Bowen v Willoughby City Council

Bowen v Willoughby City Council - [2001] NSWLEC 274 - NSWLEC 2001 case summary — Zoe

[11]

In answering the first question in the negative, I concluded at par 76 that cl 16 of the LEP relevantly was a development standard that was amenable to the dispensational power under SEPP No 1. However, in the following passages at par 77 to par 82 (inclusive), I went on to explain that my conclusion did not address the future situation that was obviously contemplated by the present development application, re-subdividing the five lots, namely the future development of each of those lots (assuming that they are created) by a dwelling-house. 77 However, in leaving this question, I think that I should emphasise that my conclusion that cl 16 relevantly is a development standard that is amenable, by virtue of the Applicants' objection under SEPP No 1, to the dispensational power available under that Policy, is based upon the facts of this case, and in particular, the Applicants' development application that is the subject of the proceedings. 78 To put the matter more bluntly, it is not a conclusion in respect of any future development that may be proposed for the proposed re-subdivision of the development site. It is apparent that the intention for creating the three rear lots is that each lot will in due course become the site of a dwelling-house. However, that is only a future possibility that is beyond the ambit of the present proceeding. 79 Nevertheless, it is apparent that any such future housing development will require the grant of development consent. But even more apparent is the fact that any such development proposal will inevitably encounter the effect of cl 16(3) of the LEP. If that provision remains in force, if and when, such a development application is made, it is apparent that the proposed development will only become legally permissible if the dispensational power under SEPP No 1 can be availed of by the proposed developer. In the light of these future possibilities, I think it important that I state my opinion that my present determination of the question of law, simply does not address that future situation. 80 In this respect, I fear that the parties may not have raised all questions truly in dispute between them concerning the effect of cl 16(3) of the LEP. It may have been thought that the question whether dwelling-house development on the proposed three rear lots was too remote from the issue raised by the present proceedings, which is confined to the proposed subdivision of the development site (although in raising the second question of law based upon the EP&A Act, s 80(2), the Council was obviously alive to the likely future development of these proposed lots by dwelling-house development). 81 Be this as it may, I think it necessary at this point to say, as at present advised that my construction that cl 16 of the LEP is relevantly a development standard is fundamentally connected with the present context, namely the Applicants' development application to subdivide the development site and the Applicants' objection under SEPP No1. 82 It might be thought that this result is unsatisfactory in that there will necessarily remain doubt whether each of the proposed three rear lots is ultimately legally capable of being developed by a dwelling-house. This was precisely the type of dilemma that was encountered in Healesville, where in the course of the hearing of a development appeal for the subdivision of land (which was dependent upon the successful invocation of SEPP No 1), the question arose as to whether it would be legally permissible to erect a dwelling-house on each of the proposed lots. It was in these circumstances that the Court granted leave for the applicant to file instanter a class 4 application (between the same parties) claiming a declaration of its entitlement to so develop each of the lots. (The necessity for separate class 4 proceedings presumably arose because of a perception that the Court's practice was not to make declarations in class 1 proceedings. For myself, I do not think any such practice, if it exists, to be immutable). For completeness, I should say that although the claimed declaration was refused in Healesville, it was because of the Court's interpretation of a relevant statutory provision, which it was conceded, was not a relevant development standard.

[14]

My reasons for making order 3 were explained in the following passages: (ix) It follows from the foregoing reasons and especially reason (viii), that the Council, in bringing the Class 4 proceedings is seeking an adjudication upon the question of the legal permissibility of any future dwelling-house development of the proposed lots, being the question that it unsuccessfully sought to raise in formulating the second question of law in the class 1 proceedings, being an adjudication that will impact upon the fate of the pending class 1 proceeding. That this is the case is clearly shown in the Council's Solicitor's letter to the Respondent's Solicitor advising of the proposed class 4 proceedings and was made even clearer by the submissions made on behalf of the Council on the hearing of the Motion by its Senior Counsel who freely conceded that if the Council were permitted to raise in the pending class 1 proceeding the question whether the development by a dwelling-house of each of the three proposed vacant lots was legally permissible that would provide an appropriate vehicle with the consequence that there would be no need for the class 4 proceedings to be continued. (x) In my opinion, the pending class 1 proceedings provide a far more appropriate and fairer basis and vehicle for the raising of the issue sought to be raised by the Council than are provided by the separate class 4 proceedings. Far more appropriate because the question will be properly contextualised and confined to the development application which is the subject of the pending class 1 proceedings (when both the question and its answer will form part of the overall complex of considerations relevant to the exercise of the statutory discretion conferred by the EP&A Act s 79C in the determination of a development application). Far fairer because the Respondent will not be involved in separate and additional litigation of having to confront an issue in vacuo which may never relevantly arise (eg if the development application is refused), and hence will not be exposed to the risk of incurring additional legal costs which would carry the grave risk of imposing an unfair financial burden upon a person seeking to obtain development consent under the EP&A Act. In respect of this last-mentioned factor, it is timely to recall the salutary criticism in the Court of Appeal's judgment in Gemsted Pty Ltd v Gosford City Council (1993) 78LGERA 395 of the practice of a council in the context of a pending development appeal to this Court raising in separate class 4 proceedings questions of law which could just as readily have been raised in the pending class 1 proceedings. I would respectfully adopt all that fell from Cripps JA in that case in giving the judgment of the Court of Appeal.

[20]

On 15 February 2001 the Council notified the Applicants of its determination refusing development consent to their development application for the following reasons:

The proposal is inconsistent with the general aims and objectives of WLEP 1995 as specified by Clauses 2(b), 2(c, 2(d), 2(e) and 2(g).
The proposal is inconsistent with both the general and specific objectives of the Residential 2 (a2) zone as specified by Clause 14 of WLEP 1995.
The proposal is inconsistent with the Clause 16 of WLEP 1995 in that the proposed access road is considered to have an adverse impact on the scenic quality of the site an (sic) locality.
The proposal is inconsistent with Clause 16(3) of WLEP 1995 in that the resultant development would in effect locate buildings below the Foreshore Building Line contrary to the objectives of Clause 16(1) of WLEP 1995.
The proposed driveway and structure located between the FBL and the bay, creek harbour in respect of which the line is fixed is considered to detrimentally affect the aesthetic quality of the locality and as such does not satisfy Clause 16(4) of WLEP 1995.
The proposal does not satisfy the heads of consideration relevant to development within the Residential 2(a2) - Scenic Protection Area as stipulated by Clause 17 of WLEP 1995.
The proposal is contrary to the guiding principles of SEPP No. 56 - Sydney Harbour Foreshores and Tributaries.
The proposal is not acceptable in terms of the aims and objectives or Clause 9, which relates specifically to land adjoining land zoned for public open space, as set out in SEPP No 19 - Bushland in urban Areas.
The proposal is not acceptable in relation to SREP No. 23 - Sydney and Middle Harbours particularly having regard to the general and specific aims and objectives set out under Clause 2 and the matters for consideration in determining development applications as set out in Clause 18.
The proposal is inconsistent with DCP No 16 - Dwelling Houses, Dual Occupancy and Boarding Houses in Residential Zones particularly with regard to the aims and objectives, locality statement and special controls specific to Castlecrag, special controls of the Residential 2(a2) zone and the General Design Elements for development.
The proposal is inconsistent with the aims and objectives and minimum requirements of Council's Subdivision Code.
The proposal will have detrimental environmental impacts on the natural environment of the locality.
The site is not suitable for the development proposed.
The proposal is not in the public interest.

[28]

In my opinion, this subject is aptly described by Mr Jeff Ellis (Council's Special Projects Officer) in the following sections of his Report (Exhibit 1) which I am content to adopt: 2. THE SITE AND LOCALITY 2.1 The Site The subject site is located on the southern side of Sugarloaf Crescent and consists of five (5) allotments being Lots 301 -305 in DP 13613. The total site area is 1.1 05ha and has a total frontage of 30.48m to Sugarloaf Crescent. The site is fan-shaped with a rear boundary length of 136.55m adjoining a Council bushland reserve. The property known as no 70 Sugarloaf, Crescent consists of two allotments (Lots 304 and 305) and contains an existing dwelling house and detached garage. The property known as no 72 Sugarloaf Crescent consists of three allotments (Lots 301, 302 and 303) and also contains an existing dwelling house. The topography of the site has a fall of in excess of 45m from Sugarloaf Crescent to the rear boundary. The top one third of the site is steeply sloping, with the slope then lessening over the central portion of the site. There is a significant change in topography over the last 5 - 20m of the site where a natural cliff line exists. Beyond the rear of the two existing dwellings (which are situated toward the street) the site is well vegetated although considerable clearing and gardening works appear to have been undertaken. The foreshore building line gazetted pursuant to Willoughby Local Environmental Plan 1995 (the "WLEP") extends across the property in the vicinity of 40 -50m from Sugarloaf Crescent. (Identified on Boundary Levels Survey). 2.2 The Neighbourhood Context The residential zoning that applies to the site and the surrounding residential properties is the Residential 2(a2) -Scenic Protection under the provisions of WLEP. The general character of Sugarloaf Crescent is single detached dwelling houses that front the street and that have vistas to the well-vegetated bushland setting of Sugarloaf Bay and Harold Reid Reserve. Overall the street does have several distinct changes in its character set by subdivision configuration., such as lot size and shape, topography, vegetation , type and density, geological features, the proximity of bushland, reserves and Middle Harbour as well as the type of housing stock. Generally the first section of Sugarloaf Crescent, after the intersection with Lincoln Avenue, consists of average sized residential allotments, gently sloping with landscaped gardens. In this section, a number of the allotments on the low side of the crescent adjoin a Council bushland reserve, although the actual allotments do not contain bushland. In the vicinity of the apex of the bend in the crescent, on the low side of the road, the allotments gradually increase in size, are fan shaped, become more steeply sloping, have a greater interface with the reserve beyond and contain more remnant bushland. The dwellings tend to be on the upper parts of the allotments with the area beyond being generally undeveloped. Beyond the bend, on the low side of the street the allotments are relatively larger in size and have a more rectangular shape. These allotments also continue to contain bushland and adjoin a bushland reserve. The high side of the street in this section contains sites that slope up from the street, are slightly larger than average, but whilst well landscaped and containing geological features, do not have the appearance of urban bushland. At the end of the street the subdivision pattern becomes convoluted with the allotments requiring access via a single private roadway made up of many rights of way. It is also noted that several dwellings/sites span several allotments in this regard the following is noted: · 70 Sugarloaf Crescent - two lots · 72 Sugarloaf Crescent - three lots · 80 Sugarloaf Crescent - two lots · 84 Sugarloaf Crescent - four lots In the vicinity of the subject site are two variations to the general location of built form being: · 66 Sugarloaf Crescent This site consisting of one allotment contains a dwelling house quite low on the site between contours 28 and 36. Council approved the dwelling in 1977. The dwelling has no vehicular access directly to the dwelling, rather the resident's park within a garage at the top of the site and walk down to the dwelling. Above and below the dwelling, the site is well vegetated. · 80 Sugarloaf Crescent This site consists of two allotments and contains a single dwelling house and swimming pool at the top of the site and a tennis court lower and angled across the site. Council approved the tennis court in 1981. Above and below the tennis court, the site is well vegetated. In relation to the neighbourhood's natural heritage, the locality is identified by the National Trust as part of the Middle Harbour Landscape Conservation Area and being of scenic, cultural and conservation value, with the trust recommending the maintenance of strict controls by the Authorities. The locality has also been nominated for the Register of National Estate, although to date no assessment by the Heritage Commission has been undertaken. C. THE RELEVANT PLANNING CONTROLS APPLYING TO THE DEVELOPMENT SITE

[29]

Here, again I consider that Mr Ellis' Report (Exhibit 1) aptly summarises the multiple planning controls (I use the term "planning controls" in its widest sense) applying to the development site (and other sites forming its physical context) which I am content to adopt: 4 PLANNING CONTROLS 4.1 Willoughby Local Environmental Plan 1995 The subject sites are zoned Residential 2(a2) under the provisions of WLEP No.1995. The aims and objectives of the plan relevant to this application include: Clause 2 b) to allow development at a scale that is sensitive to environmental and planning constraints; c) to control and manage adverse environmental impacts of development; d) to maintain and enhance the amenity of residential areas, for example by protecting these areas from inappropriate development; e) to ensure that residential development conforms with the scale and character of the individual residential development areas; f) to identify and protect environmentally sensitive areas. Clause 14A The General objectives of the Low Density Residential Areas - zones 2(a) and 2(a2) relevant to this application include: b) to maintain the scale, character and streetscape of individual localities; c) to retain and enhance residential amenity, including views, solar access, aural and visual privacy and landscape quality. Clause 14C The specific objective of the Residential "A2" Scenic Protection Zone is To accommodate housing such that the scenic qualities and ecological values of environmentally sensitive natural areas, including foreshores and bushland areas are maintained by protecting the land in this zone from overdevelopment on visually intrusive development, by minimising the impact of hard surfaces on the ecological characteristics of the locality, including nearby and adjoining bushland, and by ensuring that the new development does not dominate the natural scenic qualities of the locality. Clause 16 The development sites are subject to a Foreshore Building Line (FBL); Clause 16 of the WLEP stipulates the parameters of the FBL namely: (1) The objectives of a FBL a) to preserve and enhance the natural features and vegetation of =8 the area where the land meets or is in close proximity to the water; and b) to encourage the protection and regeneration of land which forms an integral part of the foreshore setting by controlling new development. (2) Foreshore building lines are shown on sheets 12A, 12B, 12C and 12D of the map by a broken black line and unbroken red line. (3) Except with the consent of Council granted in accordance with Subclause (4), a building shall not be erected between a foreshore building line and the bay, creek, harbour, river; lake or lagoon in respect of which the line is fixed. (4) The Council may, after considering the probable aesthetic appearance of the proposed structure in relation to the foreshore, consent to the erection, repair or maintenance of (a) single storey boat sheds; or (b) retaining walls, or (c) inclinators, or (d) structures or works such as swimming pools, below or at the surface of the ground, or (e) minor recreational and landscaping structures such as barbeques, gazebos and garden sheds between a foreshore building line and the bay, creek, harbour; river; lake or lagoon in respect of which the line is fixed. Clause 17(2) (1) Land within Zone 2(a2) is within a Scenic Protection Area. (2) The Council shall not consent to the carrying out of any development =- within a Scenic Protection Area unless it has considered the appearance and impact of that development on a) the amenity of surrounding properties, including loss of views to and of the foreshore, bushland and any waterways, b) the scenic qualities of the foreshore, including whether manmade structures visually dominate the natural landscape through excessive height and bulk and whether buildings, structures and other works are aesthetically and sympathetically integrated with the form and features of the local topography; c) bushland within the immediate locality, including loss of natural vegetation and significant geological features, disruption of drainage patterns, alterations to water tables and increase bushfire hazard potential; and d) achieving the objectives of any development control plan applying to those areas. (3) Despite clause 4, the Council shall not consent to any development other than drainage, landscaping, gardening or bush fire hazard reduction, on the land, being part of lot 1, DP 568911, known as 233 Edinburgh Road, Castlecrag, and shown cross-hatched on sheet 6 of the map 4.2 State Environmental Planning Policy No 56 - Sydney Harbour Foreshores and Tributaries Guiding principles relevant to this proposal include: 7 (d) the conservation of significant bushland and other natural features along the foreshore, where consistent with conservation principles, and their availability for public use and enjoyment,

[33]

(2) Where a public authority: (a) proposes to carry out development on land to which this clause applies, or (b) proposes to grant approval or development consent in relation to development on land to which this clause applies, the public authority shall not carry out that development or grant the approval or development consent unless it has taken into account: (c) the need to retain any bushland on the land; (d) the effect of the proposed development on bushland zoned or reserved for public open space purposes and, in particular, on the erosion of soils, the siltation of streams and waterways and the spread of weeds and exotic plants within the bushland; and (e) any other matters which, in the opinion of the approving or consent authority, are relevant to the protection and preservation of bushland zoned or reserved for public open space purposes." The definition of Bushland as contained within SEPP No 19 is as follows: Bushland means land on which there is vegetation which is either a remainder of the natural vegetation of the land or, if altered, is still representative of the structure and floristics of the natural vegetation. 4.4 Sydney Regional Environmental Plan No.23 - Sydney and Middle Harbours The general aims of the is plan relevant to the application are 2(1)(c) to ensure that the Harbours and their foreshores are developed and promoted as a community asset, with due recognition being given to their role as a recreation and tourist focal point. 2(1) (e) to recognise, protect and enhance the natural, scenic, environmental, cultural and heritage qualities of the land to which this plan applies in future planning and development control. 2 (1) (j) to encourage an appreciation of the remaining natural foreshores around the Harbours 2(2)(e) in relation to the natural environment - (i) to protect flora and fauna habitats, including wetland areas, in a manner that is consistent with their conservation value, while also recognising the validity of other uses of the foreshores and the waterway; and 2(2)(f) in relation to the visual environment - (i) to protect and enhance the landscape and special scenic qualities of the Harbours; and (ii) to ensure that adequate consideration is given to the visual impact of development; and (iii) to preserve the natural foreshores of the Harbours and to ensure development does not detract from their natural character. 18 A consent authority must not consent to the carrying out of development unless it is satisfied that the proposed development is consistent with development of the land to which this plan applies in accordance with the objectives of this plan, and it has considered such of the following matters as are of relevance to the development- (a) the appearance of the development from the waterway and the foreshores; (b) whether the development will have an adverse effect on wetlands or flora and fauna habitats. 4.5 Development Control Plan 16- Dwelling Houses, Dual Occupancy and Boarding Houses in Residential Zones DCP No.16 recognises the important environmental qualities of Castlecrag and reiterates the established character in the description of the desired future character of the locality. In particular relevance to this site and proposed development the DCP requires: 2.2.2 Desired future Character of Castlecrag 1. Minimising the impact of the built environment by siting buildings sensitively, integrating the built form with the natural landscape, with the built form subsequent to the landscape and the predominance of natural landscaped areas on the site. 5. The predominance of a landscape of native vegetation and tree cover with informally landscaped private gardens merging into one another with minimal fences and walls, in particular to the street. 7. Retention of significant. trees and stands of significant natural vegetation. Plant locally indigenous trees and dense vegetation, both within the site and to the street frontage to maintain the natural landscape characteristics of the locality. 8. Avoiding loss of vegetation between and around dwellings to reduce the prominence of the built form when viewed from Middle Harbour and other vantages. 10. Minimising areas of driveways and paved surfaces at the street frontage and avoiding unbroken double garages facing the street. 12. Ensuring the preservation of remnant bushland and encouraging revegetation of foreshore properties to protect the visual amenity of the natural foreshore areas. Section 3 Residential 2(a2) zone - Special Controls In relation to the Residential 2(a2) - Scenic Protection area the DCP stipulates specific landscape and Scenic Amenity Controls. The intent of this section is: To ensure that the predominant landscape character of the foreshore and bushland area is maintained. To protect land in environmentally sensitive and scenic protection areas from over development and to ensure development does not visually dominate the natural scenic qualities of the locality. To minimize the effects of development on the ecology of the environmentally sensitive areas To maintain and enhance the integrity of bushland through the use of native species in landscaping works. To protect the bushland as a natural stabiliser of the soil surface. Section 3.2 is concerned specifically with Foreshore Building Line. The intent of the Section is: To preserve and enhance the natural features and vegetation of the foreshore area for its scenic and ecological value and to ensure development does not detract from the natural character of these areas To encourage the protection. and regeneration of land which forms an integral part of the foreshore setting and to maintain the amenity of foreshore properties. Section 3.3 of the DCP is concerned with Bushfire, the intent of this Section is: To minimise risk to person and property from bushfire. To design for bushfire prevention so that the landscape and environmental qualities of the locality are maintained. The specific performance criteria of this Section are- A. Development of sites prone to bushfire hazard are to be designed and/or adopt measures which minimize potential hazard. B. Sites are to be maintained to minimize bushfire hazard without unduly altering the natural qualities of the area. C. Unencumbered access is to be provided for Bushfire purposes. Section 4.01 Minimum Site Area The intent of this section is to ensure allotments have sufficient area for the siting of development to achieve a good relationship to adjoining dwellings, provide adequate space for landscaped open space, drainage, parking, residential amenity and other services and be compatible with the general pattern of spacing of buildings in the area. To achieve an efficient use of land for new housing. The performance criteria relevant to this development are i) Provide for usable open space and landscaping; ii) Allow convenient vehicle access and parking; iv) Have regard to topographical constraints and retention of significant trees; v) Ensure development is compatible with the spacing and pattern of surrounding development Section 4.03 Character, Design and Streetscape The intent of this section relevant to this application is -

[56]

Following a detailed examination of many relevant cases (decided either by the Court of Appeal or by this Court) his Honour returns to the difficult nature of the requisite task of construction in the following passages at pars 93 to par 95: 93 I do not think it profitable to go to further decided cases, which will only reveal how a provision has been categorised in the interpretation of the particular environmental planning instrument. It is evident that a process of construction to find regulation on the one hand or prohibition on the other hand will bring finely divided decisions. Care must be taken lest form govern rather than substance. A provision in the form, "A building may be erected on land in a particular zone if the land has an area greater than a particular area" appears regulatory, whereas a provision in the form, "A building must not be erected on land if the land has an area less than a particular area" appears prohibitory, but the substance is the same. 94 As was done in, for example, Fencott Drive Pty Ltd v Lake Macquarie City Council , the provision must be seen as part of the environmental planning instrument as a whole. Regulation or prohibition may depend on the governing characteristic perceived in the provision. In the second form of provision just set out, if the characteristic is land in the particular zone the area requirement may be seen as stating a permissible way or extent of development, but if the characteristic is land with the particular area no development may be carried out. I do not find the so-called dichotomy, or its expression in the two different kinds of provision, either clear or providing ready answers. 95 There must be found a distinction between a provision which is a development standard and a provision which controls development in some other way, and the guidance of the dichotomy in providing a conceptual basis for the distinction must be acknowledged. But neither the dichotomy itself nor its expression in the two different kinds of provision can replace the definition in the Act.

[57]

It is the last sentence which provides the answer to his Honour's quest for the relevant discrimens. This leads him back to his earlier extended analysis at pars 40 to 58, and his adoption of the majority judgments in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222 when he propounds in pars 96 to 99 the following two step approach to the required task of construction in order to determine whether the dispensing power conferred by SEPP No 1 is available in a given case - 96 The matters in the construction of the definition discussed by Mahoney JA in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) mean that, in order that a provision fall within the definition as a development standard, there must be a development in respect of an aspect of which the provision specifies a requirement or fixes a standard. A provision prohibiting the development in question (the use of land, subdivision of land, erection of a building etc, see the definition of "development" in the Act) under any circumstances will be a provision controlling development, but it will not be a development standard. The availability of SEPP No 1 will fail at the first step. 97 Beyond this, the debate should be over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development. I consider one can profitably return to the observations of McHugh JA in Woollahra Municipal Council v Carr , to his Honour's reminder of the need to define the development and its aspects before it can be determined whether the provision in question is a development standard. Referring again to the definition of 'development standards', there must be a provision in relation to the carrying out of development, and then the provision must specify a requirement or fix a standard in respect of an aspect of that development. Having identified the development in relation to which there is the provision, the aspects of that development must be considered in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development. 98 If the provision does not prohibit the development in question under any circumstances, and the development is permissible in circumstances expressed in the provision (whether positively or negatively, see the forms of provision earlier stated), in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development. In the absence of control, and subject for example to the private law of nuisance, a landowner may develop his land as he sees fit. Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided a relevant aspect of the development is identified the control will be by imposition of a development standard. 99 In the debate over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development, the key will be identification of a relevant aspect of the development. The list of aspects in paragraphs (a) to (n) of the definition of development standards in s 4(1) of the Act shows that a broad view of what is an aspect of a development should be taken. North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) must be regarded as a case in which the majority considered that the provision in substance prohibited the development under any circumstances, not because of something in the definition of the development (see Clarke JA's comments on the observations of McHugh JA in Woollahra Municipal Council v Carr ) but because, as part of the environmental planning instrument as a whole, in the prohibition on erection of a residential flat building the governing characteristic was land with adjoining high buildings, so there was relevantly a prohibition on development in any circumstances . Healesville Holding Pty Ltd v Pittwater Council must be explained in a similar way. The other cases cited by the appellant in which provisions were held to be development standards must be regarded as cases in which the development was permitted and there was a relevant aspect of the development in respect of which a requirement was specified or a standard fixed - siting of the building ( Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council, Bowen v Willoughby City Council ), number of storeys of the building (Scott Revay & Unn v Warringah Council ), minimum subdivisible area ( Bell v Shellharbour Municipal Council ).

[92]

That objection was premised on the fact that cl 16 of the LEP was relevantly a "development standard" and that the objectives of the standard were expressed in cl 16(1). The objection is then formulated as follows: It is considered that in the subject case the objectives of the standard are achieved notwithstanding non-compliance with the standard. It is therefore considered unnecessary and unreasonable for the following reasons to require compliance: The proposed encroachment is caused only by a driveway that is required to service the three lots that are proposed below the FBL; The proposed driveway is to be established at grades in accordance with Council's standards and will not be visually obtrusive; The site is some 1km from the nearest navigable waterway and due to the topography between the land and that waterway only limited parts of the site above approximately RL 36 could be visible in any event. From such a distance the site is not individually prominent, the view being one of a broader landscape rather than an individual property; As such it can be concluded that the land does not meet nor is it within close proximity to the water; The proposed building footprints to be established sit even lower on the site at between RL 26 and 30. At such levels, the envelopes are not visible from the waterway due to the intervening topography; Establishment of the driveway will require the removal of some trees which are generally of a poor condition and in decline as fully documented in the report of arborist Stuart Pittendrigh The significant trees numbered 2, 3, 4, 6, 10, 11 & 12 and are assessed in numerical order as fair condition but slight decline and weak junction within trunk, very poor condition, introduced poor condition and in decline, introduced in decline and loss of vigour, introduced suffering decay and insect damage, in poor condition with a large wound. Further, the condition of the subject trees ranges from fair to poor/very poor and in decline. Only one tree, the Smooth Bark apple is indigenous to the locality.

[97]

Section 8.2 of Mr Ingham's Report sets forth the reasons for his opinion that the objection pursuant to SEPP No 1 "that compliance with the foreshore building line controls of the LEP is unreasonable and unnecessary in the circumstances of this case". Those reasons may be summarised as follows: (i.) This Court's earlier judgment determined that cl 16 of the LEP was relevantly a development standard; (ii.) The object or purpose of that development standard is stated in cl 16(1); (iii.) The development site is not land "that meets or is in close proximity to the water" and is not land that is part of the "foreshore setting" because the foreshore building line as it affects the development site is 300 m distant from mean high water mark of Sugarloaf Bay and that separation is "totally unnecessary to meet the objectives of the LEP in order to establish a setback and an appropriate level of vegetation between the foreshore building line and dwelling-houses"; (iv.) The foreshore building line as it affects the development site is "extremely onerous and has the effect of sterilising development of the five existing lots and the foreshore building line is not necessary in the existing location to satisfy the objectives of the foreshore building line" because: - (a) the area where the foreshore building line is located cannot be seen from Sugarloaf Bay; (b) "nowhere else around Sydney Harbour, except Castlecrag, does such an expanse of foreshore preservation occur on privately owned residential land"; and (c) the foreshore building line "creates a de facto reservation of the land for purposes other than those permitted within the Residential 2(a2) Zone" and as such, the foreshore building line "does not allow for the orderly use and development of residential land" (cf s 5 (a) (ii) of the EP&A Act); (v.) the foreshore building line is inconsistent with the following provision of Council's DCP 16 because "it does not allow for the future development of the existing residential land" : - where a site is vacant, the FBL is placed in a position that meets the WLEP 1995 objectives and the intent of this clause, but which provides for future development and is consistent with the general placement of dwellings in the area. (vi.) The location of the "indicative dwelling footprints" (shown on the amended development application plans) on each of the three rear lots is similar to the location and land contour of the existing dwelling-house situate on the lot (No 66 Sugarloaf Crescent) immediately to the South of the development site and to the location of the existing tennis court situate on the lot (No 80 Sugarloaf Crescent) immediately to the north of the development site; (vii.) For reasons of topography, the construction of the proposed access driveway to the proposed three rear lots necessarily involves construction in places above the ground level.

[98]

Earlier in his Report in Section 4, Mr Ingham provides an extensive review and analysis of the foreshore building line as it affects the development site. The principal matters raised in that review may be summarised as follows: (i.) Based upon the evidence of relevant survey plans, it is apparent that over the years a considerable amount of accretion has occurred to the foreshores of Sugarloaf Bay in the vicinity of the development site, with the mean high water mark currently being some 180 distant from the rear boundary of the development site compared with 12 m when the Castlecrag residential estate was first created; (ii.) The existing foreshore building line as it affects the development site (and neighbouring sites) was first imposed in 1986; (iii.) The degree of affectation of the development site is that only some 15 per cent of the agglomerated area of the existing five lots is located above the foreshore building line with the result that the vast majority of the land within each lot is located below the foreshore building line and is not able to be developed by a dwelling-house (except by application of SEPP No 1); (iv.) The Applicants' attempt in 1997 to develop the existing lots by a form of terrace housing development had been met by the Council's refusal on the ground that that form of residential development was not permissible development within Zone No 2(a2); (v.) It was virtually impossible that each of the existing lots could be developed by a dwelling-house development that would be acceptable on town planning grounds because of the configuration of the lots and the portion of each lot located on the landward side of the foreshore building line; (vi.) In these circumstances, the foreshore building line would appear to be intended to sterilize residential development of the existing five lots; (vii.) There is no "relevant ground" (or justification) that requires the foreshore building line to be placed so close (ranging from 37 to 42 metres) to the Sugarloaf Crescent frontage of the development site and consequently so far distant from mean high water mark of Sugarloaf Bay. (Mr Ingham's Report at this point articulates the arguments that are reflected in his reasons for concluding that the objection under SEPP No 1 is well founded, which reasons I have earlier summarised).

[122]

In a subsequent letter, the Minister made available to the Council the Director-General's Report on the draft LEP Amendment No 3 pursuant to the EP&A Act, s 69 which was in the following terms: Background In the past, Willoughby Council established a number of foreshore building lines around the foreshores of Willoughby LGA as a means of development control. The general intent of the FBL is to preserve the natural features and vegetation of waterfront land and encourage the protection and regeneration of the land by controlling new development between that line and the water's edge (refer to folio 197-198). Current Situation The draft plan has now been submitted by Council under section 68 of the Act. The Department considers the foreshore building line as an important planning tool for achieving a consistent approach to development around the Willoughby foreshore area and a means of protecting the visual amenity of the Harbour, of regional significance. The proposed FBL as submitted by Council is appropriate along most properties in Willoughby, however there is concern about the resultant impact of development that would possibly occur if council's final recommendation on certain parts of Willoughby's foreshore proceeds. The Director-General has expressed concerns over the impact of the FBL as submitted by Council particularly for some properties located in Edinburgh Rd and in Sugarloaf Crescent (see folio 173-174) as this could have the potential to seriously undermine the aims and objectives of State Environmental Planning Policy (SEPP) No. 56 and Sydney Regional Environmental Plan (SREP) No. 23. Further, the changes recommended by the Council, are a significant departure from the report prepared by Council's staff but without justification. If implemented it could have major detrimental effects in the long term on the environmental and visual catchment of the Harbour. Under section 70(1)(c), the Minister may decide not to proceed with the a draft local environment plan due to issues of State or regional importance. The three most important regionally significantly issues which allows the Minister to not make the plan are as follows: · The future negative impacts from development and the potential for damage to water quality in the area and the total catchment. · Importance of retaining the bushland to preserve the natural ecosystems and visual amenity of Middle Harbour which are of regional significance. · The precedence that this LEP will have for other councils in the area to follow by permitting land owners to develop their land closer to the foreshore. Therefore Council should be advised to reconsider the position of the FBL in certain areas of Willoughby foreshore and that the suggested FBL by Council staff in their report to Council of October 1998, could provide a reasonable compromise under the circumstances. Recommendation It is RECOMMENDED that the Minister: a) under section 70(1)(c) of the Environmental Planning and Assessment Act 1979, decide not to proceed with the draft Local Environmental Plan tagged A; b) give no direction to the Council under section 70(7) of the Act as to the procedure to be followed in connection with making his decision known to the public; c) authorise the advice tagged E to be forwarded to Council in accordance with section 70(7) of the Act.

[130]

In my judgment, the Applicants' objection pursuant to SEP No 1 is not well founded. I reach to this conclusion for the following reasons: (i) The proposed development is repugnant to the stated objectives of the foreshore building line (vide cl 16(1)) inasmuch as the carrying out of the development (including the future dwelling-house development on each of the three rear lots) will not "preserve and enhance the natural features and vegetation of the areas where the land is in close proximity to the water" (cl 16(1)(a)) and will not "encourage the protection and re-generation of land which forms an integral part of the foreshore setting by controlling new development" (cl 16(1)(b)). Significantly those objectives are entirely confirmed and reinforced by the other planning controls applying to this area of Castlecrag in the vicinity of Sugarloaf Bay, the operative effect of which has been earlier recited. (ii) The portion of the development site that is affected by the foreshore building line is relevantly (i) "land in close proximity to the water" and (ii) "an integral part of the foreshore setting" within the meaning of cl 16(1)(a) and (b) respectively, and I would so find on the evidence, just as each of the members of the Court of Appeal so found in Willoughby City Council v Bowen (1996) 92 LGERA 410 at 413 per Meagher JA, at 417 per Sheller JA and at 417 per Abadee AJA. (iii) The Applicants' attack on the unfairness or unreasonableness or disproportionality of the effect on their land of the foreshore building line is misconceived in law, and in any event, the same grievance was decisively rejected by the Court of Appeal in Bowen - see at 413/414 per Meagher JA at 417 per Sheller JA and 418 per Abadee AJA; (iv) The Applicants' attack on the Council's lack of action in amending the LEP by relaxing the severe restrictions on development that are imposed by the foreshore building line, is contrary to the evidence, which amply demonstrates that the Council did so specifically seek to amend the LEP but that both the Department of Urban Affairs and Planning and the Minister had refused to adopt the Council's draft LEP Amendment. (v) Similarly, the Applicants' claim that the Council, by maintaining the foreshore building line as it affects the development site, was thereby deliberately "sterilising the residential development potential of the development site" or was creating a "de facto reservation for public open space" of the Applicants' land so affected by the foreshore building line, is totally unsupported by the evidence, and in any event, a similar claim was decisively rejected by the Court of Appeal in Bowen see at 414 per Meagher JA at 417, per Sheller JA and at 417 per Abadee AJA. (vi) The existence of the buildings on neighbouring properties (the dwelling-house at No 66 Sugarloaf Crescent and the tennis court at No 80 Sugarloaf Crescent) wholly located on the foreshore side of the foreshore building line does not provide any justification for the proposal's total breach of the foreshore building line because those buildings had come into existence many years before the foreshore building line first came into force in 1986. (vii) The extent of encroachment by the proposed development upon the foreshore side of the foreshore building line is both substantial and significant - the internal access road extends up to 20 metres into the foreshore land and the three indicative dwelling sites likewise extend up to between 35 to 50 metres - and in truth, the proposal involved the wholesale abandonment of the existing foreshore building line as it affected the development site and its replacement by a de facto line up to 50 m distant from, and below, the existing line. (viii) The sheer magnitude of the proposal's deviation from the foreshore building line (involving much more than an encroachment on that line) was such that recourse to the dispensing power conferred by SEPP No 1 must be regarded as a far less appropriate means of avoiding the legal consequences of the foreshore building line, than the means of changing the foreshore building line by way of an amending LEP, which was the very means so recently employed by the Council to secure such change, albeit without success when rejected by the Minister, as lacking sufficient justification. (ix) A related disadvantage of seeking to change the foreshore building line by exercising the dispensing power conferred by SEPP No 1 (compared with change via an amendment to the LEP) is that the ad hoc wholesale deviation from the foreshore building line in the present case would inevitably create an adverse planning precedent for similar action being taken in respect of other lots in Sugarloaf Crescent similarly affected by the foreshore building line (there being a number of other nearby properties comprising two or more lots which are straddled by an existing dwelling-house which are capable of re-subdivision in similar fashion to the Applicants' proposal).

At a glance

Court

Decision date

Before

Source

Judgment (146 paragraphs)

Parties

Cases Cited (3)

Cited By (9)