Harlingen Pty Ltd v Wingecaribee Shire Council
[2012] NSWLEC 1273
•23 August 2012
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New South Wales |
Case Name: | Harlingen Pty Ltd v Wingecaribee Shire Council |
Medium Neutral Citation: | [2012] NSWLEC 1273 |
Hearing Date(s): | 23 August 2012 |
Decision Date: | 23 August 2012 |
Jurisdiction: | Class 1 |
Before: | Hussey C |
Decision: | 1. The Appeal is upheld. |
Catchwords: | DEVELOPMENT APPLICATION - Non-compliance with 40 ha minimum lot size, restriction on erection of new dwelling on additional lot |
Legislation Cited: | Environmental Planning and Assessment Act 1979 |
Category: | Principal judgment |
Parties: | Harlingen Pty Ltd (Applicant) |
Representation: | Counsel: |
File Number(s): | 10001 of 2012 |
JUDGMENT
Background
This appeal was lodged against Councils refusal of a DA for a two - lot subdivision application being No. LUA10/0502. The proposed subdivision is for the existing Lot 1 DP 386255 to be subdivided into two new allotments, with proposed Lot 11 containing an existing commercial development (The Robertson Pie Shop), having an area of 7,340 sqm and proposed lot 10, containing an existing dwelling house having a proposed area of 5.47 hectares. As the proposed subdivision calls for two new lots to be created each having an area of less that the 40 hectares minimum standard required under Wingecarribee Local Environmental Plan 1989 Clause 12 (2) (a) for the 7(b) Environmental Protection (Landscape Conservation) Zone, the application was accompanied by a SEPP 1 Objection.
The appeal commenced by way of a s 34 Conference which was subsequently terminated because there was no agreement between the parties. However after further consideration of a Joint Expert Planning report the parties now agree to consent orders to grounds subject to conditions.
The site
The subject site Lot 1 DP 386255 was created in 1953 and has an area of 5.8 ha. The lot configuration is of an irregular dumbbell shape located between the Illawarra Highway and the Illawarra Railway Line. The activities on the site consist of a retail development and car parking area (The Robertson Pie Shop) located adjacent to the Illawarra Highway within the southern portion of the site and an existing dwelling located approximately 240 m to the NE of retail development. The lot narrows substantially in area north of the dwelling house before widening again to embrace a vegetated area located to the north of the lot. The site does not have access to services other than electricity and accordingly the developments within the subject lot have provisions for rainwater harvesting and all effluent is disposed of by on site waste water systems.
The Locality
The property is accessed off the Illawarra Highway where it intersects with Jamberoo Mountain Road. The surrounding environment is characterized by scenic views of undulating and relatively open rural landscape interspersed with stand of remnant native vegetation and roadside trees both exotic in origin and native. Residential dwellings within this landscape are characterised by their low density and general unobtrusiveness within this scenic rural backdrop. The nearby town of Robertson is located approximately 2 km to the West of the site and Macquarie Pass and the Illawarra Escarpment are located approximately 4 km to the North East.
Planning Controls
The property is subject to the following controls. The main control is the Wingecarribee Local Environmental Plan 1989 (effective at the time of lodgement of the LUA). Under this LEP the site was zoned 7(b) Environmental Protection (Landscape Conservation) under the WLEP 1989.The following Objectives applied under the Land Use Table of that Instrument for the 7 (b) Environmental Protection (Landscape Conservation) zone:
(a)To identify and protect areas of particular scenic value and to ensure the preservation of their cultural, heritage, aesthetic and environmental significance;
(b)To recognise the value of the rural scenic landscape to the local tourist economy;
(c)To permit development and land use activities which are compatible with the heritage and scenic qualities of the key cultural landscape; and
(d)To recognize the potential of coal and extractive resources on land within the zone, and to ensure that their winning takes place by means which are compatible with the heritage and scenic qualities of the key cultural landscape.
The associated LEP controls comprise:
Clause 12: 'Subdivision of land within Zone No 1(a), 1(b), 5(c), 7(a) or 7(b)':
Under Clause 12(2) the Council may consent to the subdivision of land to which this clause applies but only if each allotment of land to be created by the subdivision will have 'an area of not less that 40 hectares' in accordance with Clause 12(2)(a).
Clause 13:'Dwelling-houses-Zone No. 1(a), 1(b), 5(c), 7(a) or 7(b)':
In not satisfying any of the criteria outlined under Clause 13(2) a dwelling house may only be erected on land to which this clause applies if the land 'has an area of not less than 40 hectares' in accordance with Clause 13(3)(1).
Other relevant controls include the Wingecarribee Local Environmental Plan 2012 (Published 16 June 2010). Under this LEP the subject site is zoned E3 Environmental Management. The following objectives apply under Clause 2.6BB Part 2 of the instrument for the E3 Environmental Management Zone:
To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values;
To provide for a limited range of development that does not have an adverse effect on those values;
To encourage the retention of the remaining evidence of significant historic and social values expressed in existing landscape and land use patterns;
To minimise the proliferation of buildings and other structures in these sensitive landscape areas.
To provide for a restricted range of development and land use activities that provide for rural settlement, sustainable agriculture, other types of economic and employment development, recreation and community amenity in identified water catchment areas;
To protect significant agricultural resources (soil, water and vegetation) in recognition of their value to Wingecarribee's longer term economic sustainability.
The relevant provisions of WLEP2010 are contained in:
Clause 4.2A 'Erection of dwelling houses on land in certain rural and environmental protection zones' applies to the E3 Environmental Management Zone, which states:
Development consent must not be granted for the erection of a dwelling house on a lot in a zone to which this clause applies, and on which no dwelling house has been erected, unless the lot is: 'a lot that is at least the minimum lot size specified for that lot by the Lot Size Map' - Subclause (3)(a).
Clause 4.6 'Exceptions to development standards'; requires under subclause (6) and (6)(a) that:
Consent must not be granted under this clause for a subdivision of land if 'the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard.'
Development Control Plans
The relevant DCPs are DCP No 41: Development and Subdivision-Engineering Standards and Planning Guidelines; and
DCP No 45: Public Notification of Proposed Development;
Contentions
Council's main concern was that if the subdivision is approved there could be difficulties in preventing a dwelling usage on Lot 11. It required the retention of the existing retail development.
The associated contentions concern the proposed subdivision being contrary to Clause 12(2)(a) of the Wingecarribee Local Environmental Plan 1989 in creating two new lots with lot areas of less that the 40 ha minimum standard for the zoning.
The existing lot area of 5.8 hectares for Lot 1 DP 386255 represents an already 85.5% departure from the 40 ha minimum standard required under the WLEP 1989 and which continues to apply under WLEP 2010. The subdivision represents a much greater departure from this minimum standard in proposing new lot areas of 7,340 sq m and 5.47 ha which represents respectively a 99.98% and 86.38% departure from the 40 ha minimum standard. It was Council's contention that the large magnitude of the proposed departures does not warrant approval.
Also, the applicant's SEPP 1 Objection was considered by Council to be inadequate to support the proposed magnitude of variation to Wingecarribee Local Environmental Plan 1989 cl 12(2)(a) and cl 13(3)(a).
The SEPP 1 Objection in recognising the 40 ha minimum as a Development Standard argues that in this instance the Standard is irrelevant as there is no new development proposed other than the subdivision. The objection does not however take into consideration the inability of Council to impose any legally binding Restriction to Title that would prevent in perpetuity the future erection of a dwelling house on proposed lot 11. An additional dwelling on a lot area of 7,340 sq m would represent a future development contrary to WLEP 1989 cl 12(2)(a) and cl 13(3)(a).
It was noted that Wingecarribee Shire Council was the first council to introduce Environmental Protection zones in the WLEP 1989 7(a) and 7(b) Environmental Protection zones. An underlying objective of the 7(b) zone is the recognition of the value of the rural scenic landscape to the local tourist economy and the proliferation of dwelling houses within the rural landscape as a potential outcome of the subdivision proposal runs contrary to this underlying objective. The SEPP 1 Objection was silent on the potential for a future dwelling within an Environmental Protection zone to be an outcome of the proposed subdivision.
Findings
Following the s 34 Conference, a detailed Joint Expert Planning report was prepared by:
Mr S. Richardson; Applicant's consulting planner,
Mr M. Carpenter; Council's town planner.
This report assessed the impacts of a subdivision to create:
Proposed Lot 11 comprising an area of 7,340 sq m, which would contain the existing commercial development known as the "Robertson Pie Shop", and
Proposed Lot 10 comprising an area of 5.47 hectares and which would contain an existing dwelling-house.
This is on the basis that for the purposes of this DA the land is zoned 7(b) Environmental Protection (Landscape Conservation) under Wingecarribee Local Environmental Plan (LEP) 1989. Under the provisions of cl 12(2)(a) of this LEP the minimum area for subdivision is 40 ha. This LUA was supported by an Objection made pursuant to State Environmental Planning Policy (SEPP) No. 1 - Development Standard.
In considering the SEPP1 objections to the provisions of cl 12(2)(a) the planners initially agreed that Clause 12(2)(a) of the Wingecarribee Local Environmental Plan 1989 constitutes a development standard for the purpose of the Environmental Planning and Assessment Act and State Environmental Planning Policy No 1 - Development Standards.
In response to the Contention 1 the planners agreed that it is appropriate and reasonable to impose a condition on the proposed Lot 11 that would prohibit the erection or use as a dwelling house on this lot.
They agree that if a future land owner of proposed Lot 11 was to try and seek approval for a dwelling-house on this allotment they would face considerable hurdles because:
Firstly, as the restriction would be placed on the title of the land a future land owner would be fully aware prior to purchasing the land that such a restriction applied to the land. A future land owner could not rely upon a lack of knowledge of the restriction as justification for seeking relief of its requirements.
Secondly a proposal to replace the existing development on the site with a dwelling-house would be inconsistent with the proposed restriction to be place on the title of the land prohibiting the erection of a dwelling-house on the land.
To enable a dwelling-house to be erected on the land this restriction would need to be removed. This would require the Council to agree to the modification of the consent imposing the requirement for the restriction by deleting any condition that sought the imposition of the restriction in the first place. Such would require an application made pursuant to S 96 of the Environmental Planning and Assessment Act 1979 seeking to modify the relevant development consent and this would then require consideration of any merits at the time by council.
Furthermore, they say that even if this hurdle was successfully overcome, any future dwelling house would need to comply with the provisions of the current Wingecarribee LEP 2010. The subject land is zoned E3 Environmental Management under this planing instrument. Under clause 4.2A of this LEP, a minimum area of 40 ha is required in order to erect a dwelling-house. Proposed Lot 11 would comprise an area of only 7340 sq m which would not comply with this requirement.
SEPP 1 does not apply to development application subject to WLEP 2010. Clause 4.6 of the WLEP 2010, however it provides for exceptions to development standards and is similar in make up to the provisions of SEPP 1. Such an application would need to be supported by a written request (Clause 4.6(3)) from an applicant which justifies the contravention of the development standards by demonstrating:
(a)That compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
(b)That there are sufficient environmental planning grounds to justify contravening the development standard.
With regard then to the SEPP1 objection, the planners agree that the following objectives that underpin the 40 ha development standard espoused by Clause 12(2)(a) of the Wingecarribee LEP 1989.
To maintain and protect the scenic attributes and landscape quality of the area by maintaining a low density settlement pattern.
Maintain separation between towns and villages by discouraging ribbon development along main and arterial roads.
Prevent the fragmentation of viable prime agricultural land.
Ensure growth and development occurs in a way that preserves the existing environmental qualities and minimises adverse environmental impacts from future development.
From their consideration of the objectives, the planners agree the 40 ha standard in meant to be a means of achieving an end as described by the objectives agreed to in the Joint Experts Report. In this case it was agreed that strict compliance with the 40 ha standard is unnecessary because (Wehbe [43]):
This proposal involves no new development with the proposed new lots containing existing development. Proposed Lot 11 would contain the "Pie Shop" and proposed Lot 10 the existing dwelling.
The scenic attributes and the existing settlement pattern of the area will be maintained.
The existing separation between towns and villages will be maintained.
There will be no fragmentation of prime viable agricultural land.
There will be no adverse environmental impacts.
The planners have considered the objectives of Section 5(a)(i) and (ii) of the Environmental Planning and Assessment Act and agree in the subject circumstances:
Council already recognise the subject land functionally as two separate rateable parcels. Council's records and mapping shows two parcels. The Valuer General has issued two separate valuations for the land. Council has issued two separate property numbers relating to these two valuations. For economic purposes the land is already recognised functionally by Council as being two separate rateable parcels.
That the Pie Shop is an accepted historical use of the land that pre-dates the current LEP and Council has approved a separate dwelling-house on the land.
The current LUA is not a device to enable the creation of a separate parcel to facilitate future development application to construct a dwelling-house on proposed Lot 11.
Consequently these matters demonstrate why compliance with the standard would tend to hinder the attainment of the objects specified in Section 5(a)(i) and (ii).
With regard to the magnitude of the departure to the 40 ha development standard espoused by Clause 12(2)(a), is not a material consideration. Rather the issue is whether the proposal still achieves the desired objectives of the standard. This proposal will not result in any adverse scenic or environmental impacts. The existing low density settlement pattern will be maintained. It was agreed that the proposal will still achieve the underlying objectives of the standard.
Notwithstanding the above, it was also agreed that compliance with the underlying objective or purpose of the zone is not necessary in the context that the application intends to facilitate the creation of separate legal titles. There is no new use proposed. In this case the uses are established and accepted and approved by Council.
Furthermore Council has in effect abandoned the 40 ha standard as it applies to this site by approving the existing dwelling on the site in 2009. In doing so there is no link between the approved dwelling and the "Pie Shop".
The planners also agree there is also economic justification for the proposal because:
The proposed subdivision reflects the existing economic use of the land.
Council already identifies the land as two "properties" for rating purposes. This reinforces the notional subdivision of the land given the existing separate uses on the land.
The proposed subdivision will also facilitate separate legal titles. This will provide greater flexibility and more secure tenure for future development opportunities for this site. Such will facilitate and promote the orderly and economic use of this land.
The planners conclude that in the subjective circumstances, the SEPP1 objective is well founded.
Having considered this evidence and the submissions which confirm that the parties are satisfied to rely on the planners evidence and there was no contrary evidence, I am satisfied in these agreed consent orders are reasonable and can be legally made in this regard and I also note there were no objections.
I particularly note the agreed conditions, which respond to the original contentions:
(1)Existing Commercial Premises - The existing commercial premises located upon proposed Lot 11 shall not at any stage be converted for use as a dwelling-house part but may continue to be used as staff facilities.
(2)Restriction to Title - An 88B Restriction to Title is to be created over proposed lot 11 to the satisfaction of Council so as to prevent in perpetuity the future erection of a dwelling-house or the conversion of the existing commercial premises for use as a dwelling-house. The Authority with the power vested to Release, Vary or Modify shall be Wingecarribee Shire Council.
(3)Surrender of Existing Use Rights - Prior to the issue by Council of a Subdivision Certificate the applicant shall lodge with Council proof of surrender of 'existing use rights' that may otherwise enable use of the existing commercial building located within proposed lot 11 as a dwelling-house (but not in relation to the use as staff facilities). Condition imposed pursuant to s 80A (1) (b) of the Environmental Planning and Assessment Act 1979.
(4)Effluent Disposal System - The existing effluent disposal system is to be upgraded and operated so as to comply with the recommendations contained within the Wastewater Site Assessment Report prepared by Strategic Environmental and Engineering Consulting (SEEC) dated 26 May 2010, a copy of which is retained upon the file for subdivision LUA10/0502 for reference.
Accordingly I consider the SEPP1 objection to the minimum lot size development standard Clause 12(2)(a) is well founded and should be allowed.
Orders
The Court orders by consent:
(1)The Appeal is upheld.
(2)Development application No LUA10/05025.01 for a two Lot Subdivision at Laird's Corner 4398 Illawarra Highway is approved subject to the conditions set out in Annexure "A".
(3)The exhibits may be returned except for 1,3,4 and B.
R Hussey
Commissioner of the Court
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Annexure A (115 KB, pdf) December 2017 - attached Annexure A
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