Wattle Residential Parks Pty Ltd v Sutherland Shire Council

[2020] NSWLEC 1472

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wattle Residential Parks Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1472

Hearing dates:

25 September 2020

Date of orders:

25 September 2020

Decision date:

25 September 2020

Jurisdiction:

Class 2

Before:

Dixon SC

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Activity Application No 18/0012 to install one (1) elevated, single level moveable dwelling on land legally described as Lot 129 in DP 777968, known as 1 Menai Road, Woronora, is approved, subject to the conditions in Annexure A.

(3)   The exhibits are returned upon publication of the judgment.

Catchwords:

APPEAL – application under s 68 of the Local Government Act 1993 for the installation of a single level moveable dwelling within an existing caravan park – objections pursuant to s 82(3) for variations to subss 88(1), (2) and (3), 94(1) (a) and (b) and clause 141(3) of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 – flood prone land – consideration of Flood Emergency Management Plan – the public interest

Legislation Cited:

Local Government Act 1993

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

State Environmental Planning Policy No 21—Caravan Parks

Category:

Principal judgment

Parties:

Wattle Residential Parks Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

C Rose (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2019/310729

Publication restriction:

No

Judgment

1. Woronora Caravan Park is located adjacent to Woronora River at 1 Menai Road, Woronora (the site). It has existed at the site since at least the 1950s and has approval for 67 caravan/moveable dwellings sites within the caravan park. It presently operates under existing use rights.

2. On 5 November 2018 the applicant made a s68 Activity Application No 18/0012 for the installation of a single level moveable dwelling on proposed Site D (being a site approved under MA 18/0400) within the caravan park.

3. On 18 November 2019 the Council determined to refuse the application and the applicant has appealed that decision to the Court under s 176 of the Local Government Act 1993. The grounds of refusal related to non-compliances with the following provisions of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (Regulation), in that:

1. the boundary of the site on which the moveable dwelling is proposed is not setback 5km from a community building;

2. the proposed carport provides vertical support to part of the proposed dwelling;

3. an existing community building in the caravan park is less than 10km from a boundary; and

4. a number of existing access roads do not comply with the minimum required width.

4. There were also a number of local submissions received objecting to the application.

5. Since the issue of the Council’s notice of refusal, the applicant has obtained s 82 variations for subss 88(1), (2) and (3), 94(1)(a) and (b) of the Local Government Act and cl 141(3) of the Regulation (Exhibit 1). It has also considered the applicant’s expert report provided by Mr Steven Molino in respect of the final Flood Emergency Management Plan dated March 2020 (FEMP) (Exhibit C) and now accepts that the FEMP addresses the various contingencies that could occur in the event of an emergency and demonstrates that there are procedures in place to implement the plan and deal with such emergencies. (Noting that Condition 11 of the consent issued in relation to the MA 18/0400 requires the approval of the FEMP before the issue of a construction certificate for works associated with the approved modifications to the caravan park including the physical creation of the site on which the proposed moveable dwelling will be located).

6. Apart from the variations noted above, the Council submits that the application complies with all relevant provisions of the Regulation and that there is no applicable local policy under Pt 3 of the Local Government Act precluding the approval of the application subject to the conditions in Annexure A.

7. Together with the applicant, the Council invites me to make the consent orders filed dated 24 September 2020.

Consideration

8. State Environmental Planning Policy No 21—Caravan Parks (SEPP 21) regulates development for the purpose of caravan parks – which includes moveable dwellings. Relevantly, cl 8(4A) of SEPP 21 provides that, in circumstances where a consent has been issued for a caravan park (as is the case at hand), separate development consent for the installation of a moveable dwelling on a site within a caravan park is not required.

9. Section 89 of the Local Government Act sets out the matters that I must consider before approving an Activity Application for a moveable dwelling on this existing caravan park. The section provides:

89 Matters for consideration

(1) In determining an application, the council—

(a) must not approve the application if the activity or the carrying out of the activity for which approval is sought would not comply with the requirements of any relevant regulation, and

(b) must take into consideration any criteria in a local policy adopted under Part 3 by the council which are relevant to the subject-matter of the application, and

(c) must take into consideration the principles of ecologically sustainable development.

(2) If no requirements are prescribed for the purposes of subsection (1)(a), and no criteria are adopted for the purposes of subsection (1)(b), the council in determining an application—

(a) is to take into consideration, in addition to the principles of ecologically sustainable development, all matters relevant to the application, and

(b) is to seek to give effect to the applicant’s objectives to the extent to which they are compatible with the public interest.

(3) Without limiting subsection (2), in considering the public interest the matters the council is to consider include—

(a) protection of the environment, and

(b) protection of public health, safety and convenience, and

(c) any items of cultural and heritage significance which might be affected.

10. The applicant’s planner, Ms Ellen Robertshaw and the Council’s consultant planner, Mr Glen Apps, gave evidence at the hearing in support of the application. Mr Apps adopted the assessment in Ms Robertshaw’s written statement of evidence (Exhibit B) and concurrently they explained how the matters in s 89 of the Local Government Act had been satisfied. They also confirmed that there is no Local Policy adopted under Pt 3 by the Council of relevance, and that the Departmental Chief Executive had approved the applicant’s objection lodged under s 82(1)(b) of the Local Government Act for variations to subss 88(1), (2) and (3), 94(1)(a) and (b) of the Local Government Act and cl 141(3) of the Regulation.

11. In addressing the principles of ecologically sustainable development, the planners agreed that the prefabricated moveable dwelling would be built from sustainable materials – recyclable products transported to the site require no excavation, minimal services and have solar panels. There would be no impacts on the Foreshore Protection area.

12. Additionally, I am also required to consider the public interest in the context of the applicant’s s 82 objections to the matters in s 89 of the Local Government Act, and more generally. To that end, the Council notified the original application and the hearing before me and invited public submissions in respect of the application. A number of written submissions were received and were tendered to the Court (Exhibits 2 and 3). I also received additional oral evidence given by Mr John Cox via telephone at the commencement of the hearing.

13. It is fair to say that the focus of the objectors’ submissions – including Mr Cox’s evidence is an objection to the continued operation of the existing caravan park on the site and any intensification of that use. Some submitters also complained about the site’s presentation and consequent devaluation of their properties.

14. That said, there is nothing that the Court can do about the use of the site for a caravan park in circumstances where it operates under existing use rights. That is the fact. Similarly, the fears and concerns expressed by some about future applications for the site cannot be relevant to my assessment of this application for the installation of one moveable dwelling on Site D.

15. However, the local objectors’ concerns raised about safety due to the flood prone nature of the land are valid and relevant considerations. Fortunately, the applicant’s flood expert, Mr Molino and the Council’s engineer, Mr Slater have given serious consideration to these matters and it is their expert assessment that the flooding issues are addressed by the design of the dwelling – above the flood level and the FEMP. I accept their expert assessment and am of the opinion that there is no relevant matter raised in the public interest to preclude the issue of an approval to this application.

16. Accordingly, having considered the matters in s 89 of the Local Government Act based on the expert evidence before me, I have determined to grant consent to the application subject to the conditions in Annexure A.

Orders

17. The Court orders that:

1. The appeal is upheld.

2. Activity Application No 18/0012 to install one (1) elevated, single level moveable dwelling on land legally described as Lot 129 in DP 777968, known as 1 Menai Road, Woronora, is approved, subject to the conditions set out in Annexure A.

3. The exhibits are returned upon publication of the judgment.

………………………

S Dixon

Senior Commissioner of the Court

Annexure A (133942, pdf)

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Decision last updated: 02 October 2020