Najask Pty Ltd v Palerang Council

The applicant's submission should be rejected 25 In my view the fact that SEPP 21 did not purport to override any prohibition in an environmental planning instrument of development for the purposes of a caravan park is illustrated by the fact that where any such override was proposed, SEPP 21 specifically so provided: see cl 9(3). 26 Apart from cl 8(1), the other subclauses of cl 8, as the respondent submits, provide for certain matters to be taken into account by a council before or at the time of granting development consent to the use of land for the purposes of a caravan park. To that extent it supplements the matters that a council is required to take into account under s 79C of the Act when determining a development application. 27 Clause 8(4) contains its own prohibition on allowing a person to occupy a site within a caravan park for a continuous period of more than three months without development consent. Clause 8(4A) is predicated upon development for the purposes of a caravan park being lawfully carried out: i.e. with development consent. In such circumstances a separate development consent for installation of a moveable dwelling is not required. None of these provisions purport to permit development for the purposes of a caravan park where this is otherwise prohibited by an environmental planning instrument. 28 The controlling provision of SEPP 21 is cl 8(1), the terms of which I repeat: "Development for the purposes of a caravan park may be carried out only with the development consent of the council." (emphasis added) 29 As the Chief Justice observed during argument, had the word "only" been omitted there may have been some force in the applicant's submissions. But its inclusion is, in my opinion, antipathetic to those submissions. Its effect is to require development consent for the development where otherwise it is not required.