Precise Planning v Wollondilly Shire Council & Anor - [2005] NSWLEC 339 - NSWLEC 1986 case summary — Zoe

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Precise Planning v Wollondilly Shire Council & Anor

[2005] NSWLEC 339

Land and Environment Court (NSW)|1986-06-02|Before: Pain J, Cripps J

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Source facts

Court

Land and Environment Court (NSW)

Decision date

1986-06-02

Before

Pain J, Cripps J

Source

Original judgment source is linked above.

Judgment (35 paragraphs)

[1]

Background 4 The site is zoned 7(c) (Environment Protection "C" (Rural Living) Zone) under the Wollondilly Shire Local Environmental Plan 1991 ("the LEP"). The surrounding lots are all located within Zone No 7(c) and are used primarily for rural residential purposes. 5 There are four general localities that contain land zoned 7(c) widely dispersed around Wollondilly Shire, as is clear from the Wollondilly Shire road map in Exhibit E. The four areas are the localities of Werombi - Theresa Park - Orangeville, Brownlow Hill, Menangle and Razorback and Pheasants Nest. None of the areas are contiguous.

[2]

6 A development application for the site was lodged by the Applicant on 21 August 2003. The development application involved the subdivision of the site into two residential allotments. Proposed lot 1 comprises an area of 2.29ha and contains an existing dwelling. Proposed lot 2 is vacant and comprises an area of approximately 4.1ha. The Applicant lodged a SEPP 1 objection seeking variation to development standards contained in the LEP. The SEPP 1 objection proposed a variation to the density development standard which outlines the minimum area for allotments in Zone No 7(c). The SEPP 1 objection made by the Applicant provided that: It is considered that the minor variation to the development standard contained in Clause 13B(1)(a) of the WLEP should be supported, because it is consistent with the aims of the SEPP 1 policy, the objects of the EPA Act, the relevant aims and objectives of WLEP and the 7(c) zone and would appear to create a negligible impact on the natural environment and the landscape character of the area. Further, in order to achieve consistency in decision making, the application should be supported because it is very similar in all relevant respects to other applications in the immediate vicinity which have been supported and approved.

[6]

Wollondilly Shire Local Environmental Plan 1991 11 Clause 2 of the LEP sets out the aims of the LEP as follows: (a) to consolidate the provisions of the Wollondilly Planning Scheme Ordinance and other deemed environmental planning instruments and local environmental plans within a single local environmental plan; and (b) to simplify planning controls within the Shire of Wollondilly; and … (d) to conserve the environmental heritage of the Shire of Wollondilly; and (e) to integrate heritage conservation into the planning and development control processes; and (f) to provide for public involvement in the matters relating to the conservation of the Shire of Wollondilly's environmental heritage; and … (h) to ensure that development does not compromise the protection and maintenance of water quality within water supply catchment areas; and … (j) to reduce the incidence of rural land use conflict by introducing appropriate planning controls; and (k) to introduce planning controls to protect and maintain areas of significant agricultural production; and (l) to ensure that agricultural uses are considered to be equally as important as urban and rural residential uses; and (m) to maintain the rural natural landscape character of the Wollondilly local government area by providing a balance between agricultural and other land uses (Amendment No 11-20/9/96); and (n) to provide for rural residential living opportunities which are compatible with the capability of the land; and … 12 Clause 10 of the LEP sets out the zone objectives and development control table. Clause 10(3) states: Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out. 13 The objectives of Zone No 7(c) (Environment Protection "C" (Rural Living) Zone) are as follows: (a) to provide for rural living opportunities (b) to encourage the preservation of the rural landscape character by ensuring that development is compatible with that character (c) to ensure that land degradation does not occur and that the water quality of receiving streams is protected (d) to maintain existing significant stands of indigenous vegetation 14 Clause 13B of the LEP provides: (1) The council may consent to a subdivision of all or part of an original holding consisting of land within Zone No. 7(c), or of land partly within that zone and the residue of which is within Zone No. 1(b), only if: (a) the total number of lots into which the original holding will be divided after the subdivision will not exceed the number obtained by dividing, by 4, the area (in hectares) of the original holding that is within Zone No. 7(c) only, the dividend being rounded down to the nearest whole number; and (b) none of the allotments to be created by the subdivision will have an area of less than 2 hectares. Wollondilly Rural Living Development Control Plan 15 Part A.4 of the Wollondilly Rural Living Development Control Plan ("the DCP") lists the following objectives which need to be taken into consideration for rural living development.

To implement the Objectives of Wollondilly Local Environment Plan, 1991.
To provide guidelines for the development of lands zoned Environmental Protection Rural Living within the Wollondilly LGA.
To ensure that Rural Living Developments are integrated with the landscape of the surrounding area taking into consideration land capability.
To ensure subdivision potential is compatible with the capability of the land.
To ensure that sites proposed for Rural Living purposes have a suitable building site, taking into consideration accessibility, as well as the risk of damage by a bushfire, flooding or land slip.
To ensure that the design and materials of new buildings are compatible with the natural surrounds of the area and the general character within each locality.
To minimise land use conflict.
To ensure dwelling houses are provided with an approved effluent disposal system.
To maintain existing stands of natural vegetation. Issues 16 The issues in this matter raised by DIPNR are as follows:
The SEPP 1 objection to the provisions of cl 13B(1)(a) of the LEP does not demonstrate that the standard is unreasonable or unnecessary;
The proposed subdivision would, as a precedent, contribute to a substantial increase in density beyond that intended by the standard contained in cl 13B(1)(a) of the LEP;
The proposed variation to the requirements of cl 13B(1)(a) will result in an impact of regional environmental planning significance, in that it will set a precedent for other such variations throughout Zone No 7(c) and result in a cumulative impact on the character and land use within Zone No 7(c).

[8]

18 In their joint report Mr Hume and Mr Goodyer agreed on several points in relation to Issues 1, 2 and 3: (i) That cl 13B of the LEP provides for the creation of allotments down to a minimum of 2ha so long as the overall density achieved is a maximum of 1 per 4ha; (ii) That the underlying purpose of cl 13B(1)(a) of the LEP is to allow the subdivision of land to occur within Zone No 7(c) at a level of density which retains the overall integrity of the landscape and scenic attributes of the area whilst promoting the objectives of the Zone No 7(c) that are relevant to a subdivision; (iii) In terms of precedent and cumulative impact the particular expression of the development standard at cl 13B(1)(a) is not one which is expressed for subdivision of land in other zones; (iv) That the extent of the variation as expressed as a percentage difference between the area of the original holding and the area required to achieve strict compliance is 7.3 per cent; (v) That they were not aware of DIPNR refusing concurrence to previous SEPP 1 objections to cl 13B(1)(a) of the LEP in relation to the subdivision of Zone No 7(c) land at Pheasants Nest; (vi) That the previously approved variations, when combined with this proposed subdivision, would not cause the overall density to exceed 1 dwelling per 4ha; (vii) That further subdivision in a manner consistent with the current application would not cause the overall density to exceed 1 dwelling per 4ha; (viii) On its own the proposed subdivision would be consistent with objective (a) for Zone No 7(c) of providing for rural living opportunities; (ix) On its own the proposed subdivision would be consistent with objectives (b) and (d) for Zone No 7(c) of encouraging the preservation of the rural landscape character and the maintenance of existing significant stands of indigenous vegetation; (x) On its own the proposed subdivision would be consistent with objectives (c) for Zone No 7(c) to ensure that land degradation does not occur and that the water quality of receiving streams is protected.

[13]

23 Mr Hume also disagreed with Mr Goodyer's view that a study of regional impacts is necessary to assess cumulative impacts. The approach suggested by Mr Goodyer is akin to a Local Environment Study process which in Mr Hume's view is beyond the intended scope or purpose of SEPP 1. Mr Hume considered that the LEP making process resulting in Zone No 7(c) has resulted in the setting of parameters aimed at creating the desired level of density of development. On this basis, Mr Hume is of the view that the cumulative effect of allowing the now proposed subdivision together with those already approved would be satisfactory given its minor impact. DIPNR's submissions Issue 1 - unreasonable or unnecessary 24 DIPNR submitted that the SEPP 1 objection to the development standards in cl 13B(1)(a) of the LEP does not demonstrate that the standard is unreasonable or unnecessary. DIPNR submitted that the subject site had no particular attributes or characteristics that identified it as appropriate to use SEPP 1 to vary the development standard in cl 13B(1)(a). In making this submission, DIPNR argued that the Applicant's SEPP 1 objection did not satisfy the tests in Hooker Corporation Pty Ltd v Hornsby Shire Council (Cripps J, NSWLEC, 2 June 1986, unreported) and Winten Property v North Sydney Council (2001) 130 LGERA 79. Issue 2 - precedent 25 DIPNR submitted that as the SEPP 1 objection is not reliant upon particular attributes or characteristics of the site or upon a unique feature, the development application has the potential to create an undesirable precedent which may give rise to unacceptable cumulative impacts. This is because: (i) the reasons relied upon to support the SEPP 1 are equally applicable to many other sites in the locality; (ii) the approval of this SEPP 1 will be likely to give rise to other applications under SEPP 1 on other sites relying on the same grounds; and (iii) the development standard was developed for the whole zone after considering the impacts upon the whole zone from development undertaken in accordance with the development standard. The development standard was formulated after considering comprehensive studies. Issue 3 - cumulative impact 26 DIPNR argued that cumulative impact was required to be taken into account in SEPP 1 objections by virtue of the objects of the EP&A Act contained in s 5(a) (i) and (ii) which are called up by cl 3 of SEPP 1. In accordance with the views of Mr Goodyer, DIPNR submitted that the cumulative impacts of SEPP 1 variations need to be considered in the context of the whole of Zone No 7(c), not merely the Pheasants Nest locality. DIPNR submitted that what the Applicant sought to do was to avoid the effect of the development standard contained in cl 13B(1)(a) of the LEP and effect a general planning change. DIPNR argued that in order for the SEPP 1 variation to be allowed, further studies were necessary to determine the cumulative impacts of allowing the development in the zone.

[20]

Issue 3 - cumulative impact 34 The Applicant argued that if the Court were minded to accept the submissions of DIPNR in relation to cumulative impact, a regional environmental study would be necessary to support all SEPP 1 objections. The Applicant argued that this would render the application of SEPP 1 in relation to land zoned 7(c) inoperable as a practical matter. Finding 35 The parties agreed that the applicable law in relation to the approach to SEPP 1 is that contained in Hooker and Winten but disagreed as to how the law applies in the circumstances of this case. Hooker stands for the principle that there must be more than an absence of environmental harm to justify the departure from a development standard under SEPP 1. 36 In Winten, Lloyd J at [26] commenting on Hooker stated: In applying the abovementioned judgment, it seems to me that SEPP No 1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the policy, and in particular, does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EP&A Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? (In relation to the fourth question, it seems to me that one must also look to see whether a development which complies with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case.) Fifth, is the objection well-founded? Criterion 1 - Is the planning control in question a development standard? 37 It is agreed that cl 13B(1)(a) of the LEP is a development standard. Therefore the first criterion in Winten is answered. Criterion 2 - What is the underlying object or purpose of the standard? 38 There is agreement on the underlying purpose by the expert town planners as follows: The underlying purpose of the development standard at cl 13B(1)(a) of Wollondilly Local Environmental Plan 1991 (LEP 1991) is to allow the subdivision of land to occur with Zone No. 7(c) at a level of density which retains the overall integrity of the landscape and scenic attributes of the area whilst promoting the objectives of the 7(c) zone that are relevant to such subdivision. The second criterion in Winten is therefore agreed.

[22]

Precedent/cumulative impact 40 DIPNR argued that cumulative impact is required to be taken into account in SEPP 1 objections by virtue of the objects of the EP&A Act in s 5(a) (i) and (ii) which are called up by cl 3 of SEPP 1. The Department of Planning's Circular B1 dated 17 March 1989 states: It is also necessary to assess the likelihood of similar application being made to vary the standard in the locality. Councils should consider whether the cumulative effect of similar approvals will undermine the objective of the standard or the planning objectives for the locality. If the council considers that it will do so, the application should be refused or a decision should be made not to approve others like it. It is therefore relevant to consider this issue under the third Winten criterion. 41 Although the issue of precedent and cumulative impact were considered separately in argument and in the stated issues, they are clearly intimately connected as the primary reason why precedent is of concern is that one decision will lead to later decisions resulting in developments having adverse cumulative impacts. I therefore intend to deal with these two issues together. 42 Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 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. 43 In Goldin Lloyd J analysed a number of decisions following Emmott which considered the issue of precedent in planning appeals. He notes at [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. 44 Applying Goldin to the slightly different circumstances before me, I accept that setting an adverse precedent through approval of a single application that is otherwise not objectionable, but is likely to lead to other approvals giving rise to adverse cumulative impacts, is a relevant matter to consider in relation to a SEPP 1 objection. The Department of Planning's Circular B1 clearly raises the need to take into account potential cumulative impacts when considering SEPP 1 objections. 45 In opening, the Applicant relied on two aspects of the proposed subdivision as having environmental benefits. Firstly, the proposed subdivision would implement a weed management system and, secondly, the proposed subdivision would provide an additional lot for rural living in accordance with the objectives of the zone. I agree with the Applicant that the two benefits are in keeping with the zone objectives. I agree with DIPNR that these two benefits are clearly transferable to other lots across other areas zoned 7(c). In reply, the Applicant relied on numerous other characteristics of the site which suggested that the circumstances were particular to this site so that it could not have any application as a precedent elsewhere. While each site must inevitably have characteristics particular to it I consider the application is also made on the basis of characteristics which would apply widely. On this basis the issue of precedent is a relevant matter but only if it is either self-evident, or some evidence suggests, that subsequent similar objections if upheld will lead to adverse cumulative impacts. 46 There have been six applications for variations of cl 13B(1)(a) of the LEP under SEPP 1 in Pheasants Nest to date where DIPNR has granted concurrence. It is clear from both Mr Hume's evidence and the Applicant's submissions that the six previous SEPP 1 variations are considered to have some precedential value because they suggest that if similar applications are made a successful SEPP 1 objection can be expected. While I agree with DIPNR that previous SEPP 1 objections should not theoretically have any precedent value, as a matter of practicality they clearly do because there is an expectation by applicants that similar applications will receive similar treatment by decision makers.

[26]

52 Mr Goodyer's evidence was that a Shire wide study of the impacts of greater subdivision in land zoned 7(c) than is provided for by cl 13B of the LEP is necessary. There was no specific proposal in the evidence about who would undertake such a study nor when. Mr Goodyer's view was that a regional impact study was necessary, but that it would be unreasonable to expect an applicant to undertake such a study. I presume DIPNR can initiate such a study at any time. It has not apparently done so yet or at least the Court was not so advised. In circumstances where numerous SEPP 1 objections of a similar nature have been approved to date, should this Applicant have its proposal refused development consent when it is otherwise unobjectionable in terms of the objectives of the zone, and there is no specific evidence of how this and subsequent SEPP 1 objections if upheld will cause adverse cumulative impacts in this particular rural living zone? Conclusion 53 Given that six SEPP 1 applications have been approved by DIPNR for the Pheasants Nest area and this application complies with the zone objectives, more concrete evidence of possible adverse cumulative impacts is necessary if the Court is to consider a refusal of the SEPP 1 objection on this basis. It is not self-evident that this application and other similar applications will have an adverse cumulative impact given the rural living objectives of this zone. There is no evidence before the Court, for example, that too much indigenous vegetation is being cleared or that water quality in receiving streams is compromised (objectives (c) and (d) of Zone No 7(c)). This is not like the case of Seljanovski v Sutherland Shire Council [2003] NSWLEC 234 where the first application for a jetty was refused because an approval was likely to lead to subsequent applications from up to 25 other properties which, if approved, would result in adverse environmental impacts. This Applicant is entitled to apply under SEPP 1 for a variation to a development standard as the law currently stands. It is not appropriate that this or subsequent applicants be denied that right pending the finalisation of a regional study. 54 I appreciate that there may be considerable difficulties in bringing forward evidence of likely future impacts when the details of what applications are pending are difficult to obtain or are unknown or no applications are actually pending, but are considered likely. I am not seeking to require extensive specific evidence on future proposals. In this case however, there is no evidence seeking to link the impacts of possible successful SEPP 1 objections with impacts "on the ground". Broad generalisations about more houses leading automatically to more environmental impacts may or may not be true. Certainly more houses dispersed around the landscape will lead to some visual impact, but in a rural living zone that may be an acceptable impact if the overall density of houses is still at an acceptable level, which on the current evidence of Mr Hume it will be. 55 If DIPNR has concerns about the application of SEPP 1 it can move quickly to conduct the shire wide study it considers necessary which can be relied on in any subsequent refusal of concurrence. At the very least if similar proceedings arise in the future it needs to demonstrate through some specific evidence why the SEPP 1 objection at issue will set a bad precedent including how subsequent applications, if approved, might be adverse to the zone objectives.

[28]

58 For completeness, I note that DIPNR sought to rely on a draft SEPP and, in the alternative, a proposed LEP "Template" which councils may be required to implement in relation to the SEPP 1 objections in the future. I do not consider the issue of whether or not the planning intent of that draft SEPP or the LEP template should be applied takes this matter much further. I do not therefore make any finding on that issue. 59 I therefore consider I should uphold the SEPP 1 objection and allow a variation to the development standard. No other matters of concern about the application have been raised by the Council. I have been provided with conditions of development consent which address all relevant matters and I consider development consent ought be issued. Orders 60 The Court orders that:

The appeal against the refusal by Wollondilly Shire Council of development application I1015-03 to subdivide land located at Lot 100 DP 1019209 known as 375 Pheasants Nest Road, Pheasants Nest into two residential allotments is upheld.
The State Environmental Planning Policy No. 1 - Development Standards objection to vary the development standard contained in cl 13B(1)(a) of the Wollondilly Shire Local Environmental Plan 1999 is allowed.
Development application I1015-03 to subdivide land located at Lot 100 DP 1019209 known as 375 Pheasants Nest Road, Pheasants Nest into two residential allotments is determined by the granting of consent subject to the conditions contained in Annexure A and compliance with the following: (i) Onsite Wastewater Management Study, prepared by Morse McVey and Associates dated 4 July 2003; (ii) Conceptual Erosion and Sediment Control Plan, prepared by Morse McVey and Associates dated 11 August 2003; (iii) Weed Assessment and Management Plan, Ecosearch ref. 2327 FMP, prepared by EcoSearch Environmental Consultants dated 16 July 2003; (iv) Bushfire Hazard Assessment and Management Plan, Ecosearch ref. 2327 FMP, prepared by EcoSearch Environmental Consultants dated 18 July 2003.
The exhibits are to be returned.

[34]

These figures are reviewed quarterly. 8. SUBDIVISION PLANS These conditions have been imposed to outline the minimum development standards and provide design guidelines for the subdivision of land in the Shire. 8.1 Submission to Council of the linen plan of subdivision for the proposed subdivision together with nine (9) copies suitable for certification by the General Manager and lodgement at the Land Titles Office. A fee for the release of the subdivision certificate applies. 8.2 The development shall be completed in accordance with the approved plans and the conditions of consent prior to release of the linen plan. 8.3 Existing easements, natural watercourses and dams are to be marked on the linen plan of subdivision. 8.4 The building envelope on proposed lot 2 is to be located no closer than 3 metres to the boundary of Lot 101 in DP 1019209. The building envelope shall be otherwise in accordance with the plans submitted with the development application No. 11015-03. 8.5 Submission of Section 88B Instrument indicating an appropriate restriction on the use of the land with respect to the building envelope indicated on Lot 2 (see Plan Reference No. 1116). The Section 88B instrument shall contain a provision that the restriction shall not be extinguished, modified or altered without the consent of Wollondilly Shire Council. Details of other restrictions as to user shall be indicated on the subdivision certificate and on the certificate of title for the land. 8.6 A section 88B Instrument shall be submitted with the linen plan of subdivision which places appropriate restriction in the proposed lots with regard to the following: (i) The requirements within the Bushfire Hazard Assessment and Management Plan prepared by Eco Search (reference 2327.FMP) shall be complied with at all times and provided to any future potential purchasers of the subject lots with any Contracts of Sale issued for the land. (ii) That any future dwelling on Lot 2 provides a water tank with a capacity of 10,000 litres dedicated for fire fighting, if reticulated water is not available to the site. (iii) That the requirements of the Weed Assessment and Management Plan prepared by Eco Search Consultants (dated 16 July 2003) to be complied with and maintained. (iv) That all requirements of the on-site Waste Water Management Study prepared by Morse McVey & Associates (dated 4 July 2003) be carried out as specified. (v) That all recommendations within Ecological Assessment prepared by Eco Search Consultants (dated 15 July 2003) be .complied with at all times. (vi) That the right of carriageway be maintained by the owners of proposed Lot 2 and the owners of existing Lot 101 and 102 in DP 1019209. The section 88B Instrument shall contain a provision that it may not be altered or extinguished, except with the consent of Wollondilly Shire Council.