With the increasing popularity of manufactured home estates
(MHE) as a form of affordable housing, the recent decision of
TMT Devco Pty Ltd v Cessnock City Council 
NSWLEC1161 highlights relevant considerations for consent
authorities regarding the characterisation of manufactured housing
development and the application of the State Environmental
Planning Policy No. 36—Manufactured Home Estates (SEPP
The Class 1 proceedings in the Land and Environment Court in
TMT Devco Pty Ltd v Cessnock City Council involved an
appeal against the Council's refusal of a development
application for a 302 manufactured home estate on land zoned
"RU2 Rural Landscape".
In addition to the Council's concerns regarding the merits
of the application, a number of legal issues were raised in the
course of the proceedings regarding the permissibility of the
The Court's characterisation of an MHE
The parties had competing views on the proper characterisation
of the proposed development. The Applicant sought to characterise
the proposal as a caravan park, while the Council argued that an
MHE is"multi-dwelling housing".
Pursuant to the Land Use Table in the Cessnock Local
Environmental Plan 2011 (LEP), caravan parks are an innominate
use permitted with consent in the RU2 zone, however
"residential accommodation" is prohibited.
"Multi-dwelling housing" is a subset of "residential
The LEP defines "caravan park" as "land
(including a camping ground) on which caravans (or caravans and
other moveable dwellings) are, or are to be, installed or
placed". While the definition of "moveable dwelling"
does include a "manufactured home", the definition of
"caravan park" is conjunctive, such that it requires the
installation or placement of both caravans and moveable dwellings
on the site. While the application did include an area for caravan
parking and RV storage, it did not include caravan sites, nor did
it propose the installation or placement of caravans for human
Commissioner Brown concluded that the proposed RV/caravan
storage area would be ancillary to the use of the site as an MHE
and held that an MHE is characterised as "multi-dwelling
housing" (and therefore prohibited in the RU2 zone).
It is interesting to note that in Wygiren Pty Ltd v Kiama
Municipal Council  NSWLEC 56, it was argued that the
inclusion of two caravan sites in an MHE of more than 1,000
manufactured home sites was nominal and not enough to characterise
the development as a "caravan park". The Court, however,
did not rule on this submission because it had determined that the
MHE development was permissible under SEPP 36.
SEPP 36 and the R5 zone
Notwithstanding the prohibition in the LEP, SEPP 36 permits
manufactured home estates on any land on which development for the
purpose of a caravan park may be carried out, subject to the
exemptions set out in Schedule 2 of SEPP 36 (amongst other
By virtue of cl 6 of Schedule 2, SEPP 36 does not apply to land
that, 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)
scenic protection, or
rural (where the land is not adjacent to or adjoining land
zoned for urban use).
The subject site was within a zone identified by the description
"rural" (being RU2 Rural Landscape). Caravans are an
innominate use permitted in that zone. The site was adjoined by
land zoned RU4 Primary Production, R5 Large Lot Residential, E2
Environmental Conservation and RU2 Rural Landscape.
The parties put forward competing submissions as to whether the
R5 Large Lot Residential Zone is "land zoned for urban
use". It was the Council's position that it is not and
Commissioner Brown supported this position. Taking into account the
objectives of the R5 zone as well as the permitted and prohibited
uses within the zone, Commissioner Brown concluded that the
proposed development was not "adjacent to or adjoining land
zoned for urban use".
While each application for an MHE will turn on its own facts
(subject to the zoning of the site and adjoining land as well as
the particulars of the proposed estate itself), councils should be
aware of the various matters that affect the permissibility of the
development of MHEs on certain sites in their local government
The NSW Government is currently undertaking a review of the
regulation of manufactured homes and estates, caravan parks and
camping grounds. The Department of Planning and Environment with
the Office of Local Government sought feedback on a discussion
paper between 2 November 2015 and 14 December 2015. We are awaiting
further information regarding the outcome of the review and will
provide an update when there are further developments.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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