Hughes v Great Lakes Council and Director General, Department of Planning

[2006] NSWLEC 727

Land and Environment Court

of New South Wales

CITATION:

Hughes v Great Lakes Council and Director General, Department of Planning [2006] NSWLEC 727

PARTIES:

APPLICANT
Alan Hughes

FIRST RESPONDENT
Great Lakes Council

SECOND RESPONDENT
Director General, Department of Planning

FILE NUMBER(S):

10403 of 2006

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Dwelling, SEPP 1 objection to minimum 40 hectare lot requirement

LEGISLATION CITED:

Great Lakes Local Environmental Plan 1996
State Environmental Planning Policy No. 1 - Development Standards
State Environmental Planning Policy No. 71 - Coastal Protection
NSW Coastal Policy 1997

CASES CITED:

Goldin v Minister for Transport [2002] 121 LGERA

DATES OF HEARING:

17/11/2006

 
DATE OF JUDGMENT: 

12/01/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Long, solicitor

RESPONDENT
Mr P Clay, barrister

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

1 December 2006

10403 of 2006 Alan Hughes v Great Lakes Council and Director General, Department of Planning

JUDGMENT

Background

1 This appeal was lodged against council's refusal of an application for the erection of a 2-storey dwelling at Lot 3, Section 6 DP 758185, Seal Rocks Road, Bungwahl. The site has a relatively steep slope, which falls towards its road frontage of 40.24 m. It has a total area of 2023 sq m. The property backs onto generally undisturbed bushland that was Crown Land.

2 The site is in the Bungwahl locality but not within the Bungwahl Village Zone. Bungwahl is a small village of approximately 200 residents and sits atop of a ridgeline that separates Myall Lake from Smiths Lake. The site is approximately 900 m by road from the village store and approximately 1200 m from the community hall. The Bungwahl Public School is opposite the site.

3 As the property is situated within a 7(B) Conservation Zone, a minimum area of 40 ha is specified for the erection of a dwelling. Consequently, the applicant relies on a SEPP 1 objection to this control and this is threshold issue in the appeal.

4 Insofar as council initially supported the proposal, the concurrence of the Director General of the Department of Infrastructure, Planning and Natural Resources (DIPNR) was sought. The Director General declined as follows:

The Council is advised that for the purpose of clause 7, State Environmental Planning Policy No.1, the Director-General has declined to grant concurrence to the application. This decision has been made because the proposal is contrary to the objectives and provisions of the Great Lakes LEP 1996 and its common ownership provisions; and the Councils recently completed Great Lakes Rural Living Strategy.

The Department has consistently declined to support applications to vary the 40 ha development standard in localities where lifting the common ownership provisions would result in a substantial increase in the number of dwellings. Advice from the Council indicates that approximately 30 additional allotments in the locality do not have a dwelling entitlement by virtue of the common ownership provisions. If approved, the subject application would set an undesirable precedent for the numerous similar applications which would surely follow, the cumulative impact of which would be to undermine the objectives of the Great Lakes LEP 1996 and its common ownership provisions; and place an undue demand on the Council and the Government for all of the services and facilities expected of an enlarged residential community. The cumulative effect of similar approvals would introduce new planning direction inconsistent with the objectives of existing planning controls and the Council's Rural Living Strategy. Such a course, in the absence of suitable strategic and planning review, is a matter of State and regional planning significance and an inappropriate use of SEPP 1.

If the Council wishes to change its strategic planning direction in the locality and encourage residential scale development, these matters should be examined in conjunction with a review

5 For the appeal, the Department of Planning became the second respondent. Consequently, the parties agreed to Mr G Warne on being the Court-appointed expert for planning. He prepared a detailed assessment report, (Exhibit 3), resulting in his conclusion that the application should be granted conditional consent.

Planning controls
Great Lakes Local Environmental Plan 1996

6 Under this LEP the subject land is zoned 7(b) Conservation and the consent authority must give consideration to the following objectives of the zone. As such, development is required to be consistent with at least one objective.

The objective of the zone is to enable a limited range of development (including tourist facilities) on land possessing special aesthetic or conservation values where:

a) it can be demonstrated that the development can be carried out in a manner that minimises risks from natural hazards; and
b) the development functions efficiently; and
c) the development does not prejudice other economic development; and
d) the development does not significantly detract from the scenic quality of the land within the zone; and
e) the development is unlikely to have a significant detrimental effect on the growth of native plant communities; and
f) the development is unlikely to affect the survival of native wildlife population; and
g) the development is unlikely to adversely affect the provision or quality of habitats for either indigenous or migratory species.

7 Clause 19(3) Dwelling Houses in Zones 1(a), 7(a1) and 7(b) of the LEP applies:

Clause 19

(1) …
(2) In this clause "existing holding" means:
a) except as provided in paragraph (b) - the land comprised in a lot, portion or parcel of land as it was on 15 May 1964, whether or not it has subsequently been subdivided; or
b) where, on 15 May 1964, a person owned 2 or more adjoining or adjacent lots, portions or parcels of land comprised in all of those lots, portions or parcels as they were on that date, whether or not they have subsequently been subdivided or consolidated. (Amendment No. 17)
(3) Despite any other provisions of this plan, a dwelling house must not be erected on land within Zone No. 1(a), 7(a1) or 7(b) unless the land (Amendment No. 26) (Amendment No. 44):

a) has an area of not less than 40 hectares; or
b) comprises the whole of an existing holding (or an existing holding affected and only by a subdivision made on or after the date on which this plan came into force pursuant to Environmental Planning Policy No. 4 -Development Without Consent, the area of which is less than 40 hectares and on which no dwelling house is erected); or …
State Environmental Planning Policy No. 1 - Development Standards
State Environmental Planning Policy No. 71 - Coastal Protection
NSW Coastal Policy 1997

The evidence

8 In his assessment of proposal, Mr Warne has considered the SEPP 1 Objection that was lodged and provided further details on the application of this policy. In particular, he has given attention to the associated issues of precedence and cumulative effect of proposal, in the context of the Bungwahl locality.

9 Insofar as the Department raised concerns about the regional significance of the proposal Mr Warne says that:

"if the Department's position is to be given weight then it would need to be demonstrated that there exists sufficient probability that there will be further applications for a number of undistinguishable development of the same class sufficient in a total to bring about an objectionable condition. Further that such probability would need to be demonstrated to extend beyond the immediate locality of Bungwahl and affect other land not only within the 7(b) Conservation Zone but within the 1(a) Rural zoned under the LEP generally".

10 Accordingly, his investigation of the Bungwahl locality indicates that there are some 32 potential allotments within the 7(b) zone that could hypothetically seek to rely on any precedential approval granted to the subject application. However he says that the majority of these lots (approximately 26) have differing circumstances in terms of the physical characteristics and locations, which would likely restrict the opportunities for dwelling approval. There are then 6 remaining lots with similar characteristics to the subject land. But some of these lots may be restricted in terms of bushfire control restrictions, and therefore not be likely to obtain consent.

11 This localised Bungwahl area contains 21 existing dwelling houses along the eastern side of Seal Rocks Road in the 2.5 km section on between the "village area" and the beginning of the Seal Rocks National Park. According to Mr Warne, most of these lots and areas are similar to the subject lot and the 6 previously identified lots and therefore:

"Should all of the dwelling house opportunities under the existing holdings provisions and the 6 lots which may rely on the precedent created by this application and this application itself be constructed an additional 10 dwellings would be added to the 21 dwellings that already exist in the locality and these additional dwelling houses would be in the form of infill development.

In these circumstances the resultant development of the 6 additional allotments plus that now proposed would be undertaken in amongst a setting of up to 24 dwelling houses located on lots of 2000 sq m or larger in what I described in my oral report to the parties as a Rural Residential setting.

…

I believe that the issue of precedent is a relevant matter only where evidence suggests that subsequent similar objections if upheld will lead to adverse cumulative impacts. More substantive evidence of possible cumulative impacts is necessary if a refusal of the SEPP 1 Objection was warranted."

12 However, Mr Clay's submission is that this approach is fundamentally flawed because the zoning controls distinguish the 7(b) Conservation Zone from other "rural/residential" and consequently significantly restricts the number of dwelling houses and other development on land possessing special aesthetic or conservation values. Therefore the desired character of the area is not of an “infill rural residential nature”.

13 Notwithstanding this, the threshold issue concerns the suitability of the SEPP 1 objection. It is agreed that the provisions of cl 19(3)(a) of the Great Lakes LEP contains a development standard which restricts the approval of dwelling houses on lots with an area of less than 40 ha. This answers the first question for the SEPP 1 objection test.

14 The original SEPP 1 objection did not effectively address the underlying objective of this development standard, as required by the second test. However, Mr Warne provided further explanation and said that the 7(b) Zone allows a variety of other development in addition to certain dwelling houses as follows:

“These purposes inherently may require the clearing of land and the creating of visual impacts yet are not constrained by the 40 hectare minimum standard but are correctly required to be assessed as to their individual merits, their impacts upon the area and their satisfaction of the objectives of zone and the heads of consideration under section 79C of the Act.

It must follow in these circumstances that the application of the 40 hectare minimum standard for the erection of a dwelling house was an arbitrary broad ranging policy decision to allow for development to be undertaken on a site of sufficient size that would allow for that development and its impact to be contained within the site.

The carrying capacity of land for any purpose is subject to the impacts of the development and the physical capability of the site to contain those impacts within its boundaries however in this case the likely impacts of the development when tested against the zone objectives can satisfy those objectives without the need for reliance on the arbitrary minimum lot size of 40 hectares."

15 On this basis, Mr Warne notes that in the absence of any clear expression of the object or purpose underlying the development standard setting out why such a minimum area was chosen, then he says the underlying object or purpose of the standard is:

"to ensure that development satisfies the objectives of the zone and that is to allow for a range of development providing there is no significant impacts on scenic amenity, vegetation, wildlife or its habitats or risks from natural hazards".

16 However in his submissions, Mr Clay referred to the Department of Planning Minute (Minute) by Mr G Forster and Mr J Hunt which stated:

Objectives of the 40 ha minimum standard and 7(b) Zone

The intention of the 40 ha minimum development standard for the erection of dwellings stipulated by clause 19(3) of Great Lakes LEP 1996 is to maintain the natural and rural character of the landscape and to protect its environmental values by minimising the intensity of dwellings and their ancillary uses in both the 7(b) Conservation and Rural 1(a) zones. The objective of the 7(b) Conservation zone is to allow for a limited range of development providing there are no significant impacts on scenic amenity, vegetation, wildlife or its habitats, or risks from natural hazards.

17 It apparent that there is a significant difference in these interpretations of this underlying objective wherein the Minute refers to the natural and rural character that is sought to be maintained and protected by the minimum 40 ha lot size restriction on dwellings. Against this, Mr Warne adopts a much broader interpretation by reference to "a range of development" …

18 In my opinion, the Minute interpretation is to be preferred because it specifically refers to what the intent of the restrictive 40 ha minimum lot size for dwelling standard is trying to achieve in the 7(b) Conservation Zone, rather than dealing with other development that presumably is subject to appropriate environmental assessment criteria. This interpretation refers to minimising intensity and limiting the range of development.

19 It is obvious that a dwelling on a 40 ha lot (or similar size lot) would most likely have a significantly different character to such a dwelling on a 2000 sq m lot. Therefore I do not consider that where the assessment of the dwelling on any significantly undersized lot, results in minimal environmental harm, that it necessarily merits consent. Such approach would most likely lead to a different character outcome from that envisaged in the planning controls. This is apparent from Mr Warne’s opinion that the approval of the proposal would be consistent with the apparent "rural/residential" character of the area. But it appears that the planning controls are not seeking this outcome in the 7(b) Conservation Zone, despite some existing dwellings in this zone.

20 Therefore, I do not consider that the SEPP 1 Objection has adequately identified the underlying objective of this development standard and accordingly the associated assessment has not been undertaken on the appropriate basis. In my opinion, this approach does not satisfy test 3.

21 The fourth test concerns whether compliance is unreasonable or unnecessary in the circumstances? It also asks whether a complying development would satisfy the objectives. As I noted previously, there will be an obvious difference in the environmental character outcome from a dwelling on 40 ha, when compared to a dwelling on 2000 sq m. In my opinion, a complying development would satisfy the underlying objectives of this development standard and achieve the desired outcome for the Conservation Zone, rather than contribute to an alternative rural residential character, that would be covered by a different zoning.

22 In this regard, I have also considered the evidence and concerns regarding precedence in the context of the judgement in Goldin v Minister for Transport [2002] 121 LGERA, where at 101 it states that if there is an application for development which is both objectionable in itself, and where there is a sufficient probability that there will be further applications of like kind, then the fact that consent would operate as a precedent may be taken into consideration.

23 There are 3 lots immediately neighbouring the subject of lot, which could have similar expectation for dwelling approvals, if current application is approved. Likewise, there are another 3 lots along this section of Seal Rocks Road and possibly some of the other 26 lots Mr Warne identified. If any consents for dwellings were granted in respect of these properties, the rural/residential character suggested by Mr Warne would be confirmed, rather than the more restrictive, reduced residential intensity of the 7(b) zone. Therefore I do not consider test 4 is satisfied.

24 The final test 5 requires determination of whether the SEPP 1 Objection should be allowed. For the above-mentioned reasons, I do not consider this test is satisfied.

Conclusions

25 The threshold matter in this case concerns whether the SEPP 1 Objection to the development standard in cl 19(3) of the Great Lakes LEP, requiring a minimum area of 40 ha for the erection of a dwelling house should be allowed. The proposal shows significant non-compliance with the standard because it has an area of 2023 sq m.

26 Having considered the evidence, the submissions and undertaken a view I am not satisfied that the SEPP 1 Objection has satisfactorily addressed the recognised tests. In particular, I consider the objection has failed to identify the underlying objective of this development standard relating to the restrictions on the minimum area for dwelling house approval, in the designated 7(b) Conservation Zone.

27 Insofar as Mr Warne supports the application, it is predominantly on the basis that the approval will not cause environmental harm, or precedence because of its distinguishing circumstances. Whilst I have considered these circumstances, it appears to me that they could equally apply to other 7(b) and 1(a) land. Notwithstanding this, he concedes that the approval of the development will contribute to and maintain the rural/residential character of this locality. I do not accept that this is the outcome the Conservation Zone contemplates. Instead the 40 ha minimum lot size endeavours to maintain substantially more of the natural and rural landscape character, so as to minimise impacts on scenic amenity, vegetation, wildlife and its inhabitants, irrespective of any dwelling approvals that may have been granted under other planning controls.

28 I also consider significant weight should be given to the Department of Planning (DIPNR) advice which does not support the SEPP 1 objection, partly on the basis of its consistent maintenance of the 40 ha development standards, unless there are satisfactory strategic planning studies which support a significantly different residential scale of development.

29 In this regard, I note that there have been some strategic studies for the Shire, and they do not identify the need to provide more dwelling type land in this locality. Apparently, there is adequate other land to satisfy this requirement and therefore I do not consider the public interest is well served by allowing a SEPP 1 Objection, which amounts to a fundamental change in the specified planning outcomes, in terms of the anticipated character of this 7(b) Conservation Zone area.

Court orders

1. The appeal is dismissed.

2. The SEPP 1 Objection to the development standard in cl 19(3) of the Great Lakes Local Environmental Plan, requiring a minimum area of 40 ha for erection of a dwelling is disallowed.

3. Development consent to DA-196/2004 for the construction of a dwelling at Lot 3, DP 758185, Seal Rocks Road, Bungwahl, is refused.

4. The exhibits may be returned except for 3 and A.

___________________

R Hussey
Commissioner of the Court
rjs