Coastplan Consulting v Gosford City Council

Case •

[2013] NSWLEC 1087

•

23 May 2013

Land and Environment Court


New South Wales

Medium Neutral Citation: Coastplan Consulting v Gosford City Council [2013] NSWLEC 1087
Hearing dates:15, 16 May 2013
Decision date: 23 May 2013
Jurisdiction:Class 1
Before: Hussey C
Decision:

(1)The appeal is dismissed.

(2)The SEPP 1 Objection to the minimum lot size development standard in cl 18(3)(d) of IDO 122 is disallowed.

(3)Development consent to DA No 43165/2012 Part 1 for a twolot subdivision of 179 The Scenic Drive, Killcare Heights is refused.

(4)The exhibits may be returned except for 2, 3, A and C.

Catchwords: Development application - rural subdivision, minimum lot size - SEPP 1 Objection - objectives of the zone - character of the area - tourist development
Legislation Cited: IDO No 122
State Environmental Planning Policy No 1 - Development Standards
Draft Gosford Local Environmental Plan 2009
State Environmental Planning Policy 71 - Coastal Protection
Rural Fires Act 1997
Cases Cited: Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438
Wehbe v Pittwater Council [2007] NSWLEC 827
Category:Principal judgment
Parties:

Coastplan Consulting (Applicant)

Gosford City Council (Respondent)
Representation:

Mr G McKee (Applicant)

Mr M Everingham (Respondent)
File Number(s):10194 0f 2013

Judgment

Background

  1. This appeal was lodged against council's refusal of a two-lot rural subdivision at 179 The Scenic Road, Killcare Heights. The following contentions were identified for the appeal:

  • Non-compliance with minimum lot sizes and SEPP 1 Objection
  • Consistency with the objectives of the zone
  • Compliance with the character of the area
  • Bushfire, asset protection zones (APZ)

The site

  1. The subject site is described as Lot 428 DP 1054871 and it has an area of 2.756ha. The land is located on the northern side of The Scenic Road, about 200 m to the east of the intersection of The Scenic Road and Manly View Road.

  1. The site is generally rectangular in shape, with a 117.88 m frontage to The Scenic Road, an eastern side boundary length of 220.76 m, a rear northern boundary length of 120.2 m and a western side boundary length of 246.44 m. An easement for electricity line 7 m wide is located across the frontage of the site.

  1. The site has large two-storey dwelling towards the street frontage together with an ancillary metal shed, tennis court and detached structure identified as "Brick Guest House", in the statement of facts and contentions. There is extensive trees/vegetation along the boundaries of the site, particularly the side and rear boundaries.

The proposal

  1. The two-lot subdivision proposes:

  • Lot 1 having an area of 1.424 ha and containing the existing dwelling house, metal shed, tennis court and the structure identified as the "Brick Guest House". Proposed Lot 1 will have direct vehicular access to The Scenic Road via an access way along the western side of the property.
  • Lot 2 having an area of 1.329ha and is vacant. Vehicular access to The Scenic Road is proposed via a Right-of-Way over proposed Lot 1's access way for the benefit of Lot 2.

  1. Works associated with the proposed subdivision include:

  • Upgrade, widen and extent the existing access way onto The Scenic Road to provide access to proposed Lot 2. Provide appropriate APZ along the access way.
  • Provision of services over proposed Lot 1 to service proposed Lot 2.

Planning controls

  1. The following planning controls are relevant: Firstly, IDO No 122; under which the site is partly zoned 7(c3) Conservation and Scenic Protection (Scenic Protection - Tourist Accommodation) and partly unzoned land. The area unzoned is located at the front of the site with The Scenic Road and has an area of about 1,832 m2.

  1. The relevant Clauses of the IDO are:

  • Clause 5 - Objectives and Development Control Table.
  • Clause 18 - Subdivision; where a minimum area of 4 ha is prescribed,
  • Clause 21 - Restriction on the erection of dwelling-houses in zones other than Zone No 7(a)
  • Clause 24 - Tourist Units
  • Clause 39B - Development of Land with certain characteristics.

  1. Subdivision is a use permissible with consent for 7(c3) zoned land, subject to a minimum lot size of 4 ha.

  1. Draft Gosford Local Environmental Plan 2009 (DLEP). The proposed zoning of the site is E4 Environmental Living. The minimum lot size in subdivision is 4.0 ha. The relevant Clauses of the DLEP are;

  • Clause 1.8A - Savings Provisions
  • Clause 2.1 - Land Use Zones
  • Clause 2.6 - Subdivision - Consent requirements
  • Clause 4.1 - Minimum Subdivision Lot size
  • Clause 4.6 - Exceptions to Development Standards

  1. The DLEP was exhibited between 10 February and 5 May 2010. During that time about 1,500 submissions were received. Council adopted the DLEP at its meeting on 31 May 2011, and has forwarded the DLEP to the Minister to make the Plan.

  1. The other controls Include:

  • State Environmental Planning Policy No 1 - Development Standards.
  • State Environmental Planning Policy 71 - Coastal Protection.
  • Rural Fires Act 1997.
  • Development Control Plan 89 - Scenic Quality
  • Development Control Plan 128 - Public Notification of Development Applications.
  • Development Control Plan No 130 - Subdivision of Rural and Non-Urban land.
  • Development Control Plan No 159 - Character.
  • Development Control Plan No 165 - Water Cycle Management.

The evidence

  1. Detailed evidence in the form of a joint planning report was presented by:

  • Mr K Singh; Council's Senior town planner,
  • Mr A Tuxworth, Applicant's consulting town planner.

  1. Mr G Swain (Applicant's bushfire consultant) initially presented a detailed bushfire assessment and then with Mr M Staples (Council's Senior environmental officer) provided oral evidence concerning bushfire impacts, particularly the likely requirements for asset protection zones (APZ).

  1. It is apparent that the prevailing control is IDO 122. Whilst the DLEP has been submitted to the Department, there is substantive evidence that it is imminent and certain.

  1. The potential bushfire issue was initially addressed. It arises because of the context of the site being amidst a forested area, which is subject to a fire risk. Such risk could usually be addressed by way of a suitable APZ. Mr Swain considered this in his bushfire assessment. Insofar as there was some initial disagreement about the surrounding vegetation classification, a subsequent inspection resulted in this classification being agreed by the experts.

  1. Consequently, in applying the Planning for Bushfire Protection (PBP) provisions, Mr Swain is satisfied that it would be possible to erect a new dwelling house on the cleared area of the proposed Lot 2 and provide and an adequate APZ. However, with regard to others types of development, particularly 'tourist development', which would be classified as 'Special Purpose Uses', they would require larger APZs. But these uses would not be possible because after applying the APZ, insufficient building area on Lot 2 would remain.

  1. From the permitted uses table in IDO 122, Mr Swain said that there are a number of other 'special purposes uses' that would then probably also be restricted due to inability to provide the required APZ. The remaining uses possible then include animal establishments, dual occupancies - attached, dwelling houses, home industries, lawn cemeteries, places of public worship (possible), plant nurseries, recreation and sporting facilities, restaurants, utility installations, veterinary hospitals.

  1. Therefore the main part of the applicant's case that the council's preferred 'tourist' type development is unlikely to be achieved for the site. Considering this together with the other circumstances of surrounding development, the proposal represents economic and orderly development of the land.

  1. As both proposed lots are significantly below the minimum stated area of 4 ha, the applicant relies on Mr Tuxworth's SEPP 1 Objection to the minimum lot size standard in cl 18(3)(d) of the IDO. In this regard reliance is placed on Wehbe v Pittwater Council [2007] NSWLEC 827 where the Chief Judge determined:

Ways of establishing that compliance is unreasonable or unnecessary
42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard: see SCMP Properties Pty Limited v North Sydney Municipal Council (1983) 130 LGERA 351 at 379; Hooker-Rex Estates v Hornsby Shire Council, unreported, LEC No 10506 of 1982, 27 July 1983, Bignold J, pp 16, 18 and 20; Gergely & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 406-407, 412-413; Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGRA 438 at 441; North Sydney Municipal Council v Parlby, unreported, LEC No 10613 of 1985, 13 November 1986, Stein J at p 5; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; Leighton Properties Pty Ltd v North Sydney Council (1998) 98 LGERA 382 at 386; Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 97; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282-283; Memel Holdings Pty Ltd v Pittwater Council (2000) 110 LGERA 217 at 220-221; Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at 88[25] - 89[28] and Design 23 Pty Ltd v Sutherland Shire Council (2003) 125 LGERA 380 at 387 [20]-[21].
43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).
44 However, although this way is commonly invoked, it is not the only way to establish that compliance with a development standard is unreasonable or unnecessary: North Sydney Municipal Council v Parlby, unreported, LEC No 10613 of 1985, 13 November 1986, Stein J at p 5; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 97; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282-283. Other ways are explained in the authorities.
45 A second way is to establish that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary: SCMP Properties Pty Limited v North Sydney Municipal Council (1983) 130 LGERA 351 at 378-379; North Sydney Municipal Council v Parlby, unreported, LEC No 10613 of 1985, 13 November 1986, Stein J at p 5.
46 A third way is to establish that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable: Hooker-Rex Estates v Hornsby Shire Council, unreported, LEC No 10506 of 1982, 27 July 1983, Bignold J at p 18.
47 A fourth way is to establish that the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable: North Shore Gas Co. Pty Ltd v North Sydney Municipal Council, unreported, LEC No 10185 of 1986, 15 September 1986, Stein J at pp 11-12; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282 [69]-283 [70].
48 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.

  1. Mr Tuxworth relies on the first and fifth ways to demonstrate that strict compliance is unnecessary and unreasonable. Consequently, one of the first steps is to determine the objectives of the development standard. In the absence of specific objectives for the development standard, Mr Tuxworth says that:

It is generally accepted that the intention of minimum allotment sizes is to maintain the desired future character of a particular locality and facilitate the relevant objectives of the respective zoning. In this particular case the intention of the minimum allotment size in the 7(c3) Conservation and Scenic Protection (Scenic Protection - Tourist Accommodation) zone could also be to provide lots of sufficient size to allow for tourist accommodation and to prevent fragmentation of larger lots and reduce the potential for tourist accommodation.

  1. Mr Tuxworth also refers to the following planning objective of zone 7(c3):

To enable a range of development including tourist accommodation, on land between the Somersby Plateau and the ocean, which has been identified as possessing significant aesthetic or conservation value, and where:
(i) It can be demonstrated that the development will be carried out in a manner which will not significantly prejudice the aesthetic or conservation quality of the land within the zone; and

  1. However, Mr Singh disagrees and says that the underlying objective of this development standard is as a density control to regulate the pattern of subdivision by way of suitable shape and size of any new lots to achieve adequate spatial separation for a range of other permitted uses. The neighbouring lots within the prescribed zone have dimensions which are generally larger than the proposed lots. The aesthetic effect is to present large allotments with large distances between boundaries and large distances between the existing built elements. The proposed development produces smaller lots and lesser separation which runs counter to the intent of the objectives.

  1. He also says that the principal purpose of the 7(c3) zone is to facilitate development for the purpose of tourist accommodation. The inevitable consequence of the proposal would be to prevent tourist accommodation because of the operation of cl 24(1)(a) of the IDO, which restricts the erection of a tourist unit on a site area of less that 2 ha. A "tourist unit is described as:

Means a room or suite of rooms occupied or used or so constructed or adapted as to be occupied or used on a temporary basis for the accommodation of tourists only.

  1. Based on the first way in Wehbe and by reference to the assumed objectives, Mr Tuxworth supports the proposal because:

  • The proposed Lot 2 is substantially cleared and minimal clearing of vegetation would be required for the erection of a dwelling house with complying APZ. Therefore the development will not significantly prejudice the aesthetic and conservation quality of the land.
  • The servicing/access to Lot 2 is via the existing (widened) driveway.
  • Insofar as the zone allows limited developments including tourist developments, appropriate APZ's cannot be provided for this type of "Special Purpose Development".
  • The subject site is adjoined immediately to the east by land in the zone 7(c2), which allows a minimum area of 1 ha. Consequently the proposed lots are consistent with the lots in the locality.

  1. Furthermore, Mr Tuxworth says that the proposal is consistent the objectives of cl 4.1 Minimum Subdivision Lot size in the draft Gosford LEP (DGLEP). The proposed subdivision of the land will result in the density of development being less than would be achieved by erecting a tourist development on the site, which could be subdivided. However, I note that the proposed subdivision standard retains the minimum 4 ha lot size.

  1. Following the discussion the the development standard may be inappropriate, the planners addressed the provisions of cl 7 and 8 of the DOP Circular B1, which states that in cl 8:

8. If the standard is clearly inappropriate in general terms, the council should review its planning controls by means of a local environmental plan. Where a local environmental plan is being prepared councils should be cautious in using State Environmental Planning Policy No. I on the basis of the draft plan, since there is no guarantee that a draft instrument will proceed to finalisation. Repeated application of the Policy under these circumstances can bring about a de facto amendment to the plan. The Policy is an administrative rather than a policy-making tool and the distinction needs to be kept clearly in mind.

  1. From this Mr Singh says that the use of the Policy should have due regard to the aims and objectives of the Policy:

The intent is both to provide for adequate spatial separation between existing and proposed allotments so as to maintain the aesthetic value of the land as well as to provide for sufficiently large parcels of land to accommodate the land uses permitted in the land use table ...
The applicant s notion that the 4 0 ha development standard should be relaxed having regard to the proximity of the adjoining 7(c2) Conservation and Scenic Protection (Scenic Protection - Rural Small Holding) Zone cannot be used as justification to vary the requirements of Clause 18(3)(d) of IDO No 122, as is the applicants notion that the proposed Lot 2 will not be visible from The Scenic Road The visibility of a future development on proposed Lot 2 from The Scenic Road is cited by the applicants SEPP No 1 Objection as being The most significant merit based argument in favour of the application This notion by the applicant cannot be used as the most significant merit based argument in support of the SEPP No 1 Objection.
Furthermore the applicant s contention that the restrictions placed on the use of the site for tourist accommodation by the Planning for Bushfire Protection guidelines limit the developable area to such an extent that the use of the site for tourist accommodation is not viable or even achievable" is not agreed with as no factual evidence has been submitted to substantiate the statement...

  1. With regard to the fifth way stated in Wehbe, Mr Tuxworth says that within this zone, the extensive areas of vegetation surrounding the site and APZ restrictions mean that tourist accommodation is not viable or achievable.

  1. Apart from the SEPP 1 consideration, the planners addressed the other contentions, in particular the desired character for the area. DCP 159 contains the following character statements:

Killcare Heights 6: Scenic Conservation
Existing Character
Properties that are scenically and ecologically distinctive, including national parks with coastal woodland and heath, plus rural residential allotments that retain woodland in a near-natural state where development has been minimal, facing the main thoroughfares and tourist route.
Across slopes that are located below residential ridgeline, a wooded reserve provides a scenically-distinctive foreground to dwellings, plus a substantial scenic buffer that has exceptional visual prominence from coastal vantage points., and
Killcare Heights 6: Scenic Conservation
Desired Character
These should remain near-natural buffers where the ecological and scenic qualities of Gosford City's distinctive ridgetop reserves are conserved by very-low impact residential development upon existing private properties supported by active environmental management.
Conserve the natural qualities of hillside properties and reserves by minimising further clearing of bushland, and avoid any land-management activities that would compromise the long-term diversity, vigour and habitat value of natural plant communities that are associated with public reserves. New structures should be sited within existing clearings...
In areas that are defined as bushfire prone, hazard must not be increased by inappropriate new plantings or structures. Minimise the extent of cleared asset protection zones by fire-resistant siting, design and construction for all new structures plus effective management of gardens. The ideal compromise between desired scenic quality and hazard-reduction would limit clearing to the understorey plus thinning of the canopy to establish breaks between existing trees. Regular garden management should maintain separation between canopies and remove accumulated leaf litter by ecological best-practice techniques such as mosaic burns that strike a balance between conservation, scenic quality and public safety.
Minimise the scale and bulk of any new building that would be visible from a road or nearby property. For example, divide floorspace into linked pavilion structures that are surrounded by shady verandahs, and preferably provide parking in separate garages or outdoors. Roofs should be simple hips or gables without elaborate articulation or extensive valleys, gently-pitched to minimise the height of ridges and flanked by wide eaves and verandahs that disguise the scale of exterior walls. All verandahs, windows, roofs and suspended floors must be screened to prevent the entry of sparks and flying bushfire embers...

  1. Mr Singh disagrees with Mr Tuxworth on the basis that the proposal would break up the pattern of subdivision in the 7(c3) zone, resulting in a haphazard pattern, which would contribute negative aspects to the development.

Conclusion

  1. For the determination of this matter I have considered the evidence, the submissions and undertaken a view. Insofar as the determination of the SEPP 1 Objection is the threshold matter, I have also considered the evidence on the other merit contentions in my ultimate determination of the matter.

  1. The SEPP 1 Objection relates to the minimum subdivision lot size of 4 ha in cl 18(3)(d) of IDO 122, under which the subject land is within the 7(c3) Conservation and Scenic Protection (Scenic Protection - Tourist Accommodation) zone.

  1. In the absence of specific objectives for this development standard, I accept the planner's derivation of the underlying objective that the intention of the minimum allotment size is to achieve the desired future character of a particular locality and facilitate the relevant objectives of the respective zoning. In this particular case the intention of the minimum allotment size in the 7(c3) Conservation and Scenic Protection (Scenic Protection - Tourist Accommodation) zone is also to provide lots of sufficient , which reduce the potential for tourist accommodation. Compliance with the development standard also achieves a desired degree of amenity in terms of the spatial separation of various types of development.

  1. The 4 ha standard is interesting because in the subject area, the 7(c3) zone area is relatively compact and there are no existing lots with areas exceeding 4 ha. Nevertheless this development standard has remained with a planning purpose to restrict subdivisions. In the circumstances the opportunity for a complying subdivision is unlikely.

  1. Insofar as Mr Tuxworth also refers to compatibility of the proposal with the adjoining 7(c2), which allows smaller 2 ha lots, I think this should be given little, if any weight because it is a buffer zone that places less emphasis on conservation and protection of significant scenic value of land. However, even if this comparison was given greater weight, the proposed lots are still deficient in area.

  1. Apart from this, Mr Tuxworth's evidence is that compliance with the development standard is unnecessary or unreasonable and that the objectives can be met because:

  • The lot will not be visible from surrounding public areas and will be screened from neighbouring properties
  • No further clearing is entailed
  • Significant vegetation exists on the boundaries
  • Tourist development is unlikely to be achieved because of the APZ constraints.
  • The future erection of a single dwelling house as opposed to some form of tourist accommodation will minimise any further loss of scenic character to the unit.

  1. However, I am inclined to agree with Mr Everingham's submissions that this apparent lack of environmental harm does not satisfy the first test in Wehbe. In this regard, Wehbe refers to Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 wherein Cripps CJ said:

It has been established by a series of decisions in this Court that generally in order to maintain an objection that compliance with a standard is unreasonable or unnecessary, it is first necessary to discern the underlying object or purpose of the standard. To found an objection it is then necessary to satisfy the Court that compliance with the standard is unnecessary or unreasonable in the circumstances of the case. Although the Court has urged a generous application of SEPP No. 1 and has repeatedly declined to attempt exhaustively to define the limits of the dispensing power and, in particular, what is embraced by the expression "circumstances of the case", it .is now established that it is not sufficient merely to point to what is described as an absence of environmental harm to found an objection. Furthermore, the objection is not advanced, in my opinion, by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a purpose. See SCMP v. Municipality of North Sydney (15 April 1983, unreported), Gergeley and Pinter v Woollahra Municipal Council 52 LGRA 400, Claude Neon v. Rockdale Municipal Council (10 September 1985, unreported) and Hooker-Rex Estates v Hornsby Municipal Council (27 July 1983, unreported). Furthermore it is now established that although the discretion conferred bt SEPP No 1 is not to be given restricted meaning and its application is not to be confined to those limits set by other tribunals in respect of other legislation, it is not to be used as a means throughout a municipality such as are contemplated by the plan making procedures set out in Part III of the Environmental Planning and Assessment Act.

  1. Consequently, I do not consider the applicant has proffered an alternative means of achieving the objective so that (strict) compliance is unnecessary and unreasonable. Consequently I do not consider the SEPP 1 Objection is made out.

  1. As stated in Hooker, the Court has to assume that the development standard has a planning purpose. Whilst the main objective seems to be to enable tourist accommodation, I accept Mr Everingham's submission that the purpose of the standard, taken in conjunction with cl 24 of IDO 122, is to set aside sufficiently large parcels of land to allow for this development of tourist accommodation. In the absence of an application, it would be inappropriate for the Court to hold that in all cases in the 7(c3) zone use for tourist accommodation is "not viable or even achievable". In fact, nearby property at 107 The Scenic Road is an example of tourist accommodation on land in this zone. The outcome sought by the applicant would prevent any future development of the land as envisaged in the objectives of the zone, through the operation of cl 24, effectively sterilizing the land for that purpose.

  1. In this regard, I note Mr McKee's submission that when relying on the fifth way (Wehbe), it should be focussed on the "particular land" and the circumstances of the case. Accordingly, as mentioned previously, I think that the 7(c3) land is well-defined and integral to the 'Killcare Heights' locality. Accordingly, in these circumstances I do not think it reasonable to accept Mr Tuxworth's opinion that the subject should somehow be assessed differently to the other 7(c3) lots.

  1. If the current development standard is considered inappropriate, then I think that the economic and orderly development provision would warrant an overall review, rather that achieve a change by SEPP 1 Objection. In this regard it is apparent that there are other similar lots where there could be an expectation for similar development opportunities.

  1. Interestingly, there is the DLEP, which has been under consideration for some time. Whilst it was submitted that it is merely a "conversion " LEP, it nevertheless maintains the 4 ha minimum subdivision standard so as to achieve the following objectives:

  • To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.
  • To ensure that residential development does not have an adverse effect on those values.
  • To promote ecologically, socially and economically sustainable development and the need for and value of biodiversity in the local government area.
  • To provide land for low-impact tourist related development that is of a scale that is compatible with the special ecological, scientific or aesthetic values of the area covered by this zone
  • To ensure development is compatible with the desired future character of the areas covered by this zone

  1. I do not consider the proposal is consistent with these objectives because they endeavour to limit the amount of development of the land by subdivision so as to maintain a reasonable degree of spatial separation, as stated by Mr Singh, to minimise environmental impacts on the area. Accordingly, any "low-impact development", relying on the subdivision of land requires a minimum lot size of 4 ha, to satisfy this objective. Obviously a different density outcome would occur for a new lot, which is more than 50% less than the standard.

  1. In summary then, the evidence indicates to me that the prevailing controls endeavour to restrict subdivision so as to minimise adverse environmental impacts. Presumably some of the permitted uses can occur on the existing lots but where subdivision is contemplated, it is not on much smaller blocks as proposed in the subject application.

  1. Whilst I acknowledge that there is some uncertainty with the 7(c3) zone designation because "tourist development" is not specifically defined, nevertheless "tourist unit" is. It appears to me that tourist units are a lower impact form of tourist development that may be conditionally acceptable in the 7(c3) zone. In the absence of any substantive evidence demonstrating that lower impact tourist type development is not viable, I unable to rely on Mr Tuxwoth's opinion so as to allow the subdivision. Such action would be contrary to his assertion that the underlying objective of the development standard is to provide lots of sufficient size to allow for tourist accommodation and to prevent fragmentation of larger lots and reduce the potential for tourist accommodation.

  1. In the ultimate, I do not consider this application merits consent because it seems to be based on the misplaced assumption that some further development of this land should occur in the interests of economic and orderly development and better environmental outcome. The existing lot is 2.76 ha and it has consent for a large dwelling and ancillary buildings. They include the detached "guest room" structure, which likely fits the tourist unit definition. The ultimate approval of a subdivision and subsequent dwelling house would significantly intensify the use of this property to an unacceptable level in this sensitive environmental area. I do not consider the SEPP 1 Objection made out and therefore the application should be refused in my assessment.

Court orders

  1. The Court orders that:

(1)   The appeal is dismissed.

(2)   The SEPP 1 Objection to the minimum lot size development standard in cl 18(3)(d) of IDO 122 is disallowed.

(3)   Development consent to DA No 43165/2012 Part 1 for a twolot subdivision of 179 The Scenic Drive, Killcare Heights is refused.

(4)   The exhibits may be returned except for 2, 3, A and C.

R Hussey

Commissioner of the Court

Decision last updated: 23 May 2013

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Wehbe v Pittwater Council [2007] NSWLEC 827