Commercial 7 Pty Ltd ATF Commercial 7 Investment Trust v Maitland City Council

[2025] NSWLEC 1635

Land and Environment Court

New South Wales

Medium Neutral Citation:

Commercial 7 Pty Ltd ATF Commercial 7 Investment Trust v Maitland City Council [2025] NSWLEC 1635

Hearing dates:

Conciliation on 21 August 2025

Date of orders:

04 September 2025

Decision date:

04 September 2025

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs as agreed or assessed pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

(2) The appeal is upheld.

(3) Development Application DA/2024/116 for demolition of existing structures and establishment of a manufactured home estate comprised of 176 dwelling sites, communal facilities and associated works at 34 Wyndella Road, Lochinvar, associated works within Wyndella Road and minor batter works into the frontage of 2 Wyndella Road, Lochinvar is determined by a grant of consent subject to conditions contained in Annexure A.

Catchwords:

APPEAL — development application — manufactured home estate — conciliation conference — agreement reached — orders made

Legislation Cited:

Biodiversity Conservation Act 2016 (NSW), ss 6.12, 7.2, 7.7, 7.13

Environmental Planning and Assessment Act1979 (NSW), ss 4.15, 4.16, 8.7

Fisheries Management Act 1994 (NSW), s 221ZZ

Land and Environment Court Act 1979 (NSW), s 34

Rural Fires Act 1997 (NSW), s 100B

Water Management Act 2000 (NSW), s 90

Biodiversity Conservation Regulation 2017, cl 7.2

Environmental Planning and Assessment Regulation 2021 ss 37, 38

Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021 cl 6

Maitland Local Environmental Plan 2011 (Amendment No 38)

Maitland Local Environmental Plan 2011, cll 1.8A, 7.2, 7.9

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 3, Pt 3.2

State Environmental Planning Policy (Housing) 2021, Pt 8, ss 122, 123, 124, 125

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6, cl 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Cases Cited:

McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category:

Principal judgment

Parties:

Commercial 7 Pty Ltd ATF Commercial 7 Investment Trust (Applicant)
Maitland City Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
S Simington (Solicitor) (Respondent)

Solicitors:
Mills Oakley Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2024/187067

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a manufactured home estate, together with communal recreational facilities and a community building, at 34 Wyndella Road, Lochinvar. The development application was lodged with the respondent on 20 February 2024. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [25] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. Following an adjournment of the hearing of the appeal, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 21 August 2025. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. Whilst a signed agreement was provided on the same date, the final signed agreement was filed on 3 September 2025. The agreement follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021. There were two main changes made to the development through this amendment, as follows:

• The introduction of a 100m wide buffer at the rear of the site, where it is adjacent to the dwellings on Pennparc Drive and Orlando Crescent, in which the existing grades are to be retained and no earthworks will be carried out. This is to be used as communal open space for future residents of the site, and the retention of existing grades will protect the visual outlook for the neighbours who live to the east of the development.

• A change to the stormwater management system so that it includes the maintenance of existing overland flow paths to downstream properties (where dams are located) through a system of pipes, tanks and level spreaders. This also reduces the pipe size required for disposal of stormwater captured on the site. The new stormwater management strategy is set out in the Stormwater Management Strategy report dated 14 August 2025.

4. The amended development application seeks a manufactured home estate consisting of 176 dwelling sites and communal facilities, including a community building, car parking spaces and caravan storage spaces.

5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Note that sets out what the parties consider to be the jurisdictional prerequisites to the exercise of the power to grant development consent. I have considered the contents of the Jurisdictional Note, together with the documents referred to therein, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties’ have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the reasons that follow.

Owners’ Consent

7. Owner’s consent has been provided by the owners of the land to which the development application relates. In addition, owner’s consent has been given by the owners of 2 Wyndella Road, Lochinvar, for the carrying out of minor batter works on the frontage of their land.

Permissibility

8. The site is zoned RU2 Rural Landscape under the Maitland Local Environmental Plan 2011 (MLEP). Section 122 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) makes a manufactured home estate permissible on land outside of the Sydney region, if development for the purposes of a caravan park may be carried out on that land. At the time that the development application was lodged, caravan parks were a nominated permissible use in the RU2 zone.

9. On 28 March 2025, the Maitland Local Environmental Plan 2011 (Amendment No 38) commenced, and amended the MLEP by removing caravan parks from the list of nominated permissible uses in the RU2 zone, such that a caravan park is now an innominate prohibited use. Amendment No 38 also inserted
   cl 7.9, which is the clause from the standard instrument that requires essential services. However, these amendments do not apply to the development application the subject of these proceedings, pursuant to cl 1.8A(2) of the MLEP. This means that caravan parks remain a nominated permissible use in the RU2 zone for the purpose of this development application, and the proposal for a manufactured home estate remains permissible on the site pursuant to Pt 8 of the SEPP Housing.

The requirements of the SEPP Housing

10. The SEPP Housing sets out a number of requirements concerning manufactured home estates. I am satisfied that they are each met. In particular:

1. The requirement of s 123(2) of the SEPP Housing, for a condition to be imposed requiring an approval to be obtained to operate a manufactured home estate, has been met by condition 18.

2. The proposed development does not seek the subdivision of land in accordance with s 124(1) of the SEPP Housing.

3. In relation to the requirements of s 125 of the SEPP Housing:

1. Based on the Water and Sewer Servicing Strategy dated 2 May 2025, I am satisfied that each of the sites on which a manufactured home will be installed will be adequately provided with reticulated water, a reticulated sewerage system, drainage and electricity, as required by s 125(1)(a).

2. Based on the Traffic Impact Assessment dated 2 May 2025 and the Supplementary Statement of Environmental Effects dated 19 May 2025, I am satisfied that the manufactured home estate is or will be provided with adequate transport services, as required by s 125(1)(b).

3. Based on the Supplementary Statement of Environmental Effects dated 19 May 2025, I am satisfied that sufficient community facilities and services will be available to the residents, in satisfaction of s 125(1)(c).

4. The site is not a heritage item, conservation area, waterway or land having special landscape, scenic or ecological qualities, and therefore s 125(1)(d) is not applicable.

5. Based on the Supplementary Statement of Environmental Effects dated 19 May 2025, I have considered the matters in s 125(2).

Remaining jurisdictional matters

11. The development application includes earthworks for the provision of level pads for the manufactured homes. Based on the comments by Wallace Design Group (undated, Tab 5 of Ex E) and the documents referred to therein, as well as the Stormwater Management Strategy dated 14 August 2025, I have considered the matters set out in cl 7.2(3) of the MLEP.

12. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, and, consistent with the requirements of cl 4.6(2), I have considered a report specifying the findings of a preliminary investigation of the land concerned and a Detailed Site Assessment prepared by Qualtest Laboratory NSW Pty Ltd dated 29 July 2025. The report confirms that the site is able to be remediated in accordance with a Remediation Action Plan dated 29 July 2025 and, therefore, will be made suitable for the proposed development.

13. The proposed development includes the clearing of vegetation to an extent that exceeds the biodiversity offsets scheme threshold pursuant to cl 7.2 of the Biodiversity Conservation Regulation 2017 (BC Regulation) and a biodiversity development assessment report is therefore required pursuant to ss 7.2 and 7.7 of the Biodiversity Conservation Act 2016 (NSW) (BC Act). Consistent with ss 6.12 and 7.7 of the BC Act, the development application includes the Biodiversity Development Assessment Report, Version 6 dated 14 May 2025 (the BDAR). The BDAR concludes that the vegetation to be impacted is highly degraded, that measures can be put in place to avoid or minimise the impact of the proposed development, that the development will not have serious or irreversible impacts on biodiversity values, that the proposed development will improve the vegetation and habitat within the site, and that biodiversity credits will offset any residual impacts. Pursuant to s 7.13 of the BC Act, I have considered the likely impact of the proposed development on biodiversity values as assessed in the BDAR, supplemented by the AEP letter of 6 August 2025. The parties agree, and I am satisfied, that the applicable provisions of the BC Act and the BC Regulation have been satisfied, and that the agreed conditions of consent will meet the requirements of s 7.13(3) of the BC Act.

14. Chapter 3 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), which concerns koala habitat protection, applies to the site. The BDAR concludes that the site does not contain core koala habitat or potential koala habitat, and I am therefore satisfied that development consent can be granted in accordance with Pt 3.2 of the SEPP B&C.

15. Based on the BDAR, I am satisfied that the development will not significantly affect threatened species, populations or ecological communities, such that s 221ZZ(2) of the Fisheries Management Act 1994 (NSW) does not preclude the grant of development consent.

16. The proposed development could affect an overhead electricity power line, as a result of which s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 requires notification to the electricity supply authority and consideration of their response. Consistent with those requirements, Ausgrid was notified of the development application and provided a response on 7 March 2024. The conditions of consent advanced by Ausgrid have been incorporated into the conditions of consent, at condition 117.

17. Clause 6 of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021 (MHE Regulation) prevents the Council from approving the manufactured home estate unless it is satisfied that the manufactured home estate “will be designed, constructed, maintained and operated in accordance with Division 3”. I note that this clause does not apply to the assessment of a development application, and instead applies to an application for an approval to operate. Nevertheless, based on Annexure A to the Supplementary Statement of Environmental Effects dated 19 May 2025, the proposed development is capable of being constructed, maintained and operated in accordance with the matters in Division 3.

18. The development application was originally notified for a period of 21 days from 26 February 2024 to 18 March 2024, and, following amendment, was notified for 14 days between 28 May 2025 and 11 June 2025. A large number of written submissions were received in response to each period of notification. I have considered the issues raised in those submissions.

Integrated development

19. The proposal is integrated development pursuant to s 90 of the Water Management Act 2000 (NSW). The Department of Planning and Environment, Water, indicated that a controlled activity approval was not required for works within 40m of hydrolines, but a later referral concerning proposed culverts under Wyndella Road resulted in advice that the culvert works are required to adhere to the general terms of approval already issued in relation to another application. Those terms of approval are incorporated into the conditions, at condition 118.

20. The proposal is integrated development pursuant to s 100B(3) of the Rural Fires Act 1997 (NSW), and the NSW Rural Fire Service issued a Section 100B Bush Fire Safety Authority dated 8 April 2024, with updated general terms of approval issued on 1 June 2025. The general terms of approval issued by the NSW Rural Fire Service are required to be complied with, pursuant to conditions 115-116.

The final orders

21. Having reached the state of satisfaction that the decision is one that the Court could have made in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision”
    (s 34(3)(b)).

22. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

23. The Court notes:

1. Maitland City Council, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application DA/2024/116 in accordance with the documents listed below:

Drawing No.	Issue	Plan Title	Dated
Amended Architectural Plans prepared by BDA Architecture
4.1	K	Indicative Master Plan	20/08/2025
4.2	K	Staging Plan	20/08/2025
4.3	K	Estate Fencing Plan	20/08/2025
4.4	K	Dwelling Frontage Plan	20/08/2025
4.5	K	Movement Network	20/08/2025
4.7	K	Plan of Development Master Plan – West	20/08/2025
4.8	K	Plan of Development Master Plan – East	20/08/2025
4.9	K	Plan of Development – Detailed Plan	20/08/2025
4.10b	K	Walkability Plan – Footpaths	20/08/2025
4.18	K	Entry & East Visitor Carpark Dimensions	20/08/2025
4.19	K	Central Facilities Visitor Carpark Dimensions	20/08/2025
7.0d	K	External Wall Boundary Wall Colours	20/08/2025
8.1 & 8.2	K	Central Facilities – Colour and Materials	20/08/2025
8.3	K	Central Facilities – Site Plan	20/08/2025
8.4	K	Ground Floor – Central Facilities	20/08/2025
8.5	K	Roof Plan – Central Facilities	20/08/2025
8.6, 8.7, 8.8	K	Central Facilities – Elevations and Section	20/08/2025
4.20	K	Nominated Bus Parking Plan	20/08/2025
Amended Landscape Plans prepared by Terras Landscape Architects
L000	Y	Cover Sheet	13/08/2025
L010	Y	Site Plan	13/08/2025
L011	Y	On Country	13/08/2025
L012	Y	Local History	13/08/2025
L013	Y	Plant Communities	13/08/2025
L014	Y	Staging	13/08/2025
L015	Y	Predicted Growth Buffer Planting – 75L	13/08/2025
L016	Y	Street Tree Masterplan	13/08/2025
L101	Y	Landscape Plan	13/08/2025
L102	Y	Landscape Plan	13/08/2025
L103	Y	Typical Lot	13/08/2025
L104	Y	Community Facility	13/08/2025
L105	Y	Pool Area	13/08/2025
L106	Y	Pool Section	13/08/2025
L107	Y	Site Section A	13/08/2025
L108	Y	Site Section B	13/08/2025
L109	Y	Site Section C	13/08/2025
L110	Y	Canopy Cover	13/08/2025
L200	Y	Materials Palette	13/08/2025
L201	Y	Planting Palette	13/08/2025
L202	Y	Planting Palette	13/08/2025
Amended Civil Engineering Plans prepared by Wallace Design Group Pty Ltd
C01.01	G	Legend, Drawing Schedule and Location Plan	31/07/2025
C02.01	D	General Notes	01/05/2025
C03.01	F	Erosion and Sedimentation Control Plan	14/08/2025
C03.02	D	Erosion and Sedimentation Control Details	01/05/2025
C04.01	F	General Arrangement Plan	14/08/2025
C04.02	E	Bulk Earthworks Plans	14/08/2025
C04.03	F	Road Plan (1 of 3)	14/08/2025
C04.04	F	Road Plan (2 of 3)	14/08/2025
C04.05	F	Road Plan (3 of 3)	14/08/2025
C04.06	E	Road 1-8-2-3 Longitudinal Sections (1 of 5)	14/08/2025
C04.07	E	Road 1-8-2-3 Longitudinal Sections (2 of 5)	14/08/2025
C04.08	E	Road 1-8-2-3 Longitudinal Sections (3 of 5)	14/08/2025
C04.09	E	Road 1-8-2-3 Longitudinal Sections (4 of 5)	14/08/2025
C04.10	E	Road 1-8-2-3 Longitudinal Sections (5 of 5)	14/08/2025
C04.11	E	Road 4 and 5 Longitudinal Sections	14/08/2025
C04.12	E	Road 6 and 7 Longitudinal Sections	14/08/2025
C04.13	E	Visitor Parking ands Access Dr. Longitudinal Sections	14/08/2025
C05.01	F	Existing Stormwater Catchment Plan	14/08/2025
C05.02	G	Developed Stormwater Catchment Plan	14/08/2025
C05.03	G	Stormwater Management Plan (1 of 3)	14/08/2025
C05.04	G	Stormwater Management Plan (2 of 3)	14/08/2025
C05.05	G	Stormwater Management Plan (3 of 3)	14/08/2025
C06.01	D	Site Typical Road Sections	01/05/2025
C06.02	F	On-Site Detention Basin No.1	14/08/2025
C06.03	F	On-Site Detention Basin No.1 Typical Sections	14/08/2025
C06.04	F	On-Site Detention Tank No.s 2 & 3	14/08/2025
C06.05	F	On-Site Detention Tanks Typical Sections	14/08/2025
Amended Road Improvement for Wyndella Road prepared by Wallace Design Group Pty Ltd
C01.01	E	Legend, Drawing Schedule and Location Plan	14/08/2025
C02.01	C	General Notes	11/07/2025
C02.02	D	General Arrangement Plan	31/07/2025
C03.01	D	Erosion and Sedimentation Control Plan	14/08/2025
C03.02	B	Erosion and Sedimentation Control Details	05/05/2025
C04.01	E	Wyndella Road Detail Plan and Longitudinal Section	14/08/2025
C04.02	E	Wyndella Road Detail Plan and Longitudinal Section	14/08/2025
C04.03	D	Wyndella Road Cross-Sections (1 of 6)	14/08/2025
C04.04	D	Wyndella Road Cross-Sections (2 of 6)	14/08/2025
C04.05	D	Wyndella Road Cross-Sections (3 of 6)	14/08/2025
C04.06	D	Wyndella Road Cross-Sections (4 of 6)	14/08/2025
C04.07	D	Wyndella Road Cross-Sections (5 of 6)	14/08/2025
C04.08	D	Wyndella Road Cross-Sections (6 of 6)	14/08/2025
C04.09	C	Lot 223 and 224 Driveway Longitudinal Sections	14/08/2025
C05.01	D	Stormwater Catchment Plan	14/08/2025
C05.02	E	Stormwater Management Plan	14/08/2025
C05.03	D	Stormwater Longitudinal Sections	14/08/2025
C06.01	C	Typical Road Sections	11/07/2025
SK01	C	Road Improvements for Wyndella Road	29/07/2025

Reports

DA Stormwater Management Strategy Issue F dated 15 August 2025 prepared by WDG

Supplementary Bushfire Assessment Ref: 230960 dated 15 August 2025 prepared by Building Code & Bushfire Hazard Solutions Pty Ltd

Landowners Consent dated 1 August 2025 prepared by DB20 Pty Limited

Ecosystem Credit Advice Ref: 3482 prepared by Anderson Environmental Planning dated 6 August 2025

24. The above documents were filed on 21 August 2025.

Orders

25. The Court orders that:

1. The Applicant is to pay the Respondent’s costs as agreed or assessed pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

2. The appeal is upheld.

3. Development Application DA/2024/116 for demolition of existing structures and establishment of a manufactured home estate comprised of 176 dwelling sites, communal facilities and associated works at 34 Wyndella Road, Lochinvar, associated works within Wyndella Road and minor batter works into the frontage of 2 Wyndella Road, Lochinvar is determined by a grant of consent subject to conditions contained in Annexure A.

J Gray

Commissioner of the Court

**********

Annexure A (255 KB, pdf)

Decision last updated: 04 September 2025