Lonergan v Byron Shire Council

Thompson v His Honour Judge Byrne& Anor 196 CLR 141 CASES CITED: Mills v Meeking & Another (1990) 169 CLR 214 Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46 Wehbe v Pittwater Council [2007] 156 LGERA 446

APPLICANT Mr G Williams, solicitor SOLICITORS Thompson Norrie LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of DA 10.2007.636.1 by Byron Shire Council (the council) for the subdivision of 24 Balraith Lane, Ewingsdale (the site) into 2 lots.

2 The principal issue in proceedings was whether an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) was well founded, as the size of the proposed lots did not satisfy the council's standards for subdivision in rural areas. The site and surrounding area 3 The site is Lot 3 in DP 582689. It is an irregular shaped lot with a total area of 2.029 ha. The site is largely cleared of vegetation with the exception of a gully that transects the site and the higher slopes towards the south-western and southern boundaries. The gully has slopes of up to 27% on both sides. The site generally slopes from the southernmost point of the site to Balraith Lane with a slopes varying between 10% and 20%. An existing dwelling is located towards the southern part of the site with access from a sealed driveway from Balraith Lane.

4 The surrounding area is predominantly rural and rural/residential in nature with existing dwellings being located on lots of varying size but ranging upwards from around 2000 sq m. The proposal 5 The proposal provides for the subdivision of the existing lot into two lots (see Attachment 1). Proposed Lot 1 has a frontage to Balraith Lane and an area role of 0.8897 ha. A building envelope measuring 15 m by 12 m is shown towards the southern boundary of Lot 1. Proposed lot 2 is located at the southern part of the site and has an area of 1.1388 ha. This lot contains the existing dwelling and has access to Balraith Lane by way of a Right of Carriageway over Lot 1. Relevant planning controls 6 The site is partly within Zone 1(c2)(Small Holdings Zone) and partly within Zone 7(d) (Scenic Escarpment Zone) under Byron Local Environmental Plan 1988 (LEP 1998). The location of the zoning boundary is shown on Attachment 1. Clause 2A(1) provides that consent must not be granted unless the proposed development is consistent with the aim, objectives and guiding principles of LEP 1988. Clause 2A(2) provides that before determining a development application, the consent authority shall have regard to the information, guidelines and recommendations in a number of strategies, policies and studies adopted by the council. Relevantly, cl 2A(2)(d) identifies the Byron Rural Settlement Strategy. 7 Clause 9(3) provides that consent shall not be granted unless the proposed development is consistent with the objectives of the zone in which it is to be located. The relevant objectives for Zone 1(c2) are: (b) to make provision for small rural holdings in appropriate locations and in response to a genuine demand, . (c) to maintain a rural character in areas where small holdings are permissible, 8 Clause 11 provides requirements for subdivision in rural areas for agriculture etc. Clause 11(1) provides the minimum area for subdivision in Zone 1(c2) as 0.2 ha and within Zone 1(f) as 40 ha. Clause 11(2)(b) provides for the subdivision of land within Zone 1(c2) "where the number of allotments to be created by the subdivision for the purpose of a dwelling house is not greater than the area of land divided by 0.8". Clause 11(3) provides that "land" means a parcel or parcels of land held under a separate title on the appointed day (this being the gazettal of LEP 1988 on 23 March 1988). The site contains an area of approximately 1.3 ha within Zone 1(c2). If the area is divided by 0.8 then the subdivision potential is 1.625 lots. Whether the applicant is entitled to 2 lots is the principal issue in the appeal. The council raised no issue with Lot 2.

9 Byron Shire Council Development Control Plan 2002 (DCP 2002) applies. Part B4 provides requirements for rural subdivision. Relevantly, Part B4.2 addresses residue land and relevantly states: In many cases a parcel of land may be partly within Zone 1(c1)(Small Holdings Zone) and Zone 1(c2)(Small Holdings Zone) and partly with in some other zone.

Where the part outside Zone 1(c1) or Zone 1(c2)(Small Holdings Zone) use of insufficient size to create a separate lot in accordance with the provisions of the LEP relating to the zone in which the residue is situated, such land must be incorporated within one or more of the lots to be created within Zone 1(c1) or Zone 1(c2)(Small Holdings Zone).

Any such land outside Zone 1(c1) or Zone 1(c2)(Small Holdings Zone) may not be used to increase the lot yield as determined by the provisions of the LEP at the time of subdivision or subsequently. The evidence 10 Mr Chris Lonergan, a town planner provided evidence for the applicant including the SEPP 1 objection. Mr Patrick Dawson, a town planner provided evidence for the council.

11 Mr David Young and Ms Kate Platt of 210 Balraith Lane provided evidence on site and opposed the proposed subdivision. In their opinion, the land is too small to subdivide as any new house and ancillary buildings or activities would extend beyond the identified building platform and would be too close to their recently constructed dwelling and unacceptably impact on their privacy. The loss of privacy would affect their use of dwelling and also the private open space area, including the swimming pool. 12 Mr Eric Fleming of 202 Balraith Lane provided evidence on site and also opposed the proposed subdivision. He stated that the subdivision was contrary to the councils planning controls and would impact on the views from his newly constructed dwelling. The area available for the erection of a dwelling was also insufficient to accommodate all the activities associated with a dwelling and would create unacceptable amenity impacts particularly noise through cars, lawnmowers and brushcutters. Is a SEPP 1 objection required? 13 Mr Williams, for the applicant submits that cl 11(2)(b), given its ordinary meaning, only permits the council to consent to a subdivision that creates 1.625 allotments. It is clearly impossible to create a fraction of a lot. There is nothing in the wording (adopting the ordinary meaning of the standard) that requires a rounding up or rounding down nor is the word "whole allotments" used, so in his submission this creates a situation described by Gaudron J in Thompson v His Honour Judge Byrne& Anor 196 CLR 141 (at 50) as an "absurdity" or lead to "a result which cannot be reasonably supposed to have been the intention of the legislature".

14 Mr Williams further submits that in interpreting the standard, a purposive approach would recognise that the standard intended to provide a restriction on the creation of a number of whole allotments. Rounding both up and down (depending on the fraction created) has no adverse planning or environmental impacts. This was evident from the site view and the lots approved by the council by rounding up. It is within the jurisdiction of the Court to construe the meaning of the standard to permit rounding up. This needs to be compared to the absurd interpretation that authorises the creation of 0.625 of a lot. On this method of statutory construction, a SEPP 1 objection is not required because the standard permits the creation of two lots. 15 I do not accept this submission. The Court was taken to a number of authorities on statutory interpretation. Relevantly, Mills v Meeking & Another (1990) 169 CLR 214 (at 223) states: If the language is ambiguous or uncertain, a risk of injustice will bear upon the construction to be given to the words used. If not, the Court will apply its ordinary and grammatical meaning unless to do so would give the statute an operation which obviously was not intended . 16 Given its ordinary meaning, I have little trouble in concluding that the language of cl 11(2)(b) is not absurd, ambiguous, uncertain or unclear (or when considered with cl 11(1) contradictory). The fact that a lot may not be exactly divisible by 0.8 is not a situation that requires a further step to either round up or round down. There is no warrant for either action in cl 11 or anywhere else in LEP 1998. If the ordinary meaning is applied to cl 11(2)(b), then a lot simply cannot be subdivided if it is not exactly divisible by 0.8, irrespective of the size of the departure from this requirement. The opportunity to subdivide a lot that is not exactly divisible by 0.8 is still however available through SEPP 1. Is the SEPP 1 objection well founded? The assessment approach 17 The appropriate means of dealing with a SEPP 1 objection is set out in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, where a number of questions are asked. 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. 18 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. 19 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. 20 Mr Williams submitted that the decision by Preston J in Wehbe v Pittwater Council [2007] 156 LGERA 446 was also relevant. This judgment supplements the finding in Winten and identifies a number of ways of establishing that compliance is unreasonable or unnecessary. 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 (Test 1). 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 (Test 2). 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 (Test 3). 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 in unreasonable (Test 41). A fifth way is to establish that the zoning of particular land was unreasonable or inappropriate so that a development standard appropriate that 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 (Test 5).

The SEPP 1 objection 21 Clause 11 does not provide any specific objectives for the development standard so the SEPP 1 objection identifies the underlying object or purpose of the standard as "permitting rural subdivision, yet maintaining a perceived level of rural amenity by setting a minimum lot size". When tested against this underlying objective or purpose, the SEPP 1 objection finds that the underlying purpose of the objective is met because: o the proposed habitat restoration on the northern and eastern boundaries and the Balraith frontage, o the retention of the 7(d) land in one lot and o the maintenance of the rural character of the area as proposed Lot 1 blends into the 1(c2) settlement pattern by providing adequate spatial separation between the existing and proposed dwellings. 22 The SEPP 1 objection concludes by stating that strict compliance with the development standard would tend to hinder the relevant objects of the EPA Act and be inconsistent with the aims of SEPP 1. Consequently, compliance with the development standard is unreasonable and unnecessary and the SEPP 1 objection is well founded.

23 While not addressed in the SEPP 1 objection or by the experts, Mr Williams submitted that in considering the decision in Wehbe (in addition to the tests in Winten), the underlying objective or standard would be defeated if compliance with the development standard was required (Test 3) and that the underlying objective or standard has been virtually abandoned or destroyed by the council in the approval of non complying subdivisions (Test 4). The consequence being that strict compliance was not required in this case.

The evidence 24 There was disagreement between Mr Lonergan and Mr Dawson on the underlying object or purpose of the development standard. Mr Lonergan states that the objective is "to achieve an overall settlement density within the Ewingsdale 1(c2) zone, in line with the density provisions set". Mr Dawson identifies the objective of the development standard as "to permit rural subdivision without compromising rural amenity and character and the standard set a minimum average lot size of 0.8 ha as a mechanism to achieve this goal". 25 At the heart of the issue between Mr Lonergan and Mr Dawson is the intent of cll 11(1) and 11(2). Mr Lonergan states that as all land within the Ewingsdale 1(c2) zone is not evenly divisible by 0.8 (as is the case with the current application) then the optimum use of zoned land cannot be achieved, the planned density for the area cannot be obtained and therefore the zone objectives and the relevant objects of the EPA Act are not met. As very few properties are evenly divisible by 0.8, then the only way that the anticipated Rural Small Holdings "rural character" can be achieved is if larger fractions are rounded up and small fractions are rounded down. If this is not done than the envisaged pattern of development cannot be achieved and the proper future planning of the area would not result in the anticipated overall density of the Ewingsdale 1(c2) zoned area (that is, the whole area divided by 0.8).

26 Mr Dawson takes a different view. He states that rounding up is an occasional planning practice. However, cl 11(2)(b) makes no mention of rounding up or down or any other mechanism, other than the terms of the standard to be applied when the number produced by the application of the provision is not a whole number. It cannot be assumed that rounding up will, in the subject application, achieve the objective of the standard as the numerical control exists as a means to that end, rather than that end of itself.

Findings 27 On the question of the underlying object or purpose of the development standard, I agree with Mr Dawson. The two controls (cll 11(1) and 11(2)) act in concert to provide a range of lot sizes (that is, with a minimum of 2000 sq m) to achieve an overall yield for the lot to be subdivided (that is, the size of the lot divided by 0.8). The controls provide no maximum lot size only a minimum lot size. An example of the form of subdivision that has been created by cll 11(1) and 11(2) was seen at Citriadora Drive and Cape Vista Drive where a range of lot sizes have been provided.

28 It must be accepted that a subdivision created by cll 11(1) and 11(2) will provide a range of lot sizes. A subdivision may provide a number of lots around minimum area of 2000 sq m such as that created at Citriadora Drive and Cape Vista Drive. This creates it's own character within the 1(c2) zoned land but there are consistent characteristics that apply across the whole Ewingsdale 1(c2) zoned land. With the benefits of a view of the Ewingsdale 1(c2) zoned land, I am satisfied that the character generally involves generally large dwellings located centrally on the lots with generous front and side setbacks. Ancillary development such as garages, sheds and swimming pools are generally also centrally located to provide a maximum separation between developments on adjoining lots. The larger the lot the larger the separation. It would be reasonable to assume that a generous separation between dwellings would be one of the factors that would attract residents to the area. Importantly, a large proportion of the subdivisions within the Ewingsdale 1(c2) zoned area are located between the site and Ewingsdale Road and are around 2000 sq m where the land is relatively flat and unencumbered by any constraints. This generally allows the whole lot to be available for rural/residential development and to maximise separation between developments on adjoining lots.

29 In this case, Lot 1 has an area of 8897 sq m but is irregularly shaped and the area that can accommodate a dwelling and ancillary development is limited to the crown of the hill in the southern part of Lot 1. The area of land between the identified location for a dwelling and Balraith Lane is unsuitable for any development because of the need to provide a Right of Carriageway to Lot 2. The area of land south of the identified location of the dwelling is bisected by a gully and the land is unsuitable for development because of its steepness. 30 While an area of 15 m x 12 m building platform was identified on the survey plan as a site for a future dwelling I am not satisfied that it is an appropriate area taking into consideration the size of the dwellings on the adjoining lots and in parts of the general area. There was no dispute that the area was to designate the location of a dwelling only and not ancillary structures such as sheds or swimming pools. Based on the site view, these ancillary structures are regularly seen in the Ewingsdale 1(c2) zoned area.

31 I note that the requirement for a 15 m x 12 m building platform comes from the council's controls for residential development and not necessarily for rural/residential development even though Mr Lonergan's evidence was that the 15 m x 12 m building platform was the area sought by the council for rural subdivisions. I accept that a dwelling could be constructed within an area of 15 m x 12 m however based on the size and scale of dwellings in the area, a dwelling that would extend beyond proposed building platform area is possible, if not likely. I also note that while the applicant identified a building platform on the Lot 1, they resisted the council's condition to formalise this area on the survey plan. The consequence of a limited area for the use of future occupants is that structures and activities will likely be pushed towards the boundaries of Lot 1, thereby potentially creating amenity impacts on adjoining properties, particularly that of Mr Young and Ms Platt at 210 Balraith Lane. Importantly, this is inconsistent with the anticipated character of the Ewingsdale 1(c2) zoned area, even when compared to those areas where there is a predominance of lots around 2000 sq m. 32 The 15 m x 12 m building platform is also unacceptably close to the Right of Carriageway that provides access to Lot 2. The distance between the edge of the Right of Carriageway and the building platform is in the order of only 5 m. This relationship is also inconsistent with the anticipated character of the Ewingsdale 1(c2) zoned area.

33 Mr Lonergan's evidence that the envisaged pattern of development cannot be achieved and the proper future planning of the area would result in lesser overall density than envisaged because there is no automatic rounding up or down must be rejected. There is no basis for such a proposition in any of the councils planning documents. Such a proposition ignores any constraints on the land that may impact on its subdivision and future use, such as steep topography and a restriction on the site for access. This is a fundamental consideration required by s 79C(1)(c) of the Environmental Planning and Assessment Act 1979 relating to the suitability of the site for the development. 34 I have also given no weight to the use of the proposed planting on the northern and eastern boundaries and the Balraith frontage as a habitat corridor. It is only 3 m wide and there was no evidence to suggest that this area would perform the role of a habitat corridor. I acknowledge that the planting is identified as a "screen planting and habitat corridor" and I accept its sole role is to provide screening between the site and the property owned by Mr Young and Ms Platt. In my view, this supports the unsuitability of Lot 1 when considered against the wider 1(c2) zoned land.

35 For the reasons mentioned in the previous paragraphs, I am not satisfied that the proposed subdivision satisfies the objectives of the development standard.

36 Of those matters raised by Mr Williams from Wehbe, I do not accept that compliance with the density standard would in any way "defeat" or "thwart" the underlying objective or purpose of the standard (Test 3). 37 I also do not accept that that the underlying objective or standard has been virtually abandoned or destroyed by the council (Test 4). Mr Lonergan identified five applications for subdivision within the Ewingsdale 1(c2) zoned area that were approved by the council by rounding up to the nearest whole number of lots. These were within the period 1993 to 1998. Mr Dawson argued that since the adoption of the Byron Rural Settlement Strategy in October 1998 the council has generally been consistent in not supporting variations to cl 11(2)(b). Where subdivisions have taken place, the approvals have been consistent with the identified sites in cl 6.1 of the Byron Rural Settlement Strategy. The undisputed evidence was that the council had not approved any subdivisions within the 1(c2) zoned area since the adoption of the Byron Rural Settlement Strategy (with the exception of these sites identified in this document for further subdivision).

38 I accept that the absence of the site from cl 6.1 of the Byron Rural Settlement Strategy does not preclude an application being submitted to the council for subdivision. However, cl 2A(2) of LEP 1998 requires the Court to have regard this document and as the council has consistently applied the findings of Byron Rural Settlement Strategy, significant weight should be given to the strategic approach adopted for the further subdivision of 1(c2) zoned land. This militates against the support of the proposed variation to the development standard in this application. 39 If the variation to the development standard is tested against those matters previously identified in Winten and Whebe, I accept that variation to the development standard would not be consistent with the aims of SEPP 1. Compliance the development standard would also not tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. Consequently, strict compliance with the development standard is reasonable and necessary in this instance and it follows and that the SEPP 1 objection is not well founded and the appeal must fail.

40 I also find that, pursuant to cl 9(3) of LEP 1998, that the proposed development is inconsistent with objective (c) of the zone, in that it does not maintain a rural character in areas where small holdings are permissible. Orders 41 The Orders of the Court are: 1) The appeal is dismissed. 2) DA 10.2007.636.1 for the subdivision of 24 Balraith Lane, Ewingsdale into 2 lots is refused. 3) The exhibits are returned.

      G T Brown
      Commissioner of the Court

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