I am satisfied that there would be an adverse impact as they would be unlikely to obtain a site, in the Gosford local government area, upon which to relocate their existing home. This impact, in itself, does not warrant refusal but does add a small element to the cumulative social impacts which do warrant refusal.

222 With respect to issues Ms Nesbitt's issues 10 and 12, cl 49DJ(4)(d), as dealt with above, deals with the substantive process issue which is the difference between the parties. As noted there, I satisfied that an appropriate mechanism could be provided to deal with an assistant those residents who wished to find alternative comparable accommodation in the Gosford local government area.

223 However, with respect to the issues of fear, uncertainty and coping with change, it is clear that the applicant has not assisted himself by the information and support recruitment processes which he has undertaken to date. As noted earlier with respect to the pro forma letters of support which he has obtained, I am satisfied that this has arisen from his own zeal and enthusiasm for his project.

224 Although I do not consider that the present information and consultation processes, if continued, would resolve these issues, having heard and read all the evidence (including extensive evidence on this aspect from residents), I am satisfied that involvement of an independent external agency, perhaps under the auspices of the respondent, would permit an adequate addressing of these issues. This could be required by condition and does not warrant refusal nor contribute to the warranting of refusal.

225 With respect to issue Ms Nesbitt's issue 11, the following exchange, in response to questions from me, took place during the concurrent evidence:

Q. If I could take you to the third point on page 32. The issue of amenity to residents during the construction process. Miss Nesbitt, what regard to - you talk there about the health, safety and building standards during construction and the statutory requirements there. How do you say that the issue of possible noise or dust impacts - deal with them separately if you need - on residents that would be in proximate and subsequent stages? So say the construction at the southern end of stage 2 impacting on residents in the eastern portion of stage 5 or construction in stage 3 impacting on the residents in stage 4, construction in stage 4 impacting on the western two thirds, or so, of stage 5?

A. Commissioner, I think council has the powers to certainly put some restrictions on when work is happening, such as the time that work starts, entry and access to the site, dust suppression. Those types of things that certainly within in council's powers to do that and I would have thought that they would be looking at those types of issues. For me, though, I suppose, being a social planner, I'm looking at it as a trade off and that's why I've put it as a positive/negative. Certainly there will be some negatives and loss of amenity, but I think that's a trade off for it being a stage process and provides residents with some good housing options and choices.

The other, obviously, is maintaining essential services which, again, I think, council can put some controls in on those.

Q. Dr Berg?

WITNESS BERG: A. I'm not concerned about maintaining essential services. I think that can be done. I am very concerned about dust and noise. I don't think there are any building sites that do not produce a certain amount of dust and noise. Having consulted Roger Tregus(?) of the EPA, he directed to some information produced by the World Health Organisation and others that indicate that noise over a prolonged period has a bad effect on people in a number of ways. It affects concentration. It affects sleep. It is a stress. I also have information from several GP's in the area who indicated that even a small amount of dust in the air would be very harmful to the health of some people with respiratory illnesses of various kinds.

You will be aware, commissioner, that there are several people who are on oxygen for at least part of the day. We have one woman with only one lung . We have one woman with burnt lungs from radiation treatment. These people would be severely affected by even a small increase in dust in the air.

The noise level, I believe, because it's over such a prolonged period, Roger Tregus indicated to me that an industrial level of noise would be an appropriate limit and that is only 5 decibels over background noise for 15 minutes. Now most construction sites, my understanding is, have noise levels far more than that. More like 20 decibels above background level so I think it will be extremely difficult, I'm not an engineer, but I believe it will be very difficult to keep the noise levels to that level.

He also indicated to me that a 5 metre gap and a mesh fence would have very little impact on diminishing noise. (T23/3 19:50 to 21:2)

226 As discussed above, there is no material before me from the applicant which details how construction is proposed to be managed during the staging process. In particular, it is not clear whether an entire stage will be fenced off until that stage is completed or whether each element within a stage will be fenced off until that element is completed.

227 It is in the context of these issues that it is appropriate to consider the various Health Case Studies which were prepared by Dr Berg. This exhibit contained thirty such studies involving 41 residents, one of whom had her 19 -year-old daughter living with her. For reasons of privacy, I do not consider it necessary to go through these studies in any detail because of the risk that the medical position of individual residents could possibly be identified. It is, however, clear from these studies that the health of a number of these residents is likely to be adversely impacted (some very significantly so) if noise and dust impacts of construction are not, essentially, eliminated for those residents.

228 I am satisfied, given the material contained in the Health Case Studies, that the issue of noise and dust generation and measures necessary, if achievable, to remove the general adverse impacts (and to make specific provision to ensure there are no adverse impacts whatsoever on those residents whose medical conditions warrant such treatment) is a fundamental matter to determination of the acceptability or otherwise of the application.

229 However, I consider that it would be a denial of procedural fairness to the applicant if I were to refuse the application on this basis at this preliminary point of the proceedings. I have reached this conclusion for the reasons set out in the following paragraphs.

230 I have the council's without prejudice conditions of consent in evidence. Proposed conditions 1, 2 and 3 deal with construction hours and construction noise. In addition, condition 32 requires the preparation of a Construction Management Plan which would deal, inter alia, with noise suppression and dust and fume suppression. The applicant has not raised any objection to these conditions.

231 In the context of noise, proposed condition 3 reads:

An Acoustic Report and Noise Mitigation Plan must be prepared and implemented. This plan must include, but not necessarily be limited to an assessment of the current acoustic environment, a description of the likely noise impacts from construction works, identification of sensitive noise receptors and a detailed proposal of attenuation measures to be adopted during construction activities.

232 There is no evidence before me to demonstrate whether or not such outcomes can be achieved by the implementation of a Noise Mitigation Plan.

233 Satisfaction on these would be fundamental to the acceptability of a Noise Mitigation Plan. This position is on all fours with that which arose in Weal v Bathurst City Council & Anor [2000] [2000] NSWCA 88; 111 LGERA 181. Consistency with the Court of Appeal’s decision in Weal means that it would not be appropriate for me to leave these matters to later determination by the council.

234 The consequence of this, in my assessment, does not lead to refusal of the application on this basis at this stage. If health impacts on residents were the only determinative issues, the appropriate course for me to follow, having reached the conclusion set out in the preceding paragraph, would be to indicate to the parties that preparation of and evidence about the adequacy of the Noise Mitigation Plan should be a matter for my determination in these proceedings rather than being left to the council.

235 I am satisfied that a similar approach would be the appropriate one to take with respect to dust suppression.

236 I would not, therefore, be prepared, at this stage of the proceedings, to refuse the application on the basis of possible noise or dust health impacts on the current residents of Tingari Village South.

237 Ms Nesbitt's issue 13 raises three of the four general issues which emerged from the residents’ evidence. These were:

feared adverse impacts on general nature of the society of Tingari Village South;

differences will arise in social interrelationships as a consequence of the residents moving into two-storey dwellings rather than living in a ground level village; and

the resultant creation of at least two (and possibly three) social classes within Tingari Village South.

238 For the council, in Dr Berg's September 2003 statement of evidence, with respect to impact on social networks, she said:

There is copious evidence in the survey and interview data, expert opinions and direct observation showing Tingari Southside to be a highly cohesive community, rich in social capital, that is close, supportive bonds between neighbours which generally enhance the quality of life of its members. If residents are relocated to different parts of Tingari or to residential parks away from Tingari, these benefits will be diminished or lost.

239 Omitting the quotation from a resident, she continued:

Key informants raised concerns about the impact of lost all diminished social support networks on both mental health and physical health of Tingari residents, particularly the most elderly, and recently bereaved and those with pre-existing dementia, mobility or other health problems. They said that social isolation is a common cause of depression amongst seniors, which contributes to the high suicide rate in this age group, as well as tending to exacerbate existing physical and mental health problems.

240 Dr Berg's statement of evidence to September 2003 included an analysis of a survey of residents of Tingari Village South which have undertaken on a number of issues relating to the proposed development. She received 107 responses from residents to this survey.

241 Inter alia, she noted that many residents did not want to live upstairs with lifts or stairs to contend with and no direct access to the outdoors, where they currently the water monitors and ducks that live in the village. Some also feel this would be a significant barrier separating people.

242 She also recorded that many residents derived a great deal of pleasure from creating and maintaining their own gardens. Some said this was their main hobby and everyday joy.

243 In the context of attitudes to the possibility of relocation to Tingari Village North, she recorded:

The large majority (92%) of residents indicated they had close relationship with the neighbours and most (75%) said they would not be happy to move away from them. Neighbours help each other in small ways like moving furniture, bringing in the newspaper, picking up groceries or providing transport for excursions. They provide daily social contact, physical and emotional support and monitoring of well being.

244 The concerns recorded in this context are consistent with the concerns relating to living in a two-storey development expressed by residents to me during the informal taking of evidence on site.

245 Dr Berg concluded that the proposed redevelopment of Tingari Village South would have a number of significant negative impacts upon the current residents. The relevant one of her conclusions was that there would be a:

Breakdown of bonds within a tight knit, mutually supportive community, resulting significant losses in quality of life and capacity for independent living

246 Set out earlier are four broad conclusions of fact which I have reached concerning the nature of Tingari Village South society. It is appropriate to test Ms Nesbitt's conclusions on issue 13 against the first two apprehensions of residents concerning existing social networks in light of my broad conclusions and the possible impacts of the staging process proposed for the development.

247 Ms Nesbitt's analysis in her written statement of evidence assumed that existing residents who choose to remain in Tingari Village South would not suffer any disruption to their social networks within the Village. She concluded:

Existing residents will have the choice to remain within Tingari Village South and therefore maintain their relationships.

248 Ms Nesbitt’s response to a question a question on this, during the course of the concurrent evidence given by her and Dr Berg is set out at [186]. It is only regarding this issue that it is necessary to quote the Mitigation Measures Proposed by the Applicant which have otherwise been omitted from the table at [206]. These measures are described as:

The Housing Management Plan provides existing residents with housing options to remain in Tingari Village South and maintain their social network with others who choose to stay and those networks within the surrounding community

Existing residents may choose to move for lifestyle reasons and as such may lose the established networks within the residential park. Social networks, however, are also likely to exist beyond the park and they are likely to maintain their networks with family, friends and interest groups located elsewhere.

249 Neither of these Mitigation Measures addresses the issue of possible change in social structures arising from the evolution of Tingari Village South from a ground level residential precinct to a two-storey one.

250 There is nothing in Ms Nesbitt's evidence, or any other evidence or material on behalf of the applicant, which provides any basis to doubt the accuracy of the concerns expressed by the residents to me or reflected in the evidence of Dr Berg.

251 The generalities dealt with by Ms Nesbitt do not provide an adequate response to the specific conclusion of Dr Berg set out at [245].

252 As a consequence, I am satisfied that the shift to a two-storey unit development would have a significant impact on the beneficial casual and interactive nature that characterises much of current Tingari Village South society. I am also satisfied, to a somewhat lesser but nonetheless significant extent, that such shift to a two-storey development would act as an inhibition on the provision of mutual social support of various kinds which takes place within the present Tingari Village South society. These conclusions follow, inevitably, from my acceptance of the evidence of the residents and conclusions which I have drawn from it coupled with my acceptance of the uncontradicted conclusion of Dr Berg in this regard.

253 The likely disruption of much of the interaction with the water dragons is an adverse by-product of the two-storey nature of the proposed development. However, I consider that the contribution of this to the overall adverse social impact is negligible.

254 Ms Nesbitt also did not deal with the issue of the impact of two-storey development on the ability of residents to maintain their own gardens. However, although the coloured landscape plan in evidence does not appear to provide for any opportunities to be available for the establishment of individual gardens for ground floor units, there would appear to be possibilities for this. This could be dealt with by condition or by revision of the landscape plan. As a consequence, I have not given the concerns about access to individual gardens any significant weight in my reasons for refusal.

255 The staging process will also, in varying degrees, impact on the general social structure of Tingari Village South.

256 Although Stage 1 of the proposed staging process would have little or no impact on Tingari Village South society, I am not satisfied that this is the position with respect to subsequent stages. However, I am prepared, for the purposes of this analysis, to assume that the construction of Stage 2 would have comparatively little social impact because of the staging (as opposed to any social disruption to the residents in it).

257 However, I am satisfied that the staging process for Stage 3 would commence a process which will be socially disruptive – although this is only likely to be modest, in my assessment. Stage 3 would be so for the residents in the western portions of Stage 4 and Stage 5 because, particularly if the whole of the Stage 3 area is fenced off, there will be a physical barrier to an easy stroll to the northeastern portions of Tingari Village South. A similar position will arise for the residents in the western portion of Stage 5 as a consequence of the construction of Stage 4. These staging impacts, however, would not, in themselves, be sufficient to warrant refusal.

258 There are impacts on three specific residents which, for completeness, I should address.

259 Given the nature of the first resident’s medical condition, I do not consider it inappropriate to discuss her case although I do not propose to name the resident involved. She suffers from dementia. She was interviewed during the process of taking on-site evidence from the residents. She was also the subject of one of the Health Case Studies. She is an elderly and long-term resident of Tingari Village South.

260 Dr Berg's case study notes with respect to this resident record that Dr Berg spoke with the resident’s general practitioner with the resident’s consent. The case study records a lengthy comment from the general practitioner about the likely severely adverse impacts if her routines and familiar surroundings were disrupted. His prognosis is that if she were uprooted: she would be institutionalised very soon after and soon would die.

261 Had the applicant proposed to commence construction immediately, if granted consent, it is likely that the impact on this resident would have occurred, at the earliest, within six or seven months – that is at the commencement of Stage 2. However, the commencement of Stage 2, if the application were to be approved as proposed, would be some three and a half years after the giving of approval. Without specific evidence in detail about the routines of this resident, it is not possible to be precise in any prediction of impact on her. As a consequence this time delay and the necessary uncertainty as to the medical condition of the resident at that time, I am not prepared to conclude that the impact on this resident would warrant or contribute to warranting refusal of the application.

262 The second individual impact is that on Mr Bill Harper whose dwelling (Site 108) had been modified, significantly, as a consequence of amputations occasioned by an industrial accident. His dwelling is located very close to the southwestern corner of the site. He had signed a letter of support for the applicant but expressed two principal concerns at the proposal.

263 The first related to his desire to stay at his particular location in the Village. He is located at the conclusion of Stage 5. It does not appear to be possible to deal with these concerns by specific condition that would have him, with two moves, returned to the final block in southwestern corner as there do not appear to be any adaptable dwellings in Stage 5. However, Mr Harper also acknowledged that he had made a lot of good friends in Tingari Village South and that he has lots of support from the village. They are all real supportive and friendly.

264 He gave other information concerning his reasons for wishing to remain his present location. For privacy reasons, I do not consider it appropriate to discuss these in this judgment. As I have concluded that there are other grounds warranting refusal of the application, I do not consider it appropriate to attempt to assess what weight I should give to these.

265 His second concern relates to the cost of adaptability improvements provided in his present dwelling as a result of workers compensation funded renovations following his industrial accident. I am satisfied that this issue could be dealt with by way of condition and does not contribute to warranting refusal.

266 The third individual impact is that on the developmentally disadvantaged adult male resident. Mrs Barbara Guow and her son Aaron moved to Tingari Village South in July 2002. Other members of Mrs Guow’s family live in Terrigal.

267 Aaron has obsessive/compulsive disorder and is intellectually disabled. He is 41 years old. She describes him as having become settled and accepted in the Tingari Village South community. He has his facilities established in his present residence. Mrs Guow and Aaron are the subject of one of Dr Berg's Health Case Studies. However, it contains no clinical material from any health professional who Aaron has seen. As I am not a clinician and have no detailed medical evidence concerning Aaron and possible impacts of the proposal on him, it is impossible for me to make any realistic assessment in his case. As I have concluded that there are other grounds warranting refusal of the application, I do not consider it appropriate to attempt to draw any conclusions as the scope of any impacts on Aaron.

268 In part, Mrs Guow’s fears also arose out of economic issues associated with retention of her present rental assistance entitlement. I am satisfied that this is likely to be able to be dealt with by condition.

269 With respect to the final of the three broad areas of concern to existing residents (see [237]), Mr Craig questioned Dr Berg on this matter. The exchange reads:

Q. Why would people who are in an aged persons' development but in a form that is currently proposed be different in their, if you like, altruistic approach to their neighbours, open the door, how are you going, do you want to come to the shops, do you want to come down for a stroll at Terrigal? Why would they be different?

A. Broadly they may not be different, one reason there might be a difference is that those who are coming to the village as purchasers of these units will be coming from a quite a different economic stratum of society. They will be people who can afford to pay half a million dollars for their homes. They would be people of far greater means and certainly some of the residents have expressed to me some trepidation about being, as they put it, second class citizens within their own community. They feel that the people coming in will be quite different from themselves and they might find have greater difficulty in forming friendships with those new people.

Q. Well that's a subjective perception?

A. Yes it is.

Q. It wouldn't be born out by any sort of social research though would it?

A. I think it probably would actually. It's not something that I have done for this project, but I think you would find that by and large people do tend to socialise roughly within their own economic stratum.

Q. Well isn't it the case that for example in connection with some of the Church operated retirement villages that there are a certain number of units kept aside for indigent persons?

A. Mm.

Q. And others that are acquired by provision of equity?

A. Mm.

Q. And there's no recorded difficulty in social interaction in those villages are there?

A. I don't know, I haven't investigated that question so I can't comment on it. (T23/3 67:15 to 56)

270 In light of the Dr Berg's evidence set out immediately above, I am satisfied that it there is no basis upon which to find that the advent of persons qualified to move into a SEPP 5 development and who could afford to move into this development on a commercial basis would introduce some adverse social class stratification of the Village.

271 I have also considered the degree to which likely benefits from the substantial community facilities proposed to be constructed at the commencement of Stage 3 might act as an offset to the adverse impacts discussed above. Whilst there would be some benefit, these facilities will not be complete until a minimum of two and a half years after construction commences and possibly longer. I consider it appropriate to have regard to this time delay and, to adopt Ms Nesbitt’s terminology, to regard the benefits and impacts as Positive/Negative and thus cancelling themselves out.

272 As a consequence of the matters dealt with in the analysis and conclusions set out above, I am satisfied, in summary, that the only finding warranting refusal of the application is that the disruption, which I have accepted will occur, to the existing social networks within Tingari Village South constitutes an unacceptable social impact and is such as to be determinative. However, there were other minor impacts which would have contributed to this finding had it been necessary for this to be supported.

273 There remains to be considered only the question of whether there is any adverse impact on the residents of Tingari Village North which might warrant refusal of the application.

274 Evidence was given on site by four of these residents. Apart from the specific concerns held by Mr Rushbrook relating to the location of the centralised garbage collection point, the dominant concern was that approval for Tingari Village South would inevitably lead to a similar development subsuming Tingari Village North. This had been fuelled by the matters described at [24] and [25].

275 Although it is possible (perhaps probable) that approval for a Tingari Village South development would lead to a similar development being proposed for Tingari Village North, that is not a proper matter for my consideration in these proceedings. The present application has stood (and fallen) on its own merits.

276 Issues of precedent would be only arise if my decision were one made on a broad planning principle rather than the specific and site confined issues before me: see Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] [2002] NSWLEC 75; 121 LGERA 101.

277 Indeed, cl 49DJ(4)(e) poses a higher test for Tingari Village North or any second or later site from the list for which an approval might be sought should I have granted an approval for this application.

278 I therefore concluded that there is no adverse impact on the residents of Tingari Village North which might warrant refusal or contribute to warranting refusal of the application.

The other discretionary matters pursuant to Clause 49DJ(4)

279 Clause 49DJ(4) sets out a number of discretionary matters which I am required to take into account in determining whether an application should receive approval. It reads:

4. Notwithstanding any other provision of this Ordinance, the consent authority must not grant consent to a development application to which this clause applies unless it has taken into account the following matters in deciding whether or not to grant consent to the application:

a. whether the proposed development is likely to reduce the availability of low-cost accommodation on the land to which the development application relates,

b. whether there is sufficient available comparable accommodation in the Gosford local government area to satisfy demand for such accommodation in that local government area,

c. whether the development, if carried out, is likely to cause adverse social and economic effects on the people who live on the land the subject of the application (if any), or on the general community,

d. whether adequate arrangements have been made to assist people who live on the land the subject of the application (if any), to find alternative comparable accommodation in the Gosford local government area,

e. whether the cumulative impact of the loss of low-cost accommodation in the Gosford local government area will result in a significant reduction in the stock of that accommodation.

280 Of the five matters contained in this provision, the first and second have been dealt with above.

281 With respect to the third of them, as it relates to social impacts, this has also been considered and dealt with separately above.

282 As to the economic element, neither of the parties called into question any matters concerning issues of broad economic impacts. I am satisfied that, as a consequence, there are no such matters of an economic nature which I am required to take into consideration in this decision.

283 In respect to the other two matters, they are capable of being dealt with in comparatively short order.

284 Although there was some contention between the parties as to what may be required to satisfy the provision in cl 49DJ(4)(d) concerning assistance to present residents of Tingari Village South to find alternative comparable accommodation within the Gosford local government area (should those residents not wish to reside in the development on Tingari Village South pursuant to Option 1 of the Housing Plan), I do not consider that those differences are such as to warrant consideration of or contribute to refusal of the application.

285 The applicant's proposals, in this regard, originally were general ones, not ones specific to the Gosford local government area. They are contained in the provisions of Options 3(a) and (b) of the Housing Plan.

286 On the other hand, the council proposes a condition which would require the applicant to meet the cost of employing a person who would act as a social housing officer for the residents.

287 If this issue was the sole outstanding matter between the parties, I am satisfied that it could be dealt with by way of an appropriate condition and that it would not be determinative of the application. In the context of the present decision, I do not need to reach any conclusion on the merits of the competing positions or whether some intermediate position (such as that proposed by the applicant in response to proposed Condition 26) would be satisfactory.

288 With respect to the issue of the cumulative loss of low-cost accommodation, raised by cl 49DJ(4)(e), I am of the view that, as this is the first application to be tested pursuant to the provisions of cl 49DJ, the issue of cumulative impact cannot arise. There can only be an accumulation which might arise in consideration of applications subsequent to the first successful application. As a consequence, I am satisfied that there is nothing with respect to a cumulative impact that I am required to consider in reaching my determination in these proceedings.

289 There are, therefore, no matters arising from my consideration of matters called up by cl 49DJ(a), (b), (d) or (e) upon which to base any finding adverse to the applicant which would warrant (or contribute to the warranting of) refusal of the application.

Uncertainty and reliance on the applicant's intentions

290 Mr Tomasetti also submitted that I should refuse the application because, as he put it:

................... there is so much left to the good intentions of the applicant and where the precise impacts have neither been adequately identified and therefore mitigated as necessary, the circumstances of the case dictate that the development application must be refused on this ground as well. (T 12/5 49:15 to 20)

291 This was followed by exchange I had with him as to whether or not any matters of uncertainty of this nature might not be amenable to being dealt with by way of condition. Had I not otherwise determined to refuse the application on its merits, I would have concluded that, as with the issues of dust and noise, procedural fairness would dictate that the applicant have the opportunity to address any specific concerns and provide the Court with the opportunity to remedy them by appropriate condition if this were possible.

Conclusions

292 As noted above, I have reached conclusions adverse to the applicant’s position concerning two of the three matters which I am satisfied are determinative of the preliminary issues in this appeal.

293 I have also reached conclusions not inimical to the applicant’s position concerning all of the discretionary matters pursuant to Clause 49DJ(4) other than that relating to social impact.

294 The totality of these conclusions may be summarised as:

a. First, I am of the opinion that a proper construction of cl 49DJ(5)(b) of the Gosford Planning Scheme Ordinance requires that I am satisfied that all four of the tests set out in it have been met concerning the necessary non-Tingari Village South accommodation to make up the numbers required to meet cl 49DJ(5)(a).

I have concluded that the applicant has provided no substantive evidence concerning two (these being facilities and services) of the four matters about which I am required to be satisfied with respect to the necessary non-Tingari Village South accommodation.

As a consequence, I consider that I am precluded from upholding the appeal even if there were no other impediments to its success.

b. On the other hand, with respect to the two mandatory matters arising pursuant to the provisions of cl 49DJ(5)(b) of the Gosford Planning Scheme Ordinance about which I do have sufficient evidence to reach conclusions, I am satisfied that sufficient accommodation, calculated pursuant to (a) of this provision, is available in the Gosford local government area which is comparable in price and type of tenure to that available to the residents of Tingari Village South.

c. However, I am also satisfied that the adverse social impacts of the proposal, when tested pursuant to the provisions of s 79C of Environmental Planning and Assessment Act 1979 and against cl 49DJ(4) of the Gosford Planning Scheme Ordinance, are such as to require dismissal of the appeal.

Orders

295 The orders of the Court, therefore, are:

The appeal is dismissed;
Development Application 16387 of 2002 to develop housing for older people or people with a disability pursuant to State Environmental Planning Policy No 5 at 12 to 30 Duffys Road, Terrigal (being Lot 5 DP 858444) is determined by the refusal of development consent;
The exhibits are returned; and
Costs are reserved.





Tim Moore
Commissioner of the Court