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