Lechner v Campbelltown City Council

Winton Property Group Ltd v North Sydney Council [2001] NSWLEC 24 CASES CITED: Wehbe v Pittwater Council [2007] NSWLEC 827 Goldin v Minister for Transport 121 LGRA 101

APPLICANT Mr C. Gough, solicitor of Storey and Gough Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr A. Seton, solicitor of Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10901 of 2008 Alfred Lechner v Campbelltown City Council

JUDGMENT Introduction 1 Situated at 246 Campbelltown Road Denham Court is an allotment of land having an area of 1.568 ha that is developed with a single detached dwelling house. The applicant in these proceedings now proposes to subdivide this allotment into two lots -Lots 1 and 2- having respective areas of 7250 square metres and 8330 square metres. Lot 1 is to retain the existing dwelling house. The resulting hatchet shaped lot 2 that has a 10.83 wide accessway off Campbelltown Road has, on the plan of subdivision an area indicated as being suitable for a dwelling house.

2 The original development application for the subdivision of this land was essentially the same as is now proposed with the respective lot sizes being 1 ha and 5680 square metres. This application was the subject of a council officers report that recommended its refusal. On 13 may 2008 the application was refused for reasons involving non-compliance with the relevantly applicable minimum lot size development standard, the incompatibility with the proposed subdivision with the character of the area, and the undesirable precedent that such an approval would set.

The appeal 3 The applicant has now appealed against this refusal under s 97 of the Environmental Planning and Assessment Act 1979. The appeal was conducted as and on-site hearing and proceeded on the assumption that if it is upheld and subdivision approval granted a substantial dwelling house of a kind not dissimilar to others in the locality would be erected on lot 2. The locality 4 According to the council's Statement of Facts and Contentions: Surrounding development consists of a range of larger allotments, containing residential dwellings and a preschool. Other surrounding developments of a caravan park, nurseries and a place of worship are contained within Liverpool City Council's boundary. The subject site is located approximately 650 m away from the South Western Freeway (Hume Highway) and is also located within approximately 150 m of the westernmost portion of the Edmondson Park release area where it is contained within the Campbelltown Local Government Area. 5 According to the allotment plan (Exhibit 5) that depicts lot sizes within the applicable environmental protection/rural-residential zone, lot sizes most commonly range between around 1,00 square metres and around 1300 square metres within a range of 5,659 square metres and 24,200 square metres Planning controls 6 The site is zoned 7(d5) - Environmental Protection 1 hectare Minimum Zone under Campbelltown (Urban Area) Local Environmental Plan 2002. Clause 25 (2) of the LEP sets out the objectives of the zone and the relevantly applicable objective is: (a) To conserve the rural-residential character of the land by maintaining a minimum area of 1 ha for lots used for rural-residential living. 7 This clause also requires that: ...consent must not be granted for development on land within this zone unless the consent authority is of the opinion that carrying out the proposed development would be consistent with one or more of the objectives of this zone. 8 Clause 33 of the LEP deals with subdivision in rural and environmental protection zones and subclause (1) in effect relevantly provides that consent must not be granted for the subdivision of land in the 7(d5) zone unless the area of any lot so created has an area of not less than 1 hectare.

9 Both of the proposed lots do not comply with this 1 ha minimum development standard with lot 1 being deficient by 2,750 square metres (27.5%) and lot 2 being deficient by 1,670 square metres (16.7%). Because of the dimensions of the accessway (about 110 m x 10.83 m) the effective area of lot 2 is reduced to 7,160 square metres.

10 Relevant to this appeal it is to be noted that in the LEP there is a scheme of environmental protection zones that are distinguished by minimum subdivision sizes vis 100 ha, 2 ha, 1 ha and 0.4 ha. 11 Given the non-compliance with the minimum lot size development standard, the applicant has provided an objection under State Environmental Planning Policy No. 1 - Development Standards.

12 Also applicable is the Campbelltown Development Control Plan No.49 Rural Environmental Subdivision Dwelling Policy. Clause 2 contains the aims and objectives of the DCP that comprise the need to retain the rural residential character of Campbelltown's scenic protection, rural environmental protection, rural and non-urban areas by providing, inter alia, guidelines for subdivision.

13 Clause 20 of the DCP provides that the minimum width for 1 ha lots is 60 m and the minimum width of access handles for hatchet shaped lots is 6 m. These requirements are complied with. The evidence 14 Whilst there were no objections to the proposal there were three letters of support from adjoining neighbours.

15 On behalf of the respondent Council Mr A MacGee gave expert town planning evidence. The applicant did not provide any expert evidence instead choosing to rely on the SEPP 1 objection that was prepared by Mr A Gough, a qualified lawyer and town planner. The contentions 16 According to the Statement of Facts and Contentions the following are, in essence, the matters that the council contends require the refusal of the application: o The proposed subdivision does not comply with the minimum 1 ha lot size development standard in clause 33(1) of the LEP. The associated SEPP 1 objection is not well founded and does not demonstrate that compliance with the standard would be unreasonable or unnecessary in the circumstances. o The proposed subdivision would not be consistent with objective (a) of the 7(d5) zone and would result in a detrimental effect on the quality of the character of the locality, taking into account both the natural and the built environment. o The proposed subdivision will set an undesirable precedent for future subdivision of land within the 7(d5) zone by allowing allotment sizes of less than 1 ha. o It has not been demonstrated that the proposed lots can be adequately serviced in terms of effluent disposal. 17 In my opinion, taking into account the planning controls and the evidence, the fundamentals of this case involve the development standard, the SEPP 1 objection and the objective of the 7(d5) zone.

The SEPP 1 objection 18 There was no dispute that the SEPP 1 objection addresses all of the relevant questions by adopting the approach referred to by Lloyd J. in Winton Property Group Ltd v North Sydney Council [2001] NSWLEC 24 and that Department of Planning's Guidelines for the Use of State Environmental Planning Policy No. 1.

19 The objection firstly acknowledges that the 1 ha minimum lot size is a development standard. As for the underlying purpose of the development standard the objection notes that this is not identified in the LEP, but taking into account the above-mentioned DCP objective the overarching objective of clause 33 is to: ... ensure the retention of the rural/residential character of the environmental protection area. 20 It also identifies another interrelated purpose of clause 33 that being to ensure that new lots are of sufficient size to allow a compatible, sympathetic and appropriately serviced dwelling to be erected thereon.

21 Mr MacGee did not disagree with this interpretation and emphasised the importance of the rural-residential character that includes buildings. He also identified a number of particularly important aspects of character including: separation of buildings; open space and curtilage; and density of development.

22 In this context, in describing the existing rural-residential character, the objection notes that traditional rural dwellings and rural activities have been replaced by larger and grander residential developments within a diverse subdivision pattern. This character is most acutely reflected by large front and side setbacks particularly in the vicinity of the site. Some commercial and industrial development has filtered into the area. 23 According to the objection the non-compliance with the development standard will not be discernible from any public vantage point. This contention was largely agreed with by Mr MacGee who recognized that a new dwelling on lot 2 would probably not be able to be seen from the public domain taking into account the topography of the rear part of the site. Plainly however a new driveway in the accessway and the necessary crossover from Campbelltown Road onto the site would be apparent. However he was not concerned about this notwithstanding that it would be the only accessway of this kind between Zouch Road and Gibson Road and would be located immediately adjacent to the existing large concrete crossover associated with the existing house on the site.

24 The objection also contends that the rural-residential experience of neighbours will be unaffected particularly taking into account the fact that they do not object to the proposal, taking into account that their outlook is not upon open rural landscapes. Also relevant here is the proposed new boundary alignment (that separates the two lots) that follows an existing fence line that happens to reflect the pattern of the adjoining subdivision to the south. 25 Accepting the relevance of the zone objectives, including the objective dealing with rural-residential character, the objection contends that, taking into account the above matters, including compliance with the provisions of the DCP, and concludes that the underlying purpose of the development standard is achieved notwithstanding the numerical non-compliance.

26 In addressing the relevant objects of the EPA Act the objection comments that the proposed subdivision would represent an orderly and economic use of the land, it not being productive agricultural land. Also the natural environmental qualities of the property will not be jeopardised nor will there be any impacts on residential amenity or on Campbelltown Road.

27 The objection also adopts approach of Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 at 43 that describes development standards as not being ends in themselves but means of achieving ends those ends being environmental or planning objectives. Applying this approach it concludes that strict compliance with the development standard would be unreasonable and unnecessary because the objective underlying cause 33 of the LEP is satisfied. Similarly it contends that strict compliance would not serve an environmental or planning purpose, not being an overdevelopment of the site or causing any amenity impacts. Strict compliance would also reduce the economic output of the land and contradict a broader planning objective of sensible urban expansion. For all of these reasons the objection is said to be well founded. Mr MacGee's evidence 28 Mr MacGee supported the reasons for refusal. In his evidence he considered previous applications and the current objectives of the zone concluding that the 1 ha development standard was selected as the minimum allotment size that would provide for a low-density rural-residential development that respects the scenic qualities and character and the buffer nature of the Denham Court area. Also the development standard takes into consideration the environmental capability and capacity of the land in respect of matters such as vegetation conservation, topography, soil stability and permeability.

29 In dealing the question of lot sizes Mr MacGee explained that allotments in this area are relatively homogenous with the majority being within the 1.0 ha to 1.2 ha range. Consequently a reduction in the allotment size as proposed may lead to the erosion of spatial character in the immediate vicinity of the site.

30 In further support of the development standard he refers to an internal officer's report (preceding the land being zoned 7(d5)) relating to a submission to the Minister for planning: A site inspection revealed that this part of the site is considerably steep and rises from the freeway along its southern boundary to a prominent ridgeline running east-west... The land has an amphitheatre like character and is highly prominent when viewed from the freeway (when travelling both north and south). The land clearly forms part of the Scenic Hills backdrop of the western edge of the city... It has a topographic and vegetation character not dissimilar to that of Denham Court to the south. Council has consistently endeavoured to protect these lands from intensive development over many years. 31 This, together with Council's consistent approach to subdivision applications in this area shows a continued commitment to a low-density of development in the Denham Court area.

32 In dealing with the objectives of the 7(d5) zone Mr MacGee explained that the development does not comply with objective (a) because it does not conserve the rural-residential character of the land. Also, with both lots being significantly below the development standard this would create an inappropriate precedent, there being opportunities for similar subdivisions in the zone. Further subdivisions of this kind would have the potential to create a significant impact on the subdivision pattern and spatial character of the area. In this context he notes that there are presently only four hatchet shaped lots in Denham Court and each of these has an area in excess of 1.1 ha. 33 In his oral evidence Mr MacGee explained that an additional dwelling on the site would result in a built form that would increase the building density and thus harm the perception of open space around dwellings notwithstanding the subtlety of this aspect. In this context he emphasised the need to not only take into account the principal buildings but also outbuildings, swimming pools, paved areas and the like. The fact that there were no objections from neighbours does not affect his concern that the visual and spatial character of this locality would be adversely affected. Conclusions. 34 It has become clear that the erection of an additional dwelling house on the site would make little difference to the overall density of development in the 7(d5) zone and that it would not be apparent from the public domain. It is also apparent that a new dwelling house could be separated from the adjoining existing dwelling houses by distances similar to what presently exist. Such a dwelling house together with associated outbuildings, paved areas and the like would nevertheless be readily apparent from a number of neighbouring properties.

35 Notwithstanding that three of the neighbours supported the proposal, I agree with Mr MacGee that perceived building density or intensity is an important consideration. In this regard the inevitable additional dwelling house would, I agree, adversely affect the character of this area. This, together with the significant non-compliances with the development standard comprise a sufficient basis for the refusal of the application. More particularly I accept his explanation that the perception of density is an important element of the character of the area taking into account things like feel, ambience spatial relationships and open space and that an additional dwelling house would adversely affect this. These matters also lead to the conclusion that the objective of the zone would not be met and the application must therefore be refused. 36 As for the SEPP 1 objection, whilst I recognize that there are no limits to the extent to which a development standard can be modified I am concerned here as to the extent of the noncompliances. They are significant and certainly not minor. Taking this into account together with my decision that the underlying objectives of the development standard would not be met by approval I have decided that the SEPP of objection is not well founded in the circumstances of this case. The matter of precedent also contributes to this conclusion.

37 In relation to the matter of precedent I was referred to the decision of Lloyd J. in Goldin v Minister for Transport 121 LGRA 101 that by reference to a number of authorities acknowledges that the precedent effect of a particular proposal is a valid consideration. The adverse precedent test is whether, if an application were granted it might prove difficult for the council to refuse others unless the circumstances were distinguishable.

38 In this case there are no examples of allotments the same as the subject land that could be subdivided in the same fashion. There are several examples as described by the respondent that are similar but, being smaller, would require a larger variation than what is proposed here to obtain approval. Despite this I am satisfied that approval of this application would create an undesirable precedent, that precedent being one of allowing significant variations to the development standard that result in the conversion of a single complying allotment into two non-complying allotments. This in my opinion is a sufficient reason to refuse the application, accepting as I do the evidence of Mr MacGee that if such an approach were applied throughout the 7(d5) zone, its character would be affected in a manner that would be contrary to the objective of the zone. 39 Similarly as pointed out on behalf of the council, continued variations to the standard would undermine the scheme of the environmental protection zones in the LEP. Whilst I understand the rationale for arguing that subdivision would reflect the economic use of the land it would not in my opinion be consistent with the objectives of the EPA Act that seek the proper management of resources and the orderly use of land. Also, council's consistent approach to subdivision in this area is another factor that supports my decision that this application does not warrant approval.

40 With the original subdivision design only one of the two lots did not comply with the 1 ha development standard. In order that the existing on site wastewater disposal facility would not be interfered with, the subdivision arrangement was modified with the result that both of the proposed lots now do not comply with the applicable development standard. In my opinion this is an additional significant concern. Also, whilst it is not determinative of the application it is my opinion that the proposed accessway to lot 2 is a matter that, being uncommon, contributes to the effect that this development would have on the character of the area. Orders. 41 For the above reasons I have decided that: 1. The appeal is dismissed. 2. The development application for the subdivision of the land known as 246 Campbelltown Road, Denham Court (lot 10 DP 778532) into two lots is determined by refusing consent. 3. Exhibit A is retained.

      T A Bly
      Commissioner of the Court
      ljr

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