Christopher John Mobbs v Kempsey Shire Council

[2006] NSWLEC 284

Land and Environment Court

of New South Wales

CITATION:	Christopher John Mobbs v Kempsey Shire Council [2006] NSWLEC 284 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT: Christopher John Mobbs RESPONDENT: Kempsey Shire Council
FILE NUMBER(S):	10140 of 2006
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Whether or not the separation between the proposed new dwelling and future industrial uses nearby to the east is adequate
LEGISLATION CITED:	Kempsey Local Environmental Plan 1987, (KLEP) Kempsey Industrial Land Strategy, (Strategy) North Coast Regional Environmental Plan, (NCREP) Environmental Planning and Assessment Act 1979, ss 79C and 97
DATES OF HEARING:	19/05/2006
DATE OF JUDGMENT:	05/25/2006
LEGAL REPRESENTATIVES:	APPLICANT: Mr M Fraser, barrister instructed by Ms L White, solicitor SOLICITORS: Leanne White of Forster RESPONDENT: Mr G Underwood, barrister instructed by Ms N Doney, solicitor SOLICITORS: Cooney Harvey Doney, Lawyers & Conveyancers of Kempsey

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

25 May 2006

10140 of 2006 - Christopher John Mobbs v Kempsey Shire Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Kempsey Shire Council (the council) to refuse a development application to erect a dwelling and shed at Lot 151, DP 752417, Grass Tree Road, South Kempsey, NSW, 2440.

2 I visited the land in company with the parties on the morning of the hearing and the hearing was held on site.

3 I have concluded that the separation between the proposed new dwelling and future industrial uses nearby would be adequate if an acoustic buffer were to be placed on the future industrial land as well. However, were the subject land rezoned by the council to industrial, a condition is imposed to ensure that the dwelling house on the subject land would not be classed as an acoustic receiver after rezoning.

The land

4 The land is situated on the western side of the graded gravelled Grass Tree Road, and has an area of 14.44 hectares. The land has a western frontage to Sandy Creek Road of 180.85 metres and an eastern frontage to Grass Tree Road, of 325 metres, and a northern boundary of 617 metres and a southern boundary of 585 metres. There are no buildings on the land, however, two concrete water tanks have been installed, a dam constructed in the eastern watercourse and the eastern part of the land has been fenced.

5 There are two watercourses, which traverse the land from north to south and vegetation is a mix of woodland and forest. Dry Sclerophyll forest predominates. The eastern section of the land has been cleared in preparation for the erection of a dwelling. The western part of the land remains heavily treed.

6 Forested land surrounds the subject land including ‘Kataleenee State Forest’ abutting the land to the south. South Kempsey is about 800m to the northeast and the subject land together with other land to the east and north has been identified within the Kempsey and South West Rocks Industrial Land Review prepared by ERM in June 2004.

Relevant planning controls

Kempsey Local Environmental Plan 1987, (KLEP)

7 Under the provisions of the KLEP the land is zoned 1(d) (Rural (Investigation) D Zone) and the proposal to erect a dwelling house on the land is permissible with consent on land of minimum allotment area of 40 hectares. Although the subject land is less in area than 40 hectares, the parties are agreed that the land has a single dwelling entitlement and the council, in a letter to the applicant, dated 28 November 2003 confirmed this. The objectives of this zone under the KLEP are:

(a) to provide for future expansion of Kempsey Shire’s population;
(b) to ensure that such land is not subject to excessive capital investment; and
(c) to enable thorough investigation of land prior to release for development.

Kempsey and South West Rocks Industrial Land Review prepared by ERM in June 2004, (Strategy)

8 The subject land, together with land to the east and north, has been included for investigation as future industrial land under the Strategy. The land to the east has frontage to the Pacific Highway and is presently partly used for industrial purposes. The council proposed that this industrial use extend further to the west. The western boundary of the industrial zone has yet to be determined.

9 On 15 July 2004, the council adopted the draft Strategy for public exhibition and at the same time it resolved to prepare a draft local environmental plan to rezone land within the Strategy area for general industrial purposes.

10 The council adopted the Strategy on 9 November 2004 and then sought financial support from landowners in the Strategy area to fund environmental investigations, but these funds were not forthcoming.

11 On 5 October 2005, the council commissioned a consultant to undertake vegetation mapping of the area of the Strategy and in March 2006 the draft vegetation mapping report was received that placed limitations on clearing the area. Clearly, planning for future industrial use is in an early stage.

North Coast Regional Environmental Plan, (NCREP)

12 Clauses 46 and 47 of the NCREP that relate to plan making under Part 3 of the Environmental Planning and Assessment Act 1979 are relevant.

13 Clause 46 of the NCREP provides that the objectives of land in relation to commercial and industrial development is to encourage an adequate supply of zoned land located where these uses are within planned growth areas and where essential services can be provided with minimal environmental damage.

14 Clause 47 of the NCREP provides:

1. Before preparing a draft local environmental plan relating to commercial or industrial development, the council should take into consideration the following principles:
(a) strong multi-functional town centres should be maintained the focus the drawing power of individual businesses and maintain the integrity of the main business area by only zoning land to commercial and retail development where development adjoins or is adjacent to the existing town centre;
(b) provisions contained in local environmental plans relating to retail, commercial, business and industrial zone should be flexible, especially to enable development of light service industry near the central business district;
(c) there should be an adequate supply of zoned industrial land located where it is physically capable of development or industrial purposes, is not environmentally fragile and can be serviced at reasonable cost.
(2) Before granting consent for industrial development, a council must take into consideration the principle that land used for such development should be located where it can be adequately serviced by the transport system and is accessible from urban areas.

The proposal and its history

15 Development application No T6-05-182 was lodged with the respondent council on 26 April 2005, to erect a dwelling house and shed on the land.

16 The dwelling house would be single-storey with the living rooms oriented to the north and windows protected by a verandah, as shown in the plans. It is proposed that the southeast corner of the dwelling be located 100m from Grass Tree Road and around 180m from the northern boundary. In this location on the land there would be no need of any further clearing either for the proposed new dwelling or its fire protection zone, the effluent transpiration area, the shed and water tanks. There was no dispute that the requirements of ‘Planning for Bushfires’ could not be satisfied if the dwelling were erected in the cleared eastern part of the land. The applicant is content to maintain the bushland setting on the western part of the land.

17 The council indicated to the applicant shortly after the application was lodged, that it would prefer the new dwelling relocated further from Grass Tree Road in order to maintain the viability of future industrial land to the east. This western dwelling site would require trees to be removed and would require the construction of a new road around 300m in length over clayey soil. According to the applicant, to move the dwelling as suggested by the council would incur an additional cost of $20,000 or more. At a minimum this would represent an increase or 10% of the cost of the dwelling.

The council’s decision

18 By notice dated 22 November 2005 the council refused the application for the following reasons:

1. Proposed location of the dwelling is contrary to the objectives of the 1(d) zoning of the land.
2. The subject land is within the proposed investigation area for the provision of industrial land to serve the needs of Kempsey Shire’s population.
3. Approval of the dwelling would render a substantial area of potential future industrial land unable to be used of such purpose due to the need to separate industrial development from dwelling-houses.
4. Approval of a dwelling-house is likely to prevent the economic development of adjoining land for a board range of industrial land uses.

The hearing

19 The appeal in Class 1 of the Court’s jurisdiction was filed on 21 February 2006.

20 At the hearing, the Court heard evidence on behalf of the respondent council from:

· Mr A P Blue, Planning Manager of Kempsey Shire Council;

· Mr N Ishac, acoustic engineer.

21 On behalf of the applicant evidence was given by:

· Mr R Van Iersel, Director of Geolink and consultant town planner.

The issues

22 On 7 April 2006, the council filed an amended statement of issues.

Proposed Location of Dwelling

Particulars

Kempsey Local Environmental Plan 1987 (Kempsey LEP). The objectives of the zone are:

Proposed Investigation Area for Kempsey

Particulars

Proposed Dwelling will sterilize adjoining land

Particulars

Preventing economic development of adjoining land

Particulars

Resolution to prepare draft Local Environmental Plan to rezone the land General Industrial Development

5. Proposed rezoning to increase existing industrial area in the Kempsey Shire.
(a) Kempsey Shire Council resolved on 15 July 2004 to prepare a draft Local Environmental Plan to rezone the subject land for General Industrial Development.
(b) The proposed dwelling house would interfere with the proposed industrial zoning and use of the area.

23 The salient issue was whether or not adequate separation, between the proposed new dwelling and future industrial uses nearby to the east, would be provided to attenuate noise from the future industrial area to the east.

The evidence and findings

Whether or not adequate separation, between the proposed new dwelling and future industrial uses nearby to the east would be provided to attenuate noise from the future industrial area to the east

24 The exact location of the future industrial area was not known at this stage and it might be only include land to the east of the subject land, across Grass Tree Road. It might also include the subject land and land to the north. However, the council’s main concern was that there should be adequate separation between the subject land and the future industrial area to the east assuming that the zone boundary would be at Grass Tree Road.

25 Mr Blue said, “…the land is clearly located in an area proposed for future industrial use. Council has commenced preparation of environmental investigations, with indications that there is reasonable expectation at this time that the rezoning will proceed.”

26 Mr Van Iersel was of the opinion that “…the future use of the land for industrial purposes is not certain, and if it were to occur, the dwelling could be incorporated into future industrial development on the land.”

27 I accept the evidence of Mr Iersel and I am satisfied the proposed new dwelling could be incorporated into future industrial development on the land. If the zone boundary were at Grass Tree Road, I am also satisfied that there would be sufficient separation between the proposed new dwelling and future industrial uses nearby to the east if the future industrial users also were to provide an acoustic buffer either by way of design of the future buildings or distance on that industrial land.

28 The council maintained that proposed location of the dwelling would be contrary to the objectives of the 1(d) zoning of the land. This topic related to Issue 1, however, there was no dispute between the parties that the subject land has a single dwelling entitlement and dwelling houses are permissible in the 1(d) zone. I am unaware of any development standards applying to the subject land that would require the dwelling to be located other than as proposed by the applicant. Also, no industrial uses are permitted within the 1(d) zone, so little weight can be given to future industrial uses within the 1(d) investigation zone at this time.

29 Given the limited scope of the objectives of the zone, referred to in para 7 above, I am satisfied that the proposal to erect a dwelling would not be contrary to these objectives of the 1(d) zone and:

· would provide for the future expansion of Kempsey Shire’s population by accommodating a family on the subject vacant land at South Kempsey;

· would ensure that such land is not subject to excessive capital investment. The development application indicated that the total cost of the proposal, including GST, would be $200,000. If residential expansion were contemplated on the subject land, the proposal to erect a dwelling house on the land would be perfectly appropriate. If the future expansion were industrial, I am satisfied that it could be conditioned to be compatible; and

· would enable thorough investigation of land before release for development either for residential or industrial uses. The present investigations for the rezoning of the land may continue.

30 In the event of the adjoining land to the east being rezoned to general industrial use and the subject land being not so designated for industrial use, the land benefited by the rezoning, should be also the land burdened, in having to provide its own acoustic buffer, either by distance, design or a combination of both.

31 In the event that the adjoining land to the east and the subject land were to be rezoned general industrial there would be no need of an acoustic buffer along Grass Tree Road. If the dwelling house on the subject land were to continue in residential use then some measures should be taken to avoid it being an impediment to future industrial development. Thus the Court will impose Conditions 23 and 24 to ensure that the proposed new dwelling would not remain an acoustic receiver, and would not prejudice the future planning of the area.

32 The likelihood of the dwelling remaining residential, once the land is rezoned industrial is not great, as the owner at the time is likely to capitalise on the greatly increased value of the land.

33 The time frame for this rezoning was not clear, however, it was thought possible in ten, twenty or even fifty years. I have taken into account the applicant’s prior rights, established by him in clearing the land for a dwelling, in the erection of concrete water tanks and the construction of a dam nearby and fencing. When the rights of future industrial users are weighed against the rights of the applicant to erect a dwelling on his land under the 1(d) zone, it does not tip the balance away from the applicant.

34 Under the Environmental Planning and Assessment Act 1979, s5 ecologically sustainable development (ESD) must be taken into account. The additional embodied-energy costs in building a 300m road over clayey soil and expended in further clearing of the forested land on the western part of the subject land that would be necessitated were the dwelling to be constructed there, must be taken into account.

35 In arriving at these findings, I have not placed major weight on the council’s Strategy. The evidence suggests that it has not progressed. For example as late as March 2006, the council received a draft vegetation mapping report that identified limitations on clearing the land within the area of the Strategy.

36 I am satisfied that the proposed 100m setback of the proposed new dwelling to Grass Tree Road would provide adequate separation, between the dwelling and future industrial uses nearby to the east to attenuate noise from the future industrial area. I approve the development application subject to conditions.

37 For the above reasons, the appeal is upheld.

Conditions 23 and 24

38 Twenty-four conditions are in Attachment A, including Conditions 23 and 24:

23. In the event that the whole of the subject property or the eastern half of the subject property is re-zoned Industrial then the owner of the land and its/his/hers successors in title will not be considered by the consent authority as a “sensitive noise receiver” for the purpose of an application for development of any industry of the land adjoining.
24. The Applicant or successor in title shall do all such acts and sign all such documents so as to enable the registration of an instrument pursuant to Section 88E of the Conveyancing Act 1919 on the title to the land recording the provisions of Condition 23, within 28 days of the Council furnishing such instrument in registrable form for execution by the Applicant.

Orders

39 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No T6-05-182 lodged with the respondent council on 26 April 2005 to erect a dwelling house and shed on the land at Lot 151, DP 752417, Grass Tree Road, South Kempsey, is approved subject to Conditions No 1 to 24 in Annexure A.

3. The exhibits are retained.

S J Watts

Commissioner of the Court

sw

22/06/2006 - Deleted 'Mr' from the title - Paragraph(s) Title