Buchanan v Penrith City Council

APPLICANT Mr T O'Connor, solicitor SOLICITORS Houston Dearn O'Connor LEGAL REPRESENTATIVES: RESPONDENT Mr M Fraser, barrister SOLICITORS DLA Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10355 of 2007 Christine Buchanan v Penrith City Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Penrith City Council (the council) of Development Application No. 05/1750 for the construction of a dwelling, storage shed and onsite sewerage management system on Lot 25 Fourth Avenue, Llandilo (the site). The site 2 The site is Lot 25 in DP 2147. It is rectangular in shape with a frontage of 50.292 metres and a depth of 200.727 metres and an area of 1.01 ha.

3 Currently constructed on the site is a demountable dwelling and a partially opened sided corrugated metal structure. The council submits that the demountable dwelling has no consent. The general area is low-scale rural residential development interspersed with remnant native vegetation. Relevant planning controls 4 The site is within Zone No. 1(a) under Penrith Local Environmental Plan 201 (LEP 201). Clause 9(3) provides that consent must not be granted unless the proposal is consistent with the objectives of the plan and the zone. Clause 11 provides that consent to subdivision of land within zone 1(a) may only occur where the area of each lot is not less than 40 ha. Clause 12(2)(c) however provides that a dwelling house may be erected on "vacant land" within a 1(a) zone if the land is not less than 2 ha and is located in Sch 1 of LEP 201. The site falls within Sch 1 being: All the land within the area bounded by Terrybrook Road, Ninth Avenue, Second Avenue, and Mayo Road, Llandilo .

5 By way of background, the Sch 1 land contains a large proportion of the subdivision created by DP 2147 in 1890. The lots are rectangular in shape and most are in the order of 1.01 ha. They are separate lots but identified as pairs, for example Lot 25 and 25A. They were generally sold as a pair. Similar requirements to cl 12(2)(c) were contained in previous planning controls namely Interim Development Order (IDO) 77 from 1977, in IDO 93 from 1980 and in LEP 201 since 1991. The issues 6 The Statement of Facts and Contention raises the following matters: 1. whether the requirement in cl 12 requiring the land to be vacant is a development standard; 2. whether the SEPP1 objection to the 2 ha development standard in cl 12(2)(c) is well founded; and 3. whether the proposal is consistent with the relevant plan and zone objectives. 7 It was agreed that the question of whether the requirement for the land to be "vacant" was a development standard could be addressed after the merits assessment of the State Environmental Planning Policy No 1 - Development Standards (SEPP 1) objection and the consistency or otherwise of the development application with the plan and zone objectives. The evidence 8 On the planning issues, evidence for the applicant was provided by Mr Glen Falson and for the council by Mr Peter Wood.

The SEPP 1 objection 9 The SEPP1 objection provided with the development application was seen by both parties as being inadequate and a further SEPP 1 objection was provided. While not prepared by Mr Falson, he contributed to its preparation and supported its contents.

10 The appropriate manner of dealing with a SEPP1 objection is found in the judgment of Lloyd J in Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46 at par 26 where a number of questions are posed. The first question asks whether the subject planning control is a development standard. In this regard I accept that the answer to this question is yes. The second question asks what is the underlying object or purpose of the standard. The third question asked whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state: 3. This policy provides 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 and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act .

11 This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the Act. These objects are: (a) to encourage (i) the proper management, development and conservation of natural and artificial resources, including agriculture or land, natural areas, forests, minerals, water, cities, towns and villages for the purposes of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land.

12 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. The fifth and final question asks whether the objection is well founded.

13 LEP 201 contains no specific objectives for the minimum lot size development standards in cl 12. The SEPP1 objection relies on the zone objectives for its conclusion that compliance is unreasonable and unnecessary in the circumstances of this case. The relevant zone objectives are: a) to protect and enhance the scenic quality and rural character of the locality b) to ensure that development is compatible with the environmental capabilities of the land and to encourage the conservation and enhancement of natural resources by means of appropriate land management techniques c) to protect productive agricultural and horticultural land which supplies produce to the Sydney markets e) to ensure that development does not create unreasonable demands for the provision of public amenities and services now or in the future g) to ensure that the form, siting and colours of buildings/building materials and landscaping compliment the nature scenic quality of these localities

14 The approach of relying on the zone objectives (as compared to objectives of the development standard) was generally supported by Mr Falson and Mr Wood. They also considered that an underlying objective of the standard related to establishing a level of density and consequently a specific character and streetscape. Mr Falson stated the proposal was satisfactory in this regard, while Mr Wood came to the opposite conclusion. The general areas of disagreement involved the impact on the rural character of the area and to the scenic quality, agricultural and natural landscape qualities and the precedent for more haphazard development creating unreasonable demands for the provision of public amenities and services.

15 In comparing the relevant zone objectives to the site it is clear that there is some tension as the zone objectives apply equally to a 40 ha site as they do to a 2 ha site. For example, zone objective (c) seeks to protect productive agricultural and horticultural land that supplies produce to the Sydney markets. This objective is largely irrelevant for a 2 ha site. There was little, if any, evidence of any agricultural activity within the Sch 1 land.

16 I understand Mr Wood's evidence on rural character was based on the erection of a single dwelling on two 1 ha lots. If a dwelling was erected on each 1 ha lot a different character would be established from that anticipated by cl 12(2)(c). This establishment of a consistent rural character is undermined to some extent by the ability to construct a detached dual occupancy on a separate 1 ha lot although with the need for consolidation of the two 1 ha lots. The need for consolidation does not however affect the visual qualities that establish a character and streetscape. A number of dual occupancy developments within the Sch 1 lands were observed on the site view so a consistent pattern of a single dwelling in 2 ha of land has not been achieved. Notwithstanding this, I am satisfied that the character created by a single dwelling on 2 ha of land is not likely to be impacted upon to any unacceptable level by dual occupancy developments because of the consolidation requirements. The requirement for consolidation, in my view, is likely to limit any widespread use of dual occupancy developments in the Sch 1 land.

17 In terms of character and streetscape the proposed dwelling is not likely to create an unacceptable impact on the character and streetscape of the Sch 1 lands. I am also satisfied that some adjustments to the setback to the proposed dwelling could be made to provide a more acceptable streetscape. Putting aside cl 12(2)(c), and taking into consideration the existing clustering of existing dwellings in the Sch 1 lands and the ability to construct dual occupancy developments, there is probably no reason why a dwelling could not be constructed on the site. This however is not what is asked by SEPP 1.

18 In Hooker Corporation Pty Ltd v Hornsby Shire Council (unreported 2 June 1986) Cripps J addressed the approach be taken when considering a SEPP 1 objection where he states: It is now established that it is not sufficient merely to point to what is described as absence of environmental harm to found an objection. Furthermore the objection is not advanced, in my opinion, by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a purpose.

19 His Honour further states: It is not to be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan-making procedure set out in Pt III of the Environmental Planning and Assessment Act

20 In this case, the absence of environmental harm is not a sufficient reason to approve the application based on the comments in Hooker.

21 Further, the evidence of Mr Wood indicated 103 lots (i.e., lots of 1.01 ha in size) of the 353 lots within the Sch 1 lands were suitable for the erection of a dwelling in the same manner as that proposed in this application. While the evidence indicated that the council had approved (since 1991) three dwellings on 1 ha lots, I do not accept that this is sufficient justification for the approval of a dwelling on this lot. Mr Wood's further stated that he would not have supported the approval of these three development applications. Importantly, the site does not possess, or as far as any evidence was produced, any special characteristics that would not apply to the other 103 lots identified by Mr Woods. 22 For these reasons, I accept that the issue of precedent is a valid consideration in this particular instance and importantly also raises the issue of whether adequate public facilities and services could be provided in the event that these lots were developed in the manner proposed in this application.

23 Also of importance are the comments in Hooker on SEPP1 being an inappropriate means of effecting general planning change. In this case the approval would effectively mirror a development within Zone 1(c). A dwelling may be erected in this zone on lot size of 1 ha. The objectives of this zone relate to rural residential development. While there may be some practical reasons, while Sch 1 land is more appropriately used for rural residential uses, I must accept that the 2 ha development standard has a purpose as stated in Hooker. To approve the dwelling would be to effectively ignore the 2 ha development standard in cl 12(2)(c). It is also important that it is not the role of the Court to challenge the appropriateness of a particular zoning. This is a manner that rests solely with the council.

24 It also follows that I must reject Mr Falson's evidence that strict compliance would tend to hinder the attainment of the objects of s 5(a)(i) and (ii) of the Act. While a dwelling may able to be erected on the site the "promotion and co-ordination of the orderly and economic use and development of land" must be considered in the context of the applicable planning controls, in this case cl 12(2)(c).

25 For the reasons I have stated previously I find that strict compliance with the 2 ha development standard is necessary and reasonable in this instance and that the SEPP 1 objection is not well founded. Consequently, the development application must be refused and the appeal dismissed. 26 For this reason it is not necessary to deal with the other issues. Orders 27 The orders of the Court are:

1. The appeal is dismissed. 2. Development Application No. 05/1750 for the construction of a dwelling, storage shed and onsite sewerage management system on Lot 25 Fourth Avenue, Llandilo is refused. 3. The exhibits are returned.

      G T Brown
      Commissioner of the Court

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