Rose v The Hills Shire Council

CASES CITED: Wehbe v Pittwater Council [2007] NSWLEC 827 [2009] NSWLEC 1215; Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46; Daly v Wollondilly (2006) unreported

APPLICANT Mr C Gough (solicitor) SOLICITOR Storey and Gough

LEGAL REPRESENTATIVES: RESPONDENT Mr J Kildea (barrister) BARRISTER Wentworth Chambers instructed by Mr C Winn (solicitor) The Hills Shire Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 COMMISSIONER: This is a s 97 appeal under the Environmental Planning and Assessment Act, 1979 against the deemed refusal of a development application No. 723/2009/ZB for a Torrens Title subdivision and change of use of the rural workers dwelling into a dwelling at 6 Johns Road, Maraylya and the creation of two separate allotments.

2 I had the benefit of viewing the site on 15 June 2009, during which time the parties took me to various relevant locations.

3 These included inspection of the proposed line of subdivision, the waste water treatment systems and views of the location of a former gasoline tank close to the boundary of the property along St Johns Road. The subject site 4 The site is located in the suburb of Maraylya and is known legally as Lot 1 DP 669029. The lot is irregular in shape and has a total area of 9.3 ha with a frontage to St Johns Road of 246.88 m.

5 The lot contains two dwellings. The main house is a part one and two storey dwelling with three bedrooms, one bathroom and a double garage and is located towards the front of the subject site. The second dwelling is located toward the rear of the site and consists of five bedrooms, two bathrooms, a double car garage and a carport. Significantly, this dwelling is registered as a rural workers dwelling. The conditions of consent stated that this second dwelling was "only to be used to accommodate a person employed or engaged by the owner in the use of that land for the purpose of a horse stud (i.e. animal boarding, breeding or training establishment)".

6 The site contains a significant coverage of shale/sandstone transition forest and Cumberland Plain woodland on its northern and eastern sides, which is connected to other bushland on adjoining lots. Both of the vegetation communities are listed under the Threatened Species Conservation Act 1995 as being endangered (see NSW Scientific Committee final determinations). These communities are not affected by the proposal. Background history of development at the subject site. 7 The subject Lot, DP 669029, was known formerly as Part B Lot 3 in DP 358770 created by subdivision on 15 April 1947. Lot No. DP 669029 was issued on 14 October 1997 to provide unique identification. On 14 November 1961 Baulkham Hills Shire Council granted permission (Permit No. 3585) for the installation of a petrol bowser for use with a 'carrying business' (primary products) being undertaken at the site. This use is now discontinued and the tank, according to the applicant has been in-filled in the ground.

8 The applicant received approval (D 82/70) on 6 April 1982 for the construction of a second dwelling (the rural workers dwelling) on the subject land.

9 The applicant submitted and received approval for a further development application, No. D 89/614, on 24 August 1989 for the repositioning of the existing dwelling house on the lot. This dwelling house is the main house, which at the time was located adjacent to St Johns Road. The proposal, which was acted upon moved the house to its current position to the east of the lot so that it is now setback from St Johns Road.

10 The current development application is for the following items: o Development Application No. 723/2009/ZB seeks approval for the Torrens Title subdivision of a property located at 6 St Johns Road, Maraylya into two allotments. o The application also seeks approval for the change of use a rural workers dwelling (located within the proposed Lot 11) to a dwelling house. 11 The proposed Lot 11 is to have an area of 4.65 ha and is to be a battle axe allotment. Access is proposed to be provided by an access handle 9 m wide and approximately 130 m in length. The allotment is to retain the rural workers dwelling (as a dwelling house), sheds and other improvements. The adjoining lot, the proposed Lot 12, is to have a frontage to St Johns Road of 234.295 m and an area of 4.65 ha. The allotment is to retain the site's existing dwelling house. The application does not seek approval for any other physical works. Legislative and planning framework 12 The principal instrument controlling development in the area is the Baulkham Hills Local Environmental Plan 2005. Additional relevant instruments for this application are the Baulkham Hills Development Control Plan - Rural 2008, the Baulkham Hills Development Control Plan - Onsite Sewage Management Systems 2007, the State Environmental Planning Policy 55-Remediation of Land and also the State Environmental Planning Policy 1 - Development Standards. SEPP 1 forms the critical threshold issue for this case, which is dealt with below. The main issues 13 The subject property is within Zone 1(a) (Rural 1(a) Zone), Part 2, General Restrictions on development of land, clauses 12 and 13 including the relevant table in the Baulkham Hills LEP. As a result of this restriction, the applicant had to submit a SEPP 1 objection because the proposal to subdivide the land in Zone 1(a) would create an allotment of less than 40 ha, as is required in this area under clause 18(1)(a) of the Baulkham Hills LEP.

14 Variations to this prohibition are permitted in clause 18(5) of the LEP but these are not relevant to the application.

15 Other significant and relevant matters in the case included the adequacy of the on-site sewerage management systems for both the extant dwellings (Baulkham Hills DCP - On-site Sewerage Management Systems, 2007). The council contended that the systems needed to be assessed to ascertain if there were adequate disposal areas (clause 3.1.5 of the Baulkham Hills DCP - On-site Sewerage Management Systems, 2007).

16 In addition, the respondent also pressed the claim that the area of land that had once been used to house the petrol bowser and its associated 500 gallon petrol tank (equivalent to an area of ~2.27 m3) would need to be assessed for contamination as per SEPP 55, clause 7(1). In the event of approval the council pressed that a condition be imposed requiring a contaminated land assessment to be undertaken.

17 In the case of the wastewater treatment systems and the contamination contentions, the applicant rejected the council's arguments, but offered without prejudice during the course of the hearing to accept conditions of consent to deal with these issues should approval be granted. SEPP 1 Objection 18 Before moving to assess the merits of the contentions relating to the wastewater or contamination issue, it is necessary for me to first consider the applicant's SEPP 1 objection. However, I note that in this particular case, given my capacity to resolve the issues of contamination and wastewater by conditions of consent, the SEPP 1 objection application is the threshold issue of whether the proposal should be approved or rejected.

19 The aims of the SEPP 1 are as follows: Clause 3, Aims and objectives: 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 or unnecessary or tend to hinder the attainment of the objects specified in section 5 (a) (i) and (ii) of the Act. 20 The essential question that needs to be addressed in respect of SEPP 1 is whether or not the development, despite numerical non-compliance, will still achieve the objectives of the Baulkham Hills LEP as well as the broader planning objectives of the locality. If the development does meet the objectives, then strict compliance with the development standards would be unnecessary and unreasonable.

21 With respect to the land zoned Rural 1(a) the objectives (Baulkham Hills LEP, clause 13) are as follows: (a) to ensure that existing or potentially productive agricultural land is not withdrawn prematurely from agricultural production, and

(b) to ensure that development is carried out in a manner that minimises risks from natural hazards and does not unreasonably increase demand for public services and public facilities, and

(c) to provide land on which development may be carried out that assists the operation and functioning of development in adjoining residential areas, 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 ensure that development of land within the zone does not hinder the proper and orderly development of any future urban land. 22 The land to which the SEPP 1 applies is subject to the development standards contained in Baulkham Hills LEP, which requires a minimum allotment size of 40 ha. The current proposal seeks to subdivide the land into two allotments of equal size, each being 4.65 ha. Consequently, the proposals do not comply with clause 18(1)(a) of the Baulkham Hills LEP, with respect to the minimum allotment size.

23 The applicants SEPP 1 objection has been prepared in an attempt to show that the standard is unreasonable or necessary.

24 In presenting their SEPP 1, the applicant relied upon Justice Lloyd's decision Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 as a framework for their submission. In this decision Justice Lloyd proposed five questions that need to be addressed in order to understand whether the SEPP 1 should be upheld or not. Question 1 - Is the planning control in question a development standard? 25 Both parties agree that the answer to this question is 'Yes' since clause 18(1) of the Baulkham Hills LEP is a provision within an Environmental Planning Instrument (EPI) that seeks to regulate the area of the land. The definition of a development standard is set out in the Environmental Planning and Assessment Act 1979 in s 4 (Definitions): development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of: (a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point, Question 2: What is the underlying objective or purpose of the standard? 26 The applicant argued in their SEPP 1 objection that the Baulkham Hills LEP does not specify the objectives behind clause 18. I do not accept that argument since clause 18 refers to (inter alia, subdivision of land in zone 1(a)).

27 Further, in clause 13 of the Baulkham Hills LEP the objectives of this zone are provided in the corresponding table. The council noted that the relevant objectives from this table in respect of this matter are: (a) to ensure that existing or potentially productive agricultural land is not withdrawn prematurely from agricultural production,

(f) to ensure that development of land within the zone does not hinder the proper and orderly development of any future urban land. 28 The applicant deals with the objectives in Rural Zone 1(a) - (f) separately, although refers to these as the "broad objectives of the locality". Instead, the applicant defers to "other relevant planning instruments or policies", namely the Baulkham Hills DCP - Rural 2008. Although this DCP has relevance in that it states: 2.1 Rural 1(a) The Rural 1(a) zone seeks to ensure that interim development for rural and urban support purposes does not conflict with the conflict with the objectives for future urban development; it is not the primary instrument. The primary instrument is the Baulkham Hills LEP as it contains the appropriate development standards.

29 Given that the council contends that the relevant issues of the case relate to the objectives (a) and (f) in the table for land zoned Rural 1(a) in the Baulkham Hills LEP. I agree with these contentions and therefore these two objectives will form the focus of my assessment.

30 The applicant argues that the subject land is not productive agricultural land and is not suitable for intensive agriculture or other reasonable rural development. Therefore, the applicant contends the non-compliance arising out of the development application will not conflict with objective (a) for land zoned Rural 1(a) in the LEP.

31 The Baulkham Hills LEP (s 5, Definitions) defines agriculture as follows: agriculture includes horticulture and the use of land for any purpose of husbandry, including the keeping or breeding of livestock, poultry or bees, and the growing of fruit, vegetables and the like but, in the Table to clause 13, not for the purpose of intensive animal industries or intensive horticulture establishments. 32 The subject land was used most recently for keeping horses (as per the 1982 consent D 82/70). This use has been abandoned because the applicant contends it is not a productive use. However, the evidence provided during the hearing revealed that the property had supported the following agricultural activities over the recent past: 1951 - Poultry farm 1961 - Horticulture (type unknown) 1977 - Horticulture (type unknown) 1982 - Horse stud for breeding etc.

33 The applicant has not provided an agricultural economic report to demonstrate unequivocally that the land cannot be used for viable agricultural production, including, but not limited to the items defined under agriculture in section 5 of the Baulkham Hills LEP.

34 Consequently, I am not satisfied that the applicant has demonstrated unequivocally that this proposal will not result in the loss of existing or potentially productive agricultural land.

35 The applicant's response to objective (f) of Rural Zone 1(a) is that granting subdivision will facilitate proper and orderly economic development of the subject property. The applicant contends that subject site constraints, namely the endangered ecological communities, slope and size limit viable agriculture.

36 It is further argued by the applicant that as the horse stud is no longer viable the second dwelling (the rural workers dwelling) will never be occupied and will fall into disrepair, which is not orderly and economic use of the land.

37 In response, the council contends that the subdivision will fragment further the site and the allotments within the locality and that this would create additional titles, which would present difficulties for any future urban development of the area. In addition, the council also contends with respect to the current zoning, that the subdivision proposal will "further limit the agricultural potential of the land" (Exhibit E, section B 3(v)). Findings 38 The proposal to subdivide the subject land is likely to eradicate any potential current (unexplored) agricultural uses for the land and in this regard it would represent an undesirable outcome with respect to the "orderly development of any future land" (clause 13, Baulkham Hills LEP). The Baulkham Hills DCP - Rural, section 2.1, is also illuminating on this issue. The DCP states that the purpose of the zone is to ensure that development does not prejudice future urban growth.

39 I accept the council's response to the applicant's submissions in that any future development that has to deal with a mosaic of titles on smaller parcels of land will inevitably face difficulties in trying to develop the land for further urban growth. In this sense the proposal will not be of assistance to the future orderly and economic development of the land.

40 The land has also been identified in the SEPP (Sydney Region Growth Centre) 2006 for urban expansion over the next 25-30 years and this proposal is also likely to conflict with the broader long term planning goals. 41 Consequently, in respect of question 2, I find in favour of the council. Question 3: 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 objectives specified in section 5(a)(i) and (i) of the EP& A Act? 42 Relevantly, clause 3 of SEPP 1 states that its aims are to provide flexibility where strict compliance would tend to hinder the attainment of the objectives specified in Section 5(a)(i)(ii) of the Environmental Planning and Assessment Act (EPA Act), 1979.

43 The applicant contends the proposal for a two lot Torrens Title subdivision is orderly and economic use of the land because the land is not productive for agriculture and therefore these natural resources will not be affected.

44 Further, the applicant contends that the proposal would positively affect residential amenity in the locality because it will increase housing stock and permit maintenance of the existing dwelling of the site. Findings 45 This question of agricultural potential has already been addressed in the prevailing paragraphs.

46 The second dwelling at the subject site is only in existence by virtue of the lands' rural use and further subdivision may have the effect of sterilising or diminishing the potential of the land for viable agricultural activities.

47 Furthermore the proposal must also offend section 5(a)(ii) of the EPA Act because the proposed longer-term development and use of the development of the land is for urban development. Fragmentation of this site will only benefit the existing landowners of the subject site. It will do little to protect the longer-term objectives of the zone for future uses as part of proposed future strategic development (inter alia, the SEPP (Sydney Region Growth Centre) 2006). Further, the proposal is also contrary to the objectives of the zone and also those within s 5(a)(i) of the EPA Act.

48 Consequently, I find that the non-compliance with the objectives of clauses 13 and 18 of the Baulkham Hills LEP will hinder the obtainment of the objectives in s 5 of the EPA Act. Therefore, I find in favour of the council on Question 3. Question 4: Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? 49 In response to this question the applicant argues that compliance with clause 18 of Baulkham Hills LEP would not serve an environmental or planning purpose and is therefore unreasonable. The applicant further contends that the current development standard has "no work to do" (Daly v Wollondilly (2006) unreported) because of the existing non-compliance of the current allotment size of 9.3 ha versus the development standard of 40 ha.

50 The applicant argued correctly that none of the adjoining lots in the immediate locality were 40 ha in size, the development standard in the Baulkham Hills LEP at clause 18. The applicant also contended that standard in clause 18 in the LEP has not been consistently applied in the Maraylya locality.

51 The applicant's argument against the reasonableness of the standards was that there was no environmental or planning purpose achieved by complying with clause 18 and that in having to do so would be unreasonable. Further, the applicant contended that compliance would not ensure the proper and orderly economic development of the land.

52 The council did not support the arguments presented by the applicant. Firstly, evidence of the history of the subdivision in the area (Exhibit C) revealed that minus boundary adjustments, there have been no subdivisions approved since the gazetting of the Baulkham Hills LEP in 2005.

53 In 1995 a development application at a nearby site (number S01125) was approved with a successful SEPP 1 objection to create lots 21 and 22. This land is now referred to as lots 31 and 32, DP 872356 following further boundary adjustments in 1997. The council contended this situation is different to the subject site because the site had been previously composed of two separate allotments with two existing dwellings (Exhibit E, section B 3 (v)). Therefore, the council contended that there had been no material deviation from the 40 ha development standard.

54 In regards to the point that the proposed subdivision represents orderly and economic use of the land, the council contended the proposal does not take into account the desired future character of the land. As noted earlier, the council argued that the proposal will fragment the existing agricultural land and therefore on both counts, the application does not represent an appropriate response to the current or longer-term orderly and/or economic use of the land.

Findings 55 After assessing the evidence, it is a matter of fact that there are no lots in the immediate vicinity that are of the development standard size, that being 40 ha, clause 18 Baulkham Hills LEP. However, the question that is posed is whether compliance with the development standard is unreasonable or unnecessary in this particular case. As Preston J noted in Wehbe v Pittwater Council [2007] NSWLEC 827 at [para 43]: "development standards are not ends in themselves but means of achieving ends". 56 The long-term objective for this zone is clear from examination of the Baulkham Hills LEP and Baulkham Hills DCP - Rural. In essence they can be summarised into two primary elements. (i) to protect existing or potentially productive land from being withdrawn prematurely from agricultural production. (ii) to ensure that any development does not detrimentally affect the proper and orderly development of the land in the future, which is proposed to be an urban use. 57 Firstly, the current use of this land is for rural purposes. This is the objective of the current development standard. There has been no agricultural economic evidence provided to demonstrate its current use is and will be uneconomic (as compared to historical uses). Subdivision is more likely than not to reduce the economic capacity of the land by virtue of fragmentation and reduction of critical mass and economic scale of production. Secondly, the future intended end use is clear, it being for further urban development.

58 Any future development on this land is meant to take place in an orderly and economic manner as part of a broad-scale planning initiative, as is identified for example, in the SEPP (Sydney Growth Centres) 2006 document. The current proposal does not satisfy these objectives for they are an opportunistic proposal, one that seeks economic "short-term gains to [the] existing property owners" (Exhibit E, Annexure B, 3(v)). Consequently, the application does not, in reality, address or incorporate the intended current or future end uses of the land in a structured or meaningful way.

59 Therefore, I find that the proposal does not represent a proper or orderly development of the land and does not assist future land uses in a structured manner. Further, the proposal does not meet the intended environmental or planning objectives for this land as zoned Rural 1(a).

60 In summary, I am not satisfied that the proposal passes the test posed in Question 4, which is that compliance with the development standard is unreasonable or unnecessary in this situation. Question 5: Is the objection well founded? 61 The summation of the assessment of Questions 1-4 above is that the applicant's SEPP 1 objection is not well founded and that the non-compliance of the proposal would be an inappropriate response to the development standards and objectives contained in the Baulkham Hills LEP and Baulkham Hills DCP-Rural.

62 In conclusion, I am not satisfied that the SEPP 1 objection is well founded and that it should be allowed in this circumstance.

63 The failure of the applicants SEPP 1 objection means that the proposal cannot progress. However, for completeness, I will make some brief comments on the issues surrounding the wastewater systems and the question of needing to assess for contamination in the area where the former fuel tank was located. Waste Water 64 In regards to this issue, I asked the parties if the presence of a septic tank and on-site sewerage management system meant that the land was in effect sewered. The reason for this question was because under clause 3.1 of the Baulkham Hills DCP- Rural, the following is stated: 3.1(b) Council will not approve the subdivision of unsewered land unless it is demonstrated that an acceptable on-site disposal system can be implemented for each proposed lot. In this respect, development must comply with the requirements of Part D Section 4 - On-Site Sewage Management Systems. 3.1(c) Council will not grant consent to the subdivision of any lot unless it can be demonstrated that the existing lot has a dwelling-house capability including the capability of satisfactorily disposing of effluent on that lot. In this respect, development must comply with the requirements of Part D Section 4 - On-Site Sewage Management Systems. 65 Therefore, if the land can be defined as being 'sewered' by virtue of the on-site sewage system then this would no longer remain an issue. The parties provided written submissions on this point. 66 Clause 1.1 of Baulkham Hills DCP - On-site Sewerage Management Systems, reads relevantly: This section of the DCP applies to land where connection to the reticulated sewerage system of Sydney Water is not available. 67 Clause 2.1 of the Baulkham Hills DCP - On-site Sewerage Management, titled "Systems", relevantly reads: An on-site sewage management system is any system to hold, process, re-use or otherwise dispose of sewage or sewage bi-products and includes but is not limited to the following: Septic Tanks 68 Therefore, by deductive reasoning, 'un-sewered' land means the absence of any facilities to dispose of sewage. Definitions in clause 1.1 of the Baulkham Hills DCP does not define un-sewered land per se, but it does provide direction on how the Baulkham Hills DCP - On-site Sewerage Management Systems is to interpreted, i.e. that the land needs to be connected to the reticulated sewerage system of Sydney Water.

69 However, I accept that the Baulkham Hills DCP - On-site Sewerage Management Systems is not absolutely definitive given the generic definition of a sewer in the Macquarie Dictionary, Revised Third Edition, published 2004, which defines the word "sewer" to mean the following (council's written submissions): "an artificial conduit, usually underground, for carrying off waste water and refuse, as for a town and city"

In addition, I note that the word "sewer" is defined in the Australian Oxford Dictionary (undated) as follows (applicant's written submissions): "noun. (usually underground) pipe or conduit for conveying sewerage"

"noun. drainage by, system or provision of sewers" 70 My interpretation of the intent of the Baulkham Hills DCP is that if the land is not connected to a reticulation system owned by the council or Sydney Water, for example, that it is to be defined as being unsewered.

71 Therefore, any new development must comply with the Baulkham Hills DCP - On Site Sewerage Management System, Part B Section 4. However, where land that has an extant sewerage system such the systems associated with the subject land, which have a sewer pipe and a disposable system, it is difficult to argue that they do not have a 'sewer', at least of some kind (as per the above dictionary definitions). Given that the development application does not propose an increase in the number of rooms/dwellings, I do not see that there is merit in making the applicant comply with the Baulkham Hills DCP- Sewerage guidelines, merely on the basis that the land is being subdivided.

72 However, in the event of a future approval other than with this application where the applicant's SEPP 1 objection has not succeeded, it would be prudent given the age of the wastewater systems (~ 25 years of age), to require that a wastewater treatment expert assess their functioning and capacity. This requirement would not necessarily mean they ought to be made to comply with all the various elements of the Baulkham Hills DCP - On-site Sewerage Management Systems. In particular, I refer to the capacity requirements of new systems (e.g. clauses 3.1.5, 3.2.1 and 3.2.3) where it can be shown that the current system is fit for purpose.

Site contamination 73 The council in submissions pressed the need for the applicant to comply with SEPP 55, which requires the consent authority to not issue consent for any development unless (clause 7.1): (a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. 74 Although the land has not housed a petrol tank for many years, probably since at least 1989 when D 89/614 was approved to reposition the main house on the subject site, a spatially limited assessment would be prudent and precautionary in the event of an approval.

75 I suggest a cautionary approach here for two reasons. First, because there is no evidence to show that the land is not contaminated as a result of the former use of the site for storing and issuing of gasoline for business purposes. Second, SEPP 55 requires that the issue of contamination be considered during the assessment of a development application. Such an assessment can only be undertaken properly with the appropriate evidence. In this case, the court was not provided with any evidence.

76 Such an investigation and remediation ought to be limited initially to the area where the former fuel tank was located, as identified in permit number 3585 of 14 November 1961. Conclusions 77 The applicant's SEPP 1 objection does not in my view demonstrate adequately that despite the non-compliance with the numerical development standard that the proposal still achieves the objectives of the Baulkham Hills LEP. Consequently this appeal should be dismissed.

78 In regards to the issues relating to wastewater management and possible contamination of the land, I have also found that these issues need to be assessed but that they are matters that could form conditions of consent.

79 These evaluations ought to include an assessment of the efficacy of the existing wastewater system and a limited spatial assessment for possible contamination at the site of the former gasoline storage tank on the subject lot. Orders 1. The appeal 10129 of 2009 is refused. 2. The development application No. 723/2009/ZB under section 97 of the Environmental Planning and Assessment Act 1979 for a Torrens Title subdivision into two separate allotments and a change of use of the rural workers dwelling into a dwelling house at 6 Johns Road, Maraylya, is determined by refusal. 3. The exhibits are returned.

      Dr Mark Patrick Taylor
      Commissioner of the Court

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