Hilltop Planners Pty Ltd v Maitland City Council

Land and Environment Court (NSW)|2006-08-31|Before: Lloyd J

CITATION : Hilltop Planners Pty Ltd v Maitland City Council [2006] NSWLEC 584

APPLICANT Hilltop Planners Pty Ltd PARTIES : RESPONDENT Maitland City Council

KEY ISSUES: Development Application :- subdivision of lot into two lots - SEPP 1 objection to average lot size requirement - precedent - adequate building envelope - DCP requirements for subdivision of existing rural/residential lots

Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46; CASES CITED: Precise Planning v Wollondilly Shire Council & Anor [2005] NSWLEC 339; Emmett v Ku-ring-gai Council [1954] LGRA 177

APPLICANT Mr S. Bennett, agent

RESPONDENT LEGAL REPRESENTATIVES: Mr G. Williams, solicitor SOLICITORS Thompson Norrie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10207 of 2006 Hilltop Planners Pty Ltd v Maitland City Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Maitland City Council (the council) of DA04-3770 for the subdivision of lot 13 in DP 225727 being 10 Killarney Street, Thornton (the site) into two lots. The site and surrounding area 2 The site forms part of a 16 lot subdivision registered on 22 December 1965 with lot sizes from around 8,100 sq m and known as the Avalon subdivision. Lot 13 has an eastern boundary along Killarney Drive of 120.4 m, a northern boundary along Avalon Drive of 61.2 m with a total site area of 8,979 sq m. A dwelling and sheds are located on the site together with a number of trees. The site adjoins a more recent subdivision of some 51 lots known as the Avalon Forest subdivision.

The proposal 3 The proposal provides for the subdivision of lot 13 into two lots, being lots 131 and 132. Lot 131 is to have an area of 4,043 sq m and lot 132 is to have an area of 4,936 sq m, with lot 132 containing the existing dwelling.

Planning controls 4 The site is zoned 1(c) Rural Small Holdings in Maitland Local Environmental Plan 1993 (LEP 1993). Relevantly, cl 11 provides that land may only be subdivided if the lots created have a minimum area of 4,000 sq m and an average lot size of not less than 5,500 sq m. The proposal satisfies the first requirement but not the second.

5 The council's Citywide Development Control Plan - Subdivisions (the DCP) also applies. Clause 4.4.2 provides requirements for lot size and dimensions, and reiterates the controls in LEP 1993. It also provides additional requirements for building envelopes and re-subdivision of existing rural residential allotments. The issues 6 The council filed a Statement of Issues containing five issues. The non-compliance with zone objectives (Issue 1(a)), and compliance with the Rural Fires Act 1997 (Issue 5) were not pressed by the council. The remaining issues can be grouped into the following areas. (1) whether the State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) objection to the average lot size development standard is well founded. (2) whether an adequate building envelope can be provided. (3) whether the proposal satisfies the DCP requirements for re-subdivision of existing rural residential allotments. (4) whether the proposal would have an adverse impact on the natural and built environment. (5) whether the proposal will create a precedent. The expert evidence 7 The parties agreed to the appointment of Mr Gary Warnes as the Court-appointed town planning expert.

Average lot size development standard 8 The appropriate manner of dealing with a SEPP 1 objection is found 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 posed. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. The third question asks 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 . 9 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 EPA Act. These objects state: 5.The objects of this Act are: (a) 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. 10 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.

11 A SEPP 1 objection to support the variation to the average lot size requirement was provided to and considered by Mr Warnes who concluded that using the tests in Winten that strict compliance with the development standard was not necessary or reasonable, and that the objection was well-founded. This was a conclusion that was however challenged by the council.

12 As the objective of the development standard is not specifically stated in LEP 1993, Mr Warnes identifies the underlying objective as "to encourage a range of lot sizes, but at the same time ensuring that no lot is less than the 4,000 sq m standard". I did not understand the council to disagree with Mr Warnes' underlying objective for the development standard, but only the conclusion he draws from it.

13 On the question of whether the development standard satisfies the aims of SEPP 1, Mr Warnes stated that the land is zoned for and is physically suitable for low density rural residential development anticipated by the zoning. There are no physical limitations to the development of the land. In his opinion, the objective of the development standard is satisfied as the subdivision provides a range of lot sizes above 4,000 sq m. He was cross-examined on the precedent effect that is called up by cl 3 of SEPP 1 however in his opinion, the proposal did not necessarily create the opportunity for smaller subdivisions. He notes that the site has different characteristics to other sites in the area.

14 In Precise Planning v Wollondilly Shire Council & Anor [2005] NSWLEC 339, Pain J accepts that setting an adverse precedent through approval of a single application that is otherwise not objectionable but is likely to lead to other approvals giving rise to adverse cumulative impacts is a relevant matter to consider in relation to SEPP 1. In this case, I am not convinced that the approval of the subdivision will create a precedent for other similar applications.

15 In Precise Planning there were six previous successful applications under SEPP 1, all having been granted concurrence by the Department of Planning Natural Resources Infrastructure and Natural Resources. As I understand, there have been no other applications to subdivide land under SEPP 1 in either the Avalon or Avalon Forest subdivisions apart from this subject application. While a number of opportunities for a re-subdivision were pointed out to the Court on site, they also raised matters that would require considerably more evidence before they could be given any weight in these proceedings and used to support the proposition that the proposal is a precedent. Using the words of Sugarman J in Emmett v Ku-ring-gai Council [1954] LGRA 177 (at 182), the opportunities identified by the council are not of "sufficient probability that there will be further applications".

16 From the available evidence, the proposed subdivision will be able to connect to a reticulated sewerage system whereas the limited evidence suggested that this would be problematic for other nearby lots. The subject site is also located on a corner and lends itself to a more consistent subdivision pattern than sites with a single frontage. Even putting these matters aside, no evidence was provided in the way of a hypothetical subdivision plan that showed that the re-subdivision of any nearby land was practical, taking into account the physical and environmental constraints of the area. It would also be necessary to show what adverse impacts any further subdivision of the nearby land would create, and how this would be inconsistent with the zone objectives.

17 In the absence of any concrete evidence to say that the re-subdivision of any nearby land can be practicably achieved, the suggestion that the proposal is a precedent cannot be supported.

18 I agree with Mr Warnes, that the proposed subdivision is consistent with the underlying objective of the development standard, in that it creates varied lot sizes above the 4,000 sq m minimum size requirement. I note that the council accepts that the proposed subdivision is not inconsistent with the zone objectives. While I do not need to rely on the submission of Mr Bennett (and which was supported by Mr Warnes) that the overall Avalon subdivision will easily satisfy both the minimum lot size and average lot size requirement in LEP 1993 if the proposal is approved, the submission in itself has some merit.

19 Overall, I find that strict compliance with the development standard would not hinder the attainment of the relevant objectives of the Environmental Planning and Assessment Act. It follows that strict compliance is unnecessary and unreasonable, and that the SEPP 1 objection is well founded. Building envelope 20 Clause 4.4.2 of the DCP requires a "building envelope with a minimum area of 2,000 square metres and a minimum distance of 20 metres."

21 As I understand, the applicant originally proposed a 1,000 sq m building envelope and later a specific house design without necessarily identifying a specific building envelope. The thrust of the applicant's documentation was that adequate area was available for a dwelling.

22 Mr Warnes helpfully addressed the DCP and provided plans that showed a 2,000 sq m building envelope while providing reasonable setbacks to Avalon Parade and Killarney Street. I note that there are no planning controls that provide specific setbacks to these streets. On the issue of whether an appropriate building envelope can be provided, I accept Mr Warnes' evidence that adequate area is available on lot 131 for a dwelling, and that the requirement in cl 4.4.2 is satisfied.

23 As a related matter, the council sought to impose condition 8(a) that required the building envelope to be identified on the title under s 88(b) of the Conveyancing Act. The applicant opposed this as lot 131 satisfies the minimum lot area, and there are no physical or environmental constraints that would restrict the location of a dwelling. For these reasons, I agree that the condition can be deleted. There was no evidence to suggest that the subdivision would have an adverse impact on the natural and built environment. The location of any dwelling is appropriately left to the consideration of a future development application where any potential impacts can be best addressed when a specific dwelling design is available. Re-subdivision of existing rural residential allotments 24 Clause 4.4.2 of the DCP requires that: " Re-subdivision of any existing rural residential allotment within an established rural residential zone shall only be considered where the resultant lots are generally consistent with the size and shape of the existing lots in the immediate vicinity of the parent lot. The resultant lot should comply with a minimum and average lot size criteria for rural residential zones."

25 The clause also requires: "In assessing an application for the re-subdivision of an existing rural residential lot, council shall have regard to the circumstances and planning rationale that form the basis for the creation of that parcel of the parent lot subject of the application."

26 In addressing this issue, the Court was provided with the relevant documents that created the Avalon subdivision and the relevant planning documents for subsequent changes to the planning controls that affected the site and the general area. Mr Warnes states that the planning rationale that created the Avalon subdivision continued until 1993 when LEP 1993 zoned the land 1(c) Rural Small Holdings. This provided for a minimum lot size of 4,000 sq m compared to the previous minimum lot size of between 8,000 sq m and 20,000 sq m.

27 I agree with Mr Warnes that there is a tension between the DCP requirements that could be seen to suggest that any re-subdivision should have a disproportionate regard to the previous planning controls rather than the current LEP 1993 requirements. However, the fact that the DCP only requires that any re-subdivision "have regard" to the previous planning regime does not in my view seek to place the DCP requirements in cl 4.2 in direct conflict with the LEP 1993 subdivision requirements. I agree with Mr Warnes that it does not imply that the former planning rationale must be maintained. The LEP 1993 subdivision requirements represent the most recent planning approach to the area and should be the focus of consideration of any applications for a re-subdivision. I note that cl.4.2 does state that the lot should comply with the lot area and average size requirements for rural residential zones. I take this to mean to be a reference to LEP 1993 as the DCP post dates LEP 1993.

28 In the absence of any specific evidence to say why or how the proposed development is in conflict or inconsistent with the previous planning regime, the consideration under LEP 1993 should prevail.

29 The issue of precent has been dealt with earlier in the judgment.

30 Based on the conclusions above, the orders of the Court are.

The appeal is upheld. 2. DA 04-3770 for the subdivision of Lot 13 in DP 225727, 10 Killarney Street, Thornton, into 2 lots is approved subject to the conditions in Annexure A 3. The exhibits are returned with the exception of exhibits 6 and A.

      G T Brown
      Commissioner of the Court
      ljr

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.

At a glance

Court

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Before

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Judgment (35 paragraphs)

Parties

Cases Cited (1)