Rein Warry & Company v Wollondilly Shire Council & Anor

Land and Environment Court (NSW)|2004-03-03|Before: Ms P

Introduction 1 . This appeal relates to Development Application DA I1004-02 to subdivide Lot 124, DP 10336, Ironbark Road, Bargo (the subject site) into two lots. Wollondilly Shire Council (the council) considered the development application on 24 March 2003 where it was resolved that the council support the development application subject to the receipt of concurrence from Planning NSW (or the Department of Infrastructure Planning and Natural Resources as it is currently known). The proposed subdivision requires concurrence as it is necessary to use State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) to create lots below the minimum lot size identified in the relevant local environmental planning instrument.

2 . By way of letter dated 26 May 2003, the delegate of the Director General declined concurrence for a number of reasons. On 4 June 2003, the council notified the applicant of the refusal of the development application on the grounds that concurrence had been refused.

4 . On 17 November 2003 the Department of Infrastructure Planning and Natural Resources (the Department) was joined as a party in the proceedings, pursuant to s 64(2) of the Land and Environment Court Act 1979 .

5 . The council provided a submitting appearance and a number of documents were tendered although no expert evidence was provided.

The subject site 6 . The subject site is a corner lot and is rectangular in shape. It has a frontage of 124.577 m to Ironbark Road and 271.98 m to Government Road giving a total site area of 3.368 hectares. It slopes gently from the north to the south. A drainage depression is located adjacent to the southern boundary. Vegetation is limited to some existing scattered trees in the southern section of the subject site.

7 . Currently located on the subject site are a cottage, garage and mobile home. The predominant land use in the area consists of rural residential activities with some agricultural uses.

The proposal 8 . The proposed development seeks to subdivide the subject site into two equal lots, each having area of 1.684 hectares (see Attachment 1). The proposal is also integrated development requiring approval pursuant to s 15 of the Mine Subsidence Compensation Act 1961 and s 100B of the Rural Fires Act 1997. In this regard, the council accepts that adequate documentation had been provided to satisfy the requirements for approval.

Relevant planning controls 9 . The subject site is zoned Rural 1(c1)(i)(Small Holdings) pursuant to Wollondilly Local Environmental Plan 1991 (the LEP). Clause 12(2)(d) of the LEP requires that land shall not be subdivided unless each separate allotment will have an area of not less than 2 hectares. As the proposed lots are below 2 hectares, the provisions of SEPP 1 apply.

10 . Sydney Regional Environmental Plan No 20 - Hawkesbury-Nepean River (the REP) also applies to the proposal although non-compliance with the REP was not a matter raised by the council.

The issues 11 . The council and the Department filed an Amended Statement of Issues containing 7 separate issues although it was agreed at the hearing that the only issue related to whether the SEPP 1 objection was well founded.

The SEPP 1 objection 12 . The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are posed. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. The LEP contains no specific object or purpose for the development standard and the parties differed on what they saw as the underlying object or purpose of the minimum lot size standard. The third question asks whether compliance with the development standard is consistent with the aims in cl 3 of SEPP 1. The aims state: 3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act. 13 . This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state: 5. The objects of this Act are: (a) to encourage - (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment; (ii) the promotion and coordination of the orderly and economic use and development of land.

14 . The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.

Underlying object or purpose of the standard 15 . Mr Chris Murray, the Deputy Regional Director for the Department's Murray/Murrumbidgee Region provided evidence for the Department. In relation to underlying object or purpose of the standard, he states that the applicant does not identify the underlying object or purpose of the 2 hectare development standard. It is not sufficient to rely on the objectives of the zone, since the objectives are repeated for a number of the rural zones, despite differing minimum lot sizes. The 2 hectare development standard provides increased opportunities for the keeping of livestock, extensive agricultural practices and recreational activities greater than those available for the smaller 1 hectare and 4000 m2 lots. He further states that the development standard is critical in maintaining the historical subdivision pattern and character of the area and not solely to provide for the rural residential development, as contended by the applicant.

16 . Mr Ron Lewis, a town planner provided evidence for the applicant. He states that the objectives are achieved by the conjunctive application of the development standards and appropriate land use tables. The subdivision is permissible within the zone and the purpose of the standard is to achieve the objectives of the zone. While the Rural 1(c1)(i), Rural 1(c1)(ii) and Rural 1(c1)(iii) zones have the same objectives, they are deliberately designed to cater for the varying demands of rural residential development through their respective minimum lot sizes of 2 hectares, 1 hectare and 4000 m2.

Objects in s 5(a)(i) and (ii) of Environmental Planning and Assessment Act 1979 17 . Mr Murray maintains that the proposal fails to provide for the proper management and development of agricultural land, towns and villages (s 5(a)(i)), by allowing a site-specific variation to an established development standard which seeks to provide certainty and acceptable development outcomes. He also relies on the council adopted strategic planning document "A Vision for Wollondilly 2025" (the Vision) that provides directions for the township of Bargo. While the detailed planning provisions to support the Vision are yet to be finalised, the general parameters for the East Bargo area, including the subject site, indicate the council is seeking to maintain the rural/bushland town edge rather than support further subdivision in the area. He describes the proposed development as being inconsistent with the acknowledged strategic direction for this part of East Bargo. Mr Murray further states that the proposal fails to promote the social and economic welfare of the community and a better environment (s 5(a)(i)) by allowing incremental changes to agreed development standards that reduce certainty for the community. He cites an objection to the proposal received by the council although I note this objection was withdrawn during the hearing.

18 . Mr Lewis did not address the impact of the Vision in his statement. In cross-examination he acknowledged that the document represented sound town planning and that the principle of urban containment was an important matter. He expressed no serious concerns with the document and stated that the proposed subdivision was consistent with the directions in the Vision, principally by maintaining the town edge.

Is compliance with the development standard unreasonable or unnecessary? 19 . In balancing the evidence of Mr Murray and Mr Lewis I have concluded that compliance with the development standard, in this case, is unnecessary for a number of reasons.

20 . SEPP 1 requires consideration to be given to the purpose of the development standard, as distinct from the purpose or objectives of the zoning. The distinction is clearer when specific objectives are provided for the development standard. In absence of any specific objectives for the development standard some guidance may drawn from the zone objectives. In this case, there was little dispute that an objective of the development standard was to provide the opportunity for rural residential development. This is identified in objective (a) of the Rural 1(c1)(i) zone. I also accept Mr Lewis's explanation of the identical objectives for the Rural 1(c1)(i), Rural 1(c1)(ii) and Rural 1(c1)(iii) zones despite their varying minimum lot requirements. The term "rural residential" is not defined within the LEP but is not difficult to imagine a wide range of uses that could fall within this definition and could require a range of lot sizes. I do not see anything exceptional in identical objectives for each of the previously identified zones for this reason.

21 . A distinction between the zones can however be made on the basis of character. Clearly the variations in lot sizes will produce a different character. A more dense character will be achieved by a minimum lot size of 4000 m2 compared to a minimum lot size of 2 hectares. In my view, an underlying object or purpose of the development standard would also include the maintenance of a rural residential character consistent with the minimum 2 hectare lot requirement.

22 . While Mr Murray suggests that the 2 hectare standard seeks to maintain the existing historical settlement pattern created by the subdivision in the 1920's, I am not convinced that this can be seen as an underlying object or purpose for the development standard. There was no evidence presented to the Court to suggest that the subdivision pattern, apart from being created in the 1920s, had any particular heritage or historical significance. The cadastral maps presented to the Court for the East Bargo area indicated a number of recent subdivisions, including battleaxe subdivisions that have changed this original subdivision pattern.

23 . Accepting that an underlying object of the development standard is to maintain a character consistent with the 2 hectare subdivision standard I also find that the proposal is acceptable. The subdivision will provide for the lots to have different street frontages and consequently any dwelling on proposed Lot 1 will be generally orientated towards Government Road whereas the existing building on proposed Lot 2 is orientated towards Ironbark Road. In my view, this will provide a settlement pattern generally consistent with the surrounding area. Clearly, there would be a greater impact on the character of the area if the subject site was not corner lot and was not in excess of the minimum site area.

24 . Mr Murray explained that the Vision had no legal status. It is essentially a precursor to an environmental study, a draft local environmental plan and a local environmental plan. Notwithstanding its legal status, I agree with Mr Lewis that the proposal is consistent with the identified planning strategies. As I understand, the major area of disagreement was whether the proposal would affect the strategy of maintaining the rural edge of the East Bargo area. For the reasons mentioned in the preceding paragraph on character, I can comfortably conclude that the proposal will not impact on the rural edge of the East Bargo area.

25 . Mr Murray raised the question of precedent. While precedent is a valid consideration (see Gloreen Goldin and Matthew Lau v The Minister for Transport Administering the Ports Corporations and Waterways Management Act 1995 , (2002) NSWLEC 75), I am not convinced that it is a matter that should be given any determinative weight. The subject site is larger than all but two other lots in area. Most lots within the general area are in the order of 2.5 hectares. The resubdivision of these lots raise significantly different issues to those raised in this application. The subject site also possesses other qualities, such as its corner position, that distinguishes it from other lots in the area. Importantly, SEPP 1 requires a site-specific consideration.

26 . It was also submitted that the proposed development represents a de facto rezoning. This submission should be rejected. This submission would have greater force if the resulting lots were closer to the Rural 1(c1)(ii) minimum lot size of 1 hectare (see Rein Warry & Co v Wollondilly Shire Council , 10193 of 2003 and Herbert and Patricia Bethune v Wollondilly Shire Council , 10030 of 2002).

Is the objection well founded? 27 . For the reasons set out above, the answer to this question is yes.

Orders 28 . For the preceding reasons, the Orders of the Court are: 1. The appeal is upheld. 2. Development Application No. I1004-02 to subdivide the property at 90 Ironbark Road, Bargo, into two lots is approved subject to conditions in Annexure A. 3. The Exhibits are returned with the exception of Exhibits A and 2. ________________ G T Brown Commissioner of the Court rjs

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.

CITATION : Rein Warry & Company v Wollondilly Shire Council & Anor [2004] NSWLEC 58 APPLICANT Rein Warry & Company

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