Smith v Wollondilly Shire Council

Smith v Wollondilly Shire Council - [2010] NSWLEC 1104 - NSWLEC 2010 case summary — Zoe

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WLEP zone objectives 12 The planners discussed relevant provisions of the LEP and status of the Draft LEP in the context of the strategic planning for the area and also the adequacy of the SEPP 1 Objection to the minimum lot subdivision standard. Accordingly, the objectives of the 1(a1) rural land in the LEP are: a) to protect the agricultural potential of rural land and to prevent fragmentation of viable rural holdings. b) to prevent inappropriate, premature and sporadic subdivisions and to ensure consolidation of urban areas so as to enhance the prospect of economic provision of services. c) to prevent, on the fringe of urban areas, subdivision of land into small lots which would prejudice the proper layout of additional urban areas as a result of natural growth. d) to retain the scenic quality and overall character of the land, and e) to encourage agricultural activities that are within the rural capability of the land. 13 Mr Goth acknowledges that the proposed lot sizes are significantly below the development standard and that this is inherently due to the size of the existing lot. But this feature of smaller lots is common with all other lots within the 1(a1) surrounding this land. Therefore he says that it is clear that the development standard for this area is inappropriate and needs to be revised, as would its underlying object or purpose. 14 Accordingly Mr Goth refers to the DoP Circular, which advises in these type of circumstances: "If the standard is clearly inappropriate in general terms, the council should review its planning controls by means of a local environmental plan." 15 Consequently, Mr Goth relies on the course of action taken by council in reviewing these planning controls and adopting a new subdivision standard of 2ha in the DWLEP. As the proposal does not comply with these proposed new controls, he does not support the application. Although he conceded that a 2 - lot subdivision was be acceptable. 16 Alternatively, Mr Lewis refers to the current zone objectives and says that the agricultural potential of the land is limited to the grazing of livestock. Given the proximity of existing residential development to the site, it is highly unlikely any type of intensive livestock keeping establishments would be approved if neighbourhood conflict is to be minimised. As the land is not a viable rural holding, he does not consider any agriculture option will be diminished as a result of the development and that the proposal is not inconsistent with objective (i) or the intent of the other objectives. 17 However, Mr Goth maintained his objection because he did not consider that it was sufficiently established that some form of agriculture could not occur. He speculated that either alone or in conjunction with another mutually supporting use, developments such as B & B accommodation could be possible.

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Draft LEP 2009 (DWLEP) 18 The DWLEP is a matter for consideration because a s65 certificate was issued and it was exhibited from 2nd November 2009 to 14th December 2009. I understand from the evidence that the objections are being considered so that a report can be forwarded to the Director General. 19 This DWLEP is in the form of a comprehensive LEP, which is consistent with the Standard Instrument (LEP) Order 2006 (SILEP) template. It incorporates a number of significant features including: The subject land is to be in the RU4 Small Holdings zone where the compulsory objectives are: * To enable sustainable primary industry and other compatible land uses. * To maintain the rural and scenic character of the land. * To ensure that development does not unreasonably increase the demand for public services or public facilities. * To minimise conflict between land uses within the zone and land uses within adjoining zones. The minimum lot size for subdivision is 2ha. A variation to this minimum lot size may be permitted but only if not more than 2 undersized lots are created and/or if none of the lots result in a lot size of less than 90% of the lot size. Clause 4.6 deals with exceptions to the development standards on the basis that SEPP 1 does not apply. 20 Relevantly the DWLEP contains the following cl 1.8A savings provision: "If a development application has been made before the commencement of the Plan in relation to land to which this Plan applies and the application has not been finally determined before commencement, the application must be determined as if the Plan had been exhibited but had not commenced." 21 Accordingly, Mr Lewis acknowledges the DWLEP is a matter for consideration but does not consider it should be given determinative weight. Furthermore, he says that the cl 1.8A savings clause means that the application should be determined on the basis of the WLEP controls. 22 The planners recognised the anomaly of the 40ha development standard in the LEP and that it has now been reduced to 2ha in the DWLEP. Insofar as the DWLEP has been advertised, Mr Goth does not consider council will change the 2ha standard after the exhibition period because this standard has evolved after strategic planning across the entire LGA. Therefore he says that the DWLEP should be used as a yardstick to reliably gauge the reasonable limits of departure from the 40 ha standard, in the absence of other appropriate criteria. 23 Consequently the planning experts undertook an assessment of the following Zone RU 4 - Small Holdings zone objectives: To enable sustainable primary industry and other compatible land uses. To maintain the rural and scenic character of the land. To ensure that development does not unreasonably increase the demand for public services or public facilities. To minimise the conflict between land uses within the zone and land uses within adjoining zones… 24 Mr Lewis is satisfied the proposal demonstrates reasonable compliance with the relevant objectives. However Mr Goth disagrees and says that on the assumption that a 2 - lot subdivision would be acceptable, then whilst the additional allotment alone probably would not place unreasonable demands on public facilities, nevertheless the potential cumulative impacts of other subdivisions using this application as a precedent, may arise elsewhere. 25 In this context, the planners discussed whether the application is of state and regional significance. According to Mr Lewis, the proposed 3 - lot subdivision is within an area characterised by small lot rural subdivision and any impacts would be minor and locally confined. Even though there are some 37 other lots in the rezoning area, all of these lots are below the minimum 2ha area. Considering the proposed restrictions in the DWLEP, which includes the elimination of SEPP 1 Objections, then there is unlikely to be any precedential effect.

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SEPP 1 Objection 26 The SEPP 1 Objection is made to the minimum lot size (40ha) development standard contained in cl 12(2)(a) of the WLEP 1991. The basis for the objection is that: i. The allotment sizes being created are substantially larger than all of allotments which surround the subject lot, i.e. the nineteen (19) directly neighbouring allotments raging from 2000 sq m to 1.35 ha. ii. The land already contains 2 lawful dwellings and is large enough to support another dwelling without impacting on the amenity of any adjoining landowners and in any case, an additional rural workers dwelling may be permitted. iii. The proposed vacant allotment is devoid of native vegetation so that any future dwelling and outbuilding construction will not impact on flora and fauna. iv. The proposal satisfies the 1(a1) zone objectives in respect of maintaining the rural landscape and will not impact on any environmentally sensitive areas. v. Since the year 1884, the subject land has been envisaged as only part of a large town development of Douglas Park. At that time the land was reduced in size to such a degree that traditional agricultural activities and dairy practices was no longer able to be practiced on the land. Apparently council's Amendment 28 to LEP 1991 recognised that even with highest grade of agricultural land in the 1(a) zone a minimum area of 20 ha was required to conduct sustainable agriculture. Accordingly the existing 5.21 ha lot is not a viable rural holding. 27 The SEPP 1 Objection follows the tests identified by Lloyd J in Winten Property Group Ltd v North Sydney Council [2002] NSWLEC 46, wherein he said: 26. In applying the above-mentioned judgment, it seems to me that SEPP 1 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 EP&A Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection is well founded? In relation to the fourth question, it seems to me that one must also 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. 28 Applying these tests to the acknowledged 40 ha development standard, the SEPP 1 confirms that there is no stated objectives for the standard. Therefore the underlying objectives were derived from the zone objectives as follows: Preservation of existing agriculture To protect the rural landscape Protection of the environment from degradation. 29 The SEPP 1 details the historical use of the land from when it was subdivided off the original Douglas Park estate thereby significantly reducing its agricultural use for cattle grazing. The SEPP 1 concluded that as the land constraints now limit most agricultural activities and considering the close proximity of the rural/residential neighbours, then the application of SEPP 1 is consistent with the policy to allow flexibility and as it would not hinder the attainment of the underlying objectives of the Act, then strict compliance is unreasonable and unnecessary.

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Conclusions 30 Having considered the evidence, the submissions and undertaken a view I am satisfied this development application merits conditional consent. 31 The primary question for the Court concerns the relative weight to be given to the various planning controls. My assessment is that the controls in WLEP prevail in this case over the DWLEP because I do not consider the proposed controls are certain at this stage and in any case the savings clause 1.8A would apply. Therefore it is appropriate to assess the SEPP 1. In adopting this approach, I accept that the controls in DWLEP are matters for consideration and have assessed them in the overall merit consideration. 32 The threshold matter then is whether the SEPP 1 objection to the minimum 40 ha subdivision development standard should be allowed. In this regard, I note that Mr Lewis supports the SEPP1 and approval of the development. 33 Insofar as Mr Goth does not support the SEPP 1, he acknowledges that the development standard is inappropriate and needs to be revised, along with the underlying objects and purposes. As this development standard is under provisions of WLEP, he contends that the provisions relating to the minimum subdivision size under DWLEP are now highly relevant and should be relied upon. 34 However the basic facts are that the subject land has an area of 5.2 ha and this was created in DP 1321 in 1884. Nevertheless it is not in a neighbourhood with a minimum 40 ha rural character and it appears as an 'infill' lot, being surrounded by and adjacent to much smaller lots that were also created in this DP, as shown in Attachment 1. 35 Accordingly for the assessment of the SEPP 1, I have considered the evidence relative to the current 1(a1) zoning of the land in the context that both planners agree the development standard is inappropriate. I am then satisfied to rely on the evidence of Mr Lewis that the objective to protect the agricultural viability of rural holdings has very limited application here due to the relatively small size of the existing lot. In the absence of any other substantive evidence, I accept Mr Lewis' opinion that the agricultural potential is limited to the grazing of livestock. 36 However such livestock grazing, namely intensive livestock keeping establishments are permissible only with consent. I then accept the position of Mr Lewis that if an application is made for this use, there would likely be significant hurdles in satisfying other objectives for the zone, particularly to reduce the incidence of rural land use conflict likely to arise from potential impacts on the residents of the surrounding rural/residential lots. Therefore this use is unlikely to be viable. 37 In this regard, Mr Lewis then refers to the provisions of the DWLEP where "intensive livestock keeping establishments" are to be prohibited. Accordingly, this confirms his opinion that the subject land has little if any agricultural potential. 38 Whilst "Intensive horticulture" is also permitted under WLEP, I am inclined to rely on the evidence of Mr Lewis that the sloping topography is quite restrictive in achieving satisfactory 'horticulture' structures and activities without incurring soil erosion and runoff issues. 39 Against this, I have considered Mr Goth's opinion that any agricultural activity may need to be undertaken in conjunction with another mutually supporting use, such as a B&B. However no compelling evidence was presented. 40 In the circumstances of this matter, I am satisfied that the agricultural potential of this land is very limited and predominantly for livestock grazing and this is unlikely to be diminished as a result of the development. Furthermore, there was no substantive evidence to show that the site is a viable rural holding. 41 The next objective is to prevent inappropriate, premature and sporadic subdivisions. However it is apparent that the DWLEP does contemplate the subdivision of this land into 2 ha lots. Consequently there is a reasonable expectation that 2 lots could be created. Reference to the 'Wollondilly Vision 2025' shows the subject land is to be a significant part of the westward expansion the Douglas Park urban area. 42 Insofar as Mr Goth says the approval of the development would fragment the land and not enhance the future prospect of economic serving, I do not consider this should be given such weight as to reject the application. The future planning will allow at least 2 smaller lots with minimum areas of 2 ha. In my assessment, there was no compelling evidence to demonstrate that the proposed additional rural/residential lot would interfere with servicing or orderly development of the land. 43 The next relevant objective for the Zone 1(a1) land is to prevent, on the urban fringes, subdivision of land into small lots, which would prejudice future planning of additional urban areas. In this regard, I firstly do not consider the proposal is to create small lots. The proposed lots with a minimum area of 1.52 ha are so configured that future small lot subdivision would be possible, especially taking into account the 2 road frontage of this existing corner lot. Therefore this objective is not offended. 44 Turning then to the DWELP, I accept that this draft instrument is a matter to be considered. Accordingly it supports the subdivision of the subject land into lots with minimum areas of 2 ha, which Mr Goth acknowledges. 45 In order to assess any rational basis and sensitivity of the 2 ha standard, Mr Goth was cross-examined on his reliance on this council standard. But there was no compelling explanation presented for the basis of this 2 ha control. The only explanation is contained in the council officers email of 30 April 2009, which states: "Yes the site is proposed RU4 Small Holdings with a minimum lot size of 2 hectares. The reason for this is that the area is substantially subdivided and the proposed zoning generally just reflects the subdivision pattern already on the ground and is located directly adjoining an urban area. This is the general approach we have taken with the DLEP with the Department's agreement. This is the only allotment in that area which will get anything out of the rezoning - and then, should only get one additional allotment …" 46 Having reviewed the evidence before the Court, it appears to me that this basis is not well founded in the particular circumstances of this case. Reference to the immediate neighbourhood plan (Attachment 1) shows the infill location of the subject land surrounded by some 21 other established lots, all with areas of less than 1.4 ha. Accordingly, the 2 ha standard has no obvious reflection of the size of the existing subdivision pattern on the ground. In these circumstances, the relatively minor reduction in area to 1.53 ha - 1.84 ha is a marginally better reflection if that is the critical criteria. 47 Consequently, for my assessment of the SEPP 1, I have also considered the approach set out in the matter of Wehbe v Pittwater Council [2007] NSWLEC 827 where Preston CJ said: Ways of establishing that compliance is unreasonable or unnecessary 42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard: see SCMP Properties Pty Limited v North Sydney Municipal Council (1983) 130 LGERA 351 at 379; Hooker-Rex Estates v Hornsby Shire Council, unreported, LEC No 10506 of 1982, 27 July 1983, Bignold J, pp 16, 18 and 20; Gergely & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 406-407, 412-413; Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGRA 438 at 441; North Sydney Municipal Council v Parlby, unreported, LEC No 10613 of 1985, 13 November 1986, Stein J at p 5; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; Leighton Properties Pty Ltd v North Sydney Council (1998) 98 LGERA 382 at 386; Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 97; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282-283; Memel Holdings Pty Ltd v Pittwater Council (2000) 110 LGERA 217 at 220-221; Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at 88[25] - 89[28] and Design 23 Pty Ltd v Sutherland Shire Council (2003) 125 LGERA 380 at 387 [20]-[21]. 43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served). 44 However, although this way is commonly invoked, it is not the only way to establish that compliance with a development standard is unreasonable or unnecessary: North Sydney Municipal Council v Parlby, unreported, LEC No 10613 of 1985, 13 November 1986, Stein J at p 5; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 97; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282-283. Other ways are explained in the authorities. 45 A second way is to establish that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary: SCMP Properties Pty Limited v North Sydney Municipal Council (1983) 130 LGERA 351 at 378-379; North Sydney Municipal Council v Parlby, unreported, LEC No 10613 of 1985, 13 November 1986, Stein J at p 5. 46 A third way is to establish that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable: Hooker-Rex Estates v Hornsby Shire Council, unreported, LEC No 10506 of 1982, 27 July 1983, Bignold J at p 18. 47 A fourth way is to establish that the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable: North Shore Gas Co. Pty Ltd v North Sydney Municipal Council, unreported, LEC No 10185 of 1986, 15 September 1986, Stein J at pp 11-12; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282 [69]-283 [70]. 48 Considering the agreed position of the planners that this development standard is inappropriate because of the historical subdivision approval and that this situation is under review in the DWLEP, I am satisfied that the flexibility allowed under SEPP 1 should be exercised. 49 In doing so, I note that the intent of the DWLEP is to significantly reduce the minimum subdivision lot size. Whilst the proposed lots don't comply with this control, no rational basis was established in my assessment. The only justification was the information in the staff email. 50 It seems to me that the more crucial and reliable evidence is that of the council's position for the appeal indicating that it supports the application and would approve it but for the concurrence of the DoP. In these circumstances where the draft LEP has not been finalised, it appears to me that the development will substantially achieve the objectives for the area. It also appears that the DWLEP provisions for this land are then somewhat uncertain and in these circumstances would not be given determining weight. 51 Therefore I then think that it is appropriate to apply the second way of assessing the SEPP 1 (para 45) as stated in Wehbe. The underlying objective of protecting the potential of viable rural holdings is significantly comprised by the existing lots sizes in this immediate neighbourhood. I rely firstly on the planners agreement that the standard is inappropriate. I am also satisfied that this objective has been compromised by the approval of rural/residential dwellings on the smaller lots, which in my opinion is likely to thwart any viable agricultural activity because of the likely adverse impacts on the amenity of the existing residents. 52 In the ultimate, the planners agreed that the land was suitable for a 2 - lot rural/residential subdivision and I am satisfied that the incremental change arising from the additional lot is generally consistent with the draft objectives and intent of the controls for this release area. 53 Therefore I am satisfied that the underlying objective or purpose for the zone 1(a1) (Rural "A1" Zone) is not relevant to the development with the consequence that compliance is unnecessary. In doing so, I am also satisfied the public interest considerations in Part 5 of the Act are well served and that the approval of this development is consistent with the economic and orderly development of the land. Court orders 54 The Court orders that: 1 The appeal is upheld. 2 The SEPP 1 Objection to the minimum allotment size development standard in cl 12(2) (a) of the WLEP 1991 is allowed. 3 Development consent is granted to the 3 - lot subdivision of Lot 1 DP 1321 Durham Street, Douglas Park subject to the conditions in Annexure A. 4 The exhibits may be returned except for 2, 3, 4, 6, A and H.

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Judgment (86 paragraphs)

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Cases Cited (9)