Hynes Urban Planners Pty Ltd v Hawkesbury City Council

[2004] NSWLEC 36

Land and Environment Court

of New South Wales

CITATION:	Hynes Urban Planners Pty Ltd v Hawkesbury City Council [2004] NSWLEC 36
PARTIES:	APPLICANT Hynes Urban Planners Pty Ltd RESPONDENT Hawkesbury City Council
FILE NUMBER(S):	11002, 11040, 11041, and 11147 of 2003
CORAM:	Hussey C
KEY ISSUES:	Development Application :- Rural residential lot sizes - ecological impacts - bushfire asset protection zones - privacy
LEGISLATION CITED:	Environmental Planning and Assessment Act State Regional Environmental Plan 20 Hawkesbury City Council, Local Environmental Plan 1989
CASES CITED:
DATES OF HEARING:	19/12/2003
DATE OF JUDGMENT:	02/19/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr J Maston, barrister SOLICITORS Harris & Company RESPONDENT Mr D Parry, barrister SOLICITORS Abbott Tout

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11002, 11040, 11041 and 11147 of 2003 Hussey C 19 February 2004 Hynes Urban Planners Pty Ltd
Applicant
v Hawkesbury City Council
Respondent Judgment

Background
1. These proceedings involve four (4) appeals concerning the subdivision of a number of separate parcels of the land, situated in London Place, Grose Wold. The parties agreed that the matters be heard concurrently.

2. The development sites comprise Lots 4, 11 and 12 in DP 786325, as shown in Fig 1. Each of these lots are "U" shaped and have areas of 10 ha. They were created by subdivision in 1988.

3. The land is undulating in form, partly cleared, and currently vacant. It is zoned Rural 1(c1) under Hawkesbury LEP 1989. Under that plan parts of the land, which generally correspond to the uncleared areas, are classified as Environmental Constraints Area (ECA) Fig 1.

The proposal
4. The subdivision applications in this case, provide for alternative subdivision layouts for Lots 11 and 12. The applicant's preference is for the subdivision of these combined lots so as to create 5 new allotments, i.e. D.A. 0747/03. Alternatively, these lots are proposed for individual subdivision. The proposals corresponding to the 4 appeals are as follows:


1. Appeal No 11040/2003, (Lots of 11 and 12, DP 786325 DA 074/03). This subdivision is for the creation of the following 5 irregular shaped lots with areas as shown in Fig 2:
Lot 901 4 ha,
Lot 902 2 ha,
Lot 903 1.09 ha,
Lot 904 9.16 ha,
Lot 905 3.77 ha.

Each lot has a designated building envelope(s). Access is to be provided via direct frontage to London Place for Lots 901, 903 and 905, via a battleaxe handle for Lot 902 and via a preferred direct access to London Place for Lot 904 or an alternative right of way over Lot 905.
2. Appeal No 11002/2003 (Lot 12 DP 786325, London Place). This proposal is for the creation of 3 irregular shaped lots comprising: Lot 121 of 4 ha, Lot 122 of 2 ha and Lot 123 with an area of 4 ha. The layout of these lots is shown in Fig 3, together with designated building envelopes.
3. Appeal No 11041/2003 , (Lot 11 DP 786325 DA 0711/03). This proposal is for the subdivision of the land into two irregular shaped lots comprising Lot 111 with an area of 3.65 ha and Lot 112 with area of 6.35 ha. Areas of ECA are retained as shown in Fig 4.

Access is the provided to Lot 111 by a narrow strip of land that is outside the ECA and parallel to the existing common boundary with the adjoining dwelling on Lot 9 DP 786325. Lot 112 is to have a preferred access running parallel to the existing compound with the adjoining Lot 10. This access position is contained within the ECA. An alternative option for access is proposed by a right of way over the access of the proposed Lot 111.

4. Appeal No.11147/2003, (Lot 4 DP 786325 DA 0823/03). This application proposes the creation of a regular shaped Lot 401 with area 3.108 ha and lot 402 with an area of 5.892 ha as shown in Fig 5.

Access is to be provided to Lot 402 by a battleaxe handle between the building envelope for Lot 401 and the adjoining dwelling on Lot 3 is not Lot 401 has direct frontage to London Place.

5 . It is proposed to provide on-site disposal system via an Ecomax system for each dwelling, with covenants on the resultant titles to this effect.

Planning controls.
Hawkesbury Local Environmental Plan 1989
6 . Under this plan, the subject land is zoned Rural 1(C1) and subdivision is permissible with consent. It contains a number of objectives, which allows rural residential living style, providing there is minimal environmental impact and demand for public infrastructure.

7 . Clause 11 contains the general provisions for subdivision, including a satisfactory ratio of depth frontage and a minimum area of 4 ha.

8 . Clause 25 A refers to the definition and objectives of the environmental constraints area.

9 . Clause 41AA deals with development in the Grose Wold area, which requires consideration of impacts on Cumberland Plain Woodland and ECA.

Hawkesbury Development Control Plan – Subdivision.
10 . This DCP sets general principles and aims and objectives relative to a number of assessment criteria. Of relevance is the requirement in rural subdivisions for each lot to have a nominated building envelope of minimum area of 2000 m2, with minimum dimensions of 20 m.

Hawkesbury City Council -- Grose Wold Development Control Plan .
11 . This DCP further defines the performance standards contained in cl 41AA of the LEP. Controls are provided in respect of lots sizes; flora and fauna including control of ECA; effluent disposal; and scenic quality.

Sydney Regional Environmental Plan No. 20 –
Hawkesbury Nepean River (SREP 20).
12 . The subject land falls within the Grose River Catchment Area of SREP 20, which contains general and specific matters, with consideration required given to development and aims to ensure that impacts of land use are considered in a regional context. Of relevance to the subject proposals are the SREP provisions relating to water quality and vegetation management.

The evidence.
13 . Detailed evidence on behalf of council was presented by:
Mr G Falson, consulting town planner and his reports are Exhibits 1, 2.
Dr K Mills, consulting ecologist,
Mr W Palmer, neighbour Lot 10,
Mrs A Nelson, neighbour Lot 9,
Mr B Clay, neighbour Grose Wold Road
Mr R Searle, neighbour Lot 1.


14 . Other submissions contained in Exhibit 10 were considered.

15 . For the applicant evidence was presented by:
Mr M George, consulting town planner and his report is Exhibit K,
Mr B Eadie, director technical services (Fire Management).
Dr B Martens, consulting environmental engineer.
Mr P Cowper, consulting ecologist.

Discussion of the evidence
16 . Insofar as a number of issues were identified for the appeal, these were addressed in the lead in to the appeal. Consequently further conferencing between the respective experts has resulted in:
i) agreement between the bushfire experts that each lot has adequate capacity to provide satisfactory asset protection zones (APZ), as called for in "Planning for Bushfires Protection". Also, in terms of the integrated development requirements the NSW Rural Fire Service has issued a conditional Bush Fire Safety Authority.
ii) agreement by the ecology experts that with the imposition of appropriate conditions, the development will not cause undue impact on the components of the ECA, which includes Shale Sandstone Transition Forest (SSTF),
iii) agreement by the environmental engineer's that each lot contains sufficient area for a satisfactory effluent disposal area (EDA), in conjunction with an AWTS treatment system, in lieu of the Ecomax system.

17 . The remaining planning issues then concern the appropriate density for the subdivision and the various public interest considerations relating to impacts on neighbouring properties.

18 . The main aspect of disagreement between the planners is that Mr Falson says that the cumulative effect of aforementioned environmental matters results in Lots 11 and 12 having a maximum subdivision potential of 4 lots rather than the proposed 5.

19 . The basis for this Mr Falson suggested alternative 4 lot subdivision is:

a) “the boundary between lot 901 and 902 to be moved approximately 10 m to the north and with redesigned building envelopes to account for appropriate APZ’s not interfering with ECA. This would result in Lot 901 having an area of approximately 4.3 ha and Lot 902 an area of 1.7 ha.
b) the alternative building envelope on Lot 901 towards the London Place frontage being deleted from consideration.
c) Lot 903 to remain as is.
d) Lot 904 and 905 to be one lot building envelope generally in the location of the two envelopes as indicated on the applicant's plans.
e) The new single lot would have an area of 12.94 ha.
f) In this way the majority of the ECA could be contained on one lot and consistent with Rule (c) of cl 3.3 of the Grose Wold DCP where the ECA is to be retained as undivided as possible, whilst at the same time allowing appropriate building envelope locations and the ability to provide APZ’s and outside the ECA. "


20 . In response to this, Mr George says that this alternative effectively proposes to maintain 3 lots on Lot 12 and providing only one lot on Lot 11. Furthermore he says that as the 5 lot proposal submitted adequately and appropriately addresses the ECA, bushfire safety, domestic waste disposal and provides building envelopes that will allow reasonable separation between dwellings, that are consistent with the residential character, the proposal then merits consent.

21 . The main hurdle then concerns the following development standard contained in cl 41AA (3) of the LEP:

(3) Notwithstanding cl 11, the Council may grant consent to subdivision of land to which this clause applies containing an environmental constraints area only if:
(a) the number of allotments to be created for a dwelling house by the proposed subdivision will not exceed the area of the original lot would, in hectares, provided by 4; and
(b) any allotment created for a dwelling house will have at least one hectare of land that is not within an environmental constraints area .

22 . The applicant has addressed this by way of a SEPP 1 Objection to this development standard because the non complying subdivision component of Lot 12, which creates 3 lots. But application of the development standard allows 10ha/4 = 2.5 or 2 lots rounded. The SEPP 1 objection is contained in the statement of environmental effects and induces that the underlying objectives of this development standard are:

(a) to minimise the impact of the proposed subdivision on the environment of the area and existing watercourses of the subject land;
(b) to ensure that the allotment created can adequately dispose of, on-site any effluent generated by future residential development on its allotment;
(c) to retain any environmental constraints area as undivided as possible;
(d) to ensure that the proposed subdivision does not have any adverse effects on any adjoining environmental constraints area all water calls including any adverse effects on water quality of the Grose River and its tributaries; and
(e) to ensure that the proposed development does not have any adverse effects on scenic quality of the area; and
(f) provides for a dwelling density of one (1) lot per four (4) ha.


23 . This SEPP 1 objection then contains a number of arguments in support of the proposal. Mr Falson has interpreted the underlying purpose of the standard "to control the maximum number of lots in accordance with suitable environmental standards.

24 . Taking into consideration the respective arguments of the planners, I also note Mr George's opinion that the essence of the subdivision is to effectively consolidate the two existing allotments into 20 ha, which is then able to be subdivided into five allotments under cl 41 AA and/or 11(2)(d) of the LEP. Therefore he says the proposed subdivision maintains the allowable density, is primarily designed around the ECA areas giving potential for their effective preservation/management and there are no adverse consequences that flow from effectively transferring a half lot from one existing lot to another.

25 . In my assessment of these competing positions, it seems reasonable to consider the overall impact of the subdivision of these adjoining lots 11 and 12, which contain areas of ECA, i.e. by averaging the areas of adjoining lots which are in common ownership. On this basis, a satisfactory density is achieved as stated by Mr George. Furthermore this subdivision pattern minimises the subdivision of the ECA areas, while still allowing reasonable building envelopes, which permit acceptable bushfire asset protection zones and areas for effluent disposal, as agreed by the specialist experts. Accordingly I consider that the SEPP 1 objection has been made out in this case, because the proposed density enables satisfactory compliance with appropriate environmental standards.

26 . The public interest matters mainly relate to concerns for loss of privacy due to the proximity of new dwellings within the proposed building envelopes, loss of views and impacts from the proposed access ways. Notwithstanding these objections, I note that there was also some other support from neighbours to this proposal.

27 . The loss of privacy is of concern to Mr Palmer because his living areas are located at the rear of his house, which will face any buildings on Lot 904 and possibly Lot 905. However it appears that there will be separation distance in the order of 100 m between the houses, which I consider is reasonable, based on Mr George’s evidence taking into account the opportunities for landscaping on these larger blocks, to achieve privacy.

28 . Mrs Nelson also raised concerns about privacy and view loss. Similarly I accept that there is adequate separation distance between buildings to allow landscaping, so as to maintain the existing residential character, which includes some houses lots, which are lots in close proximity to each other. Regarding the view loss, the site inspection confirmed that any view loss would primarily be from the rear outdoor patio and kitchen area. But these areas are in a degree of cut and there is a pergola over the patio. These two factors restrict the mountain views to such an extent that I do not consider the additional houses will result in an unreasonable incremental change because of the separation and angle of view corridor.

29 . Mr Searle’s main concern was for the over development of Lot 12 and the impact on the ECA. However it seems to me that the imposition of a condition restricting the building envelope to area B, provides reasonable separation so as to maintain the ECA within Lot 901.

30 . With regard to the subdivision of Lot 4, Mr Falson is dissatisfied with the adequacy of the open area for building an ancillary infrastructure on the proposed Lot 402. But the subsequent conferencing by the environmental engineers agreed that there are no problems in establishing an EDA on lots 401 and 402. This is on the basis that the sewage treatment system comprises an Aerated Wastewater Treatment System (AWTS).

31 . Another of Mr Falson’s concerns is likely impact on the ECA. However I note that the bushfire management consultants agree that adequate asset protection zones can be provided on these lots and the ecologists agree that there is unlikely to be a significant effect on treatment plants and species, providing specified measures are followed. This includes weed removal and maintenance of degraded parts of the ECA. Under these circumstances, I consider that appropriate conditions can be imposed on the subdivision of Lot 4 which result in a minimal environmental impact.

Conclusions
32 . Having considered the evidence, the submissions and undertaken view, I consider this application merits conditional consent.

33 . The provisions of LEP 1989 allow for subdivision of this rural land, providing the environmental impacts are considered to be acceptable. In this case, the main issue concerns the cumulative impact on the ECA, of the subdivision of the consolidated Lots 11 and 12 into 5 new lots, which I accept is consistent with the allowable density.

34 . Insofar as the applicant depends on a SEPP 1 objection to this density control, I consider that in this case, it is reasonable to consider the averaging effect of the areas of these adjoining lots 11 and 12. Consequently the consideration of this SEPP 1 objection is required in respect of the additional allotment on Lot 12. I am satisfied from the supporting details in the objection and the further expert evidence presented, that the underlying objective “to control the maximum number of lots in accordance with suitable environmental standards” as stated by Mr Falson is satisfied. Therefore I consider the SEPP 1 objection is well founded and should be allowed.

35 . It was agreed that this environmental constraints area is reasonably well defined on the subject property and I note that the objectives for the management of an environmental constraints area are:

(a) to protect areas of threatening vegetation;
(b) to provide a buffer around areas of ecological significance;
(c) to protect environmentally sensitive land areas of higher scenic value in the City; and
(d) to restrict development of land that is inappropriate for development by reason of its physical characteristics or bushfire risk.

36 . Clause 41 AA (4) allows subdivision consent to be granted if:

(a) the pattern of allotments created by the proposed subdivision and the location of any proposed buildings on those allotments will minimise the impact on any Cumberland Plain Woodland, any land within an environmental constraint area and watercourses; and …


37 . In my assessment then, there has been detailed investigation of the impacts of building on these new lots, which provide adequate bushfire asset protection zones that the ecology experts agree will not have a significant impact on the ECA. I accept that sections of the designated ECA are degraded, due to past grazing activities and that the conditions of consent provide for compensatory measures to address this. As the proposed subdivision does not intend to fragment the existing environmental constraint areas, I am satisfied that the objective to minimise impact on the ECA is achieved.

38 . Insofar as there was some argument concerning the adequacy of the designated 2000 m2 building envelope footprints, I am satisfied to rely on Mr George’s evidence, that the proposed envelopes are reasonable in this case, taking into account the revised AWTS wastewater system.

39 . For these reasons then, I am satisfied that the combined subdivision of Lots 11 and 12 should be allowed, subject to the detailed conditions required by various experts. This being the case, the appeals in respect of the individual subdivision applications for Lot 11 and Lot 12 are dismissed. Furthermore the subdivision of Lot 4 should be granted conditional consent, because the suggested conditions control environmental impacts to a suitable level in this area, according to agreed evidence of the respective experts.

Court orders
40 . Therefore the orders of the Court are:

1. Appeal No. 11002 of 2003 is dismissed.
2. Appeal No. 11041 of 2003 is dismissed.
3. Appeal No. 11040 of 2003 is upheld.
4. Appeal No. 11147 of 2003 is upheld.
5. Development consent is granted to development application No. 0747/03 for a 5 lot subdivision of Lots 11 and 12, DP 786325, in accordance with the conditions in Annexure A.
6. Development consent is granted to development application No. 0823/03 for a two lot subdivision of Lot 4, DP 786325, in accordance with the conditions in Annexure B.
7. The exhibits may be returned to except for Exhibits 1, 3, 4, 5, 6, 13, A, B, C, D, N and P.

___________

R Hussey
Commissioner of the Court
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