Jamison Investments Pty Ltd v Penrith City Council

[2009] NSWLEC 1304

Land and Environment Court

of New South Wales

CITATION:	Jamison Investments Pty Ltd v Penrith City Council [2009] NSWLEC 1304
PARTIES:	APPLICANT Jamison Investments Pty Ltd RESPONDENT Penrith City Council
FILE NUMBER(S):	10335 of 2009
CORAM:	Pearson C
KEY ISSUES:	DEVELOPMENT APPLICATION :- dwelling house minimum allotment size SEPP 1 objection
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1 - Development Standards Sydney Regional Environmental Plan No 13 - Mulgoa Valley Penrith Local Environmental Plan 2002 (Villages of Mulgoa and Wallacia)
CASES CITED:	Wehbe v Pittwater Council (2007) 156 LGERA 446 Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 Precise Planning v Wollondilly Shire Council [2005] NSWLEC 283
DATES OF HEARING:	8 and 9 September 2009
DATE OF JUDGMENT:	17 September 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr A Caughey, agent RESPONDENT Mr M Fraser, barrister SOLICITORS Mr M Bullivant

JUDGMENT:

- 17 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

17 September 2009

10335 of 2009 Jamison Investments Pty Ltd v Penrith City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Penrith City Council (the council) of development application 09/0314 for the construction of a single-storey dwelling on lots 21, 22, 23 and 24 DP 2721, No 341a Littlefields Road Mulgoa (the site).

2 Lots 21-24 are four of 34 lots in DP 2721, all of which are owned by Jamison Investments Pty Ltd (the applicant). The 34 lots range in size from 486 sq m to 644 sq m, and the total area is 1.85ha. The combined area of the four lots which are the subject of the application is 2,439 sq m. Because this is less than the 10ha specified as the minimum lot size for the erection of a dwelling house by cl 14(2) of the Sydney Regional Environmental Plan No 13- Mulgoa Valley (SREP 13), the development application was accompanied by an objection made under State Environmental Planning Policy No 1 – Development Standards (SEPP 1).

3 The Council refused the application on 29 June 2009. The Council did not support the SEPP 1 objection, and determined that the application be refused because it did not comply with the controls in SREP 13 and the draft principal Local Environmental Plan; because the proposed site was not suitable for the development based on the requirement for a pump out sewerage system and the removal of trees; and the proposal was not in the public interest as it would set an undesirable precedent.

Issues

4 The issues as identified by the Council in its Statement of Facts and Contentions are as follows:

Minimum Lot Size for Dwelling House : the proposal provides for approximately 2.5% of the minimum lot size required under SREP 13; and is inconsistent with the provisions of the draft LEP;
SEPP 1 objection : the SEPP 1 objection submitted with the application has not demonstrated that compliance with the development standard is unreasonable or unnecessary or that compliance would hinder the attainment of the objects specified in s5(a)(i) and (ii) of the Act; Council disputes that the zone objectives are achieved and contends that the zone objectives are not the sole underlying objectives of the standard
Trees : the extent of tree removal is not supported
Precedent : The site is situated in the immediate locality of approximately 90 individual undersized allotments subject to clause 14(2); support of the current proposal would set a precedent that could enable up to 22 dwelling houses to be constructed in an area within which there are currently three dwelling houses.
Public interest : the proposed development is not in the public interest; the Council has consistently sought to uphold the 10ha minimum development standard, and in doing so has represented to the public that it expects that standard will be complied with.

5 At the hearing counsel for the Council submitted that there was an additional issue, namely whether a SEPP 1 objection was also required in relation to the development standard specified in clause 13 of SREP 13, which provides a minimum of 10ha for subdivision. The parties agreed that the issue of whether the objection under SEPP 1 in relation to cl 14 of SREP 13 should be upheld should be dealt with first, and if determined in favour of the applicant the additional issue would then be the subject of argument and determination. If the SEPP 1 objection is not upheld, there is no power to approve the development: Wehbe v Pittwater Council (2007) 156 LGERA 446.

The site and its locality

6 The site is located on the northern side of Littlefields Road, off Mulgoa Road, approximately 350 m north-east of Mulgoa Village. The proposal incorporates the consolidation of four lots from 34 existing lots in common ownership to provide an irregular L-shaped area of land with a frontage of 11.58 m to Littlefields Road, a depth of 80.9 m, and a total area of 2,439 sq m. The 34 lots are bound on three sides by unformed roads: to the west by Frederick Road, to the east by Church Road, and to the north by Thornton Road. There is an existing dwelling house to the north west of the site.

7 The site is undulating, with a cross fall of 9 m from the north western boundary to the south-eastern boundary. The site and surrounding area to the north and east is lightly forested, and on the site there are 21 mature eucalypt trees (Eucalyptus tereticornis “Forest red gum”); the proposal as put to council included the removal of 17 of those trees. The understorey has been cleared.

8 To the west of the site is Mulgoa Park, council owned land on the intersection of Mulgoa Road and Littlefields Road which includes a park, tennis courts and hall. To the south of the site, on the other side of Littlefields Road, is a recent 21-lot rural residential subdivision. The topography is undulating and the area as a whole falls significantly to the south east. Development to the north and east of the site is predominantly low scale rural/residential development containing pockets of remnant native vegetation.

9 The site, and associated lots adjoining the site owned by the applicant, have been the subject of a number of development applications. DA08/1010 for a proposed veterinary surgery on the site was approved on 16 February 2009. DA09/0163 for a proposed childcare centre on an adjoining allotment west of the site was refused on 5 May 2009. A further development application for a childcare centre on that allotment (DA09/0737) was made on 4 August 2009. DA09/05666 for an art gallery on an allotment between the proposed dwelling house location and Littlefields Road was lodged with Council on 19 June 2009.

Planning controls

10 Sydney Regional Environmental Plan No 13- Mulgoa Valley (SREP 13) applies to the site. The objectives of SREP 13 are as follows:

3 Aims, objectives etc

(1) The general aim of this plan is to ensure that the development of the Mulgoa Valley is guided to maximise the benefits and conservation of its resources in its metropolitan context, especially its rural landscape and heritage resources.
(2) The specific aims of this plan are:
(a) to identify those buildings, works, relics and places of historic, architectural, cultural, scientific, archaeological, aesthetic and natural significance which comprise the environmental heritage of the Mulgoa Valley,
(b) to ensure conservation of items of environmental heritage,
(c) to ensure protection of natural ecological elements within the valley, especially areas of ecological significance,
(d) to identify and protect the Mulgoa Nature Reserve to be established by the National Parks and Wildlife Service,
(e) to conserve the rural landscape of the valley,
(f) to protect the setting of the Mulgoa village within the rural landscape,
(g) to allow orderly and economic development which is compatible with the rural and natural landscape and heritage of the valley,
(h) to protect and utilise the tourism and recreation potential of the valley where it is consistent with the conservation of its rural and natural landscape, heritage and agricultural qualities,
(i) to protect the agricultural capability of prime agricultural land, and
(j) to enable rural residential development where it is consistent with the conservation of the rural and natural landscape, heritage and agricultural qualities.

11 The site is zoned 1 Rural Conservation. Dwelling houses are permissible with consent in zone 1 Rural Conservation. The objectives of the zone are:

1 Objectives of zone

The objectives of this zone are:
(a) to conserve the rural, heritage and natural landscape of the valley,
(b) to provide for the development of agricultural, residential, tourist and recreational land uses which are compatible with the rural and natural landscape and heritage of the valley,
(c) to protect the visual amenity of the valley,
(d) to avoid fragmentation and alienation of prime agricultural land,
(e) to maintain the low density of rural settlement, and
(f) to allow for the development and maintenance of the Warragamba—Prospect water supply facilities.

12 Clause 12 of SREP 13 sets out criteria to be applied in granting development consent.

13 Clause 14 of SREP 13 provides:

14 Dwelling-houses

(1) A person may, with development consent, erect a dwelling-house on an allotment of land within Zone No 7 if a dwelling-house could have been erected on that land, either with or without consent, immediately before the date on which this plan took effect.
(2) A dwelling-house may not be erected on an allotment of land having an area of less than 10 hectares if that land is within the area identified as Area B on sheet 2 of the map.
(3) No more than one dwelling-house is permitted to be constructed on each allotment of land.

14 The site is identified as being within Area B in an amendment to SREP 13 made in 1988. Area B was described in the report to council of 29 June 2009 in the following terms:

Sheet 2 of the ‘map’ contained within SREP 13 identifies an area of Mulgoa Valley being defined as Area B, namely two (2) portions of land, one totalling some 4.9ha in area (within which the site in question is located) and another totalling some 57ha in area. Upon closer examination of these areas, it can be seen that those areas defined as Area B exhibit unusual subdivision patterns, and undersized allotments. The areas identified as Area B are ‘paper’ subdivisions, created during the early settlement of Mulgoa Valley.

15 Sydney Regional Environmental Plan No 20- Hawkesbury Nepean River applies to the site.

16 Land to the south of the site is subject to Penrith Local Environmental Plan 2002 (Villages of Mulgoa and Wallacia) (the LEP 2002), under which the land immediately to the south (including the recent 21 lot subdivision) is in Zone 1 (vr)—Village Residential, while land to the south east is in Zone 1 (rc)—Rural Conservation (Residential).

17 The Council has prepared a draft principal local environmental plan for the local government area, Draft Penrith Local Environmental Plan 2008 (the draft LEP 2008). The draft LEP 2008 has been placed on exhibition and submissions are currently under consideration. The site is zoned E3 Environmental Management under the draft LEP 2008. Dwelling houses are permissible with consent in the E3 Environmental Management zone. The objectives of zone E3 are:

-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 protect and enhance the open rural landscape of the Mulgoa Valley, including its agricultural qualities and its cultural heritage values
-To ensure development in the Mulgoa Valley protects and utilises the tourism and recreational potential of the Valley, and is consistent with protecting its rural and natural landscape, heritage and agricultural qualities
-To minimise conflict between land uses within the zone and land uses within adjoining zones
-To ensure land uses are compatible with the environmental capabilities of the land
-To preserve and improve natural resources through appropriate land management practices
-To ensure traffic generating land uses are suitably located so as not to adversely affect the safety, efficiency and rural character of roads, particularly Mulgoa Road
-To ensure views and vistas from main roads, particularly Mulgoa Road, heritage items and other vantage points are not adversely affected
-To ensure development does not unreasonably increase the demand for public services or public facilities.

18 Clause 4.6 of the draft LEP 2008 is as provided in the Standard Instrument (Local Environmental Plans) Order 2006 and enables consent for development that contravenes a development standard. Clause 6.8 of the draft LEP 2008 applies to the site, and relevantly provides:

6.8 Dwelling houses on certain land in Llandilo and Mulgoa
(1)…
(2) Development consent must not be granted for the erection of a dwelling on land shown as “Clause 6.8(2) land” on the Clause Application Map unless the land has an area of at least 10 hectares.
(3) If 2 or more lots need to be consolidated to achieve a minimum area under subclause (1) or (2), a consolidation plan must be lodged before or at the time of applying for development consent for the construction of a dwelling.
(4) The development standards specified in this clause are excluded from the operation of clause 4.6.

Evidence

19 The hearing commenced on site with a view. Expert evidence was provided by Mr Vince Hardy, urban planner, for the applicant, and Mr Peter Wood, Development Assessment Co-ordinator, for the council. A substantial part of their evidence concerned the issue of precedent. This evidence was relevant both to the SEPP 1 objection, and to the separate issue of precedent raised by the council. There was one letter of objection from the owners of land to the north west of the site; the significance of the objection is discussed below.

SEPP 1 Objection

20 This matter has proceeded on the basis that while on separate titles, the four lots which constitute the site are appropriately regarded as an “allotment”, in the sense of being a distinct or identifiable area of land (Issa v Burwood Council (2005) 137 LGERA 221 at 230), and that unless the applicant’s SEPP 1 objection is upheld, development consent cannot be granted in breach of cl14(2) of the SREP 13. The approach to be adopted to consideration of whether the SEPP 1 objection should be upheld is set out by Lloyd J in Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at [25]-[26]:

25. The judgment of Cripps J in Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported) has been described as a classic statement of the approach to be taken when considering an objection under SEPP 1 (see, for example, the judgment of Talbot J in Memel Holdings Pty Limited v Pittwater Council (2000) 110 LGERA 217 at 220). In the Hooker Corporation case Cripps J said (at 6):

It has been established by a series of decisions in this Court that generally in order to maintain an objection that compliance with a standard is unreasonable or unnecessary, it is first necessary to discern the underlying object or purpose of the standard. To found an objection it is then necessary to satisfy the Court that compliance with the standard is unnecessary or unreasonable in the circumstances of the case. Although the court has urged a generous application of SEPP No. 1 and has repeatedly declined to attempt exhaustively to define the limits of the dispensing power and, in particular, what is embraced by the expression “circumstances of the case”, it is now established that it is not sufficient merely to point to what is described as an 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. ... Furthermore it is now established that although the discretion conferred by SEPP No. 1 is not to be given a restricted meaning and its application is not to be confined to those limits set by other tribunals in respect of other legislation, it is not to 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.

26. In applying the above-mentioned judgment, it seems to me that SEPP 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 section 5(a)(i) and (ii) of the EP&A Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection is well founded? 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 .

21 The parties accept that the minimum lot size of 10ha in cl14(2) is a development standard. There was disagreement as to what is the underlying purpose or object of the development standard. Clause 14 does not in terms set out what the purpose of the development standard is. In the SEPP 1 objection, Mr Hardy submitted that the underlying purpose of the development standard in clause 14(2) is reflected in the objectives of the Zone No 1 Rural Conservation. In his statement of evidence filed on 6 August 2009, Mr Hardy states that in the absence of specific development standard objectives the zone objectives should be deferred to in assisting in determining the need for the standard itself. In oral evidence Mr Hardy accepted that the aims and objectives of the SREP 13 as provided in cl3 might also be relevant in determining the underlying objective of the development standard.

22 In his statement of evidence filed on 14 August 2009 Mr Wood identified a number of circumstances which he argued demonstrate the necessity of maintaining the development standard in this instance, including the circumstances that clause 14 it is not a general development standard but a specific provision applying to this site and directly adjoining properties, and that the intent of the clause is to provide a minimum site area of the erection of a dwelling consistent with lot size requirements of all other land zoned 1 rural conservation, thereby meeting the zone objectives. The report to council for its meeting of 29 June 2009, which was authorised by Mr Wood, states (following on from the description of Area B in paragraph 14 above):

From these observations, it can be inferred that the purpose of Clause 14(2) was to force consolidation of these undersized and unusable allotments where a residential dwelling is proposed and to prevent further residential development in these areas.

23 In his oral evidence Mr Wood accepted that a purpose of the development standard was to force consolidation of the undersized lots, and stated that this was not the sole objective of the development standard; the development standard goes further than consolidation of the lots, and its effect has been to maintain the lots in one ownership. Mr Wood stated that the underlying purpose of cl 14 can be identified by reading it in its context, together with clauses 13 and 14A.

24 I agree with the broader approach adopted by Mr Wood that the underlying purpose or object of the development standard in cl14(2) is be discerned from reading cl14 in the context of the SREP 13 as a whole, which includes consideration of the background to the identification of land within Zone 1 Rural Conservation as Area B. To focus on the zone objectives alone as suggested by Mr Hardy would be of limited assistance, since the development standard at issue in the present proceedings applies to only some of the land within the zone.

25 Clause 14(2) only applies to the land within Area B in Zone 1 Rural Conservation; the general control is provided in cl14(3), namely that no more than one dwelling house can be constructed on each allotment of land. The area included in Area B by the amendment of SREP 13 in 1988 comprises a total of some 90 separate lots held by four different owners (one of which is the council, in relation to Mulgoa Park), including the 34 lots owned by the applicant. The objectors to the proposal are one of these four owners. The evidence of Mr Wood, which was not disputed on this point, was that these 90 lots are a “paper” subdivision dating back to the late 1800s. The first control incorporating the minimum lot size requirement was Penrith Interim Development Order 73, gazetted in 1977, which was followed by Penrith Interim Development Order 93 in 1980 and then SREP 13 in 1987. The Draft LEP proposes similar controls.

26 While cl 14 does not expressly state the purpose of the development standards imposed, cl 13 (Subdivision) does, in particular cl 13(3) which uses terms that restate objectives (c), (d) and (e) for zone 1 Rural Conservation:

13 Subdivision
…
(3) In order to maintain a low density of rural settlement, to protect the visual and scenic amenity of Mulgoa Valley, and to prevent fragmentation of inherently productive agricultural and environmentally sensitive land, the consent authority shall not grant consent to an application for subdivision of land within Zone No 1:
(a) identified as Area A on sheet 2 of the map, if the allotments created will be less than 20 hectares in area, and
(b) being other land, if the allotments created will be less than 10 hectares in area.

27 The objectives both of the plan and the zone include ensuring that residential development is compatible with the rural and natural landscape of the valley, protecting visual amenity, and maintaining low density of rural settlement. The development standard in cl 14(2) is a response to the ‘unusual’ subdivision pattern and undersized allotments presented in Area B, and its underlying purpose is to maintain low density of rural settlement in the Mulgoa Valley, and thereby ensure that the rural and natural landscape of the Valley is maintained.

28 Clause 7 of SEPP 1 requires consideration of whether granting consent to this application would be consistent with the aims of SEPP 1. The aims of SEPP 1 are set out in cl 3, and are to provide flexibility in the application of planning controls in circumstances where strict compliance with those standards would, in a particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in s5(a)(i) and (ii) of the Act. Those objects are to encourage the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, and the promotion and co-ordination of the orderly and economic use and development of land.

29 The applicant has relied on two main arguments to support its objection that compliance with the development standard is unreasonable and unnecessary. The first is that the development is not inconsistent with, or otherwise achieves, the relevant zone objectives; this argument is supported in part by the fact that the council has approved the exact same built form in its approval of the veterinary surgery on the site. The second argument as put in submissions was that the current zoning is inappropriate.

30 In the SEPP 1 objection, Mr Hardy stated that the development is not inconsistent with zone objective (a) because it has limited ability to compromise the nominated values of the Mulgoa Valley and is not inconsistent with the relevant objective; and use of the proposed architectural design elements would ensure that the development is compatible with a nominated values of Mulgoa Valley for the purposes of objective (b). In relation to objective (c), the new built form would be provided in a location that is visually screened from public domain areas by generous setback and existing remnant vegetation stands, and further that the proposed dwelling is sited in exactly the same location as the approved built form for the veterinary surgery on the site. The development would not require insertion of any new built forms into the landscape. The development does not seek to further fragment landholdings as identified in objective (d). In relation to objective (e), while the broader Mulgoa Valley provides a low-density settlement pattern, the site is located adjacent to a village type area presenting a relatively dense settlement pattern. While SREP 13 sought to conserve important rural and scenic values of the broader valley and village, there has been subdivision and development of land immediately to the south of the subject site since the LEP 2002 was introduced. Objective (e) has been rendered largely irrelevant given the new urban form and character of the adjacent lands. In relation to objective (f) the site is well removed from the Warragamba-Prospect water supply facilities. Mr Hardy concluded that the proposed development satisfies all the underlying objectives of the relevant development standard and that therefore strict compliance with the development standard is unreasonable and unnecessary.

31 In his statement of evidence filed 7 August 2009 Mr Hardy states that council accepted that the veterinary surgery, which provides the same built form, was consistent with the relevant zone objectives. The objectives of the zone are met and as a result strict numerical compliance with the development standard would not necessarily result in a superior development or planning outcome. In his oral evidence Mr Hardy pointed to there being many lots in the broader area of SREP 13 varying in size from 8ha through to 900sq m with dwelling houses approved on them, as establishing that it is possible to achieve the zone objectives.

32 In his statement of evidence filed on 14 August 2009 Mr Wood identified a number of circumstances which he argued demonstrate the necessity of maintaining the development standard in this instance. Those circumstances are:

-Clause 14 it is not a general development standard but a specific provision applying to this site and directly adjoining properties;
-the intent of the clause is to provide a minimum site area of the erection of a dwelling consistent with lot size requirements of all other land zoned 1 rural conservation, thereby meeting the zone objectives;
-the application proposes a significant departure from the development standard with 2,439 sq m representing only 2.4% of the minimum 10 ha requirement;
-the land has been subject to a 10 ha minimum lot size under all prior planning instruments applying to the site dating back to 1977;
-the applicant has demonstrated an intention for further development of the area with other past and current development applications which may also yield potential future residential sites no different to this one;
-all lands subject to the development standard are bounded by formed and unformed roads which separate ownership into distinct, defined areas. Approval of additional individual dwellings and subsequent consolidation is effectively a re-subdivision creating new undersized residential lots;
-the draft LEP proposes to maintain a 10 ha requirement; the exceptions clause does not apply to this requirement and SEPP 1 does not apply to land to which this plan is proposed to apply;
-the site sits north of Littlefields Road which forms an effective definitive physical boundary and buffer between the more urban land of Mulgoa village and rural land to the north;
-approval of the development would set an undesirable precedent creating the potential for many resident land owners of much smaller areas than is presently the case.

33 Both Mr Hardy and Mr Wood addressed the question of whether upholding the SEPP 1 objection in this instance would establish a precedent for other development on land within Area B. In his statement of evidence Mr Hardy states that having regard to lot configuration, vehicle access and the intent of landowners, approval of the subject development could be considered to establish a precedent for no more than three additional dwellings on the lots in that part of Area B where the site is located, as shown in Figure 1: Analysis of Additional Dwelling Potential in his statement of evidence. There was no certainty that these opportunities would be achieved as individual proposals would have to be assessed on their merits, and even if they were, the number of additional dwellings is small, the overall impact would be low, and would still allow zone objectives to be satisfied. There was in any event a small window of opportunity as once the draft LEP 2008 is made there will be no possibility of varying this development standard. In oral evidence Mr Hardy rejected the proposition that the areas the subject of the development applications for a child care centre and gallery could also be potential dwelling houses, or that there were potentially other areas for dwelling houses on land owned by the applicant. Mr Wood’s evidence was that the areas were similar in terms of topography and access; and the applicant has registered a 6m wide right of carriageway from the unformed road Frederick Street across five of the lots in the 18 lots to the north west of the site. Mr Wood referred to the objection made to the development proposal, which he said was based on an expectation held by those owners that their current lifestyle would be maintained, and that if the standard were not upheld and their lifestyle was impacted there was a possibility that they might seek to add a dwelling house on their land.

34 In Wehbe v Pittwater Council (2007) 156 LGERA 446 the Chief Judge summarised a variety of ways in which a SEPP 1 objection might be well founded and be consistent with the aims set out in cl3 of SEPP 1. The first argument relied upon by the applicant in these proceedings is that described by Preston J as the most commonly invoked way to establish that compliance with the development standard is unreasonable or unnecessary, namely because the objectives of the development standard are achieved notwithstanding non-compliance with the standard:

43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).

35 I am not persuaded that the proposed development achieves the objectives of the development standard. Approval of this proposal would place a dwelling house in close proximity to the existing dwelling house to the north west of the site, increasing the density of settlement. While as proposed it would adopt the same built form as the approved veterinary clinic, the standard focuses on dwelling houses, and not other uses or structures which would have different impacts and which would have to be consistent with the objectives of SREP 13 and the relevant zone to be approved: cl 8(3) SREP 13.

36 The applicant submits that the zoning is inappropriate. In Wehbe Preston J identified such an argument as another of the ways in which compliance with a development standard might be unreasonable or unnecessary, in the following terms:

48 A fifth way is to establish that “the zoning of particular land” was “unreasonable or inappropriate” so that “a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land” and that “compliance with the standard in that case would also be unreasonable or unnecessary: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 97.

49 However, care needs to be taken not to expand this fifth way of establishing that compliance is unreasonable or unnecessary beyond its limits. It is focused on “particular land” and the circumstances of the case. Compliance with the development standard is unreasonable or unnecessary not because the standard is inappropriate to the zoning, but rather because the zoning of the particular land is found to be unreasonable or inappropriate. If the particular land should not have been included in the particular zone, the standard would not have applied, and the proposed development would not have had to comply with that standard. To require compliance with the standard in these circumstances would be unreasonable or unnecessary.

50 However, so expressed, this way is limited. It does not permit of a general inquiry into the appropriateness of the development standard for the zoning. An objection would not be well-founded by an opinion that the development standard is inappropriate in respect of a particular zoning (the consent authority must assume the standard has a purpose): Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 441; North Sydney Municipal Council v Parlby , unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J at p 7; and Colvest No. 27 Pty Ltd v Hastings Municipal Council , unreported, LEC No 10617 of 1986, 22 March 1988, Cripps J, pp 10-11.
51 The dispensing power under SEPP 1 also is not a general planning power to be used as an alternative to the plan making power under Part 3 of the Act to change existing planning provisions. An objection cannot be used as a means to effect general planning changes throughout a local government area (in circumvention of the procedures under Part 3 of the Act): Hooker-Rex Estates v Hornsby Shire Council , unreported, LEC No 10506 of 1982, 27 July 1983, Bignold J, at p 22; Gergely & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 412; Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 442; North Sydney Municipal Council v Parlby , unreported LEC No 10613 of 1985, 13 November 1986, Stein J at p 7; Colvest No. 27 Pty Ltd v Hastings Municipal Council , unreported, LEC No 10617 of 1986, 22 March 1988, Cripps J, pp 11-12; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 201-202 (affirmed (1990) 69 LGRA 201 at 203, 210); Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 99; Bowen v Willoughby City Council [2001] NSWLEC 274 (4 December 2001) at [113].

37 Clause 14(2) is a specific provision for the land included as Area B within Zone 1 Rural Conservation, which has distinctive and ‘unusual’ subdivision patterns. The standard has been a feature of the planning controls since at least 1977, and I must assume that it has a purpose. While it has not achieved consolidation of the 90 lots to which it applies, it has had the effect of concentrating ownership to four owners and maintaining low density of rural settlement. The section of Area B land in which the applicant’s land is included is relatively close to Mulgoa Road and Mulgoa Village; it is apparent from the site view, however, that urban development in the area is concentrated in the narrow corridor of land along Mulgoa Road, with land on the roads leading off Mulgoa Road retaining their rural character. It is not the role of the court to enable the use of SEPP 1 to achieve a change to the planning controls.

38 In Precise Planning v Wollondilly Shire Council [2005] NSWLEC 339 Pain J considered the issue of precedent and cumulative effect in the context of a SEPP 1 objection:

41 Although the issue of precedent and cumulative impact were considered separately in argument and in the stated issues, they are clearly intimately connected as the primary reason why precedent is of concern is that one decision will lead to later decisions resulting in developments having adverse cumulative impacts. I therefore intend to deal with these two issues together.
42 Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 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.
43 In Goldin Lloyd J analysed a number of decisions following Emmott which considered the issue of precedent in planning appeals. He notes at [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.
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.

39 Even if I were to accept the applicant’s argument that the impact of the dwelling house, in terms of its built form, would be the same as the approved veterinary clinic (and thus might be considered to be “otherwise not objectionable”), I agree with the council that if the SEPP 1 objection is upheld there is the potential for similar applications to be made for the land within Area B. Leaving aside the council owned land, I am not persuaded that the potential additional dwelling opportunity is limited to the three dwelling houses on the land to the north of the applicant’s land and land owned by the objectors, as suggested by Mr Hardy. There is already a Right of Carriageway over part of the 34 lots owned by the applicant, which would facilitate the construction of three dwelling houses on allotments of similar size to the site; and the allotments the site of the pending applications for a child care centre and a gallery could also potentially be the subject of applications for approval of a dwelling house. While Mr Hardy’s evidence was that this is not the current intention of the applicant, there is nothing apparent in the topography or access to those allotments that would preclude such an application being made. Creation of a Right of Carriageway over part of the land immediately to the north of the applicant’s and would also open up the potential for a further three dwelling houses.

40 For these reasons, I am not satisfied that the objection under SEPP 1 is well founded, and it should not be upheld. The consequence is that the proposed erection of a dwelling house cannot be approved. This means that it is unnecessary to deal with the merits of the proposal.

Orders

41 The Court orders:

1. The appeal is dismissed.
2. Development consent is refused to development application No 09/0314 for the erection of a dwelling house on Lots 21, 22, 23 and 24 DP 2721 known as No 341a Littlefields Road Mulgoa.

3. The exhibits are to be returned.

Linda Pearson
Commissioner of the Court