Purves v The Hills Shire Council

Land and Environment Court (NSW)|2011-03-10

RESPONDENT Mr M Fraser, barrister APPLICANT McKees Legal Solutions

RESPONDENT The Hills Shire Council File Number(s): 10862 of 2010

Judgment 1This is an appeal against the refusal by the Hills Shire Council (the council) of a development application (638/2010/ZB) under the Environmental Planning and Assessment Act 1979 (EPA Act) for Torrens Title subdivision of 1 Lawrence Road, Kenthurst (the site) into two allotments and demolition of a shed.

Background and the proposal 3The development application is for Torrens Title subdivision of the site into two allotments. Proposed lot 101 is to have an area of 0.584ha with a frontage to Lawrence Road of 16.1m and 113.5m to Porters Road. The allotment includes the existing cottage and other out buildings. 4Proposed lot 102 is to have an area of 1.11ha and a frontage to Lawrence Road of 126m. 5The proposed boundary of the two allotments is through an existing shed, which is proposed to be demolished as part of the application. 6In March 2007, Council approved an application (173/2007/HB) for the erection of a detached dual occupancy on the site. The development has not been commenced and the applicant does not wish to proceed with the approval.

Planning controls 7The site is within the Rural 1(c) zone under Baulkham Hills Local Environmental Plan 2005 (BLEP). The objectives of the zone are: (a) to accommodate rural-residential development that is sympathetic to the environment and minimises risks from natural hazards, and (b) to provide for a range of activities that are compatible with the rural-residential character of the locality, and (c) to ensure that development in the area does not unreasonably increase demand for public services and public facilities, and (d) to ensure that development is designed and carried out having regard to adjoining land uses and the natural environment, and (e) to ensure that development is designed and carried out having regard to the rural and heritage character of the surrounding area, and (f) to encourage the preservation of suitable areas for open space purposes. 8Clause 13(2) of BLEP provides: (2) Except as otherwise provided by this plan, consent must not be granted for development unless the consent authority is satisfied that the proposed development: (a) is consistent with one or more of the aims of this plan and any relevant objectives for development, and (b) is not contrary to achieving the objectives of the zone within which it will be carried out. 9Under clause 14 of BLEP subdivision requires consent. Clause 18(1) provides that land within Zone 1(c) may not be subdivided unless each allotment has an area of not less than 2 ha. The site has an area below 2ha and each proposed allotment does not comply with the 2 ha minimum requirement. The applicant has submitted an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) that compliance with the standard is unreasonable and unnecessary in the circumstances of the case. Whether the SEPP 1 objection is well founded is the key disagreement between the parties. 10The concurrence of the Director General of the Department of Planning is required if council intends to approve the application. By letter dated 18 February 2011, the Department has advised that as the matter is before the Court it is inappropriate to provide comment or concurrence on the application. Under cl 39(6) of the Land and Environment Court Act the Court can determine the application without the concurrence. 11The house on the site is listed as a heritage item in Schedule 1 of BLEP and in the vicinity of a number of heritage items. Clause 35(1)(f) requires consent for the subdivision of land on which a heritage item is located. Clause 35(4) requires an assessment of the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item. 12Clause 40 of BLEP provides conservation incentives which enable consent to granted for 'the use for any purpose of a building that is a heritage item, or of the land on which any such building is erected' subject to certain criteria being met. The parties agree that the clause does not apply to the application as subdivision is not a use. 13Baulkham Hills Development Control Plan (DCP) is also relevant. It includes controls for subdivision of heritage items as well as for future development of the lots. 14The Department of Planning has issued a certificate under s 65(2) of the EPA Act that Draft Hills Principal Local Environmental Plan (Draft LEP) may be publicly exhibited between 29 March 2011 to 13 May 2011. The site is within zone RU4 Rural Small Holdings under the Draft LEP. 15Mr Fraser, for the council, submits that the Draft LEP is not imminent and certain and should be given little weight. Whereas Mr McKee, submits that the plan is certain as it reflects the standard instrument and that cl 5.10 of the Draft LEP provides the planning intent for incentives to heritage items. In his submission, the proposed subdivision would meet the requirements of this clause, as the development would assist in the conservation of the item. Further, he submits that the Draft LEP demonstrates that approval of the application cannot set a precedent as the Draft LEP maintains the 2ha minimum (cl 4.1) and does not permit the standard to be varied (cl 4.6(6)). I do not accept Mr McKee's submission. The Draft LEP has not completed exhibition and cannot be considered imminent or certain. I have therefore given it no weight.

Evidence 16The Court visited the site and surrounding area. Mr C Young, planner and Mr P Romey, heritage architect, provided evidence for the council. Mr N Juradowitch, planner and Dr S Rosen, heritage consultant, provided evidence for the applicant. Impact on heritage significance 17There was general agreement between Dr Rosen and Mr Romey on the heritage significance of the item and the impact of the proposal. They agreed that: .... the critical heritage issue to be considered is whether the subdivision application, if approved, would result in an adverse impact(s) on the key heritage values of the property ie (i) the aesthetic and technical significance of the house as an early example of concrete block construction, and (ii) its capacity to demonstrate, with other related properties, historical connections with the orcharding and farming community in the early 20 th century (including the community building expertise that enabled its construction). 18Further, the heritage experts agreed that: Neither the proposed subdivision nor the anticipated construction of a new residence on the northern rear section of the property (under either a subdivision or a dual occupancy) would necessarily result in an adverse heritage impact on No. 1 Lawrence Road in regards to its capacity to demonstrate historic connections within the orcharding and farming community and other related properties in the vicinity, on the technical heritage significance of the original house as an example of concrete block construction, or on the broader aesthetic heritage values of the existing house within its landscaped context. 19Mr Romey and Dr Rosen agreed that the conservation of the item was not depended on the subdivision approval. However, the establishment of a 'properly managed and administered Trust Fund' and the requirement for on going maintenance and works in accordance with the Conservation Management Plan (CMP) could assist future owners in the ongoing conservation of the house. 20Mr Romey considered that the Trust Fund, as proposed, provided little certainty that the monies would be expended on conservation works. He stated that the Trust Fund could not ensure the conservation of the property in perpetuity, as contended by the applicant, particularly if it is implemented through conditions of consent rather than through a restriction on title. In his opinion, the most effective mechanism to conserve the property is its continued listing as a heritage item in BLEP. 21Dr Rosen was concerned that if the dual occupancy proceeded and it proved uneconomic for the existing house to be rented (due to the potential for capital gains tax) it would be unoccupied and there would be less incentive for the existing house to be maintained and conserved. In her opinion, the subdivision would ensure that the existing house was occupied as a principle residence on its own title. It would also enable the applicant to build a house on the new lot, which meets their requirements. 22Both Mr Romey and Dr Rosen agreed that the construction and other features of the house did not require a maintenance schedule different to that of other houses of a similar age, whether or not they are heritage items. They agreed that the house is well maintained and that the majority of the items listed in the maintenance schedule of the CMP were matters which would be required for the maintenance of any house in similar condition, whether or not it is a heritage item, and that the costs did not place an unreasonable burden on an owner. Although, they noted that the heritage listing may impose additional costs for expert advice and place restrictions on changes to the house and its property. 23The experts agreed that the size of lot 101 provided adequate space for additional accommodation to be provided consistent with the expectations for residential development in the area. Although Dr Rosen expressed a preference that the original size and form of the dwelling should be maintained. The experts noted that development should not be located in front of the cottage as the key views of the main section of the house are obtained from the intersection of Lawrence Road and Porters Road. They raised no objection to the potential demolition of out buildings and later parts of the dwelling. They agreed that any dwelling on lot 102 should be 'sensitively sited and designed' and supported a condition requiring a minimum setback from the common boundary of 20m. They also considered that any house on lot 102 should be limited to one storey.

Findings 24The experts agree that the proposed subdivision will not adversely impact on the heritage significance of the item. They further agree that the conservation of the item is not dependent upon the subdivision, although they acknowledge that a properly administered and managed Trust Fund and the requirement for on going maintenance and conservation will assist in the conservation of the house. 25There is little information on the proposed operation of the Trust Fund other than that contained in the applicant's proposed conditions of consent. As I understand, a Trust Deed would require a capital sum of $100,000 to be invested and that the interest (estimated to be about $5000 per annum) will facilitate conservation works in the CMP. These works include annual maintenance (estimated in the CMP as $8,923 in 2006) and once off expenditure (estimated at $14,750 in the CMP in 2006). Mr Fraser and Mr McKee submitted different estimates as to the cost of administering a Trust Fund and the likely monies that may be available. The applicant has indicated a willingness to increase the capital amount, if required. 26The maintenance works include items such as pest inspections, general wear and tear, gutter cleaning, internal and external painting, services, air conditioning, PC items, maintenance of fences, paths, driveways, care of old trees and lawns and gardens. The heritage experts agree that most of these items are normal maintenance of a house required whether or not it is heritage listed and that there is nothing about this house which imposes an additional maintenance cost. 27The maintenance includes works to the whole house and its grounds. However, the heritage listing of the property in BLEP identifies only the house as the heritage item and the heritage experts agree that the original part of the house, constructed of concrete block, is of primary significance rather than the latter additions or outhouses. The CMP prepared by Dr Rosen identified an appropriate heritage curtilage around the house and clearly this is important to provide an appropriate setting for the house. 28The one off expenditure includes works to improve stormwater disposal, roofing and weatherboard cladding. The condition of consent proposed by the applicant requires that these works be carried out prior to the issue of the subdivision certificate. While these works are necessary they are not beyond what can reasonably be expected as being required to maintain a residential property. 29I acknowledge that, in principle, a Trust Fund may assist in mitigating some of the costs involved in maintaining the dwelling, although it appears to be a complicated mechanism for the relatively small cost and nature of the works involved when compared to the potential administrative costs. I do not accept that the nature of the works proposed is such that it justifies the subdivision of the land into lots which are below the minimum size in BLEP.

Whether the SEPP 1 objection is well founded 30Mr Juradowitch prepared a SEPP 1 objection to cl 18(1) of BLEP. He stated that the objectives of the minimum 2 ha subdivision standard for the Rural 1 (c) zone are not specifically stated in BLEP and can be derived from the objectives of the zone. In Mr Juradowitch's opinion the primary purpose of the standard is to maintain the rural residential open space character of the area. He considered that heritage buildings are part of the rural character and the proposed subdivision will facilitate the conservation of the heritage item on the site. 31Mr Juradowitch and Mr Young agreed that: The only reason this application is being considered is the concept of assisting conservation of a heritage item. A subdivision of the site for the lot sizes proposed would not be supported without the heritage item. 32Mr Juradowitch considered that the proposed subdivision and future dwelling would be consistent with the character of the area as:

the site is a corner location, in two visual catchments, therefore the dwellings on each proposed lot would not be viewed together;
the wide frontage along Lawrence Street provides separation between the dwellings on each proposed lot; and
the locality has a varied subdivision pattern with a number of undersized lots. 33Mr Young agreed that the underlying purpose of the standard was to set a density of development, which would maintain the rural character of the area. In his opinion, the immediate catchment of the site included only a few undersized allotments and council had consistently maintained the 2 ha standard. The proposed subdivision and future dwelling would increase the density and change the character by permitting two dwellings on smaller lots than what is anticipated by the control.

Findings 34In Wehbe v Pittwater Council [2007] NSWLEC 827 Preston CJ comprehensively examines the requirements to uphold an objection under SEPP 1. Upholding a SEPP 1 objection is a precondition, which must be satisfied before the proposed development can be approved on a consideration of the merits. His Honour states that the Court must be satisfied of the following three matters: 38 First, the Court must be satisfied that "the objection is well founded" (clause 7 of SEPP 1). The objection is to be in writing, be an objection "that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case", and specify "the grounds of that objection" (clause 6 of SEPP 1). The requirement in clause 7 of SEPP 1 that the consent authority be satisfied that the objection is well-founded, places an onus on the applicant making the objection to so satisfy the consent authority: see North Sydney Municipal Council v Parlby , unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J, p. 8. 39 Secondly, the Court must be of the opinion that "granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3" (clause 7 of SEPP 1). This matter is cumulative with the first matter (it is prefaced by the words in clause 7 of SEPP 1 "and is also"). The aims and objects of SEPP 1 set out in clause 3 are to provide "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 or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act". The last mentioned objects in s 5(a)(i) and (ii) of the Act are 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." 40 Thirdly, the Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection: Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94 at 100 and City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 291. The matters in clause 8(a) and (b) are: "(a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument". 35At [42] to [43], His Honour then proceeds to discuss ways of establishing that compliance with the standard is unreasonable or unnecessary, relevantly he states: 42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. 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... 43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served). 36The planners agree that the underlying objective of the control in cl 18(1) of BLEP is to establish a density which maintains the rural character of the area. Heritage items are part of this character and the planners agree that the only justification to vary the control could be if it assisted in the conservation of the heritage item on the site. The planners held different opinions on whether the subdivision would meet the objectives of the standard and achieve a density consistent with the character of the area. The existing site is below the standard and its subdivision would result in two lots that are significantly below the standard and below the size of other lots in the immediate area. There are no particular characteristics of the site or circumstances of the case, which would render compliance with the standard to be unreasonable or unnecessary. 37For the reasons which I have discussed above, I have found that the fact that the site contains a heritage item that, as with any house, requires maintenance, is not a circumstance of the case which would justify the subdivision of the site below the 2 ha minimum standard. The planners agree that there is no other basis for the standard to be varied. 38Incentives to facilitate the conservation of heritage items are provided in cl 40 of BLEP and cl 5.10 of the Draft LEP. The requirements of SEPP 1 are separate to these clauses and the upholding a SEPP 1 objection is a precondition, which must be satisfied before the proposed development can be approved on a consideration of the merits. 39Compliance with the standard is therefore not unreasonable or unnecessary and the SEPP 1 objection is not well founded. Consequently the application must fail.

Orders

The appeal is dismissed.
The development application (638/2010/ZB) for Torrens Title subdivision of 1 Lawrence Road, Kenthurst, into two allotments and demolition of a shed, is refused.
The exhibits may be returned. Annelise Tuor Commissioner of the Court 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: 11 May 2011

(1999) 110 LGERA 262

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