Rodney Ernest Paull v Hawkesbury City Council

10730 of 2004 - Rodney Ernest Paull v Hawkesbury City Council

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Hawkesbury City Council (the council) of an integrated development application to subdivide land at Lot B, DP 416222, being Nos 1027 and 1033 Grose Vale Road, Kurrajong. The application is integrated under Section 100b of the Rural Fires Act 1997. No General Terms of Approval, (GTAs) are available, however, by a proposed condition, subdivision may not take place until these are known. 2 The parties have reached agreement and seek a consent award. 3 I have concluded that the application should fail as the SEPP1 objection against the lot size standard of 4 hectares is not well founded. The land 4 The land is situated on the western side of Grose Vale Road about 1 km south of Kurrajong Village. The land is of an irregular trapezoidal shape with a frontage of about 140.8m to Grose Vale Road and a depth of about 120.7m, giving an area of some 1.212 hectares. The land falls from the west to the southeast. There is scattered vegetation on the land and the locality is characterised by single dwelling houses located on large rural allotments. The residential areas of Kurrajong are located about 450m to the northeast of the land. 5 Erected on the land are two separate dwelling houses, one of which, known as 'Curraweena', is listed as a heritage item under Schedule 1 of the Hawkesbury Local Environmental Plan 1989. After subdivision of the land one dwelling house would be located on each of the newly created allotments. Relevant planning controls Hawkesbury Local Environmental Plan 1989, (LEP 1989) 6 The land is zoned Rural 1(cl) (RURAL "Cl") under the provisions of the LEP1989 and the proposal is permissible with consent. However, the minimum allotment size in this zone under cl 11 of LEP1989 is 4 hectares. 7 Relevant development standards are: · Clause 11 - Rural Subdivision - general provisions. · Clause 9 - Carrying out development. · Clause 9A - Zone objectives. · Clause 17 - Rural workers' dwellings. · Clause 18 - Provision of water, sewerage etc. services. · Clause 27 - Heritage items. 8 Other planning controls include: · Hawkesbury Development Control Plan, (HDCP). · Hawkesbury Development Control Plan - Contaminated land policy. Part A - General Information; Part C - Chapter 5 - Bushfire Prone Land; Part D, Chapter 3 - Subdivision. · State Environmental Planning Policy No 1 - Development Standards (SEPP1). · Sydney Regional Environmental Plan No 20 Hawkesbury - Nepean River (No.2-1997), (SREP20) The proposal and its history 9 Development application No 0955/03 was lodged with the respondent council on 14 August 2003, to subdivide the land into two allotments with areas of 9,503m2 and 2,616m2. 10 One of the allotments would contain the original dwelling 'Curraweena'. 11 The application was supported by a SEPP1 objection to the development standard. State Environmental Planning Policy No 1 objection, (SEPP1) 12 Falson & Associates Pty Limited, Town Planners, filed a SEPP1 objection to the minium allotment area standard on behalf of the applicant: 1. Is the planning control a development standard? The planning control development standard objected to, is that contained within clause 11(2)(c) of Hawkesbury Local Environmental Plan 1989 . This clause requires a minimum of 4ha for each lot created within a Rural 1(c1) zone. This minimum area provision is a development standard falling within those defined in Section 4 of the Act. 2. What is the underlying object or purpose of the standard? There are no stated objectives for the minimum 4ha allotment size subdivision standards within the Rural 1(cl) zone. A clue to the underlying objectives can be found in the 1(c1) zone objectives as follows: (a) to primarily provide for a rural residential living style with "on site " collection of water and disposal of waste. (b) To maintain a subdivision pattern which permits the land to be subdivided for an urban use where such a use has been identified as being appropriate in the long term. (c) To ensure that development does not create unreasonable demands, in the present or in the future, for provision or extension of public amenities infrastructure. (d) To prevent the establishment of traffic generating development along main and arterial roads. (e) To ensure that development maintains the rural character of the locality and to minimise disturbance to the landscape through clearing, earthworks and access roads. Taking these zone objectives into account the underlying objectives of the development standard are considered to be, to maintain a rural/ residential living style with self-sufficiency of services whilst maintaining the existing rural character. 3. Is compliance with the standard consistent with the aims and objectives of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EP&A Act? Compliance with the standard is consistent with the aims of the Policy ie 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. If compliance with the development standard (minimum 4ha lot size) is maintained and the flexibility inbuilt into the Policy is not utilised in this case then the objects contained in Section 5(a)(i) and (ii) of the Act would be hindered. These objects are: (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, and (ii) the promotion and co-ordination of the orderly and economic use and development of land. The objects would not be attained, as the underlying objectives of the standard are not met at present with the location of two dwellings on one rural/ residential allotment of land. Sound town planning dictates that rural/ residential allotments should not contain more than one dwelling. This might be contrasted with large rural land parcels where two or more dwellings might be located so as to assist in land management etc. In the subject case the two detached dwellings on a single allotment are an inconsistency in a rural/ residential land context. In contrast the location of the two dwellings and their relationship to each other are consistent with a rural/ residential style. They are fenced one from the other and have the appearance of single dwellings on single allotments. Their separation in title would make each separate lot contain a single dwelling and would result in consistency in rural/ residential living style in the locality. The subdivision is not one that will result in an additional "developable" lot. No further rural/ residential development will occur. Further the proposed lots are not inconsistent with the array of allotment sizes that already exist within the zone and in the locality. On site disposal of waste is currently carried out for each existing dwelling and this provision will remain or be enhanced by the proposal. The land has not been identified for any long-term urban use. No additional infrastructure is required from the existing facilities supplied to the land. Traffic will not alter as a result of the subdivision. The existing rural character of the locality will not be altered as a result of the subdivision that maintains existing rural/ residential dwellings in their current setting and recognises in title an existing physical separation of two existing dwellings. The current situation arises from Council listing the older dwelling house as a heritage item and over time granting consents to allow it being put to a variety of uses. The subdivision as proposed provides for an orderly and economic use of the land that recognises existing development and history over a period of time. 4. Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? The development standard is both unreasonable and unnecessary to apply in the circumstances of this case. This is due to the proposed allotments "existing" in a physical sense already if not in title. It is unreasonable and unnecessary to continue to apply the minimum subdivision standards in this case given that the proposed lots are already developed and given that separation of the existing dwellings in title will make each lot consistent with other rural/ residential lots in the locality that each contain only one dwelling. Consistency with the primary aim of the Rural 1(c1) zone will also result. The subdivision will also result in a positive outcome relative to the opportunities for conservation and maintenance of the heritage item that is one of the existing dwellings. 5. Is the objection well founded? In all of the circumstances indicated above the objection is believed to be well founded. There will be no adverse impact on existing rural/ residential amenity and there will be positive outcomes in that separate title will recognise the physical separation of the dwellings and their use whilst also recognising this separation in title. Compliance with the objects within section 5(a)(i) and (i) of the Act will not be attained by refusal of the application. Application of the Policy is the correct course of action in this case.

Notification 13 The application was notified to nearby owners and occupants between 8 August 2004 and 25 August 2004 and the council received no submissions. The council's decision 14 By notice dated 16 July 2004 the council adopted the planning officer's recommendation and refused the application for the following reasons:

1. The proposed development is prohibited under the provisions of Hawkesbury Local Environmental Plan 1989.
2. The proposed development is inconsistent with the aims and objectives of Hawkesbury Development Control Plan.
3. The proposed development does not comply with the requirements of the Hawkesbury Development Control Plan, in particular Part A, Chapter 2 - General Information, Part D, Chapter 3 - Subdivision.
4. The development application contains insufficient information to carry out a proper assessment of the likely impacts of the proposed development in terms of Section 79C of the Environmental Planning and Assessment Act, 1979. In particular, there is insufficient information with regard to on-site effluent disposal and the impact of the development on the heritage significance of the heritage listed item on the site.
5. The proposed development is inconsistent with the objectives of Hawkesbury Local Environmental Plan 1989.
6. The proposed development is inconsistent with the Objects contained within Section 5 of the Environmental Planning and Assessment Act 1979.
7. In the circumstances, approval of the development would not be in the public interest.
8. The development application does not demonstrate whether the site is suitable for the disposal of effluent generated by the proposed development.
9. The site is unsuitable for the proposed development.
10. The proposed development is inconsistent with the objectives of the "rural living" zone as outlined in Draft Amendment 108 to the Hawkesbury Local Environmental Plan 1989.
11. The proposed subdivision is likely to set an undesirable precedent for the subdivision of rural land.
12. The SEPP 1 objection submitted with the application does not demonstrate that in the circumstances, the development standards outlined in Clause 11 of the Hawkesbury Local Environmental Plan 1989 are unreasonable or unnecessary or would tend to hinder the attainment of the objectives outlined in Section 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979.
13. The applicant has failed to indicate that the proposed development involves "integrated development" as defined under section 91 of the Environmental Planning and Assessment Act 1979. It is noted that the proposed development requires approval under Section 100b of the Rural Fires Act 1997. The hearing 15 The appeal was filed on 21 June 2004 and is within time. 16 At the hearing the court received a statement of basic facts on behalf of the respondent council from Mr K Okorn, town planner of Hawkesbury City Council. 17 On behalf of the applicant evidence was given by: · Mr Fiander's hydraulic consultant concerning on-site 'Ecomax' disposal; · Mr Brooks, heritage consultant; · Mr J Travers, bushfire and environmental specialist; and · Mr J Chetham, landscape architect.

18 Mr M E Ball, consultant town planner was the Court-appointed expert who supported the application. The issues 19 On 28 September 2004 the council filed a further amended statement of issues. Allotment size 1. Whether the proposal should be approved having regard to the fact that the proposal breaches the development standard contained in clause 11 of the Hawkesbury Local Environmental Plan 1989 ("the LEP"). 1.1 Clause 11 of the LEP provides that Council may consent to the subdivision of land if, in the case of land within the Rural 1(c1) zone, each separate allotment created has an area of not less than 4 hectares. The proposed allotments are substantially less than the minimum allotment size development standard, having areas of 9,503 sqm and 2,616 sqm respectively. 1.2 The approval of the proposed subdivision would be contrary to the intent of this development standard, which is to prevent further fragmentation of land holdings in the 1(c1) Zone. The underlying intent behind the standard is to ensure that subdivision of land in the future does not allow allotment areas to fall below this standard so as to maintain the existing rural character of zone. The relaxation of this standard in this case would therefore set an undesirable precedent, and would be contrary to the Council's long term planning objectives. 1.3 As a result of the breach of this development standard, the proposal is inconsistent with objective (e) of the 1(c1) Zone: "ensure that development maintains the rural character of the locality..." and the General Principles and Aims of the Hawkesbury Development Control Plan (DCP). In particular: 1.3.1 Part D, Chapter 3 Section 3.1 - General Principles: "establish a consistent approach to the creation of rural residential lots throughout the Hawkesbury" and "address long term planning objectives as contained in the Hawkesbury LEP by the creation of lots in location and of sizes consistent with those objectives". 1.3.2 Part D, Chapter 3 Section 3.8 - Aim (b) "to ensure that rural subdivision takes account of physical constraints such as bushfire" and (c) "To ensure that subdivision reinforces the rural character of the city". 1.4 The proposal is inconsistent with objective (b) of the 1 (c1) Zone objectives, namely to maintain a subdivision pattern which permits the land to be subdivided for an urban use where such a use has been identified as being appropriate in the long term. 1.5 The approval of the proposal, and any precedent it may set, would have the potential to contribute to urban sprawl by allowing for denser development in an otherwise rural zone, and is therefore contrary to the aim, general planning considerations and specific planning policies and recommended strategies contained in Sydney Regional Environmental Plan No 20 ("SREP20"), particularly "(9) Rural Residential development". 1.6 For the reasons particularised above, the Applicant has not demonstrated that compliance with the standard is unreasonable or unnecessary or would tend to hinder the attainment of the objects of the Act and should therefore not be supported. Planning History of the Site/ inappropriate SEPP1 objection 2. Whether the Applicant's SEPP 1 objection should also be rejected having regard to the planning history of the site. 2.1 Detached Dual Occupancies are prohibited in the 1(cl) Zone Development consent/ building approval (DA 249/89 and BA 914/89) for the construction of the second dwelling house was issued by the Council in 1989 on the condition that the existing cottage known as "Curraweena" be demolished within 60 days of occupation of the new dwelling. As a result of correspondence between the Applicant and Council in relation to the fact that the Applicant had leased "Curraweena", the Council's General Purpose Committee resolved that the condition requiring that "Curraweena" be rendered non-habitable be deferred until the end of the existing tenancy or the end of February 1993. 2.2 In November 1992 the Applicant submitted a development application for the use of "Curraweena" as a small primary school. Council approved this development application on 17 February 1993. The use of "Curraweena" for a purpose other than a dwelling house was permissible under cl 15(4) of the LEP. 2.3 In May 1998 the Applicant requested that Curraweena be listed as a heritage item, and the property was so listed in March 2001. This enabled the Applicant to rely upon the heritage incentives contained in Clause 29 of the LEP, allowing the use of Curraweena as a dwelling house where it would otherwise have been prohibited under cl15 of the LEP. However, Clause 29 does not allow the allotment size development standard to be breached, as subdivision is not a use of land. 2.4 The approval to use the heritage building for residential purposes was therefore subject to Council being satisfied that the conservation of the building would be assisted by granting this approval. Approval to retain two separate dwellings on the site and to use both of these dwellings for residential purposes is inherently linked to the conservation of the heritage item on the site. 2.5 The fact that there are "existing disparate uses" on the site (where such a situation would otherwise be prohibited but for clauses 15(4) and 29 of the LEP) must be viewed against the planning history of the site. This fact should not be used as grounds for breaching a development standard, which would have the potential to allow further development on each non-complying allotment for a range of purposes, and would therefore be contrary to the underlying intent of the development standard. Draft LEP 3. Whether the proposal is inconsistent with the Draft Hawkesbury Local Environmental Plan 1989 (Amendment No 108) ("the Draft LEP"). 3.1 Clause 11(2) of the Draft LEP does not modify the current standard. It provides that Council may consent to the subdivision of land in the Rural Living Zone (the new zoning of the subject site) if the area of each of the allotments to be created is not less than 4 hectares. As particularised above, the proposed development does not comply with this standard. 3.2 Clause 11(3)(d) of the Draft LEP provides that Council may only grant consent for the subdivision of land under clause 11 if: "the allotments created contain areas for a dwelling house, bushfire protection zones and effluent disposal areas". The proposed subdivision will not provide sufficient areas for bushfire protection purposes. 3.3 For the reasons particularised above, the proposal is inconsistent with object (a) of the Rural Living Zone under the draft LEP. Draft State Environmental Planning Policy (Application of Development Standards) 2004 4. The proposed subdivision is contrary to Draft State Environmental Planning Policy (Application of Development Standards) 2004 in particular clause 8(2)(a), (b) and (c). 4.1 The existing allotment is 30.3% of the minimum area specified in the allotment area development standard specified in cl 11 of the LEP. The larger of the proposed allotments is 23.76% of the minimum area specified in the allotment area development standard specified in cl 11 of the LEP. The smaller of the proposed allotments is 6.54% of the minimum area specified in the allotment area development standard specified in cl 11 of the LEP. Bushfire Protection 5. The proposal does not comply with "Planning for Bushfire Protection, 2001". 5.1 The proposed subdivision is located on bushfire prone land. Part C, Chapter 5 of the DCP requires development to comply with Planning for Bushfire Protection 2001. 5.2 The applicant has provided a Bushfire Threat Assessment which shows the subdivision does not comply with the Planning for Bushfire Protection 2001 document.

20 The salient issue whether the breach of the minimum allotment size development standard contained in cl 11 of the LEP 1989 may be upheld under the provisions of SEPP1. The evidence and findings Breach the development standard 21 His Honour Justice Lloyd in Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001 paras 22 - 26 formulated a planning principle applicable in the present situation. His Honour at para 26 stated that in applying the principles of Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported): …it seems to me that SEPP1 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 section 5(a)(i) and (ii) of the EPA Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection well founded? In relation to the fourth question, it seems to me that one must 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. 22 In considering the SEPP1 objection to the minimum allotment size standard of the LEP1989 in the light of the principles referred to above I have taken each question posed by his Honour Lloyd J and answered it. I have concluded that: · Firstly, the parties have agreed that the planning control of minimum allotment size in cl 11 of the LEP1989 is a development standard. · Secondly, the underlying object or purpose of the development standard is to maintain a rural/ residential life-style with self-sufficiency of services whilst maintaining the existing rural character. · Thirdly, I am satisfied that compliance with the development standard would not tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act for the orderly and economic use of land. If the density of development were increased by the proposed subdivision it might be expected that the value of the land might increase over that of neighbouring land where the allotment sizes are greater. This would be likely to disturb the market for land and would be inconsistent with the objects of the Act. · Fourthly, I am satisfied that compliance with the development standard would not be unreasonable or unnecessary in the circumstances of the case. The 4 ha standard has work to do in regulating the size and use of land in the 1(c1) zone. The flexibility presently available under SEPP1 would be inappropriately utilised in this case. The SEPP1 objection relies, in large part, on the propositions that: Sound town planning dictates that rural/ residential allotments should not contain more than one dwelling. …the proposed allotments "existing" in a physical sense already if not in title. I am satisfied that those propositions considered separately, together or in combination with others set out above by the applicant in the SEPP1 objection, are insufficient to justify a departure from the standard. If those propositions were accepted, land could be subdivided in this zone into small lots of less than 4 ha, provided necessary services could be provided on-site. This might mean allotment sizes down to normal subdivision size of around 1,000m2 or ¼ acre, where the absorption characteristics of the soil on the lot are able to accommodate the expected rate of effluent disposal. It is noted in this case that the land is on town water, thus tank water is not required. As far as possible the 4 ha standard should be maintained for rural/ residential environmental reasons to meet the underlying objects of the standard. Obviously, this is difficult where there the lot is already below the minimum allotment size standard, as is the case here, with an existing area of only 1.212 ha. However, whilst applying the flexibility afforded by SEPP1, that lot size should not be reduced further without good cause. There are options open to the applicant to maintain the existing allotment size. In this regard, it is appropriate to ask whether a development, which complies, with the development standard is unreasonable or unnecessary. Given the heritage listing, the existing dwelling on the existing lot of 1.212 ha could be used, with the consent of the council, for any compatible use including by rural-workers or for residential purposes without further subdivision. Its use, given the heritage listing, would not constrained to those uses contained in the normal land use table applying in the rural 1(c1) zone. When consent was given for the new second dwelling on the land, which has since been erected, it was on the condition and understanding that the original dwelling 'Curraweena' would be demolished. The applicant has prevailed on the council to remove that condition of consent and applied for the heritage listing. However, with the acquiescence of the heritage consultants, the original dwelling on the land might be relocated so as to become an annex of the new dwelling. This would also resolve the problem of bushfire safety and the need of a s 88B instrument to ensure the asset protection zone, (APZ) is maintained for the benefit of one lot over another. This would be on the basis that only one APZ for one dwelling on the one lot would be required. Mr Berveling submitted that such a solution would offend heritage principles. However, what is proposed would offend minimum lot size objectives and the Court is required to balance competing principles and in this case it might be appropriate for heritage principles to be overridden to provide one dwelling on one presently undersized lot. Much would depend on the importance of the heritage item and its ability to be moved. I understand that the existing dwelling is timber-framed and could be moved. Leaving the land un-subdivided, and by connecting the two dwellings, say by a covered way and using the two dwellings as one, would achieve the same end of one dwelling on one lot and would achieve a greater compliance with the minimum lot size standard than that proposed. This would require a more extensive APZ than with the above option, but that APZ would be within the one allotment and not as presently proposed on two. Again this would obviate the need for a s 88B instrument to ensure the APZ is maintained for the benefit of one lot over another. Mr Berveling submitted that the covered way would be too long and undulating but that is a matter of design. Either way the essence of the original approval for one dwelling on the 1.212 ha parcel of land would be carried into effect and the heritage item incorporated and protected from demolition. I am satisfied that the underlying principles of the minimum allotment size standard would be better met by leaving the land in its present configuration, notwithstanding the evidence of Messrs Ball and Falson to the contrary. The State Government presently is reviewing SEPP1 and the draft SEPP1 is expected to reduce the flexibility of the policy. If as presently proposed under the draft, the limit of flexibility would be 10%, the existing lot size would not be permissible and certainly the proposed subdivision into two allotments would not be permissible. As Cripps J in the Hooker Corporation case noted the absence of environmental harm is not sufficient to found an SEPP1 objection. Thus I have given little weight to the applicant's contention that as a result of the proposal to subdivide there would be: …no adverse impact on existing rural/ residential amenity and there will be positive outcomes in that separate title will recognise the physical separation of the dwellings and their use whilst also recognising this separation in title. I am satisfied that the character of the area would be better maintained were the land to remain un-subdivided and to more closely comply with the minimum allotment size standard. · Consequently I am satisfied; fifthly, the objection is not well founded. 23 Thus, I am satisfied that the SEPP1 objection should not be upheld. 24 It is not necessary for me to examine any other issues, however Mr Cole raised the issue of precedent. Precedent 25 As Mr Berveling and I agreed, the Court often places little weight on precedent. However, in BP Australia Limited v Campbelltown City Council (1994) 83 LGERA 274 in the course of upholding a decision of Bignold J to refuse consent to a development application Mahoney JA with Meagher and Powell JJ agreeing, said (at 279) that his Honour was not in error to give weight to "…the risk of establishing a precedent readily invokable by prospective developers of the residue of the undeveloped 'island' land". This decision and others were referred to in the decision of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 and his Honour recognised that he was bound by the Court of Appeal decision in BP Australia. 26 I note in the present case that the land abutting the subject land described as being a lot in DP 502850 of 13.13 ha was combined with the abutting lot in DP 374602 of 15.43 ha and was subdivided by 2004 into at least 6 lots of around 4 ha and one lot of 5.13 ha, [Note: Exhibit 1 Tab 11]. This subdivision, which respects the prevailing planning control, is closer to the Kurrajong Town Centre than that proposed. Nearby there are other land holdings, larger than 4 ha, which have the potential to be subdivided further under the minimum allotment size planning control of 4 ha. However, if approval were given by the Court to lot sizes of less than 4 ha, there is a likelihood that if heritage buildings were present on that land, and there are some nearby, that lot sizes of less than 4 ha might be applied for. 27 For the above reasons, despite the application of the parties for a consent award, the appeal is dismissed. Orders 28 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. The State Environmental Planning Policy No 1 objection to the minimum allotment size standard of cl 11 of the Hawkesbury Local Environmental Plan 1989 is not upheld.

3. Development application No 0955/03 lodged with the respondent council on 14 August 2003 to subdivide into two allotments with areas of 9,503m2 and 2,616m2 land at Lot B, DP 416222, being Nos 1027 and 1033 Grose Vale Road, Kurrajong, is refused consent.

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