Joint Venture Pty Ltd v Mid-Coast Council

[2021] NSWLEC 1138

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Joint Venture Pty Ltd v Mid-Coast Council [2021] NSWLEC 1138

Hearing dates:

2, 3, 4, 7 September, 12,13 October 2020, Written Submissions 24 November, 11 December 2020, 25 January, 3, 22 February 2021.

Date of orders:

17 March 2021

Decision date:

17 March 2021

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

1. The appeal is dismissed

2. Development Application No, DA99/2019 for development of Lot 3 DP 242332, 303 Blackhead Road Tallwoods, for the purpose of a manufactured home estate is refused

3. The exhibits are returned with the exception of Exhibits 2, D, P and K.

Catchwords:

DEVELOPMENT APPEAL – Manufactured Home Estate – Permissibility – Innominate use – Site contamination – Biodiversity Development Assessment Report – avoidance, mitigation and offsetting of impacts on flora and fauna – adequacy of biodiversity assessment – intensity of development – visual impact – reasonableness of impacts arising from the development – character – public interest – appeal dismissed – development refused.

Legislation Cited:

Biodiversity Conservation Act 2016, cll 6.3, 6.2, 6.12, 7.7, 6.23, 7.13, Part 6 Div 2

Environmental Planning and Assessment Act 1979, ss 8.9, 4.13, 3.28(1), 7.13, 4.16

Greater Taree Local Environmental Plan 2010

Local Government Act 1993, s 68

Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwelling) Regulation 2005, Part 2, cl 6

NSW Complying Development Code

Rural Fires Act 1997, s 100B

State Environmental Planning Policy 36: Manufactured Home Estates, cll 6, 9, Sch 2

State Environmental Planning Policy 44 (Koala Protection) 2019

State Environmental Planning Policy (Infrastructure) 2007, cl. 8(1), cl 111A

State Environmental Planning Policy (Koala Habitat Protection) 2020, Sch 1, cll 20, 8, 9, 10

State Environmental Planning Policy No 21—Caravan Parks

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

State Environmental Planning Policy (Seniors Living) 2004

State Environmental Planning Policy 44 (Koala Protection) 2019

Cases Cited:

Abret v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107

Argyopoulos v Canterbury Municipal Council (1988) 66 LGERA 202

Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2019] NSWLEC 1205

Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41

BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399

Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147

Camberlee Investments Pty Ltd v Shoalhaven City Council [2017] NSWLEC 1585

Denoci Pty Ltd v Liverpool City Council [2020] NSWLEC 102

Friends of Pryor Park Incorporated v Ryde Council [1995] NSWLEC 160

Gloucester Resources Limited v Minister for Planning (2019) 234 LGERA 257; [2019] NSWLEC 7

HP Subsidiary Pty Ltd v City of Parramatta [2020] NSWLEC 135

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Lizard Apple Pty Ltd v Inner West Council [2019] NSWLEC 1146

Parkes v Byron Shire Council (2003) 129 LGERA 156; [2003] NSWLEC 237

Pepperwood Ridge Pty Ltd v Newcastle City Council (2006) 145 LGERA 340; [2006] NSWCA 122

Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191

Shellharbour City Council v Minister for Planning (2012) 187 LGERA 427; [2012] NSWLEC 29

Site Plus Pty Ltd v Wollongong City Council [2014] NSWLEC 125

Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWCA 106

Wakefield Planning Pty Ltd v Yass Valley Council [2014] NSWLEC 1131

Warringah Shire Council v Punnett and Associates Pty Ltd (2001) 122 LGERA 1; [2001] NSWCA 480

Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88

Woollahra Municipal Council v SJD DB2 Pty Ltd [2020] NSWLEC 115

Zhiva Living Dural Pty Ltd v Hornsby Shire Council (2020) 242 LGERA 280; [2020] NSWCA 180

Texts Cited:

‘Managing Land Contamination: Planning Guidelines SEPP 55- Remediation of Land’, NSW Department of Urban Affairs and Planning & Environmental Protection Authority

Biodiversity Assessment Method Operational Manual 2017, NSW Department of Planning, Industry and Environment

Greater Taree Development Control Plan 2010

Macquarie Dictionary, 8th edition

Category:

Principal judgment

Parties:

Joint Venture Pty Ltd (Applicant)
Mid-Coast Council (Respondent)

Representation:

Counsel:
T Robertson SC (Applicant)
H Irish (Respondent)

Solicitors:
Long Legal (Applicant)
Local Government Legal (Respondent)

File Number(s):

2018/391717

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The Applicant, Joint Venture Pty Ltd, appeals to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) following the refusal of its development application (DA99/2019) by Mid-Coast Council. The development application seeks consent for the development of Lot 3 DP 242332, 303 Blackhead Road, Tallwoods for the purpose of a manufactured home estate (MHE) and ancillary buildings and works.

2. At the time of the hearing the development application had been amended, by leave of the Court, on a number of occasions. The amendments sought to address the Respondent’s contentions and the evidence of the various experts. During the course of the hearing the Applicant was further granted leave to amend their development to reduce the number of MHE sites, with a subsequent increase in the number of trees retained on the subject site.

3. The development for which consent is now sought by the Applicant in the proceedings is as follows:

• Demolition of existing dwelling;

• Clearing and stripping of the property and tree removal;

• Cut and fill and bulk earthworks (Exhibit D);

• Construction of 176 long term residential MHE sites;

• Site landscaping;

• Internal access roads;

• Car parking/ caravan storage;

• Community centre containing games room, library, theatre, dining area, office and lounge;

• Outdoor swimming pool;

• Bowling green;

• Water quality ponds;

• A men’s shed; and

• A manager’s residence.

4. The development is proposed to be undertaken in four stages:

Stage 1

(i) Site numbers 2 to 48 including (the) Community Centre, bowling green, pool, men’s shed and office/ mangers (sic) residence; and

(ii) Partially complete earthworks and construct water quality ponds;

(iii) Complete open space and perimeter landscaping prior to approval to operate Stage 2

Stage 2

(i) site numbers 51 to 103

(ii) complete water quality ponds

Stage 3

(i) site numbers 104-161

Stage 4

(i) site numbers 162-197.

5. I note that due to the amendments to the proposed development, including the deletion of sites, the site numbers do not run concurrently.

6. Notwithstanding the amendments to the development application, the Respondent maintains that the development warrants refusal on the following grounds:

1. Permissibility: The proposed development, as amended is on land that is partly within the RE1 – Public Recreation zone under the Greater Taree Local Environmental Plan 2010 (LEP 2010). The proposed development within the RE1 zoned land forms part of the MHE and is not permissible under LEP 2010 in that zone. Further, the development is contrary to cl 6 and Schedule 2 (6) of State Environmental Planning Policy No 36 –Manufactured Home Estates (SEPP 36);

2. Biodiversity Assessment: The Biodiversity Development Assessment Report (BDAR) does not comply with the requirements of the Biodiversity Conservation Act 2016 (BC Act);

3. SEPP 36: That having regard to the provisions of cl 9 (1)(b) and (c) and 9(2)(c) of SEPP 36, the Court would not be satisfied that the proposed development warrants approval;

4. Character: The proposed intensification of residential development is out of character with adjoining development;

5. Design: The design and layout of the MHE will result in a poor quality of urban setting for the future occupants;

6. Visual Impact: The proposed development will have an adverse visual impact on the adjoining and proximate properties who overlook the subject site;

7. Public Transport: The subject site is poorly serviced by public transport services;

8. Flora and Fauna Impacts: The proposed development will have an unacceptable impact on significant vegetation and wildlife habitat on the subject site, including that of threatened species;

9. Overdevelopment: The density of the proposed development is an overdevelopment of the subject site and will result in poor planning, social and environmental outcomes;

10. Future sports fields: The proposed utilisation of the RE 1 zoned land within the subject site for facilities, infrastructure and purposes associated with the MHE will frustrate the development of the proposed public recreation facilities to serve the community of Tallwoods;

11. Draft LEP: That Mid-Coast Council has a draft Local Environmental Plan (Greater Taree LEP 2010) which would (if made) have the effect of prohibiting the proposal. The Court should give weight to the draft LEP in the determination of the application;

12. Public Interest: That having regard to the matters raised by the significant number of objections that have been received in regard to the proposed development, the grant of consent would be contrary to the public interest.

Outcome of the Appeal

7. Having appreciated the site and its context at the view, listened and considered the submissions of the residents, the expert evidence, the submissions of the parties and undertaken an assessment of the application I am satisfied consent should be refused. My reasoning is contained in full later in the judgment, however in brief:

• I find that the proposed development is permissible with consent in both the R1 General Residential Zone and the RE1 Public Recreation zone;

• I find the remaining preconditions contained in the various applicable planning instruments are met;

• However, I find that I cannot be satisfied, on the basis of the information before the Court, firstly whether the land of the subject site is actually contaminated and secondly if it is contaminated whether the land is either suitable for the proposed use in that state or able to be (and will be) made suitable prior to the commencement of the use: cl 7 of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55). As this precondition is not met, the Court has no power to approve the development;

• I am satisfied that the land is not core koala habitat within the meaning of State Environmental Planning Policy (Koala Habitat Protection) 2020;

• I find that the Biodiversity Development Assessment Report meets the requirements of the BC Act; and

• Finally, that on merit, I find that the cumulative likely impacts of the development are unacceptable and warrant the refusal of the application even if the precondition regarding contamination was satisfied.

8. As a result of these findings, the outcome of the proceedings is that the appeal is dismissed, and the development application is refused.

Site

9. The subject site is generally rectangular with frontage to Blackhead Road at its southern boundary and Coastal View Drive for a portion of its northern boundary. The site has an area of 10.12 hectares and the slope of the land varies from 4.5% to 17.5%, but generally falls from the north towards the south with a low-lying area at the south-western corner of the site.

10. The subject site is mapped as bushfire prone land. The subject site is generally cleared with stands of trees interspersed throughout the site. Some stands, and individual trees are visually prominent from both within and external to the subject site.

11. The existing dwelling and improvements on the subject site are proposed to be demolished. The site has been previously utilised for small scale rural/ residential purposes. (Exhibit P)

12. The subject site contains a patch of the Swamp Oak Floodplain endangered ecological community (EEC) in the southwest corner of the land.

Locality

13. The subject site is located at the southern edge of the Tallwoods residential area and it adjoins residential properties along Coastal View Drive and The Bridle Path. On the southern side of Blackhead Road are large rural allotments. One of these allotments is under development as a caravan park.

14. The Statement of Facts and Contentions describes the locality as follows:

“Surrounding land in the locality is comprised of: -

i) Small residential properties with single dwellings and vacant residential lots. Due to the topography of Tallwoods residential area, residential lots are generally larger than the minimum lot size;

ii) Private recreation on land known as Tallwoods Championship Golf Course.

iii) Lands zoned RE-1-Public Recreation for future sport fields (in conjunction with the RE-1 land within the subject site) and

iv) Lands zoned RE-2-Private Recreation containing a former sales office (now a gymnasium and medical centre) and parking area.”

(Exhibit 2)

15. A number of sites in proximity have approval for redevelopment. The following is a reduced copy of Figure 2.5 of the Updated Biodiversity Development Assessment Report (‘BDAR’) (Exhibit K) which identifies the form of these approved developments:

Public Submissions

16. In determining the development application, the Court is to take into consideration any submissions made. The submissions received by Mid Coast Council since the lodgement of the development application were tendered in the proceedings as part of the Respondent’s evidence. I have read and considered those submissions.

17. The development application, in its original form was notified in accordance with the provisions of Greater Taree Development Control Plan 2010 (DCP 2010) in 2018. The notification period resulted in 112 submissions. These submissions are included in the evidence before the Court. These objections can be summarised as follows:

• The zoning for the subject site does not allow for MHE’s;

• The proposed development is and overdevelopment and excessive in density;

• The form of proposed development is out of character with the area;

• The proposed development will increase traffic, traffic congestion and provides inadequate parking;

• There is insufficient public transport in the locality to support the development;

• Tallwoods already has adequate affordable housing. There is no demonstrated need for the development;

• The proposed development is not in the public interest;

• The requirements of SEPP 36 are not met by the development;

• The density of the development is not in accordance with the earlier Voluntary Planning Agreement (VPA);

• The area has inadequate medical facilities to service the proposed development;

• The proposed development will:

- have social impacts;

- have inappropriate visual impacts;

- impact on wildlife;

- create noise impacts for the Tallwoods Village;

- destroy the amenity of the area;

- negatively affect water and sewer infrastructure;

- set a negative precedent for the area;

- increase the velocity of stormwater which flows into the adjacent creek and wetland; and

- reduce the tourism appeal of the area.

• The proposed development has inadequate bushfire protection measures and emergency management measures;

• The proposed development is a “retirement village by stealth”.

18. On 5 February 2020 the Applicant was granted leave by the Court to amend their development application. These amended plans were notified in accordance with DCP 2010. This period of notification resulted in 42 submissions. These submissions are included in the evidence before the Court. Many of the issues raised mirror those summarised at paragraph [17]. The additional concerns raised by the objections can be summarised as follows:

• The amendments are insufficient to address the concerns of the community.

• The staging of the development will result in the site being a construction zone for ten years.

• The existing public infrastructure in the locality is ‘struggling to keep pace’ and does not have capacity for this development.

• The MFE will degrade the quality and prestige of the area.

• The proposal does not make adequate provision for Koala movement.

• Having witnessed the 2019/2020 bushfire season the density and close spacing of the dwellings, the limited fire protection proposed and the limited routes for evacuation make the development a potential disaster.

• Having a bowling green in the community will take away from the community facility at Hallidays Point.

• A standard residential subdivision should be pursued.

• The residents of the MFE will, unfairly, not pay their proportion of the Council rate burden.

• That the developers of the MFE are not bound by the building/design code that covers Tallwoods Village. The objector argues that this will impact on the overall quality and presentation of the existing village and its relative prestige.

• There has been no assessment of construction noise and its impact on adjoining residents.

• The development will result in a 40% increase in population in Tallwoods Village over a small footprint.

• The layout of the development fails to retain adequate significant trees.

• The applicant’s reliance on MHE’s being an innominate use in the R1 General Residential zone should not be accepted.

• The feasibility, and development potential, of the redevelopment of 323 Blackhead Rd (adjacent property to the east of the subject site) would be detrimentally affected by the approval of the proposed development. This is because the design of the development of 323 Blackhead Rd, and the VPA, was done in concert with the subject site. The development of the two sites rely on a common road network. The submission argues that the owner of 323 Backhead Road would be financially impacted by the approval of the subject development application.

19. On 31 July 2020 the Applicant was granted leave by the Court to amend their development application. These amended plans were notified in accordance with DCP 2010. This period of notification resulted in 8 submissions. These submissions are included in the evidence before the Court. These further objections can be summarised as follows:

• The amendments to the development do not address the concerns raised by the community in their earlier submissions.

• The cumulative effect of this development, along with the approved development and those in construction is unwanted by the community.

• Approval of the development, in the proposed location, would ‘grossly disrespect the commitment, investment and pride shown by the existing Tallwoods Village residents in the appearance of their homes and the Tallwoods Village environment’. (Exhibit 3)

20. During the hearing provision was made for a number of objectors to address the Court directly and give evidence of their concerns in relation to the proposed development. A collation of their written notes was tendered by the Respondent as Exhibit 1. These objections emphasised many of the submissions summarised in the proceeding. In addition, the following objections were made:

• That if the subject site was approved as a conventional subdivision of approximately 80 lots the income to Mid Coast Council arising from the development would be substantially more (developer contributions and rates) than that which will follow an approval of the site for an MFE.

• That the proposal provides a deficiency in parking, which will result in parking demand overflowing into the adjacent streets.

• That there is no demand for the development. The residents opined that there are currently 526 MFE sites approved within proximity of the subject site. An additional 184 sites on the subject site would result in 710 sites in total. The residents argue that there is no demand for further MFE development.

• That despite over four years of resident’s objection to the development of the site as an MFE, the Applicant has not sought to consult with, or respond to, the concerns of the residents.

• That the community’s concerns cannot be addressed by minor changes or ‘tweaks’ to the development. The site is unsuitable for the development proposed and will negatively impact on the character of the area.

• The Applicant’s innominate use interpretation of LEP 2010 is incorrect, the development is prohibited in the R1 General Residential zone.

• There is a heightened risk of COVID-19 in a densely populated environment such as an MHE.

• That the draft Local Environmental Plan: Greater Taree LEP 2010, which makes MHE prohibited, represents the strategic intent of the Council and the community and should be given significant weight by the Court.

Is the development prohibited?

21. The first contention pressed by the Council is jurisdictional. The Council asserts that the proposed development is prohibited.

22. The development is proposed over land that is zoned part R1 General Residential and part RE1 – Public recreation under LEP 2010:

(extract of Map LZN_016A, subject site circled)

23. The Respondent argues that each zone raises issues of permissibility for the development. I note that the permissibility of the development in the R1 General Residential Zone land is also a concern expressed by many resident submissions.

Permissibility of the development in the land zoned RE1 Public Recreation

24. The zoning table for the RE1 -Public Recreation zone is as follows:

2   Permitted without consent

Environmental protection works; Extensive agriculture; Flood mitigation works

3   Permitted with consent

Biosolids treatment facilities; Boat building and repair facilities; Boat launching ramps; Boat sheds; Building identification signs; Camping grounds; Car parks; Caravan parks; Cemeteries; Charter and tourism boating facilities; Child care centres; Community facilities; Crematoria; Depots; Eco-tourist facilities; Educational establishments; Electricity generating works; Emergency services facilities; Entertainment facilities; Environmental facilities; Extractive industries; Helipads; Information and education facilities; Jetties; Kiosks; Marinas; Markets; Mooring pens; Passenger transport facilities; Public administration buildings; Recreation areas; Recreation facilities (indoor); Recreation facilities (major); Recreation facilities (outdoor); Research stations; Respite day care centres; Restaurants or cafes; Roads; Sewage treatment plants; Waste or resource management facilities; Water recreation structures; Water recycling facilities; Water supply systems; Wharf or boating facilities

4   Prohibited

Any development not specified in item 2 or 3

25. In this form the zoning table provides that any nominate uses, not listed under 2 or 3, are prohibited. The RE1 -Public Recreation zoning table has the effect of prohibiting innominate uses.

26. The particulars of the Respondent’s contention state that the part of the proposed development located within the RE1-Public Recreation zone is prohibited under LEP 2010 as it forms part of the MHE which is not a permissible use under the land use table. The contention further argues that the use of the RE1 -Public Recreation zone land for the purposes of a MHE is inconsistent with the objectives of the RE1 Public Recreation zone.

27. The Respondent argues that the following components of the proposed development with the RE1 -Public Recreation zone land, being infrastructure directly associated with the proposed MHE, are prohibited development:

• An asset protection zone (APZ) for the purpose of the Community Centre;

• Part of Roads No.2, 6, 7 and 8;

• Outdoor bowling green;

• Men’s shed;

• Twenty-two (22) parking spaces; and

• Five Water Quality Detention Basins and related infrastructure associated with stormwater management of the whole manufactured home estate.

(Respondent’s written submissions 10 December 2020)

28. The Respondent argues that the community amenities, roads, car parking spaces and Water Quality Detention Basins and related infrastructure associated with the proposed manufactured home estate are required to be wholly located within the part of the subject site zoned R1-General Residential to be permissible. On this basis the Respondent argues the development is prohibited and cannot be granted consent by the Court.

29. In the Applicant’s written submissions Mr Robertson argues that the development proposed on the RE1 -Public Recreation zone land relies on three sources of power. Firstly, that the development is permissible under LEP 2010; secondly, that the stormwater ponds are permissible under State Environmental Planning Policy (Infrastructure) 2007 (ISEPP) and finally that the totality of the development is permissible under SEPP 36.

30. Mr Robertson’s arguments on the first ground are as follows: ‘… the land use table for the RE1- Public Recreation zone in LEP 2010 permits with consent car parks, roads, recreation facilities (indoor) and (outdoor) and environmental facilities, and environmental protection works without consent.’ He argues that the works within the RE1 - Public Recreation zone for which consent is sought can be defined as the following uses under LEP 2010:

• Car parking spaces adjacent Road 2 – ‘car parks’;

• Road 2, part Road 6, part Road 7, Part Road 8 – ‘roads’;

• Bowling Green – ‘recreation facility (outdoor)’;

• Men’s Shed – ‘recreation facility (indoor)’;

• Water quality basins – ‘environmental facilities’; and

• Rehabilitation works in the south – west corner of the site – ‘environmental protection works’.

(Applicants Written Submissions dated 28 August 2020).

31. Mr Robertson provides the following additional explanation of the source of permissibility for the Men’s shed use:

“Both the bowling green and the men’s shed are typical examples of recreational activities that are permissible in an RE1 [Public Recreation] zone. There is nothing in the land use table (putting aside the objectives, which are irrelevant to the question of permissibility) that suggests that these activities must be ‘public’ or ‘community’. They may be, but neither is a condition for permissibility. A recreation facility (indoor) is defined to mean, relevantly:

‘A building or place used predominately for indoor recreation, whether or not operated for the purpose of gain, …’

There follows a list of inclusive but not exhaustive examples, largely of a sporting kind. However, the exhaustive part of the definition describes the use ‘predominately for indoor recreation’. This kind of definition is not constrained by the types of recreation; [citations omitted], and hence is not restricted to sporting type uses. Recreation may be a pastime, a diversion or other resource affording relaxation and enjoyment: Macquarie Dictionary, meaning 2; [citations omitted]. “Men’s shed” is defined in the Macquarie Dictionary as:

“A place in which men can congregate, usually to engage in community activities involving skills which traditionally men had acquired, such as woodwork, metal work, repairs and restoration”.

These activities are pastimes or diversions affording relaxation and enjoyment, and the men’s shed is therefore permissible in the RE1 [Public Recreation] zone.”

(Applicants Written Submissions dated 28 August 2020)

32. The RE1 -Public Recreation zoning table is formatted in such a way that uses not contained in the categories of ‘permitted without consent’ and ‘permitted with consent’ form innominate prohibited uses. It is Mr Robertson’s submission that as each of these uses are permissible with consent in the zone, they cannot be prohibited: Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 at [50] (Botany v Pet Carriers). He also relies on the reasoning of the Court in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 at [66] (Ballina v Palm Lakes).

33. In addition to the preceding, Mr Robertson argues that the water quality basins (sediment ponds and detention basins) are permissible pursuant to cl 111A of ISEPP. That provision states: ‘Development for the purpose of a stormwater management system may be carried out by any person with consent on any land’. A stormwater management system is defined by ISEPP as:

stormwater management system means—

(a) works for the collection, detention, harvesting, distribution or discharge of stormwater (such as channels, aqueducts, pipes, drainage works, embankments, detention basins and pumping stations), and

(b) stormwater quality control systems (such as waste entrapment facilities, artificial wetlands, sediment ponds and riparian management), and

(c) stormwater reuse schemes.

34. Mr Robertson submits that the water quality basins proposed in the RE1- Public Recreation zone are therefore permissible as they fall within the definition of stormwater management system, which pursuant to cl 111A of ISEPP, are works permissible in any zone. He notes that as a result of cl 8(1) of ISEPP, and cl 1.9(1) of LEP 2010, the provisions of ISEPP override the provisions of LEP 2010.

35. The third and final source of permissibility proposed by Mr Robertson for the development as a whole is SEPP 36.

36. Clause 6 is the operative provision of SEPP 36. It provides that:

6   Where development for the purposes of a manufactured home estate may be carried out

Development for the purposes of a manufactured home estate may be carried out pursuant to this Policy on any land on which development for the purposes of a caravan park may be carried out, except—

(a)  land within one or more of the categories described in Schedule 2, or

(b)  land dedicated or reserved under the National Parks and Wildlife Act 1974, or

(c)  land within a Crown reserve.

37. Clause 6 operates to make MFE’s permissible on any land where caravan parks are permissible. In the subject proceedings ‘Caravan Parks’ are a permissible use in the RE1 Public recreation zone under LEP 2010. Therefore, on the Applicant’s submission the use of the RE1 Public recreation zoned land for a MFE is permissible. However, the Respondent argues that cl 6(a) of SEPP 36 applies to exclude the subject site. Mr Robertson disagrees with Council’s contention that the RE1- Public Recreation zone land is excluded by SEPP 36.

38. Schedule 2 (6) of SEPP 36 states:

6   Land which under any environmental planning instrument is within an area or zone identified in that instrument by the description—

•  open space, other than open space (private recreation)

•  environmental protection

•  scenic protection

•  rural (where the land is not adjacent to or adjoining land zoned for urban use).

39. It is Mr Robertson’s submission that neither: ‘open space’; ‘environmental protection’; ‘scenic protection’; or ‘rural’ are descriptors used in the RE1- Public Recreation zone. Further, he notes that, unlike the list at 2 (5) in Schedule 2, the descriptor does not include the language ‘words which are cognate with or a description consistent with any one or more of the following’. He submits that this distinction shows that the drafting of the clauses in Schedule 2 of SEPP 36 was intentionally different.

40. Citing Shellharbour City Council v Minister for Planning (2012) 187 LGERA 427; [2012] NSWLEC 29 at [35], [42], [71] and Warringah Shire Council v Punnett and Associates Pty Ltd (2001) 122 LGERA 1; [2001] NSWCA 480 at [31] Mr Robertson concludes that in the current case:

“(a) The precise terms (“open space, other than open space (private recreation)”) are nowhere to be found; and

(b) the objective does not describe the land but states an objective for its future use: “to enable land to be used”, it therefore lacks descriptive force: Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2019] NSWLEC 1205 at [70]; Pepperwood Ridge Pty Ltd v Newcastle City Council (2006) 145 LGERA 340 at [40]-[42].

41. Mr Robertson argues that for these contextual and textual reasons the list at 2(6) should not be interpreted expansively to include the RE1- Public Recreation zone, thereby the subject site is not excluded from the operation of SEPP 36.

42. In the alternative, Ms Irish for the Respondent, submits that to determine the permissibility of these works, it is necessary to characterise the use, by reference to its purpose: Site Plus Pty Ltd v Wollongong City Council [2014] NSWLEC 125 at [59]. She argues that the decision in Botany v Pet Carriers does not remove this obligation.

43. In Ms Irish’s submission ‘(i)t is only if, having regard to the character, extent and other features of the Applicant’s proposed development, it can then be characterised as being for ‘car parks, roads, recreation facilities (indoor) and (outdoor) and environmental facilities’, that it is not for a purpose “other than” development included in item 3.’ (Respondents written submissions 10 December 2020)

44. Applying this approach to the component of the development on the RE1- Public Recreation zoned land, Ms Irish concludes that the following elements of the development (listed at [27]) serve the same purpose for which the whole site is being used: the MHE. Specifically:

• Road Nos. 2,6,7 and 8 are on both sides of the zone boundary but serve the same purpose, and the car parking spaces are for that purpose (the MHE).

• The bowling green and men’s shed are facilities required to be provided by the LG Regulation. They are an integral part of the MHE.

• The south west corner of the site is being rehabilitated for the purpose the provision of recreational areas within the MHE, along with the bowling green and men’s shed.

• That the community facilities are not intended for general public usage, and in fact access is to be controlled through the POM and signage indicating access is restricted and available only to village residents.

• That the water quality basins and related infrastructure are identified in the Applicant’s Water Sensitive Design Strategy as ‘for a proposed manufactured home estate’ encompassing the whole 10.12ha of the subject site.

(Respondents written submissions 10 December 2020)

45. Ms Irish submits that the activities on the RE1-Public Recreation zoned land are not proposed to be carried out regardless of the development of the remaining works on the R1 General Residential zoned, or independent of them. Rather, she argues, the subject site has the single use of an MHE, straddling the two zones. On this reasoning Ms Irish concludes that the use of the RE1- Public Recreation is a subset of the broader use of the subject site for an MHE. As an MHE is an innominate prohibited use in the RE1- Public Recreation zone, the works proposed on the RE1 Public Recreation zoned land, are prohibited. On this reasoning Ms Irish concludes that the works in the RE1 Public Recreation zoned land are not permissible under LEP 2010 and the Applicant’s first source of power fails.

46. Further, Ms Irish submits that the precedent relied on by the Applicant in Argyopoulos v Canterbury Municipal Council (1988) 66 LGERA 202 (Argyropoulos v Canterbury Council), cited in Ballina v Palm Lakes, is distinguished from the current application on the facts of the case and on the basis that the works on the RE1-Public Recreation zone land are not a ‘mere accessway that can be characterised as being for the nominate permissible purpose of a road..’. (Respondents written submissions 10 December 2020)

47. In response to the Applicant’s argument that the water quality basins are works on the RE1-Public Recreation zoned land that are permissible under the provisions of ISEPP, Ms Irish submits that ISEPP does not ‘override’ other environmental planning instruments. She references cl 8(1) of ISEPP, namely:

8   Relationship to other environmental planning instruments

Note—

This clause is subject to section 3.28(4) of the Act.

(1)  Except as provided by subclause (2), if there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.

Note—

Subclause (1) does not prevent a local environmental plan from making provision about development of a kind specified in Part 3 in a particular zone if the provisions of this Policy dealing with development of that kind do not apply in that zone.

(2)  Except as provided by subclauses (3) and (4), if there is an inconsistency between a provision of this Policy and any of the following provisions of another environmental planning instrument, the provision of the other instrument prevails to the extent of the inconsistency—

(a)  clauses 10, 11 and 19 of State Environmental Planning Policy (Coastal Management) 2018,

(b)  all of the provisions of State Environmental Planning Policy (State Significant Precincts) 2005.

48. It is Ms Irish’s submission that: firstly, an inconsistency between LEP 2010 and ISEPP is required; and secondly that ISEPP would only prevail for the extent of the inconsistency. She concludes that the Applicant has not established such an inconsistency and that the Applicant’s second source of power fails.

49. In relation to the Applicant’s third source of permissibility, the Respondent argues that the RE1-Public Recreation zone land is excluded from land where development for the purposes of an MHE may be carried out pursuant to SEPP 36. The Council argues that the effect of cl 6 of SEPP 36, and Schedule 2 – Categories of Excluded Land, is that the proposed location of facilities associated with and for the use of residents of the MHE are specifically excluded from operation of SEPP 36.

50. Ms Irish’s arguments in relation to the application of SEPP 36 can be summarised as follows:

1. That SEPP 36 does not apply to the RE1-Public Recreation land by effect of Schedule 2, which at (6) excludes (emphasis added):

Land which under any environmental planning instrument is within an area or zone identified in that instrument by the description—

• open space, other than open space (private recreation)

• environmental protection

• scenic protection

• rural (where the land is not adjacent to or adjoining land zoned for urban use).

2. That applying Warringah Shire Council v Punnett and Associates Pty Ltd (2001) 122 LGERA 1; [2001] NSWCA 480 at [26], the words ‘within an area or zone’ in the chapeau should be interpreted more broadly than just the title of the relevant zone.

Secondly, in the first dot point exclusion ‘open space, other than open space (private recreation)’ the words ‘other than’ have the effect of meaning ‘unless’. Therefore the exclusion has the clear meaning: ‘land which is within an area or zone identified under any environmental planning instrument by the description “open space, other than (private recreation)” will not be excluded, and development for the purposes of a manufactured home estate may be carried out on such land under SEPP 36 if it is also land on which development for the purposes of a caravan park can be carried out.’ (Respondents written submissions 10 December 2020)

As it does not have a descriptor of private recreation, applying a purposive construction, the RE1- Public Recreation zoned land is caught by the exclusion in Schedule 2 (6) of SEPP 36.

3. That when lodged the development application was not made pursuant to SEPP 36.

4. SEPP 36 does not override any prohibition in LEP 2010 in circumstances where:

1. SEPP 36 expressly excludes its operation by effect of Schedule 2 (6).

2. If applicability of the instrument to the proposed development is found elsewhere in SEPP 36, then cl 4(1) provides that SEPP 36 prevails, only to the extent of the inconsistency between the instruments.

51. Ms Irish disagrees with Mr Robertson’s submissions that for the exclusion to apply the exact phrase ‘open space’ must be found in the zone descriptor in LEP 2010.

52. Further, Ms Irish argues the current proceedings are distinguished from the cases relied on by Mr Robertson as follows:

1. Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2019] NSWLEC 1205: the identification function required in that case was completed by reference to the Terrestrial Biodiversity Map referred to in cl 6.3(2) of the Ku ring gai LEP 2015. Operating as an exclusion, cl 6.3(2) identifies land as ‘Biodiversity’ and does not contain and like descriptors, for example ‘conservation’ or ‘environmental protection’.

1. Pepperwood Ridge Pty Ltd v Newcastle City Council (2006) 145 LGERA 340; [2006] NSWCA 122 is distinguished because the relevant objectives in that matter, in particular objective (b) to the 7 (c) Environmental Investigation Zone, were found not to have been framed in such a way as to be caught by the exclusion at (e) of Schedule 1 of State Environmental Planning Policy (Seniors Living) 2004.

2. Shellharbour City Council v Minister for Planning (2012) 187 LGERA 427; [2012] NSWLEC 29: in this matter the relevant task was to find ‘land identified in an environmental planning instrument as being of … high biodiversity significance’. In contrast in the current matter it is sufficient if land is identified by a description. ‘Item 6 of schedule 2 does not require that land be ‘identified’ in the planning instrument as possessing the quality to which the term refers, or ‘being of’ the requisite quality’. (Respondents written submissions 10 December 2020)

53. Finally, Ms Irish submits that whilst the word ‘identified’ is used in both items 5 and 6 of Schedule 2 to SEPP 36, the mere repetition of the word is not determinative of the proper construction of item 6. She argues that the diversity of sources (both environmental planning instruments, and planning strategies) to which item 5 directs attention correlates with the fact that the chapeau incorporates like terms or descriptors as the task is more wide ranging. In contrast the four matters listed at item 6 are descriptive of an area or zone, a narrower enquiry.

54. In conclusion Ms Irish submits that the Court would find that the part of the proposed development on the RE1 Public Recreation is not permissible and that the community facilities, roads, car parking spaces, water quality basins ought to be wholly contained on the R1 General Residential zoned land. (Respondents written submissions 10 December 2020)

Findings

55. The task of correctly categorising the purpose, or purposes, of a particular use or development application is a threshold question in determining whether a particular development application is capable of lawful determination. If the Court accepts the submission of the Respondent, that the proposed uses listed at [27] are prohibited, the current development application is an ineffective application and the Court would have no power to approve the development sought (s 4.13 of the EPA Act).

56. In addition to the cases referenced by the parties, Friends of Pryor Park Incorporated v Ryde Council [1995] NSWLEC 160 (‘Friends of Pryor Park’) is relevant. The approach outlined in Friends of Pryor Park is that once a determination of permissibility is made by categorising a purpose, the fact that it may also fall within another purpose is legally irrelevant. The relevant passage of the decision is extracted below (at page 5):

“The respondent’s competing argument is that, where as in the present case, the proposed development falls within the permissible purpose of community facilities, development consent may be legally granted to the proposed development of that purpose and the fact that the development also falls within another purpose, namely childcare centre, is legally irrelevant to the validity of the development consent granted for the permissible purpose.

…

In my judgement the Respondent’s argument is correct and is clearly to be preferred to the Applicant’s competing argument.”

57. The decision of Preston CJ in Pet Carriers at [32] adopts this approach and states:

“In this situation, the question of characterisation is to be answered by reference to the particular terms of the environmental planning instrument and the land use table for the zone in which the development is to be carried out. The inquiry is whether the development can be characterised as being for a purpose that the instrument identifies as being permissible with consent and not for a purpose that the instrument identifies as being permissible without consent or as being prohibited. The focus of this inquiry is whether the development is within a nominate or innominate purpose, the terms of which are specified in the instrument. It is not to determine, at large, the category of purpose into which the development should be seen as falling and to formulate a description of that category. The latter task may be required when determining whether a development is an existing use under the EPA Act: see C B Investments Pty Ltd v Colo Shire Council at 280. But it is not the task to be undertaken when determining whether development is for a purpose that may be carried out with consent.”

58. Further in Ballina v Palm Lake Preston CJ states at [66]:

“66 I find that the Council has not established that the Commissioner erred in characterising the access way as being a road in either of the two ways alleged. The Commissioner’s approach to determine first whether the access way could be characterised as being for the nominate permissible development of road (a development specified in item 3 of the land use table for the RU2 Zone) was correct. If the accessway could be characterised as being for the nominate permissible development of road, it would be permissible, irrespective of whether it could also be characterised as being a seniors housing development.”

59. I have adopted the approach detailed in the preceding judgments in these proceedings.

60. The definition of ‘road’ in LEP 2010 is: ‘road means a public road or a private road within the meaning of the Roads Act 1993, and includes a classified road’.

61. Consistent with the decision of the Court in Argyropoulos v Canterbury Council and Ballina v Palm Lake at [58] – [68] I am satisfied that the extent of Road 2, 6, 7, and 8 contained with the land zoned RE1 Public Recreation are characterised as being for the purpose of ‘roads’, a nominate permissible use in the zone under LEP 2010.

62. On the same reasoning, I adopt Mr Robertson’s submissions at [29] that the car parking adjacent Road 2 is characterised as being for the permissible purpose of ‘car parks’, a nominate permissible use in the RE 1 Public Recreation zone under LEP 2010.

63. I am satisfied that the rehabilitation works proposed in the south west corner of the site are for the purpose of rehabilitation of that land and fall within the definition of environmental protection works contained in LEP 2010. That definition is:

environmental protection works means works associated with the rehabilitation of land towards its natural state or any work to protect land from environmental degradation, and includes bush regeneration works, wetland protection works, erosion protection works, dune restoration works and the like, but does not include coastal protection works.

64. I find the rehabilitation works proposed on the RE1 Public Recreation land are characterised as being for the purpose of ‘environmental protection works’, a nominate use, permitted without consent, in the RE 1 Public Recreation zone under LEP 2010.

65. Further, by reference to the Vegetation Management Plan (VMP) (Exhibit L), I am satisfied that the section of land proposed to be managed as an Inner Protection Area (IPA) adjacent road 2 is for the purpose of rehabilitation and protection of that land. Figure 2.1 of the VMP nominates this area as: Wildlife Corridor and Vegetation Rehabilitation Area. I am satisfied these works are characterised as being for the purpose of ‘environmental protection works’, a nominate use, permitted without consent, in the RE 1 Public Recreation zone under LEP 2010.

66. I accept Mr Robertson’s submission that both the bowling green and men’s shed are examples of uses for the purpose of recreation facility. In interpreting the definition of recreation facility outdoor I note it states that it ‘means a place used for predominately for outdoor recreation’ after which the definition provides a list of examples that are illustrative of that use, but not exhaustive (illustrated by the use of the words ‘or any other building or place of a like character used for outdoor recreation’ in the definition): Parkes v Byron Shire Council (2003) 129 LGERA 156 [2003] NSWLEC 237 at [11]. Given the form of the definition I am satisfied that a bowling green is a place used predominately for outdoor recreation and is of a character consistent with the examples provided within the definition (in particular ‘lawn bowling green’). I find that the bowling green proposed on the RE1 Public Recreation land is characterised as being for the permissible purpose of ‘recreation facility (outdoor)’, a nominate permissible use in the RE 1 Public Recreation zone under LEP 2010.

67. On the same reasoning, I am satisfied that the men’s shed is a building or place of a like character to the illustrative list of uses contained in the definition of ‘recreation facility (indoor)’ under LEP 2010. That definition is as follows:

recreation facility (indoor) means a building or place used predominantly for indoor recreation, whether or not operated for the purposes of gain, including a squash court, indoor swimming pool, gymnasium, table tennis centre, health studio, bowling alley, ice rink or any other building or place of a like character used for indoor recreation, but does not include an entertainment facility, a recreation facility (major) or a registered club.

68. I am satisfied that the phase ‘of a like character’ has its ordinary meaning; being things which are similar.  I adopt Mr Robertson’s submissions at [30] that the men’s shed is a form of indoor recreational activity of a similar character to those listed in the definition. I find that men’s shed is characterised as being for the permissible purpose of ‘recreation facility (indoor)’, a nominate permissible use in the zone under LEP 2010.

69. However, I do not accept Mr Robertson’s submission that the Water quality detention basins proposed in the RE1 Public Recreation land fall within the definition of Environmental Facility under LEP 2010 or are for that purpose. Environmental Facility is defined in LEP 2010 as follows:

environmental facility means a building or place that provides for the recreational use or scientific study of natural systems, and includes walking tracks, seating, shelters, board walks, observation decks, bird hides or the like, and associated display structures.

70. I am not persuaded that the five water quality basins proposed to be constructed on the RE1 Public Recreation Land are for the purpose of providing for the recreational use or scientific study of natural systems. Rather, as described in the Water Sensitive Design Strategy reports (Exhibit J and V), they are required to address changes to stormwater quantity and quality from the development of the proposed MHE. The objective of these water quality basins is nominated in these reports as:

“The objective for water quality adopted is:

- Post development loads of Gross Pollutants are to be reduced to 90% and TSS, TN and TP are to be reduced to less than or equal to pre-developed pollutant loads (ie. Neutral or beneficial effect on water quality)

Additionally, the objectives for water quantity are:

- Attenuate post development peak discharges to maintain existing flows for all storm events up to and including the 100 year ARI rainfall event.”

(Exhibit J)

71. Given this finding it is necessary to consider the submissions of the Applicant that the water quality basins are permissible pursuant to cl 111A of ISEPP. Relevantly, cl 8(1) of ISEPP provides:

8   Relationship to other environmental planning instruments

(1)  Except as provided by subclause (2), if there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.

Note—

Subclause (1) does not prevent a local environmental plan from making provision about development of a kind specified in Part 3 in a particular zone if the provisions of this Policy dealing with development of that kind do not apply in that zone.

72. The EPA Act, at s 3.28(1), provides that:

3.28   Inconsistency between instruments

(cf previous s 36)

(1)  In the event of an inconsistency between environmental planning instruments and unless otherwise provided—

(a)  there is a general presumption that a State environmental planning policy prevails over a local environmental plan or other instrument made before or after that State environmental planning policy, and

(b) (Repealed)

(c)  the general presumptions of the law as to when an Act prevails over another Act apply to when one kind of environmental planning instrument prevails over another environmental planning instrument of the same kind.

73. I note that Mr Robertson asserts that ISEPP overrides the provisions of LEP 2010 ‘to the extent of any inconsistency’. As noted in Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWCA 106 at [6] it is important to identify with precision the nature and scope of any inconsistency between environmental planning instruments.

74. In this matter I am satisfied that there is inconsistency between the provisions of LEP 2010 and ISEPP on the following reasoning:

1. As a result of the zoning table for the RE1 Public Recreation Zone work for the purpose of stormwater management systems (an innominate use) is prohibited as it is a use or purpose not nominated under ‘Permitted without consent’ nor ‘permitted with consent’.

2. A stormwater management system is permissible under ISEPP: cl 111A.

3. Therefore, under LEP 2010 the works are prohibited, but are permissible under ISEPP: the instruments are inconsistent.

75. Applying cl 8(1) of ISEPP, its provisions prevail over LEP 2010 to the extent of the inconsistency. As such I am satisfied that the water quality basins are for the purpose of a stormwater management system and are permissible with consent pursuant to cl 111A of ISEPP.

76. In conclusion I find that the works proposed by the Applicant, on the portion of the subject land which is zoned RE 1 Public Recreation, are permissible and capable of approval, subject to assessment under s 4.15 of the EPA Act.

Permissibility of the development in the land zoned R1 General Residential

77. The zoning table for the R1 – General Residential Zone is as follows:

2   Permitted without consent

Home occupations

3   Permitted with consent

Attached dwellings; Boarding houses; Centre-based child care facilities; Community facilities; Dwelling houses; Group homes; Home businesses; Home industries; Hostels; Multi dwelling housing; Neighbourhood shops; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Residential flat buildings; Respite day care centres; Restaurants or cafes; Roads; Semi-detached dwellings; Seniors housing; Shop top housing; Tank-based aquaculture; Any other development not specified in item 2 or 4

4   Prohibited

Air transport facilities; Airstrips; Agriculture; Amusement centres; Animal boarding or training establishments; Boat building and repair facilities; Boat sheds; Camping grounds; Caravan parks; Charter and tourism boating facilities; Commercial premises; Correctional centres; Depots; Eco-tourist facilities; Electricity generating works; Entertainment facilities; Farm buildings; Forestry; Freight transport facilities; Function centres; Heavy industrial storage establishments; Helipads; Home occupations (sex services); Industrial training facilities; Industries; Liquid fuel depots; Marinas; Mooring pens; Mortuaries; Passenger transport facilities; Public administration buildings; Recreation facilities (major); Registered clubs; Rural industries; Rural workers’ dwellings; Sex services premises; Storage premises; Transport depots; Truck depots; Vehicle body repair workshops; Vehicle repair stations; Warehouse or distribution centres; Waste disposal facilities; Waste or resource management facilities; Wharf or boating facilities

78. In relation to permissibility of the proposed development on the R1 General Residential Land the Applicant’s Statement of Environmental Effects (SEE) argues that MFE’s are not defined in LEP 2010, and are therefore:

• Firstly, an innominate use, which given the framing of the zoning table is a permitted use as the list of uses permitted with consent includes ‘Any other development not specified in item 2 [Permitted with consent] or 4 [Prohibited]’; or

• Secondly, characterised as ‘multi dwelling housing’ which is defined in LEP 2010 as: multi dwelling housing means 3 or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building; or

• Finally, permissible by virtue of SEPP 36.

79. In relation to the permissibility of the proposed development under SEPP 36 the SEE states:

“Manufactured home estates are defined in SEPP 36 – Manufactured Home Estates to mean ‘land on which manufactured homes are, or are to be, erected’.

A ‘manufactured home’ is defined in the same SEPP to mean: -

‘a self-contained dwelling (that is a dwelling that includes at least 1 kitchen, bathroom, bedroom and living area and that also includes toilet and laundry facilities), being a dwelling:

a) that comprises 1 or more major sections that are each constructed, and assembled away from the manufactured home estate and transported to the estate for installation on the estate, and

b) that is not capable of being registered under the Traffic Act 1909, and includes any associated structure that form part of the dwelling’

A Manufactured Home Estate is permissible development with the consent of Council in accordance with the provisions of the relevant zoning table and (sic) in the R1- General Residential zone.”

(Exhibit P, original emphasis)

80. Ms Irish submits that cl 6 of SEPP 36 (see [36]) operates to make MFE’s permissible on any land where caravan parks are permissible. However, in the subject proceedings ‘Caravan Parks’ are a prohibited use in the R1 General Residential zone under LEP 2010. She argues that therefore SEPP 36 does not permit the proposed development to be carried out on the subject land.

81. A plain reading of cl 6 of SEPP 36 is that its provisions operate only where development for the purposes of a caravan park can be carried out. However, in the current proceedings caravan parks are a listed prohibited use in the R1 General Residential zone. I accept Ms Irish’s submission that SEPP 36 does not provide permissibility for the proposed development on the R1 zoned land as a result of the exclusion under cl 6 of SEPP 36.

82. Despite this finding the first and second bases advanced for permissibility remain.

Innominate permissible use

83. The Applicant submits that MHE are not defined in LEP 2010 and are an innominate permissible use in the R1 General Residential zone. Mr Robertson relies on the facultative language provided at the end of the list of permissible uses in the R1 zone which provides that development not listed as exempt, or prohibited, are also permissible (refer paragraph [77]).

84. Ms Irish in her submissions notes that: ‘The Respondent accepts that ‘Manufactured home estates as proposed, are an innominate use in the GTLEP 2010, however, are best described as a type of ‘residential accommodation’ which is a land use which is permissible with Council’s consent within the R1 General Residential zone’. (Respondents written submissions 10 December 2020)

Findings

85. In Botany Bay City Council v Pet Carriers International Pty Limited [2013] NSWLEC 147 at [30] Preston CJ defines innominate uses as: ‘An innominate purpose is one which the environmental planning instrument does not nominate by name as being within one of the three classifications, but rather identifies as falling within a particular classification by reason of it not being nominated in other classifications; it is development other than development in the other classifications. To be an innominate use, it must fall outside the scope of the uses defined within the relevant the land use table’.

86. It is plain from a view of the zoning table for the R1 General Residential zone that MHE, as a specific use, is not nominated in any classification (see [77]).

85. Applying Abret v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107 at [67] and [68] the use must not be for a purpose that is prohibited. In the current proceedings I must therefore be satisfied that the use for which consent is sought is not for the purpose of caravan park, or another listed prohibited use.

86. LEP 2010 defines a caravan park, a prohibited use, as follows:

caravan park means land (including a camping ground) on which caravans (or caravans and other moveable dwellings) are, or are to be, installed or placed.

89. Relevantly, moveable dwellings are also defined in LEP 2010 as follows:

moveable dwelling has the same meaning as in the Local Government Act 1993.

Note—

The term is defined as follows—

moveable dwelling means—

(a)  any tent, or any caravan or other van or other portable device (whether on wheels or not), used for human habitation, or

(b)  a manufactured home, or

(c)  any conveyance, structure or thing of a class or description prescribed by the regulations (under the Local Government Act 1993) for the purposes of this definition.

90. I note that there are two State Environmental Planning Policies directed, separately, at the uses of land for the purpose of a caravan park and manufactured home estates, State Environmental Planning Policy No 21—Caravan Parks (SEPP 21) and SEPP 36 respectively. At cl 6 of SEPP 21 a caravan park is defined as “… land (including a camping ground) on which caravans (or caravans and other moveable dwellings) are, or are to be, installed or placed”, consistent with the definition in LEP 2010. SEPP 36 defines a ‘manufactured home estate’ as “land on which manufactured homes are, or are to be, erected” and manufactured homes as:

manufactured home means a self-contained dwelling (that is, a dwelling that includes at least 1 kitchen, bathroom, bedroom and living area and that also includes toilet and laundry facilities), being a dwelling—

(a)  that comprises 1 or more major sections that are each constructed, and assembled, away from the manufactured home estate and transported to the estate for installation on the estate, and

(b)  that is not capable of being registered under the Traffic Act 1909,

and includes any associated structures that form part of the dwelling.

91. Inherent in these definitions is the distinction between a caravan as a moveable dwelling, that may be placed on a site (land) on a temporary basis, and a manufactured home which is a self-contained dwelling. This separation is strengthened by the operation and definitions contained in SEPP 21 and SEPP 36: Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWCA 106 at [12].

92. The use of the site for the placing of caravans is not proposed by the Applicant. Applying Wakefield Planning Pty Ltd v Yass Valley Council [2014] NSWLEC 1131 at [34]-[35] it is clear that if caravans are (by consent condition) not to be placed on the site, the proposed development does not fall within the definition of a caravan park. Such a condition is proposed in the conditions.

93. By reference to the development application form and the SEE the development application seeks consent for a ‘manufactured home estate’. I accept that such a use is not defined under (or nominated by) the R1 General Residential zone land use table. I accept the position advanced by the SEE that a manufactured home estate allows for the provision of long term manufactured housing supported by internal community facilities. (Exhibit P) Further, I accept that none of the nominated uses in the zoning table are analogous to a manufactured home estate.

94. Applying Botany Bay v Pet Carriers at [33], the relevant question is ‘whether the development is within a nominate or innominate purpose, the terms of which are specified in the instrument’. In answering this question, I find that the part of the development contained within the land zoned R1 General Residential is permissible for the innominate purpose of: manufactured home estate.

Permissible as multi dwelling housing

95. Given the finding at [94] it is not necessary to determine the remaining means by which the Applicant argues that the development of the site as an MHE is permissible, namely that it can be “classified as multi – dwelling housing”, a use that is permissible with consent in the R1 General Residential zone.

Site Contamination

96. Pursuant to cl 7 of SEPP 55 a consent authority must not consent to the carrying out of development on land unless:

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

97. Clause 7 of SEPP 55 is precondition to consent. Despite the issue of contamination not being raised in the issues in contention between the parties it is necessary for the Court, in exercising the functions of the consent authority on appeal, to be satisfied the precondition is met: HP Subsidiary Pty Ltd v City of Parramatta [2020] NSWLEC 135 at [16].

98. Recognising this the Court wrote to the parties in late January 2021 seeking further information and submissions in relation to:

“- the provisions of State Environmental Planning Policy No 55- Remediation of Land. In particular, s7 and in particular whether the sub cl (4) applies to the subject development. In particular how to the precondition to consent is satisfied by the proposed development and the Exhibits before the Court.”

99. The Court granted the parties an opportunity to provide any additional information or submissions by 3 February 2021 and noted that if the parties wished to appear in relation to request, they were approach the Registrar to allocate dates for the same.

100. Following receipt of submissions from the Applicant, which is in part extracted below, the Respondent provided their consent to the Applicant being granted leave to prepare a Preliminary Site Investigation (PSI) for the subject site and to rely on such a report in the proceedings.

101. Mr Robertson, for the Applicant made the following submissions in response to the Court’s request:

“91. Coffey Geosciences Pty Ltd undertook a comprehensive geotechnical assessment of the site: Ex W. In thirteen locations it excavated soils and later tested them including for potential acid sulphate soil. In the course of excavation, Coffey reported on the nature of the soils including their origin. One of the categories to be reported is whether the soils are fill or derived naturally: Appendix A ‘Soil Description’, Geological Origin. None of the thirteen engineering logs shows the presence of any fill on the site, that is, the soils including the topsoil were derived naturally and not from potentially contaminating activities. Nor is there any observation in the final column of the log indicating discolouration, the presence of human-made structures, contaminating particles such as asbestos or anything else that might suggest that the land has been contaminated by historic activities. The report describes both surface and subsurface conditions: pp 2-4 and Table 45 which reports the results of acid sulfate soil testing shows that there are no acid sulphate soils on the site: p 5.9. Although not labelled a contamination report, any contaminants discovered in the course of site testing would have been reported, as their presence was likely to impede site regrading works and the construction of platforms and road surfaces. Indeed, there would have been an obligation to stop work to ensure that the contamination was removed. No contamination was reported.

92. It is unsurprising there than neither Council (which must be assumed to have historic knowledge about the uses of the site) at the rezoning stage nor the applicant and the Council at the stage of decision-making about the site development have considered whether the site was contaminated. On one view, that discharges the obligation under cl 7(1) of SEPP 55. However, consistently with the views we have otherwise expressed in the submissions, the Court is entitled to raise any matter relevant to s 4.15 itself, even though the parties have not done so. We accept that, on one view, cl 7(4) and Table 1 of the Guidelines suggest a precautionary approach where land has previously been used for agriculture, would encourage the preparation of a preliminary site investigation (PSI) to examine site history together with the outcomes of the geotechnical assessment to form an opinion about whether the site was likely to be contaminated.

93. In those circumstances, the applicant seeks leave to prepare and tender a PSI, which we are advised can be completed within 2 weeks, given the existing data on the site. As this is a matter raised latterly by the Court, we respectfully submit that procedural fairness requires that an opportunity be given to the applicant to address the issue with appropriate evidence. Where the issues are expanded beyond those joined between the parties, the parties must be given the opportunity to address and be heard on the issue: Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256 at [129] citing Pet Carriers.”

(Applicant’s written submissions 4 February 2021)

102. The PSI was filed with the Court on 22 February 2021.

103. Although the issue of compliance with cl 7 of SEPP 55 was raised by the Court in these proceedings, the need for procedural fairness to the parties, in my view, is met as follows. Firstly, bringing the need for the precondition to be satisfied to the attention of the parties and enquiring how such a precondition is satisfied. It is plain that as cl 7 of SEPP 55 is a precondition, failure to satisfy it would lead to refusal. Secondly, the Applicant sought to address the precondition by submission of the PSI, to which it was granted time to prepare and leave to rely on the report by the Court. The Court’s concerns were brought to the attention of the parties and they were provided an opportunity to address those concerns prior to the determination of the development application: Zhiva Living Dural Pty Ltd v Hornsby Shire Council (2020) 242 LGERA 280; [2020] NSWCA 180 at [29]; Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [129].

104. Consistent with the submissions of Mr Robertson, the PSI notes that it is to be read in conjunction with the Geotechnical assessment of the site prepared by Coffey Geosciences Pty Ltd (the Geotech report). The Geotech report included the excavation and sampling of soils on the site. (Exhibit W) I have read and considered the Geotech report and accept the summary of its results extracted from Mr Robertson’s submissions at [101]. The PSI relies on the findings of the Geotech report, a study of historical aerial photography, record searches, a walkover of the site and interviews. Based on this information the PSI summarises the history of the site as follows [emphasis added]:

“The history information suggests that the site was initially partially cleared and probably had a grazing use from circa 1970. The existing residence and additional bushland clearing was probably completed circa 1980 and then the out buildings in the locality of the residence and dams were probably constructed circa 1990. Part of the site (the area adjacent to the western boundary) was used for a market garden purpose and included selling vegetables at a roadside stall (north -west corner of the site) between 2009 and 2018. The majority of the site appears to have maintained a semi-rural (grazing) use since 1970.”

PSI, Douglas Partners Pty Ltd Feb 2021

105. The conclusion of the PSI Report is extracted below:

“Based on review of the site history information and the walkover, the site appears to generally have a low potential for contamination and would generally be compatible with the proposed manufactured home estate (residential) development (from a site contamination standpoint), subject to completion of the following assessments:

- Existing structures: A pre-demolition hazardous material survey in accordance with SafeWork NSW requirements is conducted by an appropriately qualified occupation hygienist prior to the demolition of the existing structures. All demolition work should be undertaken by a licensed demolition contractor and a clearance certificate provided by an occupational hygienist for the ground surface post demolition,

- Soil: An intrusive soil investigation with associated contamination sampling to be conducted to confirm the assessed low potential for contamination. It would be appropriate to undertake the further intrusive works following the demolition of the existing structures.

- Ground water: Should the results of the soil investigation indicate signs of contamination, then groundwater testing may be recommended.”

(PSI, Douglas Partners Pty Ltd Feb 2021)

106. Clause 7 of SEPP 55 at sub cl (4) references the publication titled ‘Managing Land Contamination: Planning Guidelines SEPP 55- Remediation of Land’ (the Contaminated Land Guidelines). I note that the Contaminated Land Guidelines list at Table 1 ‘agricultural/ horticultural activities’ as activities that may cause contamination. I note that Table 1 lists the uses referred to in sub cl (4) of clause 7 of SEPP 55. The effect of the historic use of the site being in Table 1 of the Contaminated Land Guidelines and the fact that the development application seeks a change of use is that pursuant to sub cl (2) the Court must consider a PSI.

107. The common usage of the term agriculture is captured in the Macquarie Dictionary as: ‘the cultivation of land, including crop-raising, forestry, stock raising etc. farming’. I am satisfied the previous use of the land falls within agricultural/ horticultural activities in Table 1 of the Contaminated Land Guidelines.

108. As such the Court is obligated, before determining the application for consent to change the use of the subject land (from agricultural/ horticultural use to residential) to consider a report ‘specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the Contaminated Land Guidelines: cl 7 (4) of SEPP 55. I note that at s 3.5.2 of the Contaminated Land Guidelines it describes a PSI as follows:

3.5.2 Stage 1 – Preliminary Investigation

The preliminary investigation contains a detailed appraisal of the site’s history and a report based on a visual inspection and assessment. It is important that all relevant information about the site is assessed to determine the potential for site contamination.

Where contaminating activities are suspected to have had an impact on the land, sampling and analysis will be required to confirm and support any conclusion reached from the site history appraisal. Through the assessment of sampling results an assessment of contamination can be established.

A preliminary investigation is an important step in deciding whether a more detailed investigation is needed. Where the results of a preliminary sampling program demonstrate the potential for, or the existence of contamination, a detailed investigation should be undertaken; not necessarily immediately after the preliminary investigation but before the new use commences.

109. I have considered the PSI as required by cl (7)(2) of SEPP 55. I find that I cannot be satisfied, on the basis of the information before the Court, firstly whether the land of the subject site is actually contaminated and secondly if it is contaminated whether the land is either suitable for the proposed use in that state or able to be (and will be) made suitable prior to the commencement of the use. My reasoning is as follows:

1. The conclusion of the PSI is indeterminate. The language used prevaricates and is equivocal, for example: ‘the site appears to generally have a low potential for contamination … would generally be compatible for the proposed use.’ Such language is difficult to give significant weight when the text at cl 7 requires the Court to reach a state of satisfaction.

2. Further, the conclusion of the PSI is contingent on the completion of further assessment, refer paragraph [105]. Those further assessments have not been completed.

3. The Contaminated Land Guidelines note that ‘where contaminating activities are suspected to have had an impact on the land, sampling and analysis will be required to confirm and support any conclusion reached from the site history appraisal’. On the information before the Court it is not possible to reconcile any sampling undertaken by the Geotech Report and the location of the market garden use, the grazing use or the areas identified as containing fill. It is not possible, in my view, to form a proper understanding of the nature or extent of any contamination of the site and/or the steps required to deal with any contamination.

4. The preceding conclusions are reinforced, in my view, by the extent of earthworks and site disturbance proposed by the development application. On the Applicant’s estimate some 4000m³ of cut and the same of fill will occur as a result of the proposed development. (Exhibit P)

5. It is not appropriate to defer, by condition, further investigation of the site to resolve these uncertainties as to do so would impermissibly defer the assessment of the impacts of the proposed development : Weal v Bathurst City Council 111 LGERA 181.

110. In conclusion, I cannot be satisfied that the land is suitable for the proposed use, particularly in circumstances where the development for which consent is sought clearly involves the significant disturbance of the site. The precondition at cl 7 of SEPP 55 is not met and as a result consent cannot be granted to the development application.

111. Despite the finding that the Court does not have power to grant consent to the development, given the time invested by the Court and the parties in this matter, I have provided findings on the key issues remaining in dispute between the parties.

Is the land potential or core koala habitat?

112. State Environmental Planning Policy– Koala Habitat Protection 2020 (SEPP Koala) applies to the Mid Coast Council Local Government Area: Schedule 1. Whilst SEPP Koala commenced following the lodgement of the development application, the instrument applies: Part 5 SEPP Koala.

113. The updated BDAR, Exhibit K, addressed the relevant matters under the previous instrument: State Environmental Planning Policy 44 (Koala Protection) 2019. The parties submissions accept that the effect of cl 20 of SEPP Koala is that, in the absence of a savings provision, SEPP Koala applies to the proposed development.

114. Pursuant to cl 8 of SEPP Koala, prior to the grant of consent to a development application the consent authority must be satisfied as to ‘whether or not land is a potential koala habitat only on information obtained by it, or by the applicant, from a person who is qualified and experienced in tree identification.’ If the land is found to be potential koala habitat the Consent authority must then make a determination whether the land is core koala habitat in accordance with cl 9 of SEPP Koala. If it is held that the land is core koala habitat, consent cannot be granted without a POM: cl 10 SEPP Koala.

115. In the joint report the ecologists, Mr Conacher (for the Applicant) and Mr Bell (for the Respondent), note their agreement that there are recorded sightings of Koalas on the subject site. This is supported by anecdotal evidence provided by residents through their submissions, and the tendered ‘Koala Sighting Report’ of a Koala on Coastal View Drive in proximity to the site in September 2020. (Exhibit 28) Further, the subject site contains evidence of koala presence through scratch marks on the trunk of a tree on site. However, the BDAR notes that no koala scats were observed on the site during the survey work undertaken and concludes that this indicates a low level of use of the site by Koalas. No koalas were observed on site during the surveys undertaken in the preparation of the BDAR. (Exhibit K)

”… the subject proposal retains the trees in the RE1 zone along the whole length of (the) Blackhead Road frontage. Substantial stands of trees located towards the north-western corner and north-eastern corners of the site are also retained, and the western side RE1 area is vegetated as wetlands, passive recreation area. Trees are also retained in landscaped communal areas located between Roads 4 and 5l and between Roads 7 and 8; and Roads 8 and 2.”

(Exhibit 8)

277. Dr Pollard concludes that the proposed development ‘potentially offers a more consistent and extensive landscape planting, that reduces visual impacts than will inevitably occur through any residential development of the site’. (Exhibit 8)

278. Following leave for the amended plans, Dr Pollard also provided further evidence on the visual and character impact of the proposed development. He notes in the supplementary report that he also revisited the site as part of preparing his evidence. Utilising the three public views detailed in paragraph [273] Dr Pollard prepared three photo montages. He concludes that these montages essentially confirm his previous assessment of the acceptability of any visual impact.

279. Dr Pollard makes provides the following additional evidence in relation to the locations on the Bridle Path and Lake View Way identified by Mr Nash:

“In respect to the visual outcomes as it impacts the dwellings and sites nominated by KN being 3, 5, 7 and 11 the Bridle Path and 16 Lake View Way, the removal of proposed lots 13-19, 21 and 49 within the proposal that were proximate to these houses, and the associated retention of trees on site and supplementary planting proposed, collectively provide a substantial separation of any built form from the adjacent and nearby sites. Any visual impacts are further reduced by the topography of the area, which falls away from the nominated dwellings and therefore reduces the extent to which any proposed development will be viewed. In regard to No 1 and No 2 the Sand Trap, I note that there is no visual access at all possible from No 1, and if any visual access at all can be obtained from No 2 it would be very limited and of minimal, if any, impact. Views from any elevated private properties in Coastal View Drive, are no more exposed than illustrated in Montage 1, and are generally subject to greater filtration by other dwellings, street trees and private landscaping.”

(Exhibit 13)

280. Dr Pollard notes that the amended plans demonstrate greater retention of existing trees, reinforcing his view that the proposed development will not have a detrimental visual impact. He concludes that the amended development demonstrates ‘better than acceptable planning practice in terms of its layout’ and concludes that in his view the development will result in an MHE of a good quality of urban design.

281. Dr Pollard concludes that the proposed development is compatible with the character of Tallwoods, is consistent with the form of development expected in the zone and will not have a detrimental visual impact.

282. I note that Mr Leathley prepared an analysis of the existing residential development in proximity to the subject site to determine an ‘assumed average roof area’ to compare with the extent of roof area proposed by the MHE. (Exhibit 14). However, as this analysis was undertaken based on the un-amended plans, I have given this analysis some, but not significant, weight in my assessment.

Overlooking and overshadowing impacts

283. Mr Nash argues that the subject site, and future homes on it, will be overlooked by dwellings to the north east of the site. (Exhibit 18) However, he accepted this was resolved by the deletion of lots 13 to 178 inclusive in the amended plans.

284. Ms Irish notes that on the basis of the amendments made to the proposed development and Mr Nash’s evidence this contention is no longer pressed by the Respondent.

Submissions

285. Mr Robertson objects to the Court taking into account Mr Nash’s evidence in relation to cut and fill as a reason for refusal of the development application. His reasoning can be summarised as follows:

1. the issue raises concerns of procedural fairness for the Applicant as the Respondent’s written submissions introduce a new issue concerning the certainty of the development. Mr Robertson submits that this goes beyond the scope of contention 2 and notes that the Respondent failed to seek leave to amend their contentions. Further, they were not the subject of joint conference and:

“The cut and fill plan has been available for the whole of last year and it was open to Council to raise these matters at any time, and we would have accommodated it. Immediately after the issue emerged from the arborists’ joint evidence we sought to address it by plan amendments but were refused leave on 7 September 2020, on case management grounds. Council has unfairly taken advantage of that refusal by introducing what in substance is a new case, and now seeks to take advantage of it by arguing for the refusal of consent because we have not been permitted to address it.”

(Applicant’s written submissions in reply, 4 February 2021)

2. Further, that if the Court intends to refuse the application on grounds of uncertainty, in accordance with the rules of procedural fairness, it ‘must notify the parties that it intends to treat a new ground as a ground for potential refusal, and the parties are then given an opportunity to call evidence and address it’: Camberlee Investments Pty Ltd v Shoalhaven City Council [2017] NSWLEC 1585 at [81], Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [129] citing Pet Carriers.

(Applicant’s written submissions in reply, 4 February 2021)

286. Notwithstanding the preceding, Mr Robertson argues that the evidence of Mr Pollard and Mr Leathley should be preferred by the Court, namely that the concerns about the levels and cut and fill raised by Mr Nash, can be resolved during detailed design prior to the submission of a Construction Certificate. He submits that these changes are minor, they ‘can be effected by changing parameters in the software program and would have a very significant benefit by retaining the trees and the parks and making it simple for disabled access. Further, if the changes are not minor, it would add support to his arguments that the Applicant is prejudiced by the lack of notice”. (Applicant’s written submissions in reply, 4 February 2021)

287. Mr Robertson also argues that Mr Nash’s evidence, and the Respondent’s submissions, fail to consider the effect of the proposed revegetation and landscaping included in the development application. It is Mr Robertson’s submission this omission results in the assessment of the merit of the application lacking perspective and balance. Further, it ”fails to take into account the fact that the [RE1 Public Recreation zoned] land is largely denuded of native vegetation and that the site for urban development [R1 General Residential zoned land] contains a few scattered old trees and no mid storey or ground vegetation.” (Applicant’s written submissions in reply, 4 February 2021)

288. Mr Robertson draws the Court’s attention to the Council assessment report for the development application which was before the Respondent. He notes that the Respondent engaged an independent planning consultant to complete the assessment of the development application, prior to the reporting of the development application to the Council for determination. He notes that a draft of the report, Exhibit X, recommends the approval of the development application. Whereas the final report, Exhibit 4, recommends refusal. I have reviewed both reports and considered Mr Robertson’s detailed comparative analysis of the two documents. In summary Mr Robertson argues that little change was made to the assessment or reasoning of the report between the two versions, despite the changed recommendation.

289. Mr Robertson submits that the Court should give no weight to the final assessment report, Exhibit 4.

290. In relation to character, in contrast to Ms Irish, Mr Robertson argues that Woollahra Municipal Council v SJD DB2 Pty Ltd [2020] NSWLEC 115 (SJD DB2 Pty Ltd) is irrelevant to the issue of the compatibility of the character of the proposed development with the locality. His reasoning can be summarised as:

• The Court in SJD DB2 Pty Ltd decided it was open to the Commissioner to give weight to existing approvals in the context over the controls in the applicable LEP (eg FSR and Height) and the character statement in the DCP.

• SJD DB2 Pty Ltd asked a different question (whether a breach of the height should be approved) to the decision before the Court in the current matter which is focussed on compatibility. Neither the factual or the legal basis of the two matters is similar.

291. However, Mr Robertson does note that in SJD DB2 Pty Ltd Preston CJ did reject a submission that taking into consideration approved or constructed development in assessing the merit of an application was irrelevant. Mr Robertson submits it is relevant for the Court, in considering compatibility, to consider what forms of development have been approved within proximity of the subject site.

292. Mr Robertson argues that more relevant to the Court’s consideration of compatibility is the decision of the Court in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (Project Venture), and the following planning principle from that decision:

“22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.

23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them.

24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked.

Are the proposal’s physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.

Is the proposal’s appearance in harmony with the buildings around it and the character of the street?

25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity.

26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal’s assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character.”

293. Applying this principle Mr Robertson makes the following submissions:

• There is no reason to expect that the form of development already established in Tallwoods would necessarily be reflected on the subject site.

• Council has consented to medium density development adjoining the land to the north and east of the subject site. (refer paragraph [15])

• Character is not confined to what exists, but includes desired future character, and where the planning controls envisage a change in character case law argues that compatibility with future character is more relevant citing: Lizard Apple Pty Ltd v Inner West Council [2019] NSWLEC 1146 at [55-56]; Project Venture at [23].

• The existing and approved development adjoining the site do not reflect the conventional 450m² lots relied on by Mr Nash.

• On the evidence of Dr Pollard, the assertion that the form of development established in Tallwoods is low density is flawed.

• The existing housing at Tallwoods and the subject site are separated by clear topographic distinction (one is on the slope of the hill, the other is on the bottom).

• The minimum lot size relied on by Mr Nash does not apply to a number of permissible forms of development in the R1 General Residential zone, including: seniors housing, multi dwelling residential, group homes, boarding houses etc.

• That district views incorporating residential development is characteristic of the zone and the locality.

• The land is zoned for development, there is an expectation that it will change in form and character.

• The proposed development is superior to an unplanned, incremental change in that the MHE proposes a built form of controlled height, colour, materials, articulation, and the revegetation and management of the adjoining RE1 Public recreation land.

294. Finally, Mr Robertson argues the Court should reject the notion that character is largely determined by lot size and FSR and the Court should prefer the evidence of Dr Pollard as summarised at paragraph [269] which is more consistent in approach with the planning principle in Project Venture. Mr Robertson further argues that the Court should prefer the evidence of Dr Pollard, in part, due to his preeminent experience and qualifications, over those of Mr Nash.

295. In relation to the assertion that the proposal will diminish urban amenity Mr Robertson concludes that although some MHE’s are characterised by poor urban design, that is not the case of the amended proposal before the Court. He argues it has firstly a variety of roof and dwelling forms to provide articulation. Secondly, it is not correct to say the street form proposed is any different to the form that may be expected on gently sloping land, the roads are sinuous and provide interest. Thirdly, views to the site will be mediated by existing and proposed landscape, recessive colours and setbacks. (Applicant’s written submissions 24 November 2020)

296. Mr Robertson submits that the proposed development meets the objectives of the zone by introducing a variety of housing. He submits that:

”Council’s argument depends on sameness rather than compatibility, whereas Dr Pollard assesses character by reference to the same concepts as the planning principle [Project Venture]. The argument that a change in existing character was sufficient to establish incompatibility is exactly what Project Venture cautions against, because on that basis every upzoning would be ineffective.”

(Applicant’s written submissions 4 February 2021)

297. Mr Robertson concludes that lack of compatibility, applying the test in Project Venture, is not a basis for refusal of the application.

298. Ms Irish submits that, on the evidence before it, the Court should conclude that the amended proposal will have adverse visual amenity impacts on adjoining dwellings, the public domain and more distant properties that overlook the site. Further, she argues that the visual impact is exacerbated by the proposed loss of vegetation.

299. Ms Irish argues, citing SJD DB2 Pty Ltd at [52], that the zoning of the land, the objectives of the zone, the landuse table, and the relevant development standards ‘frame the character and built form of the neighbourhood or area and shape the desired future character. Applying this approach, she argues it is relevant that an MHE is, on her submission, an innominate use (ie. not expressly provided for) in the R1 General Residential zone, and prohibited in the RE1 Public Recreation zone.

300. Further, she concurs with Mr Robertson that ‘developments that are approved or constructed in a neighbourhood or area change the built form and character that exist at any particular time’. (Respondent’s written submissions 10 December 2020) She submits that this change occurs in response to the provisions of LEP 2010, existing consents and the EPA Act.

301. Ms Irish argues that Dr Pollard’s evidence fails to reflect the impacts of cut and fill, or the need for maintenance of areas of the site as inner or outer protection zones for bushfire, on vegetation removal on the site. In failing to take these factors into account in considering the feasibility to retain vegetation, Ms Irish argues Dr Pollard does not adequately account for the impacts of the development in analysing the view of the proposed MHE from both Blackhead Road and Coastal View Drive. She states:

“An examination of the subsequently provided details of the proposed site benching on which Dr Pollard relies, discloses a wholesale failure to take the opportunity to design roads which have regard to the topography of the site, along existing contours, so as to minimise the substantial earthworks and benching (retaining walls/ edge beams) to create manufactured home sites.”

(Respondent’s written submissions 10 December 2020)

302. Ms Irish submits that the Court would accept and adopt the evidence of Mr Nash that firstly the development proposed is incompatible with the character of the locality and secondly that that incompatibility is exacerbated by the visual impact of the development when viewed from locations in proximity to the site. She argues these impacts warrant the refusal of the development application.

Findings

303. In response to Mr Robertson’s submission regarding procedural fairness at [285] I make the following comments. As is clear from the reasoning in this judgment that the evidence of Mr Nash, about the uncertainty of any condition that adopts the evidence of Mr Leathley and Dr Pollard (essentially that the levels could be amended in the relevant computer program), is not the sole reason the Court holds for the refusal of the application. Rather, the Court finds that the impacts arising from the development, including but not exclusively impacts arising from cut and fill, are unreasonable. Further, I am satisfied that the further Statement of Facts and Contentions filed by the Respondent on 28 August 2020 raises concerns in relation to impacts arising from the construction of the development at contention 2(e) and 5(e). A key element of that construction is the benching (cut and fill) of the site.

304. As detailed by Preston CJ in Gloucester Resources Limited v Minister for Planning (2019) 234 LGERA 257; [2019] NSWLEC 7 at [686] –[688] the task of the Court in determining a development application, in exercising the function of the consent authority, is to balance the positive benefits of the development against any negative impacts. He notes that such an assessment involves the intuitive synthesis of the relevant factors at s 4.15(1) of the EPA Act.

305. Following consideration of the evidence presented and the submissions of the parties, I have determined that the appeal should be dismissed, and the application refused as the impacts arising from the development when considered collectively are unreasonable. My reasoning follows.

Environmental Impacts

306. In relation to flora and fauna impacts arising from the development I note that the proposed development includes the removal of nine hollow bearing trees (with a total of 42 hollows). This is a direct impact, in addition to the tree removal detailed in the proceeding, that arises from the proposed development.

306. Whilst I accept the evidence of Mr Conacher that the development will also provide for revegetation and habitat restoration, including nest box installation. I accept Mr Bell’s concerns that this will concentrate habitat at a density and in a spatial arrangement that does not adequately mitigate the loss. Further, the replanting of the nominated species will take time to reach maturity. The proposed development will result in both a loss of habitat trees and a loss of significant vegetation.

307. Further, I accept Mr Bell’s criticism that the BDAR, the VMP and the development plans are inconsistent and not appropriately integrated, making it difficult to assess and weigh the positive and detrimental impacts that will arise from the proposed development.

308. In their evidence a number of experts detailed the comparative impacts of the proposed development against that of a standard subdivision. I have given this comparison some weight, but given the diverse list of permissible uses in both the relevant zones, in my view the comparative extent of impacts of an MHE in comparison to a ‘standard residential subdivision’ or a ‘traditional subdivision’ in not determinative of the acceptability of the impacts proposed by the actual development for which consent is sought.

309. However, I do accept the evidence and submissions that the centralised management of the MHE is a relevant factor in giving weight to the positive revegetation and management proposed by the development. I have given this aspect weight in assessing the likely impacts of the development: s 4.15(1)(b) of the EPA Act.

310. Another of the material impacts arising from the proposed development is the extent of tree removal proposed. As detailed in paragraph [204] and following the extent of tree removal proposed varied throughout the conduct of the hearing. In part this arose from:

• The amendment to the proposed development which resulted in greater tree retention [see 208];

• The fact that not all trees on the site were assessed by the Applicant’s arborist;

• The difference in evidence between the experts as to the likely retention of trees where they are subjected to the extensive cut and fill works.

312. The oral evidence of Mr Kingdon, resiled from his documented conclusion of the potential for retention of a number of trees.

313. The conditions of consent (agreed between the parties) note the intent to retain 172 trees (or 51% of the existing trees) on the site.

314. I am not persuaded by Mr Leathley’s evidence that the fact of the R1 General Residential zoning of the site is axiomatic with the expected outcome of the clearing of the centre of the site for development. The desire to balance both the orderly and economic use of land with the protection of the environment is captured in the aims of LEP 2010 at c 1.2. In my view the extent of tree removal directly proposed by the development, as well as that likely to arise from the substantial earthworks and construction proposed in proximity to retained trees, is an impact that warrants refusal of the application: s 4.15(1)(b) of the EPA Act. My reasoning is contained in the following paragraphs.

315. The addendum to Mr Kingdom’s arboricultural assessment is predicated on amendments to the Applicant’s development application which are not before the Court. In particular changes to the design of the entry of the community centre to reduce the conflict with Tree 79 are key to his conclusion that the resultant impacts to TPZ are reduced to a 6.62% intrusion. (Exhibit A2)

316. Mr Kingdom’s oral evidence, when pressed about the cut and fill impact to Trees 184, 191, 193-195, 328, 149, 150 and 108, all proposed for retention, was to concede that they should be removed due to the impact on them of the proposed works.

317. The preceding, and Mr Kingdom’s concessions in oral evidence, lend weight to the validity of the concerns expressed by Mr Duncombe that 15 trees (including 184, 191, 193-195, 328, 149, 150, 108 and others) nominated by the Applicant for retention would be unable to ultimately be retained due to unsustainable levels of encroachment into the TPZ as a result of cut or fill. I note these trees are also captured by the proposed condition extracted at [209], making even the retention of 172 trees an unlikely outcome.    

318. I accept that the development application does involve positive revegetation works detailed in the VMP as well as replanting and landscape works as detailed in the landscape plans at Exhibit E. Further, the amendments made to the development to allow for the additional retention of the existing trees fronting Coastal View Drive is a positive change to the proposed development. However, much of what is proposed in the landscape plan is of small scale with limited canopy height trees and only a small number of trees of species that are to be removed by the development are incorporated in the landscaping proposed. Where eucalypts are proposed to be replanted they occur in private land and on the perimeter of the development site.

319. The assessment of the merit of the application involves balancing the impacts that will arise from the implementation of the development both positive impacts and detrimental as detailed in in the development plans, the VMP, the landscape plan etc. In doing so I accept the evidence of Mr Leathley that some benefits that accrue from the central management of the MHE as a type of development, I have taken these benefits into account. However, on balance I find that the extent of tree removal proposed is a likely impact of the development that warrants refusal of the development application: s 4.15(1) (b) of the EPA Act.

320. Concerns about the impact of cut and fill are also raised by Mr Nash. I note the evidence of Dr Pollard and Mr Leathley that the software behind the calculation of the proposed levels of fill can be remodelled to address and remaining concerns of Mr Nash, or the arborists. This may be so. However, the evaluation of the development applications merit, is focussed on the ‘development the subject of the development application’. A fair reading of the evidence is that Dr Pollard and Mr Nash agree that the levels as proposed in the documents before the Court are: impracticable (for example they exclude access to carparking proposed to be beside Road 7 and Road 4), detrimentally impact trees identified to be retained by proposing material level changes within their TPZ, or result in lots with dwelling locations significantly below the proposed road levels. Whilst these issues may be able to be resolved by amendments to the design of the proposed MHE there are factors that weight against that discretion. Firstly, the complexity of the proposed development and its scale, secondly, the interrelationship of the component parts of the development, its impacts and the proposed mitigation means. Giving consideration to these factors, in my view, it is not appropriate to allow such amendments to occur by condition (not even a deferred commencement condition) due to uncertainty.

321. A development consent, or a deferred commencement consent, is a final consent when granted. It is not designed to overcome unresolved issues, the determination of which could lead to unidentified changes to the concept of the development, which may in turn give rise to impacts that require consideration under s 4.15(1) of the EPA Act: Weal v Bathurst City Counci (2000) 111 LGERA 181; [2000] NSWCA 88 at [93]. The deferring of a matter which a consent authority is required to consider under s 4.15 (1) of the EPA Act is not something that the determination power at s 4.16(3) authorises.

Character

322. Following a consideration of the evidence and the submissions of the parties, it is my view that the proposed development places a density of development and facilities on the site that is of a form and character that is not compatible with the existing character of the locality. Additionally, I find that the development will have an adverse visual impact. As a result, I find that the proposed development is unsuitable given its location, design and relationship with the character surrounding area. My reasoning is contained in the following.

323. I accept Mr Nash’s description of the existing character at paragraph [260] as being a fair account of the existing character of Tallwoods. I have also given consideration to the resident’s submissions and my own observations of the character of the locality in determining the compatibility of the proposed development.

324. I accept the conclusion of Mr Nash that the development will have a detrimental visual impact and that the detrimental visual impact arises from the intended removal of existing vegetation and through the density and characteristics of the proposed development (small allotment sizes, extent of site coverage, minimal setbacks, lack of pockets of vegetation, lack of separation within the ‘residential’ component of the development).

325. However, I accept the evidence of Dr Pollard that visual density is narrower means of determining that character than the factors he nominates, namely built form, street presentation and address, alterations to the landform, landscape and building function. I accept the submission of Mr Robertson that the factors nominated by Dr Pollard appropriately align with the planning principle in Project Venture.

326. I accept the evidence of Mr Nash that the proposed development, characterised by small allotment sizes, extensive site coverage and minimal setback is in contrast to the existing character of the residential development at Tallwoods. I am not persuaded by the examples provided by Dr Pollard at [251] as they are outside a reasonable visual catchment due to their distance from the subject site. I note that Project Venture at [26] gives weight in the assessment of compatibility to the relationship of the proposed built form to surrounding space. Applying Project Venture, it is my view that this relationship of built form to space is markedly different in the proposed development than the character of the existing development in proximity to the site. However, of itself, such a difference in built form may not be so stark as to jarring or unsympathetic. To determine the materiality of this impact I have adopted the framework of factors identified by Dr Pollard as determination of character at [269], namely: built form, street address, alterations to landform, landscape and building function.

327. Note I consider the second factor (street address) identified by Dr Pollard as part of the discussion of visual impact below.

328. In considering the third factor Dr Pollard identifies (alteration to land form) I accept his assertion at [273] that given the rezoning of the subject site, some change of character from the current rural setting is envisaged by the planning instruments. In undertaking the assessment of his element ‘alterations to the land form’, I have given weight to the existing consents that have been granted in proximity to the subject site, and their role as potential influence on the future character of the locality (refer paragraph [15]) for an indication as to the location and form of the developments.

329. The immediately adjacent site has a consent, DA/567/2011, that differs in my view in two key respects to the form of development proposed by the current development application. Firstly, the layout of the street network follows the site contours, and secondly the development provides for a central landscaped corridor which serves to reduce the length of the proposed road network and provides a visual break in the urban development. A similar approach is taken in the approval to the north of the site, DA 803/2015. In contrast the proposed development relies on significant site benching to create levels appropriate to the MHE and concentrates the retention or planting of vegetation to the perimeter of the site.

330. In considering the fourth factor (landscape) Dr Pollard identifies, as detailed in the preceding, over 50% of the existing vegetation is proposed to be removed, likely more given the uncertainty of tree retention detailed in the preceding. Further, the form of the landscaping proposed is unlikely to create a meaningful scale or density of planting that will offset this impact. Many of the existing trees on the site reach a height of some 25 – 30+m, giving them scale and significance in the setting of the locality. The tallest trees proposed in the landscape plan are street trees which may reach a mature height of some 20m, no significant canopy trees are proposed in the landscape plan to be planted in groups or swathes to provide a visual break to the MHE layout.

331. In weighing these impacts, I have given consideration to the positive aspects of the development including the revegetation and rehabilitation works proposed by the VMP. Further, I acknowledge that some change of character from the current rural setting is envisaged by the planning instruments, however a specific characteristic of the Tallwoods locality is the retention and emphasis placed on remnant vegetation and landscaping. Canopy trees assist in defining this character and in my view the proposed development in unsympathetic to this characteristic in its current form.

332. In considering Dr Pollard’s final characteristic (building fucntion), in my view, it is the specifics of the current development application that render it unacceptable, not the proposed use of the site for the purposes of a manufactured home estate.

333. Considering these factors in totality and the planning principle in Project Venture I find that the proposed development is not compatible with the character of the locality and in combination with the detrimental impacts arising from the proposed development this impact warrants the refusal of the application.

Visual impact

334. The subject site is in a natural landform depression. Given the elevated nature of the surrounding streets and houses, from my observations of the site and the evidence, I am persuaded the proposed development will be a visible element from public and private viewpoints. Visibility of itself is not an impact, but given theincongruity of the density and tightly packed nature of the site planning proposed on the subject site, the extent of tree removal, the limited landscape treatment of the site and within the development, and the finding of incompatibility with character I am satisfied the proposed development will have a detrimental visual impact.

335. I am not persuaded by Mr Leathley’s description of the proposed development as being characterised by ‘… smaller building’s interspersed with trees, greenspace and road network’, refer paragraph [254]. In my assessment the proposed development cannot be categorised as interspersed with landscaping. In my view this is not the approach that has been adopted in the layout of the site, the civil works plans or the landscape plan. Further, on the evidence, there is uncertainty of tree retention, the impact of cut and fill on the number of trees to be retained and the levels of the pocket parks proposed. These conclusions affect the weight I have given to Mr Leathley’s assessment of the visual impact of the development as summarised at [255].

336. In reaching my conclusion of detrimental visual impact I have given consideration to the set of typical dwelling types provided and the photomontages prepared by the Applicant. I accept the assessment of Mr Leathley of the potential locations from which a view of the site may be available (see paragraph [252]), however on the basis of the findings I have made regarding tree retention and compatibility I do not accept his conclusion that the impact is acceptable. I accept and prefer the evidence of Mr Nash as summarised at [259]-[263].

337. Finally, in considering the evidence and submissions on character and the reasonableness of the visual impact I have given weight to the submissions of the public as to the value of the distinctive character of Tallwoods and its natural characteristics. I am satisfied that many of these submissions are reasonable and lend support to the proceeding conclusion that the form and density of development proposed by the development application, its visual impacts and incompatibility with character are unacceptable. (s 4.15(c) of the EPA Act).

338. As noted by McClellan CJ in BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [117] in determining whether a subject site is suitable for a particular purpose, or whether the impacts arising from a development are acceptable, weight must be given to the land’s zoning in determining what appropriate development is for the site. Whilst the use of the site as a manufactured home estate is permissible as an innominate use, the appropriateness of such a use to a specific site or context will depend on site design, planning and the constraints of the location. In this particular case I am not satisfied that the design of the proposed development will result in acceptable environmental impacts.

339. I find that after a careful evaluation of the evidence and the submissions that given the likely detrimental impacts, the application is not acceptable on its merits: s 4.15(b) of the EPA Act.

Orders

340. The Court orders that:

1. The appeal is dismissed,

2. Development Application No, DA99/2019 for development of Lot 3 DP 242332, 303 Blackhead Road Tallwoods for the purpose of a manufactured home estate is refused

3. The exhibits are returned with the exception of Exhibits 2, D, P and K.

…………………………

D M Dickson

Commissioner of the Court

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Amendments

08 July 2021 - Amended typographical error at paragraph [1], replaced "s 8.9" with "s 8.7(1) "

Decision last updated: 08 July 2021