Butler v Wollondilly Shire Council

Environmental Planning and Assessment Act 1979 Wollondilly Local Environmental Plan 1991 Hawkesbury Nepean Sydney Regional Environmental Plan 1997, No. 20 LEGISLATION CITED: Wollondilly Shire Development Control Plan Local Government Act 1919 Land and Environment Court Act State Environmental Planning Policy No. 1

DATES OF HEARING: 24/03/2005, 06/04/2005 & 12/05/2005 EX TEMPORE JUDGMENT DATE : 05/12/2005

APPLICANT Mr C Gough, solicitor SOLICITORS Storey & Gough LEGAL REPRESENTATIVES: RESPONDENT Ms P Hudson, solicitor SOLICITORS Marsdens

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11153 of 2004 Darryl Butler v Wollondilly Shire Council

1 This is a verbal judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against the deemed refusal of Wollondilly Shire Council for a subdivision. 2 I will say at the outset that the council in December 2004 resolved to enter into consent orders in this matter and the matter commenced on site as an on-site hearing and the Court saw the need for additional information to be provided for the Court in order for it to make a comprehensive assessment of the application. In particular the information that the Court requested was in respect of adjoining parcels of land and the size of the existing subdivision pattern within the area. 3 There was also an issue raised in the proceedings with respect to whether in fact a State Environmental Planning Policy No. 1 objection is required to allow the subdivision, and there were different interpretations put to the Court in this regard. I will comment further below. 4 The subject site is Lot 601 in DP 877888 Rapleys Loop Road, Theresa Park, is zoned Environment Protection 7(c) under the Wollondilly LEP. This LEP was made in 1991 and the subject land is zoned Environmental Protection - Rural Living 7(c). The relevant zone objectives are:

(a) to provide for rural living opportunities, and (b) to encourage the preservation of the rural landscape character by ensuring that development is compatible with that character, and (c) to ensure that land degradation does not occur and that the water quality of receiving streams is protected, and (d) to maintain existing significant stands of indigenous vegetation. 5 The rear boundary of the subject lot is adjoined by a creek or river and this portion of the land is heavily vegetated. The land slopes from Rapleys Loop Road down to the river. 6 The relevant provisions with respect to the 7(c) zone are contained in cl 13B. Subclause (1) states: "The council may consent to a subdivision of all or part of an original holding consisting of land within zone 7(c), or of land partly within that zone only if:

(a) the total number of lots into which the original holding will be divided after the subdivision will not exceed the number obtained by dividing, by 4, the area (in hectares) of the original holding that is within Zone No. 7(c), the dividend being rounded down to the nearest whole number, and

(b) none of the allotments to be created by the subdivision will have an area of less than 2 hectares. 7 Subcl (2) of 13B states:

"The council may consent to the erection of a dwelling house on land within Zone No. 7(c) only if: (a) it is an allotment created in accordance with subcl (1) above, or,

(b) it is an allotment with an area greater than 2 hectares." 8 Subclause 3 states "in this clause original holding means a lot in a current plan within the meaning of s 327AA, subs (1) of the Local Government Act 1919 as at the date of the publication of the gazette of the Wollondilly LEP 1991", (amendment No. 11 was inserted in 1996). 9 It is noted that the LEP contains a tree preservation order. The subject site is also covered by the Hawkesbury Nepean Sydney Regional Environmental Plan 1997, No. 20, and this particular plan entails controls for water catchment areas to ensure that the water quality of the Sydney catchment area is maintained to preserve the scenic quality of riverine corridors and that rural residential development should not reduce agricultural viability or sustainability of land. The site is not within the catchment area or on land idetified for agriculture. Suffice to say I have had regard to the provisions of the Hawkesbury Nepean REP and I am satisfied that the proposed development is not inconsistent with its provisions. 10 The subject land is zoned environment protection rural residential. It is seen as land within the rural area , but in itself is not important for agricultural production but it is important in terms of scenic quality and this is identified in the objectives of the zone. As such the agricultural viability of the land is not an issue for the Court in this matter. 11 The subject site is one that was originally subdivided in terms of the history of the application. The original consent to create Lot 6 was in 1974, and there was a development application in 1989 for the subdivision of Lot 6 into two lots, one of 2 ha and one of 8 ha. It is the 8 ha lot that is the matter for consideration in the proceedings being Lot 601. 12 During the proceedings the Court expressed concern about the issue of precedent and I will summarise my findings or consideration of this by saying that with the benefit of the additional information that has been provided to the Court on existing lot sizes in the area and the amended application, I am satisfied that the issue of precedent does not arise for this application and I have decided to grant approval to the application as amended. 13 In response to the Court's concerns the applicant amended the development application such that there would be a 5 ha parcel of land and a 3 ha parcel of land created by the subject subdivision as opposed to a 6 ha and a 2 ha lot. The Court was concerned over the fact that there should not be further development applications for further re-subdivisions of this land and with the subdivision as originally proposed that it could create a precedent in terms of other allotments in the area, especially when the Court had regard to the size of those allotments and having regard to other subdivision applications that are currently with the council. 14 I am satisfied with the amended plan that this would not create an undesirable precedential effect. Examining the existing allotment sizes within the area, many are about 3 hectares. In my assessment it is important that I have regard to the provisions of the DCP as well as the LEP, and I must give these proper, genuine and realistic consideraton and a central focus in my assessment. 15 The Wollondilly Shire Development Control Plan which was adopted by the council and is the result of the Wollondilly Shire Residential Study, contains a number of provisions which are of relevance to my consideration of this application. In particular the provision relating to subdivision in B3, the DCP states:

"The environmental protection rural living 7(c) zone has a minimum subdivision size of 2 ha and a density of one dwelling per hectare." 16 One would assume one reads an average density per hectare having regard to the controls in the LEP which relate to an original holding. The DCP further states:

"This is to ensure that the rural living areas maintain their scenic and landscape qualities but still allowing for smaller subdivision where necessary. Subdivision requirements are an important aspect of the development potential of an area. Wollondilly LEP provides a minimum subdivision size for subdivision within the rural living zone. In some areas however the minimum subdivision size may not be achieved due to constraints on the land such as landform, water quality, adjoining land uses and bush fire hazard. Subdivision should be considered in two stages as outlined in the DCP." 17 The DCP also contains objectives and for subdivision these include: "to ensure that the creation of new rural living allotments take into consideration the natural landscape features of the surrounding area; to ensure that subdivision layouts have regard to the building envelopes; to ensure that the subdivision potential of the land takes into consideration existing water courses on or adjoining the property; to ensure that each rural living allotment created has an acceptable access to a public road; to ensure subdivision layouts are to meet the objectives of bush fire mitigation; to ensure that the building envelopes and subdivision layout are designed to suit the landscape character and quality of the specific area rather than altering a landscape to suit a subdivision layout; and to acknowledge and be sensitive of the natural landscape by protecting scenic qualities of ridge lines, steep slopes, water courses and vegetated areas." 18 The proposed subdivision I am satisfied is consistent with the objectives and the requirements set out in the development control plan. 19 This application was referred to the Department of Infrastructure Planning and Natural Resources because concurrence is required for a SEPP 1 objection to the standard and I will note that the Department in its letter to the council of 23 March 2005 states: (1) the applicant has not demonstrated the relevant standard contained in 13(1A) is unnecessary and unreasonable and (2) the proposed subdivision is likely to create a precedent." 20 The Department concluded that the zone objectives would be compromised and substantially affect the rural living landscape and environmental qualities and character of the area, hence it is not in the public interest. 21 It was submitted on behalf of the applicant that a SEPP 1 objection is not required because cl 13B of the Wollondilly LEP does not apply to the subject land on the basis that original holding means the land not the original lot. I do not agree with this submission. I can understand how one might interpret it this way, but if I have regard to a commonsense interpretation of the LEP, and the fact that it is secondary legislation, I am of the view that cl 13B does apply to the subject land and therefore a SEPP 1 objection is required. 22 Clause 13B refers to a consent for subdivision "of all or part of the original holding" and in my opinion the proposed subdivision is in respect of part of an original holding within the 7(c) zone and therefore I consider the provisions of cl 13B are relevant. As such a SEPP 1 objection is required in that it requires a variation to the standards as contained within that clause. 23 Having regard to the objectives of the zone, as cited earlier, and having regard to the provisions in the development control plan which provide us with greater insight as to the purpose of the zone and the reasons for the subdivision control, it is clear that the 7(c) zone provides a balance between the agricultural zone, or rather a transition from the agricultural zone, where the quality of the land in agricultural terms may not be important for agricultural production but where the scenic qualities and the landscape qualities of a rural area should be maintained by these adjoining 7(c) lands. I am satisfied that the SEPP 1 objection submitted with the development application by Mr Brown, consultant town planner, is one that should be allowed and the objection is well founded. In this regard the objectives of the standard are satisfied by the proposed subdivision. 24 In terms of the objectives of the zone, the significant stands of indigenous vegetation or the riparian area is maintained in terms of the proposed subdivision application and a vegetation management plan is required as a condition of consent. This is also important when I have regard to the Hawkesbury REP as well in terms of the scenic quality of the riverine corridor. The proposal provides for rural living opportunities consistent with the zone objective (a) and it will preserve the rural character of the area. The subdivision has an access handle of considerable width from Rapleys Loop Road and the dwelling is one that will not impose or infringe on the streetscape or be objectionable in terms of the rural landscape. The land slopes considerably from the street and I am satisfied that the land provides for a footprint /envelope area that would not contravene the scenic quality or the rural landscape character of the area (there is an existing structure building on the subject land). 25 In terms of the DCP and the provisions of the subdivision objectives, the proposal does create the opportunity for rural residential living and the proposal is also consistent with the other subdivision objectives in the DCP. It is noted that an averaging of 4 ha is allowed having regard to topography. In the circumstances of this case that does not provide an impediment to development of this land but nonetheless I am still satisfied the proposal is consistent. The amendment to provide for a 5 ha and a 3 ha parcel from the existing 8 ha parcel, having regard to the existing subdivision pattern of the area, I am satisfied the proposal as amended will not create a precedent that could be readily invoked or that would be out of character with the area. 26 Also, clearly I must assess the individual circumstances of the case. There may be other applications in the pipeline but I am not aware of the full facts and they will have to be assessed on their merits. For example, they may have a juxtaposition such that they are next to, or adjoin, a rural zone which has agricultural capabilities and clearly additional dwellings adjoining agricultural land may conflict with those agricultural activities, however, the subject site is not one that is adjacent to a rural zone but rather surrounded by many other properties that are zoned 7(c). 27 I also note that council resolved in November 2004 to amend its LEP in terms of providing clarity to the interpretation of cl 13B and an amendment would be prudent to ensure that there is no uncertainty as to whether a SEPP 1 objection is required and to also more clearly articulate the objectives of the subdivision standard and what is sought to be achieved within the area. 28 The council proposed an amendment and at this stage I am not aware of how far that has progressed but clearly any amendments need to be considered carefully to ensure that they do provide certainty in the planning process for land owners and the community. 29 The concurrence of the Department of Infrastructure Planning and Natural Resources is one that would be necessary for council to obtain in granting consent to other applications. This matter being an appeal to the Court, s 39(6) of the Land and Environment Court Act provides the Court with the power to stand in the shoes of the concurring authority and I can determine the development application before me in the absence of concurrence, but clearly I would not do this lightly and I must be satisfied that the proposal is one that satisfies the requirements of SEPP 1 as well as the council's planning regime. 30 SEPP 1 has specific requirements to be satisfied and I must also have regard to the State or regional planning controls and objectives. I am satisfied that the proposed development would also not undermine or conflict with State or regional planning in the area. It is important to note that the subject site is not within the Sydney water catchment area which clearly is a matter of State and regional importance and that in itself often leads to refusal of applications because intensification of even an additional dwelling and the precedential effect may be determinative. 31 As noted above there was discussion during the proceedings about the precedential affect. Precedent is an important matter to consider in my assessment and I am of the view that an application may be satisfactory in itself but in totality with a number of similar applications it may lead to adverse environmental impacts and the cumulative impact must be considered. Even if a development is acceptable in itself the precedential cumulative potential may be a determinative reason for refusal. In this case this does not arise. 32 The council and the applicant during thehearing of these consent orders has considered the conditions and amended conditions were agreed to between the parties. 33 In terms of the landscape character, I am satisfied that the streetscape and the rural character of the area is maintained by the subject development and there is no reason why the Court should not agree to the consent orders as agreed to between the parties. 34 On the basis of my assessment, having regard to the relevant planning provisions, and having regard to the objection submitted under State Environmental Planning Policy No. 1, I am satisfied that the proposed development warrants approval and that the SEPP 1 objection should be allowed. 35 Therefore the formal orders of the Court in this matter are: (1) The appeal in respect of the land known as Lot 601, DP 877888, Rapleys Loop Road, Theresa Park, is upheld. (2) The State Environmental Planning Policy No. 1 objection in respect of the standard contained in cl 13B of the Wollondilly LEP is allowed. (3) The development application submitted to Wollondilly Shire Council and as amended and shown in Exhibit F for a two lot subdivision of 3 and 5 ha is determined by the granting of consent subject to the conditions contained in Annexure A. (4) The exhibits are returned with the exception of 16 and F. ____

J S Murrell Commissioner of the Court rjs

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