Bryson and Blake v Ballina Shire Council

Land and Environment Court (NSW)|2009-06-17

The applicant's case 32 Mr A Zakaras, town planner, provided the SEPP 1 objection and evidence for the applicant. Mr Zakaras stated that the primary objective of the zone is to regulate subdivision and encourage the productive use of agricultural land. He relies on the zone objectives to discern the underlying object or purpose of the development standard which he states as being:

(a) to encourage the productive use of land; (b) to enable development ancillary to agricultural land uses; (c) to permit a range of uses which are compatible with the rural character of land; (d) to maintain the rural character of the locality; and (e) to permit development that does not create unreasonable or uneconomic demands, or both, for the provision or extensions of public amenities or services. 33 Mr Zakaras states that the development will not result in fragmentation of rural land as it does not involve subdivision. On the contrary, it will consolidate two undersized allotments, which are too small to provide for the productive use of land if used only for agriculture. Although, he stated that a dwelling on the site would not preclude its use for agricultural purposes, such as stabling of a horse, and adequate buffers are provided to prevent rural residential conflict.

34 Mr Zakaras described the character of the area as being:

Rural residential allotments interspersed amongst medium to larger sized allotments which are utilised for various agricultural purposes (including low input cattle grazing). A rural residential estate (Hillcrest Drive) is located approximately 1km (direct line) southwest of the site. The Tintenbar Hall, post office and general store are located approximately 800m (direct line) south of the Land.

35 Mr Zakaras stated that the proposed dwelling would be consistent with the character of the area and would utilise existing community facilities and services. The development would be "self sufficient" by providing on site sewage disposal and potable water.

36 For these reasons, Mr Zakaras concludes that to insist on the 40 ha minimum before consent can be granted to a dwelling is unnecessary in the circumstances as it would prevent a development that otherwise satisfies the objectives of the standard. Findings 37 The manner of dealing with a SEPP 1 objection is set out in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are asked. …… it seems to me that SEPP No 1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the policy, and in particular, does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) of the EP & A Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? (In relation to the fourth question, it seems to me that one must also look to see whether a development which complies with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case.) Fifth, is the objection well-founded?

38 Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 comprehensively examines the requirements to uphold an objection under SEPP 1. Upholding a SEPP 1 objection is a precondition, which must be satisfied before the proposed development can be approved on a consideration of the merits. His Honour states that the Court must be satisfied of the following three matters:

38 First, the Court must be satisfied that "the objection is well founded" (clause 7 of SEPP 1). The objection is to be in writing, be an objection "that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case", and specify "the grounds of that objection" (clause 6 of SEPP 1). The requirement in clause 7 of SEPP 1 that the consent authority be satisfied that the objection is well-founded, places an onus on the applicant making the objection to so satisfy the consent authority: see North Sydney Municipal Council v Parlby, unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J, p. 8.

39 Secondly, the Court must be of the opinion that "granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3" (clause 7 of SEPP 1). This matter is cumulative with the first matter (it is prefaced by the words in clause 7 of SEPP 1 "and is also"). The aims and objects of SEPP 1 set out in clause 3 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 any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act". The last mentioned objects in s 5(a)(i) and (ii) of the Act are to encourage:

"(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,

(ii) the promotion and coordination of the orderly and economic use and development of land."

40 Thirdly, the Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection: Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94 at 100 and City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 291. The matters in clause 8(a) and (b) are:

"(a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument". 39 At para 42 to 43, His Honour then proceeds to discuss ways of establishing that compliance with the standard is unreasonable or unnecessary, relevantly he states:

42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard: see SCMP Properties Pty Limited v North Sydney Municipal Council (1983) 130 LGERA 351 at 379; Hooker-Rex Estates v Hornsby Shire Council, unreported, LEC No 10506 of 1982, 27 July 1983, Bignold J, pp 16, 18 and 20; Gergely & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 406-407, 412-413; Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGRA 438 at 441; North Sydney Municipal Council v Parlby, unreported, LEC No 10613 of 1985, 13 November 1986, Stein J at p 5; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; Leighton Properties Pty Ltd v North Sydney Council (1998) 98 LGERA 382 at 386; Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 97; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282-283; Memel Holdings Pty Ltd v Pittwater Council (2000) 110 LGERA 217 at 220-221; Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at 88[25] - 89[28] and Design 23 Pty Ltd v Sutherland Shire Council (2003) 125 LGERA 380 at 387 [20]-[21].

43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served). 40 His Honour then discusses other ways to establish that compliance with a development standard is unreasonable or unnecessary. The applicant did not seek to utilize these other methods, and relied on the underlying purpose of the standard being achieved despite the non compliance.

41 The parties agree that cl 12(3)(a)(ii) is a development standard and its object and purpose is not explicitly stated in LEP 1987. The experts held differing opinions as to its underlying object and purpose. Mr Zakaras determined the underlying purpose of the standard from the zone objectives.

42 Mr Zakaras stated that the principal object of the zone is to regulate subdivision and encourage the productive use of agricultural land. While this may be the objective of the zone, I do not accept that controlling subdivision is an underlying purpose of cl 12(3)(a)(ii), particularly as cl 11 in LEP 1987 provides controls for subdivision. Rather cl 12 refers specifically to the circumstances where consent to erect a dwelling may be granted. These include the 40ha minimum allotment size in cl 12(3)(a)(ii) and other circumstances, which do not apply to the site, including an existing holding, subdivision approved under cl 11 of LEP 1987 or, in accordance with the draft LEP, under an earlier planning instrument.

43 The underlying objects and purpose of the standard in cl 12(3)(a)(ii) are generally those expressed by Mr Peters and Mr Clark, being that a dwelling may only be erected on a minimum lot size of 40 ha to reduce residential densities to: o maintain agriculturally productive land; o maintain rural character and discourage rural/lifestyle allotments; o minimise rural/residential conflict; and o minimise demand for community facilities and services. 44 Mr Peters estimates that there are some 3866 allotments below the minimum standard of which a number may comply with the requirements of cl 12 other than the minimum lot size.

45 Based on the aerial photo in exhibit B, there are other undersized allotments in the vicinity of the site, which currently do not have dwellings. No evidence was presented which assessed whether approval of this application would be a precedent for other application. Mr Peters stated that each application would be considered on its merits.

46 I accept Mr Clark's evidence that the site is not unique and that there are no particular circumstances, which would warrant that the application of the standard is unreasonable or unnecessary. While consolidation of lot 191 and 192 moves closer towards compliance with the standard, it is still a significant departure. There is also nothing to distinguish the consolidation of this site with another development that also consolidates undersized allotments. If it is appropriate for a dwelling to be constructed when undersized allotments are consolidated, the standard should say so. This is not a particular circumstance that would be unique to this site.

47 Lot 193 is not consolidated and would remain as an undersized allotment with an area of only 2.32 ha. Mr Peters acknowledged that the agricultural productivity of lot 193 would be unviable if limited to its own area and that the agricultural productivity of each allotment improves as the area of land increases. Further, he noted that the approval of the house on lot 193 was reliant on lot 192 for services and access.

48 The size of the three lots, even if consolidated, is of limited productive agricultural use, however, the potential productivity of lot 193 and the combined lots 191 and lot 192 would be diminished by the proposal when compared to the current arrangement and is therefore not consistent with the purpose of the standard.

49 I do not accept the conclusion of Mr Peters and Mr Zakaras that the character of the area is rural residential or that the site's proximity to Tintenbar Village and the presence of the Hillcrest Drive Rural residential subdivision justify the variation to the standard.

50 Both Tintenbar and Hillcrest are not within the visual catchment of the site and the character of these areas is different to the character of the area in the vicinity of the site, and in the case of Hillcrest, is clearly not a character that would be consistent with maintaining a rural character. While there are undersized allotments in the vicinity of the site, these are not all developed with houses. There are also a number of medium and larger allotments and the area maintains its rural character. There is nothing to distinguish development of a house on the site with development of a house on other undersized allotments.

51 The experts agreed that the low intensity agricultural use of the site and the adjoining and nearby lots is unlikely to result in rural residential conflict in relation to this particular development and that adequate buffers where provided. The proposal of itself does not create and unreasonable demand for community facilities and services. However, Mr Clark was concerned about the potential for rural conflict and increased demand resulting from cumulative development of similar sites.

52 Consistent with the principles in Goldin and Anor v Minister for Transport [2002] NSWLEC 75 precedent is a valid planning concern. Although the evidence was scant, there appears to be other undersized lots in the area that are vacant and, if so, there is a real probability that there would be further applications on sites with similar characteristics. While each application for dwellings must be considered on its merits, other applications and other sites are likely to have very similar constraints and considerations and approval of this application could set a precedent for other approvals. 53 Cripps CJ in Hooker Corporation Pty Ltd v Hornsby Shire Council (Cripps J, NSWLEC, 2 June 1986, unreported) observed that:

….The Court must assume a development standard in a planning instrument has a purpose.

….it is not be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan making procedures set out in Part III of the Environmental Planning and Assessment Act. 54 This was reinforced by Preston CJ in Wehbe where he examined an alternative way to determine whether compliance with a standard is unreasonable and unnecessary and stated at para 48 to 52 that:

48 A fifth way is to establish that "the zoning of particular land" was "unreasonable or inappropriate" so that "a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land" and that "compliance with the standard in that case would also be unreasonable or unnecessary: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 97.

49 However, care needs to be taken not to expand this fifth way of establishing that compliance is unreasonable or unnecessary beyond its limits. It is focused on "particular land" and the circumstances of the case. Compliance with the development standard is unreasonable or unnecessary not because the standard is inappropriate to the zoning, but rather because the zoning of the particular land is found to be unreasonable or inappropriate. If the particular land should not have been included in the particular zone, the standard would not have applied, and the proposed development would not have had to comply with that standard. To require compliance with the standard in these circumstances would be unreasonable or unnecessary.

50 However, so expressed, this way is limited. It does not permit of a general inquiry into the appropriateness of the development standard for the zoning. An objection would not be well-founded by an opinion that the development standard is inappropriate in respect of a particular zoning (the consent authority must assume the standard has a purpose): Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 441; North Sydney Municipal Council v Parlby , unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J at p 7; and Colvest No. 27 Pty Ltd v Hastings Municipal Council , unreported, LEC No 10617 of 1986, 22 March 1988, Cripps J, pp 10-11.

51 The dispensing power under SEPP 1 also is not a general planning power to be used as an alternative to the plan making power under Part 3 of the Act to change existing planning provisions. An objection cannot be used as a means to effect general planning changes throughout a local government area (in circumvention of the procedures under Part 3 of the Act): Hooker-Rex Estates v Hornsby Shire Council , unreported, LEC No 10506 of 1982, 27 July 1983, Bignold J, at p 22; Gergely & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 412; Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 442; North Sydney Municipal Council v Parlby , unreported LEC No 10613 of 1985, 13 November 1986, Stein J at p 7; Colvest No. 27 Pty Ltd v Hastings Municipal Council , unreported, LEC No 10617 of 1986, 22 March 1988, Cripps J, pp 11-12; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 201-202 (affirmed (1990) 69 LGRA 201 at 203, 210); Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 99; Bowen v Willoughby City Council [2001] NSWLEC 274 (4 December 2001) at [113].

52 The requirement that the consent authority form the opinion that granting consent to the development application is consistent with the aims of SEPP 1 as set out in clause 3 (one of which is the promotion and coordination of the orderly and economic use and development of land) makes it relevant "to consider whether consent to the particular development application encourages what may be summarised as considered and planned development" or conversely may hinder a strategic approach to planning and development: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 100 [26] - [27], 101 [30] - [31], [35]. 55 The parties did not state that the zoning of the site was inappropriate and that therefore the application of the standard was unnecessary. However, both Mr Peters and Mr Zakaras gave weight to their opinion that the character of the area was rural residential and the site, if used for rural purposes, would not be productive. These circumstances would apply to other sites within this zone and if correct should be examined through the strategic planning process not through an individual development application.

56 I find that the proposal does not meet the objectives of the standard. Compliance with the development standard is therefore not unreasonable or unnecessary and the SEPP 1 objection is not well founded. On this basis the application must fail.

Orders 57 The Orders of the Court are: 1. The appeal is dismissed. 2. Development Application (2008/620) to construct a dwelling and associated infrastructure at lot 191 DP 755741, Fernleigh Road, Tintenbar, is refused. 3. The exhibits, except exhibits 6, C, D and R1 are returned.

      Annelise Tuor
      Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Bryson and Blake v Ballina Shire Council (First Respondent) and Director General of the Department of Planning (Second Respondent) [2009] NSWLEC 1306

Architects Haywood and Bakkar Pty Ltd v North Sydney Council [2000] NSWLEC 138 Terrace Towers Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289 CASES CITED: Simpson v Ballina Shire Council [2009] NSWLEC 1123 Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46 Wehbe v Pittwater Council [2007] NSWLEC 827 Goldin and Anor v Minister for Transport [2002] NSWLEC 75

10 The parties referred to the judgment of Brown C in Simpson v Ballina Shire Council [2009] NSWLEC 1123, which also dealt with a SEPP 1 objection to cl 12(3)(a)(ii) of LEP 1987. The site and locality 11 The site is generally rectangular in shape and about 4.55ha. It is vacant and "landlocked" as access to it is through lot 192, which has a frontage to Fernleigh Road. The combined area of lots 191 and 192 is about 7.38ha. Lot 193 DP 755741 adjoins lot 192 to its south and has an area of about 2.32 ha. It is developed with a house with driveway access off Fernleigh Road via lot 192. Lots 191, 192 and 193 are in the same ownership with a combined area of about 9.7 ha.

(1999) 110 LGERA 262

(1983) 130 LGERA 351

(2000) 110 LGERA 217

(2003) 125 LGERA 380

(1986) 130 LGERA 438

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Judgment (38 paragraphs)

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Cases Cited (15)