Geoffrey, Warren v Kiama Municipal Council
[2004] NSWLEC 666
•11/23/2004
Land and Environment Court
of New South Wales
CITATION: Geoffrey, Warren v Kiama Municipal Council [2004] NSWLEC 666 PARTIES: APPLICANT
John Geoffrey and
Margaret Joyce WarrenRESPONDENT
Kiama Municipal CouncilFILE NUMBER(S): 10720 of 2004 CORAM: Murrell C KEY ISSUES: Development Application :- Staged development - Building Envelope - Visual Impact on Rural Landscape - Precedent - Variation to minimum allotment size of 40 hectare
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy 1
Kiama Local Environmental Plan of 1996CASES CITED: Winton Property Group Limited v North Sydney Council 2001 [NSWLEC 46] Lloyd J;
Goldin v the Minister for Transport 2002 [NSWLEC 75] Lloyd J;
Emmett v Ku-ring-gai Municipal Council 1954 3 LGRA 177 Sugarman J;
Jack Stoertz v Kiama Municipal Council;
TC Weatherall v Kiama Municipal Council;
George and Robin Alchin v Kiama Municipal Council;
Colin Stoddard v Kiama Municipal Council;
TCW Consulting Pty Limited v Kiama Municipal Council [2003] NSWLEC 231 Hussey C;
DATES OF HEARING: 22/11/2004 EX TEMPORE
JUDGMENT DATE :11/23/2004 LEGAL REPRESENTATIVES:
APPLICANT
Mr I Hemmings, barrister
Instructed by M Peatman
SOLICITORS
Hunt & HuntRESPONDENT
Mr P Moggach, solicitor
SOLICITORS
Kearns & Garside
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMurrell C
23 November 2004
10720 of 2004 John Geoffrey and Margaret Joyce Warren v Kiama Municipal Council
JUDGMENT
1 This is a verbal judgment for an appeal against Kiama Council’s refusal of a development application for a staged development under s 80(4) of the Environmental Planning and Assessment Act. Consent is sought for the approval of a building envelope on the property known as 20 Tomlins Road, Broughton, that is Lot 1 in DP 1037676.
2 The area of the subject site is approximately 5.4 ha and it is within a rural area. This coastal hinterland area has undulating topography and high scenic values.
3 The proposal is for staged development consisting of the dwelling envelope to be approved first and that would then require a further application to be submitted to council for the actual dwelling. The building envelope is approximately 30 m by 15 m and is located on agricultural land classified as 4. The property is generally made up of land that is classified as 3 and 4. In other words it is not land which has high agricultural capability in terms of Council’s LEP.
4 The matter has come before the Court as council refused the development application. The development application was also accompanied by a State Environmental Planning Policy 1 objection to vary the minimum allotment size. Under the Kiama Local Environmental Plan of 1996, the subject site is zoned rural 1(a) where a 40 ha minimum exists. The subject site is, as I stated, about 5.4 ha. It is also noted from the evidence that was provided to the Court that there are numerous properties in the vicinity of the subject site that are below the minimum 40 ha requirement and many of these properties have dwelling houses approved and mainly erected. There are also a number of allotments which are less than the 40 ha minimum, some as small as 500 sq m, which are within the vicinity of the subject site and council contests that the approval of the building envelope and the subsequent erection of a dwelling house on the subject land would create an undesirable precedent that could be invoked by what it described as eleven other allotments within the vicinity of the subject site.
5 A statement of issues was provided and the Council’s issues are that the proposal is contrary to cl 11 of the Kiama LEP, that is below the 40 ha minimum. Council is also concerned that the proposed development is contrary to the aims and objectives of the Kiama LEP and the proposed objectives of the 1A zone. As I stated, council also considers that the proposal, if approved, would create an undesirable precedent within the area and it would not be in the public interest to approve the development.
6 A statement of evidence was provided to the Court by Ms Teresa Smyth, who is a senior planner with Kiama Council, and a statement of evidence on behalf of the applicant was provided by Mr Colin Stoddart. He provided the SEPP 1 objection as well. The Court met on site with the parties and carried out an extensive site inspection of not only the subject land but also the area in and around the subject property. I was also taken to the sites where council considered that the proposal if approved would create an undesirable precedent in terms of other under sized allotments. It is noted that the subdivision pattern is one that was created by the proposed village area of Broughton where a number of allotments were created in terms of the parish for Broughton in the 1800s.
7 The issues, as I stated, are also related to whether the SEPP 1 objection should be upheld. Council considers that the SEPP 1 objection is not well founded and the objects of the standard are not met. In this regard the court was referred to the judgment of Lloyd J in Winton Property Group Limited v North Sydney Council 2001 NSWLEC 46. His Honour in this judgment cites many previous cases and he provides a useful set of questions to be answered in the deliberation of a SEPP 1 objection. The parties agreed that the 40 ha minimum is a development standard.
8 The parties also agreed as to what the underlying objectives of the standard are in a joint statement submitted to the Court:
“It is agreed that the underlying purpose and objectives of the 40 ha development standard in this area are:
1. to prevent the fragmentation of holdings of land suitable for agriculture,
2. retaining reasonably sized rural holdings,
3. thus protecting the agricultural potential of such land,
4. to maintain a low density pattern of settlement in rural areas to retain the scenic quality of the landscape,
6. to maintain the rural character of the landscape.”5. reduce rural land use conflicts and provide separation between dwellings, and
9 As to the assessment, this is where the experts differ. The SEPP 1 variation to the standard is a threshold question, although in many respects an assessment under SEPP 1 also overlaps with a merits assessment of the development application, nonetheless I will deal first of all with the SEPP 1 objection.
10 SEPP 1 is a policy which aims to allow for flexibility in terms of the implementation of standards. However, the objects of the standard must be taken into consideration in the assessment. Also the objects of the Act, in particular were orderly and economic development, must also be satisfied for a SEPP 1 objection to be allowed.
11 In the circumstances of the case, one must have regard to whether the standard is unreasonable or unnecessary. It is also important to note that the Department of Infrastructure Planning and Natural Resources granted concurrence to the SEPP 1 objection. Council considers that the Court should give limited weight to that concurrence and that the Court has more evidence before it. From a reading of the Council’s bundle, I do note that the council wrote to the Department following its referral of the request for concurrence or the consideration for concurrence. On 24 February 2003, the council wrote to Department of Infrastructure Planning and Natural Resources again and said:
- “I write in reference to the above development application and further to Council’s letter of 4 February 2003. As requested please find enclosed several maps of the Broughton Foxground area which illustrate the subdivision pattern and the location of dwellings in the locality of the subject site. I have also enclosed the maps pertaining to Kiama LEP which reinstated the dwelling entitlements to properties previously zoned 1(c) under Kiama LEP 5. I trust this information will be of assistance.”
12 As I stated, the Department advised the council that it concurred with the subject development application for the building envelope, which would allow, following a further application, the erection of a dwelling house.
13 In that regard I do know that the Department had the opportunity to view the maps that were referred to under enclosure of the 24 February, although such maps are not contained within Council’s bundle.
14 I have given serious consideration to the SEPP 1 objection. And variations to minimum standards where land is zoned for rural purposes is one that must be given serious consideration. I will go through the objectives in terms of those agreed to between the experts, however, I have concluded that the SEPP 1 objection in the circumstances of this case should be allowed.
15 It is noted that the objective to prevent fragmentation of land suitable for agriculture was cited as an objective between the experts. In this regard the allotment is an existing allotment of land. Council maintains that the approval of the subject development application to allow the dwelling will frustrate consolidation of land and council maintains that it would not achieve the objective of consolidation. The objective is, however, to prevent fragmentation and the approval of the SEPP 1 objection would not create such an impediment that consolidation in the future could not occur. It is worthwhile noting that the applicant has letters from the adjoining landholders, who also have undersized allotments, with respect to whether they are interested in purchasing the subject land to add to their landholding and all three neighbouring properties advise that at this point and in the future they were not interested in purchasing the subject land.
16 I am satisfied that the proposal in terms of the approval of a building envelope will not lead to fragmentation of holdings. The lot is an existing allotment. It is not approval for subdivision but for the erection of a dwelling house on an existing parcel of land.
17 I now address the second agreed objective between the experts, that is to maintain a low density pattern of settlement in rural areas and to retain the scenic quality of the landscape, reduce rural land use conflicts and separation between dwellings. It is not contested by the council that there are visual impacts associated with approval of the subject application. And in terms of the SEPP 1 objection the proposal for the erection of a dwelling on the proposed building platform, would not frustrate this objective and I am satisfied that the low density pattern of settlement is maintained as well as the scenic qualities of the landscape. Council is satisfied that appropriate landscaping could take place on the subject property and I also note that in terms of the positioning of the envelope it is not on a ridge line and it is one that will fit comfortably in with the rural landscape. As such I am satisfied that this objective is fulfilled.
18 The other underlying objective that the experts agreed on was to maintain the rural character of the landscape. In many respects this overlaps with my assessment of the former objective and once again I am satisfied that the proposal is consistent with this objective.
19 Therefore on the basis of my assessment of the application in terms of SEPP 1 I am satisfied that the proposed building envelope approval and the variation of the minimum standard of 40 ha to allow the erection of a dwelling and in the circumstances of the case the standard is reasonable and necessary and the SEPP 1 objection should be allowed.
20 It is noted that whilst the council maintains that the Department has been inconsistent by granting concurrence, I have the benefit of the bundle to know the information that was available to the Department and I am of the opinion that weight should be given to the Department’s concurrence in the circumstances. Nonetheless I have carried out my own proper assessment in terms of the SEPP 1 variation, which I find is well founded and the SEPP 1 objection should be allowed.
21 With respect to the issue of precedent, this was a matter that was raised and once again it is a matter that the Court does give serious consideration to and especially in more recent time, although the principle of precedent is clearly cited in some rather older judgments of the Court and the Court of Appeal. The Court was taken to the judgment of Goldin v the Minister for Transport 2002 NSWLEC 75 another decision of Lloyd J and in this judgment his Honour goes through much of the case law in respect of precedent which is most helpful in an understanding of the issue of precedent.
22 It was submitted and agreed to between the parties that in terms of precedent the proposal must of itself be objectionable as well as the cumulative impact in terms of precedent being an issue. In this regard the reported judgment states “if the Court was considering an application for a development which was both objectionable in itself and where there was a sufficient probability that there would be further applications of a like kind, the fact that a consent would operate as a precedent might be taken into consideration.” His Honour also goes through much of the case law in respect of precedent. In particular he cites the matter of Emmett v Ku-ring-gai Municipal Council 1954 3 LGRA 177 of his Honour Sugarman J “it is sometimes contended that a proposed development in itself is unobjectionable should not be allowed because it is likely to lead to others of a similar character and the totality would prove objectionable. That depends inter alia upon the existence of a sufficient probability that there will be further applications for a number of undistinguishable developments of the same class sufficient in their totality to bring about the objectionable conditions of affairs...justice is not offended in these circumstances by the refusal of further applications calculated to lead to objectionable conditions after the granting of one or more earlier applications unobjectionable in themselves.”
23 If I look at the application before me in terms of precedent and the case law, and having regard to the individual circumstances of this case, in particular the settlement pattern and furthermore the joint exercise that was undertaken by the parties at the Court’s request in terms of adjoining allotments, I am satisfied that the proposal would not create an undesirable precedent.
24 In the circumstances of this case there are numerous undersized allotments that have dwellings or dwellings approved. And the subject application is one that must be looked at on its merits having regard to the fact that it is within a settlement pattern where allowing the 40 ha minimum to be varied would not be a precedent and the first within the area which would be objectionable. I say this in terms of, if one looks at precedent in terms of a development not being objectionable in itself (I understand the parties do not consider this to be the test but even if I look at it in terms of this development not being objectionable in itself but in terms of its cumulative impact I am satisfied that this particular application does not fit into this category. It is not one where this would necessarily lead to the approval being looked at by other individuals seeking approval because in the particular circumstances of this case the individual merits are distinguishable.
25 In terms of the other undersized allotments, from the view it is clear that are other distinguishing factors that would have to be taken into consideration in an assessment. I am satisfied that the proposed development is not one that would create a precedent in the circumstances of this case. The application is not one that is objectionable in itself and is not one that cumulatively would be objectionable because the individual merits of each application for the surrounding properties would need to be carefully assessed.
26 On the issue of precedent a number of cases were handed up to the Court in the context of consistency in decision-making. Precedent is also important in terms of ensuring that controls are consistently implemented. I have read these judgments and I will comment on each as to why the current case is distinguishable. In the matter of Jack Stoertz v Kiama Council this was an 8 ha parcel of land and it was proposed to excise 0.2 ha for a building. It is noted that it was also proposed there be home hosting, in other words some form of tourism associated with the development of the building on the site. It is also noted that the home hosting “this is clearly a significant issue given the capacity of the development on the subject land to impact on its rural complexion particularly as seen from the fringe of the urban area located further to the east.” It was seen that this was not compatible or supportive of the objectives of the standard. It was also noted in the judgment that it would “indeed be quite visible and certainly inconsistent with the notion of a rural landscape.”
27 The matter of TC Weatherall v Kiama Council. This was for the subdivision of the land into two lots, one of 27 and one of 13 ha, so in that case the subject land met the 40 ha minimum. It was considered that fragmentation of a viable agricultural holding would not be satisfied by the approval of that development application. There were also other distinguishing features within that case, in particular it was seen as very much the fragmentation of rural land by the subdivision which was undesirable.
28 With respect to the case of George and Robin Alchin v Kiama Council, this once again is distinguishable. It was also for a subdivision and the subdivision was one that was contrary to the New South Wales agricultural recommendations and in other respects the proposal is distinguishable from the subject development application before the Court today.
29 With respect to the matter of Colin Stoddart v Kiama Council this particular proposal is land of some 2.34 ha on the southern edge of the village of Jamberoo in a conservation zone. The application was for the erection of a dwelling not a subdivision but in the circumstances of that case it was found that being part of the rural conservation area it was not consistent with that zone and the State Environmental Planning Policy 1 objection failed. It is also noted that the land adjoined a village.
30 With respect to the matter of TCW Consulting Pty Ltd v Kiama Council this is a matter where there was an approval for an area of land approximately 1.6 ha and the erection of a dwelling on the subject land. This appeal was upheld. It is also noted that the Department of Infrastructure Planning and Natural Resources granted concurrence to the State Environmental Planning Policy 1 objection and the proposal in the circumstances of that case was seen to meet the underlying objectives of the standard.
31 When cases are referred to the Court it is important to understand the similarities and/or whether they are distinguishable from the application under appeal because one must give very careful consideration when issues of precedent are raised and when there are SEPP 1 objections to vary minimum standards of rural land.
32 In respect of the controls, which I probably should have referred to earlier in terms of the merit assessment. The LEP 1996 of Kiama there are a number of aims and objectives, in particular to protect the natural and built environmental features of the Council’s area. In this respect I am satisfied that the proposal is not inconsistent with this particular objective. The environment is generally one that is maintained and the rural landscape maintained and it will not be antipathetic to that objective. The other objective is to protect prime crop and pasture land outside defined urban boundaries and prime crop and pasture land is defined in the LEP as “land within an area identified on the map of the Director General Department of Agriculture which is as class one, two, or class three or as land of merit for special agricultural uses but does not include land which the Department of Agriculture has notified the council in writing is not prime crop and pasture land”.
33 The proposed footprint of the dwelling is on class four land. As such it does not fall within prime crop or pasture land. That is not to say that I have not considered the impact of the footprint on the overall agricultural production of the land but I am satisfied it will complement the activity currently being conducted.
34 With respect to the objective to ensure the preservation of the landscape and special scenic qualities, I am satisfied that the proposed development is not inconsistent with this particular objective. And it was also a consideration in my State Environmental Planning Policy 1 consideration, to restrict the fragmentation of non-urban land other than for agricultural purposes. Once again I am satisfied that the dwelling and the dwelling footprint will not lead to further fragmentation. Rather it is the subdivision of land which are of concern in terms of fragmentation. In my assessment the dwelling may alienate a small part of the total site of 5.4 ha but it will not prevent agricultural activity on the subject land or lead to fragmentation of rural land.
35 In terms of the proposal Mr Stoddart describes the applicant’s desire to continue to carry on a business of stud Wagyu cattle on the subject land, which is a specialised breed. The owner would then be able to control breeding of stud Wagyu cattle on a daily basis and without the concern of the cattle breaking through the fences et cetera as non resident land owner.
36 I am satisfied, and it was not contested by the council, that Mr and Mrs Warren are carrying on a bona fide agricultural activity whilst it may not be one that provides sufficient income, it is an agricultural pursuit and is one that is worthy of support. I will say however I am also most conscious of the fact that the approval of this development application runs with the land and in that regard there should be a condition attached which makes it quite clear to any future prospective purchasers of the subject site that the dwelling house is to be used by occupants that must be carrying out some agricultural pursuit on the subject land. Whilst this is not a watertight condition nonetheless it goes a long way to ensuring out the intent of properties not becoming rural residential as opposed to making a contribution to agricultural production.
37 The 1A zone has a number of objectives and the council may not grant consent unless it has taken into account the effect of the development on the agricultural viability of the land and the land in the vicinity. The other objective is that council should not grant consent unless it has considered the quality of the land and the potential agricultural productivity of the land. In this regard as I stated I have looked at the land in terms of its classifications. I am satisfied the proposed development will not prejudice the continued agricultural activity on the subject land or future agricultural activities on the land.
38 The cumulative effect of similar proposals if consent is granted. In many respects I have looked at this in terms of the precedent when I have examined whether the proposal is not objectionable in itself or whether the proposal is objectionable in itself. If I have regard to the proposal in itself not being objectionable but the accumulative effect I am satisfied that having regard to the circumstances of the existing settlement pattern that the proposed development is not one that would be antipathetic or inconsistent with that objective. The last relevant objective is the likelihood of the land remaining available for agricultural, and as stated, I am satisfied that it is capable of generally remaining available for agriculture.
39 The council must not grant consent, as I said, unless it has taken into account the agricultural viability and I have assessed not just the current application in terms of the use of the land by Mr and Mrs Warren but in terms of any future use of the land and I am satisfied it would not be unreasonably prejudiced by having a footprint to allow a dwelling house. In this regard I do note that Ms Smyth noted in her report that, while it may be more likely that the management of lot 1 and the proposed farming enterprise will benefit from on-site management, there is no guarantee that this will be the case. However in my assessment I am satisfied that the erection of a dwelling to manage the agricultural activity will assist the land generally being used for agriculture. While I also agree that it is not necessary that there be a dwelling on the subject land it to be used for agricultural activity nonetheless the dwelling would not prejudice the agricultural activity.
40 Moving on to the Department of Agriculture’s comments it is important that I have regard to the Department of Agriculture in my assessment and I have done so in terms of my foregoing assessment. For the record the Department of Agriculture in the first instance, when there were Southdown sheep breeding on the property, did not support the agricultural benefits. That was by letter of 13 February 2003. Representations were subsequently made to the Minister for Primary Industry and he responded on 23 January 2004 attaching advice from the Department of Agriculture wherein it was stated “since the proposal requires land to be taken out of agricultural production for the construction of a dwelling there is some diminution of potential productivity however, Mr Warren’s proposal for supplementary feeding will improve the productivity of the enterprise.” The enterprise at that point in time was described as the breeding of the specialised cattle.
41 The Department of Agriculture’s advice goes on to state, “the proposal does not have direct implications for the agricultural viability of land in the vicinity however if approval of a dwelling on this small block of land results in approval of other dwellings on similar sized blocks in the area then the subsequent increase of land values and rates will reduce the viability of farms in the area and in this regard the issue of precedent is one that is relevant.” And I have already discussed this issue above.
42 The Department further advised that the quality of the land and its potential agricultural productivity is suitable for the proposal and it also states at the end of its advice, “the land used for the house and gardens will be lost to agriculture but this is compensated for by the proposed supplementary feeding.”
43 In terms of the Department’s comments I do note they are with respect to the specific use of the breeding of the beef on the subject land. But nonetheless I have looked at the issue wider in terms of the agricultural productivity of the land and I am satisfied that the approval of a dwelling house would not frustrate other agricultural activities of the land.
44 The council proposed that an 88B instrument be attached to the subject land in the approval of this development application if the court was minded to grant approval. Whilst there was some concern that it was not appropriate at the end of the day the applicant accepted that an 88B instrument was acceptable and in terms of running with the land it seems to me that an 88B instrument alerts future owners as to what constraints may be imposed by certain approvals. Also the requirement that the dwelling house be occupied by people engaged in the active productive agricultural pursuit of the land forewarns future prospective purchasers. I am satisfied that the 88B instrument in this matter is for a proper planning purpose and furthermore the Court considers it is necessary in terms of this development application.
45 The other matters I have taken into consideration in my assessment, whilst not directly relevant to my assessment of the building footprint nonetheless I have had regard to council’s development control plan for the design and siting of rural dwellings which has assisted in my assessment of the application, because it allows me to consider whether the approval of the building envelope as proposed would frustrate or undermine the provisions of council’s development control plan and in this regard I am satisfied that the siting of the building on the footprint would not interfere with ridge lines, would maintain the rural character and the conditions proposed by the council are ones that would be consistent with an assessment under the development control plan.
46 The dwelling is one that has been sited to take advantage of its northern aspect and it will attain views of the rolling hills beyond at the same time however it will not interfere with the rural landscape. The approval of the application as I stated is for a footprint only and a further development application for the actual dwelling must be submitted to the council in terms of s 85 of the Act and I am satisfied that then that assessment under Council’s DCP 35 would not be frustrated by this staged development approval.
47 As I stated the proposed development is one that council did not cavil with in terms of its visual intrusiveness in the landscape. It was more the issue of precedent and it was more the issue of whether the aims of Council’s plan are met in terms of the cumulative impact of allowing dwelling houses on undersized allotments, that is below the 40 ha minimum.
48 In terms of my assessment (and as I stated in many respects the SEPP 1 assessment coincides with the merits assessment) of the aims and objectives of the plan and the objectives of the zone and in terms of the instrument I am satisfied that the proposed development will satisfy the objectives, or that the proposed development is not inconsistent with the objectives and intent of council’s plan.
49 Having regard to the circumstances of the case, which includes the current existing subdivision pattern, I am satisfied that the proposal is one that is worthy of approval subject to conditions. The conditions are as generally agreed to between the parties and the applicant is prepared to have additional conditions attached whereby a development application pursuant to s 85 of the Act must be lodged for the erection of a dwelling within the footprint area approved in the application and a s 88B instrument.
50 There are other conditions proposed by the council which go to the building envelope whereby the dwelling is to be generally of single storey although a second storey may be considered without obvious visual impact.
51 The vehicular access is also worthy of mention. The applicant agreed that this be only from the realigned Tomlins Road which is to be constructed and construction has commenced, in an east/west direction. I also add that this road access from the newly aligned Tomlins Road to the building footprint should be within the land classified as 4 rather than taking up area which is the more productive land shown as category 3. The access was raised on the site inspection. Originally there was no requirement for access to be from the newly aligned Tomlins Road however in the Court’s assessment allowing access from Thompson Road which is to the south of the subject building envelope could have inappropriate scarring because of the steepness of the topography is such that it would be a visual intrusion. The solution is for the access to be in an east/west direction as now proposed by the applicant in condition 10. The other additional conditions as I stated is that the dwelling house erected on the land may only be occupied whilst the land is used for productive agricultural purposes.
52 In my overall assessment, and I have given careful consideration to this matter having regard to the State Environmental Planning Policy 1 objection and the issue of precedent, I am satisfied that the proposal is one that warrants approval in the circumstances of this case and I have gone to lengths to distinguish this application from previous cases to ensure that the precedent issue is not one that can be readily invoked and that all future development applications in the locality would have to be assessed on their merits as I have done for this development application.
53 Therefore on the basis of my assessment the orders of the Court are:
1. The appeal in respect of the property known as No. 20 Tomlins Road, Broughton Village, is upheld.
2. The State Environmental Planning Policy No. 1 objection to vary the 40 ha minimum standard for the erection of a dwelling house is allowed.’
3. The development application submitted to Kiama Municipal Council, and as amended, is determined by the granting of consent subject to the conditions contained in Annexure ‘A’.
5. There is no order as to costs.4. The exhibits with the exception of A, C, 3 and 7 are returned.
- ________________________________
J S Murrell
Commissioner of the Court
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