Rooke v Great Lakes Council

CASES CITED: Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46; Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

APPLICANT Mr P Tomasetti SC SOLICITORS D C Balog & Associates

LEGAL REPRESENTATIVES: RESPONDENT Mr I Hemmings, barrister SOLICITORS Mallik Rees Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of Development Application 1098/2005 by Great Lakes Council (the council) for the subdivision of an existing lot into two lots and the erection of a dwelling on a new lot at 259 Cape Hawke Drive, Forster (the site). The site 2 The site is Lot 14 in DP 262992. It is irregularly shaped and effectively consists of two sections with only a narrow area of land joining the two sections. The northern boundary extends 304.1 m in three sections, the southern boundary has a length of 309.7 m and follows Cape Hawke Drive, the western boundary has a length of 124.22 m and the eastern boundary has a length of 40 m. The total site area is 1.404 ha.

3 The general area is rural/residential in character with large residential dwellings located within the landscaped grounds. The proposal 4 The proposal provides for the subdivision of Lot 14 into two lots (see Attachment 1). Proposed Lot 140 is in the western section of the site and will have an area of 7423 sq m. This lot will contain the existing dwelling. Proposed Lot 141 is in the eastern section of the site and will have an area of 6640 sq m. A two-storey dwelling is to be constructed on proposed Lot 141 with access from Cape Hawke Drive. Relevant planning controls 5 The site is within Zone 1(d) - Small Holdings under Great Lakes Local Environmental Plan 1996 (LEP 1996). The subdivision of land and the erection of a dwelling are permissible within this zone. Clause 8 provides that consent must not be granted unless the aims of the plans have been considered and the proposed development is consistent with at least one of the objectives of the zone. The aims of the plan are found in cl 3. The relevant objective of the zone is: (a) Objective (a) to enable development for the purpose of small rural residential holdings and dwellings to be carried out: (i) on land which is suitable for that development; and (ii) which is unlikely to create a demand for the uneconomic provision of services; and (iii) which will not significantly detract from the scenic quality of land within the zone; and (iv) which will maintain the amenity of existing rural - residential lots in the locality. 6 Clause 17(4) provides that land within Zone 1(d) shall be subdivided only if each allotment will have an area not less than 1 ha. An objection pursuant to State Environmental Planning Policy No 1 - Development Standards (SEPP 1) was provided to show why strict compliance with cl 17(4) was unreasonable and unnecessary in this instance. The concurrence from the Director of the Department of Planning has been received.

7 Great Lakes Development Control Plan No 31 - Subdivision (DCP 31) also applies. Part 3 provides controls for residential subdivision.

8 State Environmental Planning Policy No 71 - Coastal Protection (SEPP 71) applies as the land is in the Coastal Zone. Clause 8 provides matters for consideration. 9 The proposed development is also defined as Integrated Development as approval is required from the NSW Rural Fire Service under s 100B of the Rural Fires Act 1997 for a Bushfire Safety Authority. A Bushfire Safety Authority has been issued. The issues 10 The Statement of Issues raises the following matters: 1) whether the previous clearing of vegetation on the property affects the proposed development, 2) whether the SEPP 1 objection is well founded, and 3) whether the proposed development will set an unacceptable precedent. The evidence 11 On the planning issues, Mr Simon Carroll provided evidence for the applicant and Mr Wayne Burgess provided evidence for the council. On the ecological issues, Mr Brett Campbell provided evidence for the applicant and Mr Mat Bell provided evidence for the council.

12 There were no objections from local residents to the proposed development. Previous clearing of vegetation 13 The applicant removed some 14 trees part from the western end of the site around November 2004. The removal of the trees was the subject of proceedings instigated by the council in Forster Local Court on 4 May 2005 where the applicant pleaded guilty to the removal of the trees and was convicted and fined $4000 plus court costs.

14 Mr Burgess and Mr Bell placed considerable emphasis on the previous tree removal in their opposition to the proposed development. To allow the matter to proceed (without necessarily deciding whether this approach was appropriate)) Mr Burgess and Mr Bell were requested to provide supplementary evidence putting aside the previous clearing of vegetation and assessing the development application on the site in its current state. 15 Mr Tomasetti SC, for the applicant, submitted that this was not a position that could be reasonably taken considering that this matter had been dealt with by Forster Local Court. He further submitted that the applicant had prepared a Vegetation Management Plan (VMP) to rehabilitate the cleared area of the site and had already spent over $8000 on vegetation and management of the cleared area.

16 In considering the two different points of view, I am satisfied that the site should be considered as it was at the time of the hearing. I have come to this conclusion from number of reasons. Firstly, Forster Local Court has dealt with the issue of the tree removal on 4 May 2005. While the loss of the trees is regrettable the previous actions of the applicant should not be a barrier to the reasonable development of the site. Class 1 proceedings in the Court involve a merit assessment of the application and are not a punitive process. 17 Secondly, I accept that reasonable attempts have been made by the applicant to reinstate that part of the site not needed to accommodate a dwelling through the VMP and additional planting. While Mr Hemmings, for the council, submitted that the documentation provided as part of the Local Court proceedings indicated that the total area was to be revegetated, the evidence did not indicate this to be the case.

18 Thirdly, and even accepting that the trees that were removed may have been part of an endangered ecological community, the potential still exists for some trees to be removed to allow the construction of a dwelling on that part of the site, subject to the requirements of s 5A of the Environmental Planning and Assessment Act 1979.

The SEPP 1 objection 19 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 asked. 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 third question asks whether compliance with the development standard is consistent with the aims 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. 20 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. 21 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.

22 LEP 1996 does not provide specific objectives for the minimum area development standard. The SEPP 1 objection adopts zone objective (b) as the underlying objectives for the minimum area development standard. These objectives relate to: o the suitability of the site for subdivision and the erection of a dwelling, o impact on demand for services, o scenic quality, and o maintenance of existing amenity 23 Mr Burgess stated that the underlying objective or purpose of the standard is to provide a suitable and reasonable area for a dwelling house and to enable the owners of land to have the ability to undertake smaller rural use activities without compromising the amenity of the rural area. In his opinion, the subdivision will effectively introduce a whole new residential character to area set aside for rural residential small holding development. In this case, the applicant is endeavouring to provide as much landscaping as possible in order to screen the development, however this reduces the area available for smaller rural use activities such as market gardens. 24 Mr Carroll states that the underlying purpose of the minimum area development standard is to minimise the circumstances where the uncoordinated subdivision of land within this zone is likely to create a demand for the uneconomic provision of services. The purpose is also to maintain a situation where the amenity and character of existing rural residential allotments is maintained. In this regard, the character of the Cape Hawke area is predominantly large lot housing such that there are variations in terms of the usability of land. In his opinion, the ability to use parts of a lot for small scale rural activities is not necessarily relevant to the identification of the underlying purpose of the development standard. 25 In identifying the underlying purpose of the minimum area development standard, I am satisfied that zone objective (b) provides a helpful guide in the absence of any specific objectives. As stated by Mr Carroll, I also accept that an underlying objective is also to maintain a character created by lots of a particular size. I do not however accept the evidence of Mr Burgess that an underlying objective would be to make provision for small scale rural activities. Rural activities, (such as market gardens) are extremely unlikely, particularly on an area of 1 ha and considering the existing form of development within Zone 1(d) that comprises almost totally of large residential dwellings in landscaped settings. 26 If the proposal is tested against the underlying objectives of the development standard, I am satisfied that the proposal is acceptable. There was no evidence to suggest why the site is not suitable for subdivision and the erection of a dwelling. The council raised no issue with the design of the proposed dwelling, its access (despite the relatively steep nature of the site) and the requirements for bushfire protection. 27 There was also no evidence to suggest that the erection of an additional dwelling in the Cape Hawke area is likely to place any unreasonable demands on existing services.

28 The impact on the scenic quality of the area is an important consideration. It is a matter raised by SEPP 71, as well LEP 1996. In this case, I am satisfied that any impact on the scenic quality of the area through the erection of an additional dwelling is negligible, at best. The site has a backdrop of native vegetation and while the dwelling is likely to the visible from Cape Hawke Drive, I am not satisfied that it has an unacceptable impact. The proposed vegetation will provide some screening and be compatible with the native vegetation near the site and in the general area. The separation between the existing dwelling and the proposed dwelling is consistent with rural residential development in the Cape Hawke area. 29 The character of the area is largely determined by the pattern of the existing rural residential development. Mr Carroll calculates that at least 81% of the existing lots in the Cape Hawke Estate have an area of less than 1 ha and 51% have an area of less than 7000 sq m. It was explained to the Court that the Cape Hawke Estate was developed under a different planning regime to LEP 1996 however in any assessment of character, the lots proposed in this development application are clearly consistent with the size of the existing lots and as such the proposal could not be seen to be inconsistent or out of character with the surrounding area. I see no reason why the proposed development would not maintain the existing amenity of the area.

30 In my view, the subdivision and proposed dwelling will simply be viewed as a minor and largely unnoticeable extension to the existing rural residential development in the Cape Hawke area.

31 For the reasons mentioned above, I am satisfied that, in the circumstances of this case, strict compliance with the development standard in cl 17(4) would be unreasonable and unnecessary and tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act. It follows that the objection is well founded. 32 I also accept that having considered the aims of the plan and with the proposed development being consistent with at least one of the objectives of the zone, cl 8 of LEP 1996 provides no basis for the refusal of the application. Precedent 33 Precedent is a valid planning consideration (Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75). Mr Burgess identified 3 other lots to the west and south of the site that are of a similar size to the site. In his opinion, the approval of the application could encourage the owners of the 3 properties to seek a similar approval.

34 The site clearly has specific characteristics, such as the shape of the site and the ability to construct a dwelling, that support the application. These are individual merit considerations that do not necessarily apply to other sites. While it is always possible that development applications could be lodged to subdivide the 3 properties identified by Mr Burgess, I do not accept that the potential subdivision of these sites is a valid reason to support the refusal of the development application. Clearly, any application to subdivide any other sites would need to be considered on their individual merits. Conditions 35 The following conditions are in dispute between the parties:

Part A - Deferred Commencement Conditions 1 and 2 36 The conditions require an amended and updated VMP as a deferred commencement requirement. The applicant accepts the need for the amended and updated VMP but submits that the requirement should be an operational condition.

37 I accept the applicant's approach, as there is no reason to make the requirement for an amended and updated VMP a deferred commencement requirement. The contents of the amended VMP are likely to be uncontroversial and certainty is provided to the council that the appropriate documentation will be provided to their satisfaction, as the Subdivision Certificate cannot be issued until the condition is satisfied. Condition 51 38 This condition requires any stormwater not to affect any structures or cause a nuisance to adjoining properties. The applicant seeks the deletion of this condition, as condition 19 requires all stormwater to be drained to the council's stormwater drainage system.

39 I accept the applicant's submission and delete condition 51.

Orders 40 For the reasons in the preceding paragraphs, the Orders of the Court are: 1) The appeal is upheld. 2) Development Application 1098/2005 for the subdivision of an existing lot into two lots and the erection of a dwelling on a new lot at 259 Cape Hawke Drive, Forster is approved subject to the conditions in Annexure A. 3) The exhibits are returned with the exception of exhibit G.

      G T Brown
      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.