Cromane Pty Ltd v Shoalhaven City Council

Cromane Pty Ltd v Shoalhaven City Council - [2010] NSWLEC 1272 - NSWLEC 2010 case summary — Zoe

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JUDGMENT 1 COMMISSIONER: This is an appeal made under s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the imposition of conditions 3(b)-(o), by Shoalhaven City Council (the council) in development consent to SF10130 for a boundary adjustment/subdivision of Lot 449 DP848766 (No. 800A) and Lot 3 DP1096071 (No. 840) Wattamolla Road, Wattamolla (the site). 2 The conditions in contention are conditions imposed by the Sydney Catchment Authority (SCA) that has issued concurrence for the proposal subject to compliance with these conditions. 3 Condition 3b requires the removal of an existing dairy shed from proposed Lot 5. Conditions 3c - 3k relate to wastewater management on proposed Lot 5. Conditions 3l - 3m relate to remnant native vegetation and regrowth on proposed Lot 4. Conditions 3nand 3o go to the previous conditions. 4 The applicant seeks to delete these conditions as they contend that they generally fail the 'Newbury test' in that they do not fairly and reasonably relate to the development approved by the subdivision consent and they are so unreasonable that no consent authority would have imposed them. 5 The council contends that these conditions are for a planning purpose and are reasonable in meeting the requirements of the considerations to be made under s 79(C)(1) of the EPA Act, particularly given the objects of the Drinking Water Catchments Regional Environmental Plan No 1 (DWCREP). 6 The hearing commenced as a conciliation conference in accordance with s 34 of the Land and Environment Court Act 1979 (the Court Act). The conciliation conference was terminated and the parties agreed to me hearing and disposing of the matter in accordance with s 34(4)(b) of the Court Act. There was no site inspection. The hearing was attended by representatives of Shoalhaven City Council, Sydney Catchment Authority and the applicant. The site and locality 7 The site consists of 2 lots - Lot 3 DP1096071 and Lot 449 DP848766. Lot 3 is bounded by Wattamolla Road to the south-east and Brogers Creek to the north. Lot 449 is on the northern side of Brogers Creek with no direct access from Wattamolla Road. Both lots have exiting dwellings. Access to Lot 449 is via a Right of Carriageway through the northern portion of Lot 3. It is this portion of land on which the boundary adjustment is proposed. 8 The whole of Lot 3 is zoned 1(a) (Rural "A" (Agricultural Production) Zone) in the Shoalhaven Local Environmental Plan 1985 (SLEP). Parts of Lot 449 are zoned 1(a), 7(d1) (Environment protection "D1" (Scenic) Zone) and 7(e) (Environment Protection "E" (Escarpment) Zone).

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The proposal and background 9 The development application made by the applicant is a rural boundary adjustment subdivision of Lot 3 DP1096071 and Lot 449 DP848766 at Wattamolla Road Wattamolla. The main purpose appears to be to facilitate a more practical solution for access to Lot 449 being an all-weather road and bridge that are subject to a separate development application. 10 Lot 3 was 16.46 ha and Lot 449 was 45.73 ha. The boundary adjustment moves 5.2 ha from Lot 3 to Lot 449. After the adjustment Lot 3 becomes Lot 5, now 11.3 ha and Lot 449 becomes Lot 4 and 50.9 ha in area. 11 Clause 11(2)(a) of the SLEP imposes a 40 ha development standard for the subdivision of land in the zones applying to the site. Clause 11C may have permitted a boundary adjustment but for the fact that the site is adjacent to a watercourse. As a result of the non-compliant lot size, the applicant lodged a State Environmental Planning Policy No 1 - Development Standards (SEPP 1) objection regarding the development standard in cl 11(2)(a). 12 The Director-General of the Department of Planning approved the SEPP 1 objection and granted concurrence to the application for the proposed subdivision. 13 The site has been assessed as bushfire prone. The NSW Rural Fire Service (RFS) has issued a bush fire safety authority under s 100B of the Rural Fires Act 1997 subject to two conditions that are not in contention. 14 The notice of the determination dated 9 March 2010 describes the approved development as " Rural Boundary Adjustment under State Environmental Planning Policy No. 1 subdivision pursuant to the Shoalhaven Local Environmental Plan, 1985." The planning controls and the actions and position of the council 15 In determining the application, the council considered the applicant's SEPP 1 objection and noted one of the conclusions in cl 22: There is every likelihood that the prime crop and pasture land to be added to Lot 449 to form Lot 4 will be used more productively as part of the larger landholding.

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25 I was informed at the hearing that the current recommended standards and practices are AS/NZS 1547:2000 On-site domestic-wastewater management and the Environment & Health Protection Guidelines: On-site Sewage Management for Single Households 1998 (The Silver Book). 26 SCA staff who inspected the site found the existing on-site wastewater management system on proposed Lot 5 to be undersized and the absorption trench not suitably located and therefore non-compliant with current standards. 27 The letter of concurrence from SCA to council (exhibit c) notes the outcome of the inspection with respect to the wastewater management system on proposed Lot 5 and details the conditions of consent. It does not contain any findings on the state of the native vegetation and regrowth on proposed Lot 4 that led to the imposition of conditions 12 and 13 in that letter. At the hearing it was contended by council, and supported by representatives from SCA, that retention of native vegetation provides one of the best ways of achieving a neutral or beneficial effect on water quality. 28 There was some mention by a representative of the SCA that some land clearing appeared to have occurred on current Lot 449 however, the applicant stated that vegetation had been conserved and supplemented with additional plantings. The applicant also stated that the land was too steep to use for agricultural purposes. As there was no site visit or specific evidence supplied to support either position, these statements cannot be verified. 29 Clause 26 of the DWCREP states: 26 Development consent cannot be granted unless neutral or beneficial effect on water quality A consent authority must not grant consent to the carrying out of development under Part 4 of the Act on land in the hydrological catchment unless: (a) it has considered whether the proposed development will have a neutral or beneficial effect on water quality, and (b) it is satisfied that the carrying out of the proposed development would have a neutral or beneficial effect on water quality.

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30 Clause 28 of the DWCREP concerns development that needs concurrence of the Chief Executive of the SCA. In deciding whether to grant concurrence, in part, the Chief Executive must take into account the considerations in cl 25. 31 As a result of this referral, the SCA stated that they would concur with council in granting consent to the application subject to a number of conditions being imposed. It is these conditions that are opposed by the applicant. 32 Mr Jayne for the council contends that the council took the view that the proposed development was more than the movement of a line on a map and that the SEPP 1 objection suggested an intensification of the use of the land for agricultural purposes. 33 In the light of the potential impacts that may impact on water quality as a result of such intensification Mr Jayne asserts the council rightly considered the relevant clauses in the DWCREP, cl 24 of the SLEP and the provisions in DCPs100 and 78 as required under s 79C(1) of the EPA Act. 34 The council considers that the conditions imposed are fair and reasonable and validly imposed under s 80A of the EPA Act in that they consider the broader aspects of the health of the catchment and are therefore in the public interest and give certainty to the council and to the SCA. Mr Jayne contends that the conditions with respect to clearing of vegetation give certainty to the owner of the land with respect to what land is protected from clearing. Planning controls and the applicant's position 35 The proposal described in the supporting documentation prepared by Johnson Proctor Surveyors Pty Limited attached to the development application made to the council is for a proposed rural boundary adjustment subdivision. 36 The reasons given in support of the proposal are summarised as: + Allowing legal and constructed road and bridge access to an exiting dwelling on Lot 449 that will provide direct access off Wattamolla Road and reduce the bushfire hazard risk to that existing dwelling; + To more practically locate stock-proof fencing along the boundary to facilitate stock control and management including restricting stock from entering the access way and providing better stock watering access to Brogers Creek. + The retention of the contiguity of areas of 'prime crop and pasture land' located on either side of Brogers Creek within the proposed Lot 4 and thus the enhancement of the continued agricultural use of the land in a more functional way that satisfies the objectives of land zoned 1(a) in the SLEP.

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Conclusions 72 While the council assessed the development application for a proposed boundary adjustment subdivision in accordance with s 79C of the EPA Act, its conclusions, reflected in the setting of conditions of consent, were based on an assumption that the proposed development was more than an adjustment of a boundary but a potential intensification of use of the land that may have a detrimental impact on water quality in the Sydney catchment. 73 In seeking concurrence with SCA in compliance with the SLEP and the DWCREP, conditions were imposed regarding an upgrade of an on-site wastewater management system on an existing dwelling and prohibitions on clearing of native vegetation and regrowth. 74 I agree with Mr Moggach that the relevant clauses 25, 26 and 28 of the DWCREP relate to the 'development' and if the council and the SCA were concerned about a potential intensification of the use of the 5.2 ha of land to be transferred to Lot 449 then any conditions imposed by them should relate to that portion of the land. 75 On the evidence before me I find that the conditions in contention do not comply with s 80(A)(1) of the EPA Act and offend the second Newbury test in that they are not of relevance to the development the subject of the consent and do not fairly and reasonably relate to the development for which permission is given. 76 On the basis of the forgoing, the Orders of the Court are: 1. The appeal is upheld. 2. Development Application SF10130 for Rural Boundary Adjustment under State Environmental Planning Policy No.1 subdivision pursuant to the Shoalhaven Local Environmental Plan 1985 for Lot 449 DP848766 (no. 800A) and Lot 3 DP 1096071 (no. 840) Wattamolla Road, Wattamolla is approved subject to the conditions of consent which are to be modified by deletion of conditions 3b-3o inclusive. 3. The council is to prepare the amended conditions and forward them electronically to the Court by close of business 18 October 2010 for incorporation into the Orders. 4. The exhibits are returned except exhibits B, C and D.

At a glance

Court

Decision date

Before

Source

Judgment (39 paragraphs)

Parties

Cases Cited (1)