Lovrencic and Ors v Wollondilly Shire Council

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No. 1 Wollondilly Local Environmental Plan 1991

Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 CASES CITED: Wehbe v Pittwater Council [2007] NSWLEC 827 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472

DATES OF HEARING: 17 May 2010 and 18 May 2010

APPLICANT Mr C Gough (solicitor) SOLICITOR Storey and Gough LEGAL REPRESENTATIVES:

RESPONDENT Mr I Hemmings (barrister) SOLICITOR Hones Lahood Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10891 of 2009 Ante Lovrencic, Finka Lovrencic, Brank Brcic and Ivana Brcic v Wollondilly Shire Council This determination was given extemporaneously and has been edited prior to publication

JUDGMENT 1 The applicant in these proceedings is seeking to subdivide land into two allotments where there is an attached dual occupancy erected. The subdivision is to provide separate Torrens title for each lot. 2 The subject property is known as 29 Greenhills Drive, Silverdale. The depth of the property is some 100 metres with a 40-metre frontage to Greenhills Drive yielding approximately 4,000 square metres. The proposal is for the subdivision to create two lots, one of approximately 17.5 metres in width to the street and the other 22.5 metres width to the street. The rear boundary dimensions are similarly reversed such that each lot would attain a site area of 2,000 square metres. 3 By way of background, the council granted consent to the attached dual occupancy development in 2004. The subdivision for the residential estate comprising 4,000 square metre lots was around the year 2000.

4 It is a rather curious manner in which the approval was granted for the subject dual occupancy but nonetheless there has been no challenge to the validity of the consent and it has not been declared invalid. Exhibit 5, contains a number of approvals whereby dual occupancies would appear to have been approved either by virtue of what is known as cl 15 of the Model Provisions or draft amendment 29 to the LEP. .This exhibit also shows the location of where dual occupancies have been approved. 5 At the time that the development application was submitted to the council for the dual occupancy development it was accompanied by a Statement of Environmental Effects that supported the dual occupancy development stating that it could be accommodated on the subject land. The SEE also recognised that subdivision is not permissible for dual occupancy development. 6 The Court had the opportunity of carrying out a site inspection in the presence of both the parties and then returned to Court the day of the hearing. 7 For the applicant, evidence was given by Mr David Bobinac, a consultant town planner and for the respondent council, evidence was given by Mr Grant Rokobauer. 8 The difference between the planners is that Mr Rokobauer considers that the proposed development should not be approved and that the SEPP 1 objection is not well founded because the development is contrary to the objective or underlying objective of the development standard. There is no dispute that the 4,000 square metres is a development standard. 9 Mr Bobinac is of the opinion that the overarching objective is to ensure the retention of the rural residential character and another interrelated purpose behind the clause is to ensure that each newly created lot is adequately dimensioned and sized to ensure a compatible and sympathetic dwelling can be constructed, and that adequate services can be provided. 10 It is noted that Mr Bobinac considers that the proposed subdivision is merely a line drawn on a map. The built form will remain unchanged and in his opinion because of this, the character of the existing rural residential area will not be affected and it will not have any additional environmental impacts than the existing dual occupancy development. 11 Before I go into the assessment of the SEPP 1 objection, which is a precondition to development consent or what is often referred to as threshold question. I will outline the planning regime in the Wollondilly Local Environmental Plan of 1991 the site is zoned rural small holdings. The objectives of the zone are: "(a) to accommodate demands for a rural residential use and confine this form of a development generally to land not being of prime crop and pasture potential or to places where services are available. (b) to ensure development is carried out in a manner that minimises risks, flooding, erosion, et cetera and does not detract from the scenic quality of the area and (c) to provide for such community uses as are necessary. (d) to ensure small holdings zones are not sited in localities that have been identified for future residential expansion." 12 The objectives of the zone must be taken into consideration in granting consent as required by cl 10.3. 13 I note that granny flats are prohibited development, as are multiple dwellings. There is no definition for dual occupancy as such and in this LEP dual occupancies are generally considered as multiple dwellings. The definitions for multiple dwellings, granny flats were cited.

14 Multiple dwelling means two or more dwellings on an allotment of land but does not include a dwelling house that contains a granny flat. The draft Wollondilly Local Environmental Plan 1991 Amendment No. 29 was furnished to the Court and the aim of this plan was to amend the Wollondilly Local Environmental Plan to permit granny flats and attached dual occupancies within the rural water catchment and environmental protection zones of the Shire. It is noted that cl 41, for dual occupancy housing subcl(3) states: "That within zones 1A including 1C13, that nothing in this plan permits the subdivision of dual occupancy housing, which would enable each dwelling to exist on its own separate allotment." 15 However the above draft amendment, while it was exhibited, it was not gazetted or made. The council planner's report for the original 2004 development consent, refers to the Amendment 29 in recommending approval for the development application for the dual occupancy development in 2004. 16 This is not a matter for the Court to enter into any discussion about how the approval for the dual occupancy that currently exists on the subject site was approved under a draft amendment. The dual occupancy development on the subject site is sympathetic to and in harmony with other dual occupancy developments and other large dwelling houses in the area. A requirement is that dual occupancies reflect a single dwelling appearance and this is what the subject building on the land does. 17 The estate has over the last decade and recently been developed with large dwelling houses sitting on large parcels of land with generous setbacks to the street and with very large rear yards. The setbacks to the street are approximately 18 to 20 metres as and the rear yards or the rear gardens are extremely large, reflective of this rural residential area.

18 There are a number of zones within the Wollondilly LEP with different minimum subdivision sizes and in this regard I note that the subdivision sizes for the 1C(1) zone is 2 hectares, the 1C1(2) zone is one hectare and the subject zone of 1C1(3) is 4,000 square metres. As such the plan provides for a variation in allotment sizes in the different zoning precincts within the local government area. I also note that the subdivision size for the residential zones is some 900-plus square metres. 19 The draft Wollondilly Local Environmental Plan, I understand, is advanced and has been exhibited and was to be considered by the council at its meeting last night before being referred to the Department. 20 The draft LEP, a relevant matter for consideration, provides for a number of rural zones in accordance with the template provided by the Department of Planning. The subject site is within what is known as zone R5, that is large lot residential and this permits with consent dwelling houses and residential accommodation. I will go to the definition of 'residential accommodation' shortly. The zone prohibits attached dwellings, as currently erected on the subject site, and multi-dwelling housing. 21 Clause 4.6, in the draft LEP contains a number of development standards including minimum subdivision lot sizes. The exceptions to development standards are in cl 4.6, which is to provide for appropriate degree of flexibility in applying development standards, not dissimilar to the provisions of SEPP 1. 22 Subclause 6 of the draft plan states that: "Consent must not be granted for a subdivision of land in the R5 zone that will result in two or more lots of less than the minimum areas specified for such lots by development standard or the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by development standard."

23 The definition of 'residential accommodation' appears in the plan as follows: "A building or place used predominantly as a place of residence but does not include tourist or visitor accommodation." 24 The other definition that is of relevance is 'secondary dwelling' and there are special provisions for secondary dwellings within the draft LEP that include, for example, "it cannot be greater than sixty square metres or twenty per cent of the main dwelling on the subject site." 25 The only other control raised during the proceedings is that contained within DCP 36 Development in Rural Areas. For subdivision the LEP restricts the subdivision of land in rural zonings and whether a proposed subdivision is permissible, depends upon the zoning. The minimum size of lots, which can be created, varies within each zone. "The first step is to identify the zoning of the site, ascertain if the proposed subdivision is permissible and rural allotments should have a frontage to depth ratio not exceeding 1:2.5 and hatchet-shaped allotments will only be allowed where conventional subdivision is not practicable." 26 The Court has considered the planning regime and the provisions contained therein. The applicant is of the opinion as I stated, this is "merely a line on a map," however this is an over simplification. 27 From the site inspection, it could be seen that the area has a distinctive character of relatively large dwellings on large allotments of 4,000 square metres. In terms of the standard, that is, the 4,000 square metre standard, Mr Rokobauer states that: "The intention of the subject development standard is primarily to ensure a specific character is created and maintained within the zone."

28 Before I go further into the evidence of the parties, first of all, I will briefly put on the record the contentions raised by the council. The contentions include that the proposal is prohibited by cl 45 of the LEP and a separate sewerage management system is required for each allotment. I note that the applicant has provided an amended waste management plan and whilst the council has not had the opportunity of assessing same, this is a matter that could be addressed if the Court was minded to grant consent. 29 The second contention is that no arrangement satisfactory to the Water Board, similarly this matter that can be conditioned. 30 The third contention is that the proposed lots are considerably undersized that is, 2,000 as opposed to 4,000 square metres. 31 The fourth contention is that the SEPP 1, objection is not well founded and should not be upheld as the objection has not demonstrated the proposal is consistent with the underlying purpose of the standard. It is further contended the proposal is inconsistent with cl 12 of the LEP and the applicant has not demonstrated that compliance with the standard is unreasonable or unnecessary. 32 Contention five, is the proposal is inconsistent with the draft Wollondilly LEP, in particular the minimum allotment size and the fact that consent shall not be granted for subdivision for two or more lots less than the minimum specified. 33 Contention six, is that the proposal does not comply with the DCP No. 36, that is the ratio of width to depth, 1:1.25. The other contentions are proposals not in the public interest and it will have a precedential effect for other similar variations to the 4,000 square metre lot size. 34 As this is an extempore judgment I will say at this point that on my assessment of the SEPP 1 objection to vary the minimum allotment size I have decided that the application does not warrant approval as I am not satisfied that the objection is well founded. I am not satisfied that the minimum allotment size of 4,000 square metres is unnecessary or unreasonable in the circumstances of this case. 35 It is agreed clause 12(2) of the LEP does not contain explicit objectives or a purpose for the minimum allotment size of 4,000 square metres. As such the underlying objective or purpose is addressed. The applicant's planner is of the opinion that "the overarching objective is to ensure the retention of the rural/residential character of Rural Zone No 1 (c1) (iii), small holdings zone. Another interrelated purpose behind the clause is to ensure each newly created allotment is adequately dimensioned and sized to ensure a compatible and sympathetic dwelling can be constructed and adequate services provided." 36 The respondent's planner agrees that "the intention of the development standard is primarily to ensure a specific character is created and maintained in the zone". In this regard he states that "the allotment size is critical in establishing character within a particular zone . In this particular case that arises form the need for allotment depth and width to achieve the character in the zone." The officer's report states "a uniformity of character primarily through lot size within that zone from taking on an urban type residential character. …It is further necessary to consider the precedential impact approval of this application may have …it would encourage …result in significant cumulative impacts on rural character both in the locality and further…". 37 The applicant considers that there is no environmental impact, however, no environmental impact or an absence of environmental harm is not a reason as to why a SEPP 1 objection should be upheld. Similarly, the extent of a variation should not be the focus. The test is the underlying objective of the standard. While the built form will not change by virtue of this subdivision, with a line through the middle of the building to provide a dwelling on each separate lot, however, this may change in the future if the subdivision is approved. As such the underlying purpose of the standard to maintain the character of this rural residential area would not be satisfied. 38 In terms of orderly and economic development, I do not accept the applicant's submission, that is because the area is specifically zoned for rural residential holdings and it can be seen from the subdivision plan that while there is some variation in terms of the ratio of width to depth, the area has generally been subdivided into allotments of 4,000 square metres. The building on the subject lot was erected at the time when it was clear that subdivision could not take place. And therefore in terms of orderly and economic development, I do not accept this as a reason for a variation to the standard. 39 In the council planner's opinion the lot width effects the style of dwelling that is likely to be constructed, and clearly, we can see that the style of dwelling on the subject allotment is in character and appropriate. However, the subdivision is one that would be more than a line on a map. The regular shaped allotments are generally reflective of the character of the area. The 4000 square metre size of allotments is also reflective of what can be carried out on and what are the expectations for rural residential development in this zone. Clearly, there is an expectation with a minimum allotment size of 4,000 square metres and this also dictates the character of the area. 40 Reducing or halving the width of the allotment from 40 metres to twenty metres, is also not consistent with the character of the area. It was seen on the inspection, and the applicant has agreed to and indeed there is a covenant, for fencing to be of a 'rural type'. However, if subdivided and in order to achieve privacy between the narrower lots by the individual owners there could reasonably be the creation of hedges or screening vegetation to overcome the open nature of the rural fencing restriction and this would not provide the same character and amenity in an the area where the subdivision pattern is generally for 4,000 square metre lots. 41 There are some ten allotments in the vicinity that we could see, and there would be others in the broader rural residential areas, whereby applicants could seek to invoke the approval of this development for the purposes of changing standards and this precedential effect in my opinion is one that would not be in the public interest and not consistent with the provisions of State Environmental Planning Policy 1. 42 The parties referred the Court to the judgment of the Chief Judge of this Court, in Wehbe v Pittwater Council [2007] NSWLEC 827 and there are a number of ways in which a SEPP 1 objection can be considered. And the underlying purpose of the standard is one way of seeking such a variation. 43 I must have regard to the provisions of the SEPP itself, which in terms of clause 3 allows for flexibility where strict compliance would be unreasonable or unnecessary or tend to hinder the attainment of the objects of the Environmental Planning and Assessment Act. However, in the circumstances of this case I have not been persuaded that the standard of 4,000 square metres is unreasonable or unnecessary. 44 The applicant in this case, objects to compliance with the development standard because it prevents the applicant maximising the potential for development of the land for two dwellings. 45 The applicant's approach appears to be based on the assumption that there is no development standard and to use that justification as the basis for its SEPP 1 objection. This is to invert and reverse and reasoning process required under SEPP 1 as described by the Chief Judge in Wehbe at paragraph 84. 46 In my assessment, the application does not warrant approval under SEPP 1 and in this regard it fails. The applicant seeks to justify the subdivision on the basis of the regularisation of the existing development on the subject site. The existing dual occupancy development and the fact it was approved is a circumstance of the case. However, the planning controls clearly contemplated at the time this form of development but did not contemplate subdivision of same. 47 I consider that the proposal is not only inconsistent with the underlying objective or purpose of the standard I am of the view on a merits assessment that it is an undesirable precedent in terms of Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 a judgment by his Honour, Lloyd J. 48 It was submitted on behalf of the respondent that if the somewhat irregular approval for a dual occupancy is a concern to the applicant then a building certificate could be sought with a similar result. 49 In terms of a merit assessment I am of the opinion that the expectations of owners of properties within this area is that lots be of a size to not only accommodate a dwelling and effluent disposal but open space for a range of outdoor activities with the privacy afforded by large 4000 lots. And the proposed subdivision would be an aberration in terms of the general subdivision pattern of this rural residential area. 50 This is not a case where the council has previously varied the minimum allotment size and consistency in decision making is an important matter in the determination of development applications as reflected in the judgment of Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472. 51 Similarly, the consistency with which council have implemented their standards is important in terms of providing certainty for future applicants and I am of the opinion that individually and on its own the SEPP 1 objection should not be upheld and secondly, the precedential effect is one that may invite further applications which cumulatively would lead to an undermining of the development standards where, in particular, there has been a range of minimum subdivision sizes both in the rural and residential areas to accommodate various lifestyles.

52 In summary I have determined the proposed subdivision is not in character with the area. Furthermore, I am of the opinion that the subdivision would be an undesirable precedent. 53 Accordingly, on the basis of my assessment above, the Court Orders are: 1. The appeal in respect to 29 Greenhills Drive, Silverdale is dismissed. 2. The State Environmental Planning Policy objection to vary the minimum allotment size from 4,000 to 2,000 square metres is not allowed. 3. The development application for subdivision of the subject land into two parcels is determined by the refusal of consent. 4. The exhibits with the exception of A and G are returned to the parties.

      J S Murrell
      Commissioner of the Court
      ljr

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