(c) 660 square metres for each internal or hatchet shaped allotment created by the subdivision of land within zone 2(a) or 2(b) generally south of Mona Vale Road, Ingleside and Mona Vale: see clause 11 (2) and (3).
65 The first aim of the clause is, therefore, descriptive of the result the clause achieves by these means, namely, the variation in allotment sizes across Pittwater local government area depending on the locality of the land to be subdivided and the type of allotment created by the subdivision.
66 Viewed this way, granting consent to the proposed subdivision which creates allotments each of 514 square metres does not achieve the aim of the clause. The clause aims to restrict allotments of that size to land within zone 2(a) or 2(b) generally south of Mona Vale Road, Ingleside and Mona Vale (in fact, the clause sets a minimum size of 550 square metres). To create allotments of that size in the locality generally north of Mona Vale Road, Mona Vale and east of Chiltern Road, Ingleside, in which locality the minimum allotment size is 700 square metres (27% larger than the proposed 514 square metre allotments), is contrary to the planning aim.
67 The second stated aim of clause 11 is to "improve residential amenity". The original SEPP 1 objection states that the proposed subdivision can reasonably accommodate two new dwellings, one on each of the two allotments to be created by the proposed subdivision, together with necessary associated spaces and car parking. It is said that such new dwellings can provide a high level of amenity to future occupants, without compromising the amenity enjoyed by adjoining owners. The original SEPP 1 objection contrasts this ultimate use of two dwellings on the site with the existing use of dwelling house, restaurant and retail use, and states that the proposed subdivision will result in a less intensive use of the site.
68 I am not satisfied by this ground for two reasons. First, the second aim of clause 11 is to "improve the residential amenity". That aim is to be achieved, according to the clause, by having allotments of the size specified for the locality. Again, the aim is descriptive of the result achieved by the clause fixing varying allotment sizes depending on the locality of the land to be subdivided and the type of allotment created by the subdivision. For land within zone 2(a) or 2(b) generally north of Mona Vale Road, Mona Vale and east of Chiltern Road, Ingleside, the locality of relevance in this case, the planning policy embodied in the clause is that residential amenity will be improved by fixing a minimum allotment size of 700 square metres rather than the smaller allotment sizes considered to be appropriate for land in the other locality, being in zone 2(a) or 2(b) generally south of Mona Vale Road, Ingleside and Mona Vale.
69 Viewing the second aim this way, granting consent to the proposed subdivision which creates allotments each of 514 square metres does not achieve the second aim of the clause which is to afford to land within zone 2(a) or 2(b) generally north of Mona Vale Road, Mona Vale and east of Chiltein Road, Ingleside, the improved residential amenity that comes from having a minimum allotment size of 700 square metres, rather than the smaller allotment sizes fixed for land in the other locality, being in zone 2(a) or 2(b) generally south of Mona Vale Road, Ingleside and Mona Vale.
70 Secondly, the original SEPP 1 objection does not establish, as it would need to, that the proposed subdivision will result in the level or degree of improved residential amenity that would be afforded by allotments that complied with the minimum allotment size of 700 square metres. The original SEPP 1 objection asserts that the proposed allotments of 514 square metres could reasonably accommodate new dwellings which would provide a high level of amenity to future occupants, without compromising the amenity enjoyed by adjoining owners. This does not establish that this level of residential amenity for occupants or adjoining owners is equal to or better than the residential amenity to occupants or adjoining owners that would result from an allotment that conforms to the minimum allotment size of 700 square metres. Unless this is established, the applicant cannot discharge the onus of showing that the proposed subdivision achieves the second aim of the clause establishing the development standard to "improve residential amenity".
71 The third stated aim of clause 11 is to "enhance the environment". The original SEPP 1 objection states that each of the proposed allotments to be created by the proposed subdivision is capable of supporting a dwelling house to be constructed in a manner that responds to the site circumstances and characteristics. The proposed subdivision, it is stated, will not adversely impact the environment.
72 This ground is unpersuasive for three reasons.
73 First, the planning policy adopted by the clause is that the environment will be enhanced in relation to land within zone 2(a) or 2(b) generally north of Mona Vale Road, Mona Vale and east of Chiltern Road, Ingleside, by fixing a minimum allotment size of 700 square metres rather than the smaller allotment sizes fixed for land in the other locality, being in zone 2(a) or 2(b) generally south of Mona Vale Road, Ingleside and Mona Vale. Granting consent to allotments of 514 square metres does not achieve this third aim to enhance the environment by having a larger allotment size of 700 square metres for land in zone 2(a) or 2(b) generally north of Mona Vale Road, Mona Vale and east of Chiltern Road, Ingleside.
74 Secondly, the original SEPP 1 objection does not establish that the proposed subdivision will result in the level or degree of enhanced environment that would occur by allotments that complied with the minimum allotment size of 700 square metres.
75 Thirdly, it is not sufficient merely to point to an absence of environmental harm: see Gergely & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 411-412; Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 441; Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at 89; and Memel Holdings Pty Ltd v Pittwater Council [2001] NSWLEC 240 (17 October 2001) at [102].
76 In relation to each of the three stated aims in clause 11, nowhere does the original SEPP 1 objection assert that development that complies with the development standard would be unreasonable or unnecessary. Such a consideration is relevant in determining whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case: see Gergely and Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 411-412; Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 441-442; Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at 89 [26] and Design 23 Pty Ltd v Sutherland Shire Council (2003) 125 LGERA 380 at 387.
77 In this case, the existing allotment is 1,029 square metres. It is therefore not possible to subdivide the land into two allotments meeting the minimum allotment size of 700 square metres. Hence, the existing allotment would need to remain at 1,029 square metres. However, there is nothing unreasonable or unnecessary about the existing allotment remaining at that size. It imposes no restrictions on development for any permissible purpose, including for a dwelling house. Indeed, the size of the existing allotment may provide greater flexibility for design of and compliance with development standards and planning controls applicable to development of the land than if the existing allotment were subdivided into two allotments each of 514 square metres.
78 Similar to the position noted in Memel Holdings Pty Ltd v Pittwater Council (No. 3) [2001] NSWLEC 240 (17 October 2001) at [87], which concerned land in the neighbouring suburb of Palm Beach, the existing subdivision pattern in the Whale Beach area is generally settled with little opportunity for re-subdivision (except very large lots of which there seem to be none in the neighbouring area). Lot sizes in the immediate vicinity of the site, along The Strand, Surf Road (with one exception) and Whale Beach Road, are generally significantly larger than the prescribed minimum 700m2. Allotments with lot sizes smaller than 700m2 are removed from the site on the side and crest of the ridge above the site, along Morella Road and Bynya Road. These lots were created by the original residential subdivision in Whale Beach prior to the commencement of relevant planning controls on residential lot sizes. The existing allotment size of 1,129 m2 is consistent with the existing character; however, the proposed allotments of 514 m2 would not be consistent with the existing character of the locality.
79 If the SEPP 1 objection to compliance with the development standard in clause 11(2) were to be upheld for subdivision of this land on the grounds given in the original SEPP 1 objection, there would be little justification for not also upholding SEPP 1 objections to subdivision of land of similar size and nature in the locality. These grounds are of a general nature and would be applicable to many sites in the locality. They are not particular to the circumstances of this land. The ad hoc deviation from the development standard in this case on these grounds would, therefore, create an adverse planning precedent for similar action to be taken in relation to other such land. This would affect the integrity of the planning policy embodied by clause 11. This would not be an appropriate use of the dispensing power under SEPP 1: see Bowen v Willoughby City Council [2001] NSWLEC 274 (4 December 2001) at [112(ix)] and [113].
80 For these reasons, the original SEPP 1 objection has not established that each of the aims of the development standard would be achieved by the proposed subdivision notwithstanding non-compliance with the development standard in clause 11(2). Accordingly, I am not satisfied that the original SEPP 1 objection is well founded.
81 For completeness, I should note that the applicant has not sought to establish that compliance is unreasonable or unnecessary in the other ways that can, in appropriate circumstances, be available. It is not put that the underlying objective or purpose of the development standard in clause 11(2) is not relevant to the proposed subdivision; that the underlying objective or purpose would be defeated or thwarted if compliance was required; that the development standard has been abandoned or destroyed by the Council's actions in granting consents departing from the standard; or that the zoning of the land as Residential 2(a) was unreasonable or inappropriate so as to make the development standard appropriate to that zone unreasonable or unnecessary as it applied to the land. In any event, I am not satisfied that compliance with the development standard in clause 11(2) would be unreasonable or unnecessary in any of these ways.
82 I am also not satisfied that the granting of consent to the proposed subdivision is consistent with the aims of SEPP 1 as set out in clause 3. For the reasons give above, the applicant has not discharged the onus of establishing that compliance with the development standard in clause 11(2) is unreasonable or unnecessary. Further, the applicant has not established that compliance would tend to hinder the attainment of the objects in 5(a)(i) or (ii) of the Act. The argument in the revised SEPP 1 objection that compliance with the development standard hinders the objects of the Act by preventing a change of use from a non-conforming use to a conforming use is erroneous for the reasons I have given earlier. Other than putting that argument, the applicant has not established that compliance would hinder attainment of the objects in 5(a)(i) and (ii) of the Act. Indeed, to the contrary, I find that granting consent would tend to hinder the attainment of the planning policy embodied in the development standard and hence the proper, coordinated and orderly development of land in the locality to which the development standard applies.
83 Finally, I am not satisfied that a consideration of the matters in clause 8(b) of SEPP 1 justifies the upholding of the SEPP 1 objection. There is public benefit in maintaining the planning controls adopted by clause 11.
84 In reality, the applicant in this case objects to compliance with the development standard in clause 11(2) because it prevents the applicant maximising the potential for development of the land for two dwelling houses, one on each allotment. The applicant's approach has been to submit a planning justification upon an assumption that there is no development standard and to use that justification as the basis for its objection under SEPP 1. As held in Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 442, "this is to invert or reverse the reasoning process required under SEPP No. 1."
Development consent should be refused
85 For these reasons, I am not satisfied that the objection under SEPP 1 should be upheld. As a consequence, the proposed subdivision cannot be approved. This conclusion makes it unnecessary to deal with the merits of the proposed subdivision. As I have earlier noted, upholding a SEPP 1 objection is a pre condition which must be satisfied before the proposed subdivision can be approved on a consideration of the merits.
86 It is also unnecessary to deal with the proposed demolition of the restaurant, kiosk and associated structure. The applicant only proposed that demolition contingent upon subdivision being granted so as to enable the subsequent development of two dwelling houses, one on each allotment. If the subdivision were not to be granted, the applicant may wish to maintain the restaurant, kiosk and associated structures in order to continue the existing use thereof.
87 Accordingly, development consent should be refused to the development application for the developments of both subdivision and demolition.
Orders
88 The Court orders:
1. The appeal is dismissed.
2. Development consent is refused to development application No. 278/06 for subdivision of Lot 66, DP 11067, known as 24 The Strand, Whale Beach and for demolition of the restaurant, kiosk and associated structures on that land.
3. The exhibits are to be returned.
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