Liberty Investments Pty Ltd v Blacktown City Council

[2009] NSWLEC 7

Land and Environment Court

of New South Wales

CITATION:

Liberty Investments Pty Ltd v Blacktown City Council [2009] NSWLEC 7

PARTIES:

APPLICANT
Liberty Investments Pty Ltd

RESPONDENT
Blacktown City Council

FILE NUMBER(S):

10942 of 2007

CORAM:

Sheahan J

KEY ISSUES:

APPEAL :- s.56A appeal against decision of Commissioner; whether Commissioner erred in law

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

CASES CITED:

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Coffs Harbour Environment Centre Inc v Minister for Planning and Coffs Harbour City Council (1994) 84 LGERA 324
Coles v Woollahra Municipal Council (1986) 59 LGRA 133
Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177
Goldin and Another v Minister for Transport [2002] NSWLEC 75; (2002) 121 LGERA 101
Hill v Blacktown City Council [2007] NSWLEC 108
Hill v Blacktown City Council [2007] NSWLEC 401; (2007) 154 LGERA 418
Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438
Legal & General Life of Australia Ltd and Another v North Sydney Municipal Council and Another (1989) 68 LGRA 192
Legal & General Life of Australia Ltd v North Sydney Municipal Council and Another (1990) 69 LGRA 201
Liberty Investments Pty Limited v Blacktown City Council [2008] NSWLEC 1153
SCMP Properties Pty Ltd v North Sydney Municipal Council (1983) 130 LGERA 351
Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446
Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46

DATES OF HEARING:

16 September 2008

 
DATE OF JUDGMENT: 

4 February 2009

LEGAL REPRESENTATIVES:

APPLICANT
Dr J Griffiths SC with Mr D Tynan
SOLICITORS
Mr A Bisits

RESPONDENT
Mr A Galasso SC
SOLICITORS
Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

4 February 2009

10942 of 2007 Liberty Investments Pty Ltd v Blacktown City Council

JUDGMENT

Introduction

1 His Honour: Commissioner Tuor dismissed an appeal by the Applicant company against the refusal by the Council of a development application (DA 06-2412) to construct a single storey dwelling on lots 92, 93, 164 and 165 of s.9 DP1229 Cleveland Road and Chaucer Road, Riverstone, comprising an area of 1,188.8m2.

2 The Commissioner’s reserved judgment - [2008] NSWLEC 1153 - was delivered on 29 April 2008. Most of the disputes about the merits of the proposal had fallen away by the time of the Commissioner’s hearing and the major matters before her were an “SEPP 1” objection, and the question of whether approval would establish an undesirable precedent.

3 The Applicant has appealed against the Commissioner’s decision, pursuant to s.56A of the Land and Environment Court Act 1979.

4 The Respondent filed in the hearing before me its exhibits from the hearing before the Commissioner, and the Applicant tendered its Statement of Environmental Effects (“SEE” - Exhibit L1) concerning this particular application (There were several related cases on foot at the same time). The transcript of the hearing before the Commissioner was also available to me in the court file.

5 I have thoroughly examined all this material and the written and oral submissions of senior counsel for the respective parties.

The Factual Background

6 The parties are agreed that the relevant planning framework is accurately set out in the Commissioner’s judgment (See pars [6] - [13]). The State Environment Planning Policy (Sydney Region Growth Centres) 2006 (“the Growth Centres Policy”), the Sydney Regional Environmental Plan No.19 - Rouse Hill Development Area (“REP19”), and the Blacktown Local Environmental Plan 1988 (“the LEP” - Exhibit 3) apply to the subject land.

7 The subject land is located within the growth centres precinct referred to as “Marsden Park North”. That precinct is not a first release precinct, and the land is not zoned under the Growth Centres Policy, but it is identified for future urban development. (Marsden Park North precinct is anticipated to accommodate 4,000 dwellings and a population of 11,200). A number of rural dwellings have been erected in the area, some without consent. Land to the west across Cleveland Road includes rural residential development and small farms. The REP includes the subject site as a “living area”.

8 The site has sealed road access and stormwater drainage on either side of it. Access will require the installation of a culvert or a dish crossover. There is a water main on the western side of Cleveland Road and an on-site sewer treatment facility was proposed pending the provision of a sewer main. The Applicant was prepared to provide power to the requirements stipulated by the supply authority (a power pole is located in the north-eastern corner of the site). A 20,000 litre water tank was proposed for the south-eastern corner of the dwelling. The dwelling was to be located in the centre of the site to minimise disturbance to native vegetation.

9 The location of the subject land, as pictured in Exhibit 7, places it amidst a grid of small blocks in an area marked “1(a) (Clause 12(3))”. The significance of that marking can be gleaned from the provisions of the LEP. At p.41 of the LEP the zoning table deals with Zone 1(a) (General Rural Zone). The objectives of the zone are as follows:

“(a) to ensure that actual or potential agriculturally productive land is not withdrawn unnecessarily from production;
(b) to ensure that development in rural areas is carried out in a manner that minimises risks from natural hazards and does not unreasonably increase demand for public services;
(c) to provide for urban support functions; and
(d) to ensure that development within the rural zones does not hinder the proper and orderly development of any future urban lands .”

10 Clause 9(3) (p.40 of the LEP) provides as follows:

“ Except as otherwise provided by this plan, the consent authority shall not grant consent to the carrying out of development on land to which this plan applies unless the consent authority is of the opinion that the carrying out of development is generally consistent with one or more of the objectives of the plan and one or more of the objectives of the zone within which the development is proposed to be carried out.”

11 Even a modest dwelling house requires consent. Residential development in rural zones is dealt with in cl.12 (p.66 of the LEP), the relevant provisions of which are as follows:

“Dwellings in rural zones
(1) In this clause:
parcel, in relation to land, includes an area of adjoining or adjacent land held in the same ownership.
(2) Subject to subclauses (3)–(5), a dwelling shall not be erected on a parcel of land within Zone No 1 (a) unless the parcel of land has an area of not less than 4 000 square metres.
(3) Notwithstanding subclause (2), a dwelling shall not be erected on a parcel of land within Zone No 1 (a) and marked “Clause 12 (3)” on the map unless the parcel of land has an area of not less than 10 hectares.”

This Appeal

12 The appeal against the Commissioner’s decision relies on the following grounds:

“ 1. Commissioner Tuor made an error of law by misconstruing and misapplying the provisions concerning objection under State Environmental Planning Policy No 1 – Development Standards (SEPP1 ).
2. Commissioner Tuor made an error of law by misapplying the decision of Wehbe v Pittwater Council [2007] NSWLEC 827 (Wehbe) in the following respects:
(a) Commissioner Tuor erred in treating the categories of objection to SEPP 1 identified by Preston CJ in Wehbe as exhaustive;
(b) Commissioner Tuor erred in not finding that the Applicant’s objection fell within categories 2 and 4 of the categories of objection to SEPP 1 identified by Preston CJ in Wehbe; and
(c) Commissioner Tuor erred in not finding that the Applicant’s objection otherwise fell within the proper ambit of SEPP 1.
3. Commissioner Tuor made an error of law by failing to take into account the following relevant considerations, being the matters set out in clause 16 of State Environmental Planning Policy (Sydney Region Growth Centres) 2006.
4. Commissioner Tuor made an error of law by taking into account an irrelevant consideration, being whether approval of the Applicant’s application would set a precedent for other applications.”

13 The relevant provisions of SEPP 1 are as follows:

“ 3 Aims, objectives etc
This Policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5 (a) (i) and (ii) of the Act.
...

6 Making of applications
Where development could, but for any development standard, be carried out under the Act (either with or without the necessity for consent under the Act being obtained therefor) the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying the grounds of that objection.
7 Consent may be granted
Where the consent authority is satisfied that the objection is well founded and is also of the opinion that granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3, it may, with the concurrence of the Director, grant consent to that development application notwithstanding the development standard the subject of the objection referred to in clause 6.”

14 On 12 August 2008 the Respondent filed the following Notice of Contention:

“ The respondent contends that the decision of the court below should be affirmed on grounds other than those relied on by the court below, but does not seek a discharge or variation of any part of the decision.
Grounds
The Commissioner’s decision to refuse to uphold the SEPP 1 objection should be upheld on the ground found by the Commissioner that strict compliance with the standard would not tend to hinder the attainment of the objects specified in Section 5(a)(i) and (ii) of the Act .”

15 The objects of s.5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979 (“EPA Act”) provide as follows:

“(a) to encourage:
(i) 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,
(ii) the promotion and co-ordination of the orderly and economic use and development of land”.

The SEPP 1 Objection

16 The SEE (Exhibit L1) noted that the subject land is within the “scheduled lands” at Riverstone. It referred to the minimum lot size (MLS) restrictions in the LEP, and annexed a SEPP 1 application alleging that the relevant development standard (i.e. the 10ha limit) is unreasonable and/or unnecessary.

17 In respect of Zone Objective (a), the SEPP 1 objection asserted that the site is not, and is never likely to become, “agriculturally productive land”. The subdivision and its ownership is highly fragmented and the prospect of gathering 10ha together at anything like agricultural land values would be most unlikely. There is no significant agricultural activity in the immediate locality and none appears to be contemplated by the emerging regional planning instruments.

18 In respect of Zone Objective (b), concerning “natural hazards”, the SEPP 1 objection pointed out that the dwelling would not be flood liable and that the Applicant would meet requirements relevant to its fire prone status. “The Applicant believes that the addition of one dwelling will not unreasonably increase the demand for public services, particularly when the existing public services provide for a very large area of urban activity”.

19 Zone Objective (c) is not applicable in this case, and, in respect of (d) regarding future urban development, the SEPP 1 objection argued (as does the SEE) that all services can be provided and any relocation or reconnection subsequently required can be viably undertaken. “There need be no financial impact on any party other than the Applicant”.

20 The SEPP 1 objection continued: “The Applicant doubts that the 10ha MLS was ever based on any convincing analysis of the potential for agricultural land use. If an analysis was undertaken then the circumstances have long since changed and therefore the 10ha MLS is no longer relevant”. Accordingly, “if there are no other conflicts with the 1(a) Rural zone objectives, then under the prevailing circumstances the imposition of the 10ha MLS standard is unnecessary and unreasonable”.

21 The Commissioner had before her a joint Town Planning Report from Syd Craythorn, Consultant Town Planner representing the Applicant and Glenn Apps, Town Planner for the Respondent Council, dated January 2008 (Exhibit 9), and (at par 5.2) the experts agreed that:

“ Clause 12(3) of the Blacktown LEP, 1988, has set a development standard that:

· Appears to have little or nothing to do with agriculture or the 1(a) General Rural zone objectives,

· The experts are not aware of any supporting research or documentation arguing or explaining that the 10 hectare minimum lot size (MLS) is for an agricultural purpose.

· That the 12(3) zone has cadastral and infrastructure patterns not suited to agricultural purposes, and

· That the pattern of private land ownership within the 12(3) zone has been historically fragmented, all of it well below the 10 hectare MLS.

The 10 hectare MLS has had the effect of severely restricting any residential development activity. The 10ha MLS is not aimed at controlling agricultural activities.
The experts further agree that the land is the subject of contemporary strategic planning activity that envisages some form of urban and not rural landuse. This is evidenced by adoption of the Sydney Regional REP No.19, 1989, and the more recent SEPP (Sydney Region Growth Centres) 2006.
The SEPP prevails to the extent of any inconsistency with an LEP (Clause 6).
Clause 16 of the SEPP refers to the assessment of applications in the interim period whilst precinct planning is being completed. The SEPP mentions matters to be taken into consideration. The matters to be taken into consideration include further fragmentation (c. 16(1)(c), but do not mention an MLS of any area.
The experts agree that the reason for the 10ha MLS may have been to prevent dwelling development. ”

Consideration

22 The Judge on a s56A appeal does not review the Commissioner’s decision on the merits, but reviews it for any error of law, refraining from using what the authorities call a “fine tooth comb” approach (see, for example Coles v Woollahra Municipal Council (1986) 59 LGRA 133, at 138, and also Meagher JA in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, at 444).

23 The parties to this appeal agree that the learned Commissioner in her judgment correctly stated the planning regime relevant to the application and they make no criticism of the factual material she set out ([1]-[13] and [19]-[23]). At [14]-[18] the Commissioner addressed, correctly in my opinion, a submission made on behalf of the applicant that clause 12(3) ought not apply to the application because of an asserted inconsistency with clause 16 of the Growth Centres Policy.

24 Having determined that clause 12(3) did apply - Coffs Harbour Environment Centre Inc v Minister for Planning and Coffs Harbour City Council (1994) 84 LGERA 324 per Kirby P at [4] - thus necessitating that the applicant make good its SEPP 1 objection to dispense with the stipulations of that sub-clause, the Commissioner moved on to consider that objection ([24]-[42]), the relevance of the Growths Centres Policy ([42]-[43]), and Council’s concern that any approval of this application would have a precedent effect on planning and development in the zone ([43]-[49]).

25 As Lloyd J said in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46; (2001) 130 LGERA 79 (“Winten”), at [26], referring to Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 (“Hooker Corporation”):

“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?”

26 Apart from Hooker Corporation (especially at 441-2), Winten draws on SCMP Properties Pty Ltd v North Sydney Municipal Council (1983) 130 LGERA 351, and the later decision of Cripps ChJ in Legal & General Life of Australia Ltd and Another v North Sydney Municipal Council and Another (1989) 68 LGRA 192 where His Honour said (at 202):

“To date the Court has had no occasion to attempt to define the limits of the dispensing power based upon an objection that compliance with the standard is unnecessary or unreasonable in the circumstances of a case. It has expressed the opinion that an objection is well-founded if it is shown that the underlying purpose of the development standard is satisfied by the particular development proposed... ”

and (at 203, approved on appeal in 1990 at 69 LGRA 201, per Preistley JA at 210):

“The discretion vested in councils under SEPP No 1 is wide and, subject to limitations to be found in the instrument itself and in its relation to the Environmental Planning and Assessment Act, is unconfined. The express limitation is that the council must be of the opinion that the objection is well founded and the grant of consent is consistent with the aims set out in cl 3 of the policy. The implied limitation is that the discretion must be exercised by reference to planning considerations the width and generality of which is to be found in s 5 and s 90 of the Environmental Planning and Assessment Act. The above interpretation of the width of the discretion derives essentially from SEPP No 1 itself, the validity of which was not challenged. Moreover, I can see no reason in principle why the discretion should not be wide. The purpose of SEPP No 1 is to provide flexibility in the decision making process. Parliament has entrusted to councils the function of administering some of the planning laws of the State. SEPP No 1 is simply a planning tool designed to improve the decision making process. Furthermore, it should be remembered by those who, apparently, believe that councils should not be entrusted with such a wide discretion that the effectiveness of the exercise of the council's discretion is itself subject to limitation. For a consent under SEPP No 1 to be valid, it requires the concurrence of the Director of Planning. In the present case, concurrence was given under delegated authority and neither the delegation nor the exercise of the power has been challenged.”

27 Cases such as these lead to the conclusion that the SEPP 1 power is to be widely interpreted but not so as to bring about changes of general application in the relevant planning controls or instruments, or de facto rezonings of land. See also Hill v Blacktown City Council [2007] NSWLEC 108 and (on appeal) [2007] NSWLEC 401; (2007) 154 LGERA 418.

28 In the hearing of this appeal much attention was paid to the Commissioner’s application of Preston ChJ’s decision in Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 (“Wehbe”), in which His Honour surveyed the relevant authorities and sought to lay down some general principles to be applied when dealing with SEPP 1 objections (See, especially [36]-[52]). Dr Griffiths SC submitted that Tuor C applied Wehbe too rigidly to the circumstances of the current case. The Commissioner noted (at [30]) that neither party put the case to her during submissions, but it was decided and published some two months prior to the hearing.

29 On a close reading of both the Chief Judge’s decision in Wehbe, and the Commissioner’s judgment in this matter, it is clear that His Honour did not intend his analysis to be an exhaustive code to be strictly applied whenever SEPP 1 is relied upon, and equally clear that Tuor C did not see it as incumbent upon her in any way to so apply it. The learned Chief Judge, like Cripps J and Lloyd J in the earlier cases to which I have referred above, sought to provide up-to-date guidance and some examples to assist those who apply SEPP 1.

30 Tuor C correctly delineated the Court’s proper role, correctly tested the merits of the objection upon which the current application relies, against the objectives of the standard governing it (however “outdated” that standard may be thought to be), rather than those of the zone, and, contrary to the submissions for the Applicant in the hearing of this appeal, correctly avoided trying to “force-fit” the circumstances of this case into any one of the five “legs” of Wehbe (see, especially, pars [38]-[39] of her judgment).

31 Accordingly, the first 2 grounds of appeal (set out in [11] above) must fail.

32 In those circumstances it is not necessary for the Court to address specifically the Respondent’s notice of contention, which would appear persuasive, but was not fully argued. Grounds 3 and 4 were, however, fully argued and will be now considered.

33 As Tuor C noted in her judgment (at [9]), clause 16 of the Growth Centres Policy sets out matters for consideration in assessing development applications until precinct planning for affected land is finalised, including

“ a) whether the proposed development will preclude the future urban and employment development land uses identified in the relevant growth centre structure plan,
(b) whether the extent of the investment in, and the operational and economic life of, the proposed development will result in the effective alienation of the land from those future land uses,
(c) whether the proposed development will result in further fragmentation of land holdings, ”

34 No precinct plan has yet been prepared to regulate future use of the subject land as urban. Tuor C found no inconsistency between the clause 16 matters and those to be considered under clause 12(3) of the LEP, and held that they did not override the need or requirement for the SEPP 1 objection to be upheld before a full merit assessment took place (see [41]-[43] of her judgment).

35 That conclusion is clearly correct at law, so ground 3 must, accordingly, fail.

Ground 4 - Precedent

36 That brings me, therefore, to ground 4, which argues that it was an error of law on the Commissioner’s part to take into account an irrelevant consideration, namely, whether an approval of the current application would set a precedent.

37 Commissioner Tuor quoted (in [45]) from Sugerman J’s decision in Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177 (“Emmott”) 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."

38 In Goldin and Another v Minister for Transport [2002] NSWLEC 75; (2002) 121 LGERA 101, Lloyd J said (at [28]) of Emmott:

“As I understand the decision, if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration.”

39 On the basis of Goldin, the authority of which has never been questioned, to my knowledge, and the persuasiveness of which I happily accept, it can not be an error of law to take the potential of a precedent effect into account. The “itself unobjectionable” development in this present case would appear to bring it within the scope of Emmott and Goldin, as Tuor C found (see pars [43] to [49] of her judgment).

40 Accordingly. I conclude that ground 4 of this appeal must also fail.

Conclusion

41 On the bases outlined above, this appeal must be dismissed. It is also appropriate that the Applicant be ordered to pay the Respondent’s costs.

42 The Orders of the Court will, therefore, be:

1. The Applicant’s appeal is dismissed.

2. The Applicant is ordered to pay the Respondent’s costs of this appeal.

3. All exhibits may be returned