Allam MHE Developments No. 2 Pty Ltd v Port Macquarie Hastings Council

Category: Principal judgment

Parties: Allam MHE Developments No. 2 Pty Ltd (Applicant)
Port Macquarie-Hastings Council (Respondent)

Representation: Counsel:
C Gough (Solicitor) (Applicant)
D Havadjia (Solicitor) (Respondent)
Solicitors:
Storey & Gough Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2024/472171

Publication restriction: Nil

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s development application DA2024-249 (Development Application). The Development Application sought consent for additions to a manufactured home estate comprising 50 additional sites, additional visitor parking, internal roads, stormwater, landscaping, gated entrance and caravan storage area on land identified as Lot 201 in Deposited Plan 1302665, known as 79 Batar Creek Road, Kendall NSW (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

The Development Application

3. The Development Application was lodged with the respondent on 7 May 2024.

4. The Development Application was publicly exhibited between 16 May to 14 June 2024. Five written submissions were received in response to the notification. The issues raised include:

5. concerns that the assessment of traffic impacts was out of date and significantly underestimated the current and future traffic impacts of the development;

6. concerns regarding safety of pedestrians, particularly children accessing the poll and tennis courts in Orara Street;

7. a request for permanently reduced speed limits for Laurel Street with pedestrian pathways and improved intersections; and

8. the need for upgrades to certain sections of Batar Street due to the extra traffic generated by the previously approved subdivision and resulting safety concerns.

9. On 19 December 2024, the proceedings were commenced in relation to the deemed refusal of the Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

10. On 20 February 2025, the applicant was granted leave to rely on amended documentation (Amended Development Application).

11. Following the termination of a conciliation conference arranged by the Court under s 34(1) of the LEC Act, the matter was listed for hearing on 18 and 19 November 2025.

12. Prior to the hearing, the parties reached agreement and requested that the matter be listed for another s 34 conference. The Court granted this request, and the matter was listed for a s 34 conference on 18 November 2025, following which the hearing was vacated. I presided over the conciliation conference.

13. The decision agreed upon is for the grant of consent to the Amended Development Application subject to conditions of consent. The signed agreement is supported by a jurisdictional statement.

14. 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.

Jurisdictional considerations

11. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owners consent

12. The applicant is the registered proprietor of the Subject Land and provided written consent to the lodgement of the Development Application (see tab 3 of the Class 1 Application). For completeness, I note that works are also proposed on a small part of Lot 101 in Deposited Plan 1288830 and owners’ consent was similarly provided in respect of this property (see Class 1 Application, tab 3).

Rural Fires Act 1997 (NSW)

13. The Amended Development Application comprises integrated development under s 4.46 of the EPA Act as it requires a bush fire safety authority, being development for a “special fire protection purpose”. Pursuant to s 100(B) of the Rural Fires Act 1997 (NSW) (RF Act), a person must obtain a bush fire safety authority before developing bush fire prone land for a purpose referred to in subsection (1), which relevantly includes development for a special fire protection purpose.

14. Section 100B(2) of the RF Act relevantly provides:

“A bush fire safety authority authorises development for a purpose referred to in subsection (1) to the extent that it complies with standards regarding setbacks, provision of water supply and other matters considered by the Commissioner to be necessary to protect persons, property or the environment from danger that may arise from a bush fire.”

15. The proposed development was referred to the NSW Rural Fire Service (RFS) and on 15 July 2025, the RFS issued General Terms of Approval (RFS GTAs) which are incorporated in the Agreed Conditions of Consent (see Condition 1).

Section 4.14 of the EPA Act

16. Section 4.14(1)(a) of the EPA Act relevantly provides that development consent cannot be granted for the carrying out of development on bush fire prone land, unless the consent authority is satisfied that the development conforms to the specifications and requirements of Planning for Bush Fire Protection (PBFP) that are relevant to the development.

17. Section 4.14(1) of the EPA Act applies to the Amended Development Application as the Subject Land is mapped as containing bush fire prone land. The parties agree that the requirements of s 4.14(1)(a) of the EPA Act have been met having regard to the findings in both the Bushfire Hazard Assessment prepared by David Pensine dated July 2023 (Bushfire Hazard Assessment) and the RFS GTAs.

18. In determining the Development Application, I confirm that I am satisfied that the Amended Development Application complies with the relevant specifications and requirements of PBFP, having regard to the Bushfire Assessment, RFS GTAs, and conditions of consent.

Biodiversity Conservation Act 2016 (NSW)

19. Section 7.7(2) of the Biodiversity Conservation Act 2016 (NSW) (BC Act) relevantly provides that if proposed development is likely to significantly affect threatened species, the application is to be accompanied by a biodiversity development assessment report (BDAR). Section 7.2 of the BC Act provides a series of triggers for when a proposed development is deemed “likely to significantly affect threatened species”.

20. In this regard, the parties agree that:

21. The proposal will not have a significant impact on any threatened species having regard to the analysis carried out in the Ecological Assessment Report prepared by AEP dated 18 December 2024 (Ecological Assessment Report) for the purposes of the BC Act.

22. The proposal will require the removal of less than 0.25ha of native vegetation.

23. The Subject Land is not identified as a declared area of outstanding biodiversity value.

24. Having regard to the above, the parties submit, and I accept, that the proposed development does not trigger the biodiversity offsets scheme or require the preparation of a BDAR.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

22. The parties agree that Ch 3 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) relating to Koala Habitat Protection 2020 applies to the proposal as the area of the Subject Land is greater than 1ha and located within the Port Macquarie Hastings Local Government Area.

23. The parties agree that the Amended Development Application will have no impact on koalas or koala habitats for the purposes of the BC SEPP, provided that koala exclusion fencing is proposed during construction and during operation (see Condition 1). In determining the Amended Development Application, I confirm that I am satisfied that the development is likely to have low or no impact on koalas or koala habitat having regard to the Ecology Assessment Report and Agreed Conditions.

State Environmental Planning Policy (Resilience and Hazards) 2021

24. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any 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.

25. The parties agree that contamination was adequately considered and addressed as part of the rezoning of the parent lot (see Development Consent DA 2017/736) which included the residential subdivision of the Subject Land. Therefore the parties agree, and I accept that, the Subject Land has been considered suitable for the proposed residential use and no further investigation is required.

State Environmental Planning Policy (Housing) 2021

26. Part 8 of Ch 3 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) relating to “Manufactured home estates” applies to the proposal.

27. Section 123 of SEPP Housing relevantly provides that “a council must not consent to any such development unless it imposes, as a condition of the consent, a requirement that an approval to operate a manufactured home estate on the land on which the development is to be carried out must be obtained under Part 1 of Chapter 7 of the Local Government Act 1993.” The parties agree that this requirement is satisfied having regard to Condition 25 of the Agreed Conditions.

28. Section 125 of SEPP Housing requires the consent authority to be satisfied of various matters. The parties agree, and I accept that, these matters are satisfied having regard to s 4.9 of the Statement of Environmental Effects prepared by Land Dynamics Australia dated April 2024 (SEE).

Port Macquarie Hastings Local Environmental Plan 2011

29. The Subject Land is zoned part R1 General Residential and RU1 Primary Production under the Port Macquarie Hastings Local Environmental Plan 2011 (LEP). Manufactured homes are permitted with consent in the R1 zone. I have had regard to the zone objectives which are extracted below:

R1 General Residential

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

RU1 Primary Production

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

• To encourage diversity in primary industry enterprises and systems appropriate for the area.

• To minimise the fragmentation and alienation of resource lands.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

30. The accessway and stormwater spillway are located on the RU1 portion of the Subject Land. The parties agree and I accept that the flexible zone boundary provisions in cl 5.2 of the LEP apply as the works are within 20m and satisfy the requirements in cl 5.3(4) of the LEP.

31. Pursuant to cl 5.21 of the LEP, development consent must not be granted to development relevantly on land within the flood planning area unless the consent authority is satisfied of the matters in cl 5.21(2) and has considered the matters in cl 5.21(3). The parties agree that a small section of the Subject Land is located within a flood planning area and the provisions of cl 5.21 apply.

32. The earthworks proposed as part of the proposal include the construction of a stormwater treatment device in the location affected by the flood planning area so that the levels of dwelling sites will achieve the relevant flood planning level. The parties agree, and I accept that, the matters for satisfaction and consideration in cl 5.21 are appropriately addressed having regard to the SEE (pp 26-27) and Stormwater Management Plans (see Class 1 Application tab 12).

33. Pursuant to cl 6.2 of the LEP regarding public utility infrastructure, the parties agree, and I accept that, public utility infrastructure, water, sewer and telecommunications are available to the proposed sites.

34. Pursuant to cl 7.2 of the LEP regarding earthworks, in deciding whether to grant consent for earthworks, the consent authority must consider the matters in cl 7.2(3) of the PLEP.

35. In determining the Amended Development Application, I confirm that I have considered the matters in cl 7.2(3) of the PLEP, having regard to the SEE (p 27) and agreement of the parties that:

36. The development’s proposed impact on drainage patterns and soil stability is acceptable.

37. The excavation is part of the proposed redevelopment of the site and will not the affect the future use or redevelopment.

38. The quality of soil to be excavated is of de minimis importance and not of determinative weight. Conditions of consent have been prepared to ensure the use of clean fill and disposal of excavated material to an appropriate destination.

39. The proposed excavation will not detrimentally affect existing and likely amenity of adjoining properties.

40. The likelihood of disturbing relics is low. Safeguards are implemented via conditions of consent to suspend work pending the unearthing of relics.

41. The site will not have adverse impacts on a waterway, drinking water catchment or environmentally sensitive area.

42. Pursuant to cl 7.13 of the LEP regarding essential services, the parties submit, and I accept, that all services essential for the development are available or adequate arrangements have been made to make them available when required.

Port Macquarie Hastings Development Control Plan 2013

37. Relevant provisions of the Port Macquarie Hastings Development Control Plan 2013 are considered at pp 28-29 of the SEE.

Remaining matters in s 4.15(1) of the EPA Act

38. In relation to s 4.15(1)(a)(iiia) of the EPA Act, the parties have agreed on the terms of a Planning Agreement which was executed by the parties on 5 November 2025. The Planning Agreement is subject to Condition 17 of the Agreed Conditions.

39. The matters set out in s 4.15(1)(b), (c), and (e) are addressed generally in the SEE.

40. In relation to s 4.15(d), the Development Application, as lodged, was publicly exhibited between 16 May to 14 June 2024. Five written submissions were received in response to the notification.

41. I am satisfied that the submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.

Conclusion

42. 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.

43. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Orders

44. The Court orders that:

45. The appeal is upheld.

46. Development consent is granted to Development Application No. 2024/249, as amended, for the proposed extension to the Manufactured Housing Estate on Lot 201 in Deposited Plan 1302665, known as 79 Batar Creek Road, Kendall, subject to the conditions set out in Annexure A.

N Targett

Commissioner of the Court

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Amended Annexure A.03 MB.pdf

Amendments

21 January 2026

Pursuant to rule 36.17 of the Uniform Civil Procedure Rules 2005, the Court has attached the GTAs and the Notice of Payment to Annexure A, to reflect 'Amended Annexure A.'