Mike George Planning Pty Ltd v Shoalhaven City Council

Land and Environment Court (NSW)|2011-02-25|Before: Mr J, Mr P

Mr P Clay, Barrister (Respondent) Solicitors Peter Prior & Co (Applicant)

RMB Lawyers (Respondent) File Number(s): 10687 of 2010

Judgment 1The applicant is seeking to subdivide into two lots the land known as 37 Malibu Drive, Bawley Point. The village of Bawley Point is on the South Coast about 25 km south of Ulladulla. Proposed Lot 9 is approximately 11.24 ha and proposed Lot 10 is about 711 sq m and this contains the existing dwelling house on the land that was approved in 1998. The total size of the site is 11.31 ha, with a frontage to Malibu Drive of about 31 m and frontage to Murramarang Road of 336 m. 2The land has a dual zoning, the proposed lot 10 with the dwelling house is zoned 2(e) residential/village and the large proposed lot 9 is zoned 7(a) environment protection under the Shoalhaven Local Environmental Plan 1985 (SLEP). Figure 1 shows the subject site in the context of the adjoining zones and figure 2, the proximity of the site to the beachfront. 3The subject land is low lying and predominantly vegetated, containing two endangered ecological communities, that of the swamp sclerophyll forest on coastal plains and the swamp oak floodplain forest. The subject land is surrounded on three sides by residential lots in the Village Zone of Bawley Point. Opposite the subject site to the west of Murramarang Road, the land is zoned rural residential, with a 2 ha minimum allotment size. The land between Malibu Drive and the ocean, there is a beachfront foreshore reserve, zoned as public open space.

Statutory Planning Framework 4The Shoalhaven Local Environmental Plan applies to the subject land. In cl 2, the aims of the plan are: (a)To provide guidelines in accordance with the objects of the Act for orderly and timely development and management of land use in the city; (b)To enhance individual and community well-being and welfare by following a path of economic development that does not impair the welfare of future generations; and (c)To work towards an ecologically sustainable future through the proper management, development, protection, restoration, enhancement and conservation of the environment of the city. 5The objectives of the LEP relevantly include: (o) To ensure the protection of important natural and cultural environments; (p) To protect and enhance scenic and landscape qualities; (s) To avoid mitigate or remedy the adverse effects of development on the environment; (w) To minimise the clearing of native vegetation, especially those local species which are poorly represented in conservation reserves. 6Subclause 3 states that the strategies by which the aims and objectives are to be achieved include: (a)Identifying land use zones and objectives and the type of uses appropriate; (b)Establishing conditions under which subdivision, dwelling houses and other types of development may be carried out in specific zones; (c)Specifying environmental outcomes for certain types of land within certain zones. 7Clause 9 requires, in determining a development application, the council must take into account the aims and objectives of the plan and the objectives of the zone within which the development is proposed. 8The small portion of the land with frontage to Malibu Drive is within the Village Zone known as 2 (e) (Residential E Village Zone). The objectives of the Village Zone are to provide a village lifestyle and a range of residential accommodation and support urban facilities. Development is only permissible with council consent for any purpose other than a purpose for which development is prohibited. Prohibited development includes abattoirs, aerodromes, agriculture, offensive and hazardous industries et cetera. 9The major portion of the site is in zone 7(a) (Environment Protection A Ecology Zone). The objectives include: (a)To protect and conserve important elements of the natural environment, including wetland and rainforest environments; (b)To maintaining the intrinsic scientific, scenic, habitat and educational values of natural environments; (c)To protect threatened species and habitats of endangered species; (d)To protect areas of high biodiversity value; and (e)To protect and enhance water quality in the catchment. 10The following purposes are permissible only with development consent: Agriculture, aquaculture, bed-and-breakfast accommodation, dwelling houses, roads, structures for educational and recreational purposes which assist in promoting and interpreting the areas ecological values, utility installations. 11The definition of bed-and-breakfast accommodation means the use of premises comprised of one or more buildings, for the provision of accommodation and meals to temporary residents on a short term basis, where: (a)The accommodation is for a period not in excess of 21 days; (b)No more than twelve residents including permanent residents are accommodated at any one time; and (c)Only permanent residents of the premises and other part-time employees are employed on the premises. 12The special provisions for subdivision are in part 3 division 1 of the LEP and cl 11 states: applies to the rural zones and the environment protection zones including zone 7(a) Ecology. This clause provides as follows: (1) This clause applies to land within Zone no. 1(a), 1(b), 1(d), 1(e), 1(g), 7(a), 7(c), 7(d), 7(d2), 7(e), 7(f1), 7(f2), or 7(f3). (2) The council may consent to a subdivision of land to which this clause applies if each separate allotment of land that will be created by the subdivision: (a)will have an area of not less than 40 ha; (b)In the opinion of the council will allow the objectives of the zone applying to the land to be met; (c)will have a ratio of depth to frontage satisfactory to the council having regard to the purpose for which the allotment is or is intended to be used; (d)where the allotment has a frontage to a main or arterial road will have a frontage to that road of not less than 400 m; and (e)will have a vehicular access that is practical and lawful. 13Subclause 3 states that the council may grant consent for a subdivision of land to create an allotment of less than 40 ha if the council is satisfied that: (a)The allotment proposed to be created is currently lawfully used for a purpose (other than agriculture, forestry, a dwelling house or dwellings, or tourist accommodation under cl 20) for which it may be used without all only with the consent of the council or will be used for such a purpose before the plan of subdivision or strata plan is registered; (b)The ratio of depth to frontage is satisfactory, having regard to the purpose for which the allotment is intended to be used; (c)Only one lot for each use referred to in paragraph (a) is created; and (d)Where the allotment has a frontage to a main or arterial road the frontage is not less than...400 m; and (e)Each lot has a vehicular access that is practical and lawful. 14Clause 15 requires that land within the 7(a) zone is to have an area of not less than 40 ha for the erection of a dwelling house. 15Clause 22 refers to activities in certain zones and relevantly for the subject zones the provisions of the LEP state: (1) a person must not without the consent of the Council, ring bark, cut down, top, lop or otherwise destroy any tree having a height of 3 meter or more on land within Zone (2) A person must not without the consent of Council on land within Zone No 7 (a): (a) clear the land of trees, (b) place fill upon such land, (c) alter the level of the surface of such land, or (d) clear or remove vegetation from such land. 16Development Control Plan 100 adopts the subdivision code draft amendment 2 of the council. This DCP applies to residential, rural, tourism, industrial, commercial and strata and community title subdivisions. Part 3 of this DCP sets out the procedures for making a subdivision application and one of the requirements is that additional information or report concerning the purpose and detail of the subdivision proposal and how specific problems will be overcome, e.g. flooding. 17The document Planning for Bushfire Protection (PBP) is cited as a relevant document for consideration. 18The proposed subdivision requires an objection to vary the 40 ha minimum subdivision size and therefore State Environmental Planning Policy No 1 - Development Standards, requires an assessment for the variation of this standard.

Evidence 19The Court met onsite with the parties and undertook an extensive site inspection of the subject land and surrounding area. The Court heard from a number of resident objectors to the proposal and the council's bundle also contains a number of written objections that I have considered. 20Concern was expressed by residents about the environmental impact of the proposal, because of the classification of the land as dry wetland, it becomes a soak for water during periods of rain. Concern was expressed that the proposal would impact on the flow of water and create a build up of water that would not escape through the culvert under Malibu Drive. The Court also heard how animals and birds nest in the area and the thirty-seven species of birds includes owls and bower birds in this dry wetland area. Swamp Wallabies have also been observed by residents in this area. The residents raised the issue of a lack of purpose for the subdivision and that there is no reason or justification for varying the 40 ha minimum subdivision size. 21On the inspection, it could be seen that there is a bushfire hazard protection buffer on the subject land behind the residential properties and that the council previously carried out hazard reduction burning to form a buffer that is generally maintained by residents. The residents also advised of water inundation in the rear of their properties and therefore the importance for the dry wetland on the subject land and with the need to keep the drainage culvert under the road clear to prevent future flooding. Concern was expressed that any disturbance to the flow of the creek could have a significant environmental impact on the flow of water and on the remnant forest and other vegetation that lines the banks of the creek. The residents also stated that: "The substantive native vegetation is an important contributor to the environment of all the houses that back on it, we look onto the bush from most parts of our property inside and outside. The Bush that is currently on the property forms an important visual line of trees visible from many points around Bawley Point and these trees make a significant contribution to the environment and help to reduce the impact of the housing built around it that look onto this large area of bush. Any subdivision and building would detrimentally affect the entire neighbourhood and reduce the current environment of Bawley Point." 22On behalf of the respondent council Ms Elizabeth Downing, Senior Development Planner, and for the applicant, Mr Michael George, Consultant Town Planner, gave evidence to the Court. 23The ecologists who gave evidence are Mr Dominic Fanning for the applicant, and Mr Michael Smith for the respondent. The bushfire experts are Mr John Travers for the applicant, and Mr Rod Rose for the respondent. 24In the council's Statement of Facts and Contentions, the contentions in summary are as follows: (1)Clause 11 of SLEP 1989 applies to the subdivision proposal absent a SEPP 1 objection there is no power to approve the application; (2)The SEPP 1objection is not supported; (3)Inadequate information; (4)Public interest. 25The council contends that the subdivision must be for a stated purpose to assess whether the land is capable of supporting the purpose. In this regard, the respondent contends that the development application does not address this fundamental question, and therefore there is concern against what Lot 9 can be used for. The council submits that the Court must be satisfied the purposed us can be supported on the land, which is below the 40 ha minimum subdivision size. 26It was submitted on behalf of the applicant that there is no subdivision of the 7(a) land and therefore cl 11 does not apply, because the subdivision is not of the 7(a) land, and by the subdivision does not change. The subdivision being on the zone boundary that has the effect of excising or separating the village zoned lot from the remainder of the 7(a) land. The future use of the 11 ha parcel, in the applicant's submission, will be the subject of a further environmental assessment, if and when a development application is lodged. 27Mr George is of the opinion that the 7(a) zoning is very restrictive, with a limited number of permissible uses in the land-use table of the LEP. He is of the opinion that it is sensible and logical to separate the residential zoned land from the environment protection, and the subdivision would allow the dwelling house to continue to exist on its own allotment, and the subdivision would allow either parcel to be sold separately. 28Ms Downing considers that the residential lot should be maintained with the 7(a) land to provide a link to ensure proper management. Mr George, on the other hand, considers there is no planning rationale to have the separate zoned areas in the same ownership and as separate entities. This, in his opinion, does not represent orderly and economic development. He comments that the objectors are concerned about ecology and the subdivision will not generate any adverse impacts on the natural environment and furthermore, it will not change the drainage regime, and the asset protection zone provided on the 7(a) land will continue to provide protection for all the residential properties that adjoin the 7(a) land at the rear of their properties. He states that the permissible uses are more likely in separate ownership, a possible purpose for environmentally sensitive sites Mr George stated is " bio banking ", and this would represent orderly and economic use of the land. 29Ms Downing is of the opinion that care must be taken in considering a subdivision and that it is not a line on a plan. Ms Downing considers that the subdivision is for land zoned Environment Protection 7(a) and this has a minimum subdivision size of 40 ha and the proposal is contrary to both the objectives of the zone and the object of the Act. Mr George considers there is no subdivision of the land zoned 7(a) and the provisions are irrelevant, as the 7(a) land will remain as it currently is. Nonetheless, Mr George says that the SEPP 1 objection was submitted on a without prejudice basis. Ms Downing considers that approval of the application is not consistent with the underlying objectives of the 7(a) zone, and the 40 ha standard prevents further subdivision of the land that is already in a fragmented area. 30Ms Downing considers there is inadequate information to adequately assess the application, and accordingly this application is contrary to the objectives of the EP & A Act and the SLEP. Mr George comments that the purpose of the subdivision is to divide the land consistent with the zoning intent, and there is no application for proposed use of Lot 9. On the question of flora and fauna, Mr George comments that this is adequately addressed in the accompanying reports and expert evidence, as are the APZ issues. 31On the question of public interests, the planners disagree. Mr George considers the subdivision reflects the planning intent in the zoning and there is no definable public interest. Ms Downing considers that the application is not in the public interest and it does not ensure the orderly and economic use of the land and that it would set an adverse precedent. 32Both experts agree that the existing deck on the western elevation of the dwelling will need to be removed and Mr George states that this can be done by way of condition. 33Ms Downing raises that additional information is required to assess the application, including no economic justification, suitability of the proposed Lot 9 for development, site constraints and bushfire hazard reduction measures. The respondent considers that the APZ should be within the proposed dwelling house lot and not on the adjoining Lot 9. Ms Downing considers that the associated works of the demolition of the deck and the dwelling upgrade or fire management are works that are beyond the scope of conditions and therefore consent would not be in the public interest. Similarly, Ms Downing is of the opinion that the flora and fauna assessment is inadequate and it would not be in the public interest to forego an appropriate level of assessment of threatened species issues. 34Mr Travers and Mr Rose conferred and agreed on the vegetation to be removed and retained within the APZ, to be in accordance with the Planning for Bushfires 2006 and the standards for asset protection zones. This agreement was shown in a plan form that had the benefit of joint conferencing with Mr Dominic Fanning and Mr Michael Smith, the ecologists.

Findings 35On the question of whether a State Environmental Planning Policy 1 objection to vary the 40 ha minimum standard, as contained in cl 11 is necessary it was submitted on behalf of the applicant that the wording of the clause is that it applies to land within zone...7(a)...and that the subdivision does not affect the size of the land that is zoned 7(a) in any way shape or form as the subdivision is on the zone boundary and as such the provisions of the 40 ha minimum do not apply. On the other hand, the respondent submits that in the absence of a SEPP 1 objection there is no power to approve the application, as subcl 11 subcl 2(a) requires a minimum area of 40 ha. The parties referred the Court to previous decisions of this Court in Hood Rural Resources Pty Ltd v Bathurst Regional Council [2009] NSWLEC 1366 and Sealark Pty Ltd v Shoalhaven City Council [2002] NSWCA 39, a judgment of the Court of Appeal. However, many of the facts in these matters, are not parallel to the appeal before me. 36In my determination, the construction of this clause in secondary legislation requires a commonsense approach to the words and I accept the respondent's submission that a SEPP 1 objection is necessary. The whole of the land the subject of the subdivision application, in this case the land zoned 2(e) and 7(a) is subject to the provisions of clause 11. It is not unusual for parcels of land to straddle zone boundaries and indeed the evidence supports this. Many parcels or holdings of land have two and in more limited cases more than two zones and the provisions of clause 11 when referring to the land prior to subdivision must apply to the total land and not the individually zoned parts. In my determination the land that is zoned for the large part 7(a), with a small portion zoned village/residential cannot be construed to exclude those portions of the land that are not entirely within one of the zones enumerated in subcl 1. Reference to the land must be before the subdivision is created, that is, the whole of the parcel of land sought to be subdivided and in this case, the land zoned both 7(a) and 2(e) village. The terms of clause 11 should not be interpreted to apply after the creation of the subdivision. The fact that the proposed subdivision boundary aligns with the zone boundary, does not exempt a consideration of a variation under SEPP 1. 37As such, as a threshold question I must assess the development application on the basis of the need for a SEPP 1 variation. The applicant provided a SEPP 1 objection in the event of the Court considering it to be necessary and this is contained in the Council's bundle of documents at tab 4. 38As cited above, cl 11 (2)(b) states, in the opinion of the council/Court, whether the objectives of the zone applying to the land will be met. The proposed subdivision will have the effect of providing two parcels/lots. Proposed lot 9 the 11.24 ha in zone7(a) , and proposed lot 10 of some 700 sq m.lot in zone 2(e). 39While there is no stated purpose or objective of the 40 ha minimum development standard, the underlying purpose or objective has the benefit of the fact that subcl (b) of cl11 refers to the objectives of the zone applying to the land and therefore the objectives of the standard can be informed by the objectives of the 7(a) zone cited above, that it is: (a)To protect and conserve important elements at the natural environment, including wetland rainforest environments; (b)To maintain the intrinsic scientific, scenic, habitat and educational values of natural environments; (c)To protect threatened species and habitats of endangered species; (d)To protect areas of high biodiversity value; and (e)To protect and enhance water quality in the catchment. 40I note Ms Downing in the joint Statement of Evidence states the underlying objective as protection of the environmental qualities of the land. 41The judgments of this Court on the approach to a SEPP 1 variation are set out in the authorities of Wehbe v Pittwater Council (2007) 156 LGERA 446 and Winton Property Group Ltd v North Sydney Council (2001) 130 LGERA 79. The case of Wehbe was for subdivision and the Chief Judge stated, " upholding of the SEPP 1 objection is a precondition which must be satisfied before the proposed development of subdivision can be approved on a consideration of the merits ." 42The SEPP 1 Policy under cl 3 provides flexibility in the application of planning controls where strict compliance would in any particular case be unreasonable or unnecessary, or tend to hinder the attainment of the objects specified in s 5 of the Act. 43The underlying purpose of the 40 ha standard is to protect and conserve the environment including endangered species and habitats. The current use of the land is the dwelling house approved in 1998 that was erected on that part zoned residential 2(e) village. That is, the parcel of 700 m now proposed to be excised as a separate lot with frontage to Malibu Drive. It is agreed between the parties that the 7(a) portion contains environmentally sensitive land and it could be seen from the site inspection the proposed lot for the dwelling has the characteristics of the adjoining residential village parcels. 44On the basis of all the evidence to the Court, including that of the experts and the site inspection, I am satisfied the underlying purpose of the 40 ha standard is satisfied by the proposed subdivision, and strict compliance is both unreasonable and unnecessary. The subdivision satisfies the underlying objectives and purpose of the 40 ha development standard to protect and conserve important elements of the natural environment including wetlands and to maintain the intrinsic ... values of natural environments and to protect threatened species and habitats. The subdivision does not impact on the environmental qualities of the land zoned 7 (a). 45I do not accept Ms Downing's opinion that the excision of the dwelling lot from the remainder of the land will fragment the subject land potentially sterilizing lot 9. In the circumstances of this case in my assessment of the subdivision under SEPP 1 it is not necessary to nominate a use or purpose for lot 9. A potential purchaser would be aware of the permissible land uses being limited on the 7(a) land and other relevant clauses, in particular clause 22(2) would not raise unrealistic expectations. This is not a case where the land is zoned residential and the environmental constraints are such that following subdivision the land would not be capable of accommodating a dwelling. 46The object of the Act " the promotion and coordination of the orderly and economic use and development of land ", By not severing the residential component from the 7(a) portion by the subdivision, in my assessment this would tend to hinder the attainment of this object. The value of the 7(a) land could be in its non-use and I do not accept that a purpose needs to be identified for the consideration of the SEPP 1 variation. In my assessment allowing the subdivision does not sterilize the land and the non-use of the land for environment protection conservation would recognize it intrinsic values. The value of the land is not necessarily in terms of development as traditionally accepted, and the attributes of the land may be of much greater value by forgoing exploitation for development. Indeed the 7(a) zoned lot could accrue greater economic advantage in terms of its conservation or carbon credit value, or as an offset for development of other lands, to allow the continued conservation of the subject 7(a) land. I do not accept that retaining the 7(a) land with the residential lot provides for the proper management of the whole of the land, and indeed the subdivision may allow for greater benefits to the community, consistent with the objects of the Act. 47In my assessment this small residential lot attached to the large parcel of 7(a) zoned land would tend to hinder the attainment of the objects of the Act. In my assessment the residential lot does not provide a nexus to the proper management of the 7(a) land and will not lead to fragmentation of the 7(a) land. 48In my assessment under SEPP 1, the subdivision would not create unreasonable expectations for the development of the 7(a) land and indeed serve the objects of the zone in conserving the habitat and communities of intrinsic value found on the land. Subdivision of this land may not lead to development or use in the traditional sense of exploitation and consumption as defined in the Macquarie dictionary. 49In the circumstances of this case the underlying objectives of the 40 ha standard are satisfied and the standard is unreasonable and unnecessary in the circumstances of this case. In terms of clause 8 of the SEPP 1 Policy the non-compliance does not in my assessment raise any matter of State or Regional environmental planning and in granting concurrence the public benefit is maintained. 50While the SEPP 1 assessment coincides with a merits assessment nonetheless I have separately considered the need for a merits assessment under s79C of the Act and the proposed subdivision is satisfactory and there are no reasons to warrant its refusal. I am satisfied the subdivision does not impact on the environment of the 7(a) land and future use or activities will be the subject of further development applications requiring environmental studies and the residents concerns about the environmental impact of future uses will be considered at that time. The subdivision itself will not in my assessment give rise to environmental impacts or create expectations for future owners as the permissible uses do not change by the subdivision. 51The issue of precedent is also not a reason for refusal in the circumstances of this case. I accept that precedent in itself may be reason for refusal, however, given the individual facts and merit of this application I am satisfied that this would not warrant refusal. 52I am also satisfied that there is sufficient information to assess the subdivision application. The requirement for an APZ is addressed by a covenant and I also note the need to maintain a buffer for other residential lots adjoining the 7(a) land.

Orders 53Accordingly, based on my assessment above, the orders of the Court are: (1)The appeal in respect of the land known as 37 Malibu Drive Bawley Point is upheld; (2)The objection under State Environmental Planning Policy No 1 to vary the 40 ha minimum standard contained in clause 11 (2) of the Shoalhaven Local Environmental Plan 1985 is allowed. (3)The development application submitted to Shoalhaven City Council as amended for the subdivision of the above land into two lots is granted approval, subject to the conditions in annexure A; (4)The exhibits are returned to the parties, with the exception of: exhibit A, the subdivision plan, and the conditions in exhibit 12. J S Murrell Commissioner of the Court FIGURE 1 FIGURE 2 ANNEXURE A 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. Decision last updated: 28 June 2011

(2007) 156 LGERA 446

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Judgment (7 paragraphs)

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Cases Cited (4)