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