Bruce Kerr Pty Ltd v Central Coast Council

Contentions

1. The contentions between the parties were that: 1. The proposed lots did not meet the minimum lot sizes for subdivision in the 7(c2) 'Conservation and scenic protection (scenic protection - rural small holdings)' Zone or the 7(a) 'Conservation and Scenic Protection (Conservation)' Zone under IDO. 2. There was insufficient information accompanying the development to determine conclusively the level of significance of impacts to threatened species, populations or endangered ecological communities. 3. Inadequate information was provided regarding how pump out sewerage facilities are to operate ahead of connection to a future extension of reticulated sewerage services to the site. 4. There was conflict between asset protection zone management requirements, and the management of riparian zones and other vegetation areas containing threatened species and endangered ecological communities. 5. The access from Empire Bay Drive was to be altered to reflect comments received by NSW Roads and maritime Services (RMS). 6. A Bushland Management Plan was required to ensure the ongoing management and protection of the threatened flora and fauna identified on site.
2. The first contention goes to the permissibility of the development application under the IDO.
3. The development's potential impact on threatened species, populations or endangered ecological communities, and the significance of any impact, needs to be assessed pursuant to s5A and s79C of the EPA Act as a precondition to the grant of consent.
4. The remaining contentions (contentions 3-6 above) need only be addressed if the first two contentions are resolved in favour of the Applicant.

Permissibility: Do the lot sizes meet the minimum requirements for subdivision?

1. The proposed lots, and their respective sizes, under the development application are:

Consistency of proposed lot sizes with the IDO - clause 18(3)

1. Clause 18(3) of the IDO identifies the minimum lots sizes permissible for subdivision within various zones.
2. Under clause 18(3)(a), land zoned 7(a) Conservation and Scenic Protection (Conservation) Zone has a minimum lot size is 40 ha.
3. Under clause 18(3)(e), land zoned 7(c2) Conservation and Scenic Protection (Scenic Protection - Rural Small Holdings) Zone has a minimum lot size of 2 Ha.
4. Consequently, the lot sizes as proposed do not meet the minimum size requirements within clause 18(3) of the IDO, and cannot be approved under the provisions of this part of the IDO.

Consistency of proposed lot sizes with the IDO - clauses 18(4) and 18(5).

Consistency of lots 1-7

1. 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.
2. 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).
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).
4. 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.

(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).

1. 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).
2. 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).
3. 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).
4. 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).
5. 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.
6. However, the Respondent has said that the offer to dedicate the proposed lot 8 to Council is not agreed to by Council.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.

(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).

1. 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.
2. 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.
3. 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.
4. 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).
5. 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].
6. 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.
7. 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.
8. 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.
9. I conclude that the requirements of subparagraph 18(4)(b)(ii) are not fulfilled by the development application.

(iv) 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).

1. As discussed above [25]-[36]: 1. the requirements of subparagraph 18(4)(b)(i) could only be satisfied by an offer from the Applicant to dedicate the proposed lot 8 to Council if the offer was agreed with Council, and. 2. the Applicant has not proposed to contribute an amount of money to be used by the Council for the purposes of this subparagraph.
2. I conclude that the requirements of subparagraph 18(4)(b)(iv) are not able to be fulfilled by the development application.

Consistency of sizes of proposed lots 1-7 with the IDO: Conclusion

1. The sizes of the proposed lots 1-7 are not consistent with the requirements of clauses 18(3), 18(4) and 18(5) of the IDO.
2. I find that the proposed lots 1-7 zoned 7(c2) within the development application are not able to be made under the provisions of Clauses 18(3), 18(4) and 18(5).

Applicant submits a SEPP 1 Objection to minimum lots size requirements

1. To overcome the fact that the lot sizes for proposed lots 1-8, and residual lot 9 do not meet the requirements of clauses 18(3), 18(4), and 18(5) of the IDO, the Applicant has lodged objections under State Environmental Planning Policy No 1 (SEPP 1), to vary the application the IDO clause 18 in relation to minimum lots size requirements.
2. The SEPP1 objections were presented within the expert report of Mr Anthony Rowan in respect of Town Planning matters.
3. This objections seek to: 1. vary the minimum lot size requirement of 2ha applicable to lots 1-7 zoned 7(c2), 2. vary the minimum lot size requirement of 40ha applicable to lot 8, zoned 7(a), and 3. vary the minimum lot size requirement of 2ha applicable to residual lot 9, zoned 7(c2).

Consideration of SEPP1 objection for proposed lots 1-7

1. The SEPP1 objection to overcome the minimum 2Ha lot size applying to lots 1-7, and zoned 7(c2), was submitted on the following basis: "The objection is submitted as the development as proposed does not meet the requirements of subclauses 18(4) and 18(5), and as such, it is necessary to seek a variation to the development standard under clause 18(3)(e) requiring each proposed lot to have an area of no less than 2 hectares".

Requirements to uphold a SEPP1 objection

1. 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].
2. 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.
3. 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.

Is the SEPP1 objection well founded for lots 1-7?

1. The grounds for the objection were provided in writing, and were identified as: 1. the non-compliance of the proposal with the requirements of sub-clauses 18(4) and 18(5) of the IDO concerning minimum lot size for subdivision of land zoned 7(c2), and 2. the consequent necessity to seek variation to the development standard under clause 18(3)(e).
2. The Applicant's SEPP1 objection was based on the proposition that strict compliance with the development standard under clause 18(3)(e) was unnecessary and unreasonable because: 1. the IDO already permitted the creation of lots with a minimum 1ha size, through the application of clause 18(4) and 18(5), and 2. that the proposed dedication of Lot 8 with an area of 1.128ha would adequately address the requirements of clause 18(4)(b), through meeting the specific requirements of clause 18(4)(b)(i).

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

1. 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.
2. 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.
3. 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]).
4. 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.
5. 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.
6. 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.

Is the underlying objective or purpose of the development standard not relevant to the development with the consequence that compliance is unnecessary?

1. This approach was not been relied upon as a basis for upholding this SEPP1 objection.
2. The Applicant did not contend that the objective or purpose of the standard was not relevant to the development. Rather the Applicant sought to have the standard set aside on the basis that its implications were viewed as unreasonably burdensome to the Applicant.

Would the underlying objective or purpose of the development standard be defeated or thwarted if compliance was required, with the consequence that compliance is unreasonable?

1. This approach was not been relied upon as a basis for upholding this SEPP1 objection.
2. The Applicant did not contend that the underlying objective or purpose of the development standard would be defeated or thwarted if compliance was required.

Has the development standard 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?

1. The planning experts, Mr Rowan and Mr Leavey, in their joint expert report, acknowledged that the potential effect of clause 18(4) of the IDO is such that all land zoned 7(c2) had the potential to be subdivided into 1 ha lots subject to meeting the requirements of clause 18(4) and site suitability.
2. The Applicant argued, relying on the expert testimony of Mr Rowan, that the widespread application of clauses 18(4) and 18(5) of the IDO, together with the manner of its application, implied that the requirements for a minimum 2 ha lots size for land zoned 7(c2) under clause 18(3) had been abandoned as a development standard.
3. However, it was the evidence of Mr Leavey in the joint report of planning experts that: "The Council has, for at least the last 15 years, consistently applied the requirements of clause 18(4)(b) to require a contribution or dedication for subdivision proposals for 7(c2) land. During at least the last 15 years there are no applications for the subdivision of land where Council has agreed to a SEPP1 variation to allow subdivision below 2ha in lieu of satisfying the requirements of clause 18(4)".
4. I accept the conclusion of Mr Leavey that the intent of clause 18(4) is in fact to provide precisely the flexibility in planning outcomes being sought by the Applicant for the subject site, and to do so in a manner that is consistent, and that addresses the public benefit requirements of s79C(1)(e) of the EPA Act.

Is the 'zoning of particular land' unreasonable and inappropriate so that a development standard appropriate for that zoning is also unreasonable and unnecessary as it is applied to that land and so that compliance with the standard in that case would be unreasonable or unnecessary

1. This approach was not been relied upon as a basis for upholding this SEPP1 objection.
2. The Applicant did not contend that the 'zoning of particular land' was unreasonable and inappropriate.

SEPP 1 objection for lots 1-7: conclusion

1. 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.
2. 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.

Consideration of SEPP 1 objection for lots 8 and 9

1. Given that the SEPP1 objection for lots 1-7 is not upheld, consideration of the SEPP1 objections in relation to lots 8 and 9 is not required.
2. Notwithstanding that, for completeness, I note that the following in relation to lots 8 and 9: 1. It was the position of the Respondent in closing submissions, and of the planning experts in their joint report, that the use of a SEPP1 objection to seek relaxation of the requirements of clause 18(3)(a) governing the proposed size of lot 8, which is zoned 7(a), was unnecessary, as the proposed lot 8 is able to be created under clause 18(4)(a)(iv) of the IDO. I agree with this joint position of the planning experts. 2. It was the position of the Respondent in closing submissions that the Applicant's SEPP 1 objection seeking relaxation of the planning controls with respect to the minimum lot size for the residue lot 9 zoned 7(c2) should be allowed.

Conclusion

1. As the development application does not meet the lot size requirements of clauses 18(3), 18(4) and 18(5) of the IDO, and as the SEPP1 objection lodged with respect the minimum lot sizes of proposed lots 1-7 is not upheld, the development application is in contravention of the relevant environmental planning instrument, that being the IDO, and must be refused under clause 80(2) of the EPA Act.
2. Consideration of the remaining contentions is not required as the proposed creation of lots 1-7 is in contravention of the IDO.

Orders

1. The Court orders: 1. The appeal is dismissed. 2. Development consent for subdivision of land at 18-22 Allawa Close, Bensville under DA 11.2015.48003.1 is refused. 3. The exhibits are returned.

Appendix 1 - Plan of proposed subdivision for 18-22 Allawa Close, Bensville

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