CNRG’s Submission to GGI’s 2023 Development Proposal

 

On behalf of the 8000+ Nicholls residents, the Community of Nicholls Residents Group Inc (CNRG) provides the following feedback on Gungahlin Golf
Investment’s (GGI) 2023 development proposal (summarised below).

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1. Summary of development proposal

Following GGI’s shelved attempt to get “Re-imagine Gold Creek Country Club” off-the-ground in 2018 – involving residential and commercial redevelopment of the back 9 holes of the Gold Creek Golf Course – GGI is now proposing to build 2-4 storey townhouses and apartments on approximately 7.5ha of Gold Creek Golf Course land (aka the ‘practice holes’ and ‘driving range’), comprising 700 dwellings of 2-4 bedrooms, characterised as ‘commercial accommodation units’ under the ‘Build-To-Rent’ (BTR) model, with associated commercial and communal amenities.

A Lease Variation is proposed to subdivide the Crown Lease into two blocks and to vary the location and boundaries of the hatched area referred to in clause (a) of the Purpose Clause of the Crown Lease of December 2014 (Vol 2157, Folio 38). It is not proposed to add any uses or make any changes to the permitted uses in the Lease. Nor does it propose to seek any rezoning of the Territory Plan.

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2. CNRG overview and broad position

CNRG was incorporated in 2018 under the Associations Incorporation Act 1991, with the following 6-point Statement of Purpose:

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a) Respond on behalf of the community to attempts to redevelop and/or rezone the Gold Creek Golf Course via a transparent consultation process.

b) Preserve the open space, wildlife habitat and amenity offered by the golf course.

c) Preserve land values.

d) Ensure that previous commitments ($15m build spend on ‘ancillary uses’ on 15,000sqm of golf course land) be honoured by GGI and that the ACT
Government continue to honour its promise for the golf course land to be kept as open space and not used as a land bank (as stated in Hansard by
Simon Corbell MLA, Minister For Planning, in 2008 and never rescinded as a position of this Labor Government). 

e) Ensure certainty about the long-term nature of Nicholls. 

CNRG is not anti-development, rather it’s about appropriate development – the current proposal is NOT considered to be an appropriate development. GGI bought a Crown Lease with a Purpose Clause that permits use of the premises for the purpose of an outdoor recreation facility that must consist of a golf course with grassed greens and a minimum of eighteen (18) holes and may include practice fairways and putting greens. In addition, the Lease Purpose allows for four other purposes as listed at (i)-(iv) under Clause 3(a) of the Lease. Three of these relate to “indoor recreation facility”, “outdoor recreation facility” and, “club and/or child care centre ancillary to outdoor recreation facility and/or indoor recreation facility”. However, commercial accommodation use is LIMITED TO a hotel, motel or guest house, for short term accommodation purposes. Buildings associated with these purposes must be constructed within the hatched area at Attachment 1 and the combined gross floor area (GFA) of all
buildings erected on that land is not to exceed 8000sqm. 

As discussed in Item 4 below, the current proposal is not permitted by either the Crown Lease or the Territory Plan and thus, on these grounds alone, is untenable, let alone the many other concerns the community notes in Items 4 and 5. Contrary to the portrayal of previous community responses in GGI’s current Consultation Brief, CNRG’s and the community’s final response to the 2018/19 People’s Panel Consultation was:

(a) retain the golf course in its current form, and

(b) no development outside the bounds of that allowed by the current ‘market value’ Crown Lease.

On the basis of what is currently on the table, CNRG can see no reason why the community should consider moving from this position.

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3. Supreme Court Judgement pending

In addition, and most importantly, an ACT Supreme Court judgement in the Higgins vs GGI and Australian Capital Territory case is still pending, the
outcome of which could have significant implications for what can and can’t be done on Crown Leases in the Harcourt Hill Estate area of Nicholls, and especially, on the Gold Creek Golf Course Lease. Accordingly, as the case is sub judice, GGI should not be allowed to proceed further with this or any other proposal until the Supreme Court Judgement is brought down and the ramifications thereof are worked through between the relevant parties.

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4. Why is this NOT considered to be an appropriate development?

If GGI’s development proposal was allowed to proceed and CNRG (along with the relevant authorities) was required to look at the current proposal on its merits, we would point to the following concerns and deficiencies.

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4.1 General concerns
The community’s general planning-related concerns are as follows.

4.1.1 A 3 and 4-storey/multi-unit apartment precinct is not in keeping with the broader layout of the surrounding suburb. Whilst Nicholls does have some attached 2-storey townhouses, it consists principally of single and 2-storey individual dwellings (with a minimum size covenant of 18 squares) on large blocks.

4.1.2 Many existing residents advise that their views will be obstructed by the 2-4 storey apartment buildings. Those residents, when buying their
properties, would’ve had every expectation that their views would remain across the open spaces of golf course land to the hills beyond.

4.1.3 The density of GGI’s proposal – 700 dwellings, plus commercial and communal facilities, on 7.5ha – is considered totally unsustainable. When you consider that the housing development in Krantzcke Circuit occupies roughly the same area as GGI’s development site, yet comprises only 65 closely-configured dwellings, it is inconceivable to believe that the density of dwelling displayed in GGI’s concept plan is even remotely achievable. The proposed dwelling density, potentially involving an additional 1500+ residents, also raises issues relating to the need for additional human, health,

education and transport services in the suburb and surrounding area – particularly given the imminent residential development of the adjacent ex-CSIRO land.

4.1.4 The proposed development is at the entrance to the suburb, which presents as open space (ie. practice holes for the golf course) and a wildlife habitat (grazed by a 200-strong pod of kangaroos) and thus, would result in a fundamental change for all residents of the suburb of Nicholls, not just for those with direct views of the proposed 3 and 4-storey apartment buildings, as well as for the kangaroos and other wildlife using this open space as a wildlife corridor.

4.1.5 The substantial increment in daily traffic movements, exiting and entering via a single point, the McClelland Street and Curran Drive
roundabout, would give rise to a number of traffic-related concerns. The best practice Guide to Traffic Generating Developments (Transport NSW) suggests that traffic movements in regional areas of 7.4 per dwelling would be a reasonable figure to use for a car dependent Canberra suburb. For 700 dwellings, this equates to an additional 5,180 traffic movements per day. Such an additional increment in daily traffic movements would require extensive traffic modelling relating to: road upgrade issues – slip lanes feasibility at this and the next roundabout at O’Hanlon Place, and also onto the Barton Highway; traffic congestion concerns – this roundabout already handles a large proportion of Nicholls traffic trying to exit/enter the suburb; and, safety/emergency management issues – in the event there is a need to evacuate the development site, let alone the rest of the 8000+ residents in the suburb, given the ever present danger of a bushfire in the area.

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4.2 Permissibility concerns GGI claims:

• “This build-to-rent development complies with existing zoning requirements.”

• “The proposed development is within the existing current lease conditions.” 

 

4.2.1 Territory Plan – The subject land is zoned PRZ2 – Restricted Access Recreation Zone. 

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In this zone, ‘Residential Use’ is prohibited, therefore multi-unit housing is also prohibited. ‘Hotel’, ‘motel’ and ‘guest house’ are included within the definition of ‘Commercial Accommodation Use’ and are assessable development in the merit track. The umbrella term ‘Commercial Accommodation Use’ is not included as assessable development. Therefore, the following commercial accommodation uses are NOT permitted in the PRZ2 zone – ‘commercial accommodation unit’ and ‘serviced apartment’. Accordingly, it is CNRG’s understanding that GGI would be required to seek approval for a rezoning of the subdivided land for residential and commercial use.

4.2.2 Crown Lease – The Crown Lease includes, inter alia, the definitions of commercial accommodation use, commercial accommodation unit, hotel, motel and guest house. However, the inclusion of a definition does not point to the permissibility of that use.

4.2.2.1 Purpose Clause – Inter alia, the Purpose Clause “permits use of the premises for the purpose of an outdoor recreation facility that must consist of a golf course with grassed greens and a minimum of eighteen (18) holes that may include practice fairways and putting greens ... AND IN ADDITION only the part of the premises identified by cross-hatching on the plan at Attachment 1 may also be used for one of the following, specifically
(i) commercial accommodation use LIMITED TO guest house, hotel and motel.” No other use included within the definition of commercial accommodation use is permitted – that includes commercial accommodation units and serviced apartments. And, the maximum GFA of all buildings allowed to be erected on the land is limited to 8000sqm, which is substantially less than the GFA necessary for the current proposal to proceed. Accordingly, it is CNRG’s understanding that, for the proposal to proceed, any Lease Variation would also need to seek approval to alter the Purpose Clause, permitted uses and GFA build limit.

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4.3 Strategic Planning/Development Framework

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4.3.1 National Capital Plan

4.3.1.1 Section 4.15.4 – Detailed Conditions of Planning, Design and Development – for the Barton Highway, how is the additional traffic to be
managed to ensure the continued effective functioning of the Main Avenues and Approach Routes.

4.3.2 Nicholls Precinct Map and Codes – there are no relevant provisions.

4.3.3 Parks and Recreation Zones Development Code – Element 6.1 requires a DA accompanied by an ‘Assessment of Environmental Effects’ to address all matters listed at C31. In the absence of a satisfactory ‘Assessment of Environmental Effects’, CNRG is not satisfied that any of the matters required to be addressed have been adequately considered by GGI. For instance, Rule 8 and Criteria 8 are relevant in the absence of a rezoning. If, as argued, no change of zoning is required, then, under this Rule, the maximum building height on PRZ2- zoned blocks that are adjacent to, or adjoining, a Residential Zone is 2 storeys.

4.3.4 Draft Gungahlin District Planning Strategy – the subject land is not identified as an area for proposed change.

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4.4 ‘Build-to-Rent’ Listening Report (ACT Government)

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4.4.1 Optimal size – The report noted that the optimal size for BTR developments in the ACT would be “200-450 dwellings”, so, regardless of any other consideration and as it stands, GGI’s proposal represents mass overdevelopment, which is totally untenable. Although not specified in the Consultation Brief, the maximum GFA of all buildings erected on the land (this includes all the land under the Lease, not just the ‘hatched area’ in Block 14) is limited to 8000sqm. Therefore, any Lease Variation would also need to seek approval to substantially increase the GFA limit.

4.4.2 Dwelling size – The report indicated that at least 50% of the dwellings should be studio or 1-bedroom and not more than 10% be 3-bedroom for BTR developments in the ACT – GGI’s proposal only talks of “commercial accommodation ranging from 2-4 bedrooms”.

4.4.3 Site characteristics – The report stated that BTR developments need to (in addition to the above):

• be zoned for residential and commercial uses – as noted in 4.2.1 above, GGI’s site is PRZ2 zoned for outdoor recreation uses. In this zone, ‘Residential Use’ is prohibited, therefore ‘Multi-Unit Housing’ is also prohibited. Consequently, it is CNRG’s understanding that GGI’s proposal would also require a Territory Plan Variation (TPV) to proceed;

• be located near town centres – GGI’s site is not near a town centre;

•  have access to public transport – Nicholls’ public transport (ie. buses that wind through various suburbs before reaching their eventual destination) would need a significant upgrade to cater for an additional 1500+ persons in the area ... that is, as discussed in Item 4.1.5, assuming necessary road upgrades could be adequately addressed in the first instance to cater for the increased traffic flows; and

•  be located close to education facilities – GGI’s site is not what you would consider as being close (ie. within 10mins walking distance) to any education facility in Nicholls, nor university or TAFE facility.

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4.5 Build-to-Rent Policy Framework (ACT Treasury)
A BTR is “a multi-unit development where the residential dwellings are retained by one owner and rented out long-term (preferably at least 15-20 years), rather than being sold” – that is, ‘long-term’ not ‘short term’ as per the definition of commercial accommodation units. And, as explained in Item 4.2.1, multi-unit housing is NOT a permitted use in this PRZ2 zoned land.

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5. ESPDD - Criteria for PRZ2 Rezoning
Quote: “A proposal to rezone or add uses to PRZ2 - Restricted Access Recreation land to allow for residential use is NOT likely to be supported due to the limited amount of PRZ2 land in the ACT.”

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And specifically in regard to development on PRZ2 zoned land on golf courses in the ACT:

“Golf Courses Rezoning or additional uses on golf courses may be supported if:

• a golf club retains an 18 hole golf course, [GGI’s proposal ticks this criteria] and

• demonstrates the surplus land is not needed for future sporting use in the long term, [GGI’s proposal does not address nor meet this criteria, particularly in the light of the preamble to this criteria and given the imminent residential and commercial development of the adjacent ex- CSIRO land, as well as the fact that GGI has not attempted to generate an income from these golf practice holes, rather, for whatever reason, they have been allowed to slowly deteriorate in condition] and

• rezoning or additional uses on surplus land is for an integrated/ancillary use to the golf course that is integral to the primary use (i.e. a use owned by the golf club, with funds returning to the golf club to secure the long-term viability of the facility). [GGI’s proposal is NOT an integrated/ancillary use to the golf course, in that it is not short-term accommodation intended for visiting golfers, rather it is multi-unit residential housing for long-term rental under the BTR model. Also, GGI does not address how and by what mechanism the funds (ie. profits, after development, management and maintenance costs) will continue to be returned to the Gold Creek Golf Club to “secure the long-term viability of the facility”, and particularly in the event where GGI may choose to sell the golf course, but retain the BTR asset and income flow. To this end, back in 2014/15, GGI promised to use funds from the sale of businesses that were ancillary to the golf course for viability/upgrade purposes, yet urgent drainage and bunker works, which have apparently been known to exist for over 10 years, are yet to be tackled.]

6. Summary
GGI’s current proposal is, again, a disappointing ‘ambit claim’ attempt to develop on golf course land, this time for ‘build-to-rent’ multi-unit residential housing, which is not permitted under either the Territory Plan or Crown Lease. It is CNRG’s understanding that, for the proposal to proceed, GGI would need to, as a minimum, seek approval via Development Applications relating to:

•  Estate Development Plan – to address infrastructure and environmental issues;

• Territory Plan – for rezoning to residential and commercial uses; and

•  Lease Variations – to change the Purpose Clause, add permitted uses and substantially increase the GFA limit.

Traffic Management and Environmental Impact Statements would also need to be provided for community assessment purposes. As things currently stand, if the current proposal were to proceed, CNRG, on behalf of the Nicholls community, would feel obliged to oppose it on the following grounds:

• not permitted under the Territory Plan;

• not permitted by the Crown Lease;

ESPDD’s Criteria for PRZ2 Rezoning on golf courses in the ACT would not support rezoning or additional uses in this instance, where the proposal is for residential housing for long-term rental, which is not an integral/ancillary use to the golf course, and it would be a long bow to suggest that any funds (after costs) generated by the BTR component would flow to the Golf Club for viability/upgrade purposes for a considerable period of time – property management experts suggest that it would take longer than the planned 10-year development period to amortise the development cost of the total project, ie. before any ‘profit’ from the income flow would be available for such purposes – and even then, what assurances can be legally prescribed to ensure that any eventual return does flow to the Golf Club, particularly were the private owner, GGI, to sell the Golf Course Lease, but retain the BTR assets and income flow;

• density/overdevelopment issues;

• height of building issues;

• traffic movement issues;

• road upgrade issues;

• traffic congestion issues;

• safety/emergency management issues; and

• wildlife corridor issues.

 

EXECUTIVE COMMITTEE
COMMUNITY OF NICHOLLS RESIDENTS GROUP Inc

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Community of Nicholls Residents Group Inc’s (CNRG) requests for information from Gungahlin Golf Investments (GGI) and confirmation of the community’s offer of support for a ‘win-win’ development option.

1. GGI’s principal rationale for the proposed development is to ensure the future financial viability of the Golf Club/Course, as it continues to operate at a loss. This is something we have heard twice before, once in 2014/15 – when GGI sought a similar sub-division of the Golf Course Lease to subsequently unit-title and sell-off the then cross-subsidising ancillary businesses – and again in 2018/19, during the “Re-imagine” consultation phase. Accordingly, for full disclosure during this pre-DA Consultation, it is considered incumbent on GGI to provide the community, and Golf Club Members, with public copies of relevant financial information for Gold Creek Country Club’s golf operation for FY 2017/18 through 2022/23?

2. With the above rationale in mind, plus the Nicholls community’s desire to ensure the ongoing amenity afforded by the green space occupied by the golf course, it is also considered incumbent on GGI, during this pre-DA Consultation phase, to provide the community and Golf Club Members with information on how does GGI intend to deliver the nett income from the proposed 700 long-term rental dwellings to the golf operation? For instance, would GGI be prepared to contribute an appropriate amount, up-front, into an interest-bearing ‘Futures Fund’ to be administered in-perpetuity by the Gold Creek Golf Club Committee? This one-off contribution administered by the Golf Club Committee is seen as being necessary to account for any subsequent decision by GGI to sell the Golf Course Lease and/or the proposed development’s assets.

3. CNRG reiterates its position that the community will ONLY support the moving of the hatched area (as shown in Attachment 1 to the Crown Lease) to the ‘old par 5’ practice hole and driving range, and the subsequent development of permitted ancillary-use buildings having a combined GFA of no more than 8000m2 on that land, as provided for in the current Crown Lease. GGI bought a golf course with associated development promises, which it is yet to fulfil. If GGI believes that it can’t deliver a financially viable golf course with appropriate ancillary services cross-subsidising the golf operation, then maybe it’s time to consider selling it to someone who thinks they can without putting a small suburb-sized development on PRZ2-zoned land reserved for outdoor and/or indoor recreation and ancillary facilities.

Executive Committee
Community of Nicholls Residents Group Inc.
9 August 2023