J. S. Moran v Bega Valley Shire Council

[2008] NSWLEC 1131

Land and Environment Court

of New South Wales

CITATION:	J. S. Moran v Bega Valley Shire Council [2008] NSWLEC 1131
PARTIES:	APPLICANT Moran, Janine Sue RESPONDENT Bega Valley ShIre Council
FILE NUMBER(S):	11313 of 2007
CORAM:	Hussey C
KEY ISSUES:	:- Development application, subdivision, minimum lot size, environmental capacity, bushfire, site constraints, setback
LEGISLATION CITED:	E P A & Act 1979 Lower South Coast Regional Plan 1 & 2 Bega Valley LEP 2002
DATES OF HEARING:	7/02/2008
DATE OF JUDGMENT:	8 April 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr A Warren Andrew Warren Associates Solicitor RESPONDENT Mr D Rideaux Clark Rideaux Solicitors Solicitor

JUDGMENT:

1

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

8 April 2008

11313 of 2007 J S Moran v Bega Valley Shire Council

JUDGMENT

1. Ms Moran has appealed against council’s refusal of a 2-lot rural/residential subdivision at 67 Nutleys Creek Road, Bermagui. The proposed new lots (as shown in Attachment 1) are:

· Lot 31; containing an existing cottage and having a proposed area of 5000 sq m. It is triangular-shaped and has a southern boundary of approximately 70m and frontage of 151m.

· Lot 32: with a proposed area of 5000 sq m, a southern boundary of 70m, a northern boundary of 90m and a frontage of 56m.

2. The existing allotment is described as Lot 1 DP 1096557. It is situated on the eastern side of Nutleys Road, to which it has a 207m frontage. The lot is triangular shaped and has an area of 10000 sq m.

3. Currently there is a small timber cottage located in the northern corner (narrowest part) of the site. The land is dominated by a strand of spotted gums, which has been extensively under-scrubbed. The lot slopes from west to east with a gradient in the order of 10 -12%.

4. The surrounding area has been developed for rural residential pursuits, with lots varying in size from 4000 sq m up to 9 ha. The land to the east contains extensive vegetation.

5. The issues identified for the appeal involve:

· The proposed development does not comply with the minimum lot size/density controls.
· Adverse impacts on vegetation by tree removal.
· Adverse impact on landscape quality.

Planning controls.

6. The site is subject to the following controls:

· Lower South Coast Regional Plan No 1 & 2.

· State Environmental Planning Policy 71 – Coastal Protection.

· Bega Valley Local Environmental Plan 2002; under which the land is zoned Rural 1( c ) and the proposal is permissible with consent.

· DCP No 2 – Subdivision Standards.

· DCP No 5 – On-Site Sewage Management.

· DCP No 6; - Minimum Setbacks to Roads and Nominated Roads and Waterways.

· DCP No 9 – Rural Residential Development.

The evidence.

7. Detailed evidence on behalf of the council was presented by:

· Mr M Fowler; Town planner,

· Mr K Tuck; Town planner.

8. For the applicant evidence was presented by:

· Mr P Hume; Consulting town planner,

· Mr M Collins; Surveyor.

9. The threshold issue concerns the size of the proposed allotments. The Court was informed that the existing Lot 1 was granted consent by the Department of Planning in September 2005. That consent arose out of a subdivision application for 4 lots, which the DoP conditionally approved, subject to the deletion of one of the lots, thereby allowing:

· ‘B’ (Lot1); the subject triangular-shaped lot with an area of 10000 sq m,

· ‘C’; adjoining lot to the south with area of 5300 sq m,

· ‘D’; Adjoining ‘C’ and having an area of 7420 sq m.

10. Clause 19 of the LEP provides that consent must not be granted to a subdivision in the 1(c) zone if the proposed allotments have an area of less than 5000 sq m. The LEP requires this clause to be read in conjunction with the provisions of DCP 9. Cl 19 (2 ) of the LEP contains a number of matters to be taken into consideration before granting consent. The following are relevant:

a) the ability of the land to accommodate on-site disposal of household waste water,
(f) the nature and topography of the land having regard to the density of subdivision,
(h the desirability of providing a range and mix of allotment sizes,
(i) the need to maintain a semi-rural character in the area, and
(j) the purpose for which the land is to be used after subdivision.

11. Clause 19(3) requires that consent authority to have regard to a number of matters including:

c) whether the subdivision will enable the subsequent erection of dwelling houses in a manner that appropriately relates dwellings to each other and to the topography of the land, and
d) the risk of bushfires, and
e) the extent to which the layout and orientation of allotments and subsequent siting of dwelling houses on those allotment will minimise potential visual, nuisance or other conflicts relating to existing and potential development on land in an adjoining zone, and …

12. Reference to DCP 9 identifies the relevant controls for rural residential development. The aims of this plan are to:

· Ensure that rural residential development (particularly subdivision) is appropriate to the landscape.
· Encourage ecologically sustainable development principles in rural residential development.
· Generally outline development standards for rural residential development.

13. The determination of allowable lot sizes depends on the sum of a number of particular site feature scores, which are listed in the “Assessment Criteria Table” (ACT). This is then assessed against the Table 2 suggested minimum lots sizes. Relevantly,

Table 2 provides:
Range of scores Minimum Lot Size
8 to 15 5000 sq m
16 to 20 5000 sq m to 1 ha.
21 to 24… 1ha to 1.5 ha…

14. The criteria assessment includes several matters, to which a subjective assessment is made to attain the total score. These matters include stream flow conditions, slope inclination, vegetation, fire hazard, location, external road access and service availability.

15. Applying the assessment criteria table to the subject application, the respondent calculated a score of 24, which indicates a minimum lot size in excess of 1 ha. However, the applicant calculated a score of 19. Consequently, the applicant contends that this is within the 16 to 20 range, thereby satisfying the requirements for a minimum size lot of 5000 sq m.

16. During the appeal, the planners reviewed the various assessment criteria to identify their differences. Interestingly, the ACT provides specific factors for a range of variations within the particular criteria. This is illustrated by reference to the ‘Slope inclination’ criteria, which provides:

Slope Factor
0 to 10% 1
10 to 20% 3
20 to 25% 6

17. Whilst there is some variation in the subject land slope, it was apparent from field checks that there was a predominant slope in the order of 10%. Accordingly, the respondent contended that a factor of 3 should be applied. Against this, the applicant contended the factor should be 1.

18. Another example of the subjective assessments is with the vegetation criteria, which provides:

Existing level of disturbance Factor
Complete clearing 1
Extensive clearing 3
Open woodland 7
Limited clearing to no effective disturbance 10

19. In the subject assessment, the respondent considers the site comprises open woodland warranting a factor of 7. Against this, the applicant contends it is extensively cleared, resulting in a factor of 3.

20. In light of these disparate positions, it seems to me that as these controls are contained within the DCP, they are guidelines in the assessment process for subdivisions. Consequently they are not development standards and a reasonable degree of discretion can be exercised in their application.

21. Under these circumstances then, the primary matters such as the slope and vegetation type require an initial subjective assessment. It then appears reasonable and a practical approach to interpolate the numeric factors at the boundaries of the designated matters. In the case of the current 10% slope assessment, I consider the appropriate “interpolated” factor for the slope is 2. Whilst the council planners agreed that this was a practical approach, nevertheless, they said that the usual application was to use only the stated numbers.

22. As I have noted, this analysis is part of the subdivision decision-making process to determine the desirable minimum lot sizes. However, Table 2 then allows discretion for a range of lot sizes, within the different range of criteria scores. Interestingly, the applicant has interpreted this table on a ‘stepped basis’, whereby any application falling within the range of scores is entitled to the minimum lot size, i.e. the score of 19 suggests a minimum lot size of 5000 sq m.

23. However, it appears to me that the overall process involves several subjective assessments, which can be undertaken on the basis of progressive linear scale, as opposed to the stepped process. This approach is basically that as a higher score is determined, then a correspondingly larger lot size is desirable. In the subject case, on the applicant’s initial assessment the score is 19. If, the slope criteria of 10% is interpolated to a score of 2, the total score would be 20. Table 2 suggests to me that the resultant minimum lot size would be in the order of 1ha. I do not accept the applicant’s approach that a score of 19 or 20 suggests a minimum lot size of 5000 sq m, which is at the lowest level of the band, is reasonable.

24. From my observations at the view, consideration of the evidence, particularly the discussion by the experts on their agreements and differences in the joint criteria assessment in exhibit ‘F’, I am satisfied that these lots have a score of at least 20. Therefore, the reasonable outcome is that compliance with DCP 9 would require a minimum lot size in the order of 1 ha to address the site environmental constraints.

25. Apart from this, I accept that there are other merit matters to be considered, together with those listed in cl 19(3), to which regard is to be given. It is apparent that the likely purpose of the subdivision is to permit the future erection of an appropriate dwelling. Whilst the existing cottage exists in the northern corner, it is in poor condition and subject to relatively high risk from bushfire due to its proximity to the bushland. I have therefore considered the application on the basis of whether it is of appropriate size to enable future erection of a suitable dwelling.

26. Accordingly, consideration was given to the opportunities for a suitable building footprint for each new lot. A notional building footprint of 10m x 18m was adopted because this applies to residential lots. Whilst this area is not specified for the rural-residential area, it nevertheless gives an indication of the minimum area for a dwelling. In this regard, I accept it is likely a larger footprint is appropriate to allow for other improvements usually associated with rural-residential dwellings, e.g. larger detached sheds.

27. In any case, a future dwelling would be subject to a number of development controls, including minimum setbacks, tree retention and provision of adequate bush-fire protection zones.

28. However, the triangular lot shape, relatively shallow depth of the lots, the position of existing trees and proximity to the dense woodland adjacent to the eastern boundary create significant constraints in achieving a satisfactory building footprint. Notwithstanding this, I accept it is probable that a reasonable dwelling could be erected on lot 32, although it would likely require removal of several of the mature trees.

29. The main concern is whether a reasonable dwelling could be erected on lot 31. The woodland along the eastern boundary requires a setback distance of 35m (agreed by the experts) to provide an effective bush fire asset protection zone.

30. DCP 3 then specifies minimum setbacks for buildings to public roads, which is 20m in the rural zones and 7.5m in residential zones. Provision of the aforementioned 35m bushfire setback then means that the notional (18m x 10m) footprint can only achieve an average road setback of 15m, due to the shape of the land. In this averaging process, the northern part of any such dwelling could only achieve a setback in the order of 10m. Consequently, this lot does not comfortably fit a minimal residential building footprint.

Conclusions.

31. Having considered the evidence, the submissions and undertaken a view, I consider this application represents an overdevelopment of the site and does not merit consent.

32. The planning controls list a number of matters to be considered in the assessment of the environmental capacity of the land for subdivision. One of these controls is the ‘Assessment Criteria Table’ from which I am satisfied the subject land has a score in the order of 20. This indicates to me, in accordance with the aforementioned interpolation allowance, that a minimum lot size in the order of 1 ha is required in the subject circumstances. As the proposed 5000 sq m lots are substantially undersized on this basis, I consider this a negative and unsatisfactory aspect of the proposal.

33. I also consider there would be considerable difficulty in erecting an appropriate dwellings on both lots, whilst maintaining the semi-rural residential character. This is notwithstanding that such dwelling could be 2-storey. The site constraints of the triangular shape and extensive tree cover necessitate the 35m rear setback for bushfire protection, which then results in a non-complying (15m average) front road setback. Furthermore, any such dwelling is likely to require the removal of several mature trees, which contribute positively to the character of the area. Accordingly, I do not consider a dwelling in this location would be consistent with the character of the area and that it would present as an overdevelopment of the site.

34. In my assessment, this proposal does not demonstrate reasonable compliance with the provisions of cl 19 of the LEP and associated DCP controls to merit consent.

Court Orders.

1. The appeal is dismissed.

2. The development application (2007.0202) for a 2 – lot subdivision of Lot 1 DP 1096557, 67 Nutleys Creek Road, Bermagui is refused.

3. The exhibits may be returned except for 1, A and E.

___________________
R. Hussey
Commissioner of the Court