Deborah Dawn Townsend v Lake Macquarie City Council

[2004] NSWLEC 248

Land and Environment Court

of New South Wales

CITATION:	Deborah Dawn Townsend v Lake Macquarie City Council [2004] NSWLEC 248
PARTIES:	APPLICANT Deborah Dawn Townsend RESPONDENT Lake Macquarie City Council
FILE NUMBER(S):	11237 of 2003
CORAM:	Brown C
KEY ISSUES:	Development Application :- visual impact SEPP 1 objection to lot size
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 1 Lake Macquarie Local Environmental Plan 2004 Lake Macquarie Local Environmental Plan 1984
CASES CITED:	Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46; Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) NSWCA 289
DATES OF HEARING:	13/05/04
DATE OF JUDGMENT:	05/27/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr I Hemmings, barrister SOLICITORS Harris Wheeler RESPONDENT Ms A Pearman, barrister SOLICITORS Peter Rees

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11237 of 2003

Brown C 27 May 2003

Deborah Dawn Townsend
Applicant

v Lake Macquarie City Council
Respondent Judgment

Introduction
1. This is an appeal against the refusal by Lake Macquarie City Council (the council) of Development Application D/2002/3772 for the erection of a new dwelling and the removal of kitchen and laundry facilities from an existing dwelling to render it a non-habitable building at 28 Chelston Street, Warners Bay (the subject site).

2. I record that a view of the subject site and area surrounding the subject site was undertaken on the morning of the hearing with representatives from both parties.

3. For the reasons set out in the judgement I have concluded that the appeal should be upheld and development consent granted subject to conditions.

The subject site
4. The subject site is known as lot 187 in DP 264294. It is generally rectangular in shape with a width of some 120 m and a depth varying between 295 m and 274 m. The total site area is 3.512 ha. It is located at the end of Chelston Street, Warners Bay. A dwelling, garage and a number of galvanised iron sheds are located on the subject site.

5. The subject site is situated on the eastern slopes of Munibung Hill. It has some remnant vegetation on the higher slopes and gullies, although the location of the proposed dwelling is on cleared land. Adjoining part of the southern boundary is the existing residential subdivision in Chelston Street. Existing residential development in Fairfax Road adjoins the eastern boundary of the subject site. The properties to the north and south are used for light grazing and the property to the west is a public reserve (see Attachment 1).

The proposed development
6. The proposal is to erect a new dwelling and remove the kitchen and laundry facilities from the existing dwelling to render it non-habitable. The proposed dwelling is single level and has the floor area of 278.02 m2. It consists of three bedrooms, dining/lounge room, kitchen and a combined family/meals room. The proposed dwelling will be erected on a slab with a finished floor level of 60.80 AHD. This will necessitate approximately 1.6 m of cut and 2.5 m of fill. An extension of the existing access driveway is to be constructed to the western end of the dwelling where a two-car garage is located. The location of the new dwelling is shown on Attachment 1.

The planning documents
7. The subject site is currently zoned 2(1) Residential Zone and 7(2) Conservation (Secondary) Zone under Lake Macquarie Local Environmental Plan 2004 (LEP 2004). LEP 2004 was gazetted on 19 March 2004. The development application was lodged on 15 May 2002 and remained undetermined at the commencement of LEP 2004. As such, the development application falls within the transitional provisions of cl 11 of LEP 2004. The clause reads:

11 Determination of Pending Development Applications
(1) Any development application lodged but not finally determined prior to commencement of this plan is to be determined as if this plan had been exhibited under the Act but had not been made.
(2) Development control plans as in force immediately before the commencement of this plan are to be taken into consideration by the consent authority in determining any such development application.


8 . In accordance with cl 11 of LEP 2004, the relevant environmental planning instrument for assessment is Lake Macquarie Local Environmental Plan 1984 (LEP 1984). Under LEP 1984, the subject site is zoned Rural 1(a). The subject site is also subject to Draft Amendment No. 180 (the Amendment) to LEP 1984. The Amendment was placed on exhibition between 28 May 2003 and 27 June 2003 and proposed to rezone the subject site from Rural 1(a) to Residential 2(a) and Environmental Protection 7(a) (Scenic). The boundary between the two proposed zones is shown on Attachment 1. The Amendment was not finalised prior to the commencement of LEP 2004 however the general changes contemplated by the Amendment were incorporated into LEP 2004. The Environmental Protection 7(a) (Scenic) and Residential 2(a) zone under the Amendment are essentially replaced by the 7(2) Conservation (Secondary) Zone and the 2(1) Residential Zone under LEP 2004 although there are some differences between the zones. The zone boundary in LEP 2004 is identical to the Amendment and adopts the existing residential development alignment in Chelston Street and the 57 m AHD contour.

9 . Draft Development Control Plan Munibung Hill (the draft DCP) applies to the subject site. The draft DCP was prepared in April 1990 although it has never been formally adopted by the council. The overall aim of the draft DCP is to promote the wise management, conservation and development of Munibung Hill.

10 . Lake Macquarie Recreation and Open Space Plan - Scenic Quality Plan (the Scenic Quality Plan) applies to the subject site. The Scenic Quality Plan was adopted by the council in May 1998 and provides a general appraisal of the landscape character of local government area and strategies for scenic management. It is not a development control plan prepared in accordance with s 72 of the Environmental Planning and Assessment Act 1979 (the EPA Act).

11 .Lake Macquarie Scenic Quality Guidelines (the Guidelines) were adopted by the council on 1 September 2003. The document is intended to assist in preparation of Visual Impact Statements and is based on the Scenic Quality Plan.

The issues
12 . The council filed an Amended Statement of Issues containing four issues and a number of sub issues. These can be conveniently grouped into the following main areas:
1) whether the proposed development will have an unacceptable impact on the visual quality of the area (Issues 1.1, 1.2, 2.1, 3.1 and 3.2) and,
2) whether a dwelling can be erected on the subject site as it is below the minimum lot size in LEP 1984 and LEP 2004 (Issues 1.3, 2.2 and 2.3).
13 . Following the submission of further details, the issue relating to the adequacy of plans for the driveway and retaining wall (Issue 4) was not pressed by the council.


Visual Impact
14. Mr Crosby Lorimer, a landscape architect provided evidence for the council and Dr Richard Lamb provided evidence for the applicant. Both have extensive experience in visual impact assessment. They provided comprehensive reports and explained their evidence to the Court on the site view.

15. Mr Lorimer is of the opinion that the proposed development does not adequately address many of the numerous instruments and policies that are designed to protect the values of the Munibung Hill landscape. He sees this area as a scenically significant and a mostly undeveloped backdrop to the Warners Bay area. The dwelling location will be clearly seen from viewpoints that have already been categorised as "Significant" in the Scenic Quality Plan. Depending on the specific viewing location, the proposal has some 5 m of form above the level of the existing tin sheds on the subject site.

16. From a purely scenic point of view, and even if the dwelling was located at 54 AHD some negative impact will still occur. Mr Lorimer’s preference is to locate the dwelling closer to the existing sheds and the existing dwelling thereby consolidating the visual forms in a group and bringing them into a better visual relationship with the adjoining suburbia. This is particularly important when viewed at mid and long distances in an otherwise scenically natural and unbuilt upon agricultural landscape. He rejects any suggestion that the visual impact of the proposed development can be overcome, either totally or partially, by landscaping or sympathetic building materials.

17. Dr Lamb states that the proposed development would be entirely appropriate for the site, and the setting generally. The overall visual effect of the proposed development, within its visual catchment, is described as "low". When seen from the visual catchment, the building would appear to be a rural dwelling, not closely associated with adjacent residential development, but by the same taken, not conflicting with the relative elevation of buildings in the landscape that have been approved in the recent past.

18. The building is of modest scale, would be unobtrusive and would blend into the existing context sufficiently for it to adequately relate to the adjacent residential development. In relation to the scenic backdrop to Warners Bay; Dr Lamb concludes that the visual effect of the building will be minimal. The dominance of the elements of topography, scattered vegetation, a natural horizon of settlement along the foot slopes will not be changed. In reply to Mr Lorimer’s comments on landscaping and building materials; Dr Lamb states that the proposed dwelling does not rely on these matters for its suitability but only as a means to complement the already acceptable location.

19. LEP 1984, LEP 2004, the draft DCP, the Scenic Quality Plan and the Guidelines provide a range of qualitative measures to assess the impact of the proposed development on the scenic qualities of the area.

20. LEP 1984 has a plan objective "to protect areas of high landscape value and natural areas of conservation and recreation significance" (cl 2(1)(s)) and a zone intention for the 7(a) zone of "preserving areas of high landscape quality" (cl 2(2)(u)).

21. LEP 2004 has objectives for the 7(2) Conservation (Secondary) Zone that seek to "protect, conserve and enhance land that is environmentally important" (Objective (a)), "enable development where it can be demonstrated that the development will not compromise the … scenic … attributes of the land" (Objective (c)) and "ensure that development proposals result in rehabilitation and conservation of environmentally important land" (Objective (d)). Clause 16 provides that consent must not be granted unless the consent authority is satisfied that the proposed development is consistent with the relevant objectives of the zone.

22. The draft DCP identifies the subject site as part of Area No. 4 - The Eastern Slopes. "Desirable" requirements for buildings are, "no development above the 50 m contour, dark toned and non reflective materials, preservation of existing trees, improved landscaping through planting of trees to screen sloping areas". Notwithstanding the restriction on development above the 50 m contour, the evidence indicates that a later resolution of the council allows development to the 54 m AHD contour.

23. The Scenic Quality Plan identifies Munibung Hill as having an A or Very High rating with the surrounding lower or suburban slopes rated B or High. The subject site falls within both zones and the specific location of the dwelling is close to the boundary between these two zones. For Zone A, the Scenic Management Objectives for Ridgelines and Hillsides are:

· to protect the natural character of all ridgelines and the dominance of natural character of hillsides in Management Zone A by ensuring visual impacts of development are excluded;
· development in a Zone A areas to be restricted to generally retaining the areas in their existing condition and retaining all aspects of their very high visual quality.

24. For Zone B, the Scenic Management Objective for Ridgelines and Hillsides is:
· to maintain the natural character of all ridgelines and the significant component of natural character on the hillsides of Management Zone B whilst allowing some modification of existing condition.

25. The Guidelines identify Munibung Hill as a "feature site" in cl 2.1.2. The Scenic Management Objective is:
· to protect the significant features of the City from visual impact from developments that is in isolation or by accumulated effect may cause the loss of a substantial proportion of these features.

26. The Strategic Guidelines state:
· the significant features of the City are designated and protected to the fullest extent
· development proposals within the local area of the identified features or where the feature is within the development site are subject to detailed visual impact assessment.

27. In considering the weight to be attributed to LEP 2004, the judgment of the Court of Appeal in Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) NSWCA 289 provides some assistance. Relevantly, par 5 reads:


Mason P outlines the line of authority in the Land and Environment Court to the effect that the weight to be given to a draft environmental planning instrument will be greater after such an instrument has been gazetted on the basis of its "certainty and imminence". I agree with the proposition that the greater the certainty that a draft instrument will in fact be adopted, the greater the weight that may be given to the draft.

28 . Paragraph 7, in part, reads:

Where a draft instrument seeks to preserve the character of a particular neighbourhood, that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre existing instrument, which would in a substantial way undermine that objective.

29 . Paragraph 46, in part, reads:

The cases permits a consent authority to give weight to its perception of the likely (or unlikely) imminence of the relevant provisions of the draft exhibited instrument coming into force; or if it has in fact coming to force, to treat it (draft though it is in its direct applicability) as if the provisions were "certain and imminent".



30 . On this basis, LEP 2004 must be seen as "certain and imminent". The differences between LEP 1984 and LEP 2004 are not so significant as to suggest that the objectives in LEP 1984 (including the Amendment) will be undermined. LEP 2004 essentially embellishes and provides greater detail for the assessment of visual impact.

31 . In assessing the visual impact, the applicant argued that a number of the documents relied upon by the council should be given limited weight because of their status. Specifically, the draft DCP has been in existence for some 14 years without being adopted. Additionally, the Scenic Quality Plan has not been prepared as a DCP. Also, the A rating was not the result of the comprehensive study of the local government area but from a resolution of the council when it considered the plan. While these arguments have some merit they are largely overtaken by comments in Terrace Tower Holdings , at par 81, where it states, in part:

In any event, matters relevant to the public interest touching a particular application are not confined to those appearing in published environmental plan instruments, draft or final. Obviously such instruments carry great and at times determinative weight, but they are not the only source of information concerning the public interest in planning matters. Nothing in the Environmental Planning and Assessment Act stipulates that environmental planning instruments are the only means of discerning planning policies or the "public interest"…. For one thing, the government is not the only source of wisdom in this area. A consent authority may range widely in the search for material as to the public interest.


32 . While there were no objectors to the application, clearly the protection of the visual qualities of the area is in the general public interest. The draft DCP, the Scenic Quality Plan and the Guidelines support the council's intentions in LEP 2004 and represent more detailed guidelines in achieving the aim of protecting the visual qualities of the area. For this reason, the documents should be given some weight.

33 . The range of environmental planning instruments and other documents that are relevant to the site raise different considerations. While not wishing to oversimplify and diminish the significance of the individual documents, their obvious collective objective is to protect the visual qualities of Munibung Hill from unacceptable development.

34 . There was agreement between Mr Lorimer and Dr Lamb that the subject site has an extensive visual catchment. It was also agreed that there are few close viewing places and most viewing places, relatively above the site, are located up to 2 km away. Examples of these viewing places were visited on the site view.

35 . With the benefit of the site view, I agree with the conclusions of Dr Lamb. While the proposed development is to be located above the 50 m AHD contour specified in the draft DCP and 54 m AHD contour set by a separate council resolution, I am not convinced that it has any noticeable or unacceptable visual effects for a number of reasons.

36 . The location of the proposed dwelling is on the lower slopes of Munibung Hill rather than the hillsides or ridgelines. I note that the Scenic Quality Plan for Zone A makes specific reference to protecting ridgelines and hillsides. Zone B allows for some modification of existing conditions while maintaining the natural character of all ridgelines and the significant component of natural character on the hillsides. The ridgelines, hillsides and general expansive views of Munibung Hill are not compromised to any noticeable extent, even from viewing positions closer to the subject site. From more distant viewing locations, the proposed dwelling would be largely unnoticeable in the context of the expansive and dominant natural features of Munibung Hill. In my view the proposed development satisfactorily addresses these guidelines. I agree with Dr Lamb that the distance between the proposed floor level at 60.8 AHD and 54 AHD is largely inconsequential.

37 . Any potential visual impact must also be considered in relation to the adjoining 2(1) Residential Zone. While this area is currently not subdivided, it would be unrealistic not to consider the likely form of development that will eventually occur in this area. The proposed dwelling abuts this future residential area. In my view, the proposed dwelling will eventually appear as part of this subdivision when viewed from most if not all viewing locations. Even accepting that the proposed dwelling will visually extend the subdivision further up the slope of Munibung Hill, this extension is minor and does not impact on the overall visual understanding of this feature. For similar reasons, I accept that the proposed driveway and retaining wall will have no impact on the visual qualities of the area.

38 . The proposition put by the council that the dwelling should be located no higher than the 54 AHD contour effectively denies the applicant the opportunity to construct a dwelling on the part of the land zoned 7(2) Conservation (Secondary) under LEP 2004. Dwelling houses are not prohibited within this zone and if it can be shown that the dwelling house would not have an unacceptable visual impact (putting aside other planning requirements for the moment) then there is no planning reason why a dwelling should not be approved. I acknowledge that the applicant has attempted, and succeeded in locating the dwelling in a position that does not compromise the scenic qualities of the area. The council's case would have more merit if the dwelling was to be located further up Munibung Hill away from the proposed residential subdivision and in a position where it was more readily noticeable.

39 . As I understand, there were no substantive concerns from the council on the design of the proposed dwelling, only its location. I also accept the evidence of Dr Lamb that the use of landscaping and appropriate materials only adds to the suitability of the SIS if proposed dwelling and its location rather than providing a means of screening or hiding an unacceptable dwelling.

40 . Mr Lorimer and Dr Lamb provided rigorous and extensive visual impact assessments. Their assessments bring a discerning, highly trained and experienced approach to this issue. As part of the assessment of the visual impact it is also important to consider how the general public would see proposed development, as distinct from the expert approach of Mr Lorimer and Dr Lamb.

41 . In this regard, I believe the attention of the general public would be more likely drawn to the overall scenic qualities of Munibung Hill. It would be seen as a whole rather than a series of individual components. The perception of the whole would not be compromised unless some of the components were seen by viewers as being inconsistent with the natural qualities. This is not the case with the proposed development as it provides no obtrusive features or is located in a position that would distract the general viewer from the overall scenic qualities of Munibung Hill.

42 . In considering the range of matters identified in the planning documents, I can comfortably conclude that the proposed development will not have an unacceptable impact on the visual qualities of Munibung Hill and the area in general. More specifically, and pursuant to cl 19 of the LEP 2004, I find that the proposed development is consistent with the relevant objectives of the zone.


Minimum lot size
43. Ms Erin Fuller, a town planner employed by the council, and Mr Richard Bennett, also a town planner provided evidence for the applicant. They agree that subject site is not an "existing holding" pursuant to cl 13(1) of LEP 1984. They acknowledge that both LEP 1984 and LEP 2004 provide for a minimum area of 40 ha for the erection of a dwelling house, compared to the subject site that has an area of 3.512 ha.

44. Ms Fuller maintains that an objection pursuant to State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) is required because the lot size does not satisfy the minimum requirements in the LEP 1984 and LEP 2004. At time of writing of her evidence, no SEPP 1 objection had been received although she states that an SEPP 1 objection would not be able to adequately justify the departure from the minimum lot standard as the number of structures on the site is being increased.

45. Mr Bennett takes a different view. He states that the proposed dwelling simply replaces the existing dwelling that is being rendered non-habitable. Only one dwelling will still exist on the subject site. If the existing dwelling was lost through bushfire or other natural events, the replacement is unlikely to be questioned. While maintaining his position that an SEPP 1 objection is not required, Mr Bennett provides a SEPP 1 objection to show why the development standard is unreasonable or unnecessary in the event that the Court adopts the position adopted by Ms Fuller.

46. While I favour the position adopted by Mr Bennett, for caution, I propose to consider the SEPP 1 objection.

47. The appropriate manner of dealing with a SEPP 1 objection is found 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 posed. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. There was agreement between Ms Fuller and Mr Bennett on the underlying object or purpose although disagreement on whether the proposed development was consistent with the underlying object or purpose. The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state:

3. This policy provides 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 and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act.

48 . This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state:
5. The objects of this Act are:
(a) 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.


49 . The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.

50 . Clause 2(2) of LEP 1984 provides intentions for the 1(a) zone. It states “ land is set aside to promote rural development and to protect against urban encroachment”. No specific objectives are provided for the minimum lot size development standard for dwelling houses in this zone. Ms Fuller and Mr Bennett agree that the underlying objective of the 1(a) zone (as distinct from the underlying objective of the development standard) is "to restrict the density of dwellings on land zoned rural" . In considering the Amendment, cl 2(2) of LEP 1984 provides intentions for the 7(a) zone. It states “ land is set aside for the purpose of preserving areas of high landscape quality”.

51 . If LEP 1984 and the Amendment are considered collectively, there are two distinct objectives. The first is to limit the density of dwellings, presumably commensurate with rural development and the second relates to the protection of areas of high landscape quality. While LEP 1984 does not specifically refer to scenic qualities as the intention of the 7(a) zoning, the draft DCP and the Scenic Quality Plan support this proposition for the subject site.

52 . On the first of these objectives, Ms Fuller sees the proposal as unnecessarily expanding the residential use. It occupies a large portion of the land at the expense of rural activities. Mr Bennett disagrees and states that, if approved, there will still be only one dwelling on the subject site. For this reason the proposal could not be seen as encouraging urban encroachment or reducing the capacity the land for rural development.

53 . On this matter, I agree with Mr Bennett. The erection of dwelling on the subject site could not be seen as a form of urban encroachment. The existing dwelling is now located within the 2(1) Residential Zone. Dwellings are not prohibited within the zone and are contemplated by LEP 1984 and LEP 2004. In my view, it is a reasonable expectation that a dwelling could be located on the remaining land within the 7(2) Conservation (Secondary) Zone, subject to the satisfaction of the other planning requirements. Consequently, I find the proposed development is consistent with this underlying objective of the development standard.

54 . The second of the underlying objectives relates to the protection of the scenic qualities of the area. LEP 2004 provides more comprehensive requirements for this objective and the impact of the proposed development has been addressed in detail earlier in the judgment. Even if the proposed development is tested against the more stringent objectives found in LEP 2004, I have little trouble in concluding that the proposal is consistent with the objective.

55 . In LEP 2004, the relevant 7(2) Conservation (Secondary) Zone objectives are:
(a) protect, conserve and enhance land that is environmentally important
(c) enable development where it can be demonstrated that the development will not compromise the …, hydrological, scenic …. attributes of the land
(d) ensure that development proposals resulting rehabilitation and conservation of environmentally important land.


56 . The objectives in LEP 2004 refer to environmentally important land and based on the evidence, this is largely, if not exclusively its scenic qualities. For reasons set out earlier in the judgment, I have concluded that the impact of the proposed development on the scenic qualities of the area is minimal. Consequently, I find the proposed development is consistent with the 7(2) Conservation (Secondary) Zone objectives.

57 . The relevant objects of the EPA Act seek to encourage "the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas" (s 5(a)(i)) and " the promotion and coordination of the orderly and economic use and development of land" (s 5(a)(ii)) . The objective in cl 2(1)(a) of LEP 1984 is similar to the object in s 5(a)(ii) of the EPA Act.

58 . Ms Fuller states that the proposed development does not constitute the orderly use of the land, as the opportunity exists to locate the proposed dwelling within the adjoining residential zone. This will prevent the unnecessary urban extension while ensuring the orderly and efficient provision of essential services. Mr Bennett reiterates his evidence that the proposal only provides for the "repositioning" of a dwelling on subject site and as such could not be seen as "unorderly". It does not alter the economic use of the land or its continued use for the grazing of livestock.

59 . I agree with Mr Bennett. I see no reason why the proposed development could not be considered as orderly. It seeks nothing more than the construction of a new dwelling. The existing dwelling (when recommissioned) will appropriately form part of the residential subdivision of the eastern part of the subject site. Any additional demand on services brought about by the erection of the proposed dwelling is minimal, at best, and could not support a refusal of the application.

60 . For these reasons, I find that compliance with the 40 ha development standard in LEP 1984 and LEP 2004 is unreasonable and unnecessary in this instance and that the SEPP 1 objection is well founded.


Orders
61. For the foregoing reasons the Orders of the Court are:

1) The appeal is upheld.
2) Development Application D/2002/3772 for the erection of a new dwelling and the removal of kitchen and laundry facilities from an existing dwelling to render it a non-habitable building at 28 Chelston Street, Warners Bay, is approved subject to the conditions in Annexure ‘A’.
3) The exhibits are returned with the exception of Exhibits 1, 11 and D.

_______________
G T Brown
Commissioner of the Court
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