Optima Developments Pty Limited v Wyong Shire Council - [2005] NSWLEC 649

Land and Environment Court

of New South Wales

CITATION:
Optima Developments Pty Limited v Wyong Shire Council [2005] NSWLEC 649

PARTIES:
APPLICANT
Optima Pty Limited
RESPONDENT
Wyong Shire Council

FILE NUMBER(S):
10714; 10715; 10716; 10717 of 2005

CORAM:
Talbot J

KEY ISSUES:
Planning Instruments :- Whether SEPP 36 and Wyong LEP are inconsistent.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Interpretation Act 1987
State Environmental Planning Policy 36 - Manufactured Home Estates
State Environmental Planning Policy 21 - Caravan Parks
Wyong Local Environmental Plan 1991

CASES CITED:
Central Coast Care v Wyong Shire Council (2003) 124 LGERA 320;
Coffs Harbour Environment Centre Inc. v Minister for Planning and Coffs Harbour City Council (1994) 84 LGERA 324 ;
Mete v Warringah Council (2004) 133 LGERA 420;
Project Blue Sky v ABA (1998) 194 CLR 355 ;
Windsor Developments Pty Ltd v Wyong Shire Council Land and Environment Court No. 10521 of 1990 unreported, 13 June 1991

DATES OF HEARING: 08/11/05

DATE OF JUDGMENT:

11/23/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr S B Austin QC
SOLICITORS
Phillips Fox
RESPONDENT
Mr T F Robertson SC
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

23 November 2005

10714, 10715, 10716 and 10717 of 2005
Optima Developments Pty Limited v Wyong Shire Council
JUDGMENT

1 Talbot J: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (“EPA Act”), from the decision of the Wyong Shire Council (“the council”) to refuse four development applications to subdivide under community title, various lots within a Court-approved mobile home park known as Pacific Lakes Manufactured Home Estate. Senior Assessor Jensen, as he then was in 1991, determined an application for development consent to the mobile home park under the provisions of Wyong Local Environmental Plan 91 (Windsor Developments Pty Ltd v Wyong Shire Council Land and Environment Court No. 10521 of 1990 unreported, 13 June 1991) by granting consent to the development application. The consent has been modified since but in immaterial respects for present purposes.

2 The development application the subject of proceedings 10716 of 2005 seeks development consent for additional dwelling sites to the Pacific Lakes Manufactured Housing Estate and subdivision of a community lot into 25 neighbourhood lots.

3 The three development applications the subject of the other proceedings seek development consent for additional dwelling sites and subdivision respectively of two neighbourhood association lots into two neighbourhood lots and one residue association lot (10714 of 2005); of one community development lot into 15 neighbourhood lots (10715 of 2005) and of one neighbourhood lot into two neighbourhood lots (10717 of 2005).

The land

4 The estate is situated on the corner of Elizabeth Bay Drive and the Pacific Highway, at No 171 Pacific Highway, Lake Munmorah. It presently comprises Lot 1, DP 285788; Lot 1, DP 270244; Lot 9, DP 270244; Lot 14, DP 270244; Lot 25, DP 270244.

Relevant planning controls
Wyong Local Environmental Plan 1991 (WLEP)

5 Under…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWLEC 649
Decision Date: 11/23/2005

CaseChat Overview and Summary

Optima Developments Pty Limited sought development consent to subdivide and develop various lots within a mobile home park known as Pacific Lakes Manufactured Home Estate. The Wyong Shire Council refused the application, prompting the applicant to appeal to the Land and Environment Court. The central issue was whether the State Environmental Planning Policy (SEPP) 36 and the Wyong Local Environmental Plan (LEP) were inconsistent, particularly in relation to the development of manufactured home estates (MHEs) within scenic protection zones. The applicant argued that the SEPP 36 should not limit the permissibility of MHEs if the LEP allowed it, while the council contended that SEPP 36 was intended to be the sole authority for such developments. The court examined the definitions of caravan parks and MHEs in the relevant planning documents and the aims of SEPP 36, which aimed to facilitate the establishment of MHEs in suitable locations. Talbot J concluded that while SEPP 36 did not allow MHE development in certain sensitive areas like scenic protection zones, it did not prohibit such development where the LEP already permitted it. Therefore, the court found no inconsistency between the SEPP 36 and the Wyong LEP in this context, allowing for the proposed development subject to obtaining development consent.

Talbot J determined that the proposed development was not prohibited under s76B of the EPA Act by cl 6(a) and Schedule 2.6 of SEPP 36. Consequently, development for the purpose of a MHE could be lawfully carried out on the subject land with consent. The court also found that once development consent for a MHE was obtained, the land could be subdivided under cl 8 of SEPP 36. However, the court emphasized that development consent must be obtained before relying on cl 8 for the authority to subdivide. The case was listed for further hearing to address remaining issues.

Orders