Garland v Greater Taree City Council; Advanced Automotive Taree Pty Limited v Greater Taree City Council; Advanced Automotive Taree Pty Limited v Greater Taree
[2010] NSWLEC 1116
•24 February 2010
Land and Environment Court
of New South Wales
CITATION: Garland and Anor v Greater Taree City Council; Advanced Automotive Taree Pty Limited v Greater Taree City Council; Advanced Automotive Taree Pty Limited v Greater Taree [2010] NSWLEC 1116 PARTIES: APPLICANTS (First Matter)
R & J GarlandAPPLICANT (second and third matters)
RESPONDENT (All matters)
Advanced Automotive Taree Pty Limited
Greater Taree City CouncilFILE NUMBER(S): 10658; 10659; 10660 of 2009 CORAM: Moore SC KEY ISSUES: DEVELOPMENT APPLICATION - DEVELOPMENT STANDARDS :-
SEPP 1 Objection
Minimum allotment sizeLEGISLATION CITED: Environmental Planning and Assessment Act 1979
Greater Taree Local Environmental Plan 1995
Greater Taree Local Environmental Plan 2008
State Environmental Planning PolicyNo 1CASES CITED: Winten Property Group Limited v North Sydney Council 2001 NSWLEC 46
Wehbe v Pittwater Council (2007) NSWLEC 827; (2007) 156 LGERA 446DATES OF HEARING: 22, 23 and 24 February 2010 EX TEMPORE JUDGMENT DATE: 24 February 2010 LEGAL REPRESENTATIVES: APPLICANTS (All matters)
RESPONDENT
Mr M Fraser, barrister
INSTRUCTED BY
Walker Legal & Conveyancing
Mr M Baird, barrister
INSTRUCTED BY
P J Donnellan & Co
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMOORE SC
24 February 2010
10658 of 2009 Garland and Anor v Greater Taree City Council
10659 of 2009 Advanced Automotive Taree Pty Limited v Greater Taree City Council
10660 of 2009 Advanced Automotive Taree Pty Limited v Greater Taree City CouncilThis decision was given as an extemporaneous decision. It has been revised and edited prior to publication.JUDGMENT
1 SENIOR COMMISSIONER: These three proceedings each relate to a small rural holding in the vicinity of the village of Tinonee, which is located on the Manning River, to the southwest of the city of Taree. The allotments are of varying sizes but, in general terms, range from over four hectares to over six hectares.
2 In each of the proceedings, the application seeks consent for the erection of a single dwelling. The plans for those dwellings are Exhibits B, C and D in these proceedings. The position agreed by the legal representatives of the parties, Mr Baird, counsel for the council, and Mr Fraser, counsel for the applicants, was that the evidence in each proceedings would be evidence in the other (to the extent that was relevant).
3 No objection is raised by the council nor by Mr Oakey, [the team leader for the New South Wales Department of Planning], who has given evidence in these proceedings in the council's case, to anything to do with the design or location of each dwelling or structures associated with it. As a consequence, there is no need for me to make any detailed consideration of any of the plans contained in those three exhibits.
4 I had the advantage on Monday, 22 February, of attending the village of Tinonee and inspecting each of the three sites and a number of other locations in the vicinity, [those sites being said to be representative of development similar to that proposed in those appeals], forming the character of Tinonee and of other proposed or existing developments of different types in the area.
5 In these proceedings, it is necessary for me to consider a number of the provisions of the current local environmental plan, the Greater Taree Local Environmental Plan 1995 (the 1995 LEP) that presently applies to the three allotments. I need also to consider the terms of the exhibited draft of the Greater Taree Local Environmental Plan 2008 - or least a particular clause of it, cl 4.2A, together with a revised version of that clause relevant – in one uncontroversial fashion – to the present applications that are before the Court.
6 Each of the applications potentially falls foul of a provision contained in the 1995 LEP's cl 15 setting the minimum size for allotments upon which dwellings can be erected in certain rural zones. Each of the sites is zoned Rural 1A, being the rural general zone in the 1995 LEP, a matter to which I will return. Cl 15(2)(a), in its second dot point, requires that for consent to be granted to the erection of a dwelling house on any of these three allotments, they would be required to have an area of at least 40 hectares.
7 This is a development standard and as a consequence is amenable to objection pursuant to State Environmental Planning PolicyNo 1 (SEPP 1). Mr Sneddon, town planner for the applicants in each of the proceedings, has prepared such an objection in each application. The matter that I am obliged to consider is whether, on the competing views expressed by Mr Sneddon and Mr Oakey concerning the SEPP 1 objections, those objections should be regarded as well founded and the objections sustained.
8 For the reasons that I propose to outline, I am satisfied that I can accept that each of the positions adopted by the experts can be viewed as correct, concurrently, rather than in conflict and do not stand in the way of me granting development consent to these three proposals.
9 It is necessary, in my view, at the outset, to set out what are the matters that require to be addressed in dealing with the three objections pursuant to SEPP 1.
10 Classically cited in proceedings concerning such objections is the decision of Lloyd J, in Winten Property Group Limited v North Sydney Council 2001 NSWLEC 46, where his Honour posed five questions as requiring consideration. And those questions are:
1. Is the planning control in question a development standard.
2. What is the underlying object or a purpose of the standard?
3. 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 object specified in s 5A(1) and (2) of the EP&A Act.
4. Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case?
5. Is the objection well founded?”
11 Although that classic formulation was expanded upon and further refined by Preston CJ in Wehbe v Pittwater Council (2007) NSWLEC 827; (2007) 156 LGERA 446, it is not necessary, in my view, in light of the evidence as it has transpired, to go beyond the classic short form formulation put by Lloyd J in Winten.
12 There is no doubt [and it is accepted by both experts] that the forty hectare minimum allotment size for land in the 1A zone is a development standard. However, the witnesses differed starkly about the underlying object or purpose of the standard. Mr Sneddon put the position that, in his view, the underlying purpose was to ensure consistency with the zoning objectives that applied to the relevant parcels of land. Those zone objectives come from two provisions in the 1995 LEP, they being cl 12, which sets out the general rural zone objectives that apply to each of the six rural zones within the council's area and, second, the specific objectives for each of the rural zones are (contained in the development control table).
13 Mr Oakey, on the other hand, took the view that the underlying purpose was to preserve a minimum allotment size in this vicinity and his views in this regard were confined particularly to allotments in what he described as the Tinonee enclave - being allotments around the perimeter of the village. The limited application in the vicinity of Tinonee was, in his opinion, for the purposes of ensuring that there would be an ability of the council at some stage in the future to undertake further detailed land use planning of those lands, in the context of the expansion over time, of the village. There was also in evidence, as part of Mr Sneddon's SEPP 1 objections, information from a document prepared by the Department entitled the Mid-North Coast Regional Strategy, that being a document postdating the LEP, which was consistent on Mr Oakey's evidence of broad, longer term strategic planning being undertaken by the council in this vicinity.
14 Indeed, it is appropriate to observe that in the course of his concurrent evidence with Mr Sneddon, Mr Oakey agreed that none of the six general rural zone objectives was transgressed in any fashion by any one of these three proposals nor were any of the four specifically enumerated objectives for the 1(a) rural general zone so transgressed.
15 He did, however, indicate that, specifically for the Tinonee enclave, that in the present zoning made little sense in terms of the general Rural Zone objections and the specific objectives for this rural zone but did make sense for putting these areas aside and enabling the zoning to be used as a tool to put the areas into a holding pattern pending future strategic planning for the area.
16 He concurred in a proposition put to him that, if the likely future strategic planning for the area were to be at some time in the future [potentially on a lengthy time horizon], the area within which these allotments are located would be zoned for rural residential purposes, a modestly more intensive use than is proposed in these three applications permitting dwelling houses on each of these three allotments, would not prevent the implementation of such zoning and development at some future time.
17 There is, as I earlier observed, no reason why both these views of the underlying purpose, both Mr Sneddon's view of the broad underlying purpose for the development standard as it goes to the totality of the 1(a) Rural General zone and Mr Oakey's view as to its particular application confined to the area around Tinonee, cannot sit side by side and both be correct. Indeed, I am satisfied, on the basis that the evidence that Mr Oakey has given, that it is appropriate to accept his underlying purpose as being the basis for that which is proposed around Tinonee and to accept, as well, on the basis of his evidence, that the proposed developments are not inconsistent with the broad purpose as postulated by Mr Sneddon.
18 However, I also conclude, on the basis of Mr Oakey's evidence, that permitting each of these three dwellings will not compromise the underlying purpose of the standard for which he has contended.
19 Indeed, the fact that the permission being given for these three dwellings will not undermine the version of the standard that he puts, ensures, in my view, that there is an appropriate answer to be given to the third of the Winten questions that is, that compliance is consistent with the aims of SEPP1 and that the proposed developments, in each instance, do not hinder the attainment of the objects specified in the nominated sections of the Act.
20 I have also reached that conclusion as a consequence of the fact that each of the three allotments is not identified as prime crop and pasture land in maps held by the Director General of the Department of Agriculture and Fisheries (as it was then known) and thus is not likely to be able to be used for productive agricultural purposes. That conclusion is one with which I did not understand Mr Oakey to disagree.
21 As a consequence, there is no suggestion of alienation of agricultural activities but there is the possibility, given the nature of these smallholdings, for some agricultural activity to be undertaken in conjunction with a residence on the site.
22 The other thing that it is important to note in this context is that two maps were tendered at part of the council's case, dealing with the possibility of this decision causing a precedent, [an undesirable precedent], across the whole of the council’s local government area. Although it is not necessary to go into the question of precise counting or calculation and whether dwelling houses are erected on some or any of the lots that are the subject of the remarks I am about to make, it is clear that there are a significant number of holdings of less than 40 hectares, in the 1(a) zone across the local government area, where dwellings would not be permitted by the application of cl 15(2).
23 In the vicinity of the Tinonee, even taking the most expansive view, it is realistically possible that some ten or fifteen parcels might attract the benefit of what might be regarded as a precedent in this decision because of the nature of the circumstances that Mr Oakey has put as his version of the underlying purpose which, I accept, runs in parallel to the underlying purpose postulated by Mr Sneddon.
24 The decision that I am giving today, clearly only applies to the unique circumstances for this specific purpose postulated by both witnesses for the Tinonee village. I am not reaching the conclusion that I have reached on the basis simply of adopting Mr Sneddon's underlying purposes and accepting that this, solely, is an appropriate meeting of the remainder of the Winten tests.
25 It is solely in the context of the conjugation of both of the underlying purposes put by the two witnesses that I can be satisfied that, in this instance, development of the three parcels proposed here, within the Tinonee precinct, will only provide comfort [at its most permissive], to the ten or fifteen other allotments in the Tinonee precinct and has no broader applicability. Nor am I making any hypothetical or other assessment of the merits of possible applicability anywhere else. Because of that, I have concluded that it is unreasonable and unnecessary (not unreasonable or unnecessary) for the development standard to be complied with in each of these three instances.
26 Having reached that conclusion for each of the three proposals, I am satisfied that the objection in each case is well founded and that the objections pursuant to SEPP 1 should be sustained, in each instance.
27 It is, however, appropriate, before I pronounce formal orders in the matter, in each of the three applications, to deal briefly with my reasons for concluding that the Greater Taree Local Environmental Plan 2008 does not stand as any impediment to the granting of these applications.
28 I have had the advantage of Mr Oakey's evidence in which he has indicated that it is his expectation that the plan in the form to be finalised with respect to a number of matters that are not relevant in these proceedings, at a meeting between departmental officers and the council in the near future, will lead to the gazettal of the plan (he expected) by mid-May, but no later than the end of June 2010 and that this plan is one of twenty-five that has specifically been targeted by the Department for gazettal, by that date.
29 The original version of the clause of that plan to which I earlier referred, being cl 4.2A, in subcl 2, would have included what amounted to a prohibition on the erection of dwellings on these three allotments. A prohibition that on my preliminary view, would not have been amenable to an objection pursuant to SEPP 1 and would have required me to undertake an analysis not merely of the imminence and certainty of the making of the plan, it being in my view and I think not disputed, accepting Mr Oakey's evidence, such imminence and certainty exists. I would also need to consider the effect of the savings or transitional provisions contained in cl 1.8A of the plan.
30 However, Mr Oakey was able to give evidence that there has been a revision undertaken of cl 4.2A(2) so that there would be an additional subclause included that would permit development by the erection of a dwelling on a lot:
“A lot created before this plan commenced and on which the erection of a dwelling house was permissible immediately before that commencement.”
31 In the circumstances this case, there is no doubt that that provision, if applicable to each of these three allotments, would permit the erection of a dwelling on each of those allotments subject to the upholding of an objection pursuant to SEPP 1 - that being the only impediment, not an impediment of permissibility.
32 As a result, I am satisfied that that provision now to be incorporated in subcl 3 of cl 4.2A does not stand as an impediment as it, in effect, - not needing the benefit of the savings provisions, - provides a specific saving that preserves the status quo ante with respect to each of these three allotments when that is enacted.
33 The consequence of that is, that the formal orders in each of the matters will be that:
1. The appeal is upheld.
2. That the development application (with the insertion of the relevant application number in each instance) is determined by the granting of development consent for the erection of a dwelling on each of the nominated lots subject to the agreed conditions of consent contained in the council's without prejudice conditions of consent, none of which are contested.
3. The exhibits, other than exhibit B, C and D, are returned.Tim Moore
Senior Commissioner
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