Liberty Investments Pty Limited v Blacktown City Council

Land and Environment Court (NSW)|2008-04-29

CITATION : Liberty Investments Pty Limited v Blacktown City Council [2008] NSWLEC 1153

APPLICANT Liberty Investments Pty Limited PARTIES : RESPONDENT Blacktown City Council

Development Application :- dwelling house Parcel of land below area required under Blacktown LEP 1988. KEY ISSUES: Whether Blacktown LEP 1988 inconsistent with Growth Centres SEPP. Whether SEPP 1 objection required and is well founded. Whether approval of the application is a precedent.

Coffs Harbour Environment Centre Inc v Minister for Planning and Coffs Harbour City Council (1994) 84 LGERA 324 Wehbe v Pittwater Council [2007] NSWLEC 827 CASES CITED: Hill v Blacktown City Council [2007] NSWLEC 108 Goldin and Anor v Minister for Transport [2002] NSWLEC 75 Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177

DATES OF HEARING: 20/02/2008. Notification period closed 11/03/2008

APPLICANT Mr A Bisits, solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr T O'Connor, solicitor of Houston Dearn O'Connor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10942 of 2007 Liberty Investments Pty Limited v Blacktown City Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Blacktown City Council (the council) of a development application (DA 06-2412) under the Environmental Planning and Assessment Act 1979 (the Act) to construct a single storey dwelling at lots 92, 93 and 164, 165 Section 9, DP 1229 Cleveland Road and Chaucer Road, Riverstone (the site).

2 For the reasons set out in this judgment I have concluded that the appeal should be dismissed and development consent refused. The sites and surrounding area 3 The site is rectangular in shape with a 15.24m frontage to Chaucer Road and Cleveland Road, a depth of 78.03m and an area of 1188.8 sqm. The land falls towards the north. The site is vacant and contains Cumberland Plains Woodland (CPW) with some exotic weeds and plants.

4 Land to the north and east is vacant and also contains CPW. Adjoining the site to the south is an unauthorised rural dwelling and sheds. A number of rural dwellings have been erected in the area, some without consent. Cleveland Road is sealed with services whereas Chaucer Road is unformed. Land to the west across Cleveland Road includes rural residential development and small farms. Background 5 The development application was lodged in August 2006. Council refused the application on 25 October 2006. The application was not notified due to insufficient information, however, during the hearing Mr Apps, town planner for the council, considered that the application should be notified prior to determination. At the conclusion of the hearing the application was notified and one submission, which did not object to the proposal, was received. Planning framework 6 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (the Growth Centres SEPP) applies to the site.

7 The aims of the Sydney Region Growth Centres SEPP in cl 2 are:

The aims of this Policy are (in conjunction with amendments to the regulations under the Act relating to precinct planning) as follows: (a) to co-ordinate the release of land for residential, employment and other urban development in the North West and South West growth centres of the Sydney Region, (b) to enable the Minister from time to time to designate land in those growth centres as ready for release for development, (c) to provide for comprehensive planning for those growth centres, (d) to enable the establishment of vibrant, sustainable and liveable neighbourhoods that provide for community well-being and high quality local amenity, (e) to provide controls for the sustainability of land in those growth centres that has conservation value, (f) to provide for the orderly and economic provision of infrastructure in and to those growth centres, (g) to provide development controls in order to protect the health of the waterways in those growth centres, (h) to protect and enhance land with natural and cultural heritage value, (i) to provide land use and development controls that will contribute to the conservation of biodiversity. Note: This Policy provides the initial environmental planning instrument component of the Metropolitan Strategy released on 4 December 2005 for the release of land for urban and employment development in areas suitable for growth in the Sydney Region (with more detailed land use and other development control components to be progressively included on completion of the planning process in precincts released for urban development from time to time under clause 276 of the Environmental Planning and Assessment Regulation 2000 ).

8 The site is located within the Growth Centres Precinct referred to as Marsden Park North in the North West Structure Plan, which is identified for future urban development. Marsden Park North is not a first release precinct and it is not an area where a Precinct Plan or a draft Precinct Plan applies (cl 7 - Appendix 1) or an area where development controls have been specified under cl 7A of the Growth Centres SEPP.

9 Clause 16 of the Growth Centres SEPP provides matters for consideration for development applications until the finalisation of precinct planning for the land. These relevantly include:

a) whether the proposed development will preclude the future urban and employment development land uses identified in the relevant growth centre structure plan, (b) whether the extent of the investment in, and the operational and economic life of, the proposed development will result in the effective alienation of the land from those future land uses, (c) whether the proposed development will result in further fragmentation of land holdings, 10 The site is zoned 1(a) (General Rural Zone) under Blacktown Local Environmental Plan 1988 (LEP 1988). The area is known as "the Scheduled Lands". Dwelling houses are permissible with consent within the zone.

(a) to ensure that actual or potential agriculturally productive land is not withdrawn unnecessarily from production; (b) to ensure that development in rural areas is carried out in a manner that minimises risks from natural hazards and does not unreasonably increase demand for public services; (c) to provide for urban support functions; and (d) to ensure that development within the rural zones does not hinder the proper and orderly development of any future urban lands. 12 Cl 9(3) of LEP 1988 requires consistency with one or more objectives of the plan and the zone otherwise consent cannot be granted.

13 The site is subject to the provisions of cl 12(3), which provides that a dwelling house may not be erected unless the parcel of land has an area of no less than 10ha. Land to the west of the site is zoned Rural 1(a) (General Rural Zone) but is subject to cl 12(2) of LEP 1988 which provides that a dwelling cannot be erected on a parcel of land that has an area not less than 4000 sqm.

14 The site does not comply with cl 12(3) and Mr O'Connor, for the council, submits that an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) is required. Mr Bisits, for the applicant, submits that a SEPP 1 objection is not required as cl 12(3) of LEP 1988 does not apply as it is inconsistent with cl 16 of the Growth Centres SEPP. Clause 6 of the SEPP provides that where there is an inconsistency, the Growth Centres SEPP prevails.

15 As I understand Mr Bisits's submission, the inconsistency between the Growth Centres SEPP and cl 12(3) in LEP 1988 is that the site is identified for future urban development. There is no minimum allotment size specified under the Growth Centres SEPP, which will result in housing development on parcels of land smaller than 10ha and therefore cl 12(3) of LEP 1988 is inconsistent with the Growth Centres SEPP. Mr Bisits submits that cl 16 of the SEPP applies and provides the relevant matters for consideration of the application. In the event that this submission fails, the applicant has submitted an objection under SEPP 1 prepared by Mr S Craythorn, town planner.

16 Mr O'Connor referred to the decision of the Court of Appeal in Coffs Harbour Environment Centre Inc v Minister for Planning and Coffs Harbour City Council (1994) 84 LGERA 324 where Kirby P states at para 4:

The resolution of this dispute requires only that the word "inconsistency" be given its ordinary and natural meaning…… Upon that basis, there will be an inconsistency if, in the provisions of one environmental planning instrument, there is "want of consistency or congruity"; lack of accordance or harmony" or "incompatibility, contrariety, or opposition" with another environmental planning instrument. 17 Mr O'Connor submits that the matters in cl 16 of the Growth Centres SEPP deal with different considerations to those in cl 12(3) of LEP 1988 and that given the nature of the provisions there is no inconsistency.

18 I accept Mr O'Connor's submission. The site is zoned under LEP 1988 and the provisions of that instrument continue to apply. No Precinct Plan has been prepared under the Growth Centres SEPP and until such time that this occurs the detail of future planning is not known. Clause 16 of the Growth Centres SEPP provides relevant considerations for applications where precinct planning has not occurred. These matters are different to the control in cl 12(3) of LEP 1988. The application of cl 12(3) does not result in a "want of consistency or congruity; lack of accordance or harmony or incompatibility, contrariety, or opposition with another environmental planning instrument" and the provisions are therefore not inconsistent. I have consequently considered the application on the basis of the SEPP 1 objection to cl 12(3) of LEP1988 and cl 16 of the Growth Centres SEPP. 19 Sydney Regional Environmental Plan No 19 - Rouse Hill Development Area (REP 19) includes the site as "Living Area" within the Structure Plan Map. REP 19 provides no controls of relevance to the application but includes matters to be included in any future local environmental plan. REP 19 was made after LEP 1988 and therefore its requirements for a "Living Area" were not matters to be considered in the making of LEP 1988. The plan is relevant only to the extent that it indicates that the future planning for the site is urban land, which is consistent with the future land use identified in the Growth Centres SEPP. The issues and evidence 20 The Statement of Facts and Contentions raised 6 contentions. Contention 1 (Plan deficiencies), Contention 5 (Aims of the Growth Centres SEPP) and Contention 6 (Flooding) were not pressed due to the submission of further information, the agreement of the experts and acceptance of conditions. Issue 4 (Bushfire) was not pressed due to the conditions provided by Rural Fire Service (RFS) however, council raised issue with the impact on vegetation as a result of the RFS requirements. The key issues between the parties can be summarised as whether: i) The proposal, on a smaller allotment than the 10ha required under cl 12(3), is acceptable and whether the SEPP 1 objection is well founded. ii) The proposal would create an adverse precedent for future applications of a similar nature

21 The Court heard expert planning evidence from Mr G Apps for the council and Mr S Craythorn, for the applicant.

Minimum land parcel 22 Clause 12 of LEP 1988 does not include objectives for the control. The experts agreed that cl 12(3): o Appears to have little or nothing to do with Agriculture or the 1(a) General Rural zone objectives. o The experts are not aware of any supporting research or documentation arguing or explaining that the 10ha minimum lot size (MLS) is for an agricultural purpose. o That the 12(3) zone has cadastral and infrastructure boundaries not suited to agricultural purposes, and o That the pattern of private land ownership within the 12(3) zone has been historically fragmented, all is well below the 10 hectare MLS. 23 The experts agreed that the Growth Centres SEPP and REP 19 envisage some form of urban and not rural landuse. They agreed that the underlying purpose of the objective is to control or limit development. Mr Apps in response to questions stated the purpose is also to provide a density of development, which reflects the constraints and capability of the land including vegetation, flooding, bushfire and access to services. Further Mr Apps considered the purpose to include that future planning not be pre-empted by ad hoc development of small allotments.

24 Mr Apps contends that the SEPP 1 objection is not well founded, as it does not address the objectives of the standard but rather deals with the zone objectives. None the less, he accepted that the proposal on the smaller allotment did not result in unacceptable impacts. The site has access to water mains, electricity and is accessed off a sealed road and provides on site effluent treatment and an on site detention swail. Mr Apps raised no issue with the size or design of the house, the removal of vegetation, flooding or bushfire issues. 25 Mr Craythorn agreed that cl 12(3) was a development standard and any variation required a SEPP 1 objection. He stated that the standard is itself unreasonable. The zone is subdivided into 500sqm lots in fragmented ownership. It is not feasible to achieve 10ha lots as this would require consolidation of allotments across roads. He considered the control should be changed. In his opinion the 4000sqm standard under cl 12(2) was also difficult to achieve. Mr Apps noted that no sites have been amalgamated to achieve 10ha parcels of land with a dwelling approved within the Rural 1(a) zone controlled by cl 12(3). Development on 4000sqm lots has occurred.

26 Both Mr Craythorn and Mr Apps agreed that the proposal met the relevant considerations in cl 16 of the Growth Centres SEPP. They noted that cl 16(c) refers to further fragmentation of land holding but considered this to relate to further subdivision of land not to the minimum lot size of existing allotments. They agreed that the small size of the proposal would not preclude future urban development of the site (cl 16(1)(a)) or that the extent of investment and operational and economic life of the proposal would not alienate the site for future land uses (cl 16(1)(b)).

It is not apparent how the Cleveland Road dwelling proposal will fetter the general aims of the SEPP, or how the aims of the SEPP might deliver anything particularly different or incompatible to that of the proposed dwelling.

Whilst there is no certainty as to final use of the subject land and its surrounds as a result of precinct planning, the experts agree that the existence of a dwelling would unlikely be fatal to any such planning outcome. In other words, the aim to coordinate the release of land for urban purposes would not be compromised by this development. Precedent 27 The main concern of council was that approval of this application would create a precedent for other approvals. In the Marsden Park Rural 1(a) zone controlled by cl 12(3), 689 lots out of 739 lots are privately owned. Currently very few lots are developed. Mr Apps was concerned that the characteristics of the site would not distinguish it from other undeveloped sites in the zone.

28 Mr Apps stated that as the site is not zoned urban there is no s 94 contributions plan. The approval of urban development on this and other land within the zone would increase the demand for services with no contribution on the part of applicants towards this increased demand.

29 Mr Craythorn considered that approval of this application would not set a precedent for approval of other similar applications, as each application must be considered on its own merits. An application for a house on a site without services or road access has different characteristics to this application that would need to be assessed. Such an application could be refused on the basis of access to services despite the approval of this application.

Findings 30 Although not referred to by the parties the recent decision of Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 comprehensively examines the requirements to uphold an objection under SEPP 1. Upholding a SEPP 1 objection is a precondition, which must be satisfied before the proposed development can be approved on a consideration of the merits. His Honour states that the Court must be satisfied of the following three matters:

38 First, the Court must be satisfied that "the objection is well founded" (clause 7 of SEPP 1). The objection is to be in writing, be an objection "that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case", and specify "the grounds of that objection" (clause 6 of SEPP 1). The requirement in clause 7 of SEPP 1 that the consent authority be satisfied that the objection is well-founded, places an onus on the applicant making the objection to so satisfy the consent authority: see North Sydney Municipal Council v Parlby, unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J, p. 8.

39 Secondly, the Court must be of the opinion that "granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3" (clause 7 of SEPP 1). This matter is cumulative with the first matter (it is prefaced by the words in clause 7 of SEPP 1 "and is also"). The aims and objects of SEPP 1 set out in clause 3 are to provide "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 or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act". The last mentioned objects in s 5(a)(i) and (ii) of the Act are to encourage:

"(1) 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,

(2) the promotion and coordination of the orderly and economic use of developed land." 40 Thirdly, the Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection: Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94 at 100 and City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 291. The matters in clause 8(a) and (b) are: "(a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument". 31 His Honour then proceeds to discuss ways of establishing that compliance is unreasonable or unnecessary at para 42 to 52 he states.

42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard: see SCMP Properties Pty Limited v North Sydney Municipal Council (1983) 130 LGERA 351 at 379; Hooker-Rex Estates v Hornsby Shire Council, unreported, LEC No 10506 of 1982, 27 July 1983, Bignold J, pp 16, 18 and 20; Gergely & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 406-407, 412-413; Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGRA 438 at 441; North Sydney Municipal Council v Parlby, unreported, LEC No 10613 of 1985, 13 November 1986, Stein J at p 5; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; Leighton Properties Pty Ltd v North Sydney Council (1998) 98 LGERA 382 at 386; Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 97; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282-283; Memel Holdings Pty Ltd v Pittwater Council (2000) 110 LGERA 217 at 220-221; Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at 88[25] - 89[28] and Design 23 Pty Ltd v Sutherland Shire Council (2003) 125 LGERA 380 at 387 [20]-[21].

43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).

44 However, although this way is commonly invoked, it is not the only way to establish that compliance with a development standard is unreasonable or unnecessary: North Sydney Municipal Council v Parlby , unreported, LEC No 10613 of 1985, 13 November 1986, Stein J at p 5; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 97; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282-283. Other ways are explained in the authorities.

45 A second way is to establish that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary: SCMP Properties Pty Limited v North Sydney Municipal Council (1983) 130 LGERA 351 at 378-379; North Sydney Municipal Council v Parlby, unreported, LEC No 10613 of 1985, 13 November 1986, Stein J at p 5.

46 A third way is to establish that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable: Hooker-Rex Estates v Hornsby Shire Council, unreported, LEC No 10506 of 1982, 27 July 1983, Bignold J at p 18.

47 A fourth way is to establish that the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable: North Shore Gas Co. Pty Ltd v North Sydney Municipal Council , unreported, LEC No 10185 of 1986, 15 September 1986, Stein J at pp 11-12; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282 [69]-283 [70].

48 A fifth way is to establish that "the zoning of particular land" was "unreasonable or inappropriate" so that "a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land" and that "compliance with the standard in that case would also be unreasonable or unnecessary: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 97.

49 However, care needs to be taken not to expand this fifth way of establishing that compliance is unreasonable or unnecessary beyond its limits. It is focused on "particular land" and the circumstances of the case. Compliance with the development standard is unreasonable or unnecessary not because the standard is inappropriate to the zoning, but rather because the zoning of the particular land is found to be unreasonable or inappropriate. If the particular land should not have been included in the particular zone, the standard would not have applied, and the proposed development would not have had to comply with that standard. To require compliance with the standard in these circumstances would be unreasonable or unnecessary.

51 The dispensing power under SEPP 1 also is not a general planning power to be used as an alternative to the plan making power under Part 3 of the Act to change existing planning provisions. An objection cannot be used as a means to effect general planning changes throughout a local government area (in circumvention of the procedures under Part 3 of the Act): Hooker-Rex Estates v Hornsby Shire Council , unreported, LEC No 10506 of 1982, 27 July 1983, Bignold J, at p 22; Gergely & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 412; Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 442; North Sydney Municipal Council v Parlby , unreported LEC No 10613 of 1985, 13 November 1986, Stein J at p 7; Colvest No. 27 Pty Ltd v Hastings Municipal Council , unreported, LEC No 10617 of 1986, 22 March 1988, Cripps J, pp 11-12; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 201-202 (affirmed (1990) 69 LGRA 201 at 203, 210); Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 99; Bowen v Willoughby City Council [2001] NSWLEC 274 (4 December 2001) at [113].

52 The requirement that the consent authority form the opinion that granting consent to the development application is consistent with the aims of SEPP 1 as set out in clause 3 (one of which is the promotion and coordination of the orderly and economic use and development of land) makes it relevant "to consider whether consent to the particular development application encourages what may be summarised as considered and planned development" or conversely may hinder a strategic approach to planning and development: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 100 [26] - [27], 101 [30] - [31], [35]. 32 Although not specifically stated in the evidence of Mr Craythorn or the submissions of Mr Bisits, the SEPP 1 objection appears to invoke the fifth approach as it addresses the aims of the zone rather than the underlying purpose of the standard. It concludes that:

After examining the zone objectives and considering the history of agricultural land use in the locality, the applicant believes that the 10 hectare MLS is no longer relevant. If the standard is no longer relevant, and if there are no conflicts with the 1(a) Rural zone objectives, then under the prevailing circumstances the imposition of the 10 hectare MLS is unnecessary and unreasonable. 33 The oral evidence of Mr Craythorn supports this position as he states that both the zone and the standard should be changed. This evidence related not to this particular site, i.e., that it was incorrectly zoned but to the zone generally or at the very least to the locality of Cleveland Road.

34 Mr Apps did not agree that the zone was irrelevant but that it served the purpose of a holding zone until the precinct planning was completed and to ensure that the future urban use of the area was not prejudiced by ad hoc development of small sites.

35 Mr Apps and Mr Craythorn, in their joint report, agreed that the underlying objective of the standard may be to limit housing development. Although Mr Apps expanded upon these objectives in his oral evidence. However, the conclusions reached by Mr Craythorn were largely that the standard served no purpose as the zone served no purpose.

36 While this approach is recognized as valid in Wehbe, His Honour urges caution in its application, he states:

It is focused on "particular land" and the circumstances of the case. Compliance with the development standard is unreasonable or unnecessary not because the standard is inappropriate to the zoning, but rather because the zoning of the particular land is found to be unreasonable or inappropriate. If the particular land should not have been included in the particular zone, the standard would not have applied, and the proposed development would not have had to comply with that standard. To require compliance with the standard in these circumstances would be unreasonable or unnecessary.

50 However, so expressed, this way is limited. It does not permit of a general inquiry into the appropriateness of the development standard for the zoning. An objection would not be well-founded by an opinion that the development standard is inappropriate in respect of a particular zoning (the consent authority must assume the standard has a purpose): Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 441; North Sydney Municipal Council v Parlby, unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J at p 7; and Colvest No. 27 Pty Ltd v Hastings Municipal Council , unreported, LEC No 10617 of 1986, 22 March 1988, Cripps J, pp 10-11. 37 Mr Craythorn does not rely on the zoning of the "particular land" being unreasonable or inappropriate (ie the site should not be included in the zone and therefore the standard would not apply) but that the zone itself is unreasonable or inappropriate or at least that part of the zone in the Cleveland Road locality. This is not a valid approach, the aim of SEPP 1 is to provide:

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 or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act.

38 The purpose of SEPP 1 is not to change planning controls applying to land as an alternative to the plan making regime established under Part 3 of the Act. The proposal is seeking to permit urban development, albeit at low density, on land that is zoned rural. While this zoning may no longer be relevant, other than as a holding zone, it is not the role of the Court to facilitate a defacto rezoning of the land. I therefore do not accept that the SEPP 1 objection which relies on the standard and the zoning not being appropriate not only for this land but for the wider area as being well founded.

39 There is a huge difference in the density of a dwelling on an allotment of 1188.8 sqm and one of 10ha (100,000sqm). The former is urban development and the latter is non urban development. The difficulty is the "paper subdivision" that exists with allotments of only 500sqm. This gives owners the expectation that the pattern of development can reflect the subdivision pattern whereas the planning regime establishes the requirement for a much larger pattern of development. While I accept that the 10ha allotment size is difficult to achieve, and appears not to have been achieved, it is not the role of the Court to dispose of it. The proposal is considerably below the standard in cl 12(3) and even the 4000sqm standard in cl 12 (2). Such a large variation to the standard cannot be justified on the evidence before me. Mr Bisits referred to Hill v Blacktown City Council [2007] NSWLEC 108 where Bly C upheld a SEPP 1 objection to cl 12(3). However, that application related to the replacement of an existing (unapproved) dwelling and was in a different zone. 40 Both Mr Apps and Mr Craythorn agreed that a purpose of the standard could be to limit urban development of the land. In the context where future planning for the area is to be undertaken, a proper planning purpose may be achieved by a holding zone, which limits development to large rural sized allotments. If this is not appropriate the zone and the standard need to be changed through the strategic planning process. If it is accepted that the standard has a purpose, which I am bound to do, it is clear that the proposal does not meet the objective of the standard, even if this is only to limit development until such time as the land is released for urban purposes.

41 While on a merit assessment the proposal does not result in adverse impacts, this assessment is largely based on the assumption that the site and surrounding land are urban. This merit assessment can only be undertaken once the precondition of upholding the SEPP 1 objection is established. In the circumstances of this case I find that this precondition has not been met and that the application must fail.

42 While the land and other land within the zone may not be used for rural development this is what the land is zoned for. Mr Apps stated that rural uses could occur in the zone such as agistment of horses. However, it is recognised that the future use of the land in the zone under the Growth Centres SEPP and REP 19 is urban. This future use relies on more detailed planning and Precinct Plans being prepared. Clause 16 of the Growth Centres SEPP provides matters to be considered for applications where precinct planning has not occurred. As stated above these consideration are not inconsistent with cl 12 (3) of LEP 1988 nor do they override the requirement to uphold a SEPP 1 objection. 43 While, individually this application may meet the criteria in cl 16, if approved it would establish a precedent for approval of other similar applications.

44 In relation to precedent, the parties recognised that approval of these applications was likely to result in other applications seeking consent for development. However, Mr Bisits submitted that each application would need to be considered on its merits and approval of these applications was not of itself objectionable and did not set a precedent for approval of other applications.

45 The parties referred to Goldin and Anor v Minister for Transport [2002] NSWLEC 75 where Lloyd J relied on Sugarman J in Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177, where he said at 182:

It is sometimes contended that a proposed development, in itself unobjectionable, should not be allowed because it is likely to lead to others of a similar character and the totality would prove objectionable. That depends , inter alia , upon the existence of a sufficient probability that there will be further applications for a number of undistinguishable developments of the same class sufficient in their totality to bring about the objectionable condition of affairs. Here it seems, as I have said, unlikely that all the hypothetical subdivisions shown on the plan tendered by the council would be sought. Applications must be considered on their own merits and it would appear to be unduly onerous to refuse an application, unobjectionable on its individual merits, on the mere chance of probability that there may be later applications sufficient, if approved, to produce in their totality some undesirable condition. In such a case as the present, if what originally appeared to be a mere possibility or chance turned out later to become a distinct possibility, there would be no reason why the council should not at that stage call a halt, if it should then appear proper to do so. Justice is not offended in these circumstances by the refusal of further applications calculated to lead to objectionable conditions after the granting of one or more earlier applications unobjectionable in themselves. 46 In Goldin, Lloyd J analysed a number of decisions following Emmott which considered the issue of precedent in planning appeals. He notes at para 31 and 32 that:

The authorities relied upon by Mr Hale show clearly that the precedent effect of a particular proposal is a valid consideration. In Shellcove Gardens Pty Ltd v North Sydney Municipal Council , Sugerman J expressly referred to his earlier decision in Emmott, in which he corrected the misprint in the latter judgment. Sugerman J acknowledged that "if one application were granted it might prove difficult for the council to refuse others unless the circumstances were distinguishable". In the present case there has been a finding of fact by the Senior Commissioner that there is more than a mere "chance or possibility" of such later applications.

In particular, the decision of the Court of Appeal in BP Australia Ltd v Campbelltown City Council is, of course, binding upon me. As noted above, that Court held that the risk of establishing a precedent is readily invokable by prospective developers of other land in the vicinity is a valid consideration. 47 In applying this consideration to the current application, I conclude that there are a number of sites in the area that are vacant and there is a real probability that there will be further applications on sites with similar characteristics. While each application must be considered on its merit, other applications and other sites are likely to have very similar constraints and considerations and approval of this application would set a precedent for other approvals.

48 Sites accessed by unformed roads or without services such as water and electricity can be distinguished from the characteristics of this site. However, there are likely to be a number of sites, even just in this section of Cleveland Road, that have circumstances similar to the site which could not readily be distinguished in a merit assessment. Approval of a number of applications would undermine the future planning of the area and not meet the criteria in cl 16 as it would establish a pattern of urban development and potentially constrain future planning for the area. Urban development in the absence of a contributions plan or a development agreement is also not a desirable planning outcome, as it would place a demand on services. 49 While I acknowledge that the site is in private ownership and that the future use will be urban, it is currently not zoned for this purpose and dwellings are only permissible on parcels of 10ha, unless a SEPP 1 objection is upheld. The dilemma posed by this application is one that needs to be resolved through the precinct planning for the area not through the determination of an application in isolation.

Orders 50 For the above reasons the Orders of the Court are:

The development application to construct a single storey dwelling at 92, 93 and 164, 165 Section 9, DP 1229 Cleveland Road and Chaucer Road, Riverstone is refused.

Annelise Tuor Commissioner of the Court

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.

(1999) 110 LGERA 262

(1983) 130 LGERA 351

(2000) 110 LGERA 217

(2003) 125 LGERA 380

(1986) 130 LGERA 438

At a glance

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Judgment (70 paragraphs)

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Cases Cited (13)

Cited By (2)