Lollback v The Hills Shire Council

Mr C Winn, solicitor of The Hills Shire Council (Respondent) File Number(s): 10093 of 2011

Ex tempore Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1This is an appeal pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) . It concerns the refusal by the respondent, The Hills Shire Council, of a development application (DA 889/2009/ZB) for subdivision of Lot 160, DP 771416, known as 5 Clarke Way, Kenthurst. 2The Registrar listed the matter for an onsite s 34AA mandatory conciliation conference and hearing. After attempting conciliation, the parties were unable to reach an agreement, so the conference was terminated and the matter proceeded to hearing onsite. 3The land is a 10 ha parcel composed of two parts, which are severed by a public road known as Clarke Way. The applicants seek consent to subdivide the land to create two Lots. Proposed Lot 160 is to contain the existing house and have an area of 9.5 ha and Lot 161 is proposed to have an area of 0.5 ha. 4The statement of facts and contentions filed by the council on 7 March 2011 records that the land is zoned Rural 1(b) under the Baulkham Hills Local Environmental Plan 2005 (the LEP ) , and, Clause 18(1)(b) of the LEP precludes subdivision of land in that zone unless each separate allotment to be created by the subdivision has an area of not less than 10 ha. 5This subdivision does not comply with the development standard in cl18 (1)(b) and the applicants' object to compliance with the standard under State Environmental Planning Policy No 1 (SEPP 1). Their SEPP 1 objection is detailed in Annexure 2 at pp19-23 of the applicants' Statement of Environmental Effects and is reproduced by Mr Falson (the applicants' town planner) in his expert report (exhibit 5 at p 19). In addressing the applicants' SEPP 1 objection, the parties accept that the principles set out in the decision of Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 at [79] and the tests and questions discussed by Lloyd J in Winton Property Group Limited v North Sydney Council [2001] NSWLEC 46 are relevant . In Wehbe , Preston CJ held (at [37]-[40]), that the Court must be satisfied of three matters before it can uphold a SEPP 1 objection and grant development consent. Those matters are, first, that the Court is satisfied that the objection is well founded (cl 7 of SEPP 1), which places the onus on the applicants making the objection; secondly, the Court must be of the opinion that granting consent to the development is consistent with the aims of the SEPP1 as set out in cl 3 (cl 7 SEPP 1); and thirdly, the Court must be satisfied that a consideration of the matters in cl 8(a) and (b) of SEPP 1 justifies the upholding of the objection. 6The Notice of Determination issued to the applicants on 25 February 2010 states as a ground of refusal that: " The proposal has not adequately demonstrated that the development standard contained in clause 18(1)(b) of Baulkham Hills Local Environmental Plan 2005 is unreasonable or unnecessary in this instance as required by State Environmental Planning Policy no 1- Development Standards (Section 79C (1)(a) (i) of the Environmental Planning and Assessment Act 1979). 7The decision as to whether the SEPP1 objection should be upheld or not is in fact determinative of this appeal. 8There is no dispute that the requirement in cl 18(1) of the LEP for a minimum allotment size of 10 ha for lots within the Rural 1(b) zone is a development standard for the purpose of SEPP 1. Mr Young, the council's town planner, describes the development standard as a density control. However, cl18 (1)(b) does not expressly state an underlying objective or purpose for the development standard. Despite that the planners ultimately agreed at the onsite hearing that the underlying objective of the development standard is to impose restrictions on the subdivision of land, in order to support the attainment of the zone objectives. The case proceeded on that basis. 9The zone objectives are set out in the table to cl 13 of the LEP. Clause 13(2) provides: "(2) Except as otherwise provided by this plan, consent must not be granted for development unless the consent authority is satisfied that a proposed development: (a) Is consistent with one or more of the aims of this plan and any relevant objectives for development; and (b) Is not contrary to achieving the objectives of the zone within which it will be carried out." 10The clause then states the objectives for the Rural 1(b) zone. The following objectives are considered relevant by the Council: (a) to ensure that existing or potentially productive agricultural land is not withdrawn unnecessarily from agricultural production, and (b) to maintain the rural character of the locality without adversely affecting the carrying out of agricultural activities, and ... (f)to ensure that development is designed and carried out having regard to the rural and heritage character of surrounding land, and (g) to ensure that development is designed and carried out having regard to adjoining land uses and the natural environment. 11It is council's case that the proposed subdivision is inconsistent with the abovementioned zone objectives and therefore does not satisfy the underlying objective or purpose of the standard. Council also contends that the applicants have not adequately demonstrated why it is unreasonable or unnecessary to comply with the development standard in cl 18 (1)(b) of the LEP. Therefore, council submits the SEPP 1 objection is not well founded and cannot be upheld. 12Mr Falson the applicant's town planner disagrees. At the hearing he gave evidence in support of the development and the SEPP1 objection. In his expert opinion (despite non-compliance with the development standard in cl 18(1) (b) of the LEP) the subdivision is consistent with the zone objectives and thereby satisfies the underlying objective of the standard. (Exhibit 5 Para 2 p 20). 13In addressing the second test identified in Wehbe (as set out in cl 3 (cl 7 SEPP 1) Mr Falson gave evidence that the subdivision is consistent with the aims and objectives of the policy and its approval does not hinder the objects of s 5 (a)(i) and (ii) of the Act. He told the Court that the subdivision follows the proper and reasonable management of a rural landholding that is severed by a public road. In his assessment it is both reasonable and necessary to vary the standard in the circumstances of this case because the severed portion " is not conducive to an appropriate rural use (other than for a dwelling) due to its shape and size and the added maintenance requirements ."(Para 3 p21 exhibit 5). 14Mr Falson is of the opinion that no agricultural land will be affected as a result of the subdivision because the proposed Lot 161 is not and would never be productive agricultural land, due to its size, topography and shape. In his assessment there is no public benefit in maintaining the development standard of 10ha in this instance as the resultant subdivision will create lots that are better able to be managed and are still suitable for rural/residential development. The proposal makes use of the existing road infrastructure and the lots are not out of character with the pattern of settlement in the locality. 15The applicants contend that compliance with the standard is both unreasonable and unnecessary in the circumstances of the case for the reasons listed in the SEPP1 objection at pp 21 and 22 of exhibit 5. They submit that in all the circumstances the objection is well founded, as there are no identified adverse environmental impacts arising from the proposal, and the objectives of the Act as specified within SEPP1 are satisfied. Mr Falson, on behalf of the applicants, gave evidence that the objects in s5 (a)(i) and (ii) would not be attained if the land does not achieve its full development potential. He is of the opinion that this development potential is currently "thwarted" because of the road severance (P23 exhibit B). 16With respect to the argument of an undesirable precedent Mr Falson is of the opinion that refusal of this development on the ground of an undesirable precedent is unjustified because each development must be assessed on its own facts and merits. 17Mr Young disagrees with the applicant's evidence. Consistent with his written statement at the hearing Mr Young reaffirmed his assessment that approval of this subdivision would change the rural character of the locality to that of a more residential nature. It will create an additional building entitlement, which doesn't presently exist, and this will inevitably result in a future dwelling and other ancillary structures on the proposed Lot 161. In support of this he referred me to the survey plan tendered by the applicants showing the building locale of an indicative dwelling on the proposed Lot 161, which, subject to a further development application and assessment, is a permissible use within the zone. In his assessment the subdivision is not a " development designed and carried out having regard to the rural and heritage character of the surrounding land " and therefore inconsistent with objective (f) of the Rural 1(b) zone. In his assessment the subdivision will undermine the rural character of the locality and give rise to potential conflicts with surrounding agricultural uses. His evidence is that it will fragment land ownership and reduce the potential of the land to sustain productive agricultural uses. For that reason he assesses it is inconsistent with the zone objectives "(a) to ensure that existing or potentially productive agricultural land is not withdrawn unnecessarily from agricultural production, and (b) To maintain the rural character of the locality without adversely affecting the carrying out of agricultural activities". 18While Mr Young concedes that the current size, topography and shape of the proposed Lot 161 limits the extent of its potential for productive agricultural use, he does not accept Mr Falson's assessment (at paragraph 3 at p20 of exhibit B) that " the severed portion is not conducive to an appropriate rural use (other than a dwelling) due to its shape and size ". In his assessment the land is suitable for agistment of horses and cattle and the keeping of bees, which are permitted agricultural uses for the land. He also believes that there is also opportunity available for consolidation of the land with the adjoining lot to facilitate different agricultural uses. He stated that the applicants have not provided evidence to establish that the land cannot be used for existing or potential agricultural production, which is a relevant objective of the zone. 19Mr Young 's evidence is that approval of this application will result in the unnecessary withdrawal of " existing or potentially productive agricultural ...from agricultural production ." Therefore, objective (a) of the Rural 1(b) zone are not attained by this development. 20Mr Young is also concerned about the undesirable precedent this subdivision will set for other land in the locality. Particularly, blocks further down Clarke Way whose parcels are also severed by a road or other natural division. His evidence is that council has consistently refused subdivision of undersized land in the Rural 1(b) zone since the introduction of the LEP. In Mr Young's opinion, the size of the proposed allotments and their variations, being 5 per cent and 95 per cent respectively, is unacceptable because it will result in a fragmentation of the land. While acknowledging a variety of lot shapes and sizes in the vicinity of the development, Mr Young explained that the three undersized lots fronting Pitt Town Road, either pre-dated the current LEP or were, in effect, boundary adjustments. For the above reasons he was of the SEPP1 objection to compliance with the standard is not well founded. 21The experts also discussed the provisions of the DCP, which seemed to mirror the LEP minimum area. They are relevant considerations on a merit assessment under s79C (1) of the Act. The Baulkham Hills DCP, in Part C also informs the planning intent of the Rural 1(b) zone. At cl 2.2 it states: "The planning intent of the zone recognises the need to protect areas of scenic environmental quality, to maintain the rural character of the area, provide the agricultural use of the land to provide opportunities for development of tourist facilities." 22Clause 3.1 of the DCP is also relates to minimum development site requirements and includes in the following (2), to provide for a wide range of activities that maintain the rural, agricultural and environmental qualities of the Rural 1(b) zone. 23Independent of the SEPP1 objection (but with some overlap with the matters discussed in the assessment of the SEPP1 objection) the council's evidence is that on a merit assessment under s79C of the Act this subdivision is inconsistent with the existing subdivision pattern of the locality and will set an undesirable precedent in the locality for lots severed by a road. Over all council assessed that the development's non-compliance with the street frontage and minimum area provisions in the DCP and LEP and the Rural 1(b) zone objectives also would justify a refusal of this development on it merits.