Lake Illawarra Park Pty Limited v Wollongong City Council (No 2)

[2024] NSWLEC 1296

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Lake Illawarra Park Pty Limited v Wollongong City Council (No 2) [2024] NSWLEC 1296

Hearing dates:

21, 22, 23, 24 and 25 August 2023

Date of orders:

05 June 2024

Decision date:

05 June 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

Orders Modification Application Appeal Proceedings 2022/246585

The Court orders:

(1) The appeal is upheld.

(2) Development Consent No DA-2018/1499 is modified in the terms in Annexure A.

(3) Development Consent No DA-2018/1499 as modified by the Court is Annexure B.

Orders LGA Licence Proceedings 2022/246571

The Court orders:

(1) The appeal is upheld.

(2) Approval to Operate Caravan Park at 210-230 Windang Road, Windang Approval No LG-2020/78 is granted subject to conditions in Annexure C.

Catchwords:

DEVELOPMENT APPEAL – Class 1 – modification of conditions of consent – amendment to conditions of consent for a caravan park – flood and fire risk – social impact on residents – time to make site compliant – caravan park residential site agreements and regulation of caravan parks – end of useful asset life – certainty – orders

LOCAL GOVERNMENT ACT APPROVAL APPEAL – Class 2 – authority to operate a caravan park – conditions of approval – orders

Cases Cited:

Lake Illawarra Park Pty Limited v Wollongong City Council [2024] NSWLEC 1027

Category:

Principal judgment

Parties:

Lake Illawarra Park Pty Limited ACN 106 939 959 (Applicant) (In both proceedings)
Wollongong City Council (Respondent)

Representation:

Counsel:
N Eastman (Applicant)
T To (Respondent)

Solicitors:
Pikes and Verekers Solicitors (Applicant)
Wollongong City Council (Respondent)

File Number(s):

2022/246585 (Class 1)
2022/246571 (Class 2)

Publication restriction:

Nil

Judgment

1. COMMISSIONER: On 31 January 2024, I handed down my reasons for judgment in the Class 1 Development Appeal and Class 2 Local Government Act Approval Appeal of Lake Illawarra Park Pty Limited v Wollongong City Council [2024] NSWLEC 1027 to uphold the appeals and in the Class 1 proceedings to approve the Proposed Modification in in accordance with Exhibit U and in the Class 2 proceedings to grant the Approval to Operate (AtO) subject to conditions consistent with Exhibit U.

2. Exhibit U comprised of the existing conditions of consent for DA-2018/1499, with ‘tracked changes’ to show the modifications to conditions sought by the Applicant.

3. On 14 May 2024, the parties filed an agreed set of conditions of consent in accordance with the Court templates and an agreed modified AtO in generally accordance with my direction. There are some aspects which do not precisely mirror the changes tracked in Exhibit U and the parties helpfully provided agreed written submissions to explain the rationale behind each modification to the conditions of consent which appears in Annexures A and B that does not precisely mirror the changes tracked in Exhibit U. Brief explanatory submissions are also made in relation to the terms of the Approval to Operate.

4. In the context of my reasons for granting consent, it is appropriate to set out the explanation given by the parties as follows firstly in relation to the modification to conditions of consent:

1. Condition 1 has been amended to refer to attachments comprising the original approved plan (‘Final Site Plan’) and initial park layout. These plans are already referred to in Condition 1 by name, date, issue number and plan reference number, and were Annexure B to the Judgement in proceedings 2019/232609. However, they were not attached to the conditions of consent. Attaching the plans to the consent itself assists in the efficient interpretation and implementation of the conditions of consent.

2. Condition 2 has been amended in accordance with Exhibit U, however there are two differences. Firstly, the Final Site Plan reference number, date and issue has been removed and substituted with “Attachment 1” (see amendment to Condition 1 above). The Final Site Plan is clearly and fully identified in Condition 1 and the remaining conditions can simply refer to it as ‘Final Site Plan (Attachment 1)’. Secondly, the third sentence has been amended to remove the word “existing” and instead specify, by reference to a plan (Attachment 3), the sites to which the sentence applies (park owned structures).

3. Condition 4 has been amended in accordance with Exhibit U, however it has been further amended to refer to the plan that the numbering used in the modified condition corresponds to, namely the Initial Park Layout – Lot Amalgamation Plan (noting that this plan uses different numbering to the Final Site Plan). Acknowledging that the park operator may purchase additional dwellings in the future, the condition requires any dwellings purchased after the timeframe for compliance to also be removed (within 6 months from the date of purchase).

4. Condition 7 has been amended in accordance with Exhibit U, however the words “the VMP on” were added for clarity after the words “implementation of.” Further, the words “due to it being at the end of its effective life” have been deleted because structures may be removed at the discretion of owners for a range of reasons (it is the removal of the structure which will trigger implementation of the VMP, not the reason for the removal). Conditions 2 and 4 establish that existing residents’ homes may be maintained in their current position until the existing structure is at the end of its useful asset life.

5. Condition 9 has been amended in accordance with Exhibit U, however words were added to the introductory sentence to clarify that the condition relates to all installations of moveable dwellings, including the replacement of dwellings.

6. Condition 10A is a new condition which is a consequential amendment arising from the modification to Conditions 2 and (in particular), 4. Tab 10 of the Class 1 application filed on 19 August 2022 was a plan based on the Final Site Plan but which identified nine (9) sites within the park which the legend identifies as “Sites omitted till sites on Peninsula are removed.” This Plan was used as the basis for Attachment C to Exhibit N (Joint Expert Report of Planners) to identify park owned sites. The plan which comprised Tab 10 and Attachment C to Exhibit N has been used as the basis for Attachment 3 which identifies ‘park owned sites’ and sites to be ‘omitted’ until the dwellings on the peninsula have been removed. Given that condition 10 limits the number of sites within the park to 204 and that the corresponding Final Site Plan does not include or account for the sites on the peninsula, absent proposed condition 10A, the number of sites within the park would exceed the maximum approved by the consent. It is noted that Condition 10A provides 3 months from the date that the court approves the modifications to the consent for any existing structures on the identified sites to be removed by the park operator.

7. Condition 42 has been amended in accordance with Exhibit U, however the qualifier ‘park owned’ has been inserted into the heading, rather than only two of the requirements of the condition. This more clearly confines the application of the condition the park owned structures.

8. Condition 56 has been amended in accordance with Exhibit U, however it has been further amended to refer to the plan that the numbering used in the modified condition corresponds to, namely the Initial Park Layout – Lot Amalgamation Plan (noting that this plan uses different umbering to the Final Site Plan). Three of the sites identified in the condition as modified in Exhibit U are park owned and so they have been removed from the condition.

5. Secondly, in relation to the AtO, substantial amendment was not required because it refers to the conditions of development consent which it seeks to incorporate by number. Therefore, the development consent reference at condition 11 has been amended to DA-2018/1499/A and the words “as modified” have been added. The date referenced in condition 11 for providing details of methods of compliance was amended from 24 August 2022 (which occurs in the past), to 24 August 2024. The Plans attached to the development consent have also been annexed to the AtO.

6. I am satisfied that the conditions and the AtO reflect my findings.

7. It is now appropriate to approve the modification of the consent and to issue the AtO subject to those conditions.

Orders

Orders Modification Application Appeal Proceedings 2022/246585

8. The Court orders:

1. The appeal is upheld.

2. Development Consent No DA-2018/1499 is modified in the terms in Annexure A.

3. Development Consent No DA-2018/1499 as modified by the Court is Annexure B.

Orders LGA Licence Proceedings 2022/246571

9. The Court orders:

1. The appeal is upheld.

2. Approval to Operate Caravan Park at 210-230 Windang Road, Windang Approval No LG-2020/78 is granted subject to conditions in Annexure C.

E Espinosa

Commissioner of the Court

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Annexure A

Annexure B

Annexure C

Amendments

19 September 2024 - Pursuant to the slip rule UCPR 36.17 - new annexure c added.

Decision last updated: 19 September 2024