Holt v Wollondilly Shire Council

[2007] NSWLEC 187

Land and Environment Court

of New South Wales

CITATION:	Holt v Wollondilly Shire Council [2007] NSWLEC 187
PARTIES:	APPLICANT Chris Holt RESPONDENT Wollondilly Shire Council
FILE NUMBER(S):	11153 of 2006
CORAM:	Tuor C
KEY ISSUES:	Development Application :- Subdivision density purpose of the standard rural landscape character cumulative impact and precedent
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Wollondilly Shire Local Environmental Plan 1991 State Environmental Planning Policy No1
CASES CITED:	Hooker Corporation Pty Ltd v Hornsby Shire Council (Cripps J, NSWLEC, 2 June 1986, unreported); Winten Property v North Sydney Council (2001) 130 LGERA 79; Butler v Wollondilly Shire Council [2005] NSWLEC 283 ; Precise Planning v Wollondilly Shire Council [2005] NSWLEC 339 ; Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75
DATES OF HEARING:	26 and 27 March 2007
DATE OF JUDGMENT:	5 April 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr S Kondilios, solicitor of Maddocks Lawyers RESPONDENT Mr A Seton, solicitor of Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

5 April 2007

11153 of 2006 Chris Holt v Wollondilly Shire Council

JUDGMENT

1 This is an appeal against the refusal by Wollondilly Shire Council (the council) of a development application (ID6-05) for Torrens Title subdivision into two allotments of Lot 21 DP 1015152 (No. 170A) Theresa View Road, Theresa Park (the site).

2 The site its context and the history of the application and the planning controls are set out in the Statement of Basic Facts.

The proposal, the site and its context

3 Lot 21 has an area of 7.481 ha. Proposed Lot 21/1 would have an area of 2.04 ha and proposed Lot 21/2 would have an area of 5.441 ha. The applicant has agreed that if the subdivision were otherwise satisfactory the size of the lots would be amended to each be a minimum of 3.5 ha.

4 The eastern boundary of Lot 21 faces a Right of Way (ROW). It is proposed that access to both new allotments will be from a single access point at the south east corner of the site in Lot 21/1. An access handle parallel to the ROW will provide access to Lot 21/2. This eastern portion of the site along the ROW is relatively flat cleared pasture land. To the west is a heavily wooded escarpment which contains threatened ecological communities (Cumberland Plain Woodland, Western Sydney Dry Rainforest and State Sandstone Transition Forest), which forms part of a vegetation corridor that follows the ridge line through to and along Eagle Creek.

5 The land to the east of this escarpment is characterised by open paddocks and farmland. Allotments vary in size between 2 ha to 10 ha. The larger allotments are dominant with smaller allotments generally dispersed amongst the larger allotments. Houses on these allotments are generally located along Theresa View Road or McKee Road. Two recent houses are accessed off the ROW (lots 101 and 102 DP1016984). Adjoining the site to the north is a recent subdivision with two houses accessed by another ROW off McKee’s Road (Lot 2 DP 1085146 and Lot 272 DP 1059240).

Planning Framework

6 The site is within Zone No 7(c) Environment Protection “C” (Rural Living) under Wollondilly Shire Local Environmental Plan 1991 (LEP 1991). Land to the north, south and west is also in the 7(c) zone. Land to the east is located in Zone No. 1(a) Agriculture.

7 The proposed subdivision is permissible with consent within the Rural Living zone. Clause 10(3) of the LEP 1991 states:

Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

8 The objectives of the Rural Living zone are as follows:

(a) to provide for rural living opportunities
(b) to encourage the preservation of the rural landscape character by ensuring that development is compatible with that character
(c) to ensure that land degradation does not occur and that the water quality of receiving streams is protected
(d) to maintain existing significant stands of indigenous vegetation

9 Clause 13B - Subdivision and erection of dwelling houses within Zone No 7(c), provides:

(1) The council may consent to a subdivision of all or part of an original holding consisting of land within Zone No. 7(c), or of land partly within that zone and the residue of which is within Zone No. 1
(b), only if:
(a) the total number of lots into which the original holding will be divided after the subdivision will not exceed the number obtained by dividing, by 4, the area (in hectares) of the original holding that is within Zone No. 7(c) only, the dividend being rounded down to the nearest whole number; and
(b) none of the allotments to be created by the subdivision will have an area of less than 2 hectares.

2 The council may consent to the erection of a dwelling-house on land within Zone No 7(c) and if:

(a) it is on an allotment created in accordance with subclause (1), or
(b) it is on an allotment with an area greater than 2 hectares

(2A) Notwithstanding subclause 92) a dwelling-house may, with the consent of the council, be erected on any allotment of land within Zone No 7(c) which was an existing lot in a current plan (within the meaning of the Conveyancing Act 1919 ) at 20 September 1996, and on which, in the opinion of the council, a dwelling house could have been erected.

(3) In this clause, original holding means a lot in a current plan (within the meaning of section 327 AA (1) of the Local Government Act 1919 ) as at the date of publication in the Gazette of Wollondilly Local Environmental Plan 1991 (Amendment No 11).

10 The proposal does not comply with cl 13B(1) of LEP 1991 and the applicant has provided an objection under State Environmental Planning Policy No 1 (SEPP 1).

11 Part A.4 of the Wollondilly Rural Living Development Control Plan (the DCP) lists the following objectives which need to be taken into consideration for rural living development.

1. To implement the Objectives of Wollondilly Local Environmental Plan, 1991.
2. To provide guidelines for the development of lands zoned Environmental Protection Rural Living within the Wollondilly LGA.
3. To ensure that Rural Living Developments are integrated with the landscape of the surrounding area taking into consideration land capability.
4. To ensure subdivision potential is compatible with the capacity of the land.
5. To ensure that sites proposed for Rural Living purposes have a suitable building site, taking into consideration accessibility, as well as the risk of damage by a bushfire, flooding or land slip.
6. To ensure that the design and materials of new buildings are compatible with the natural surrounds of the area and the general character within each locality.
7. To minimise land use conflict.
8. To ensure dwelling houses are provided with an approved effluent disposal system.
9. To maintain existing stands of natural vegetation.

12 Part B.3 of the DCP states:

The Environmental Protection Rural Living 7(c) zone has a minimum subdivision size of two hectares, with a density of one dwelling per four hectares. This is to ensure that the rural living areas maintain their scenic and landscape qualities but still allowing for smaller subdivisions where necessary.

13 The Statement of Issues contained 6 issues. Mr Seton, for the Council summarised these as being:

1. The SEPP 1 objection is not well founded and does not demonstrate that compliance with the provisions of clause 13B(1) are unreasonable or unnecessary in the circumstances of the case.
2. The proposal will set a precedent for future subdivision of land with greater average density of 1 dwelling per 4 hectares.
3. The cumulative impact of subdivision will have an adverse impact on the rural landscape character of the area.

14 The issues are essentially interrelated so I will discuss them together.

15 The Court visited the site and heard evidence from the following residents:

Mr Berrell, 86 Theresa View Road (Lot 102 DP 1016984)
Mr Mellin, 88 Theresa View Road (Lot 102 DP 1016984
Mr Woods, McKee Road (Lot 55 DP 258766)

16 The main concern of the residents can be summarised as being the proposal will result in increased traffic using the ROW which will result in privacy and noise impacts as well as safety issues. The increase in traffic will also increase the maintenance of the ROW.

17 The residents were also concerned that the proposal does not comply with the planning controls and approval will create a precedent for other sites. Mr Berrell indicated that his residual allotment (after subdivision of the original holding) is 7.5 ha and it should also be able to be subdivided if this application were approved.

18 The Court heard expert evidence from Mr M Brown, town planner for the applicant and Mr J Williams, town planner for the council. Both experts agreed that the increase in traffic arising from the proposal would be acceptable. Mr Seton, for the council and Mr Kondilios, for the applicant, agreed that there was no legal impediment in relation to the ROW which would prevent approval of the application.

19 The parties agreed that the appropriate approach to SEPP 1 is in Hooker Corporation Pty Ltd v Hornsby Shire Council (Cripps J, NSWLEC, 2 June 1986, unreported) and Winten Property v North Sydney Council (2001) 130 LGERA 79. They disagreed as to whether the SEPP 1 objection and the proposal met this approach. In Hooker, Cripps J states:

….it now established that is not sufficient merely point to what is described as absence of environmental harm to found an objection. Furthermore, the objection is not advanced, in my opinion, by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a purpose.
….it is not be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan making procedures set out in Part III of the Environmental Planning and Assessment Act.

20 In Winten, Lloyd J at [26] commenting on Hooker states:

In applying the abovementioned judgment, it seems to me that SEPP No 1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, 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 objects specified in s 5(a)(i) of the EP & A Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? (In relation to the fourth question, it seems to me that one must also look to see whether a development which complies with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case.) Fifth, is the objection well-founded?

21 To assess the SEPP 1 application it is first necessary to understand the background to this application and the term “original holding” for the purpose of cl 13B.

22 The site is part of the subdivision of Lot 2 DP 612113 which had a total area of 9.168 ha. Council approved the subdivision of Lot 2 into Lots 20 and 21 DP 1015152 in 1993, however, the lots were not registered until 2000.

23 The parties agreed that the “original holding” for the purpose of cl 13B of LEP 1991 was Lot 2 DP 612113 (the original holding). Although both parties recognised that council had acted inconsistently as on other sites it previously considered that once an original holding had been subdivided the resultant lots were no longer part of an original holding and therefore not subject to cl 13B of WLEP 1991. This opinion was based on council’s legal advice at the time, which has since changed.

24 Butler v Wollondilly Shire Council [2005] NSWLEC 283 and Precise Planning v Wollondilly Shire Council [2005] NSWLEC 339 raise the meaning of “original holding”. The planners agreed that both judgements incorporate findings that a lot created from an “original holding” remained a “part of an original holding” as referenced by Clause 13B. The consequence of this being that “the subdivision of an original holding in accordance with Clause 13B can be carried out by way of one or successive subdivisions.”

25 Mr Kondilios considered that the clause was open to interpretation but did not seek to pursue this as a point of law.

26 Regardless of whether the original holding is Lot 2 DP 612113, the proposal does not achieve an average density of 1 lot / 4 ha, although the degree of non compliance is less if it is based on the residual Lot 21. The experts agreed that based on Lot 2 a density of I lot / 3.056 ha is achieved (a 23.6% variation) whereas based on Lot 21 the density is 1 lot / 3.75 ha (a 6.25% variation).

27 The underlying objective or purpose of the standard is not stated in LEP 1991 and is not apparent from the clause.

28 A reading of the clause suggests the operation of the cl 13B(1) is to achieve an average density of 1 lot / 4 ha based on the size of the original holding. For example if the original holding is 10 ha this can be subdivided into 2 allotments the minimum size must not be less than 2 ha. A range of allotments size could be achieved such as 2 ha and 8 ha or 5 ha and 5 ha. The larger lots compensate for the smaller lots and an average overall density of 1 lot / 4 ha is achieved. The DCP reinforces this requirement by providing a density of 1 dwelling / 4 ha.

29 To assist in understanding the purpose of cl 13B(1), both experts referred to the Wollondilly Review of Rural Lands Report September 1996 (Rural Lands Report) which formed the basis of Amendment No 11 to LEP 1991. This amendment was gazetted on 17 September 1996. It introduced three new zones into LEP 1991 including: Zone 7(c) Environment Protection “C” (Rural Living) and Zone 1(a) (Agriculture). The amendment introduced cl 13B and the 7(c) Environment Protection “C” zoning of the site.

30 The aims and objectives of Amendment No 11 include:

This plan aims to enable the rural landscape character of the land to which this plan applies to be maintained by allowing development of that land which will provide a balance between agricultural and other land uses.

31 The Rural Lands Report articulates the rationale behind the density incorporated in cl 13B as being:

The primary objective of the rural living zone is to provide for rural living opportunities having due regard to the preservation of the landscape character as well as the constraints of the land. Within this zone the methodology for carrying out a subdivision is first of all to identify the constraints of the land and then identify dwelling house sites. The actual subdivision layout is the last thing to be considered and in fact, having regard to the constraints of slope, soil quality and runoff potential as well as effluent disposal areas the density requirement of 1 dwelling per 4 ha may not be achieved in many cases.

The 2 ha subdivision minimum and 4 ha density was arrived at after an assessment of the existing lot size range, landscape as well as topographical considerations. It was considered that by providing a density of 4 ha, the integrity of the landscape would be preserved and that land degradation would not occur. The 2 ha minimum was introduced to allow for range of lots sizes to be created to that they conformed to the landscape and land forms of the area and to provide for variety in the lots created. It should be pointed out that the primary objective of the zone is to encourage the preservation of the landscape character by ensuring that development does not detract from that character. It is considered that any lesser density would not achieve that objective.

32 Mr Brown states:

The underlying purpose of this development standard is to provide flexibility in lot sizes to cater for a range of site specific environmental features found within the area whilst retaining lots of sufficient size to reflect the landscape character and enable a range of sensitive land use opportunities to occur within the capability of the land.

33 Mr Williams generally agreed with the underlying purpose of the development standard stated by Mr Brown but also considered that a further objective of the standard is to minimise rural land use conflict between rural living and agricultural land. To support this position, Mr Williams referred to the Rural Lands Report which states:

The presence of Agriculture and non Rural Land Uses in one location can often generate conflict due to their potential impact. Agriculture can affect adjoining small rural lots which are used essentially for residential purposes. Similarly, the presence of small rural lots creates an adverse impact on the continued operation of Agricultural enterprises. The issue of Rural Land Use Conflict is a concern in Wollondilly.

34 Further, s 4 deals with matters to be considered when assessing agricultural land. It states:

The size of the lots within a locality is perhaps the most important factor when considering planning for Agricultural Land Use. This applies to the land in question as well as the sizes of the surrounding lots.

35 The Rural Lands Report identifies the site as being within the Theresa Park locality. It relevantly states:

….is one of the highest producing areas within Wollondilly for market gardening and cultivated turf…

It is noted however, that there is a significant number of rural residential uses within the locality. It is further noted that the majority of these rural residential uses are located on the western side of McKee Road and that the boundary of the zoning is at the top of the escarpment running along Theresa View Road. This land has been zoned as Rural Living. This boundary has been chosen to lessen the impact of Rural land Use conflict that could occur from any further subdivision for Rural Residential Subdivision or Rural Living purposes.

36 From this description, Mr Williams concludes that the purpose of the standard was also to limit the density of rural residential development adjoining the agricultural land. Put simply, the less number of houses the less potential for conflict. Further, Mr Williams consideres that a strict application of the standard would largely limit subdivision and dwelling houses to the top of the escarpment to minimise the conflict with the adjoining agricultural land. The experts agreed that this was a further objective of the standard. I note Mr Kondilios submission that this was not raised as an issue in the case and expert evidence was not provided that dealt specifically with rural land conflict.

37 The experts agreed that one extra lot and the subsequent development of one additional house on the site would of itself not result in a development that is not compatible with the rural landscape character of the area. Mr Williams was primarily concerned with the cumulative impact of subdivision and the precedent that approval of this application may set for other applications. He noted that the Department of Planning’s Circular B1 raises the need to take into account potential cumulative impact when considering a SEPP 1 objection.

38 Mr Williams provided a table of other lots in the vicinity of the site where a variation to the standard could also be sought due to their site constraints. Mr Brown did not agree with the total yield derived from this table. However, the experts agreed that there would be the potential for 7 allotments in addition to those which would comply with cl 13B(1). These additional allotments were all on sites with similar characteristics such as vegetation and slope to those on the subject site. However, their suitability for subdivision would need to be further assessed by “ground truthing” and expert reports as had been the case with this application. Mr Williams considered that there were other sites that had suitable characteristics for subdivision which could result in a further four additional allotments with a variation to cl 13B(1).

39 In Mr Williams opinion even the potential for an additional seven allotments demonstrated that approval of this application could be a precedent for approval of other applications in the area. Mr Brown disagreed, on the basis that future applications would need to be considered on their merits.

40 The experts agreed the area had two distinct landscaped characters; the area above the escarpment was one character and the area below another. They agreed that lot 21 related to the lower area which they described as “having an open nature with one house per 10 ha”.

41 This open rural character of essentially paddocks with minimal built form occurred on both sides of the ROW in both the Agricultural and Rural Living zones. They agreed that if there were more houses there would be more impact on this open rural landscape character.

42 Mr Brown initially stated that 2 ha allotment were “predominant” in the Rural Living zone. However, he later accepted that there was only a “sprinkling” within the Theresa Park area and that in the area below the escarpment larger allotments prevailed. He noted that the subdivision of the adjoining land to the north into two allotments of about 2.5ha (Lot 2 DP 1085146 and Lot 272 DP 1059240), together with the existing house on lot 62 DP 258766 (also a smaller allotment) created a sub precinct in the immediate area of the site with a different rural landscape character. He considered that houses on lot 21/1 and 21/2 would reinforce this character and was compatible with the rural landscape character of both the immediate area and the its wider context.

43 Mr Williams considered that the approval of the subdivision to the north had changed the character of the area and that further subdivision and subsequent houses on lot 21 would create a cluster of smaller allotments which was not compatible with the character of the area.

44 Mr Williams and Mr Brown both agreed that the subdivision met the other objectives of the zone and the purpose of the standard, in that the additional allotment would provide rural living opportunities, would not result in land degradation or impact on water quality and that the significant vegetation would be retained. Further there are no bushfire issues, only one access point is proposed off the ROW to service both lots and adequate building envelopes are proposed. In Mr Brown’s opinion the particular characteristics of the site made it capable of accommodating the proposed subdivision and that compliance with the standard was unreasonable and unnecessary in the circumstances of the case.

45 While Mr Williams accepted that potentially the site’s characteristics may allow subdivision, there are other sites in the area with similar characteristics, including the site immediately to the south, which could potentially also be subdivided. Further subdivision of original holdings into smaller lots would, in his opinion, result in a cumulative and unacceptable impact and be inconsistent with the character anticipated by cl 13B(1).

46 Mr William’s noted that other SEPP 1 objections in the Theresa Park area when measured against the original holding were generally less than a 10% variation on the standard. The current application would represent a 23% variation when measured against the original holding. For the reasons above Mr Williams considered the SEPP 1 objection to be not well founded.

Findings

47 Consistent with the decision of Cripps J in Hooker, the absence of environmental harm is not sufficient reason that the standard should not be complied with. I must accept that the standard has a purpose and a SEPP 1 objection must not be a means of effecting planning change.

48 Cl 13B applies only to the 7(c) Environment Protection zone. The key purpose of the standard relates to rural landscape character and the control seeks to implement the objectives for the zone, in particular, Objective (b) To encourage the preservation of the rural landscape character by ensuring that development is compatible with that character.

49 The character of Theresa Park is of large allotment with a sprinkling of smaller allotments. This is more apparent in the land below the escarpment, which is characterised by an open rural landscape on both sides of the ROW, and in both the Rural Living and Agriculture zones.

50 The adjoining subdivision to the north (Lot 2 DP 1085146 and Lot 272 DP 1059240), together with the existing house on lot 62 DP 258766 (also a smaller allotment) change this character and create a cluster of smaller allotments. I accept Mr Kondilios submission that change does not automatically result in a lack of compatibility. I also accept that individually one extra allotment will not have a significant impact on the rural landscape character. However, the additional allotment will add to a cluster of smaller allotments that do not preserve the rural landscape character. It is a change that is not compatible with this character and one not anticipated by the implementation of the standard.

51 The standard does not seek to achieve a minimum allotment size of 2ha or less than 4 ha for all new lots in an “original holding”, even if there are minimal site constraints. Rather each “original holding” should achieve and average of 4ha so that larger lots are “sprinkled” with smaller lots thereby retaining the rural landscape character of the area while still providing adequate opportunity for rural living.

52 The original holding of about 9ha has already been subdivided into two lots (about 2ha and 7ha). This achieved the purpose of the standard by permitting a smaller allotment and larger allotment with an average of about 4ha. This subdivision also placed one house above the escarpment on Theresa View Road and the opportunity for one house below the escarpment off the ROW. The proposed subdivision will enable another house to be constructed below the escarpment and result in a density below 1 lot / 4 ha.

53 The characteristics of this site are similar to other sites in the area, including the site to the south. There are no circumstances or characteristics of this site that mean that compliance with the standard is unreasonable or unnecessary.

54 While I have not addressed the rural land conflict I note that Murrell C in Butler recognised that this was also an underlying purpose of the standard. At para 23 Murrell C states:

Having regard to the objectives of the zone, as cited earlier, and having regard to the provisions in the development control plan which provide us with greater insight as to the purpose of the zone and the reasons for the subdivision control, it is clear that the 7(c) zone provides a balance between the agricultural zone, or rather a transition from the agricultural zone, where the quality of the land in agricultural terms may not be important for agricultural production but where the scenic qualities and the landscape qualities of a rural area should be maintained by these adjoining 7(c) lands.

55 Further at para 26 Murrel C states that

…they (development applications) may have a juxtaposition such that they are next to, or adjoin, a rural zone which has agricultural capabilities and clearly additional dwellings adjoining agricultural land make conflict with those agricultural activities, however, the subject site is not one that is adjacent to a rural zone but rather surrounded by many other properties that are zoned 7(c).

56 The subject site adjoins an Agricultural zone, the adjoining land being used for horses. It would appear that this would be unlikely to cause conflict with the use of the site for rural living. However, an additional house would clearly increase the potential for such conflict and may place constraints on the future use of the land for more intensive agricultural purposes.

57 The SEPP 1 objection does not satisfy the underlying purpose of the standard and the tests in Winton and is therefore not well founded. For this reason the application must fail.

58 As the application fails on the basis of the SEPP1 objection and the impact on rural landscape character, it is not necessary for me to discuss whether approval of the application would result in an unacceptable precedent.

59 However, for completeness I will briefly address this issue. The parties referred to Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 where Lloyd J relied on Sugarman J in Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177, where he said at 182:

It is sometimes contended that a proposed development, in itself 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 condition of affairs. Here it seems, as I have said, unlikely that all the hypothetical subdivisions shown on the plan tendered by the council would be sought. Applications must be considered on their own merits and it would appear to be unduly onerous to refuse an application, unobjectionable on its individual merits, on the mere chance of probability that there may be later applications sufficient, if approved, to produce in their totality some undesirable condition. In such a case as the present, if what originally appeared to be a mere possibility or chance turned out later to become a distinct possibility, there would be no reason why the council should not at that stage call a halt, if it should then appear proper to do so. 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.

60 In Goldin, Lloyd J analysed a number of decisions following Emmott which considered the issue of precedent in planning appeals. He notes at para 31 and 32 that:

The authorities relied upon by Mr Hale show clearly that the precedent effect of a particular proposal is a valid consideration. In Shellcove Gardens Pty Ltd v North Sydney Municipal Council , Sugerman J expressly referred to his earlier decision in Emmott, in which he corrected the misprint in the latter judgment. Sugerman J acknowledged that “if one application were granted it might prove difficult for the council to refuse others unless the circumstances were distinguishable”. In the present case there has been a finding of fact by the Senior Commissioner that there is more than a mere “chance or possibility” of such later applications.

In particular, the decision of the Court of Appeal in BP Australia Ltd v Campbelltown City Council is, of course, binding upon me. As noted above, that Court held that the risk of establishing a precedent is readily invokable by prospective developers of other land in the vicinity is a valid consideration.

61 Pain J in Precise Planning considered the issue of precedent at para 44.

Applying Goldin to the slightly different circumstances before me, I accept that setting an adverse precedent through approval of a single application that is otherwise not objectionable, but is likely to lead to other approvals giving rise to adverse cumulative impacts, is a relevant matter to consider in relation to a SEPP 1 objection. The Department of Planning’s Circular B1 clearly raises the need to take into account potential cumulative impacts when considering SEPP 1 objections.

62 From the evidence before me there are other sites in the vicinity of the subject site that have similar characteristics which could have the potential for subdivision beyond that anticipated by cl 13B (1). There is more than a mere “chance or possibility” of such later applications and while any application for other sites would need to be considered on its merits I consider that if this application is approved “it might prove difficult for the council to refuse others unless the circumstances were distinguishable”. As stated above this application of itself does not meet the objective of cl 13B(1) as its impact together with adjoining allotments is not consistent with the rural landscape character. The cumulative impact of further approvals would further erode this character and would effect a change in the planning regime not envisaged by cl13B.

Orders

1. The appeal is dismissed.

2. Development application (ID6-05) for Torrens Title subdivision of Lot 21 DP 1015152 (No 170A) Theresa View Road, Theresa Park into two allotments, is refused.

3. The exhibits, except Exhibits 2 and 10 may be returned.

___________________

Annelise Tuor
Commissioner of the Court
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