Lake Illawarra Park Pty Limited v Wollongong City Council

"An existing approval to operate was in place from 31 August 2019 to 31 August 2020 (CP-2006/6);

b. An application (under s 107 of the LG Act) to renew CP-2006/6 was made and on 24 August 2021 a new approval LG-2020/78 (Approval) was granted. However, the terms and conditions in the Approval were different to those made as part of the application (and the Applicant will say, that was not within power);

c. The Approval seeks to incorporate conditions 1, 3, 4 and 11 of the consent;

d. Under this application, the Applicant proposes to have terms of the Approval varied to be either:

i. Replaced by the conditions in the approval CP2003/6 (contention 1); or

ii. Have conditions 1, 3, 4 and 11 deleted as the Court granted consent has not been activated (contention 2); or

iii. Have conditions imposed consistent with the proposed modification of the consent (such that it will be consistent with the proposed modified conditions 1, 3, 4 and 11 of the proposed modified consent) (contention 3);"

1. The Dictionary of the LGA does not define 'caravan park' but does define 'manufactured home' and 'manufactured home estate' as follows:

manufactured home means a self-contained dwelling (that is, a dwelling that includes at least one kitchen, bathroom, bedroom and living area and that also includes toilet and laundry facilities), being a dwelling -

(a) that comprises one or more major sections, and

(b) that is not a motor vehicle, trailer or other registrable vehicle within the meaning of the Road Transport Act 2013,

and includes any associated structures that form part of the dwelling.

manufactured home estate means land on which manufactured homes are, or are to be, erected.

1. Finally, the Applicant submission at par 56 of the written submissions is that;

"Based on the Respondent's opening, it has identified material sufficient to (in the Applicant's view) trigger the engagement of the Lockwood principle ... Accordingly, the Applicant accepts that the approval was a valid exercise of the power under s 94. The end point is that there is little dispute in these Class 2 proceedings; the parties appear to accept that the outcome in the Class 2 out follow the Class 1." (Also par 184, Applicant's submissions)

"in administrative law, it is possible for the for a person exercise statutory power to putatively exercise it pursuant to a differently named power. That is, hypothetically, a person can say they are exercising the power under section 1 but the power is actually available under section 2. Without doubt in this case, the Notice of Determination was given under s 94 of the LG Act, which is not at all called up on a renewal application. However, it could be that the power being exercise was as if it was a new decision. The administrative law principle in Lockwood v The Commonwealth [1954] HCA 31; (1953) 90 CLR 177 is stated at 184, Fullagar J that: "[i]t is, I think, a settled principle that an act purporting to be done under one statutory power may be supported under another statutory power..."."

1. The Applicant accepts that it is within power for the Council to issue the determination made "because of the request to consider the matters that are relevant under s 89 and the actual consideration of those, plus the exercise of power under s 94".
2. Both parties agree that the conditions of the s 68 approval (AtO) on the Class 2 LGA Approval Appeal, should reflect the conditions of the development consent, either as modified or not. (Applicant's submissions, par 185)
3. Accordingly, I accept that the Applicant has amended its Class 2 Application and I adopt the reasons provided by the Applicant in addition to noting the terms of s 107(2) of the LGA in order to be satisfied that conditions can be imposed on the AtO because the AtO operates as a grant of approval pursuant to s 68 of the LGA and because there is good cause not to simply renew the previous AtO for the reasons given by the Council in the letter dated 16 March 2021 (Ex 3, Vol 4, Tab 37). I find that the result of the Class 2 proceedings should be an AtO that mirrors the conditions of consent resulting from the determination of the Class 1 proceedings.
4. The balance of the judgment will now focus on the Class 1 Modification Appeal.

1. The Respondent's case in relation to the Class 1 Modification Appeal is set out in Contentions raised by the Respondent in the Amended Statement of Facts and Contentions (Mod ASOFAC) filed 7 July 2023 (Ex 1). The Respondent contends that the Proposed Modification should not be approved for the following 7 reasons:

(1) A consent authority cannot be satisfied that the development as proposed to be modified, is substantially the same development as the development for which was originally granted.

(2) The proposed amendments to conditions would render the modified conditions/consent unworkable, imprecise and unenforceable.

(3) The proposed modification is inconsistent with the requirements of cl 5.21 of the Wollongong Local Environmental Plan 2009 (WLEP 2009) and Chapter E13 of the Wollongong Development Control Plan 2009 (WDCP 2009) with respect to floodplain management and safety.

(4) (a) The negative social impacts identified as arising from the financial costs of compliance with the conditions of consent are based on an incorrect assumption about responsibility for the costs of compliance.

(a) (b) Even if it was accepted that the costs of compliance with the conditions of the development could not be funded by the current park operator (which is not admitted), the solution cannot be to simply allow an unsuitable land use to continue.

(5) The social impact assessment submitted in support of the application does not consider the social impacts associated with vulnerable part residents living at significant flood and fire risk.

(6) Inconsistency with Chapter C4 Caravan Parks, Camping Grounds and Manufactured Home Estates of the WDCP, Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021 and Rural Fire Service General Terms of Approval (RFS GTA).

(7) The Site is not suitable for the development as proposed to be modified.

1. The Applicant, in the Statement of Facts and Contentions in Reply filed 27 October 2022 (SOFAC in Reply) (Ex E) in the Class 1 Proposed Modification Proceedings, agrees that the contentions put by the Respondent sufficiently articulate the issues in dispute between the parties. The Respondent's contentions inform the following framework I have adopted for this judgment as follows.

(1) Description of the Site [36] and the statutory framework for residents of the Site [44];

(2) Wording of conditions [61];

(3) Power and test for determining modification application and is there sufficient certainty? (Contentions 1 and 2) [72];

(4) Consideration of the flood and fire risk: Is the proposed modification inconsistent with the requirements of cl 5.21 of the WLEP 2009 and Chapter E13 of the WDCP 2009 with respect to floodplain management and safety? (Contention 3 and 6) [104];

(5) Can the social impact and cost of compliance justify the unsuitable land use (because of flood and fire risk) to continue? (Contentions 4 and 7) [130];

(6) The social impact assessment submitted in support of the application does not consider the social impacts associated with vulnerable part residents living at signification and fire risk (Contentions 5 and 6) [141]; and

(7) Findings and conclusion.

1. The Applicant filed written submissions for each matter on 16 August 2023 and consolidated closing submissions on 25 August 2023. The Respondent also provided written opening and closing outlines. I am grateful to both parties for their assistance in these proceedings.
2. The Court was also assisted by the evidence of a number of experts as contained in the following joint expert reports as well as their oral evidence during the proceedings:

(1) Joint Expert Planning Report prepared by Theresa Whittaker, Town Planner for the Respondent and Kerry Nash, Town Planner for the Applicant filed 16 August 2023 (Class 1 Modification Application Appeal Proceedings 2022/246585) (JER Planning) (Ex N).

(2) Joint Expert Planning Report prepared by Theresa Whittaker, Town Planner for the Respondent and Kerry Nash, Town Planner for the Applicant filed 1 August 2023 (Class 2 LGA Licence Proceedings 2022/246571) (Ex Q).

(3) Joint Expert Caravan Park Compliance Report (JER Caravan Park Compliance) prepared by Conny Gissel, Registered Building Surveyor for the Respondent and Bob Browne, General Counsel for the Applicant filed 30 July 2023 (Class 1 Modification Application Appeal Proceedings 2022/246585) (Ex P).

(4) Joint Expert Caravan Park Compliance - Health and Building Report prepared by Conny Gissel, Registered Building Surveyor for the Respondent and Bob Browne, General Counsel for the Applicant filed 30 July 2023 (Class 2 LGA Approval Appeal Proceedings 2022/246571) (Ex K).

(5) Joint Expert Social Planning Report (JER Social Planning) prepared by Dr Judith Stubbs, Social Planning Expert for the Applicant and Professor Roberta Ryan, Social Planning Expert for the Respondent filed 10 August 2023 (Class 1 Modification Application Appeal Proceedings 2022/246585) (Ex M).

(6) Joint Expert Social Planning Report prepared by Dr Judith Stubbs, Social Planning Expert for the Applicant and Professor Roberta Ryan, Social Planning Expert for the Respondent filed 10 August 2023 (Class 2 LGA Approval Appeal Proceedings 2022/246571) (Ex R).

(7) Joint Expert Flooding Inundation Report (JER Flood Inundation) prepared by Mathew Carden, Flooding and Tidal Inundation Expert for the Respondent, Amanda Schipp, Tidal Inundation Expert for the Respondent, and Anthony Barthelmess, Flooding and Tidal Inundation Expert for the Applicant filed 28 July 2023 (Class 1 Modification Application Appeal Proceedings 2022/246585) (Ex J).

(8) Joint Expert Flooding Report prepared by Mathew Carden, Flooding and Tidal Inundation Expert for the Respondent and Anthony Barthelmess, Flooding and Tidal Inundation Expert for the Applicant filed 28 July 2023 (Class 2 LGA Licence Proceedings 2022/246571) (Ex O).

(9) Joint Expert Report - Estimated Costs of Upgrading prepared by Theresa Whittaker, Town Planner for the Respondent, Mathew Carden, Flooding/Stormwater Engineer for the Respondent and Stephen Bolt, Quantity Surveyor for the Applicant filed 31 July 2023 (Class 1 Modification Application Appeal Proceedings 2022/246585) (Ex L).

(10) Joint Expert Report - Costs prepared by Theresa Whittaker, Town Planner for the Respondent, Andrew Firth, Forensic Accountant for the Applicant filed 28 July 2023 (Class 1 Modification Application Appeal Proceedings 2022/246585) (Ex H).

(11) Expert Report - Costs prepared by Andrew Firth, Forensic Accountant for the Applicant filed 28 July 2023 (Class 1 Modification Application Appeal Proceedings 2022/246585) (Ex G).

Description of the Site and locality and the statutory framework of occupation of the Site

1. The nature of the proceedings is particular to the Site therefore it is helpful, for both proceedings, to set out a description of the Site.
2. The Site is located in the town of Windang on the foreshore of Lake Illawarra 7km from the centre of Wollongong and approximately a 90 minutes drive from Sydney. The Site is managed by Hampshire Villages, a company that specialises in the development and management of lifestyle villages for the over 1950s (Ex C3). Hampshire Villages has a number of residential communities around Australia (https://hampshirevillages.com.au). The Site operates as "Jettys by the Lake" and offers accommodation pursuant to the terms of the Residential (Land Lease) Communities Act 2013 (RLLC Act).The Site is bound by the Lake Illawarra Foreshore to the West, Windang Road to the East and, to the South, residential land containing detached dwellings, a playing field (Boronia Park), a patch of dense vegetation and the northern extent of another caravan park known as Oaklands Village.
3. The Site comprises the four allotments described at [1] which combine to form a large irregular shaped parcel of land on the western side of Windang Road. The existing caravan park extends over the 3 larger allotments of approximately 6.53 hectares, which are owned by the Applicant, as well as extending over the irregular shaped parcels of land found along part of the edge of Lake Illawarra, known as Crown Lot 100. The Crown Lot 100 parcels, approximately 4057m2, are occupied by the Applicant on the basis of a lease from, formerly the Lake Illawarra Authority, and presently the NSW Department of Planning, Industry & Environment (Ex B, Tab 5). The total area of the Site is approximately 6.94 hectares. I reproduce a 2021 aerial photograph with the lot boundaries marked in red extracted from the ASOFAC at Fig 2:

Fig 2: Aerial photograph extracted from ASOFAC dated 7 July 2021 (Ex 1)

1. The improvements and structures on the Site include the existing caravan park and other buildings and structures including a community pool, community hall, communal toilet facilities, laundry facilities, administration and sales office, a building operating as a "Men's Shed" by the Australian Men's Shed Association, various other sheds and a managers' residence. The caravan park is comprised of 204 sites. Of the total sites, 197 are occupied by a dwelling and 7 are vacant. Of the dwellings 37 are owned by the park, 132 are owned by residents and 28 are owned by the park and residents under a shared equity arrangement. (Ex C3, page 25)
2. A caravan park has operated on the Site since at least 1965 pursuant to development consent and various LGA approvals issued by the Respondent from time to time. (Class 2 ASOFAC, par 10, Ex F)
3. Lot 1 DP 518290 is zoned R2 Low Density Residential by the WLEP 2009 and is sited immediately adjacent to Windang Road. This allotment has an area of 2700m2, is generally rectangular in shape and is currently occupied by a maintenance compound, Men's Shed, a road, and numerous dwelling sites. The remainder of the Site is zoned RE2 Private Recreation under the WLEP 2009.
4. The Applicant relies on the Statement of Evidence: Social and Economic Impacts by Judith Stubbs & Associates, dated May 2023, submitted in support of the modification application (SIA) (Ex C3) which explains that 150 (93%) of the existing resident-owned or partly resident-owned dwellings are directly affected by the Consent conditions requiring relocation or raising of the structure (SIA, p 8). Central to the Class 1 Application is the modification of the time period in the conditions requiring the raising and relocation works to be done to 150 of the resident owned moveable dwellings, by December 2025 (five years from the grant of the consent by the Court).
5. It is agreed that there is a current and existing flood and fire risk and that the cost to undertake the works required by DA-2018/1499 is over $14,000,000 (Ex C1). I make a preliminary finding that the residents themselves do not have a legal obligation to comply with the conditions of the Consent. (Respondent written closing submissions, par 4).
6. The existing caravan park operates under the RLLC Act with the majority of park residents owning their own moveable dwellings which are placed and occupied on the leased sites so that the Applicant owns and leases sites to occupants. Put another way, the individual resident owns the dwelling structure and resides on the allocated site pursuant to a Residential Site Agreement in accordance with the RLLC Act. There are a number of provisions of the RLLC Act which directly impact the ability to implement the conditions of consent. The Applicant submits that the provisions of the RLLC Act show that it cannot be legally affected by, nor is it financially feasible for, the Applicant to carry out those works. I will come back to the provisions of the RLLC Act at [49] in the context of the proposition of the Applicant that the Park Operator cannot simply take possession because of the restrictions as to evictions of a resident (s 107 RLLC Act "Reasonable Grounds").
7. The Applicant gives four key reasons for seeking the modifications to the Consent as set out in the written submission and I reproduce these as follows:

(1) First, the residents are not likely to be in a position to comply with the modified conditions;

(2) Secondly, the Applicant does not have the ability to carry out the works as:

(a) The works to the dwellings individually would be a breach of the quiet enjoyment (possession) provisions of the RLLC Act;

(b) The Applicant is not in a financial position to carry out the works on behalf of the residents;

(c) An Administrator or any other potential operator would not be in a position to carry out the works unless content to operate at a significant loss;

(3) Thirdly, if strict compliance with the 5 year period is required, it may force the park to close and / or residents to vacate which will have a significant financial and social impact on those residents and the community;

(4) Fourthly, requiring compliance when the dwellings reach the end of their useful life achieves two objectives:

(a) It preserves the status quo for a reasonable period which does not pose a significant environmental threat or risk; and

(b) If compliance was required whenever existing residents moved or sold their dwellings, that may result in a breach by the Applicant of s 107 of the RLLC Act (and alternatively, if the Court does not agree with that, the Applicant is willing to accept wording in the condition which would require any new resident to comply with the relevant requirement).

(i) The Applicant has proposed the wording of the conditions which is to require compliance, not at the change of ownership, but at the end of the useful life of the dwelling (although the Applicant is willing to accept differently worded conditions if it was considered by the Court that it would not be a breach of s 107 to insist on compliance at the time of the change of ownership). Much then turns on this case on the interpretation of s 107 of the RLLC Act.

1. An understanding of the RLLC Act is necessary which I come back to at [49] however, the key features of the RLLC Act to note (with defined terms in italics) are summarised by the Applicant as follows:

(1) It regulates the contractual relationships (by residential site agreements) between residents of the caravan park (called home owners) and the owner and operator of the caravan park (called the operator);

(2) The residential site agreements essentially allow a home owner to place, install or occupy a manufactured home or caravan with rigid annex on a specifically demarked site within the park, and have possession of that site, for the payment to the operator of a form of rent called a site fee;

(3) All residential site agreements contain a range of standard terms required by the Act;

(4) The standard terms include the right of the possession of the site (quiet enjoyment), the obligation to pay site fees, and importantly for this case, the ability to on-sell the home on the residential site, without interference by the operator with the operator then required to enter into a new residential site agreement with a new resident, on reasonable terms.

"Residential parks are at the lowest end of the spectrum of housing affordability by way of ownership in New South Wales. They are often occupied by the elderly and the vulnerable. The evidence of Dr Stubbs (and Professor Ryan) makes this clear. Almost none of the residents are in a position to carry out the works required to comply with the conditions. However, there is an inevitable turnover of the dwellings and the opportunity to achieve compliance can occur, and inevitably for many instances of a change of ownership, will occur, when a resident moves from the park or (without putting it delicately) dies. The majority of the current residents are in their 70s and 80s. The potential for turnover exists as a simple fact of the nature of this being accommodation favoured by elderly members of the community." (Applicant Written Submissions, par 17)

1. Central to the Applicant's case is the framework of the RLLC Act. The Applicant submits that, on its face, s 107 of the RLLC Act which prevents interference with the sale of a resident's dwelling, prevents the imposition of conditions by the Park Operator for extensive compliance works to be carried out in advance, as a condition of entering into a new residential site agreement with the incoming purchaser. "That is most likely to be construed as an interference with the sale by the outgoing resident to the incoming purchaser (see ZW2 Pty Ltd trading as Lake Mummorah Residential Resort v Welch [2019] NSWCATAP 260)" (Applicant written submissions, par 19).
2. I set out the relevant provisions of the RLLC Act.
3. Definition of site agreement at s 4;

site agreement means an agreement under which the operator of a community grants to another person for value a right of occupation of a residential site in the community.

**Note - **

A site agreement gives rise to a tenancy.

1. Operator must not interfere with home owner sale of a home in accordance with the terms of s 107 which provides as follows:

107 Interference with right to sell home

(1) The operator of a community must not cause or permit any interference with, or any attempt to interfere with -

(a) a home owner's right to sell a home, or

(b) a home owner's right to display a "for sale" sign in or on a home.

Maximum penalty - 100 penalty units.

(2) Without limiting subsection (1) -

(a) interference with a home owner's right includes hindering the exercise of the right, and

(b) interference with a home owner's right to sell a home includes unreasonably restricting prospective home owners from inspecting the home or any common area of the community, and

(c) interference includes making false or misleading statements about the community that affect or may affect either right, and

(d) interference includes taking any action to require the home owner to comply with any requirement made by or under the Local Government Act 1993 after becoming aware that the home owner is seeking to sell his or her home (unless the matter has been the subject of previous action).

(3) An operator does not interfere with the right to sell the home if the operator declines to enter into a site agreement with a prospective home owner and does so on reasonable grounds.

(4) Without limiting subsection (3), reasonable grounds can be established on -

(a) the basis of unfavourable information about the prospective home owner contained in a residential tenancy database referred to in the Residential Tenancies Act 2010, other than a database referred to in section 210 of that Act, or

(b) the basis that the prospective home owner has been evicted from the community or another community within the past 5 years for a breach of a site agreement by the prospective home owner.

1. A site agreement may only be terminated in certain circumstances as set out in Pt 11 of the RLLC Act at ss 116, 118, 123 and 127, which provide as follows:

Part 11 Termination of site agreements

Division 1 Termination generally

116 Termination of site agreements

A site agreement terminates only in one or more of the following circumstances -

(a) if either party gives the other party a termination notice in accordance with this Part and the home owner delivers up vacant possession of the residential site after the notice is given,

(b) if the Tribunal makes a termination order for the agreement and the home owner delivers up vacant possession of the residential site or a warrant for possession is enforced,

(c) if the home owner delivers up vacant possession of the residential site with the prior consent of the operator, whether or not the consent is later withdrawn,

(d) if the home owner agrees to relocation to a different residential site and a new site agreement is entered into under section 135,

(e) if the Tribunal makes an order declaring that the home owner abandoned the residential site,

(f) if the occupation of the home is given over to another person following the completion of the sale of the home to the operator or another person.

117 Termination by home owner

(1) The home owner under a site agreement may give a termination notice without having to specify a ground for termination.

(2) The notice must specify the day, not earlier than 30 days after the notice is given, that the agreement is terminated.

(3) The home owner must give the operator vacant possession of the residential site on or before the stated day.

118 Termination by operator

(1) The operator of a community under a site agreement may give the home owner a termination notice for the termination of the agreement, but only in accordance with this Part.

(2) A termination notice must be in the approved form, be signed by the operator or a person acting on behalf of the operator, and set out the following matters -

(a) the residential site concerned,

(b) the day on which vacant possession of the residential site is to be given,

(c) the ground for the notice.

(3) A termination notice that does not comply with this section is of no effect.

123 Termination by operator for repairs and upgrading

(1) The operator of a community may give a termination notice on the ground that the operator requires vacant possession of the residential site in order to comply with an obligation imposed by or under an Act to carry out works (including works in the nature of repairs or upgrading) within the residential site or the community.

(2) The termination notice must be accompanied by a copy of any order or notice imposing the obligation.

(3) The termination notice must not specify a date for vacating the residential site that is earlier than 90 days after the day on which the notice is given.

(4) The Tribunal may, on application by the home owner, make an order settling any dispute as to whether vacant possession is necessary in order to comply with the obligation.

(5) The termination notice is of no effect if the notice does not comply with this section or if the Tribunal determines that vacant possession is not necessary in order to comply with the obligation.

127 Termination by operator for lack of authority for use of residential site

(1) The operator of a community may give a termination notice on the ground that the residential site is not lawfully useable for the purposes of a residential site.

Note -

For example, a notice may be given if the home owner is occupying a short term site on a permanent basis in contravention of a requirement made under the Local Government Act 1993.

(2) The termination notice must not specify a date for vacating the residential site that is earlier than 90 days after the day on which the notice is given.

(3) The home owner whose site agreement is terminated under this section is entitled to be paid compensation in accordance with Division 6 but only if, unknown to the home owner, the residential site was not lawfully useable for the purposes of a residential site when the agreement was entered into.

1. There have been decisions regarding the prohibition of interference with the sale of a dwelling in proceedings heard by the NSW Civil and Administrative Tribunal (NCAT) including ZW2 Pty Ltd trading as Lake Mummorah Residential Resort v Welch [2019] NSWCATAP 260 (Welch). The Appeal Panel of NCAT affirmed the order preventing the appellant from interfering in any proposed sale by requiring a prospective purchaser to sign an agreement by including a clause 52 to that agreement to the effect that the home and work previously carried out by the residents be brought into compliance with relevant local government and building regulations. The decision considered an appeal from a Tribunal decision concluding that the conduct of the operator, in insisting a prospective purchaser bring the home into compliance with various local government and building regulations was conduct constituting interference with the sale of the residents' home in contravention of s 107 of the RLLC Act (at [8]).
2. The Appeal Panel of NCAT did not agree with the contention of the operator/appellant that the conduct of inserting a term in a new agreement could only be found to constitute interference within the meaning of s 107 of the RLLC Act if that term was unreasonable. The Appeal Panel said that the definitions of interference in s 107(2) of the RLLC Act are inclusive and that interference of the type contemplated by subsection (d) could occur where an operator expressly requires a homeowner to carry out repairs or, for example where the operator indicates that it will not consent to an assignment of an existing site agreement (such assignment being permissible under s 45 of the RLLC Act) until such time as relevant work is carried out (Welch at [40]).
3. At [41] - [42] of Welch, the Appeal Panel of NCAT stated further that:

"[41] ...where there is a sale of a home, it is not necessary for the existing site agreement to be assigned. Rather, a prospective purchaser may request the operator to enter into a new site agreement, which the operator is required to do as provided in s 109 of the Act.

[42] There is no reason to conclude that indirect action, namely including a provision requiring work to be carried out as a condition of entering into a new site agreement would not similarly constitute interference. In this regard, the vice the legislator is intending to prevent is an operator taking steps to compel a homeowner to carry out work as a condition of allowing a sale."

1. The concern expressed by the Respondent relates primarily to the proposed wording of the conditions of consent and whether there is sufficient certainty that the Site will ever be brought into compliance. The experts agree that the end of a dwelling's 'useful asset life' cannot be objectively defined, however they do say that occupation of a dwelling is indicative of useful asset life. This is understood by the Court to mean that when a dwelling ceases to be occupied, at that time that dwelling has reached the end of useful asset life resulting in triggering or enlivening the obligations regarding the works required to mitigate flood and fire risk in accordance with the conditions of consent.
2. Mr Black's affidavit (Ex W) gives the Court some comfort by showing that there has, since the present applicant owned the Site in the last 19 years, been a strong turnover of dwellings. This evidence points to the same trend being able to continue indicating that there will continue to be a substantial number of dwellings replaced that are presently in private ownership (Applicant written submissions at par 160). I will come back to this when dealing with Contention 2 below.
3. The Applicant does accept;

"that if the Court was to consider the wording to be improved by requiring the identification of all park owned dwellings by site number (and a requirement to inform the Court within a short period if dwellings become owned by the park), the Court could give that judgment and the parties could agree to the wording of an appropriate addendum to the conditions proposed to be modified." (Applicant's submissions para 164)

1. It is now appropriate to consider the actual wording proposed by the Applicant compared with the Consent.

1. As a result of the provisions of the RLLC Act, the Applicant proposes a regime that attempts to achieve compliance for those sites occupied by resident owned or partially owned dwellings, at a time that there is a change of ownership (subject to s 107 of RLLC Act which prevents "interference by the Park Operator with the ability to on-sell the dwelling") (Applicant written submissions, par 18). The proposed wording to the amended conditions makes a distinction being made between 'park-owned movable dwellings' and 'moveable dwellings owned by their occupants'. The Applicant accepts that it ought to achieve compliance in relation to those dwellings owned by the Applicant within the current timeframe under the condition unmodified. The distinction sought by the Applicant is that it is only seeking to obtain a different compliance time period for the sites that are occupied by moveable dwellings owned or partially owned by their occupants, in accordance with the principal motivations for this modification application as set out above at [45].
2. The wording changes to the Consent sought by the Applicant is set out below and can be readily read in context in the marked up track changed Conditions of Consent (Ex U) and I include a Reason if one is given for that condition in addition to the reasons given for the Consent and reproduced at [80].
3. The current Condition 2, and the proposed modified Condition 2 are:

(1) Current Condition 2.

"Within 5 years of the date of this consent, the site layout shall be in accordance with the Final Site Plan (LPCC19-119/2, Issue B, dated 27/11/20)."

"The development shall progress to a site layout in accordance with the Final Site Plan (LPCC19-119/2, Issue B, dated 27/11/20). Existing residents' homes may be maintained in their current position until the existing structure is at the end of its useful asset life. All park owned structures on existing sites shall be modified to be compliant with the Final Site Plan within five years of the date of consent."

1. The current Condition 4, and the proposed modified condition 4 changed marked up:

"All parked owned moveable dwellings and associated structures are to be removed from the Southwestern 'peninsula' portion of the subject land as shown on the Final Site Plan, labelled 'Natural Area', within five years of the date of this consent. Any existing dwellings and associated structures belonging to a site occupant (existing sites 91, 94, 101, 107- 110, 118 & 120) may be retained in their current locations until the end of the useful asset life of the structures.

Reason: the flood risk associate with residential occupation of this area is unacceptable."

1. The current Condition 7, and the proposed modified Condition 7 are:

(1) Current Condition 7.

"Following endorsement, the VMP must be implemented in full within five years of the date of this consent."

"Following endorsement, the VMP must be implemented over those parts of the area that do not contain sites with existing residents' structures. The implementation of those areas must occur within five years of the date of this consent. When an existing resident's dwelling and associated structure is removed due to it being at the end of its effective asset life, the VMP shall be implemented over that site within six months of the removal of the structure."

1. The current Condition 9, and the proposed modified Condition 9 are:

(1) Current Condition 9.

"Setbacks & buffers

a. A 5m setback between all structures and the edge of the artificial boat bay is to be provided.

b. A 5m setback between sites and the southern boundary of Lot 101 DP 113444 (Crown land) is to be provided.

c. A 2m setback between all structures and the property boundaries along Lot 1 DP 1102670, Lot 1 DP 518290 and Lot 2 DP217183 (requirement of clause 138 and 161 of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005).

d. All existing moveable dwellings and associated structures encroaching within these setbacks are to be removed or relocated to comply with this requirement within 5 years from the date of this consent.

e. A 16m setback between all structures and the forested wetland hazard south of the park. Reason: To mitigate risks associated with shoreline recession, embankment instability and bushfire, and enable improved public access along the foreshore and broad environmental benefits.

Reason: To mitigate risks associated with shoreline recession, embankment instability and bushfire, and enable improved public access along the foreshore and broad environmental benefits."

"Setbacks and Buffers

All new and redeveloped structures shall comply with the following setbacks:

a. A 5m setback between all structures and the edge of the artificial boat bay is to be provided.

b. A 5m setback between sites and the southern boundary of Lot 101 DP 113444 (Crown land) is to be provided.

c. A 2m setback between all structures and the property boundaries along Lot 1 DP 1102670, Lot 1 DP 518290 and Lot 2 DP217183 (requirement of clause 138 and 161 of the Local 11 Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005).

d. deleted.

e. A 16m setback between all structures and the forested wetland hazard south of the park.

Reason: To mitigate risks associated with shoreline recession, embankment instability and bushfire, and enable improved public access along the foreshore and broad environmental benefits."

1. The Current Condition 13, and the proposed modified Condition 13 with new phrase "park owned" inserted and underlined for ease of reference:

"Within five years and 3 months of the date of this consent, the developer is required to submit to Council:-

a. An updated version of the final site plan depicting any changes from the approved site plan as a result of road or park upgrades required under this consent;

b. A survey plan demonstrating that park owned moveable dwellings and associated structures comply with the separation requirements under this consent;

c. Survey plan or report verifying that all park owned moveable dwellings and associated structures satisfy the habitable floor level requirements stipulated in Conditions 41 and 42 of this consent;

d. A report from a suitability qualified and experienced structural engineer certifying that all park owned moveable dwellings and associated structures satisfy the structural soundness requirements stipulated in Condition 55 of this consent."

1. The current Condition 33, and the proposed modified Condition 33 wording change marked in the second paragraph:

"Fire Separation Compliance

All new moveable dwellings and associated structures are to be located to achieve compliance with the requirements of Clauses 91, 140 and 141 of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005.

All existing park owned moveable dwellings and associated structures must comply with the requirements of Clauses 91, 140 and 141 of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 within 5 years from the date of this consent."

1. The current Condition 42, and the proposed modified Condition 42 wording marked up:

"Flood Level Requirements - Upgrade Existing Structures

The caravan park is on flood liable land. All existing Park owned movable dwellings shall be upgraded within 5 years from the date of this consent to ensure compliance with the following requirements:

a. Habitable floor levels of moveable dwellings must be at a minimum of RL 3.13 metres AHD (or any higher level as specified by relevant flood control planning standards applicable at time of installation);

b. Any portion of buildings or structures below RL 3.24 metres AHD should be built from flood compatible materials. Where materials are proposed and not listed in Appendix B of Chapter E13 of the Wollongong DCP2009, relevant documentation from the manufacturer shall be provided demonstrating that the materials satisfy the definition of 'flood compatible materials' as stated in Chapter E13 of the Wollongong DCP2009.

c. All structures within the caravan park except for existing residents' homes shall be designed to withstand the forces of floodwater, debris and buoyancy up to and including RL 3.24 metres AHD.

d. All moveable dwellings except for existing residents' homes must be elevated on piers and open underneath to ensure that flood storage and conveyance is not affected.

e. All movable dwellings shall incorporate a flood refuge area in accordance with the requirements of the Wollongong DCP2009.

f. Separate approval is to be obtained for works proposed to upgrade existing structures.

Reason: To ensure the minimum habitable floor level applied corresponds to the predicted 1% AEP flood level for 2050, commensurate with the duration of this consent."

1. The Current Condition 51, and the proposed modified Condition 51 changed marked up:

"Flood Compatible Materials - Electrical

All new power service (metering) equipment, power outlets, switches etc. shall be located above RL 3.24 metres AHD. All new electrical wiring installed below this level should be suitable for continuous underwater immersion and should contain no fibrous components. Earth leakage circuit breakers shall also be installed. Any new equipment installed below or partially below RL 3.24 metres AHD should be capable of disconnection by a single plug and socket assembly."

1. The current Condition 56, and the proposed modified Condition 56 changes marked up:

"Landscaping

A detailed landscape plan shall be submitted to Council for approval within two years from the date of this consent which provides for landscaping of:

a. the foreshore area within the subject land;

b. the 5m wide setback between Sites 43, 44, 45, 46, 47 and 48 (as identified on the Final Site Plan) and the boat bay.

This detailed landscape plan should not include Poa 'Kingsdale', Rhaphiolepis indica and cultivars or Pennisetum alopecuroides (now known as Cenchrus purpurascens) and must provide for species that are consistent with the Grow Local Illawarra Native Garden Guide, coastal frontline species.

The completion of the landscaping works as per the approved detailed Landscape Plan is required within five years of the date of this consent, other than for sites where existing residents' dwellings and associated structures encroach on the setback areas (existing Sites 1, 6, 7, 8, 9, 15, 16, 18, 19, 20, 21, 27, 29, 31, 32, 33, 34, 37, 40, 65, 68, 69, 70, 74, 76, 77, 78 & 80)."

1. On appeal the Land and Environment Court has certain powers in accordance with s 4.56 of the EPA Act, s 176 of the LGA, and s 39 of the LEC Act, which reads as follows:

39 Powers of Court on appeals

(1) In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.

(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

(4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.

(5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.

(6) Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body -

(a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and

(b) in a case where the concurrence or approval has been granted - the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body.

(6A) (Repealed)

(7) The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court.

(8) This section (other than subsection (5)) does not apply to proceedings under section 30 or 31 of the Access to Neighbouring Land Act 2000.

Is the Proposed Modification substantially the same and the Consent? And is there sufficient certainty? (Contentions 1 and 2)

1. The Respondent contends that the Modification Application should be refused because the consent authority cannot be satisfied that the development as proposed to be modified, is substantially the same development as the development for which consent was originally granted (Contention B1.1) and that the development as proposed to be modified leaves entirely uncertain whether compliance with Conditions 1, 4, 5, 6, 8, 9, 13, 25, 27, 33, 41, 51 and 56 will occur at all during the life of the Consent (ASOFAC, 1.1.3, Ex 1).
2. This contention responds to the proposed modification to the wording of consent Condition 7 in relation to the implementation of the Vegetation Management Plan (VMP) (ASOFAC, Ex 1).
3. The legal framework for assessing a modification application of a consent granted by the Court is set out in s 4.56(1)(a) of the EPA Act which provides as follows:

4.56 Modification by consent authorities of consents granted by the Court (cf previous s 96AA)

(1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if -

(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), ...

1. The Applicant refers the court to the decision of Pepper J in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] 19 NSWLEC 75 at [173] for a summary of the legal principles that govern the power to modify a consent. However, as I stated in the decision Realize Architecture Pty Ltd v Canterbury-Bankstown Council [2023] NSWLEC 1437 (Realize) the test to be applied is set out in the statutory provision itself, in this case s 4.56 of the EPA Act (Arrage v Inner West Council [2019] NSWLEC 85 (Arrage), Preston CJ at [18]) and Preston CJ articulated the type of comparison required to satisfy the terms of the precondition to approving the modification of a consent as set out in s 4.55(2)(a) of the EPA Act in the decision of Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227 (Feldkirchen), where Preston CJ at [112] said as follows:

"[112] The comparison required by s 4.55(2)(a) is simply between two developments: the development as modified and the development as originally approved: Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [16] and Arrage v Inner West Council [2019] NSWLEC 85 at [24]. Case law on the precondition, both in earlier statutory provisions, such as s 102(1), and the current statutory provision of s 4.55(2), has suggested ways in which this comparison between the two developments might beneficially be undertaken. This includes identifying and comparing the "material and essential features" of the two developments: Moto Projects (No 2) Pty Ltd v North Sydney Council at [55], [56] and [58] and Arrage v Inner West Council at [26]. These suggested ways of undertaking the comparison between the two developments, however, do not displace the statutory test in s 4.55(2)(a) or demand that the required comparison be undertaken in those ways: Arrage v Inner West Council at [27], [28]."

1. For completeness, I reproduce what is said by Preston CJ in Arrage at [27] and [28] as follows:

"[27] This interpretation of the statutory test that the modified development be substantially the same development as the originally approved development, that the modified development be "essentially or materially" the same or "having the same essence" as the originally approved development could support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry.

[28] That is one way, probably in most cases the most instructive way, to identify whether the modified development is substantially the same development as the originally approved development, but it is not the only way to ascertain whether the modified development is substantially (in the sense of essentially or materially) the same development as the originally approved development. For example, comparison could be made of the consequences, such as the environmental impacts, of carrying out the modified development compared to the originally approved development: see Moto Projects at [62] and Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351; [2003] NSWLEC 253 at [17]."

1. The Respondent, in closing submissions at page 28, submits that "the essential nature of the 2020 Consent is to continue a use of land, with physical alterations to make that use safer" (par 154) and that it was this "essential respect for which consent was granted - protection from flood and fire." (par 156). The Respondent's case is that the proposed modified wording renders this essential element of the Consent uncertain thus not substantially the same.
2. The Respondent refers to the quantitative aspects of the Consent which relate to the heights of buildings relative to flood levels, and the separation distances and the like (Respondent submissions par 155) whereas the qualitative aspects of the Consent are more material in that the Proposed Modification involves greater risks from flood and fire, to both property and life (Respondent submissions par 155).
3. The Applicant's response to the Respondent's contentions is that all that is affected is the timing of the implementation of the conditions, meaning that the proposal is in all material aspects, identical to the original consent, save for the fact that the time for some aspects of the changes required under it, will occur later than 10 December 2025 (Applicant submissions par 158). "There was always a period for compliance. There is still a period of time for compliance and it is not fixed but it means that there will be ultimate compliance." (par 159). I ultimately accept this submission and set out my finely balanced reasons as to how I achieve the state of satisfaction required by s 4.56(1) of the EPA Act.
4. One of the elements of the Consent is the provision of time to bring the Site into compliance. The Court is required pursuant to s 4.56(1A) of the EPA Act to take into account reasons given in the Consent for the various requirements. These are included in the Respondent's Bundle of Documents (Ex 3, Vol 1, Tab 4, folio 61) and at the end of the Consent provides as follows:

"The reasons for the imposition of the conditions are:

1 Those reasons detailed above in relation to specific conditions.

2 To provide time to enable the operator to bring the whole of the caravan park into compliance.

4 To reduce the impact of flooding.

5 To minimise any likely adverse environmental impact of the proposed development.

6 To ensure the protection of the amenity and character of land adjoining and in the locality.

7 To ensure the proposed development complies with the provisions of Environmental Planning Instruments and Council's Codes and Policies.

8 To ensure the development does not conflict with the public interest."

1. It is not disputed that at the time the parties entered into the s34 Agreement resulting in the Court ordered Consent, neither the parties nor the Court had before them any expert evidence regarding the fixed period of compliance and I find that the period of 5 years in the Consent was otherwise an arbitrary time frame agreed between the parties as to bringing the caravan park into compliance in order to reach the agreement. The parties and the Court now have the benefit of expert evidence which directly informs the assessment of the appropriate period of time to bring the Site into compliance.
2. Town planning experts express their opinions regarding the comparison of the two developments (Ex N) and reference the decision of Bignold J in Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 at [55] and [56] which is dealt with by Preston CJ in Arrage.
3. Mr Nash and Ms Whittaker give their opinion in relation to the various particulars of this contention and summarise their conclusions at pp 18 to 21 of JER Planning (Ex N).
4. Ms Whittaker's opinion is as follows:

(1) At p 4, "[t]he development as proposed to be modified would deviate from the approved Final Site Plan in significant aspects, resulting in a significantly different park layout on that envisaged by the Final Site Plan, and consequently significantly different environmental, social and planning outcomes for the site." This is essentially repeated again at p 18.

(2) If the Consent is modified as proposed;

"the site would no longer be suitable for the development. In forming this opinion, I have regard to the reasons given by the consent authority for the grant of the consent. It is my opinion that, if the for of the development is so different that it has a bearing on whether a site is suitable for that development, that modified development could not be considered to be substantially the same development as the development for which consent was originally granted." (p 19, JER Planning)

1. Ms Whittaker does not address the social impact of the Consent and seems to assume that there will not be replacement of the dwellings which is not supported by the evidence.
2. Mr Nash's opinion is that the Consent is for "the continued use of the subject land as a caravan park" which first obtained development consent in 1965 under development consent D65/336 and has operated since that time and refers to the background on the history of the site provided by Mr Browne at par 1.3 of the JER Caravan Park Compliance (Ex P). Mr Nash concludes that the Proposed Modification "satisfies these two overarching elements of the original consent in that it:

i) continues the use of the site as a caravan park; and

ii) maintains a maximum number of dwellings for long-term residency at 204 (p 20, JER Planning, Ex N)"

1. Mr Nash then undertakes a qualitative and quantitative assessment at p 20 of Ex N. Mr Nash's view is that the Proposed Modification satisfies the "substantially the same development" test in qualitative terms because the modifications "reflect the circumstances of the existing resident-owned dwellings" and will "enable a balance between compliance with flood risk management and environmental outcomes whilst ameliorating social and economic hardship of the existing caravan park community."
2. In relation to the reinstatement of Swamp Oak Floodplain Forest and the VMP, Ms Whittaker observes, at p 27 JER Planning, that the Proposed VMP is unlikely to result in restoration of the peninsula area into a 'natural area' and that "it is essentially a basic plan for landscaping between retained structures, rather than a plan for restoring this part of the site as a 'natural area'."
3. Mr Nash makes the following observation:

"For environmental and built form considerations the modified conditions will enable significant changes as all park-owned dwellings/site will achieve the necessary standards sought under the original consent which whilst representing 26.5% of the 204 dwellings will account for 65% of the foreshore land, 80% of the boat bay frontage and 70% of south-western peninsula to be landscaped in accordance with the Detailed Landscape Plans prepared by Conzept Landscape Architects and the Vegetation Management Plan which will largely achieve the visual impact from the waterway outcomes sought in the Joint Report on Visual Impact prepared for the original hearing. The new park-owned dwellings along the foreshore will present at 2-storeys in height consistent with the desired future character outcomes sought for Windang under Part 3.43 of the Wollongong DCP 2009." (JER Planning, p 20, Ex N)

1. Mr Nash makes a similar observation again at p 28 that;

"at least 70% of the land within the south-western peninsula and boat bay area is vacant park-owned land and capable of accommodating the landscaped treatments and vegetation management initiatives embodied in the Conzept Landscape Plans for the south-western peninsula area and foreshore and boat bay foreshore and VMP including weed control and regeneration of compatible native vegetation."

1. Mr Nash goes on, at p 20 of JER Planning, to consider a quantitative assessment and notes that the Proposed Modification will "not result in any change to the approved capacity of the caravan park of 204 dwellings for long term residency." His opinion is that "the fact that all park-owned dwellings/sites will comply with the relevant requirement under the original and modified conditions will improve the outcomes sought in respect to environmental risk and visual consideration whilst minimising social and financial hardship impacts detailed in Dr Stubbs SOE of 23 May 2023 and her commentary in the Social Planning Joint Report", and leads him to conclude that in this context, the development, as modified, is essentially or materially the same as the approved development and that the proposed modification satisfies s 4.56(1)(a) of the EPA Act.
2. I note Ms Whittaker's concern regarding certainty of compliance as set out on pages 22 and 22 of JER Planning (Ex N), however I prefer and accept Mr Nash's opinion and conclusions.
3. The express concern of the Respondent is effectively particularised at 1.2.6 as follows "it is necessary for triggers for compliance with conditions of consent to be precise and certain and capable of being objectively determined." The town planning experts agree that "it is necessary for triggers for compliance with conditions of consent to be precise and certain and capable of being objectively determined. This is essential to those responsible for upgrading the moveable dwellings and for those responsible for certification and enforcement to ensure successful verification of compliance with conditions and carry out enforcement action if required." JER Planning, p 21 (Ex N).
4. I accept the Applicant's submission that:

"The contention in relation to the wording of the conditions largely take issue with the proposed terms that the compliance with the works is to occur at the end of the useful life of the moveable dwellings. The reasons for that language, responsive to s 107 of the RLLC Act, have been set out above, and it is reiterated that the Applicant will accept a more definitive time period (the change of ownership for example) if the Court would not otherwise consider that to offend s 107."

1. I have set out the relevant terms and provisions of the RLLC Act above at [49].
2. The residents are largely elderly and Mr Nash is of the opinion that "the resident-owned sites will no doubt conform over time as 'aging in place' leads to new owners and likely redevelopment to the standards embodied in the modified conditions" JER Planning Ex N page 26.
3. The experts agree that the end of a dwelling's 'useful asset life' cannot be objectively defined (JER Planning, p 25) and it is agreed that arguably, whilst ever a person is living in a dwelling, it is 'useful' (JER Planning, p 24). The Applicant's case is that the proposed wording complies with s 107 of the RLLC Act.
4. Evidence of turnover, or sale of the dwellings, from [56] above Mr Black (Ex W), gives the Court comfort that compliance will be achieved. Mr Black had been employed in the role of providing management, accounting and business advisory services to the Applicant since December 2010 (Affidavit par 1, Ex W). Mr Black's evidence is that since acquisition of the Site by the Applicant in 2004, he has been involved through his various roles in the operation of the Site and the implementation of plans to redevelop the caravan park including negotiating the purchase of dwellings owned by residents for and on behalf of the Applicant (Affidavit, para 6). Mr Black gives detailed evidence of the total number of sites at different times, their ownerships status and the evolution to date of the park and is summarised at para 15 as follows:

"In total, the above breakdown shows that of the 278 dwellings on the Land at the time of acquisition, a total of 180 have been acquired and removed by [the Applicant], and a further 107 dwellings have been installed and sold to new occupants, for a total of 205 dwellings on the Land presently."

1. Mr Black does confirm that the number of dwellings actually on the Site is 206 resulting from lack of precision in their records as to the precise number of dwellings acquired by the Applicant on settlement on the contract to purchase the Site and the operations in 2004.
2. The Applicant makes the following submission at par 165 and 166:

"Otherwise, the issue of 'certainty' to the extent that this is what the Council raises against the Applicant, that issue is comprehensively deal with by Preston CJ in Ulan Coal Mines Limited v Minister for Planning and Moolarben Coal Mines Pty Limited [2008] NSWLEC 185; (2008) 160 LGERA 20 at [49] - [50]:

49 At the outset, it should be noted that there is no common law principle that an exercise of statutory power must be certain or final in order to be valid: see King Gee Clothing Co Pty Ltd v Commonwealth [1945] HCA 23; (1945) 71 CLR 184 at 194-195; Cann's Pty Ltd v Commonwealth [1946] HCA 5; (1946) 71 CLR 210 at 227-228; Qiu v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439 at 447; Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33 at 42; 85 LGERA 197 at 205 and Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at 514 [12].

50 Rather, a condition will only be invalid, by lacking certainty or finality, if it falls outside the class of conditions which the statute expressly or impliedly permits: Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at 514 [12]- [15], 519 [34]-[36]; Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2005] NSWCA 269; (2005) 141 LGERA 376 at 412 [89]; Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at 292 [55], [57]; GPT Re Limited v Wollongong City Council [2006] NSWLEC 303; (2006) 151 LGERA 116 at 146 [90] (appeal dismissed sub nom Belmorgan Property Development Pty Ltd v GPT Re Ltd & Anor [2007] NSWCA 171; (2007) 153 LGERA 450) and Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 (8 September 2006) at [89]-[90]. Where a condition does fall outside what the statute permits, the purported approval is not an approval under the statute at all (assuming the condition is not severable).

The condition is within power, it sets a time that the dwellings must comply: either if they are park owned within 5 years, or if they are new, when installed, or otherwise, not a specific date but a point in time when they come to be replaced (hence, the end of their useful life). That is a condition within the power identified by s 4.16 of the EP&A Act and although a specific and fixed date is not known, when the dwelling is no longer being usefully used and is to be replaced, anything new must comply with the identified conditions of the consent."

1. There is a fixed period of time of 5 years to bring the Site into compliance, and the reasons for the time period is expressly state in the Consent, "[t]o provide time to enable the operator to bring the whole of the caravan park into compliance." As I have stated earlier, I find that neither the parties nor the Court had before it any evidence as to the methodology of the 5 year fixed time period and I accept that there is still a period of time for compliance, not a fixed period of time, but I am satisfied that the evidence supports that there will be ultimate compliance in accordance with the Proposed Modification.
2. My conclusion is that after careful consideration of the expert evidence and acknowledging the differences between the Consent and the Proposed Modification, I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all).

(1) Is the proposed modification inconsistent with the requirements of cl 5.21 of the WLEP 2009 and Chapter E13 of the WDCP 2009 with respect to floodplain management and safety? (Contention 3)

(2) Is the Proposed Modification inconsistent with Chapter C4 Caravan Parks, Camping Grounds and Manufactured Home Estates, Regulation and RFS GTA? (Contention 6)

1. Flood planning is provided for in the WLEP at cl 5.21 which provides as follows:

5.21 Flood planning

(1) The objectives of this clause are as follows -

(a) to minimise the flood risk to life and property associated with the use of land,

(b) to allow development on land that is compatible with the flood function and behaviour on the land, taking into account projected changes as a result of climate change,

(c) to avoid adverse or cumulative impacts on flood behaviour and the environment,

(d) to enable the safe occupation and efficient evacuation of people in the event of a flood.

(2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development -

(a) is compatible with the flood function and behaviour on the land, and

(b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and

(c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and

(d) incorporates appropriate measures to manage risk to life in the event of a flood, and

(e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

(3) In deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the following matters -

(a) the impact of the development on projected changes to flood behaviour as a result of climate change,

(b) the intended design and scale of buildings resulting from the development,

(c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood,

(d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion.

(4) A word or expression used in this clause has the same meaning as it has in the Considering Flooding in Land Use Planning Guideline unless it is otherwise defined in this clause.

(5) In this clause -

Considering Flooding in Land Use Planning Guideline means the Considering Flooding in Land Use Planning Guideline published on the Department's website on 14 July 2021.

flood planning area has the same meaning as it has in the Floodplain Development Manual.

Floodplain Development Manual means the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005.

1. Chapter E13 Floodplain Management of the WDCP 2009 is in the Respondent's Bundle of Documents (Ex 3, Vol 3, Tab 32) and time was spent during the proceedings interrogating Schedule 9a: Prescriptive Controls - Lake Illawarra - Windang Peninsula (starting at folio 2635).
2. Development consent has been granted and the Court is dealing with a Proposed Modification, therefore the Court is required to undertake the assessment task in accordance with s 4.56 of the EPA which includes consideration of relevant matters, that is to say that cl 5.21 is not a jurisdictional prerequisite.
3. The Applicant's position in relation to the safety to person and property during flood events is that the Applicant's flood evacuation plan mitigates the risk to person. The risk to property is essentially offset by insistence on compliance with the condition presently, given the impost of the works and the costs of those.
4. The Applicant submits that the JER Flooding Inundation (Ex J) deals with the acceptability of the flood risk to both person and property and draws the Court's attention to the fact that both s 37(1)(h) of the RLLC Act and Consent Condition 18 require an emergency evacuation procedure or plan and the Applicant relies on the Flood Emergency Response Plan (FERP) dated 31 March 2021 (Ex D, Vol 2, Tab 20) prepared pursuant to Condition 18 (FERP, p 1, par 1.1). The purpose of the FERP is expressed on page 1 to be as follows:

"a) Extract the relevant flood behaviour and hazard at the site during flooding, derived from Council's Lake Illawarra Flood Study (2001).

b) Review flood response measures available to the residents of Jettys by the Lake,

c) Incorporate Cardno (2018) flood report recommendations into the FERP,

d) Satisfy the Conditions of Consent for DA2018/1499 Section 18 'Evacuation Report and Procedure',

e) Provide a simple and effective flood response plan for the residents of Jettys by the Lake."

1. The Applicant's case in dealing with the specific flood risk matters is listed at par 134 of the written submissions as follows:

"a. Caravan parks are required under the RLLC Act to have evacuation procedures and the local controls are replete with specific references to flood evacuation mechanisms to indicate that flood risk can be mitigated by good evacuation procedures;

b. The park has been the subject of successful evacuation in the past and there has in history been no record of injury to person or death;

c. The 2020 consent requires a flood evacuation plan, has a detailed and prescriptive list of what is required by it (condition 18);

d. A comprehensive flood evacuation response plan (FERP) has been prepared pursuant to condition 16;

e. The major criticism levelled at Mr Barthelmess during his oral evidence, was about the workability of the FERP in terms of allowing sufficient notification time, and not only is this required by condition 18(c) by way of a window, but the FERP includes trigger levels that have been specifically development and accepted and allows a time Mr Barthelmess says has been accepted for other caravan parks and has been accepted by the SES"

1. The court also has in evidence a copy of a paper co-authored by Mr Barthelmess in 2010 titled "The Development of a Predictive Flood Warning System to Manage Flood Isolation Risk for Lake Illawarra" (Ex V). This paper "specifically relates to the Windang Peninsula which is considered by the Lake Illawarra Floodplain Risk Management Study as having the highest isolation hazard in the catchment." (Foreword, Ex V).
2. The Respondent submits at page 11 that "[a] more comprehensive comparison of the flood consequences between the scenarios of implementation of the 2020 Consent as granted, and as sought to be modified is set out by Mr Carden at para 126-135 pp 26-30 Ex J."
3. An area of disagreement between the experts is risk to life from a flood event. Mr Carden notes that evacuation strategies are not 'fail safe' par 59(e) page 12, Ex J, whereas Mr Barthelmess is confident that the risk to loss of life is being managed on the Site through the FERP and that "the strong desire for a 'shelter in place' refuge is less relevant when residents won't even be on the site during the flood" (par 70, page 16 and Ex J).
4. As to evacuation, Mr Carden opines that "it is inappropriate to rely solely on an evacuation strategy (as relied on by AB) to mitigate the risk of danger to personal safety during a flood, because evacuation strategies are not 'fail-safe', and it is inappropriate to assume the site will be safely evacuated during future flood events." (JER Flood Inundation, par 59.e).
5. In oral evidence, Mr Barthelmess confirmed that the FERP allows for the particular profile of residents as documented by Dr Stubbs (Respondent closing submissions para 86).
6. In relation to the history of evacuations, Mr Barthelmess clarified in oral evidence that the basis for his statement in the JER Flood Inundation at par 16 (Ex J) that "safe evacuation had been demonstrated since 2012 was a partial evacuation in the 2016 flood, activation of the evacuation plan in 2022 and the 2010 paper co-authored by him" (Respondent closing submissions para 87).
7. Dr Stubbs, in JER Social Planning, Ex M page 49 summarises her understanding of the evidence of the flooding experts as follows:

"Anthony Barthelmess (AB) identifies 11 floods in the 50 years of operation of the park, but notes that there have been 'no reported issues with evacuation by the SES or operator, nor any loss of life'. He also considers that there have been 'minor vehicle damages in the context of 50 years', and that 'there is nothing about this lived reality that strikes me as 'unsafe'. He considers that the risks can be managed by a Flood Emergency Response Plan (FERP).

Matthew Carden (MC) references only one flood event in 2016, where he reports that there were 44 persons were registered at the evacuation centre, five vans were left uninhabitable, and 27 vehicles were written off. In contract to AB, MC considers that an evacuation strategy such as the FERP is not appropriate in this context and is not a substitute for complying with flood planning controls.

As such, neither expert report that there were safety issues for residents associated with any flood event, or that floor evacuation measures were unsatisfactory or unsafe."

1. My findings and conclusion on flooding refer back to cl 5.21 of the WLEP. "There is no disagreement that the flood planning controls are not complied with, by the Proposed Modification" (Respondent closing submissions, par 92) and in the JER Flood Inundation, at para 65, (Ex J) Mr Barthelmess states "I agree that the majority of the structures do not meet the current-day planning controls in Council's DCP (Chapter E13)".
2. Ultimately, the Court is asked to consider whether the residents will be exposed to greater risk of harm when a flood occurs that exceeds the existing habitable floor levels? I find that the answer to that question is yes, however, as Mr Barthelmess opines at par 66 of the JER Flood Inundation, "that does not mean that continued occupation has no merit" because since the controls were developed, the assumed risk assessment that Windang was isolated and could not be evacuated has since been demonstrated to not be accurate, that is "that Windang can in fact be evacuated" (JER Flood Inundation, par 69, Ex J). Mr Nash agrees with the views expressed by Mr Barthelmess in paras 69 to 77 of JER Flood Inundation, Ex J (JER Planning, pg 5, Ex N).
3. Mr Barthelmess' assessment is that "only 8% of the structures (that are subject to the conditions) have floor levels lower than the largest flood in recorded history. I consider this a high standard." (JER Flood Inundation, par 76).
4. I find that the Proposed Modification will result in increased risk to property damage in a flood event. I find that the evidence before the Court supports the conclusion that the FERP adequately mitigates the flood risk to personal injury or death. In reaching this conclusion I have considered the question put by the Respondent as to whether there a positive social impact of the mitigation of flood risk. At Exhibit C3 page 10 headed "1.4 Likely Positive Impacts" in the first sentence under that section, Dr Stubbs says that "I have not been able to identify any positive social impacts for existing residents and the subject conditions of consent either objectively or from the perspective of affected residents". Dr Stubbs qualifies her sentence during cross examination as follows:

"I would say that in my assessment, basically the impacts from homelessness and the things that flow from that were so overwhelming, and so large as to influence my statement in that regard. But I am - you know, which I would not resile from, but yes, I would say that there could be some positive benefits with regard to a mitigation of flooding. So yes, I would - I would qualify that, but I would say - point out that in framing that sentence at that time, and I do qualify it, that the impacts of homelessness are so great and so likely that it influenced the framing of that sentence." (Transcript 23 August 2023 page 232 at 37)

1. Dr Stubbs also does not resile from her expert opinion and conclusions regarding the concerns of the residents of the caravan park regarding flooding vis à vis homelessness (Transcript 23 August 2023, page 234).
2. I now consider fire risk in the context of inconsistency with Chapter C4 of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021 and the Rural Fire Service General Terms of Approval (RFS GTA) (Contention 6, ASOFAC). I have carefully considered the JER Caravan Park Compliance (Ex P).
3. The Respondent's closing submissions on page 18 at par 94 states "the unchallenged evidence of Ms Gissel is that 182 existing dwelling[s] do not comply with the fire separation requirements of the Regulation.
4. I accept that Ms Gissel is the only expert with the necessary expertise to evaluate fire resistance, compliance and fire safety as Mr Browne does not purport to have such expertise (Transcript 24 August 2023, page 258 at 29).
5. I also accept that existing caravans and moveable dwellings cannot be assumed to have the same fire resistance characteristics as dwellings regulated under the National Construction Code (Respondent's closing submissions par 99). Dr Stubbs in JER Social Planning, Ex M, at p 10:

"I note that the risk of fire to a moveable dwelling is no greater than that which applies to a conventional residential dwelling. The issue is about the risk of fire spreading to adjacent dwellings without sufficient time for the adjacent dwellings to evacuate. This is the basis of the NCC (formerly BCA) requirement."

1. In response to questions during cross examination Dr Stubb's gives the following explanation (Transcript 23 August 2023, page 241-242):

"I'm aware of the general rules and requirements, but I would not undertake an assessment of the fire risk.

...

There is no literature and nothing that I've seen that indicates that a mobile dwelling is more likely to affected or burst into flame than a normal dwelling, just a conventional dwelling."

1. The purpose of separation of dwelling structures is to reduce the risk of spread of fire and the works required pursuant to the Consent would increase the separation distances between dwellings. The Respondent submits, and I accept, that modification of the Consent as proposed, to exclude resident owned dwellings until the end of their useful asset life, poses a relatively greater risk of the spread of fire, compared to compliance with the works within the 5 year time frame as required by the Consent. This is an increased risk to both property and person. (Respondent's written submission, page 19 at 103 and 104). The comparison is done on a merit assessment basis and on merit, I am not persuaded that it is sufficient to refuse the Proposed Modification because I accept the Applicant's submissions on fire risk at p 47 of closing submissions, that the risk is a particularly low one. Ms Gissel gave evidence that she and the Council have been aware of the fire risk resulting from separation of dwelling structures since 2013 and that no enforcement action has been taken and no incidents of any type have been reported or referred to.
2. I have considered the social impact and have then undertaken the balancing act to determine the merits of the Proposed Modification, namely to modify the period of time for compliance from affixed time of 5 years versus trigger event of end of a dwelling's 'useful asset life'.

Can the social impact and cost of compliance justify the unsuitable land use to continue? (Contentions 4 and 7)

(1) The negative social impacts identified as arising from the financial costs of compliance with the conditions of consent are based on an incorrect assumption about responsibility for the costs of compliance (Contention 4A).

(2) Even if it was accepted that the costs of compliance with the conditions of the development could not be funded by the current park operator (which is not admitted), the solution cannot be to simply allow an unsuitable land use to continue (Contention 4B).

(3) The Site is not suitable for the development as proposed to be modified (Contention 7).

1. In the cross examination of Dr Stubbs, Transcript 23 August 2023 page 233, it was put to her that her evidence was on the basis that the costs would have to be borne by the residents and she said:

"I considered both factors, so whether they were borne by the residents, or whether they were borne by the park owner and therefore passed on by the rent income, which is the only income I understand they have, to the residents." (Transcript 23 August 2023, page 233 at 25)

1. The Respondent made opening submissions (at par 12.1) that:

"The Court would not be satisfied that the Applicant (or its privies) cannot afford to pay for the upgrades, and - even if such is established - it is not a sufficient reason to avoid the upgrades by amending the consent in the manner sought by the Applicant."

1. The Respondent's submissions in relation to costs at par 25 of written submissions proffer that as result of some unsubstantiated costs set out by Mr Bolt in Ex C1, the two likely costing scenarios that should be accepted by the Court are:

(1) $5,514,091.43 + $1,200,000 (for stairs) = $6,714,091.43; or

(2) $5,514,091.43 + $3,686,000 (for 75% lifts/25% stairs) = $9,200,091.43

1. For the purpose of determining the Mod Appeal, I accept the Applicants submission that:

"The issue of costs for compliance is raised by Council as a criticism of the reasons advanced by the Applicant for the making of this application. The Council does not identify which part of the EP&A Act or any environmental planning instrument that is called up as part of the consideration of this contention. It is an attack on the Applicant's position that it is not financially feasible for it to carry out the works."

"It is clear from Mr Firth's evidence that having regard to the financial position of the park itself, it is an uneconomic use of the land, and that evidence stands uncontradicted by any other expert evidence. In Bradley v Department of Planning & Manly Council [2007] NSWLEC 491, Lloyd J said in relation to a boarding house, with emphasis added:

68 The considerations listed under sub-cl 7(4) are not determinative. They must be balanced against the other considerations in the policy and the general considerations under s 79C(1) of the EP&A Act. Those considerations include the objects of the Act (s 5, Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 at [20] - [26], BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237 at [100] - [104]). One of those objects is to encourage "the promotion and co-ordination of the orderly and economic use and development of land." Once a matter is a relevant consideration it is then a question for the decision-maker to determine what weight should be given to it. In my opinion, it would be unrealistic and contrary to the objectives of the Act to which I have referred to require an owner of a property to put it to an uneconomic use.

The only forensic accountancy evidence indicates that the park itself will be put to an uneconomic use if it is required to carry out the works. An appointed Administrator under the RLLC Act would not be able to do it from the operation of the park itself, on Mr Firth's evidence. Any future owner (who would be purchasing a loss making exercise) is a completely unrealistic proposition. The Council's supposed position that the company listed on the Applicant's website could put up the funds to do it is equally unrealistic and no matter how it is viewed, is an uneconomic use of the land in the manner described by Lloyd J in Bradley."

1. Mr Barthelmess balances the risk of flooding with the social and economic impact to conclude at par 73 that he is "not able to rationalise the pressing need to replace the dwelling now, under the guise of minimising risk to property damage" and at par 77 "[f]lood damages have been adequately managed over the last 50 years and can continue to be reasonably managed should the modification be approved." (JER Flood Inundation, Ex J).
2. The Applicant in the 2020 proceedings resulting in the Consent, had not prepared or advanced any evidence on social impact or financial feasibility of limiting the requirement to carry out the works within a 5 year period (Applicant Written Submissions par 63). The Court now has that evidence in the Expert Report of Stephen Bolt dated 18 May 2023 titled "Independent Expert Report on the Estimated Costs to undertake upgrading works at 210-230 Windang Road, Windang NSW" (Ex C1) and Firth (Ex H). Mr Bolt is a quantity surveyor and his qualifications are summarised at page 7 and his Curriculum Vitae is attached to the report at Appendix A.
3. "Part of that evidence is the financial and costing evidence, to demonstrate [why a 5 year period would not be achievable and that the impact of endeavouring to comply with the 5 year period, as opposed to what is now proposed in the modification application, has a better impact (particularly social impact)] the terms of the consent that require the carrying out of the works within 5 years makes the consent, and therefore the use of the land under it, uneconomic." (Applicant Written Submissions at 66).
4. One of the objects of the EPA Act is to promote the orderly and economic use and development of land (s 1.3(c)) and I accept that when considering the mandatory matters under ss 4.56 and 4.15(1) of the EPA Act in assessing the Proposed Modification, particularly in relation to the 'likely impacts of that development, including environmental impacts on both the natural and built environments, and the social and economic impacts in the locality' (s 4.15(1)(b)) that object is relevant and forms part of my consideration for reaching the conclusion that the Proposed Modification can be approved.

The social impact assessment submitted in support of the application does not consider the social impacts associated with vulnerable park residents living at significant flood and fire risk Contention 5

1. This final contention goes to that balancing of risks and social impact. The Applicant's submissions at page 42 contains an approach to assess risk of flood (and fire) against social risk of homelessness. The Applicant submits that;

"The contention in relation to social impacts only criticises the Applicant's SIA in that it is said to not consider the social impacts of the maintenance of the status quo, which would occur for a longer period if the consent was to be modified. The weighing exercise is carried out by Dr Stubbs in the joint report. She considers that the without modification the impact is more severe. She also considers whether the residents could afford to carry out the works themselves and comes to the obvious conclusion (they generally cannot)."

1. In determining an application for modification of a consent under s 4.56 of the EPA Act, the consent authority must take into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the application (s 4.56(1A) EPA Act). This contention requires consideration of the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality (s 4.15(1)(b), EPA Act) [emphasis added].
2. The Applicant submits, and I accept, that the social impact of risk of displacement from housing in a caravan park is a relevant matter to be considered under s 4.15(1)(b) of the EPA Act and refers the Court to Meriton Apartments Pty Limited v Fairfield City Council & Anor [No 2] [2005] NSWLEC 121 per Pain J; Berlyn Properties Pty Ltd v Liverpool City Council and Lynette Goldsmith [2006] NSWLEC 526 per Talbot J; and Baker v Gosford City Council (No 2) [2004] NSWLEC 467 per Moore C (as he then was).
3. Dr Stubbs considers relative fire risk in Ex M from page 9, and at page 10 relative flood risk then at page 11 relative risks of homelessness. Dr Stubbs undertakes the balancing exercise and when comparing the flood and fire risk with the relative risk of homelessness and her evidence from page 12 is that:

"As stated in my [Statement of Evidence], I could identify no alternative park which would accept relocatable dwellings or caravans from Jettys.

...

It is not an 'unsuitable land use', but one which is enabled and facilitated under relevant legislation, including SEPP (Housing) 2021 in acknowledgement of the importance of caravan parks as one of the only forms of genuinely affordable housing. This is particularly important in the context of the current affordable housing crisis in the Illawarra Shoalhaven Region.

Further, even if there are aspects of the existing development are regarding as unsuitable, or have some safety issues, it is not proposed to 'simply allow an unsuitable land use to continue'.

There are a range of mitigations and controls that can be put in place."

1. I note Dr Stubbs clarifies in cross examination that her use of the phrase 'unsuitable land use' was in the generic sense and in direct response and reference to the particular of the contention and not used in the legal or planning sense (Transcript 23 August 2023, page 243).
2. The mitigations include the FERP and the wording proposed in the Proposed Modification providing for a progressing and gradual acquisition and upgrade/replacement of homes by the operator, with new homes to be constructed to flood and other relevant compliances, as has been occurring progressively over the years since the Applicant acquired the Site.
3. Ms Ryan, when undertaking the balancing exercise, opines that "there are social impacts associated with vulnerable park residents (a demographic made up of high numbers of elderly, disabled, low-SES people) living with flood and fire risk." (Ex M, page 13).
4. I accept that the evidence supports the conclusion that there is nowhere else to go for the park residents. I also accept that the FERP has been prepared with the particular vulnerabilities of the park residents in mind and accordingly, Ms Ryan's concerns have been appropriately considered and incorporated.
5. The Social Planning Experts agree that the FERP is an important control in the event of a flood (Ex M p 16).
6. Dr Stubbs at page 16 of the JER Social Planning, Ex M, refers to the Social Impact Assessment of May 2023 saying that it "broadly considers the relative impacts of homelessness and related social impacts compared with flooding, concluding that the risk and impacts associated with homelessness are so great that they are likely to outweigh flooding impacts" and Dr Stubbs prepared an addendum to her Statement of Evidence at attachment JS1 to the JER Social Planning noting that Ms Ryan declined to review that document "as she did not consider it within her expertise to assess." (Ex M p 17).
7. I accept the evidence of Dr Stubbs and adopt her conclusion that "whilst the loss of a home would be a serious social impact for residents affected, it has neither the likelihood, extent, or seriousness of the impacts associated with the extent and nature of impacts arising from homelessness predicted from the requirement to comply with conditions." (Ex M p 17).

Findings and conclusion re Class 1 planning appeal

1. Following careful consideration of the evidence and weighing up the competing risks and impacts I conclude by accepting the Applicant's submission that "[i]t is evident from the assessment ... that the flood and fire risks are not unacceptable, however the risk posed by the social impacts that are sought to be ameliorated by the proposal, are significantly more serious, impactful, and otherwise much more likely." (Applicant's closing submissions, par 146).
2. I conclude that it is appropriate to approve the Proposed Modification for the reasons given in this judgment. Accordingly, the Class 2 AtO Appeal is upheld to the extent that the Class 2 Application has been amended to seek the AtO be determined in accordance with the conditions to be imposed in the Class 1 Modification Appeal.
3. I will direct that the parties provide to the Court conditions of consent and separately provide to the Court terms of AtO that are both consistent and in accordance with the marked-up comparison of the Consent to show the proposed modified conditions Ex U. Upon receiving and considering conditions of consent and the terms of Approval to Operate, I will then uphold the two appeals subject to conditions.

(1) By 1 March 2024, the parties are to file conditions in accordance with the Court template for determination of application to modify development consent (Annexure A) and with the Court template for development consent as modified (Annexure B) in accordance with Exhibit U.

(2) By 1 March 2024, the parties are to file conditions or terms of Approval to Operate consistent with Exhibit U.

(3) Liberty to restore is available in the normal manner, and Online Court submissions can be made should there be agreed modifications to the timetable above.

(1) The matter is listed for Online Court at 12pm, 1 March 2024.