Bryson and Blake v Ballina Shire Council (First Respondent) and Director General of the Department of Planning (Second Respondent)
[2009] NSWLEC 1306
•18 September 2009
Land and Environment Court
of New South Wales
CITATION: Bryson and Blake v Ballina Shire Council (First Respondent) and Director General of the Department of Planning (Second Respondent) [2009] NSWLEC 1306 PARTIES: APPLICANT
Andrew Bryson and Marion BlakeFIRST RESPONDENT
SECOND RESPONDENT
Ballina Shire Council
Director General of the Department of PlanningFILE NUMBER(S): 10844 of 2009 CORAM: Tuor C KEY ISSUES: DEVELOPMENT APPLICATION :- construct a dwelling
SEPP 1 objection to 40ha minimum allotment size
Purpose of the standardLEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy No 1 - Development Standards
State Environmental Planning Policy - Rural Lands
North Coast Regional Environmental Plan
Ballina Local Environmental Plan 1987CASES CITED: Architects Haywood and Bakkar Pty Ltd v North Sydney Council [2000] NSWLEC 138
Terrace Towers Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289
Simpson v Ballina Shire Council [2009] NSWLEC 1123
Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46
Wehbe v Pittwater Council [2007] NSWLEC 827
Goldin and Anor v Minister for Transport [2002] NSWLEC 75DATES OF HEARING: 10 and 17 June 2009
DATE OF JUDGMENT:
18 September 2009LEGAL REPRESENTATIVES: APPLICANT
Ms H Irish, barrister
Solicitors
Bourke Love McCartneyFIRST RESPONDENT
SECOND RESPONDENT
Mr N Hemmings, QC
Solicitors
Allens Arthur Robinson
Ms S Duggan, barrister
Solicitors
Department of Planning
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTuor C
18 September 2009
JUDGMENT10844 of 2008 Bryson and Blake v Ballina Shire Council (First Respondent) and Director General of the Department of Planning (Second Respondent)
1 COMMISSIONER: This is an appeal against the refusal of a development application (2008/620) under the Environmental Planning and Assessment Act 1979 (the Act) by Ballina Shire Council (the council) to construct a dwelling and associated infrastructure at lot 191 DP 755741, Fernleigh Road, Tintenbar (the site). The applicant has amended the application to require consolidation with the adjoining lot to the south (lot 192 DP 755741).
Background
2 A detailed background to the application is in the Amended Statement of Facts and Contentions by the council and the Statement of Facts and Contentions by the Director General of the Department of Planning (the Department).
3 The original application proposed a dwelling on lot 191. Another dwelling was proposed on lot 192 under a different application. The application was not supported by an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) to the 40 ha minimum lot size development standard in cl 12(3)(a)(ii) of Ballina Local Environmental Plan 1987 (LEP 1987).
4 The issues between the council and the applicant were resolved by the proposed amalgamation of lots 191 and 192 (and the withdrawal of the development application for lot 192) and the submission of a SEPP1 objection. These parties sought consent orders from the Court on 1 April 2009, which was adjourned for an assessment report under s79C of the Act and to enable the Department to consider whether it would grant concurrence to the SEPP 1 objection.
5 The Department subsequently did not grant concurrence to the SEPP 1 objection. Under s39(6) of the Land and Environment Court Act 1979 (the Court Act) the Court may determine the appeal, whether or not concurrence or approval has been granted. However, on 30 April 2009, the Department was granted leave to be joined as a party, given its concurrence role under SEPP 1. The applicant and the council did not oppose this.
6 The appeal was held in two parts. On 10 June 2009 the appeal in relation in relation to the SEPP 1 contention was heard. In the event that the SEPP 1 objection was not found to be well founded, the applicant sought to pursue the council’s contention that there was no “dwelling entitlement” under cl 12 of LEP 1987. This was to be heard on 17 June 2009. Prior to this date, the Minister signed draft Ballina Local Environmental Plan 110 (Draft LEP), although it had not been gazetted by the 17 June 2009.
7 The Draft LEP report to the Minister states that:
The amendment arose in response to Land and Environment proceedings McKeown v Ballina Shire Council 2005, the findings of which represented a significant departure from the Council’s interpretation of the provisions of clause 12 and had the potential to set a significant and undesirable precedent for development of rural land.The draft plan proposes to amend the wording and structure of clause 12 of Ballina Local Environmental Plan to clarify circumstances under which properties in rural and environmental protection zones in Ballina Shire have dwelling entitlements.
8 Consistent with the principals in Architects Haywood and Bakkar Pty Ltd v North Sydney Council [2000] NSWLEC 138 and Terrace Towers Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289, I found that as the Draft LEP was imminent and certain it should be given considerable weight. The draft LEP did not include a savings clause and would have the effect of removing the ability to approve a dwelling on an allotment below 40 ha, other than under SEPP 1. The proposal is inconsistent with the Draft LEP and I found that there was therefore no utility in proceeding with the second part of the hearing on whether a dwelling could have been approved under cl 12 of LEP 1987, as even if this had been the case, the Draft LEP would remove this option and its planning intent should be given weight.
9 The threshold issue before the Court is therefore whether the SEPP 1 objection is well founded and despite the non compliance with cl 12(3)(a)(ii) consent may be granted to a dwelling on the site subject to a merits assessment.
10 The parties referred to the judgment of Brown C in Simpson v Ballina Shire Council [2009] NSWLEC 1123, which also dealt with a SEPP 1 objection to cl 12(3)(a)(ii) of LEP 1987.
- The site and locality
11 The site is generally rectangular in shape and about 4.55ha. It is vacant and “landlocked” as access to it is through lot 192, which has a frontage to Fernleigh Road. The combined area of lots 191 and 192 is about 7.38ha. Lot 193 DP 755741 adjoins lot 192 to its south and has an area of about 2.32 ha. It is developed with a house with driveway access off Fernleigh Road via lot 192. Lots 191, 192 and 193 are in the same ownership with a combined area of about 9.7 ha.
12 The site has a moderate slope from west to east towards Emigrant Creek, which forms its eastern boundary. The western part of the site is affected by landslip and the eastern part is affected by flooding. The whole site is bushfire prone. There is no vegetation except in the riparian zone along Emigrant Creek and smaller isolated stands of trees within the site.
13 The site is in a rural locality with a mix of smaller and larger rural allotments used for various agricultural purposes. The Tintenbar Village and a rural residential subdivision are located nearby.
- Relevant planning controls
14 The site is zoned 1(b)-Rural (Secondary Agricultural Land) under LEP 1987. The proposal is permissible with consent. The objectives of the zone are:
- 1. Objectives of zone
A. The primary objective is to regulate the subdivision and use of land within this zone -
- (a) to encourage the productive use of the land and enable development ancillary to agricultural land uses, particularly dwelling-houses, rural workers’ dwellings and rural industries; and
(b) to permit a range of uses which are compatible with the rural character of the land, particularly tourist oriented developments and recreation establishments and recreation facilities.
B. The secondary objectives are to ensure that development within the zone -
- (a) maintains the rural character of the locality; and
(b) does not create unreasonable or uneconomic demands, or both, for the provision or extension of public amenities or services.
- (a) development of land within the zone for public works and services, outside the parameters specified in the primary and secondary objectives, subject to the impact on agricultural resources being minimised, where practical;
(b) development of land for extractive resource purposes; and
(c) development of an industry which, by reason of the processes involved or the method of manufacture or the nature of the materials used or produced, requires isolation from other buildings.
15 Clause 9(7) provides that consent shall not be granted unless the carrying out of the development is consistent with the objectives of the zone.
16 Clause 11(2)(b) provides that land within the 1(b) zone shall not be subdivided unless the land is 40 ha. Clause 12 provides requirements for dwelling houses in the 1(b) zone (as well as other zones). At the commencement of the hearing, cll 12(2), (3) and (3A) stated:
(3) A dwelling-house may, with the consent of the council, be erected on vacant land to which this clause applies only where that land -(2) The council shall not consent to the erection of a dwelling-house on land to which this clause applies except in accordance with this clause.
- (a) has an area of not less than -
- (i) in the case of land within Zone No. 1(a1) or 7(i) - 20 hectares;
(ii) in the case of land within Zone No. 1(a2), 1(b), 1(d), 1(e), 7(a), 7(c), 7 (d), 7(d1), 7(f) or 7(l) - 40 hectares;
(b) is an existing holding;
(c) is an allotment created by subdivision to which development consent has been granted in accordance with clause 11;
(d) is an allotment created by a subdivision to which development consent was granted in accordance with clause 13 as in force, which consent for the subdivision was granted, but before the gazettal of Ballina Local Environmental Plan 1987 (Amendment No. 36) ;
f) is an allotment not in the 7(f) zone created on or after the appointed day by a subdivision carried out in accordance with part 12 of the Local Government Act 1919 where:(e) is an allotment created by a subdivision to which development consent was granted before the appointed day, not being a development consent which was granted subject to a condition that a dwelling-house could not be erected on that allotment;
- (i) the consent of the Council was not required for the subdivision, and
(ii) before the subdivision was carried out, a dwelling-house could have been erected under this clause on the land comprising that allotment.
17 The Draft LEP was gazetted on 26 June 2009 with no savings provision. This amendment repealed cl 12 (3)(e) and (f) and inserted instead
(e) is an allotment created by a subdivision to which development consent, or approval, was granted by the Council in accordance with the provisions of Interim Development Order No 1-Municipality of Ballina or Interim Development Order No 1-Shire of Tintenbar before the appointed day, not being development consent, or approval, that was granted subject to a condition that a dwelling could not be erected on the allotment.
18 Clause 3A was also repealed. The Draft LEP has the effect of removing the ability to approve the dwelling on the site under cl 12, although the council contended that this option was never available to the site, other than under SEPP 1.
19 North Coast Regional Environmental Plan (the REP) and State Environmental Planning Policy- Rural Lands (the Rural Lands SEPP) apply to the site. The Rural Lands SEPP commenced after the development application was lodged and contains a savings provision, which requires that the application must be considered as if the Rural Lands SEPP had not commenced.
- The SEPP 1 objection
The Department’s case
20 Mr J Clark, town planner, provided evidence for the Department. He stated that the underlying objectives of the standard are to allow sufficient land area for purposeful agricultural production and to minimise the potential for land use conflicts.
21 Mr Clark stated that the construction of a dwelling on the site would not encourage the use of the site for productive agricultural purposes such as grazing. He considered that the character of the area was not rural residential as there were a number of medium to large rural holdings and Tintenbar Village was not in the visual catchment of the area. Further an objective of the 1(b) zone is to maintain its rural character and rural residential development would not maintain this character, particularly if other undersized lots were developed.
22 Mr Clark stated:
- The site and development are not considered to be so unique that similar arguments and applications for variations to the development standard could not be used for the many other undersized lots within the Ballina local government area, the cumulative impact of which would be to erode the agricultural sustainability of the land.
23 Further, Mr Clark stated that the development of undersized lots could result in an unreasonable and uneconomic demand for the provision of public amenities and services. Ballina Shire does not have an adopted rural settlement strategy, which is required under the REP for rural residential development to be a permitted land use. Mr Clark stated that SEPP 1 should not be used to “circumvent the proper strategic planning approach to rural settlement”. Further, the proposed comprehensive LEP for Ballina retains the rural zoning and the 40 ha standard for the area.
24 Mr Clark concluded that there were no particular circumstances of this case, which meant that compliance with the standard was unreasonable or unnecessary and that the SEPP 1 objection was not well founded.
The council’s case
25 Mr A Peters, town planner, provided evidence for the council. Mr Peters accepted the underlying objectives of the standard expressed by Mr Clark. When questioned by Mr Hemmings QC, he expanded these to reflect his evidence in Simpson that the underlying objectives of the development standard are:
- to maintain the productive use of agricultural lands,
- to discourage rural/lifestyle allotments and associated dwelling houses that increased densities within rural areas and create potential land use conflicts with agricultural enterprises,
- to prevent increased densities and associated infrastructure/servicing requirements in rural areas.
26 Mr Peters considered that the consolidation of lot 191 and 192 would move closer to compliance with the standard and that, together with other particular circumstances of the case, meant compliance with the standard was unreasonable and unnecessary.
27 Under cross examination Mr Peters acknowledged his opinion in relation to lot 193 in his Statement of Evidence (written prior to the lodgement of a SEPP 1 objection and to the amendment to the application to consolidate lots 191 and 192). He had stated that lot 191 comprised part of the application for the dwelling at lot 193. An additional dwelling would impact on the agricultural viability of the three lots and lead to a duplication in services.
28 Mr Peters also confirmed that to his knowledge there had been no change to the statement of Brown C in Simpson that:
there are approximately 3866 lots below the 40 ha minimum in the Ballina local government area. Of these, approximately 1338 lots (35%) have been determined to have a dwelling entitlement. For areas with a 20 ha minimum lot size, approximately 198 lots (35%) have been determined to have a dwelling entitlement. Consequently, there are approximately 2898 lots that could rely upon the approval of this application for the erection of a dwelling house.
29 Although Mr Peters stated that the number of lots with a dwelling entitlement under LEP 1987 may increase as further research is undertaken. No evidence was provided as to whether this figure would change as a result of the Draft LEP nor had any research been undertaken as to the potential precedent that approval of the application may set.
30 Mr Peters stated that each application should be considered on its merits. He had not supported the application in the Simpson case whereas he supports the merits of this case. The main differences being that the land size in Simpson was 3008 sqm whereas with the consolidation of lot 191 and lot 192, the site size will increase to 7.38 ha. Other factors were that in Simpson the proposal was visually prominent with the potential for rural land use conflict.
31 Mr Peters considered that the amalgamation of lots 191 and 192 would move closer towards compliance with the minimum allotment standard and that the village of Tintenbar formed part of the context of the site and that the existing character is rural residential. Further, the proposal would not impact on the agricultural potential of the site and would not place an unreasonable demand on services. In his opinion compliance with the standard was unreasonable and unnecessary given these circumstance and that the SEPP 1 objection was well founded.
The applicant’s case
32 Mr A Zakaras, town planner, provided the SEPP 1 objection and evidence for the applicant. Mr Zakaras stated that the primary objective of the zone is to regulate subdivision and encourage the productive use of agricultural land. He relies on the zone objectives to discern the underlying object or purpose of the development standard which he states as being:
(a) to encourage the productive use of land;
(b) to enable development ancillary to agricultural land uses;
(c) to permit a range of uses which are compatible with the rural character of land;
(d) to maintain the rural character of the locality; and
(e) to permit development that does not create unreasonable or uneconomic demands, or both, for the provision or extensions of public amenities or services.
33 Mr Zakaras states that the development will not result in fragmentation of rural land as it does not involve subdivision. On the contrary, it will consolidate two undersized allotments, which are too small to provide for the productive use of land if used only for agriculture. Although, he stated that a dwelling on the site would not preclude its use for agricultural purposes, such as stabling of a horse, and adequate buffers are provided to prevent rural residential conflict.
34 Mr Zakaras described the character of the area as being:
Rural residential allotments interspersed amongst medium to larger sized allotments which are utilised for various agricultural purposes (including low input cattle grazing). A rural residential estate (Hillcrest Drive) is located approximately 1km (direct line) southwest of the site. The Tintenbar Hall, post office and general store are located approximately 800m (direct line) south of the Land.
35 Mr Zakaras stated that the proposed dwelling would be consistent with the character of the area and would utilise existing community facilities and services. The development would be “self sufficient” by providing on site sewage disposal and potable water.
36 For these reasons, Mr Zakaras concludes that to insist on the 40 ha minimum before consent can be granted to a dwelling is unnecessary in the circumstances as it would prevent a development that otherwise satisfies the objectives of the standard.
- Findings
37 The manner of dealing with a SEPP 1 objection is set out in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are asked.
- …… it seems to me that SEPP No 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 s 5(a)(i) of the EP & A Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? (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.) Fifth, is the objection well-founded?
38 Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 comprehensively examines the requirements to uphold an objection under SEPP 1. Upholding a SEPP 1 objection is a precondition, which must be satisfied before the proposed development can be approved on a consideration of the merits. His Honour states that the Court must be satisfied of the following three matters:
38 First, the Court must be satisfied that “the objection is well founded” (clause 7 of SEPP 1). The objection is to be in writing, be an objection “that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case”, and specify “the grounds of that objection” (clause 6 of SEPP 1). The requirement in clause 7 of SEPP 1 that the consent authority be satisfied that the objection is well-founded, places an onus on the applicant making the objection to so satisfy the consent authority: see North Sydney Municipal Council v Parlby, unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J, p. 8.
39 Secondly, 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). This matter is cumulative with the first matter (it is prefaced by the words in clause 7 of SEPP 1 “and is also”). 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:
“(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,
(ii) the promotion and coordination of the orderly and economic use and development of land.”
40 Thirdly, 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: Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94 at 100 and City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 291. The matters in clause 8(a) and (b) are:
(b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument”.“(a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and
39 At para 42 to 43, His Honour then proceeds to discuss ways of establishing that compliance with the standard is unreasonable or unnecessary, relevantly he states:
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).
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].
40 His Honour then discusses other ways to establish that compliance with a development standard is unreasonable or unnecessary. The applicant did not seek to utilize these other methods, and relied on the underlying purpose of the standard being achieved despite the non compliance.
41 The parties agree that cl 12(3)(a)(ii) is a development standard and its object and purpose is not explicitly stated in LEP 1987. The experts held differing opinions as to its underlying object and purpose. Mr Zakaras determined the underlying purpose of the standard from the zone objectives.
42 Mr Zakaras stated that the principal object of the zone is to regulate subdivision and encourage the productive use of agricultural land. While this may be the objective of the zone, I do not accept that controlling subdivision is an underlying purpose of cl 12(3)(a)(ii), particularly as cl 11 in LEP 1987 provides controls for subdivision. Rather cl 12 refers specifically to the circumstances where consent to erect a dwelling may be granted. These include the 40ha minimum allotment size in cl 12(3)(a)(ii) and other circumstances, which do not apply to the site, including an existing holding, subdivision approved under cl 11 of LEP 1987 or, in accordance with the draft LEP, under an earlier planning instrument.
43 The underlying objects and purpose of the standard in cl 12(3)(a)(ii) are generally those expressed by Mr Peters and Mr Clark, being that a dwelling may only be erected on a minimum lot size of 40 ha to reduce residential densities to:
- maintain agriculturally productive land;
- maintain rural character and discourage rural/lifestyle allotments;
- minimise rural/residential conflict; and
- minimise demand for community facilities and services.
44 Mr Peters estimates that there are some 3866 allotments below the minimum standard of which a number may comply with the requirements of cl 12 other than the minimum lot size.
45 Based on the aerial photo in exhibit B, there are other undersized allotments in the vicinity of the site, which currently do not have dwellings. No evidence was presented which assessed whether approval of this application would be a precedent for other application. Mr Peters stated that each application would be considered on its merits.
46 I accept Mr Clark’s evidence that the site is not unique and that there are no particular circumstances, which would warrant that the application of the standard is unreasonable or unnecessary. While consolidation of lot 191 and 192 moves closer towards compliance with the standard, it is still a significant departure. There is also nothing to distinguish the consolidation of this site with another development that also consolidates undersized allotments. If it is appropriate for a dwelling to be constructed when undersized allotments are consolidated, the standard should say so. This is not a particular circumstance that would be unique to this site.
47 Lot 193 is not consolidated and would remain as an undersized allotment with an area of only 2.32 ha. Mr Peters acknowledged that the agricultural productivity of lot 193 would be unviable if limited to its own area and that the agricultural productivity of each allotment improves as the area of land increases. Further, he noted that the approval of the house on lot 193 was reliant on lot 192 for services and access.
48 The size of the three lots, even if consolidated, is of limited productive agricultural use, however, the potential productivity of lot 193 and the combined lots 191 and lot 192 would be diminished by the proposal when compared to the current arrangement and is therefore not consistent with the purpose of the standard.
49 I do not accept the conclusion of Mr Peters and Mr Zakaras that the character of the area is rural residential or that the site’s proximity to Tintenbar Village and the presence of the Hillcrest Drive Rural residential subdivision justify the variation to the standard.
50 Both Tintenbar and Hillcrest are not within the visual catchment of the site and the character of these areas is different to the character of the area in the vicinity of the site, and in the case of Hillcrest, is clearly not a character that would be consistent with maintaining a rural character. While there are undersized allotments in the vicinity of the site, these are not all developed with houses. There are also a number of medium and larger allotments and the area maintains its rural character. There is nothing to distinguish development of a house on the site with development of a house on other undersized allotments.
51 The experts agreed that the low intensity agricultural use of the site and the adjoining and nearby lots is unlikely to result in rural residential conflict in relation to this particular development and that adequate buffers where provided. The proposal of itself does not create and unreasonable demand for community facilities and services. However, Mr Clark was concerned about the potential for rural conflict and increased demand resulting from cumulative development of similar sites.
52 Consistent with the principles in Goldin and Anor v Minister for Transport [2002] NSWLEC 75 precedent is a valid planning concern. Although the evidence was scant, there appears to be other undersized lots in the area that are vacant and, if so, there is a real probability that there would be further applications on sites with similar characteristics. While each application for dwellings must be considered on its merits, other applications and other sites are likely to have very similar constraints and considerations and approval of this application could set a precedent for other approvals.
53 Cripps CJ in Hooker Corporation Pty Ltd v Hornsby Shire Council (Cripps J, NSWLEC, 2 June 1986, unreported) observed that:
….it is not be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan making procedures set out in Part III of the Environmental Planning and Assessment Act.
….The Court must assume a development standard in a planning instrument has a purpose.
54 This was reinforced by Preston CJ in Wehbe where he examined an alternative way to determine whether compliance with a standard is unreasonable and unnecessary and stated at para 48 to 52 that:
48 A fifth way is to establish that “the zoning of particular land” was “unreasonable or inappropriate” so that “a development standard appropriate for 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: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 97.
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.
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].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].
55 The parties did not state that the zoning of the site was inappropriate and that therefore the application of the standard was unnecessary. However, both Mr Peters and Mr Zakaras gave weight to their opinion that the character of the area was rural residential and the site, if used for rural purposes, would not be productive. These circumstances would apply to other sites within this zone and if correct should be examined through the strategic planning process not through an individual development application.
56 I find that the proposal does not meet the objectives of the standard. Compliance with the development standard is therefore not unreasonable or unnecessary and the SEPP 1 objection is not well founded. On this basis the application must fail.
57 The Orders of the Court are:
- 1. The appeal is dismissed.
2. Development Application (2008/620) to construct a dwelling and associated infrastructure at lot 191 DP 755741, Fernleigh Road, Tintenbar, is refused.
3. The exhibits, except exhibits 6, C, D and R1 are returned.
- _______________
Annelise Tuor
Commissioner of the Court
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