Adams v Uralla Shire Council

[2012] NSWLEC 1139

Land and Environment Court

New South Wales

Medium Neutral Citation:

Adams v Uralla Shire Council [2012] NSWLEC 1139

Hearing dates:

16 April 2012

Decision date:

30 May 2012

Jurisdiction:

Class 1

Before:

Brown ASC

Decision:

1. The SEPP 1 objection to the minimum lot size development standard in cl 15(1) of LEP 1988 is not well founded.

2. The appeal is dismissed.

3. Development Application DA-58-2011 for the subdivision of 80 Gostwyck Road, Uralla into 4 lots is refused.

4. The exhibits are returned with the exception of exhibit A.

Catchwords:

DEVELOPMENT APPLICATION: subdivision - breach of minimum lot size - whether SEPP 1 objection well founded

Legislation Cited:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No.1
Uralla Local Environmental Plan 1998
Uralla Local Environmental Plan 2012

Cases Cited:

Wehbe v Pittwater Council [2007] 156 LGERA 446

Category:

Principal judgment

Parties:

Michael Adams and Kylie Adams (Applicants)
Uralla Shire Council (Respondent)

Representation:

Mr C Gough, solicitor (Applicants)
Mr M Bonanno, solicitor (Respondent)
Solicitors
Storey & Gough (Applicants)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

11187 of 2011

Judgment

1. ACTING SENIOR COMMISSIONER: This is an appeal against the refusal by Uralla Shire Council of Development Application DA-58-2011 for the subdivision of 80 Gostwyck Road (corner of Sandon Close), Uralla (the site) into 4 lots.

1. The site is rectangular with a 118.96 m frontage to Gostwyck Road, a frontage of 217.91 m to Sandon Close (including part of an unformed road) and a total area of 2,517 sq m. The site is level and contains a dwelling house and shed. An existing sewer line services the site and runs in a east-west direction around the centre of the site. Town water is also available to the site.

1. The contentions raised by the council are:

• the proposed lots do not satisfy the minimum lot size for the site under the applicable planning controls and the objection under State Environmental Planning Policy No.1 - Development Standards (SEPP 1) is not well founded,
• the proposed lots do not satisfy the minimum lot size for the site under the council draft local environmental plan, and
• the proposed subdivision will cause conflict between the existing and adjoining rural land uses and the likely rural/ residential use of the proposed lots.

The proposal

1. The proposed subdivision provides for;

• Lot A with an area of 0.55 ha located on the north western corner of the site and the intersection of Gostwyck Road and Sandon Close and containing the existing dwelling and with access from Gostwyck Road,
• Lot B with an area of 0.52 ha located on the north western corner of the site with access from Gostwyck Road,
• Lot C with an area of 0.68 ha located on the south eastern corner of the site with access from Sandon Close, and
• Lot D with an area of 0.76 ha located on the south western Corner of the site with access from Sandon Close.

Relevant planning controls

1. The site is within Zone R5 Large Lot Residential under Uralla Local Environmental Plan 2012 (LEP 2012). LEP 2012 came into effect on 23 March 2012 and as the development application was received by the council on 4 October 2011, the savings provisions in cl 1.8A apply. These state:

1.8A Savings provision relating to development applications

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.

1. The effect of cl 1.8A is that the development application must be determined as if LEP 2012 had not commenced with the applicable planning controls being those in Uralla Local Environmental Plan 1988 (LEP 1988). Under LEP 1988, the site is zoned 1(c) Rural Small Holdings.

The objectives for the 1(c) zone are:

(a) to enable development for the purposes of hobby farms and other less intensive small rural holding activities to be carried out on land which is suitable for those purposes,

(b) to encourage the planning of the size and shape of hobby farms and small rural holdings with regard to views, soils, topography, vegetation, winds and the location of services,

(c) to ensure that development maintains and contributes to the rural character of the locality and minimises disturbances to the landscape and to agricultural productivity,

(d) to permit development of hobby farms and small holdings accessible to existing urban centres and services, and

(e) to enable other forms of development to be carried out on land within the zone if it is in keeping with the rural character of the locality and is compatible or associated with the use of existing or likely future holdings.

1. Clause 15 provides requirements for subdivision within the 1(c) zone. The relevant requirements are:

(1) A person may subdivide land within Zone No 1 (c) only where each allotment to be created by the subdivision will have an area of not less than 2 hectares, unless the subdivision is for the purpose of a public utility undertaking.

(2) The Council may grant consent to an application for consent to subdivide land within Zone No 1 (c) only after it has made an assessment of:

(a) the capacity of the land to provide an adequate domestic water supply or the developer's proposal to provide an adequate water supply,

(b) the ability of the land to accommodate suitable disposal of household waste based on recognised tests carried out by the developer,

(c) the availability of other utility services and social services, having regard to the likely demand for those services and the costs of their provision,

(d) the need to maintain a semi-rural character in the area,

(e) the standard and capacity of public roads serving the land, having regard to the likely volume of traffic to be generated as a consequence of the number and size of the allotments to be created by the subdivision and the means available to improve roads to a standard appropriate to the level of traffic likely to be generated, in particular the provision of tar-sealed access to Uralla,

(f) the size of the proposed allotments, having regard to the desirable sequence of development of land within Zone No 1 (c),

(g) the likely impact the development will have on other land and, in particular, on land located between the land to be subdivided and major public roads and utility services,

(h) the nature and topography of the land, having regard to the number and size of the allotments to be created by the subdivision,

(i) the effect that the use to which the land is likely to be put after its subdivision may have on soil erosion or pollution of the environment,

(j) the desirability of providing a range and mix of allotment sizes,

(k) the provision of services including electrical power, mail, telephone and school bus routes, and

(l) the provision (if any) to be made for bush fire prevention and control.

1. As the proposed subdivision does not satisfy the 2 ha minimum in cl 15(1) an objection under SEPP 1 was provided to show that strict compliance was unreasonable and unnecessary in the circumstances of this case.

The evidence

1. Expert town planning evidence was provided by Mr Angus Witherby for the applicant and Ms Donna Ausling for the council. A number of local residents provided evidence on the site inspection and supported the contentions raised by the council. Additional contentions raised by the residents included increased stormwater flows and inadequate sight distances from the Sandon Close access.

The SEPP 1 objection

The assessment framework

1. As stated in Wehbe v Pittwater Council [2007] 156 LGERA 446, the Court must be satisfied of thee matters before it can uphold the SEPP 1 objection and then consider the merits of the application. The three matters are:

• the Court must be satisfied that "the objection is well founded" (clause 7 of SEPP 1).
• the Court must be of the opinion that "granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3" (clause 7 of SEPP 1). The aims and objects of SEPP 1 set out in clause 3 are to provide "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". The last mentioned objects in s 5(a)(i) and (ii) of the Act are to encourage:

(1) 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,

(2) the promotion and coordination of the orderly and economic use of developed land."

• the Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection: The matters in clause 8(a) and (b) are:

(a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument".

The evidence

1. The SEPP 1 objection was prepared by Mr Witherby and addresses the objectives of the zone and the matters in cl 15(2). The SEPP 1 objection states that the current configuration of the property would allow the proposed subdivision to comply with the requirements of cl 15(2)(a), (b) (c), (e), and (k) in relation to access to services and adequate roads. As the proposed subdivision is unlikely to have any negative impact on the neighbouring properties and/or the surrounding environment (in terms of pollution or erosion) and that it would still maintain the existing semi-rural character, the subdivision satisfies the requirements of cl 15(2)(d), (g) (h), (i), and (j). Clause 15(2)(f) is also satisfied as it is a preferable development for the land by allowing for a minimum lot size of 0.5 ha, given its relationship to adjacent residential areas and the township of Uralla.

1. In terms of zone objectives, the SEPP 1 objection states that the proposed development is able to generally satisfy these objectives. Objectives (c) and (b) would be satisfied (though not necessarily as a hobby farm in all instances) given that the development would have minimal environmental impact and still maintain the existing semi-rural character of the area. Objective (b) and (d) would also be satisfied by providing for alternative forms of development which would be in keeping with the semi-rural character of the area and compatible with the activities taking place, or likely to take place, on adjacent lands, notwithstanding the different zones.

1. For these reasons, strict compliance with the 2 ha minimum lot size is unreasonable and unnecessary in the circumstances of the case.

1. Ms Ausling disagrees with Mr Witherby and concludes that the SEPP 1 objection is not well founded for a number of reasons. Importantly, the variation is approximately 390% of the prescribed development standard. The SEPP 1 objection also relies heavily on the fact that the land can be serviced by water and sewage infrastructure, in addition to other urban services. While economic serviceability is an important issue for consideration, it is not considered to be sufficient justification alone for the approval.

1. Ms Ausling states that the approval of the subdivision will also provide an undesirable planning precedent and create further pressure for similar development in the precinct. Under the current adopted planning framework, the strategic direction adopted by the council is set out in the New England Development Strategy 2010, and the findings were subsequently included in LEP 2012. Ms Ausling notes that the proposed subdivision is prohibited under LEP 2012.

Findings - the zone objectives

1. Wehbe identifies a number of ways of establishing that strict compliance with a development standard is unreasonable or unnecessary. 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 (Test 1). This approach was adopted by Mr Witherby and Ms Ausling, in this case. 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 (Test 2). 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 (Test 3). 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 in unreasonable (Test 41). A fifth way is to establish that the zoning of particular land was unreasonable or inappropriate so that a development standard appropriate that that zoning was also unreasonable or unnecessary as it applied to that land and that compliance with the standard in that case would also be unreasonable or unnecessary (Test 5).

1. Wehbe forms the basis of the document prepared by the Department of Planning and Infrastructure and addressed by the experts, titled Varying development standards; A guide, August 2011.

1. Test 1 in Wehbe provides that to establish that compliance with a development standard is unreasonable or unnecessary, the objectives of the development standard must be achieved notwithstanding non-compliance with the standard. Test 1 (and SEPP 1 generally) must address the objectives of the development standard and not necessarily the zone objectives. In this case, the development standard objectives are not specifically identified in LEP 1998 so it is necessary to identify appropriate objectives for the development standard so that the proposed variation can be tested against those objectives.

1. Given that the different non-urban zones generally reflect different minimum lot size requirements and consequently a different character and objectives, and in the absence of any specific objectives for the development standard, I am satisfied that the zone objectives can be relied upon to provide guidance for the objectives for the development standard, and supplemented, where relevant, by the specific considerations for the 1(c) zone in cl 15(2). What can be drawn from the zone objectives is that the 2 ha minimum lot size seeks to provide the opportunity for hobby farms (objectives (a), (b) and (d)) and to contribute to, and maintain a rural character (objective (c)).

1. On the question of Test 1 and whether the objectives of the development standard are achieved notwithstanding non-compliance with the standard; I am satisfied that the question must be answered in the negative. While Mr Witherby maintained that the proposed lots would be of a size that would permit the growing of herbs, small-scale orcharding or similar uses; I prefer the evidence of Ms Ausling where she states that the proposed subdivision does not facilitate the use of land for hobby farms or less intensive small rural holding activities but rather the development proposal is primarily for the purposes of residential development. While Mr Witherby may be correct that some rural uses could be carried out on the proposed lots, it cannot be reasonably argued that the proposed lots will provide the range of potential hobby farm uses that could be carried out on an area of 2 ha. I do not accept that the restriction placed on the site by the proposed lot sizes is consistent with the objective of the 2 ha development standard of providing the opportunity for hobby farms.

1. I also do not accept that proposed subdivision contributes to and maintains a rural character or semi-rural character-based the site inspection that included the site and surrounding area, including the properties in Sandon Close. Sandon Close is zoned 1(d) Rural Residential where cl 16(1) provides that allotments "will have an area of not less than 0.5 hectares,..". As the 0.5 ha minimum lot size is similar to that proposed in the proposed subdivision, a realistic assessment could be made of the character of an existing area with a 0.5 ha lot size in Sandon Close and the character of the existing 2 ha lot size along the southern side of Gostwyck Road.

1. The inspection revealed that the Sandon Close character was made up of medium to large dwellings set towards the street with relevantly small side setbacks and formal driveways. The properties were largely landscaped around the dwellings with hedges or fences to define the street property boundary. The dwellings formed a relatively consistent residential pattern along the street. This character needs to be compared to the Gostwyck Road area where a more rural character prevails with rural fencing, some farm animals and open paddocks. Dwellings were set further back from the street in a more sparse settlement pattern. Most properties contained rural or farm sheds, some relatively large. There was an absence of formal or extensive landscaping and the overall character was rural in nature.

1. Based on the assessment of the character of the two different areas, I do not accept that proposed subdivision will contribute to and maintain the rural character or semi-rural character anticipated by the 1(c) zone, so the proposed subdivision is inconsistent with the objective of the 2 ha development standard in that it does not contribute to and maintain a rural character.

1. I also agree with Ms Ausling that even though the site has access to town water, sewage and an adequate road system (cl 15(2)), it does not follow that this is sufficient to warrant the approval of the subdivision as the zone objectives are not satisfactorily addressed.

Findings - the 1(c )zone

1. Test 5 in Wehbe states that to establish that strict compliance with a development standard is unreasonable or unnecessary it is necessary to establish that the zoning of particular land was unreasonable or inappropriate so that a development standard appropriate that that zoning was also unreasonable or unnecessary as it applied to that land and that compliance with the standard in that case would also be unreasonable or unnecessary.

1. This test is relevant in this case, and comes with some caveats that are set out in pars 49 to 52 of Wehbe and state:

49 However, care needs to be taken not to expand this fifth way of establishing that compliance is unreasonable or unnecessary beyond its limits. It is focused on "particular land" and the circumstances of the case. Compliance with the development standard is unreasonable or unnecessary not because the standard is inappropriate to the zoning, but rather because the zoning of the particular land is found to be unreasonable or inappropriate. If the particular land should not have been included in the particular zone, the standard would not have applied, and the proposed development would not have had to comply with that standard. To require compliance with the standard in these circumstances would be unreasonable or unnecessary.

50 However, so expressed, this way is limited. It does not permit of a general inquiry into the appropriateness of the development standard for the zoning. An objection would not be well-founded by an opinion that the development standard is inappropriate in respect of a particular zoning (the consent authority must assume the standard has a purpose): Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 441; North Sydney Municipal Council v Parlby, unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J at p 7; and Colvest No. 27 Pty Ltd v Hastings Municipal Council, unreported, LEC No 10617 of 1986, 22 March 1988, Cripps J, pp 10-11.

51 The dispensing power under SEPP 1 also is not a general planning power to be used as an alternative to the plan making power under Part 3 of the Act to change existing planning provisions. An objection cannot be used as a means to effect general planning changes throughout a local government area (in circumvention of the procedures under Part 3 of the Act): Hooker-Rex Estates v Hornsby Shire Council, unreported, LEC No 10506 of 1982, 27 July 1983, Bignold J, at p 22; Gergely & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 412; Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 442; North Sydney Municipal Council v Parlby, unreported LEC No 10613 of 1985, 13 November 1986, Stein J at p 7; Colvest No. 27 Pty Ltd v Hastings Municipal Council, unreported, LEC No 10617 of 1986, 22 March 1988, Cripps J, pp 11-12; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 201-202 (affirmed (1990) 69 LGRA 201 at 203, 210); Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 99; Bowen v Willoughby City Council [2001] NSWLEC 274 (4 December 2001) at [113].

52 The requirement that the consent authority form the opinion that granting consent to the development application is consistent with the aims of SEPP 1 as set out in clause 3 (one of which is the promotion and coordination of the orderly and economic use and development of land) makes it relevant "to consider whether consent to the particular development application encourages what may be summarised as considered and planned development" or conversely may hinder a strategic approach to planning and development: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 100 [26] - [27], 101 [30] - [31], [35].

1. In this case, the practical effect of the SEPP 1 objection is to create a subdivision that closely resembles the adjoining 1(d) Rural Residential in terms of lot size. In my view, the proposed subdivision and SEPP 1 objection falls squarely within the caveats identified in Wehbe for Test 5, in that:

• the proposed subdivision effectively challenges the appropriateness of the minimum lot size development standard for the 1(c ) zoning given that the proposed subdivision lot sizes closely resembles the minimum lot sizes for the 1(d) Rural Residential (par 50),
• the proposed subdivision effectively misuses the dispensing power under SEPP 1 by seeking to use it as a general planning power and an alternative to the plan making power under Part 3 of the Act to change existing planning provisions. The objection is used as a means to effect a general planning change to the councils adopted planning regime (par 51), and
• the proposed subdivision hinders the strategic and consistent approach to planning and development for the local government area adopted by the council through LEP 1988 and 2012 (par 52).

Is the SEPP 1 objection well founded?

1. For the reasons mentioned in the preceding paragraphs, I am satisfied that the SEPP 1 objection is not consistent with the aims of SEPP 1. Also, strict compliance with the development standard, in this case, is not unreasonable and unnecessary, tends to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act and there is a significant public benefit in maintaining the planning controls adopted by the environmental planning instrument. Consequently, the SEPP 1 objection is not well founded and the development application must be refused.

1. Given the above findings it is not necessary to deal with the other contentions.

Orders

1. The orders of the Court are:

1. The SEPP 1 objection to the minimum lot size development standard in cl 15(1) of LEP 1988 is not well founded.

2. The appeal is dismissed.

3. Development Application DA-58-2011 for the subdivision of 80 Gostwyck Road (corner of Sandon Close), Uralla (the site) into 4 lots is refused.

4. The exhibits are returned with the exception of exhibit A.

G T Brown

Acting Senior Commissioner

Decision last updated: 30 May 2012