Bruce Kerr Pty Ltd v Central Coast Council - [2016] NSWLEC 1598 - NSWLEC 2016 case summary — Zoe

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Bruce Kerr Pty Ltd v Central Coast Council

[2016] NSWLEC 1598

Land and Environment Court (NSW)|2016-09-07

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2016-09-07

Catchwords

[1999] NSWCA 399. Momcilovic v The Queen (2011) 85 ALJR 957 Stockland v Manly Council (2004) 136 LGERA 254
[2004] NSWLEC 472 Wehbe v Pittwater Council (2007) 156 LGERA 446

Source

Original judgment source is linked above.

Catchwords

[1999] NSWCA 399. Momcilovic v The Queen (2011) 85 ALJR 957 Stockland v Manly Council (2004) 136 LGERA 254[2004] NSWLEC 472 Wehbe v Pittwater Council (2007) 156 LGERA 446

Judgment (25 paragraphs)

[1]

Background

Bruce Kerr Pty Ltd has lodged an appeal against the deemed refusal by the Central Coast Council of its development application (DA No. 11.2015.48003.1) for the subdivision of one lot (Lot Y DP 415041) at 18-22 Allawa Close, Bensville (the Subject Site), into nine lots on the corner of Empire bay Drive and Palmers Lane).
The appeal is brought pursuant to s97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
The development application was the subject of a conciliation conference between the parties pursuant to s34 of the Land and Environment Court Act 1979 (the LEC Act). The conciliation process was terminated and the appeal listed for hearing pursuant to s34C of the LEC Act.
A final subdivision plan for the nine lots, including a so-called residual lot (Lot 9), prepared by Bisset and Wright Pty Ltd [Plan No. 2 dated 04/08/2016], is provided at Appendix A.
The Subject Site, along with other areas zoned 7(c2) and 7(a) under Gosford City Council's Interim Development Order No. 122 (2013) [the IDO], is a deferred matter under Gosford Local Environment Plan (2014) [LEP 2014]. As a consequence, the planning controls that apply in this case are those under the IDO rather than LEP 2014.
Subdivision of land is permissible with consent in both zones 7(c2) and 7(a) under the IDO. In particular, the provisions of clauses 18(3), 18(4) and 18(5) of the IDO are relevant to the definition of the number of lots permissible for any proposed subdivision of lands within these zonings and to the assessment of the development application.

[6]

Consistency of lots 1-7

The minimum lot sizes for land zoned 7(c2) as set out in clause 18(3) can be varied through the application of clauses 18(4) and 18(5) of the IDO.
The requirements of clause 18(4)(b) provide flexibility in relation to the minimum lot size that may be sought under subdivision for land zoned 7(c2), and allow subdivision notwithstanding non-compliance with clause 18(3).
This clause permits the subdivision of land zoned 7(c2) with lot sizes of less than 2ha, but not less than 1ha, should the requirements of one of its five subclauses be fulfilled. Those requirements are set out in the following subparagraphs of clause 18(4)(b): 1. The person agrees with Council to dedicate to it as a public reserve land within zoned 6(d), or 7(a) which is in the same ownership as the land zoned 7(c2). 2. The person agrees to contribute an amount of money to be used by the Council for the purchase for as a public reserve of land within zone 7(a) or for the improvement or embellishment of any public reserve owned by Council which is within Zone 7(a) or which was formerly zone 7(a) under this order (ie the IDO). 3. The plan of subdivision is a strata plan within the meaning of the Strata Plan Titles Act, 1973, which includes as common property land within zone 7(a) which adjoins land within zone 7(c2) and that part of the common property is accessible from each of the lots in the strata plan. 4. The person agrees to dedicate land within zone 6(d) or 7(a) in accordance with subparagraph (i) and to make a contribution in accordance with subparagraph (ii). 5. The person agrees to make a contribution in accordance with subparagraph (ii) and to include land in common property in accordance with subparagraph (iii).
As the development application does not propose a strata plan, and as it contains no land in common property, the only avenues available to the Applicant to fulfil the requirements of clause 18(4)(b), are through subparagraphs (i), (ii) and (iv). These are now addressed.

[7]

(i) The person agrees with Council to dedicate to it as a public reserve land within zoned 6(d) or 7(a) which is in the same ownership as the land zoned 7(c2).

The Respondent contended, relying on the joint testimony of the planning experts, Mr Leavey and Mr Rowan, that the proposed lot 8 can be created through application of subparagraphs 18(4)(a)(iii) and (iv) of the IDO, and without the need for a SEPP1 objection (see [77] below).
Clauses 18(4)(a)(iii) and (iv) provide that a person may, with the consent of the Council - 1. subdivide land to which this clause applies, subject to clause 19(3) where: 1. the area of the land in the other zone is less than the area specified in subclause (3) [i.e. subclause 18(3)] in respect of that zone, and; 2. one of the allotments to be created by the subdivision comprises the whole of the land referred to in subparagraph (iii).
Clause 19(3) of the IDO relates to the subdivision of land zoned 1(b) under the IDO, and so has no bearing on the interpretation of subparagraphs 18(4)(a)(iii) and (iv) in relation to land zoned 7(a).
Consequently, I agree with the position of the Respondent, consistent with the joint testimony of the planning experts, Mr Leavey and Mr Rowan, that the proposed lot 8 can be created through application of subparagraphs 18(4)(a)(iii) and (iv) of the IDO as: 1. the area of lot 8 at 1.128 ha, and all of which is zoned 7(a), is less than the area of 40 ha specified in subclause 18(3), and 2. lot 8 comprises the whole of the land zoned 7(a) referred to in subparagraph (iii).
Given the above, the offer to dedicate the proposed lot 8 to Council as a public reserve could be accepted as fulfilling all the requirements of clause 18(4)(b)(i) if, as required in that subparagraph, 'the person agrees with Council' to dedicate the land so offered.
However, the Respondent has said that the offer to dedicate the proposed lot 8 to Council is not agreed to by Council.
The reasons for Council's non-agreement to this offer were addressed in the expert witness report of Mr Laurence Melican, Council's open space expert, and prepared in cooperation with Mr Michael Leavey.
This evidence assessed the suitability of the proposed lot 8 for addition to the Central Coast Council's Coastal and Open Space System (COSS). It concluded that the addition of the lots would not provide strategic benefit to the network of reserves managed by the Central Coast Council owing to its small size and the challenges of its longer term management due to edge effects and its relatively remote location vis-à-vis other Council managed natural reserves.
I accept Mr Melican's analysis, which is based on a robust assessment of the suitability of the offer for proposed lot 8 to be included in the COSS for the Central Coast Council.
I concur with Mr Melican's conclusion that Council's position not to agree to the Applicant's offer with respect to the dedication of lot 8 is both reasonable and consistent with Council's practice in determining whether or not to agree the dedication of any lands for the purpose of a public reserve.
I agree with the position of the Respondent in closing that it would not be reasonable for the Court exercising the power of Council as a decision maker to reach agreement in relation to the dedication of land pursuant to subparagraph 18(4)(b)(i), as this is a contractual right which the Court is not able to exercise pursuant to s39 (2) of the LEC Act: Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370; [1999] NSWCA 399.
Given this, I conclude that the requirements of subparagraph 18(4)(b)(i) could not be satisfied by an offer from the Applicant to dedicate the proposed lot 8 to Council in the absence of the agreement of Council.

[8]

(ii) The person agrees to contribute an amount of money to be used by the Council for the purchase for as a public reserve of land within zone 7(a) or for the improvement or embellishment of any public reserve owned by Council which is within Zone 7(a) or which was formerly zone 7(a) under this order (ie the IDO).

Subparagraph 18(4)(b)(ii) requires that to achieve the lot sizes for the proposed lots 1-7 a person should make a financial contribution to Council for the purposes identified in that subparagraph.
The Applicant contended that the proposed lot 8 should be dedicated to Council in total fulfilment of the requirements of clause 18(4)(b), as discussed above [25]-[36], with no further financial contribution being offered to Council.
The Applicant's refusal to make a financial contribution to Council was based on its position that the calculation of the scale of financial contribution that might be agreed under this subparagraph was unclear and lacked reference to any specific statutory or policy document. This position was supported by the testimony of Mr Rowan.
In contrast, the Respondent argued that the application of clause 18(4)(b)(ii), and the related maximum lot calculation provided under clause 18(5)(b), were supported by the application of long-standing Council policies, as identified within the expert report of Mr Michael Leavey, Most relevantly this included: 1. A Council memo of 5 May 1988 (provided at Attachment 4) providing the basis for calculation of financial contributions relevant to the subdivision of land zoned 7(c2) with so-called 'bonus lots', and 2. A Gosford Council Report and Resolution dated 5 April 2005, on the per hectare value of land zoned 7(a).
The Respondent in closing contended that the policies were both publically known and have been consistently applied over the long term by Council, and that this should entitle them to significant weight in relation to the application of subparagraph 18(4)(b)(ii) based on Stockland v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 at [92].
The consistency of application of these policies and their public knowledge was supported by the expert testimony of Mr Leavey, and was noted in the joint report of the planning experts.
It was the agreed position of the planning experts, Mr Leavey and Mr Rowan, that the contribution payable by the Applicant for the subdivision as proposed and under application of Council's policies was either: 1. for 7 lots zoned 7(c2), and assuming the residue 7(c2) land not being a separate lot: $443,504.25, or 2. for 8 lots zoned 7(c2), and assuming the residue 7(c2) land being a separate lot: $601,004.25.
The Applicant has not proposed, or agreed, to contribute an amount of money to be used by the Council for the purposes of this subparagraph.
I conclude that the requirements of subparagraph 18(4)(b)(ii) are not fulfilled by the development application.

[13]

Requirements to uphold a SEPP1 objection

The requirements to uphold a SEPP1 objection, and the related case law, have been comprehensively reviewed by Preston CJ in the case of Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 [36]-[51].
Preston CJ noted that, in exercising the functions of the consent authority: 1. The Court must be satisfied that the objection is 'well founded', being an objection in writing, and such that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. The objection should also state the grounds of the objection. 2. The Court must be of the opinion that 'granting of consent to the development application is consistent with the aims' of SEPP1, as set out in clause 7 of the SEPP. Preston CJ noted that the aims and objectives of SEPP 1 are to provide flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in a particular case, be unreasonable or unnecessary, or tend to hinder attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act. Those sections of the EPA Act encourage: 1. in terms of section 5(a)(i), the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, and. 2. in terms of section 5(a)(ii), the promotion and coordination of the orderly and economic use of developed land. 1. The Court must be satisfied that a consideration of the matters in clauses 8(a) and 8(b) of SEPP 1 justifies the upholding of the SEPP 1 objection. These clauses provide: 1. 'whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and 2. the public benefit of maintaining the planning control adopted by the environmental planning instrument.
In Wehbe v Pittwater Council, Preston CJ at [42]-[48] also summarised the approaches that should be applied to determine whether an objection under SEPP 1 was "well founded" and consistent with the aims of SEPP 1. These were to establish that the : 1. development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard. 2. underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary. 3. underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable. 4. development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance the standard is unnecessary and unreasonable. 5. 'zoning of particular land' was unreasonable and inappropriate so that a development standard appropriate for that zoning was also unreasonable and unnecessary as it applied to that land and that compliance with the standard in that case would be unreasonable or unnecessary.

[15]

Is development standard unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard?

The Applicant's SEPP 1 objection submitted that strict compliance with the development standard was unnecessary and unreasonable because the IDO already permitted the creation of lots with a minimum 1ha size. On one view, this could be seen as an argument contending that the objectives of the development standard would be achieved notwithstanding non-compliance with the standard.
By contract, the Respondent argued that the SEPP1 objection impermissibly sought to render clauses 18(4) and 18(5) of the IDO nugatory, with the consequence that the Applicant's basis for submission of the SEPP 1 objection was flawed and should be rejected.
The Respondent argued that clauses 18(4) and 18(5) must be read together with clause 18(3), and that the purpose of the development standard must be inferred from the text of clause 18 as a whole (Momcilovic v The Queen (2011) 85 ALJR 957 at [441]-[442]).
Consequently, it was the position of the Respondent, relying on `the expert evidence of Mr Leavey (within the joint report of the planning experts), that the development standard's purpose is both to achieve a minimum lot size outcome, and to allow relaxation of that minimum where this contributes to the public benefit by way of an agreed dedication of 7(a) zoned conservation land, or the making of a financial contribution for the improvement or embellishment of the Central Coast Council public reserve system.
The Respondent argued that upholding the SEPP1 objection in relation to clause 18(3)(e) would mean that the achievement of the objectives of the development standards under clause 18 generally, and under clauses 18(4) and 18(5) in particular, would not be possible.
I accept the submission of the Respondent, for the reasons provided, that the development standard is not unreasonable or unnecessary, and the objectives of the development standard would be compromised through non-compliance with the standard.

[20]

SEPP 1 objection for lots 1-7: conclusion

I find that the SEPP1 objection in relation to proposed lots 1-7 is not well founded for the following reasons: 1. the objectives of the development standard would not be achieved, notwithstanding the non-compliance sought, were the SEPP1 objection to be upheld. In this respect: 1. I accept the Respondent's argument that the purpose of the development standard must be inferred from a reading of the text of clause 18 as a whole. 2. I accept that the purpose of clause 18 is both to achieve a minimum lot size outcome, and to allow relaxation of that minimum where this contributes to the public benefit by way of an agreed dedication of 7(a) zoned conservation land, or the making of a financial contribution for the improvement or embellishment of the Central Coast Council public reserve system. 3. Given that clause 18 of the IDO is part of a properly made environmental planning instrument, consistently applied by the Central Coast Council and its predecessor council, the effect of the SEPP1 objection would be the setting aside clause 18(4) and 18(5) of the IDO, with the result that the purpose development standard of the IDO would not achieved. 1. As discussed at [64] I find the underlying purpose of the development standard is not unreasonable or unnecessary. 2. As discussed at [66] it was not contended that the underlying objective or purpose of the development standard was not relevant to the development with the consequence that compliance is unnecessary. Rather the Applicant sought to have the standard set aside on the basis that its implications were viewed as unreasonably burdensome to the Applicant. 3. As discussed at [68] there was no proposition advanced to suggest that the underlying objective or purpose of the development standard would be defeated or thwarted if compliance was required. 4. As discussed at [72] I find the development standard has not been abandoned or destroyed by the Council's actions in granting consents departing from the standard. Consequently, it cannot be concluded that compliance with the standard is unnecessary and unreasonable. 5. As discussed at [74] the Applicant did not contend that the 'zoning of particular land' was unreasonable and inappropriate.
Given the above, the SEPP1 objection to vary the minimum lot size set down in clause 18(3)(e) of the IDO is not upheld.

Bruce Kerr Pty Ltd v Central Coast Council

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Judgment (25 paragraphs)

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Cases Cited (7)