Lake Illawarra Park Pty Ltd v Wollongong City Council

[2020] NSWLEC 1622

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lake Illawarra Park Pty Ltd v Wollongong City Council [2020] NSWLEC 1622

Hearing dates:

Conciliation conference on 27 November 2020

Date of orders:

10 December 2020

Decision date:

10 December 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Orders – See [14]

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005

State Environmental Planning Policy No 21—Caravan Parks

State Environmental Planning Policy No 55—Remediation of Land

Wollongong Local Environmental Plan 2009

Texts Cited:

Department of Urban Affairs and Planning and Environment Protection Authority, Managing Land Contamination: Planning Guidelines SEPP 55 - Remediation of Land, (1998)

Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (July 2020)

Wollongong Development Control Plan 2009

Category:

Principal judgment

Parties:

Lake Illawarra Park Pty Ltd (Applicant)
Wollongong City Council (Respondent)

Representation:

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

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Wollongong City Council (Respondent)

File Number(s):

2019/232609

Publication restriction:

No

Judgment

1. COMMISSIONER: Lake Illawarra Park Pty Ltd (the Applicant) has appealed the deemed refusal by Wollongong City Council (the Respondent) of its development application DA 2018/1499 seeking approval for consent for a change in use of short term sites within an existing caravan park to long term use of those site within the caravan park (the Proposed Development) at 210-230 Windang Road, Windang (the Subject Site).

2. More specifically, the Proposed Development, as amended by the Applicant, seeks approval for the continued use of the Subject Site as a caravan park with a maximum of 204 dwelling sites to be used for long term residency, and includes the following details:

1. all new moveable dwellings will have a minimum habitable floor level of RL 3.13m AHD, being the 100-year Average Recurrence Interval (ARI) design flood level for the 2050 Sea Level Rise (SLR) with freeboard applicable to the Subject Site, and this would constitute the minimum floor level requirement applicable to the Subject Site;

2. all existing moveable dwellings would be required to comply with the requirements identified above [at (1)] in relation to the minimum flood level within 5 years of the date of the consent. This requirement is confirmed in the conditions of the consent agreed between the Parties;

3. the following setbacks will be provided for all new moveable dwellings and associated structures:

1. no structures will be located within 16m of the forested wetland hazard located south of the Subject Site, as required under the General Terms of Approvals (GTAs) issued by the NSW Rural Fire Service (RFS) which form part of the conditions of consent for the Proposed Development;

2. a 5m setback from the edge of the artificial boat bay on the Subject Site;

3. a 5m setback from the eastern boundary of lot 101 DP 113444, which the Parties agree is Crown Land;

4. a 2m setback for all other areas of the Subject Site from the property boundary with Lot 1 DP in 1102670, Lot 1 in DP 518290 and Lot 2 in DP217183, consistent with the provisions of cll 138 and 161 of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (the Local Government Regulation);

4. all existing moveable dwellings and associated structures on the Subject Site will comply with the setback requirements identified above [at (3)] within 5 years from the date of the consent. This requirement is confirmed in the conditions of the consent agreed between the Parties;

5. all moveable dwellings will be removed from the southwestern, ‘peninsula’, portion of Subject Site, and vegetation will be restored to that area, in accordance with an approved Vegetation Management Plan, within 5 years from the date of consent. This requirement is confirmed in the conditions of the consent agreed between the Parties;

6. separations are to be provided between all new moveable dwellings, consistent with the provisions of cll 91, 140 and 141 of the Local Government Regulation;

7. existing moveable dwellings on the Subject Site will be provided with compliant separations referred to above [at (6)] within 5 years from the date of the consent This requirement is confirmed in the conditions of the consent agreed between the Parties;

8. the consent will cease to operate on 31 December 2050. This requirement is confirmed in the conditions of the consent agreed between the Parties.

3. The Proposed Development will be carried out in accordance with the approved Final Site Plan (LPCC19-119/2, Issue B, dated 27/11/20), except as amended by the conditions in Annexure A to this judgment. The layout of the caravan park at the date of this judgment is shown on the plan identified as the Initial Park Layout – lot amalgamations (MP21-119/1, Issue B, 27/11/20). These plans are provided at Annexure B to this judgment.

4. The Subject Site consists of the following lots:

1. Lot 2 in DP 217183;

2. Lot 1 in DP 1102670;

3. Lot 100 in 1159016;

4. Lot 1 in DP 518290.

5. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

6. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 27 November 2020, and I presided over that conciliation conference.

7. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy, and no site view was undertaken during the conciliation conference on 27 November 2020. However, I had presided over a previous conciliation conference in relation to this appeal on 18 March 2020 and had undertaken a site view at that time.

8. At the conciliation conference on 27 November 2020, the Parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant’s development application, subject to conditions.

9. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the Parties’ decision if the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties have advised that the jurisdictional prerequisites of relevance in these proceedings have been addressed as follows:

1. the Applicant’s Development Application has been made with owners’ consent, including in relation to Lot 100 in 1159016, which is Crown Land, and for which owner’s consent, dated 28 February 2020, from the Department of Industry – Lands, was provided in relation to development application DA 2018/1499;

2. the Subject Site is, in the majority, zoned RE2 Private Recreation, with a smaller component (the land in Lot 1 in DP 518290) zoned R2 Low Density Residential, under the provisions of Wollongong Local Environmental Plan 2009 (WLEP) and in relation to this:

1. the Proposed Development is permissible in those parts of the Subject Site that are zoned RE2 Private Recreation; and

2. the Applicant enjoys existing use rights (pursuant to s 4.65 of the EP&A Act and Part 5 of the Environmental Planning and Assessment Regulation 2000 (the Regulation)) in relation to that part of the Subject Site that is zoned R2 Low Density Residential, being Lot 1 in DP 518290. These existing use rights derive from the consent granted on 16 November 1965 to application D65/336 that grants consent to, inter alia, a caravan park comprising fifty-six caravan sites, a manager’s residence and associated facilities on land including on Lot 1 in DP 518290;

3. the Proposed Development, as amended (see above at [2]), has satisfied the requirements of cl 7.3(3) of WLEP concerning flood planning;

4. the Proposed Development, as amended (see above at [2]), has satisfied the requirements of cl 7.7 of WLEP concerning the foreshore building line (FBL), and which seeks to ensure that development in the foreshore area will not impact on natural foreshore processes or affect the significance and amenity of the area, as follows:

1. where moveable dwellings currently exist in the foreshore area, all of the buildings within that location, to the extent that they are beyond the FBL can be altered pursuant to the provisions of cl 7.7(2)(a) of WLEP which permits “the extension, alteration or rebuilding of an existing building wholly or partly in the foreshore area”;

2. where the Proposed Development includes the use of sites for long term residences, but upon which moveable dwellings do not currently exist, the Applicant enjoys existing use rights (pursuant to s 4.65 of the EP&A Act and Part 5 of the Regulation) established through the grant of consent on 16 November 1965 in relation to development application D65/336 that permits use of the land as a caravan park including within the foreshore area, beyond the FBL;

5. the Parties agree, and I am satisfied, that, because the permissible use of the Subject Site as a caravan park is not proposed to change, and as there is no history of the Subject Site being used for any of the purposes listed in Table 1 of “Managing Land Contamination: Planning Guidelines SEPP 55 - Remediation of Land”, the provisions of cl 7 (1) of State Environmental Planning Policy No. 55 – Remediation of Land have been satisfied;

6. the Parties agree, and I am satisfied, that, consistent with the provisions of State Environmental Planning Policy No. 21 – Caravan Parks (SEPP21), the sites within the Proposed Development (as amended), are suitable for use as long-term residence, and:

1. the conditions of consent for the Proposed Development, as amended, include a condition (Condition 10) that specifies the maximum number of sites within the Subject Site that may be used for long-term residence, as required under cl 8 of SEPP21; and

2. the matters listed within cl 10 of SEPP21 have been considered prior to the grant of consent;

7. the Applicant’s Proposed Development, as amended, is, or will be, generally compliant with the relevant controls in Wollongong Development Control Plan (WDCP), or alternatively achieves the objectives of those controls, including in relation to:

1. the controls within Chapter C04 concerning Caravan Parks, Camping Grounds and Manufactured Estates;

2. the controls within Chapter E13 concerning Floodplain Management.

11. Having considered the advice of the Parties, provided above at [10], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

12. I am further satisfied that the Parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

13. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the Parties’ decision.

14. The Court orders that:

1. The Applicant is granted leave to rely upon the amended plans and documents listed in condition 1 of the Conditions of Consent which are contained in Annexure A.

2. The Applicant is to pay the Respondent’s costs thrown away as a result of amending the development application under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $8,000.

3. The appeal is upheld.

4. Development Application No DA 2018/1499 seeking consent for continued use of subject land as a caravan park containing a maximum of 204 dwelling sites to be used for long term residency is approved subject to conditions in Annexure A.

……………………………..

M Chilcott

Commissioner of the Court

Annexure A (224455, pdf)

Annexure B (1560272, pdf)

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Decision last updated: 10 December 2020