Lasovase Pty Ltd v Wingecarribee Shire Council

[2021] NSWLEC 1316

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Lasovase Pty Ltd v Wingecarribee Shire Council [2021] NSWLEC 1316

Hearing dates:

15 and 16 March 2021

Date of orders:

2 June 2021

Decision date:

02 June 2021

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

Proceedings 2019/404313:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development application no DA 20/0331 for the erection of a dwelling house on proposed lot 1 in the plan of subdivision the subject of Proceedings no 2019/368567 currently described as Lot 1 DP 725832 and known as 421 Myra Vale Road Wildes Meadow, is determined by the grant of development consent subject to the conditions in Annexure A.

(3)   The exhibits are returned, except for exhibits A, B, C, 2, 7 and 8.

Proceedings 2019/368567:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development application no DA19/0963 for the subdivision, by way of boundary adjustment and consolidation, of Lot 14 DP 661321, Lot 1 DP 725832 and Lot 14 DP1080826 is determined by the grant of development consent subject to the conditions in Annexure B.

(3)   The exhibits are returned, except for exhibits A, B, C, 2, 7 and 8.

Catchwords:

APPEAL – development application – subdivision – dwelling house – impact on views – building envelope – s88B instrument

Legislation Cited:

Conveyancing Act 1919

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Rural Fires Act 1997

State Environmental Planning Policy No.55 – Remediation of Land

State Environmental Planning Policy (Primary Production and Rural Development) 2019

State Environmental Planning Policy (Rural Lands) 2008

State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011

Wingecarribee Local Environmental Plan 2010

Cases Cited:

Macdonald v Mosman Municipal Council (1999) 105 LGERA 49; [1999] NSWLEC 215

Our Firm Facility Pty Ltd v Wyong Shire Council [2001] NSWLEC 243

Parrott v Kiama Municipal Council [2004] NSWLEC 77

Rose Bay Marina Pty Limited v Woollahra Municipal Council and anor [2013] NSWLEC 1046

Taralga Landscape Guardians Inc v Minister for Planning (2007) 161 LGERA 1; [2007] NSWLEC 59

Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:

Wingecarribee Shire Rural Lands Development Control Plan 2010

Category:

Principal judgment

Parties:

Lasovase Pty Ltd (Applicant)
Wingecarribee Shire Council (Respondent)

Representation:

Counsel:
P Tomasetti SC and T Poisel (Applicant)
Dr J Smith (Respondent)

Solicitors:
Holding Redlich (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s):

2019/368567; 2019/404313

Publication restriction:

No

Judgment

1. COMMISSIONER: Lasovase Pty Ltd (Lasovase) has appealed against the refusal by Wingecarribee Shire Council (the Council) of a development application for the subdivision of land owned by Lasovase at Wildes Meadow in the Southern Highlands of New South Wales (the subdivision application). It also appeals from the Council’s deemed refusal of a development application to erect a dwelling house on one of the two lots proposed to be created by that subdivision (the dwelling application).

2. Both appeals were heard together.

3. The proposed dwelling house will be located on a part of the Land which enjoys sweeping panoramic rural views of the locality, views which include views of pastoral fields, rolling hills, stands of native vegetation, a portion of Fitzroy Falls Reservoir and the horizon/skyline. Those views are also enjoyed by the residents of the neighbouring property at Lot 4 Myra Vale Road Wildes Meadow (Lot 4). It is the impact the proposed development will have on the views from Lot 4 that is the principal issue in the proceedings.

4. The Council contends that both applications should be refused, primarily because it says that the applications do not “minimise impacts, including views and vistas” on Lot 4. For the reasons that follow, I have decided that, while the proposed dwelling house will be visible from certain parts of the dwelling house on Lot 4, the overall impact on the views enjoyed from Lot 4 is not such as to warrant the refusal of the applications. Accordingly I have decided that development consent should be granted to both the subdivision application and the dwelling application subject to the conditions set out in Annexures A and B.

The Site

5. The land the subject of the appeals is described as Lot 14 DP 661321, Lot 1 DP 725832 and Lot 14 DP 1080826 and is known as 421 Myra Vale Road, Wildes Meadow (the Land). The Land has a total area of approximately 56.03 ha and is a mixture of cleared grazing land with some pockets of vegetation.

6. A site inspection was carried out at the commencement of the hearing. The Land is located in a picturesque rural setting and, as mentioned above, enjoys sweeping rural landscape views which include views of Fitzroy Falls Reservoir. The proposed site of the dwelling house the subject of the dwelling application was inspected. The Court was also able to observe the existing views from Lot 4 from various places both on the front terrace of the dwelling and also from the lounge and dining room. I will return to this later in this decision. The Court also inspected the surrounding area, travelling in both directions along Myra Vale Road.

The proposed development

7. The subdivision application proposes the subdivision of the Land by way of boundary adjustment and consolidation to create two new lots. The plan of proposed subdivision for which consent is sought is at Tab 17 of the Applicant’s Tender Bundle (Ex A).

8. Proposed Lot 1 is the smaller of the two proposed lots and has an area of 10.12 ha. It is in the western portion of the Land, is trapezoid in shape and has a frontage to Myra Vale Road of approximately 450 m. A dwelling house is to be erected on this lot and this is the subject of the dwelling application.

9. Proposed Lot 2 is significantly larger with an approximate area of 45.91 ha. It is in the eastern portion of the Land and has a frontage to Myra Vale Road of approximately 850 m. An existing dwelling house is situated on the lot as well as an existing yurt. A condition of consent will require the yurt to be decommissioned prior to the issue of a subdivision certificate with the intention that there will be only one dwelling on the lot.

10. On 9 March 2021 the Registrar granted leave to the applicant to rely on amended plans which respond to the Council’s contentions. The amended plans are contained in the Applicant’s Tender Bundle at Tabs 15 to 18. The following are the key changes made to the development application:

1. The proposed dwelling has been relocated 25 m to the east. This change was proposed by the applicant’s town planning expert in the planners’ joint report (Ex 3) to which reference will be made later;

2. Landscaping plans were submitted which reflect the relocation of the dwelling site and which show additional planting and landscaping detail;

3. Other amended supporting documents have been filed, including an amended statement of environmental effects, site and soil evaluation and bushfire assessment report.

11. The proposed dwelling house comprises 4 bedrooms, 3 bathrooms, a combined kitchen, dining and living space, a study and a laundry/mudroom. It has an attached double garage with internal access to the dwelling. The dwelling has a floor area of approximately 480 sqm excluding the garage. It has a 3 m wide verandah on the northern and eastern sides of the dwelling. The dwelling is single storey, has a height from the floor to the underside of the eaves of 3.1 m and from the floor to the ridge of the roof of 6.225 m. Including the verandah, it has a footprint of approximately 17 m x 42 m. It is set back approximately 55 m from its boundary with Myra Vale Road where the ground level is some 8 m below the level of the centre line of Myra Vale Road.

The planning framework

12. The Wingecarribee Local Environmental Plan 2010 (the LEP) applies to the Land. The Land is within Zone E3 – Environmental Management under the LEP. Development for the purposes of a dwelling house is permissible with development consent on land within that zone.

13. Clause 2.3(2) of the LEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of Zone E3 – Environmental Management 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 encourage the retention of the remaining evidence of significant historic and social values expressed in existing landscape and land use patterns.

To minimise the proliferation of buildings and other structures in these sensitive landscape areas.

To provide for a restricted range of development and land use activities that provide for rural settlement, sustainable agriculture, other types of economic and employment development, recreation and community amenity in identified drinking water catchment areas.

To protect significant agricultural resources (soil, water and vegetation) in recognition of their value to Wingecarribee’s longer term economic sustainability.

14. I have had regard to those objectives in coming to my decision. Some of the objectives are clearly more relevant than others and I will discuss these later in this decision.

15. Clause 4.1 of the LEP prescribes a minimum lot size of 40 ha for the Land. Proposed Lot 2 has an area greater than the minimum lot size of 40 ha. Proposed Lot 1 has an area of 10.12 ha and does not comply with the applicable minimum lot size. Instead, proposed Lot 1 must satisfy the requirements of cl 4.2B discussed below.

16. Clause 4.2A of the LEP imposes controls on the erection of dwelling houses on land within zones which include Zone E3. The objectives of the clause are set out in cl 4.2A(1) as follows:

(a) to minimise the introduction of unplanned rural residential development, and

(b) to enable the replacement of lawfully erected dwelling houses and dual occupancies in rural zones.

17. Clause 4.2A(3) sets out a number of circumstances in which development consent may be granted for the erection of a dwelling house on a lot “on which no dwelling house has been erected”. There are currently two dwelling houses situated on the Land, both of which will be located within proposed Lot 2. As stated earlier, it is intended that the dwelling house the subject of the dwelling application will replace one of the existing dwellings, the yurt, which is to be rendered unsuitable for human habitation. As two dwelling houses have already been erected on the Land, cl 4.2A(3) does not apply here.

18. The erection of a dwelling house is, however, permitted with development consent under cl 4.2A(4) of the LEP if there is a lawfully erected dwelling house or dual occupancy on the land and the dwelling house or dual occupancy to be erected is intended only to replace the existing dwelling house or dual occupancy. As the proposed dwelling house will replace the existing yurt, it is permissible with development consent in accordance with cl 4.2A(4). The development consent for the proposed dwelling will be subject to a condition providing that the existing yurt must be decommissioned.

19. The development consent for the dwelling house must be given prior to development consent being granted for the subdivision application as, upon the grant of development consent for the subdivision, proposed Lot 1 will not satisfy any of the requirements for the approval of a dwelling house.

20. Clause 4.2B of the LEP applies to the subdivision of the Land. Its objective is “to permit the boundary between 2 lots to be altered in certain circumstances, to give landowners a greater opportunity to achieve the objectives of a zone”. Clause 4.2B(3) provides that, despite the minimum lot size prescribed by cl 4.1, development consent may be granted to the subdivision of two adjoining lots if the subdivision will not result in:

(a) an increase in the number of lots, and

(b) an increase in the number of dwelling houses, secondary dwellings or dual occupancies on, or dwelling houses, secondary dwellings or dual occupancies that may be erected on, any of the lots, and

(c) if each lot is at least 2 hectares before the subdivision—a lot that is less than 2 hectares.

21. The subdivision application satisfies the requirements of cl 4.2B(3). It does not increase the number of lots in the holding. Subject to the decommissioning of the existing yurt, the number of dwelling houses on the Land will remain the same and each lot to be created is greater than 2 ha in area. The development consent for the subdivision application will be subject to a condition requiring the decommissioning of the yurt prior to the issue of a subdivision certificate.

22. Clause 4.2B(4) provides that, before granting development consent under cl 4.2B(3), the consent authority must consider the following:

(a) the existing uses and approved uses of other land in the vicinity of the subdivision,

(b) whether or not the subdivision is likely to have a significant impact on land uses that are likely to be preferred and the predominant land uses in the vicinity of the development,

(c) whether or not the subdivision is likely to be incompatible with a use referred to in paragraph (a) or (b),

(d) whether or not the subdivision is likely to be incompatible with a use on land in any adjoining zone,

(e) any measures proposed by the applicant to avoid or minimise any incompatibility referred to in paragraph (c) or (d),

(f) whether or not the subdivision is appropriate having regard to the natural and physical constraints affecting the land,

(g) whether or not the subdivision is likely to have an adverse impact on the environmental values or agricultural viability of the land.

23. These matters are considered later in this judgment.

24. Clause 5.16 also applies to the Land. The objective of that clause is “to minimise potential land use conflict between existing and proposed development on land in the rural, residential or environment protection zones concerned (particularly between residential land uses and other rural land uses)”. Under cl 5.16(3), a consent authority must take into account the matters specified in cl 5.16(4) in determining whether to grant development consent to development on land to which the clause applies for either of the following purposes—

(a) subdivision of land proposed to be used for the purposes of a dwelling, or

(b) erection of a dwelling.

25. The matters specified in cl 5.16(4) are:

(a) the existing uses and approved uses of land in the vicinity of the development,

(b) whether or not the development is likely to have a significant impact on land uses that, in the opinion of the consent authority, are likely to be preferred and the predominant land uses in the vicinity of the development,

(c) whether or not the development is likely to be incompatible with a use referred to in paragraph (a) or (b),

(d) any measures proposed by the applicant to avoid or minimise any incompatibility referred to in paragraph (c).

26. These matters are also considered later in this judgment.

27. The Land is identified as bushfire prone land on the Council’s Bushfire Prone Land Map. Under s 100B of the Rural Fires Act 1997, a bushfire safety authority must be obtained before carrying out development involving the subdivision of bushfire prone land for residential or rural residential purposes. A bushfire safety authority for the subdivision proposed by the subdivision application was issued by the NSW Rural Fire Service on 24 January 2019.

28. The Land is within the Sydney Drinking Water Catchment and the State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 (the Sydney Drinking Water SEPP) applies to the Land. Clauses 10 and 11 of that Policy provide that a consent authority must not grant consent to the carrying out of development under Part 4 of the Act on land in the Sydney Drinking Water Catchment:

• unless it is satisfied that the carrying out of the proposed development would have a neutral or beneficial effect on water quality (cl 10); and

• except with the concurrence of the Regulatory Authority (Water NSW) (cl 11).

29. The Council had contended that the proposed development failed to comply with cl 10 of the Sydney Drinking Water SEPP due to the nearness of the proposed effluent disposal area to a drainage depression. According to the joint expert town planning report (Ex 3), that contention has now been addressed. Accordingly, the Council no longer presses that contention.

30. The State Environmental Planning Policy No 55 – Remediation of Land applies to the Land. Clause 7 of that Policy requires the consent authority to consider whether the Land is contaminated prior to granting development consent to the carrying out of development on the Land. The Council’s evidence is that the Land has historically been used for residential and agricultural purposes and that there is no historical evidence of the Land previously having been used for a purpose that would result in it being contaminated. I am satisfied that the Land is unlikely to be contaminated and that further testing of the Land is not warranted.

31. The State Environmental Planning Policy (Rural Lands) 2008 (the Rural Lands SEPP) applies to the subdivision application, but not the dwelling application which was lodged after its repeal on 28 February 2019. The State Environmental Planning Policy (Primary Production and Rural Development) 2019 (the Primary Production SEPP) commenced on that day and applies to the dwelling application. Relevantly, both Policies require a consent authority to take into account the same matters when considering whether to grant consent to development involving the subdivision of land for the purposes of a dwelling and development for the purposes of a dwelling: see cl 3 of Sch 4 of the Primary Production SEPP and cl 10 of the Rural Lands SEPP. Those matters are:

(a) the existing uses and approved uses of land in the vicinity of the development,

(b) whether or not the development is likely to have a significant impact on land uses that, in the opinion of the consent authority, are likely to be preferred and the predominant land uses in the vicinity of the development,

(c) whether or not the development is likely to be incompatible with a use referred to in paragraph (a) or (b),

(d) any measures proposed by the applicant to avoid or minimise any incompatibility referred to in paragraph (c).

32. There is considerable overlap between the matters required to be considered under cll 4.2B(4) and 5.16 of the LEP, cl 3 of Sch 4 of the Primary Production SEPP and cl 10 of the Rural Lands SEPP.

33. The Land is also subject to the Wingecarribee Shire Rural Lands Development Control Plan (the DCP). The relevant provisions of the DCP are considered later.

The Council’s assessment process and determination

The subdivision application

34. The subdivision application (DA 19/0963) was lodged with the Council on 18 December 2018. It was referred to the Rural Fire Service for general terms of approval in accordance with s 100B of the Rural Fires Act and to Water NSW for concurrence in accordance with cl 11 of the Sydney Drinking Water SEPP.

35. The NSW Rural Fire Service issued general terms of approval in accordance with s 100B of the Rural Fires Act on 24 January 2019 (Ex 2, pp. 194 to 196). On 20 December 2018, Water NSW informed the Council that it had delegated its concurrence role for applications of this type to the Council (Ex 2, p. 198). On 14 January 2019 Water NSW wrote to the Council stating that it considered the potential for impact on water quality was low.

36. By an undated letter apparently sent on or about 27 December 2018, the Council gave notice of the application to the owners of the surrounding properties inviting written submissions by 24 January 2019.

34. Two submissions were received by the Council, one each from the two occupants of the neighbouring property at Lot 4. The submissions raised the following concerns:

• The proposed development will have a significant adverse impact on Lot 4;

• Insufficient information was provided with the application;

• The application does not adequately address the requirements of Part A3.5 of the DCP;

• The plan of subdivision and the bushfire report submitted with the application contain conflicting information about the size of the proposed lots;

• The application should be refused pursuant to s 4.16(2) of the Environmental Planning and Assessment Act 1979 (the EPA Act) as it will result in one of the lots having two ‘dwelling entitlements’.

38. The Council determined the subdivision application by refusal on 27 September 2019. The applicant sought a review of the Council’s determination in accordance with s 8.2 of the EPA Act on 12 November 2019. The Council has not made a decision on that application.

39. The applicant commenced this appeal on 22 November 2019.

The dwelling application

40. The dwelling application (DA 20/0331) was lodged with the Council on 16 September 2019. On 25 September 2019 the Council gave notice of the development application to the owners of the surrounding properties and invited written submissions by 11 October 2019.

41. Two submissions were received by the Council, again one each from the two residents of the neighbouring Lot 4. The concerns expressed in these submissions included that:

• The proposed development will have a severe impact on the views currently enjoyed from Lot 4;

• Insufficient information has been provided relating to the architectural plans and landscaping;

• Photomontages should be provided to show the impacts of the proposed development on views from Lot 4;

• The application does not adequately address the requirements of Part A3.5 of the DCP; and

• The application does not include a current bushfire assessment report.

42. The Council has not determined the dwelling application. The applicant commenced this appeal in relation to the deemed refusal of the application on 24 December 2019.

The statutory basis for the appeal

43. The applicant’s right of appeal in relation to each application arises pursuant to s 8.7 of the EPA Act. Section 8.11 makes provision for the making of an appeal where a development application has not been determined by the consent authority within the prescribed period. I am satisfied that each appeal has been commenced within the period specified in s 8.10 of the EPA Act.

Description of the view

44. An inspection of the site of the proposed dwelling and surrounding land was carried out on 15 March 2021. A height pole was used to indicate the height of the proposed dwelling. The existing house on Lot 4 was observed from the location of the proposed dwelling and a considerable time was spent on Lot 4 itself assessing both the existing views and the likely impact on those views of the proposed dwelling from various locations on the front terrace of the house as well as from the lounge and dining room of the house.

45. Both owners of Lot 4, Martijn and Jane Wilder, gave oral evidence at the site inspection. Mr Wilder referred to the long history of the proposal and said that, given the size of the Land, it was unreasonable to locate the proposed dwelling “right in view”. He said that he was concerned about the impact of the proposed dwelling on his amenity and that a reasonable compromise would be to move the proposed dwelling further to the east near the existing gates. Mrs Wilder explained that the dwelling on Lot 4 was their “second home” and not a holiday house and that they had spent two years looking for the right place that offered both privacy and outlook. She said it was very special to them and that their children had grown up there. The terrace was used frequently by the family and also for entertaining. She said that they just wanted to be able to enjoy the space and, given the area available to the applicant, the proposed location of the dwelling was unreasonable.

The issues in the appeals

46. While the Council has raised separate contentions in relation to each appeal, the main issue in both appeals concerns the likely impact of the proposed dwelling on the views currently enjoyed from the house on Lot 4 and, in the dwelling application appeal, by people travelling along Myra Vale Road.

47. The Council also contends that each application is inconsistent with the objectives of Zone E3 – Environmental Management.

48. In relation to the subdivision application, the Council also contends that the proposed subdivision:

1. does not satisfy cl 4.2B of the LEP;

2. does not satisfy cl 5.16 of the LEP;

3. is inconsistent with clause A2.7 of the DCP.

49. In both appeals the Council contends that the granting of development consent is not in the public interest. However, it does so only on the basis of the submissions that have been received. It does not raise any other aspect of the public interest that it says warrants the refusal of either application.

50. The Council also raised a number of contentions that further information was required to assess the proposed development. This included survey information, a site analysis, BASIX information, photomontage information, landscaping information, a bushfire assessment report and schedule of materials and finishes. However, by the time of the hearing, additional information had been submitted by the applicant to the Council addressing each of these matters and these contentions are no longer pressed by the Council.

51. Finally, the Council contended that the proposed development relies on a subdivision that has not been approved. That contention will fall away if the Court determines the subdivision application by the grant of development consent.

Expert evidence of town planners

52. Mr Jeremy Swan (engaged by the Council) and Mr Scott Lee (engaged by the applicant), town planners, conferred and prepared a joint report (Ex 3). I will deal with their evidence by reference to what became the key issues in the appeal.

Impact on views from Lot 4

53. The planners agree that the dwelling on Lot 4 is the only property that will be affected by the development. They also agree that the dwelling on Lot 4 enjoys rural views to the north, looking across Myra Vale Road, over the Land and towards Fitzroy Falls Reservoir. It is agreed that the view is of a rural landscape with elements of pastoral fields, rolling hills, stands of native vegetation, a portion of Fitzroy Falls Reservoir and the horizon/skyline. The expert planners agree that the proposed dwelling house would occupy a small proportion of the total view and that the view impact is more pronounced from the north facing outdoor patio of the dwelling on Lot 4. They also agree that the impact on the views from Lot 4 could be reduced by relocating the proposed dwelling house generally in an easterly direction. Both planners say that the view sharing principles as set out in Tenacity Consulting Pty Ltd v Warringah Shire Council (2004) 134 LGERA 23; [2004] NSWLEC 140 (“Tenacity”) are relevant and provide the appropriate basis for the consideration of the impact on views from Lot 4.

54. The planners disagree on the degree of impact on the view from Lot 4 that arises from the proposed dwelling house and on the extent to which the location of the proposed dwelling house is unreasonable and therefore the extent to which relocating it is reasonable in order to lessen that impact.

Mr Lee

55. Mr Lee says that the degree of impact upon the total view enjoyed from Lot 4 should be rated as moderate when viewed from the outdoor patio and from negligible to minor from any position within the dwelling house. Although the proposed dwelling will be visible from the outdoor patio, he says it is “off centre” and does not interrupt the view to the Fitzroy Reservoir, which is considered an important element of the total view. His evidence is that the view from Lot 4 is over the top of the proposed dwelling and that the proposed dwelling does not interrupt any distant view to the horizon or skyline; nor does it interrupt views to the various stands of native vegetation scattered across the landscape.

56. Mr Lee also points out that there is nothing in the LEP, the DCP or the principles of view sharing as expressed in Tenacity, that seeks to totally eliminate any view of the proposed house. He says that dwellings within the rural landscape are a feature of the Wingecarribee Shire and of this locality. Enforcing a location for the proposed dwelling on the premise that it can only be a suitable location if it cannot be seen from Lot 4, is, he says, not a reasonable benchmark on which to assess the reasonableness of the proposed development.

57. Mr Lee says that a building envelope can be identified that minimises views on Lot 4 and, in the joint report, proposed that the site of the proposed dwelling be relocated 25 m to the east. The applicant has been granted leave to rely on amended plans which reflect the relocation of the dwelling as proposed by Mr Lee. The site proposed by Mr Lee is situated towards the eastern boundary of the lot on which it will be located. It will maintain a 5 m setback from the side boundary and is set back 56 m from Myra Vale Rd.

58. Mr Lee notes that the DCP (Part B2.1.3(b)) specifically states that a building will generally be acceptable if it has a low impact on its overall visual catchment. In this regard, his evidence is that the impact of the proposed development on the overall visual catchment, which he says is extensive, is a low impact.

59. Mr Lee says that the development proposal should not be expected to eliminate all or any views of future development that may occur in order to minimise impacts.

Mr Swan

60. Mr Swan agrees that the degree of impact upon the total views enjoyed by Lot 4 should be rated as moderate when viewed from the outdoor patio; however, he disagrees with Mr Lee that the view impacts from within the dwelling are negligible to minor. Mr Swan says that the impact on views within the dwelling are moderate to minor. His evidence is that the view impacts are experienced over the front boundary in both a sitting and standing position. He says that the dwelling on Lot 4 is orientated towards the views with extensive views being available from the outdoor patio and the adjoining living area, being the space that the residents spend the most time in.

61. Mr Swan relies on cl 5.16 of the LEP and his evidence is that the proposed development does not satisfy the objectives of that clause in that the proposed development does not minimise land use conflict with Lot 4 in respect of views.

62. Mr Swan disagrees with Mr Lee’s opinion that the LEP and DCP do not make mention of view sharing. Whilst not using those words, he says that the first objective of the zone is “to protect and restore areas with special ecological, scientific, cultural or aesthetic values.” (Mr Swan’s emphasis). The second objective of the zone is “to provide for a limited range of development that does not have an adverse effect on those values.”

63. Mr Swan believes the impact on Lot 4 can and should be further reduced and that a more skilful design could provide the applicant with the same development potential but reduce the impact on the views from Lot 4. That, he says, would be consistent with Step 4 of the principles in Tenacity. He maintains that the subdivision without an acceptable building envelope results in unacceptable view impacts on Lot 4 and has proposed a possible building envelope in Attachment C of the Joint Report (Ex 3) which moves the proposed building site further to the east than the location proposed by the applicant.

64. In summary, Mr Swan is of the opinion that the current location of the dwelling results in unacceptable view impacts on Lot 4, that the proposed development does not satisfy the planning principle in Tenacity, in particular Step 4, and should be refused on this basis.

Impact on views from Myra Vale Rd

65. The expert planning witnesses disagreed on whether the view impacts of the proposed development from Myra Vale Rd would be acceptable.

Mr Lee

66. It is Mr Lee’s evidence that the view impact from Myra Vale Road will be minimal. In his opinion, the view impact of the proposed dwelling from Myra Vale Road would be fleeting given the topography, the road geometry, the roadside vegetation and the high traffic speed of 90kph. He says that any view of the proposed dwelling when travelling along Myra Vale Road would not be inconsistent with the character of the location. In his view, the location is one in which people travelling along Myra Vale Road experience both close and distant views of rural areas, punctuated with dwellings and other structures in the landscape. He believes that future site landscaping will further diminish any direct views of the dwelling when travelling along Myra Vale Road.

Mr Swan

67. Mr Swan is of the opinion that views from Myra Vale Road are important and should be protected from proposed development. He points out that Myra Vale Road is identified in Figure A4.1 of the DCP as having a very high scenic road rating. Mr Swan’s opinion is that, as Myra Vale Road has a very high scenic road rating, the proposed dwelling should be shifted approx. 2 m down the slope. He says that this would not result in any additional impact on the dwelling but would improve views from Myra Vale Road.

Consistency with zone objectives

68. While the planning experts agree that the proposed dwelling is a permissible land use and that a site analysis for the proposed dwelling has been submitted and is acceptable, they disagree on whether the proposed development is consistent with the objectives of the zone.

Mr Swan

69. Mr Swan is of the opinion that the proposed development is inconsistent with the Zone E3 objectives, specifically:

to minimise the proliferation of buildings and other structures in these sensitive landscape areas.

70. Mr Swan is of the opinion that, while the dwelling application only proposes a dwelling with a standard double garage, given the rural nature of the land, other structures will be inevitable including rural sheds. He says that an appropriate building envelope that allows for these structures, whilst minimising the proliferation of these structures in the sensitive landscape, is essential to minimise the impacts on views both from Myra Vale Road and the dwelling on Lot 4.

Mr Lee

71. Mr Lee agrees that the construction of some ancillary structures, such as farm sheds, is likely and therefore more than one building may result from the approval of the development application. He is also of the opinion, however, that a dwelling and an ancillary farm shed is not a proliferation of buildings and, even if that were to eventuate, it would be completely consistent with the character of rural areas across the Shire.

72. Mr Lee is of the opinion that an identified building envelope is not mandatory but that a suitable building envelope could be identified, if required. He says this would assist in providing a more certain outcome in terms of the location of buildings upon the site and therefore more certainty in terms of controlling future potential impacts on views.

Does the subdivision application comply with the LEP and DCP?

73. The expert planners joint report also discusses whether the subdivision application:

1. satisfies cl 4.2B of the LEP;

2. satisfies cl 5.16 of the LEP;

3. is inconsistent with clause A2.7 of the DCP.

Clause 4.2B

74. The Council contends that the subdivision application does not satisfy cl 4.2B of the LEP. It says that the applicant has not properly demonstrated how the proposed subdivision satisfies the objective contained within cl 4.2B(1) of the LEP and, when considering cl 4.2B(4), the proposed subdivision is not appropriate having regard to the natural and physical constraints of the land and does not minimise impacts on the agricultural viability of the Land.

75. On this issue Mr Swan says that the application does not have proper regard to the natural and physical constraints of the land and that no site analysis has been prepared for the subdivision application (although one was prepared for the dwelling application). He says that when you look at the natural and physical constraints on the land uses including the dwelling on Lot 4 it is crucial that a building envelope be identified within proposed lot 1.

76. In relation to cl 4.2B, Mr Lee says that a site analysis was provided that was relevant for both the subdivision and the dwelling house. His evidence is that the proposed subdivision did consider the physical and natural constraints of the land including topography and stands of natural vegetation.

Clause 5.16

77. The Council contends that the applicant has not properly demonstrated how the proposed subdivision satisfies the objective contained within cl 5.16 of the LEP and that the proposed subdivision does not minimise potential land use conflict between Lot 4 and the proposed development.

78. On this issue Mr Swan gave evidence that cl 5.16 is not satisfied by the proposed subdivision and that the proposed development does not minimise land use conflicts in relation to view impacts from Lot 4. Mr Lee believes the proposed subdivision will allow for land use compatibility as required by cl 5.16 and that construction of a dwelling and some ancillary structures can be accommodated within a building envelope towards the proposed eastern boundary of the proposed lot 1.

Clause A2.7 of the DCP

79. The Council also contends that the proposed subdivision is inconsistent with cl A2.7 of the DCP.

80. Mr Swan’s evidence is that cl A2.7 of the DCP is not satisfied by the proposed subdivision and that the subdivision application does not have suitable regard to the natural and physical constraints of the site and the planning for future dwelling opportunities taking into consideration those constraints.

81. On this issue Mr Lee relies on his evidence in relation to visual impact on Lot 4.

Assessment of the issues

82. Each party filed written submissions. The applicant filed the Applicant’s Closing Submissions on 23 March 2021 and the Applicant’s Closing Submissions in Reply on 7 April 2021. The Council filed both the Respondent’s Outline of Closing Submissions and Additional Respondent Submissions on 30 March 2021.

83. The issues remaining in contention between the parties may be summarised as follows:

1. The impact of the proposed development on the views from the dwelling on Lot 4;

2. The impact of the proposed development on the views from Myra Vale Road;

3. The consistency of the proposed development with the objectives of Zone E3 – Environmental Management;

4. The compliance of the proposed subdivision with cll 4.2B and 5.16 of the LEP and cl A2.7 of the DCP;

5. The public interest.

Impact on views from Lot 4

84. In considering the acceptability or otherwise of the visual impact of the proposed dwelling on the existing dwelling on Lot 4, I have had the assistance of what I saw myself during the site inspection, the evidence of the parties’ planning experts and the evidence of the residents of Lot 4.

85. The Council submits that the fundamental reason for refusal of both the subdivision and dwelling applications relates to visual impacts. It argues that the subdivision facilitates the erection of a dwelling which will necessarily be located in a position that adversely affects both the views from the adjoining residence on Lot 4 and also views Myra Vale Road, which the DCP identifies as having a very high scenic landscape value. The Council submits that the proposed dwelling will be located in that position and will have adverse visual effects for both the adjoining property and from Myra Vale Road.

86. The applicant says there is really only one issue in dispute between the parties, namely:

“Whether the dwelling house as proposed, although complying with all Council’s prescriptive numerical requirements, is sited in such an unreasonable position in relation to the view currently enjoyed from the lounge and terrace of Lot 4, that both the DAs ought to be refused.”

87. Overall, Council contends that the subdivision does not minimise the impacts on the views of adjoining property. It argues that the impacts ought to lead to refusal on two separate analyses:

1. The proposal is not reasonable, having regard to the planning principle in Tenacity, because of its view impacts on Lot 4; and

2. The proposal is incompatible with the existing approved use at Lot 4.

88. The applicant points out that the dwelling application does not cause “view loss” so much as “view change” for the residence on Lot 4 and that the only view that will be lost is the view of the grass and some trees that will be obscured by the new dwelling. While there was some dispute between the parties as to the legal basis on which the impact on views is relevant to the consideration of the proposed development, there can be no doubt that it is relevant as a likely impact of the development under s 4.15(1)(b) of the EPA Act.

89. The applicant questioned whether the planning principle in Tenacity is invoked in this appeal as no view is taken away for the applicant’s own enjoyment. This appeal however seems to me to be no different to the situation in Taralga Landscape Guardians Inc v Minister for Planning (2007) 161 LGERA 1; [2007] NSWLEC 59where at [149] Preston CJ noted that the planning principle in Tenacity could also be applied in the consideration of the visual impact of constructing wind turbines in a rural landscape.

90. The planning principle in Tenacity involves the following four steps:

1. The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.

2. The second step is to consider from what part of the property the views are obtained. For example, the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.

3. The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

4. The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.

91. In relation to the first step, there is no dispute that the existing dwelling on Lot 4 presently enjoys sweeping panoramic rural views of the locality, views which include views of Fitzroy Falls Reservoir, rolling pastures, ridge lines and stands of vegetation. I consider that these views are certainly “valuable” within the meaning of the first step of Tenacity.

92. The second step is to consider from what part of the property the views are obtained. The highly valuable views described above are obtained from the living and dining rooms of the dwelling on Lot 4 as well as from the terrace. These views will remain if the proposed development is approved. The view will change slightly as it will include a view of the proposed dwelling house to the lower right of the panoramic vista currently enjoyed. The proposed dwelling house will be located some 100 m away from the terrace of the dwelling on Lot 4. When viewed from Lot 4, I agree with Mr Lee that the proposed dwelling will be “off centre” and will not obscure any of the key elements of the existing view. In time, the appearance of the new dwelling will also be softened by the new landscape plantings. The applicant and the Council agree that:

1. The existing dwelling house (with dark Colorbond roof) located to the west of Lot 4 is visible from the uncovered part of the terrace on Lot 4 and the eastern undercover portion of the terrace but not from the western undercover portion of the terrace.

2. When standing on the terrace, the proposed dwelling house would be visible.

3. When standing on the terrace in the undercover area (at the breakfast table), the roof of the proposed dwelling house would be visible as would be the exterior western wall and part of the southern wall of the proposed dwelling house.

4. When seated on the terrace in the undercover area (at the breakfast table), the walls of the proposed dwelling house would not be visible; however, the roof of the proposed dwelling house would be visible.

5. When seated on the lounge, the proposed dwelling house would not be visible.

6. When standing near the lounge, part of the roof of the proposed dwelling house would be visible.

7. When sitting at the dining table, the proposed dwelling house would not be visible.

8. When standing at the dining table, the roof of the proposed dwelling house would not be visible.

9. The location proposed by Mr Swan to the east of the location of the proposed dwelling house was not visible from the terrace.

93. The third step is to assess the extent of the impact for the whole of the property, not just for the view that is affected. The planning experts agree that the proposed development will have a moderate effect on the views from the existing dwelling on Lot 4. They disagree on the impacts from inside the house. Mr Swan (the Council’s expert) says the effect from inside the house will be “moderate/minor” while Mr Lee (the applicant’s expert) believes the effect on views from within the house will be “minor/negligible”.

94. In my opinion, the impact of the proposed development on the views from Lot 4 is more minor than moderate and certainly not such that warrants the refusal of the development application. The essential elements of the view will be unchanged. The dwelling on Lot 4 will continue to obtain a sweeping rural landscape view which includes views of the surrounding pastures and rolling hills, distant views of other dwellings and rural buildings, stands of vegetation and forests, ridgelines and the horizon. There is no doubt that the current view to the Fitzroy Falls Reservoir is an important component of the whole view – it is that part of the view the viewer is immediately drawn to – and this part of the view will not be impacted upon. The approval of the proposed dwelling would result in the addition of a new element in the view. However, in my opinion the proposed dwelling house is not out of character with other development in the locality, will be located some 100 m from the front of the dwelling on Lot 4 and will have only a minor impact on the views obtained from Lot 4.

95. Over time, even that minor impact will be softened by tree planting and landscaping associated with the new dwelling. In cross-examination, Mr Swan conceded that the proposed planting of 17 trees scattered in the 50 m setback between the dwelling and the roadside will provide a barrier such that when standing directly out the front of the dwelling on Lot 4 – on the road – “it will be difficult to see the dwelling sitting behind it” (Transcript 16/3/21, p 44).

96. The fourth and final step is to assess the reasonableness of the proposal that is causing the impact. In relation to this step the Council argues that the applicant has not addressed the question “whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of the neighbours”. It says there is no evidence of any planning reason that would prevent the applicant from locating the dwelling in a position in which the view from Lot 4 was not obstructed at all. The Council points out that its expert planning witness, Mr Swan, has identified a location for the proposed dwelling that would meet all the applicant’s site analysis criteria and avoid the unnecessary view impacts of the proposed development.

97. The proposed development (both the subdivision and the proposed dwelling house) comply with the relevant controls in the LEP. The subdivision is permissible in accordance with cl 4.2B(3) of the LEP and the proposed dwelling house is permissible in accordance with cl 4.2A(4)(a) (subject to the existing yurt on proposed Lot 2 either being removed or rendered unable to be used as a dwelling). This can be achieved by the imposition of a condition of consent.

98. I do not find anything unreasonable in the proposed development and therefore see no need to consider whether a more skilful design might produce a different or better outcome. The Court’s role is to assess the acceptability of the current proposal, as well as to consider its environmental impact. If that impact is acceptable, as I find it is, there is no need to consider whether a different proposal might reduce that impact or remove it altogether.

Impact on views from Myra Vale Road

99. Council submits that the proposed location of the dwelling is inconsistent with the “very high scenic” rating of Myra Vale Road (as recognised in figure 4.1 of the DCP).

100. Part B Section 2 of DCP sets out objectives and performance standards for the siting of residential development. Relevantly:

1. The objectives in B2.1.2 include that, “Development recognises, protects and promotes the scenic qualities of its immediate and wider setting”; and

2. Performance standards include that, “Development will be placed in locations on the land where visual impacts on views, features such as ridge lines, hill tops, horizons, prominent slopes and topographic features will be minimised, when these are viewed from a public place”.

101. Having regard to the controls in the DCP and Mr Swan’s opinions, as set out in the Joint Town Planning Report (Ex 3) at p.15, the Council submits that the proposed development does not meet the above performance standard of minimising visual impacts and otherwise does not comply with the relevant Court planning principle in relation to impacts on public domain views established by Moore SC (as he then was) and Adam AC in Rose Bay Marina Pty Limited v Woollahra Municipal Council and anor [2013] NSWLEC 1046 at [44]-[59]. Like the planning principle in Tenacity, this planning principle proposes a number of steps to assist in the consideration of the view impact on the public domain:

1. The first step is to identify the nature and scope of the existing views from the public domain. This identification should encompass (but is not limited to):

• the nature and extent of any existing obstruction of the view;

• relevant compositional elements of the view (such as is it static or dynamic and, if dynamic, the nature and frequency of changes to the view);

• what might not be in the view - such as the absence of human structures in the outlook across a natural area (such as the view from Kanangra Walls);

• is the change permanent or temporary; or

• what might be the curtilages of important elements within the view.

2. The second step is to identify the locations in the public domain from which the potentially interrupted view is enjoyed.

3. The third step is to identify the extent of the obstruction at each relevant location.

4. The fourth step is to identify the intensity of public use of those locations where that enjoyment will be obscured, in whole or in part, by the proposed private development.

5. The final step to be identified is whether or not there is any document that identifies the importance of the view to be assessed.

Consideration

102. Applying this planning principle to the facts of this matter I make the following findings:

1. Step 1 – There are existing views from Myra Vale Road which are, like those from Lot 4, sweeping rural landscape views and include views of rolling pastures, ridge lines, stands of vegetation, forested hills, distant dwellings and farm buildings and the Fitzroy Falls Reservoir.

2. Step 2 - The views are enjoyed by people travelling along Myra Vale Road in both directions, although some aspects of the view, such as the Fitzroy Falls Reservoir, are more prominent when travelling from east to west.

3. Step 3 - Dwelling houses are not an unusual feature in this rural landscape. While the proposed dwelling will be visible to passing travellers, it will be set back approximately 55 m from Myra Vale Road and the finished ground level of the proposed dwelling house will be 5 m below the ground level at the centreline of Myra Vale Road. All but the ridgeline of the roof will be below the ground level of the road and the ridgeline itself extends above the road only by some 1.215m. In my opinion, the proposed dwelling will be visible, but not obvious, to passing travellers and it will not obscure the panoramic views from Myra Vale Road to any significant extent.

4. Step 4 - Any impact on views will be transient because tourists will be travelling along the road at around 90 km/hr with no opportunity to stop on the side of the road.

5. Step 5 - the importance of the view to be assessed is documented in the DCP, which gives the view from Myra Vale Road a “very high scenic” rating in figure 4.1.

103. In my opinion the proposed development will have only a minor impact on views from Myra Vale Road. That impact is not sufficient to warrant the refusal of the development application.

104. The Council also submits that the proposed dwelling house should be moved down the slope and further to the east to reduce or eliminate the view impacts from Myra Vale Road. I consider that this is unnecessary as the impacts of the proposed development on views from Myra Vale Road are only minor in any event.

Inconsistency with Objectives of Zone

105. The Council contends that each application should be refused because it is inconsistent with the objectives of Zone E3 – Environmental Management in the LEP.

106. In accordance with cl 2.3(2) of the LEP, I must have regard to the zone objectives in the determination of the development applications the subject of these appeals. Those objectives 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 encourage the retention of the remaining evidence of significant historic and social values expressed in existing landscape and land use patterns.

To minimise the proliferation of buildings and other structures in these sensitive landscape areas.

To provide for a restricted range of development and land use activities that provide for rural settlement, sustainable agriculture, other types of economic and employment development, recreation and community amenity in identified drinking water catchment areas.

To protect significant agricultural resources (soil, water and vegetation) in recognition of their value to Wingecarribee’s longer term economic sustainability.

107. The Council argues that the proposed development is inconsistent with the first, second and fourth objectives. It says that Myra Vale Road has been identified in the DCP as having a very high scenic road rating and that the Land is therefore a visually sensitive landscape. The Council submits that “the subdivision, with its intended effect of providing for a dwelling and ancillary buildings will facilitate a proliferation of buildings and other structures in such a way as to adversely affect the views from both the neighbouring property and the public domain”. Accordingly, the Council says, an appropriate building envelope would be essential as part of the subdivision application to minimise the impact on the landscape and the impacts on neighbours.

108. In this regard the Council relies on the planning principle established by Parrott v Kiama Council [2004] NSWLEC 77:

“When should a subdivision application include information on the buildings to be built on the resulting allotment(s)? It is normal practice in Australia to subdivide land without constraints on the buildings that can later be built. While this practice is appropriate in most cases, it is not always so. I have adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours is likely and needs careful design to minimise them”.

Consideration

109. I consider that the planning principle in Parrott v Kiama Council does not require the imposition of further constraints on the erection of a dwelling in this matter. The likely impacts of the proposed dwelling have been considered in the context of this appeal and further constraints on the erection of future buildings are, in my assessment, unnecessary. Development consent will be required for the erection of any future farm buildings on the Land and the impacts of those buildings, both on Lot 4 and the users of Myra Vale Road, can be fully addressed if and when any such development consent is sought. The same would be the case if a future owner chooses not to proceed with the construction of the dwelling the subject of this appeal and makes a development application for a different dwelling on the Land: the impacts of any such application can be addressed if and when such an application is made.

110. There is no need, in my opinion, to add a further layer of regulation to the erection of buildings on the Land by the registration of a restriction on the use of land under the Conveyancing Act 1919. There is a long line of authority in this Court in which it has been consistently held that it is generally inappropriate for conditions of consent to require the imposition of covenants on the title to land and that it would only be appropriate to do so in a rare and exceptional case: see Macdonald v Mosman Municipal Council (1999) 105 LGERA 49; [1999] NSWLEC 215 at [14] and Our Firm Facility Pty Ltd v Wyong Shire Council [2001] NSWLEC 243 at [29]. This is not such a case.

Specific contentions concerning the subdivision application

111. In relation to the subdivision application, the Council also contends that the proposed subdivision:

1. does not satisfy cl 4.2B of the LEP;

2. does not satisfy cl 5.16 of the LEP;

3. is inconsistent with clause A2.7 of the DCP.

112. I will address each of these in turn.

Clause 4.2B of the LEP

113. Council contends that the proposed subdivision should be refused because the applicant has not demonstrated that:

1. the subdivision is compatible with existing and approved uses in the vicinity, namely the dwelling house on Lot 4 (cl 4.2B(4)(c));

2. there are adequate measures to avoid or minimise the incompatibility with the dwelling house on Lot 4 (cl 4.2B(4)(e)) – noting that the use of screen planting is contrary to clause B2.1.6(e) of the DCP; and moving the proposed dwelling 25 metres to the east is not “adequate” for the reasons articulated by Mr Swan; and

1. the subdivision is appropriate having regard to the natural constraint of being located on a ridge line and the physical constraints of being within the view corridor of the dwelling house on Lot 4 (cl 4.2B(4)(f)).

114. Clause 4.2B(4) sets out a number of matters that must be considered by a consent authority before determining a development application for the subdivision of land under that clause.

115. The Council submits that the substance of this contention is the location of a dwelling on the new lot. The Council says that the subdivision application is clearly intended to create Lot 1 as a lot on which a new dwelling may be located but that the proposed lot does not provide a location for the future dwelling and ancillary buildings which is compatible with the dwelling on neighbouring lot 4. It says that any such dwelling will inevitably be placed squarely within an important view corridor from lot 4. Due to the topography, the location of vegetation and bushfire risk and Council’s policy with respect to views from the public domain, any building on proposed Lot 1 would have to be placed in the view corridor from the existing dwelling on Lot 4.

116. Given the applicant’s ability to configure its subdivision application in other ways, the Council argues that the proposal does not contain measures to avoid or minimise that incompatibility and does not adequately consider the constraints affecting the land.

Consideration

117. The existing uses of land in the vicinity of the Land are rural and residential in nature. I find that there is nothing incompatible between the proposed subdivision and dwelling house with those uses. The proposed development is permissible in the zone and is consistent with the uses of other land in the vicinity.

118. The Council’s contention appears to be based, not on any incompatibility between the proposed development and the use of land in the vicinity, but on the premise that the proposed dwelling house is “incompatible” with the existing dwelling on Lot 4 because it will adversely impact on the views currently obtained from that dwelling. For the reasons given above in relation to the assessment of the view impacts of the proposed development, in my opinion the proposed development is not incompatible with the existing dwelling on Lot 4. While the new dwelling will be visible from Lot 4, it will not detract, except in a minor way, from the sweeping rural landscape views currently enjoyed from the dwelling on Lot 4.

Clause 5.16 of the LEP

119. The Council’s Statement of Facts and Contentions (Ex 1) raises compliance with cl 5.16 only in the context of the subdivision application. However, in its written submissions, it has also argued that the clause is relevant to the consideration of the dwelling application. It seems to me that cl 5.16 is relevant to both applications and I have taken it into consideration in my assessment of both the subdivision application and the dwelling application.

120. There is also clearly some overlap between the matters cl 5.16 requires the consent authority to consider and the matters referred to in cl 4.2B discussed above. These matters are also required to be taken into account by the Rural Lands SEPP and the Primary Production SEPP.

121. I will not repeat what I have already said in relation to cl 4.2B other than to say that I have considered each of the matters listed in cl 5.16(4) and find that the proposed development, being the subdivision of land and the erection of a dwelling are of the same type of development being carried out on other land in the vicinity and in my opinion are unlikely to have a significant impact of those uses. I consider that the proposed development is compatible with the use of other land in the vicinity.

122. The impact of the proposed development on the views obtained from Lot 4, in my assessment, does not give rise to any incompatibility within the meaning of cl 5.16. That clause is clearly intended to require consideration to be given to the impact the grant of development consent for one type of use is likely to have on the carrying out of development for the purpose of preferred and predominant uses in the vicinity. While the impact of the proposed development on views is a relevant matter for consideration under s 4.15(1)(b), in my opinion it is not within the scope of cl 5.16(4). Even if it was, as I have explained above, I do not find any incompatibility between the proposed development and the existing uses in the vicinity, including the existing residential use of Lot 4.

Clause A2.7 of the DCP

123. The Council contends that the proposed subdivision is inconsistent with clause A2.7 of the DCP. It says that the proposed subdivision includes the subdivision of land that includes an undersized lot and does not have regard to the natural and physical constraints of the land.

124. Mr Swan’s evidence is that clause A2.7 of the DCP is not satisfied by the proposed subdivision and that the subdivision application does not have suitable regard to the natural and physical constraints of the site and the planning for future dwelling opportunities taking into consideration those constraints.

125. I understand this contention, which was not the subject of detailed evidence from the expert planning witnesses, to refer to the likely impacts of the proposed development on the views obtained from Lot 4. I accept that the natural and physical constraints of the site are such that it would be possible to design a different development that would have little or no impact on the views from Lot 4. However, as explained earlier in this judgment, the Court’s role is to assess the acceptability of the current proposal, as well as to consider its environmental impact. As I have found that the impact of the proposed development is acceptable, there is no need to consider whether a different proposal might reduce that impact or remove it altogether.

Public interest

126. The Council also contends that the approval of each development application is not in the public interest. It says the proposed development should be refused on the basis of the submissions that have been received by the Council to the extent that such submissions are consistent with the other contentions raised by the Council.

127. The issues raised by the submissions received from the owners of Lot 4 concern the impact of the proposed development on the views obtained from their dwelling. Those issues have been dealt with in detail earlier in this judgment.

128. Conclusion on each appeal

129. The dwelling application (as amended) should be determined by the grant of consent subject to the conditions in Annexure A.

130. The subdivision application (as amended) should be determined by the grant of consent subject to the conditions in Annexure B.

Orders

Proceedings 2019/404313:

131. The Court orders that:

1. The appeal is upheld.

2. Development application no DA 20/0331 for the erection of a dwelling house on proposed lot 1 in the plan of subdivision the subject of Proceedings no 2019/368567 currently described as Lot 1 DP 725832 and known as 421 Myra Vale Road Wildes Meadow, is determined by the grant of development consent subject to the conditions in Annexure A.

3. The exhibits are returned, except for exhibits A, B, C, 2, 7 and 8.

Proceedings 2019/368567:

132. The Court orders that:

1. The appeal is upheld.

2. Development application no DA19/0963 for the subdivision, by way of boundary adjustment and consolidation, of Lot 14 DP 661321, Lot 1 DP 725832 and Lot 14 DP1080826 is determined by the grant of development consent subject to the conditions in Annexure B.

3. The exhibits are returned, except for exhibits A, B, C, 2, 7 and 8.

………………………

A Bradbury

Acting Commissioner of the Court

Annexure A (275108, pdf)

Annexure B (341621, pdf)

**********

Amendments

10 June 2021 - Corrected typographical error to Parties details on cover page.

Decision last updated: 10 June 2021