Lawrence v Port Stephens Council - [2007] NSWLEC 386

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Lawrence v Port Stephens Council [2007] NSWLEC 386

PARTIES:
APPLICATION
Wayne Lawrence
RESPONDENT
Port Stephens Council

FILE NUMBER(S): 10008 of 2007

CORAM: Hoffman C

KEY ISSUES: Development Application :- 2-storey house, rural land, minimum site area, flood, contamination of water table and waterway, waste water disposal, character of the rural zone, appearance from the waterway, land fill on adjoining lots, aircraft noise exposure.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Plan Policy No. 1
Port Stephens Local Environmental Plan 2000
Hunter Regional Environmental Plan 1989
Rivers and Foreshores Improvement Act 1948
Development Control Plan 2007
Northumberland County Planning Scheme Ordinance 1960

DATES OF HEARING: 13/04/2007 and 08/06/2007

EX TEMPORE JUDGMENT DATE: 8 June 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr W. Lawrence, litigant in person
RESPONDENT
Ms D. Grant, solicitor
of Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

8 June 2007

10008 of 2007 Wayne Lawrence v Port Stephens Council
JUDGMENT

1 This is a Class 1 Appeal No. 10008 of 2007 between Wayne Lawrence and Port Stephens Council in regard to refusal of DA16-2002-2147-1 for a 2-storey house on Lots 5, 6, 7, 8 and 9 section A DP 36877 being Nos. 214, and 214A to D Lemon Tree Passage Road, Salt Ash. The applicant was self represented at the hearing.

2 The issues were:

Environmental and Planning and Assessment Act 1979

Port Stephens Local Environmental Plan 2000

Hunter Regional Environmental Plan 1989

State Environmental Plan Policy No. 1

Rivers and Foreshores Improvement Act 1948

3 It is noted that issues E and F above are not pressed by Council.

4 Whilst Salt Ash is a locality on a peninsular between Tilligerry Creek and Swan Bay, the site is within the hamlet known as Salt Ash.

5 It consists of only about 20 houses of one and 2-storeys, most are on the north side of the road opposite the site on higher land, some on a hillock.

6 These houses are on standard sized urban house blocks. Those on the south side of the road between it and the creek are on larger lots, and there appears to be only four or five houses.

7 The development application for the house was originally lodged for Lots 8 and 9 only. During the course of negotiation with council and during the course of this appeal, the applicant first added Lot 7, and finally added in Lots 5 and 6 to be the site of the house.

8 The council have made a draft condition of any consent the consolidation of all those lots into one, and the applicant’s expert town planner supported the proposal only on that basis.

9 The applicant had earlier told the Court Lots 5 and 6 were promised for sale, but during the hearing said there was no exchange of contracts of sale, and later told the Court the sales would not proceed so that the consolidation could take place.

10 The amendment of the application was allowed during the hearing and this resolves issue 1.1C.

11 Part of the reason for this, as can be appreciated from the issues, is that the land in the hamlet is all zoned rural, with a minimum site area for a house of 4000 sq m. The five lots are only 4.5 m wide at the road frontage, and extend to the rear with parallel sides to a boundary with Crown land on the foreshore of the creek.

12 I was told the lots are part of a very old subdivision in the area, whereby small lots, such as this, were allowed for boatsheds on the foreshore.

13 The applicant has an approval, and has partly built a shed on Lot 6. There is also an approval for a pump-out sewage tank associated with it.

14 The five lots have a total area of about 590 sq m. They are flat sandy lots. There are two more similar lots to the south, and three or four similar lots to the north of this parcel.

15 The two lots to the south, which separate it from an existing dwelling, are vacant. They form an access drive to an oyster farmer’s sheds on the creek foreshore. The farmer, Mr Kelly, says he has a Crown lease on the land between the subject lots and the foreshore, and utilises that and the sheds for his land based operations for oyster leases elsewhere on Port Stephens.

16 Large trucks and small trucks use the driveway with the associated noise and activity on site.

17 The proposed house is set one metre off the side boundary with this driveway, and the front door of the house is about halfway along the side, set back with no porch or other protection. The drawings in Exhibit C showed the house as a slab on fill construction and the fill is elevated about 700 mm above natural ground to raise the ground floor of the house above flood level to RL 2.5 AHD. In effect the whole site and nearby flat lands are flood prone.

18 The fill is shown on the drawing extending 3 m from the side of the house on all sides. This means it is 2 m onto Lot 10, Mr Kelly’s land.

19 The applicant said the fill could be contained by a retaining wall at the boundary, and the respondent brought no contrary evidence and in fact, drafted a condition to that effect. This would resolve issue 1B.

20 Mr Lawrence also said the front door could be moved to the west side of the house so that it entered the garage, or to the east side. No formal amendment was asked of the Court.

21 The proposal included a pump-out septic tank on the street boundary. The site and the Salt Ash hamlet has no water supply and no sewerage. The existing houses use rainwater tanks, and apparently some have septic tank on site sewer disposal, others have pump-out. The council had approved a pump-out tank for the approved shed on Lot 6 as I have mentioned before.

22 The applicable Statutes and Controls are for the Rural 1A Zone, the Port Stephens Local Environmental Plan 2000.

23 In Clause 14(2) of the Statute, it provides:

“The consent authority shall not consent to the erection of a dwelling house or dual occupancy housing on an allotment of land to which this clause applies if in the case of land within Zone 1(A) the allotment has an area of less than four thousand square metres.”

24 There is no objective for the standard mentioned.

25 Development and control plans and other applicable policies are DCP-PS9, Energy Smart Homes; DCP-PS10, Building Standards and Notification Procedures for development applications; DCP-PS11, Controls for Site Waste Management and Minimisation and, The Aircraft Noise Exposure policy. The Hunter Regional Environmental Plan 1989, and State Environmental Planning Policy No. 1.

26 On the day of the hearing the council adopted Development Control Plan 2007, which becomes a consideration in this appeal.

27 The respondent’s evidence came from:

Mr B Harris, of 209 Lemon Tree Passage Road, objector;
Mr J and Mrs B Kelly of 220 Lemon Tree Passage Road, who also own adjoining Lots 10 and 11 previously mentioned and have the Crown lease on the land adjoining the rear boundary of the site;
Ms J McGhee, objector, 215 Lemon Tree Passage Road;
Mr C Griffin, objector, of 211 Lemon Tree Passage Road;
Mr C Williams, objector, or 213 Lemon Tree Passage Road;
Mr C Donohue, objector, of 217 Lemon Tree Passage Road;
Dr P Geary, Professor of Environmental Science and Management, and
Ms Fardy, Council’s Town Planner.

28 The applicant’s evidence came from:

Mr G Warne, Consultant Town Planner.

29 Dr Geary’s evidence is that Tilligerry Creek has been closed to oyster farming and fishing since 2005. The map of the oyster prohibition is in Exhibit 5. It includes the creek near the site. The cause of the prohibition is contamination from human waste, and he found many septic tanks that are undersized or not maintained properly where the effluent sinks through the sandy soil to the water table and follows it out to the creek.

30 He has been involved in studies in the area for the past ten years. He also gave evidence that pump-out tanks are expensive to maintain, and on the subject site, a bill of about eighty dollars ($80) a fortnight could be expected. As a result, it had been his and many sewer authorities experience that pump-out tanks are often syphoned or pumped out by irresponsible people to avoid the cost.

31 New South Wales health authorities and councils consider pump-out systems as a short term solution only until a full sewerage district system can be built. None is proposed for Salt Ash, and as a result pump-outs are tolerated but are monitored by Port Stephens Council to minimise abuse.

32 The new Council Development and Control Plan 2007, in cl B2.C55, says in effect:

“A pump-out would only be allowed on an existing undeveloped allotment where council is of the opinion on site disposal is not possible.”

33 On this site Dr Geary said it is too small, and being on the banks of the creek, too likely to cause contamination to allow on-site disposal. His said by being so close to the creek, abuse of the pump-out by syphoning would be a possibility. Council is seeking to eliminate existing sources of contamination and avoid any future sources.

34 On this matter it seems to me that Council has approved a pump out tank for the shed under construction on Lot 6. With that, and Lot 5 included in the site for the house, the status quo will not change on effluent disposal, except for more liquid having to be pumped out. I believe this deals with the effluent disposal issue in this appeal satisfactorily.

35 In regard to the objector’s concerns they were mainly from Mr Harris that the proposed development will impact on his views. He purchased his property about three years ago, and understood that the Lots would not be developed, and could be used as boat sheds only.

36 In regard to the Kellys, I have already mentioned the oyster farming business, and he was particularly concerned about any increased contamination in the creek.

37 In regard to Ms McGhee, her property was purchased only two years ago and alleges she was told that dwellings were not permissible on the subject site. She feared that traffic noise would increase as a result of the proposed development reflecting noise across to her house.

38 Mr Griffin said he had purchased his land before the subject site was re-zoned but he had bought on the basis that the applicant’s land would not be built on. He believed the proposal would impact on his views and the value of his property. He recently spent $5,000 upgrading his septic tank to a pump out facility. The potential for additional contamination from any other houses in the locality would make the creek’s problems worse. He felt that the proposed 2-storey dwelling would be an eye-sore.

39 Mr Williams also believed that the proposed building would increase traffic noise by reflecting it across to his house, and also that it might create a wind tunnel effect between it and the next house to the east of the site. He felt also it would decrease the value of his property. Mr Donohue already owns one of the boat shed Lots and he wondered if this meant he could build a house. He thought the house proposal would look like a shed. He also produced a newspaper advertisement to sell Lots 5 and 6 for $450,000. He was also concerned about wind tunnel impact of the proposal directly strong southerlies at his house. He felt the proposal was not in keeping with the locality.

40 It seems to me that however the objectors came to the opinion that there would be no dwelling on the subject property they did not fully inform themselves on the permissible uses in the Rural 1A zone, and that a State Environmental Planning Policy No. 1 objection, if upheld, could give an avenue of consideration for a dwelling being built on the site.

41 The Council in changing the zoning from the previous recreation zone that prohibited houses and many other uses, must implicitly have taken account of the change in status of the permissible uses.

42 The applicant produced letters from the Council dating back to 2002 at the time of the original application indicating that with consent a dwelling was permissible, and in the applicant’s mind inviting an application for consideration.

43 Mr Warne said in regard to issue 2.1A in his State Environmental Planning Policy No. 1 objection, where he analyses the zone objectives for the rural zone that the area of 4000 sq m minimum approximates one acre. In the absence of any reports to the contrary it was his experience the one acre area came originally from the Northumberland County Planning Scheme Ordinance of the 1960s for rural land which considered that a satisfactory minimum area for a rural house and its domestic facilities was about one acre. He felt that this provision in the current Statute was a carry over from previous statutes of the Council.

44 On this understanding of the origin of the standard he believed the underlying objective of the standard had been eroded to one of repetition of a standard. Currently he understood it to be an attempt to seek to give equity to land owners whose parcel of land had been created by historical subdivision where the property would have been sterilised by the coming into force of later environmental planning instruments, that would not have allowed for the erection of a dwelling house on such land.

45 Ms Fardy noted that previously the land had been zoned for recreation under previous instruments, and houses had not been permissible on it.

46 Mr Warne said clearly if the Council in formulating the new statute had considered that condemnation of the Standard was unacceptable on planning or environmental grounds it would have removed the minimum area. Since it still applies he concluded that its application to this proposal is a matter for consideration under State Environmental Planning Policy No. 1.

47 In looking at the objectives of the rural zone he noted that it stated:

(a) regulating the development of rural land for the purposes other than agriculture, by ensuring that development is compatible with rural land uses, and does not adversely affect environmental humanity of the locality.

48 He noted that the subject site is within a hamlet, it is not rural or agricultural land, and therefore the proposal is not antipathetic to the character of the adjacent village houses.

49 In regard to item (b) of the objective, namely:

“ensuring development will not have a detrimental affect on established agriculture operations, or rural activities in the locality”

50 He said that the subject land is not known to have been identified as grazing, or prime agriculture lands, nor are they located in proximity to agriculture lands such that they would prevent their effective use.

51 In regard to objective (c) namely:

“preventing the fragmentation of grazing or prime agricultural lands protecting the agricultural potential of the rural land not identified for alternative land use, and minimising the costs to the community of fragmented and isolated development of rural land, and providing, extending and maintaining public amenity, and services”

52 He said once again the subject lands are not known to have been identified as grazing or prime agricultural lands, nor are they in proximity to such lands, and being within the hamlet they will not increase the cost to the community of providing, or extending, and maintaining public amenities and services.

53 In regard to objective (d), namely:

54 He said there are no known issues relative to soil stability, trees, damage to water resources, impact of acid sulphate soils, or any valuable deposits of minerals related to the site.

55 In regard to objective (e), namely:

“reducing incidents of loss of life, and damage to property, and the environment in localities subject to flooding and to enable uses and developments consistent with the flood plain management practices”

56 He said the Council has not raised any issues relative to the potential for the loss of life or damage to property. However the many areas of Salt Ash are inundated in the 1 in 100 year flood event. The Council has only sought to impose a height limit for the floor level of a minimum 2.5 m AHD, and it is known that the 1 in 100 year flood event is calculated to be RL 2 m AHD.

57 Also in regard to the New South Wales Flood Plain Development Manual the potential for loss of life or damage to properties is addressed by the development achieving that flood safety height, and by having easy access to high ground on which residents can be evacuated.

58 In regard to the objectives of SEPP No. 1 and 9.5 of the Environmental Planning and Assessment Act 1979, in the circumstances of this case the development will not be antipathetic to the proper management development and conservation of natural areas. Nor does it restrict the social and economic welfare of the community. It would ensure a better utilisation of land in close proximity to services already provided for other similar dwellings in the hamlet, and as such it should be seen as encouraging the proper management of land.

59 In regard to whether compliance with the Standard would be unreasonable or unnecessary in the circumstances of this case he said that potentially if the objection is not upheld the land could be sterilised, undeveloped and unmanaged and having no significant potential or practical economic use.

60 In regard to the minimum area standard, being within the hamlet and given the consolidation of Lots 5 to 9 as the site, the development would present no differently from other development on the same side of the road at Salt Ash.

61 In considering whether the objection is well founded he noted that any approval was unlikely to cause a precedent in the locality, or undermine the Standard, since the only other vacant allotment in the immediate vicinity, and within the hamlet, is Lot 4 DP 36877, which is diagonally across the road, and is understood to be in the same ownership as No. 221 Lemon Tree Passage Road.

62 That would mean there is only the potential for one additional house within the hamlet. That particular Lot has an area of approximately 560 sq m, which is about the same size as the subject proposal with a consolidation of the five allotments, and is a similar size to other house lots in the hamlet being Nos. 209, 211, 213, 215, and 221 Lemon Tree Passage Road.

63 In that regard the proposal is in the nature of an in-fill development within an existing rural village, and would not change any substantive or detrimental manner the character of the immediate area.

64 In regard to clause 44 of the LEP requiring the consideration of the aesthetic appearance of the proposed development when viewed from the nearby waterway he noted that the general appearance of the house from the waterway is not unlike that of a similar house, No. 215 Lemon Tree Passage Road, also visible from the waterway although the subject proposal would be closer. It is of a simple design, not necessarily a poor design, in that it orients the living areas towards the north with views of the waterways. It provides for the raising of the house above the 1 in 100 year flood event. With all of the Lots consolidated into one it provides adequate space for normal domestic facilities and yard spaces that would not have been available if the application remained only on Lots 8 and 9. With the intention of the owner to use muted tones, as described in the application, namely mushroom wall cladding, mist green roofing and primrose detailing, he said it is unlikely the building will present poorly to the views from the waterways, and the materials would not be highly reflective.

65 In regard to the questions of stability of land, bushfire hazard, and vegetation on the land, there were no issues in regard to those matters that were of relevance, because the land is vegetated only with grasslands. There was no issue in regard to its stability, or evidence in regard to its instability.

66 In regard to its fit into the nature of the hamlet he considered it was comparable in design to many of the existing houses in the hamlet, and once the large sheet metal fence on the frontage to the street was removed, and an appropriate front fence and landscaping substituted it should fit into the area such that it would form part of the village character of the hamlet.

67 In regard to any affect on the views of nearby houses, for the most part they are elevated and would also see between the houses fronting the creek across their yards to the waterway and the vegetation beyond, and at such distance it could not be considered to be an unacceptable impact.

68 In regard to the part 3(A), Rivers and Foreshores Improvement Act 1948, the issues themselves indicate that it could be dealt with by way of a condition of consent. In regard to aircraft noise impact the applicant has provided Council with an acoustic engineer’s report in relation to aircraft noise exposure forecasts which indicated that the house can be made to comply with necessary Australian Standards to mitigate aircraft noise. This is included as a condition of consent.

69 The additional information provided since the original application in 2002 gave sufficient details for the application to be given full consideration under s 79C.

70 Overall I have come to the opinion that Mr Warne’s evidence is reasonable and acceptable, and that there is no reason sufficient for refusal of the application. Therefore the orders of the Court are:

1. The appeal is upheld.

2. Deferred commence consent is granted to a 2-storey house at the consolidated allotment of Lot 5, 6, 7, 8 and 9. Section A DP36877, Lemon Tree Passage Road, Salt Ash, Port Stephens as shown on the subject plans Drawing No. 41002 Sheets 1 to 5 all dated October 2002 by Charlestown Plan Service all as amended by and built in accordance with the Conditions in Annexure A hereto.

___________________

K G Hoffman

Commissioner of the Court

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Lawrence v Port Stephens Council [2007] NSWLEC 386

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CITATION:	Lawrence v Port Stephens Council [2007] NSWLEC 386
PARTIES:	APPLICATION Wayne Lawrence RESPONDENT Port Stephens Council
FILE NUMBER(S):	10008 of 2007
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- 2-storey house, rural land, minimum site area, flood, contamination of water table and waterway, waste water disposal, character of the rural zone, appearance from the waterway, land fill on adjoining lots, aircraft noise exposure.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Plan Policy No. 1 Port Stephens Local Environmental Plan 2000 Hunter Regional Environmental Plan 1989 Rivers and Foreshores Improvement Act 1948 Development Control Plan 2007 Northumberland County Planning Scheme Ordinance 1960
DATES OF HEARING:	13/04/2007 and 08/06/2007
EX TEMPORE JUDGMENT DATE:	8 June 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr W. Lawrence, litigant in person RESPONDENT Ms D. Grant, solicitor of Sparke Helmore