Optima Developments Pty Limited v Wyong Shire Council

Optima Developments Pty Limited v Wyong Shire Council [2005] NSWLEC 649; CASES CITED: Project Blue Sky v ABA (1998) 194 CLR 355; Windsor Developments Pty Ltd v Wyong Shire Council LEC No. 10521 of 1990, unreported, 13 June 1991

DATES OF HEARING: 08/11/2005, 21/03/2006, 22/03/2006 and 23/03/2006

APPLICANT: Mr S B Austin, QC, with Mr C Drury, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Phillips Fox Lawyers RESPONDENT: Mr J A Cole, solicitor SOLICITORS: Abbott Tout

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10714-7 of 2005 - Optima Developments Pty Limited v Wyong Shire Council

1 These are appeals under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Wyong Shire Council (the council) to refuse four development applications to subdivide under community title, various lots within the Court-approved manufactured home-park known as Pacific Lakes Manufactured Home Estate on the corner of Elizabeth Bay Drive and the Pacific Highway, at No 171 Pacific Highway, Lake Munmorah. The land abuts a DCP30 and SEPP14 wetland to the southwest, and a major vegetation remnant to the north and east identified in DCP13 - Interim Conservation Areas. 2 The development application the subject of proceedings 10714 of 2005 proposes to create two (2) additional allotments for manufactured housing within a community title subdivision. These lots would abut a pedestrian pathway linking the junction of Roanoke and Winchester Drives with Berkley Court. 3 The development application the subject of proceedings 10715 of 2005 seeks development consent to create fifteen (15) allotments for manufactured housing within a community title subdivision. 4 The development application the subject of proceedings 10716 of 2005 seeks development consent to create twenty-five (25) allotments for manufactured housing within a community title subdivision. Prior to the hearing the number of allotments in this appeal were reduced to twelve. 5 The development application the subject of proceedings 10717 of 2005 seeks development consent to create one (1) additional allotment for manufactured housing within a community title subdivision. 6 The land can be seen from some distant viewpoints from Elizabeth Bay Drive and the nearby National Park and the current landscape setting is important in the overall context. 7 I have concluded that when the merit of the applications is considered the consent orders agreed by the parties can be given effect. The land 8 The land is situated on the corner of Elizabeth Bay Drive and the Pacific Highway, at No 171 Pacific Highway, Lake Munmorah. It comprises Lot 1, DP 285788; Lot 1, DP 270244; Lot 9, DP 270244; Lot 14, DP 270244; Lot 25, DP 270244 and has an area of about 4.3579 ha. Relevant planning controls Wyong Local Environmental Plan 1991, (WLEP) 9 Under the provisions of the WLEP, the land to which the current proceedings relate is zoned 7(b) (Scenic Protection Zone) and the proposal, as an innominate use, of 'caravan park' is permissible with consent. 10 In the 7(b) zone, development for any purpose other than a purpose included in Items 2 or 4 of the matter relating to the zone is permissible only with development consent. Development permissible without development consent is limited to home occupations. Development which is prohibited does not include 'caravan park' (defined to mean land used as a site for moveable dwellings, including tents and caravans or other vehicles used for temporary or permanent accommodation of the erection, assembly or placement of cabins for temporary accommodation of tourist) or development to place manufactured homes on the land ('manufactured home estate' is not a defined term in the WLEP). 11 Clause 14 of the WLEP applies to land in the 7(b) zone. Under cl 14(2), a person shall not subdivide land to which the clause applies so as to create an allotment having an area of less than, in the case of the 7(b) zone, 20ha. 12 The proposed lots in each of the development applications the subject of the present proceedings is under 20ha in size. State Environmental Planning Policy 36 - Manufactured Home Estates, (SEPP36) 13 Under cl 3(1) of SEPP36 applies to land within the Shire of Wyong. Under cl 4(1) of SEPP36 the operation of SEPP36 must be considered where there is an inconsistency between instruments. 14 Clause 4(1) of SEPP36 states: In the event of an inconsistency between this Policy and any other environmental planning instrument (other than State Environmental Planning Policy No.4 - Development without Consent) whether made before or after this Policy, this Policy prevails to the extent of the inconsistency. 15 Section 36(1)(a) of the Environmental Planning and Assessment Act 1979 (the EPA Act) provides that in the event of an inconsistency between environmental planning instruments and unless otherwise provided, there is a general presumption that a State environmental planning policy prevails over a regional environmental plan or local environmental plan made before or after the policy. 16 Clause 6 of SEPP36 states: Development for the purposes of a manufactured home estate may be carried out pursuant to this Policy on any land on which development for the purposes of a caravan park may be carried out, except: (a) land within one or more of the categories described in Schedule 2; (b) … 17 The phrase 'manufactured home estate' is defined in the dictionary to SEPP36 [Note: cl 5(1)] to mean 'land on which manufactured homes are or are to be, erected.'] 18 A 'manufactured home' is defined to mean 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 that are each constructed, and assembled away from the manufactured home estate and transported to the estate for installation on the estate, and (b) that is not capable of being registered under the Traffic Act 1909, and includes any associated structures that form part of the dwelling. 19 The phrase 'caravan park' is defined in the dictionary to mean land (including a camping ground) on which caravans (or caravans and other moveable dwellings) are, or are to be, placed or erected. 20 Schedule 2 cl 6(a), item 6, refers to: Any [land] which under any environmental planning instrument is within an area or zone identified in that instrument by the description: · open space, other than open space (private recreation) · environmental protection · scenic protection · rural where the land is not adjacent to or adjoining land zoned for urban use. 21 Clause 7(1) of SEPP36 provides: Development for the purposes of a manufactured home estate permitted to be carried out by this Policy may be carried out only with the development consent of the council. 22 The terms of cl 8 of SEPP36 might be contrasted with the references in cll 6 and 7 to development that may be carried out 'pursuant to this Policy'. In cl 8 the Court on appeal stands in the shoes of the council:

1. Land on which development for the purposes of a manufactured home estate may be lawfully carried out (whether or not because of a development consent granted pursuant to this Policy) may be subdivided: (a) under sections 289K of the Local Government Act 1919 for lease purposes, or (b) under the Community Land Development Act 1989, only with the development consent of the council.
2. A council must not grant a development consent for such a subdivision if any of the lots intended to be created by the proposed subdivision would contravene the requirement of the Local Government (Manufactured Home Estates) Transitional Regulation 1993.
3. Any prohibition or restriction on the subdivision of land impose by any other environmental planning instrument (whether made before or after this Policy) does not apply to such a subdivision.
4. This Policy does not allow the subdivision of land within a Crown reserve. Development Control Plan 13 - Interim Conservation Areas Development Control Plan 30 - Wetlands, (DCP13) 23 DCP13 applies to the land. Development Control Plan 14 - Tree Management, (DCP14) 24 DCP14 applies to the land. Development Control Plan 67 - Engineering Requirements for Development Landscape Policy L1, (DCP67) 25 DCP67 applies to the land and also important is the integrated development provisions (Section 91 of the Environmental Planning and Assessment Act 1979 and Section 100B of the Rural Fires Act 1997)). The proposals 26 The development applications were lodged with the respondent council on 8 November 2004, to subdivide under community title, various lots within the Court-approved manufactured home-park known as Pacific Lakes Manufactured Home Estate on the corner of Elizabeth Bay Drive and the Pacific Highway, Lake Munmorah. 27 Development consent was granted by the Land and Environment Court in proceedings 10521 of 1990 which was upheld and determined by the grant of development consent to a mobile home park to be located at Elizabeth Bay Road, Lake Munmorah, subject to conditions. The council granted subdivision under community title and the development consent was subsequently modified by order of the Court on 20 January 1994. 10714 of 2005 28 The applicant proposes a subdivision of two (2) community title lots and two (2) residual lots of the existing Lot 1, DP 285788 & Lot 1, DP 270244. This is Development Application No 2704/04. 29 Lot 1, DP 270244 is a 1,955m2 irregularly shaped parcel incorporating community land and the private road. Lot 1, DP 285788 is an irregularly shaped parcel of 797m2 adjoining to the northeast. Both parcels are zoned 7(b) Scenic Protection. 30 The parcels currently form part of the community lands for the entire estate and provide a recreational area, overland flow path and pathway for residents from the west of the site to access the recreation lands to the east linking the junction of Roanoke and Winchester Drives with Berkley Court. 31 The proposal also includes consolidation of land with existing Lots 14 and 15 to provide legal access to Winchester Drive from those lots. 32 The site has been extensively modified with almost all vegetation having been removed except for one large tree. 33 There is a significant cross slope and the land is retained and the area is fenced off and does not provide pedestrian access. 10715 of 2005 34 The applicant proposes to subdivide the Lot 9, DP 270244 into 15 community development lots for future manufactured homes and a residual lot. This is Development Application No 2705/04. 35 Lot 9, DP 270244 is a 1.685ha irregularly shaped parcel on both sides of Lawver Crescent, entirely zoned 7(b) Scenic Protection. 36 The proposed lots have been largely cleared and benched. 10716 of 2005 37 The applicant proposes to subdivide Lot 14, DP 270244 into 25 community development lots for future manufactured homes and a residual parcel for landscape and community purposes. This incorporates additional roadworks, car parking facilities, the construction of a fire trail through, or over, the acoustic mound, stormwater facilities, landscaping and earthworks associated with site preparation. This is Development Application No 2701/04. 38 This is a 2.3ha parcel of moderately sloping northeast facing land entirely zoned 7(b) Scenic Protection. 39 The site is covered in a mixture of native vegetation that has been extensively modified and damaged through the unapproved use for storing fill and landscape supplies. 40 This lot was originally zoned 1(b) Highway Protection Zone and was not included in the original Court approved consent. However, when the Court approved lots were sold purchasers were informed of a 'development plan' that showed these lots as future development. 41 The land in this parcel was approved as a visual and an existing landscaped acoustic mound to the Pacific Highway and an area of community land. 42 Prior to the hearing the applicant had amended this development application to reduce the number of allotments to twelve (12). These twelve lots are located on largely disturbed land and much of the existing vegetation is to be maintained except for the provision of an asset protections zone to the north of the proposed lots that inevitably would disturb some of the existing vegetation. The council asked the Court to consider whether Lot 10 should be deleted or not. The object of this would be to create a vista along the east west section of Roanoke Drive towards the west and the Pacific Highway. 10717 of 2005 43 The applicant proposes a two-lot community title subdivision of unregistered Lot 25, DP 270244. This is Development Application No 2706/04 within land, zoned 7(b) Scenic Protection. . 44 Lot 25, DP 270244 is a 977m2 irregularly shaped parcel consisting of an existing approved development lot. The approval for this lot was granted under DA 3095/02 B (dated 17/1/03). 45 The lot is accessed from Delavia Drive, which has been physically constructed, and is also part of the as yet unregistered neighbourhood plan attached to DP 270244. 46 The parcel has been cleared of all vegetation except one significant tree, and benched in preparation for a moveable dwelling. The site adjoins community lands to the south and east. Notification 47 The applications were notified to nearby owners and occupants and the council received seven (7) letters, [Note: Exhibit 1, Tab 24] The council's decision 48 By notice dated 25 May 2005 the council refused the applications for various reasons that are reflected in the issues. The planning reports prepared by the council for each of the development applications are found at Tabs 10 to 13 inclusive in Exhibit 1. The hearing 49 The appeals were filed on 5 July 2005. 50 At the hearing the court heard evidence on behalf of the respondent council from Mr D Lemcke, town planner, Development Planning, Wyong Shire Council, and residents. 51 The applicant was supported by Mr C Oliver, town planner; Mr J Travers, bush fire specialist; Mr Steven Rushworth, landscape specialist. 52 Dr S Ambrose, was the Court-appointed ecological expert, and Mr R Chambers, Court-appointed town planner. 53 Mr D Lemcke, prepared the statement of basic facts. The issues 54 On 21 September 2005 the council filed a statement of issues applicable to all four appeals. POINTS OF LAW 1. Whether the proposed development is prohibited development within s76B of the EPA Act by reason of cl 6(a) and Schedule 2.6 of SEPP No 36 - Manufactured Home Estates. Particulars 1.1 the subject land is zoned 7(b) Scenic Protection in the Wyong LEP 1991; 1.2 SEPP 36 prohibits manufactured home estate development on land in Wyong Shire zoned for scenic protection: ss5(6) and 33, Interpretation Act 1987; clauses 2(1)(d), 3(1), 6(a) and schedule 2.6, SEPP 36; 1.3 SEPP 36 prevails over the Wyong LEP to the extent of any inconsistency: cl 4(1), SEPP 36; s.36(2), EPA Act. 1.4 to the extent that the LEP may permit manufactured home estate development in the 7(b) zone; it is inconsistent with SEPP 36 and ineffective to that extent. 2. Whether development for the purposes of a manufactured home estate may be lawfully carried out on the subject land. Particulars 2.1 the particulars to question 1 above are repeated; 2.2 on 13 June 1991 the LEC granted consent for a mobile home park subject to conditions that the development take place in accordance with plans numbered 5-10 and that landscaping be provided and maintained in accordance with Council's policy number L1 - Landscape ("the said Policy") for category 3 development; 2.3 the plans showed the subject land as coloured green and labelled "open landscaped area" on which mobile homes were not to be erected or installed; 2.4 SEPP 36 defines "manufactured homes" as meaning "a self contained dwelling (that is, a dwelling that includes at least one kitchen, bathroom, bedroom and living area and that also includes a toilet and laundry facilities), being a dwelling: (a) that comprises one or more major sections that are each constructed, and assembled, away from the manufactured home estate and transported to the estate for installation; and (b) that is not capable of being registered under the Traffic Act 1909, and includes any associated structures that form part of the dwelling", and includes the mobile homes to which the consent relates; 2.5 SEPP36 defines "manufactured home estate" to mean "land on which manufactured homes are, or are to be, erected"; 2.6 the subject land, being the open landscaped area, is land on which manufactured homes cannot lawfully be erected because: (a) it is zoned for scenic protection (cl 6, SEPP 36); (b) it is a breach of the consent, and hence the EPA Act, s 122(a),(b)(iii). 3. If the answer to question 1 is yes, whether the development may be lawfully carried out pursuant to existing use rights. Particulars 3.1 If the applicant can establish existing use rights for a manufactured home estate pursuant to s 106(b) of the EP&A Act, in relation to which it bears the onus, those rights do not extend to the subject land, particularly having regard to the fact that the consent requires the land to be maintained as "open landscaped area". 4. Whether pursuant to cl.8 of SEPP 36 the said land may be subdivided to enable the erection of manufactured homes? Particulars 4.1 This is consequential upon the answer to question 2 above. 5. If the source of permissibility is the Wyong LEP, can consent be granted for subdivision without the allowance of an appropriate SEPP 1 Objection with respect to the 20 ha minimum allotment size for subdivision in the 7(b) zone pursuant to cl 13(2)(b) of the Wyong LEP. The proposed lots are significantly less than 20 ha. Particulars 5.1 if the use is permissible with development consent pursuant to the Wyong LEP (ie. cl 6 of SEPP 36 does not to apply), the application cannot be approved in the absence of an appropriate SEPP 1 objection with respect to the 20 ha minimum allotment size for subdivision in the 7(b) zone pursuant to cl 13(2)(b) of the Wyong LEP. 6. Despite SEPP 36 and the LEP, can consent be granted pursuant to existing use rights? Particulars 6.1 This is a matter for the applicant to raise if so advised.

OTHER ISSUES 7. Scenic quality 7.1 The proposal should not be approved having regard to clause 10(3) if the Wyong Local Environmental Plan as it is contrary to the objectives of the 7(b) Scenic Protection Zone. It will prejudice the scenic quality of land within the zone and adversely effect water resources. 7.2 Existing trees located on the site have already been unlawfully removed, which has already reduced the scenic quality of the land. The proposal will further adversely impact upon the scenic quality of the land by allowing the placement of structures upon the site, which will then effectively prohibit rehabilitation of the area and more limited possibilities for the retention of existing trees to soften the impact of the structures. 7.3 The development will result in an intensive residential housing estate, which is antipathetic to the objectives of the zone, the Court approval and result in a form of development sought to be prohibited in the 7(b) zone. 7.4 For reasons particularised in these statement of issues, the proposal is contrary to objective 2(1)(d) of SEPP 36 in that the proposal will result in further manufactured homes being placed on land which is not considered to be a suitable location having regard to the landscape, scenic and ecological quality of the land, although it must be noted here that the landscape and scenic quality of the land has already been impacted upon as a result of unauthorised works and vegetation removal and failure to develop in accordance with the original development consent. 7.5 For reasons particularised in these statement of issues, the proposal is contrary to Clause 9(d) of SEPP 36 in that it will impact upon the landscape, scenic and ecological quality of the land having regard to the fact that the land is zoned 7(b) Scenic Protection. It is noted that these qualities have already been impacted upon and the development removes the physical possibility to address this and achieve the original development intention for this site. For reasons particularised in these statement of issues, the proposal is contrary to objective 2(1)(f) of SEPP 36 in that it will impact upon the environment surrounding the land (although much of this impact has already occurred). 8. Unauthorised Tree Clearing and works and inaccuracies in the information 8.1 The Arborist report submitted with the application shows 23 trees of 10-25 metres located on the site however, the site is currently completely cleared of trees and vegetation, filled and benched with drainage installed in preparation for development. It is considered unacceptable to rely upon unauthorised activities to justify further development. The plans do not reflect this. 8.2 Given the extent of unauthorised tree clearing that has occurred, the existing arborist report is considered redundant, and it is considered that a new arborist report is required to demonstrate whether the few remaining trees can be retained and how any development of the land will seek to rehabilitate and revegetate the land. It is also considered that an amended proposal (on the assumption the development is permissible) requires a new landscape plan which reflects the unauthorised clearing that has occurred and proper detail and specification. 8.3 The proposal will effectively remove the opportunity to seek revegetation/rehabilitation of the land. 9. Impact upon Flora and Fauna 9.1 Given the extent of unauthorised clearing of keystone species under DCP 14 - Tree Management (ie species which provide habitat for native fauna) which has occurred, native fauna, including the "vulnerable" greater broad nosed bat, has already been impacted upon and can not be restored with the proposal. 9.2 Adverse impacts on adjoining flora and fauna by reduction of habitat size and buffer zone. 9.3 The proposal will further impact upon native fauna given the lack of information with respect to the retention and long term viability of the few remaining trees, together with impacts arising from the conflict between the proposed residential use and uncertainty regarding the effect of bushfire asset protection zones on existing habitat which is adjacent to the proposed lots. 9.4 Increase stormwater runoff and associated water quality impacts on adjacent natural vegetation including SEPP14 wetlands (also see DCP30). 9.5 Whether the development will adversely effect the adjoining vegetation including that on the 7(a) Conservation Zone. This includes bushfire hazard reduction. 10. Overdevelopment/ streetscape 10.1 The proposal (along with the other 3 associated applications) is antipathetic to the original approval which had large areas of open space / landscaping and connecting pathway systems. By seeking to now develop these areas one of the fundamental aspects / amenities of the original development is sought to be removed and the balance for the permanent and otherwise intensive residential development in a scenic protection zone is lost. 10.2 The original application / approval of a Mobile Home Park use of a caravan park provided for an approved plan with large areas of open space and access thereto to balance the intense nature of the sites. These sites have been more intensely developed than originally approved reinforcing the need for the original open space. 10.3 The cumulative effect of the application (along with the other lots proposed) and other applications before the Court is an overdevelopment of the site and the Mobile Home Park. 10.4 The brick construction of the dwellings along with the erection of on ground concrete slab and standard brick construction for double garages and other rooms has increased built form and removed spatial separation between dwellings when compared to the originally approved light weight construction and single carports. This significantly reinforces to the need for open space on this site which is on a visually prominent corner and provides visual relief in the streetscape which will be adversely affected by the proposal to remove this open space. 10.5 The number of mobile homes/manufactured homes with limited private open space reinforces need for area of common space for recreational use and access thereto, spatial ambience and visual offset. 10.6 The proposal is antipathetic to the original approval which had large areas of open space / landscaping and connecting pathway systems. By seeking to now develop these areas one of the fundamental aspects of the original development is sought to be removed and the balance (visually, environmentally and recreationally) for the otherwise very intensive development is lost. These areas added to the spatial, visual and environmental character of the park, to reflect park like qualities. The proposal along with various permanent garage structures in setbacks of lots significantly compromises / removes this planned or envisaged character. 10.7 The original application for a Mobile Home Park implied, as well outlined in the approved plan, conditions and Court judgment, large areas of open space to balance the intense nature of the small sites with intensive use. 10.8 The proposal is inconsistent with the Statement of Environmental Effects referred to in Senior Assessor's Jensen's Orders. For example, at page 46 it is stated "As regards the bulk of the development, by its nature this will be minimal when compared to a conventional residential development.... Moveable homes are single storey structures, which it is comparatively easy to assimilate into the landscape. With the low density of allotments proposed by Windsor Developments, the substantial landscaping and sensitive treatment of the site's relationship with the surrounding area, the impact of the bulk of the scheme will be minimal"; at page 40 it is stated "These trees must be regarded as an important element of the landscape quality of the site and will proportionally increase in importance as development takes place. It is intended to retain as many trees as possible and to considerably augment the tree cover with additional planting" and "Every effort is to be made during construction to retain as many of the trees as possible, as they are considered by the developers as an integral part of the sites future landscape quality". 11. Amenity of occupants 11.1 Adverse impact on the residential amenity of existing occupants of the Park particularly those opposite and using open space area adjoining. This included loss of bush view/open and vegetative outlook, adverse visual impact from the intense development proposed and loss of recreational potential. 11.2 Specifically with the residential development of the lots likely to follow from the approval potential privacy impacts are likely - visual, aural and car lights. Car parking on street will increase. 11.3 Removal of common open space and environmental values of the 'Mobile Home Park' as envisaged available in the original approvals of Commissioner Jensen and part of the reasonable expectation of purchasers of existing allotments. 12. The public interest and issues raised by objectors 12.1 Whether the proposal should be approved having regard to matters raised by objectors, including concerns regarding the death of trees during construction (as occurred previously), lack of visitor car parking, removal of community parklands and lack of affordability of the homes. 12.2 Intensification of the development and diminishing the Mobile Home Park's amenity both internally and externally in circumstances where it is not achieving the goal of affordable housing. Adverse amenity impacts on existing park residents including visual, congestion, potential privacy questions and loss of outlook. 12.3 Whether the proposal is acceptable having regard to Clause 9(2)(a) of SEPP36 in adding to the cumulative impact of manufactured home estates in the locality. 13. DCP 64 Whether Wyong Development Control Plan No 64 applies, and whether the proposed development of the lots can satisfactorily comply with the provisions of this DCP including clauses 7.1, 7.2, 7.5, 8.1, and 8.2. 14. DCP 66 Whether Wyong Development Control Plan No 66 applies, and whether the proposed development of the lots can satisfactorily comply with the provisions of this DCP including clauses 1.4, 2.4, 2.5, 2.7, 2.8, 3.1, 3.2, 3.5, 4.1.1, 4.1.2, 4.1.4 and 4.1.9. 55 The council sought consent orders in respect of each appeal and the only issue that remained for the Court to decide was whether Lot 10 within Lot 14, DP 270244 in Appeal No 10716 of 2005 should be deleted or not. His Honour Talbot J decided the points of law on 23 November 2005, [Note: Optima Developments Pty Limited v Wyong Shire Council [2005] NSWLEC 649]. The evidence and findings 56 Mr M Campbell, resident of No 41 Carters Road, Lake Munmora, stated that when the Court originally approved the manufactured homes development in 1991, it had regard for environmental considerations and standards and the number of sites were reduced from 400 to 200. By seeking to increase the number of sites the applicant would be departing from the spirit of what was originally proposed and approved. He suggested that over time the environmental land had been "nibbled away". He asked, "how much more is to be nibbled away?" 57 Mr G C Hansen, resident of No 12 Rosemount Avenue, Lake Munmora, who has been a landowner in the area since 1988, objected, [Note: Exhibit 1, Tab 24, two letters dated 1 June 2005]. The present application, he said, is not supported by the objectives of the WLEP and would not conform to the key-planning directive of Planning Directive 2003 No 10 that came from the State. 58 He argued that the proposal "…cannot be supported by the statistical over-quota in Planning District No 10." He was of the opinion that the statistical quota would be 10 times the shire average, and would not meet the objectives of 7(b) zone. He considered also there was an oversupply of housing stock. 59 He continued that the key word is "affordable" and that there was no affordable housing policy for the shire, and the proposal would not conform to affordability requirements. 60 He covered a number of other topics including: · This council is opposed to the expansion of residential parks in Wyong Shire and in the Chain Valley area. · This is a de-facto housing estate, on lands not zoned residential. · The applicant has already had a fair share of development. · There is an embargo on further residential development in this planning district in Wyong Residential strategy. The focus for further development should be the Entrance, …Toukley and Warnervale. · There is an imbalance in the housing mix. · There is a need to conform to the neighbourhood plan. · Sales in this area are driven by negative gearing principles. · The oversupply of this stock is having a detrimental effect on residential prices in this area. As a residential 2(a) owner of land he suggested that the oversupply of product is affecting the value of principle residence. · Any approval on this estate would contradict formal residential approvals and the application should be refused.

61 Ms R Martyr, resident of No 10 Dianne Avenue, Lake Munmora, was also involved with the Munmora/Chain Valley Community Precinct Committee. She explained that she had written an objection on behalf of the committee, [Note: Exhibit 1, Tab 24, letter dated 22 December 2004]. She recalled that when the original application went to the Court the number of sites were in excess of 200. When the Court approved the application it reduced the number of sites to 200, and commended the developer on the extent of landscaping and that it would be a benchmark of future development. In the present application she said, "…we see an application for 40 sites and that will bring the proposal back to the original and there would be an erosion of the surroundings." She argued that the application contravenes the spirit of the original application, being piecemeal development. She said that local residents had assumed it was going ahead as the original development. 62 Ms D Taueli, resident of No 1 Blacksburg Court, Pacific Lakes Estate, Lake Munmora considered herself as the "meat between sandwich." She explained that she had bought for an affordable home situated in "…a beautiful area with facilities including a swimming pool." 63 She was critical of the lack of maintenance of the estate by the applicant and as a result the bushland had deteriorated and trees had died. She contended that there have been "…a lot of false promises." Despite this, she said, "I wish to keep living here." She said, "I would be happy to have no more development." 64 Ms C Metcalfe, resident of No 7 Berkley Court, Pacific Lakes Estate, Lake Munmora, who was a member of executive committee of the estate spoke on behalf of the majority of residents. She told the council of conflict between the developer and council. She said that when she bought into the estate it was on the understanding that the open spaces within the estate were further stages for development. She said that it is "…to our advantage to have development completed as soon as possible." 65 She had concerns for the lack of car parking. She supported the provision of extra facilities and pointed to the fact that a new swimming pool and playgrounds had been approved. She was concerned that if the development now sought, were not carried out, the levies now paid by the developer on undeveloped land would have to be paid by residents and the levies on individual householders increased. She said that she "…would like the developer to complete the estate and make this a good community for the residents." 66 Mr G Napier, resident of No 2 Pulaski Court, Pacific Lakes Estate, Lake Munmora, was also concerned for a lack of car parking. 67 Mr D Metcalfe, resident of No 7 Berkley Court, Pacific Lakes Estate, Lake Munmora, said that the levy situation is inequitable at $330.40 a quarter. Residents of similar homes in Myrtle Close pay almost $80 or $90 less. He asked the developer to revalue the lots, however he was aware that the representative of the applicant has recently stated that he is not interested in revaluing the land. He said, "…we are looking for equity in the amount of levies." 68 Mr A Daniels, was concerned that the developer would find some way of handing it [the development lots the subject of these appeals] back to the existing residents of the development and "…we will be financially disadvantaged." 69 Despite some lingering concerns, many of those present, supported the proposal. 70 Mr Austin, QC, submitted that under the provisions of 'SEPP36 - Manufactured Home Estates' the relevant provision is cl 8(3) - subdivision of manufactured home estates. He read, "…any prohibition or restriction on the subdivision of land imposed by any other environmental planning instrument (EPI) (whether made before or after this policy) does not apply to the subdivision." He submitted that cll 16 and 14(2)(b) impose a restriction on land within the 7(b) zones with a minimum subdivision area of 20 ha. He submitted that as this would be a restriction, referred to in SEPP36, on the subdivision of land, "…imposed by any other EPI", those clauses, therefore, do not apply to this subdivision under SEPP36 and thus as in the past, subdivision approval can be given to the lots in the development applications presently before the Court. 71 However, he submitted that if he were wrong in this submission, the applicant would rely on the SEPP1 objections prepared by Mr Oliver in Exhibits A, B, C and D inclusive, which are objections in respect of each of the development application against the minimum subdivision standard. Desirability of manufactured homes and the planning aims would be achieved, he submitted. 72 Mr Cole submitted, for the Court to approve the developments a SEPP1 objection would need to be considered in each case. He referred to the decision of his Honour Talbot J who said that as the proposal to subdivision is an innominate use and is permissible under the provisions of the WLEP there is need of a SEPP1 objection. 73 He submitted that the statement of issues could be split into two. Under one topic there is permissibility and under the other subdivision and whether an SEPP1 objection is required. Still have to have permissibility under the WLEP and need SEPP1 under cl 16. He submitted that the council does not oppose the SEPP1 objections. 74 He submitted that the only issue remaining is that in Appeal No 10714 to whether Lot 10 should be deleted. [Note: Issue 1.6 referring to cl 16]. 75 Mr Austin, QC submitted in reply that the council is making an artificial distinction for present purposes. He submitted that his Honour Talbot J had held that the proposal was permissible under the WLEP to facilitate SEPP36. He referred to the decision of his Honour Talbot J in Optima Developments Pty Limited v Wyong Shire Council [2005] NSWLEC 649 at paras 23, 33, 36, 41, 47 and 48 dealing with, the operation of cll 6 and 8 of SEPP36. He submitted that para 49 is critical to an understanding of his Honour's decision. The literal or grammatical meaning of the words in SEPP36 accommodate the concept of a scheme which contemplates permissibility of MHEs ['manufactured home estates'] either under its terms of the provisions of another environmental planning instrument. The context and general purpose of SEPP36 is to provide and facilitate the opportunity to develop MHEs. The approach that I have taken is not inconsistent with those objectives [ Project Blue Sky v ABA (1998) 194 CLR 355 at 381 and 384] 76 Addressing the merits of the present applications and the only issue to be decided by me, I have concluded that it is unnecessary to deleted Lot 10 from within the twelve-lot subdivision of the original development area Lot 14, DP 270244 in Appeal No 10716 of 2005, [Note: Exhibit Z, Examples of system built homes proposed for lots 2 and 3 showing the footprints of 'Paperbark' and 'Myrtle']. My reason for this conclusion is that any single-storey manufactured home that would be sited on the new Lot 10 would not interrupt the vista along the east/west section of Roanoke Drive of the retained and augmented vegetation near the Pacific Highway frontage. The trees beyond Lot 10 to the west would be sufficiently tall as to be seen over the top of any dwelling on that lot. Additional vegetation is proposed along the cul-de-sac driveway giving access to Lots 11, 12 and 13 and this would add a vegetative screen. 77 I am satisfied that on their merits each application may be determined subject to the imposition of conditions as formulated during the hearing. I accept the submission of Mr Austin, QC, that there is no need to consider the SEPP1 objections to lot size, however, were I wrong in this, I consider the SEPP1 objections to the well founded on the evidence and the submissions of Mr Cole. 78 Although the proposals are within those parts of the Pacific Lakes Estate that were set aside for 'green space' under the original consent, I am satisfied that as they would be within largely disturbed areas they would be acceptable. There has been stockpiling of fill on the land earmarked for the twelve-lot development (formerly twenty-five lots). In this regard I accept the evidence of the Court-appointed town-planning expert Mr Chambers that the application is acceptable on merit. I also accept the evidence of Dr S Ambrose, on ecological matters. 79 For the above reasons, by consent the appeals are upheld. Other matters 80 During the hearing the applicant agreed to locate the necessary fire trail in the northeastern sector of the Pacific Lakes Manufactured Home Estate as far as is practical along the line of the footpath. This is necessary in order to reduce the number of trees that would need to be removed. Any trees to be removed that are protected under a tree preservation order would require separate consent. 81 Also, the applicant agreed, during the course of proceedings, to consult with the Pacific Lakes Management Committee to relocate the approved, and yet to be constructed, swimming pool and recreational facilities complex proposed on 7(a) zoned land, onto lots within the eastern sector of the proposed subdivision. This would free up the 7(a) zoned land from further development and maintain a vegetative setting in the eastern sector of the estate. Conditions 82 The conditions are those in Exhibits 14, 15 16 and 17 and as amended during the hearing. Costs 83 The parties agreed there should be no costs award. Thus the parties have agreed to pay their own costs. Consent orders 84 The consent orders are:

1. The appeals under s 97 of the Environmental Planning and Assessment Act 1979 are upheld.

2. Various: (a) Development application No 2704/2004 for the creation of two (2) allotments for manufactured housing within a community title subdivision, is approved subject to the Conditions 1 to 37 in Annexure 'A'. (b) Development application No 2705/2004 for the creation of fifteen (15) allotments for manufactured housing within a community title subdivision, is approved subject to Conditions 1 to 34 in Annexure 'B'. (c) Development application No 2701/2004 for the creation of twelve (12) allotments for manufactured housing within a community title subdivision, is approved subject to the Conditions 1 to 37 in Annexure 'C'. (d) Development application No 2706/2004 for the creation of one (1) allotment for manufactured housing within a community title subdivision, is approved subject to the Conditions 1 to 33 in Annexure 'D'.

4. The exhibits except Exhibits 13, 14, 15, 16, 17, 18, H, J, K, L, M, N, O, P, Q, T, U, V, W, Z, AA, AB, AC are returned.

The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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