MB Investments Pty Ltd v Hawkesbury City Council

[2015] NSWLEC 1361

Land and Environment Court

New South Wales

Medium Neutral Citation:

MB Investments Pty Ltd v Hawkesbury City Council [2015] NSWLEC 1361

Hearing dates:

12-13 August, 2015

Decision date:

01 September 2015

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

1.  The appeal is upheld.

2.  Development Application No. 0476/14 for a two lot subdivision of the land at 16-18 Kaldow Lane, Grose Vale, is approved, subject to the conditions of consent at Annexure ‘A’.

3. The exhibits, other than exhibit 1, 5, A and C, are returned.

Catchwords:

DEVELOPMENT APPLICATION: two lot subdivision; non-compliance with the minimum lot size development standard; whether an exception to the minimum lot size development standard applies to the land; impact of future development of the allotments on remnant stands of Cumberland Plain Woodland on the site; and whether consent for the proposal will set a planning precedent.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Threatened Species Conservation Act 1995

Category:

Principal judgment

Parties:

M & B Investments Pty Ltd (Applicant)
Hawkesbury City Council (Respondent)

Representation:

Counsel:
Mr T. Robertson SC (Applicant)
Mr S. Griffiths solicitor (Respondent)
Solicitors:
Bennett Legal (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

10229 of 2015

Judgment

1. COMMISSIONER: This is an appeal, pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act1979 (EPA Act), against the refusal of Development Application No. 0476/14 for a two lot subdivision (the proposal) of the land at 16-18 Kaldow Lane, Grose Vale (Lot 1 DP 668098 and Lot 2 DP 1083601) (the site) by Hawkesbury City Council (the Council).

2. The appeal was subject to mandatory conciliation on 12 May 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 4 June 2015, pursuant to s 34(4) of the LEC Act.

Issues

3. The Council’s contentions in the matter can be summarised as:

• The creation of two lots below the minimum subdivision lot size will not provide for the conservation of Cumberland Plain Woodland on and near the site, as it will fragment the remnant areas of Cumberland Plain Woodland and increase the intensity of development on land which contains Cumberland Plain Woodland;

• The exception clause in Hawkesbury Local Environment Plan 2012 (LEP 2012) to the minimum lot size does not apply to the site as it does not contain any environmental constraint area;

• The upgrading of the access way (Kaldow Lane) to the site will adversely impact on the Cumberland Plain Woodland; and

• The proposal will set a precedent for other similar subdivisions of lots below the minimum lot size.

The site and its context

4. The site is roughly triangular in shape with a total area of 2.8868 ha and consists of two allotments, a long narrow lot (Lot 1 DP 668098) running along the northern boundary and the bulk of the site (Lot 2 DP 1083601).

5. The site falls from the northern boundary to the south/south-west. The site is accessed from the east along an unmade road, Kaldow Lane, which is accessed from Grose Vale Road.

6. There are three extant stands or remnants of Cumberland Plain Woodland extending onto the site at its three corners; the north-eastern stand extends along Kaldow Lane into the site, the north-western stand is the largest area of Cumberland Plain Woodland on the site and there is a stand on the adjoining property to the south-east which extends onto the site. The site has been used for agricultural activities and is currently a cleared grazing paddock.

7. The area is characterised by rural, residential land uses.

The proposal

8. The proposal is to consolidate the two existing lots and subdivide the site into two allotments of 1.46 and 1.42 ha, both accessed from Kaldow Lane.

Planning framework

9. The site is zoned RU4 Primary Production Small Lots pursuant to the Hawkesbury Local Environment Plan 2012 (LEP 2012). The objectives of the RU4 zone are:

• To enable sustainable primary industry and other compatible land uses.

• To encourage and promote diversity and employment opportunities in relation to primary industry enterprises, particularly those that require smaller lots or that are more intensive in nature.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

• To ensure that development occurs in a way that does not have a significant adverse effect on water catchments, including surface and groundwater quality and flows, land surface conditions and important ecosystems such as waterways.

10. Sub-clause 4.1(3) of LEP 2012 requires that the size of any lot resulting from a subdivision of land to which the clause applies is not to be less than the minimum size shown on the Lot Size Map and the site is located within an area identified as ‘Z2’, being a minimum of 4 ha (Lot Size Map Sheet - LSZ_008A LEP 2012). The objectives of cl 4.1, at (1) are:

(a) to ensure that the pattern of lots created by subdivision and the location of any buildings on those lots will minimise the impact on any threatened species, populations or endangered ecological community or regionally significant wetland, waterways and groundwater as well as any agricultural activity in the vicinity,

(b) to ensure that each lot created in a subdivision contains a suitable area for the erection of a dwelling house, an appropriate asset protection zone relating to bush fire hazard and a location for on-site effluent disposal if sewerage is not available,

(c) to ensure a ratio between the depth of the lot and the frontage of the lot that is satisfactory having regard to the purpose for which the lot is to be used.

11. The site is located within an area identified on the Lot Size Map as Area B and edged heavy yellow (Lot Size Map Sheet - LSZ_008A LEP 2012). The legend on the Lot Size Map identifies Area B as ‘Refer to Clause 4.1E’. Clause 4.1E of LEP, Exception to minimum subdivision lot size for Grose Wold, relevantly includes the following:

(1) The objective of this clause is to provide an alternative method to clause 4.1 for the subdivision of land to which this clause applies in a way that ensures the protection of the Cumberland Plain Woodland.

(2) This clause applies to land in the area known as “Grose Wold”, being the land identified as “Area B” and edged heavy yellow on the Lot Size Map.

(3) Development consent may be granted for the subdivision of land to which this clauses [sic] applies only if:

(a) the consent authority is satisfied that the pattern of lots to be created by the subdivision and the location of any buildings on those lots will minimise the impact on any Cumberland Plain Woodland, any land in an environmental constraint area and waterways and groundwater, and

(b) the consent authority has considered a geotechnical assessment demonstrating the land is adequate for the on-site disposal of effluent in accordance with best practice, and

(c) the Cumberland Plain Woodland and any land in an environmental constraint area is retained in one lot as much as possible, and

(d) the consent authority is satisfied there will be no significant adverse impacts on Cumberland Plain Woodland or land in any environmental constraint area located downstream or surrounding the development.

(4) Despite clauses 4.1, 4.1AA, 4.1A and 4.1C, if land to which this clause applies contains an environmental constraint area, development consent must not be granted for the subdivision of that lot unless:

(a) the number of lots to be created for a dwelling house by the subdivision will not exceed the area of the original lot for the land to be subdivided, in hectares, divided by 4, and

(b) any lot created for a dwelling house will contain at least one hectare of land that is not in an environmental constraint area.

(5) When considering a development application to which this clause relates, the consent authority must have regard to the effect the development is likely to have on the following:

(a) the water quality and water quantity in the Grose River and its tributaries,

(b) the scenic quality of the area,

(c) existing riparian vegetation, the rehabilitation of local native riparian vegetation located along the Grose River and along drainage lines and creeks.

(6) In this clause:

Cumberland Plain Woodland means the critically endangered ecological community with that name referred to in Part 2 of Schedule 1A to the Threatened Species Conservation Act 1995.

environmental constraint area means land identified as “Environmental Constraint Area” on the Environmental Constraints Area Map.

original lot for land being subdivided means a lot that existed immediately before 2 June 2000 that included the land.

12. No part of the site is identified as an environmental constraint area (Environmental Constraints Area Map Sheet - ECA_008A LEP 2012). There is an environmental constraint area identified on the map immediately adjacent to the south-eastern corner of the site.

13. The site is identified by the Terrestrial Biodiversity Map as containing both significant vegetation and connectivity between significant vegetation:

Extract Terrestrial Biodiversity Map Sheet BIO_008A LEP 2012

14. An exception to the minimum subdivision lot size development standard cannot be made under cl 4.6 of LEP 2012 in this appeal, as sub-cl 4.6(6) does not permit development consent to be granted under this clause for the subdivision of land in the RU4 zone if it will result in two or more lots of less than the minimum area specified by the development standard or one lot that is less than 90% of the minimum area specified by the development standard.

15. Clause 6.4 Terrestrial biodiversity, relevantly includes the following:

(1) The objective of this clause is to maintain terrestrial biodiversity by:

(a) protecting native fauna and flora, and

(b) protecting the ecological processes necessary for their continued existence, and

(c) encouraging the conservation and recovery of native fauna and flora and their habitats.

(2) This clause applies to land identified as “Significant vegetation” and “Connectivity between significant vegetation” on the Terrestrial Biodiversity Map.

(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider:

(a) whether the development:

(i) is likely to have any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and

(ii) is likely to have any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and

(iii) has any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and

(iv) is likely to have any adverse impact on the habitat elements providing connectivity on the land.

(b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that:

(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b) if that impact cannot be reasonably avoided by adopting feasible alternatives—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

Consideration

Whether an exception to the minimum subdivision lot size applies to the site

Council’s submission

16. It is the Council’s submission that sub-cl 4.1E(3) of LEP 2012 is to be read in conjunction with cl 4.1, such that any subdivision of a lot within the Z2 minimum 4 ha area on the Lot Size Map and within the area known as Grose Wold identified on the Lot Size Map as Area B must be a minimum of 4 ha and satisfy the all the requirements at sub-cl 4.3(3) in order to be granted development consent. Based on this interpretation of LEP 2012, which the Council says is the way the instrument has been applied to past development applications, the Council submits that the proposal, being for a subdivision that will result in two lots of 1.42 and 1.46 ha respectively, is below the minimum lot size in circumstances where the objectives and requirements of the exception clause do not apply, as the site does not contain an environmental constraint area and the application cannot be availed of sub-cl 4.1E(d) of LEP 2012.

17. The Council further submits that both the heading of cl 4.1E and the objective in sub-cl 4.1E(1) were inserted into the instrument by the Parliamentary Committee and do not adequately reflect Council’s prior application of the historic versions of this clause in its former environmental planning instruments. In support of this argument, Council included cl 41AA of Hawkesbury Local Environment Plan 1989 and cl 4.1C of the Draft Hawkesbury Local Environment Plan 2009 (exhibit 1, ff 1-2) in the Council bundle (exhibit 1).

Findings

18. Clause 4.1E in LEP 2012 applies to site at sub-cl 4.1E(2), as the site is within the area known as Grose Wold, being the land identified as Area B and edged heavy yellow on the Lot Size Map (Lot Size Map Sheet - LSZ_008A LEP 2012). Clause 4.1E provides an alternative method to cl 4.1 of LEP 2102, for the subdivision of land to which it applies, in a way that ensures the protection of the Cumberland Plain Woodland, at sub-cl 4.1E(1) [italics added].

19. The size of an allotment of land in the area known as Grose Wold and identified as Area B on the Lot Size Map, need not be consistent with the minimum lot size shown on the Lot Size Map, as cl 4.1E of LEP 2012 provides an alternative qualitative method of determining the lot size instead of the quantitative method in cl 4.1 of LEP 2012 for the subdivision of land; but development consent may only be granted if the proposal satisfies each of the four requirements at sub-cl 4.1E(3). If the land contains an environmental constraint area, development consent may only be granted if the proposal also satisfies the two requirements at sub-cl 4.1E(4). In considering a subdivision application pursuant to cl 4.1E, the consent authority must have regard to the effect of the development on the items listed at sub-cl 4.1E(5). The object of the alternative method for determining a minimum lot size within the Grose Wold area is to ensure the protection of the Cumberland Plain Woodland.

20. Council’s submission, that sub-cl 4.1E(3) of LEP 2012 further qualifies the minimum lot size identified on the Lot Size Map and that sub-cl 4.1E(d) is the only provision that provides an exception to the lot size development standard in cl 4.1, misinterprets LEP 2012. Clause 4.1E applies to all the land identified on the Lot Size Map as Area B, at sub-cl 4.1E(2), as an alternative qualitative method of determining subdivision lot size for the area known as Grose Wold for the purpose of conserving the Cumberland Plain Woodland.

21. Sub-clause 4.1E(4) of LEP 2012 is not a relevant consideration as the site does not contain an environmental constraint area. Sub-clause 4.1E(4) provides a higher threshold for the subdivision of land containing an environmental constraint area, by requiring that such an application, in addition to the requirements of cl 4.1E(3), also satisfy both requirements of sub-cl 4.1E(4).

22. When considering the proposal, the Court, as the consent authority pursuant to cl 39(2) of the LEC Act, must have regard to the effect of the proposal on each of the items in sub-cl 41E(5).

23. In conclusion, an exception to the minimum subdivision lot size of 4 ha applies to the site, pursuant to cl 4.1E of LEP 2012, if the proposal satisfies all of the four requirements at sub-cl 4.1E(3) and I have regard to the effect of the proposal on each of the items in sub-cl 41E(5).

Expert evidence

24. Expert evidence was provided on behalf of the Council by Mr Roger Lembit (environmental) and Mr William Pillon (planning) and on behalf of the applicant by Dr Anne Marie Clements (ecology) and Mr Robert Montgomery (planning).

Consideration

Impact of the proposal on the significant vegetation and connectivity between significant vegetation

25. In finding that the methodology, analyses and conclusions in Dr Clements’ report in relation to the presence of Cumberland Plain Woodland on the site are sound, Mr Lembit summarised the findings of Dr Clements’ report in his statement of evidence (exhibit 4) as follows:

The Clements report shows that Cumberland Plain Woodland species are present within and dominate the tree canopy, that the area within the north-eastern and north-western tree stands have a ground cover generally dominated by native ground cover plants and that a number of native shrub species typically found within Cumberland Plain Woodland are present.

The floristic survey is supplemented by a soil analysis conducted by Pam Hazelton… this analysis confirms soils within the land are consistent with soils associated with the presence of Cumberland Plain Woodland.

26. Dr Clements proposes to enhance the connectivity of the extant stands of Cumberland Plain Woodland vegetation at each corner of the site by creating a 20m wide conservation area adjacent to each boundary (exhibit C, Figure 9). The conservation area is to be protected by encroachment by fencing, which will exclude grazing animals and vehicles. The conservation area is also to be protected from sediment and nutrient runoff and weeds are to be controlled, the soil prepared appropriately and the local native vegetation is to be enhanced through revegetation and planting. Awareness of the conservation values of the conservation area by the owners of the lots is to be encouraged. These activities are to be managed by an appointed Environmental Manager, who will oversee the implementation of the Conservation Management Plan, which includes annual tasks to be carried out over a period of 3 years, with ongoing monitoring and maintenance following the establishment of the conservation area.

27. I accept the agreement of the experts in relation to the following:

• There are two stands of Cumberland Plain Woodland on the site, one in the north-eastern corner of the site extending along either side of the Kaldow Lane road reserve, and the other in the north-western portion of the site, which consists of trees and understorey vegetation. This is consistent with the mapping of significant vegetation on the Terrestrial Biodiversity Map of LEP 2012.

• To the south-east of the site is a stand of Cumberland Plain Woodland which forms part of the area identified as an environmental constraint area on the Environmental Constraints Area Map of LEP 2012. Development of the nature proposed on the land is not likely to increase the impacts to any significant degree on the stand of Cumberland Plain Woodland to the south-east of the site.

• Details of the proposed conservation work to protect and enhance the natural environment and provide the mechanism for the management and conservation of the Cumberland Plain Woodland on and adjoining the site are presented in Part C of Dr Clements’ statement of evidence, ‘Conservation Management Plan’ (CMP) (exhibit C).

• The implementation of the recommendations in the CMP will ensure the conservation of the extant Cumberland Plain Woodland stand in the south-eastern corner of the site and the successful restoration of a connectivity link of vegetation between the south-eastern stand and the north-western stand, along a 20m wide corridor adjacent to the southern boundary.

28. The ecology experts disagreed on the viability of the stands of disturbed Cumberland Plain Woodland vegetation in the north-western and north-eastern portions of the site. According to Mr Lembit, the long history of agricultural uses on and around the site and the condition of the land in the north-western corner, which is greener than pastures in the east indicating the area has a higher fertiliser load and increased moisture, will make it difficult to maintain the area as Cumberland Plain Woodland in the long term and any effort to restore this area would require a high level of committed management on an ongoing basis. Similarly, the stand of Cumberland Plain Woodland in the north-eastern corner of the site will be vulnerable to changes required to install a roadway along the unmade portion of Kaldow Lane, as this will fragment the vegetation, disturb the soil and promote weed invasion and any hard surfaces would impede root growth and reduce the longevity of the trees.

28. Mr Lembit does not consider that the strategy to link vegetation along the northern boundary is practical due to the configuration of the land, the need for access to the lots, the presence of sloping land with shallow soils and the presence of a dam embankment along the line of proposed replanting.

29. The experts are in broad agreement regarding the existence of stands of Cumberland Plain Woodland vegetation on the three corners of the site, consistent with the mapping of the Terrestrial Biodiversity Map and that the proposal will not significantly impact upon the stand of Cumberland Plain Woodland adjacent to the south-eastern corner of the site and identified as being within an environmental constraint area. The experts agreed that the implementation of the recommendations in the CMP will ensure the conservation of the extant Cumberland Plain Woodland stand in the south-eastern corner of the site and the successful restoration of a connectivity link of vegetation between the south-eastern stand and the north-western stand, along a 20m wide conservation corridor adjacent to the south-western boundary.

30. The disagreement between the experts focuses on the likelihood of the successful restoration of a connectivity link of vegetation between the north-eastern stand and the north-western stand, along a 20m wide conservation corridor to be implemented adjacent to the northern boundary. The parties agreed that an excavated dam at 627 Grose Vale Road, directly adjacent to the northern boundary of the site, has resulted in uncontrolled drainage seeping through the toe of the dam wall and across the site and that this seepage constitutes a nuisance on the site and if left, would compromise the successful restoration of a conservation connectivity link adjacent to the northern boundary. The seepage from the failed dam on a neighbouring property is a separate matter and cannot be dealt with under this appeal.

31. On the basis of what is agreed by the experts, the proposal is worthy of approval, as the implementation of the commitments of the CMP will facilitate the conservation of the Cumberland Plain Woodland stand in the south-eastern corner of the site and the successful restoration of a connectivity link of vegetation between the south-eastern stand and the north-western stand, along a 20m wide conservation corridor adjacent to the southern boundary. This outcome meets the LEP 2012 objectives of cl 4.1E to ensure the protection of the Cumberland Plain Woodland and cl 6.4(1)(c) to encourage the conservation and recovery of native fauna and flora and their habitats.

32. I accept Mr Lembit’s reservations about the likelihood of successfully restoring of a connectivity link of vegetation between the north-eastern stand and the north-western stand of Cumberland Plain Woodland, along the 20m wide conservation corridor to be set aside adjacent to the northern boundary, due to the sediment and nutrient runoff from properties to the north and the seepage from the failed dam at 627 Grose Vale Road. In my view, however, that is not sufficiently deleterious to the proposal to warrant its refusal. The imposition of the commitments in the CMP on the consent does put in place a strategy for the creation of the northern conservation corridor and it is at least possible that it could be successfully implemented. The approval of the proposal, with the implementation of the CMP commitments, provides a better chance of achieving the conservation and recovery of native flora on and around the site than the status quo, as the experts agreed that the continued use of the site as a grazing paddock would further erode the Cumberland Plain Woodland stands on or near the site.

33. The extant stands of Cumberland Plain Woodland on the site are located on the three corners of the site and, not surprisingly, bear no relationship to the site boundaries, as each stand spreads across a number of adjoining lots. There is no utility in retaining the existing lot configuration of the site from the point of view of keeping the three separate stands of Cumberland Plain Woodland at each corner of the site on one site, as they are significantly fragmented and separated by the cleared grazing paddock, which extends across most of the site. The proposal does not result in the division of a stand of Cumberland Plain Woodland and for this reasons I am of the view that it satisfies the requirement at sub-cl 4.1E(3)(c) of LEP 2012.

34. I accept the agreement of the ecology/environmental experts that the proposal poses no threat of significant adverse impacts on the Cumberland Plain Woodland or land in the environmental constraint area located adjacent to the south-western corner of the site. Their agreement satisfies one of the requirements for an exception to the minimum subdivision lot size, at sub-cl 4.1E(3)(d) of LEP 2012, that the proposal will not have a significant adverse impact on Cumberland Plain Woodland or land in any environment constraint area located downstream or surrounding the development.

35. The creation of two lots and the imposition of the CMP commitments on the consent will provide the best chance for the conservation and ideally the restoration of Cumberland Plain Woodland on and near the site, notwithstanding any future increase the intensity of residential development on the land. I am satisfied that the proposal is not likely to have any adverse impact on the condition, ecological value and significance of the fauna and flora on the land and that the proposal will maintain terrestrial biodiversity, pursuant to cl 6.4 of LEP 2012. The assessment of any future application for the development of the two lots must consider the elements of sub-cll 6.4(3) and (4) of LEP 2012.

Planners’ evidence and whether approval of the proposal will provide a planning precedent for subdivisions below the minimum lot size

37. In Mr Pillon’s view, the proposal will result in the intensification of development within the Grose Wold area “not previously envisaged by the LEP” and is therefore inconsistent with the aims of LEP 2012, ‘to provide the mechanism for the management, orderly and economic development and conservation of land in Hawkesbury’ and ‘to protect and enhance the natural environment in Hawkesbury and to encourage ecologically sustainable development’ at sub-cl 1.2(2) of LEP 2012. According to Mr Montgomery, the Cumberland Plain Woodland on the site will be conserved and enhanced as a consequence of the subdivision.

38. The planners disagreed on whether the minimum lot size for the site is 4 ha. According to Mr Pillon, figures E3.3 ‘Subdivision with the Rural 1 (c1) Zone’ and E3.4 ‘Subdivision of Land Containing Environmental Constraint Area’, in Hawkesbury Development Control Plan 2002 (DCP 2002), apply to the proposal and confirm that land which does not contain an environmental constraint area is to comply with the 4 ha minimum lot size.

39. Section 3.3 of DCP 2002, ‘Subdivision’, which forms part of Chapter 3 of DCP 2002, ‘Grose Wold’, refers to amendment 64 of Hawkesbury Local Environment Plan 1989 (LEP 1989). LEP 1989 is repealed. The rule at 3.3(a) of DCP 2002, ‘the minimum allotment size for lots zoned Rural 1(c1) is 4 hectares’ cannot apply to the proposal, as it refers to a redundant land zoning that does not remain under LEP 2012.

40. According to Mr Pillion, consent for the proposal will set a precedent for the subdivision of land in the Grose Wold area, which is unrestricted in size, resulting in the intensification of development in the Grose Wold area.

41. The provisions of LEP 2012 permit development consent to be granted to a subdivision of land within the area identified as Grose Wold that is inconsistent with the minimum lot size shown on the Lot Size Map, if the proposal satisfies each of the relevant requirements at sub-cll 4.1E(3) and (4) and if the consent authority has had regard to the effect of the development on the items listed at sub-cl 4.1E(5). It is not the granting of consent to this proposal that will set a planning precedent for the subdivision of land within the Grose Wold area below the minimum lot size shown on the Lot Size Map, but instead the provisions of cl 4.1E of LEP 2012 that provide for the subdivision of land using an alternative qualitative method to the quantitative method of cl 4.1 of LEP 2012. I do not accept Mr Pillon’s evidence that this will necessarily result in subdivisions ‘of an unrestricted size’, as any future proposal for the subdivision of land within the Grose Wold area will have to satisfy the qualitative requirements of cl 4.1E of LEP 2012.

42. In relation to Mr Pillon’s constant complaint throughout his evidence, which was reiterated in the Council’s submissions, that the applicant provided evidence in the appeal in addition to the material provided as part of the original application, including Dr Clements’ report; I remind him that the power of the Court on appeal is a hearing de novo and as such, new evidence may be given, pursuant to sub-s 39(3) of the LEC Act:

(3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

The future upgrading of Kaldow Lane

43. The applicant provided a preliminary report prepared by Mr David Dickson, a civil engineer, to illustrate the various options for the design of a suitable road surface for the unsealed portion of Kaldow Lane (exhibit D), notwithstanding that the upgrading of Kaldow Lane does not form part of the application. The purpose of Mr Dickson’s report, according to the applicant, is to demonstrate that it is possible to upgrade the roadway for the use of two rural residences in a manner that will not detrimentally impact on the Cumberland Plain Woodland stand on either side of Kaldow Lane, extending onto the north-western corner of the site. In response to Dr Clements’ report and Mr Dickson’s report, Mr Pillon provided a supplementary statement of evidence (exhibit 3).

44. Mr Dickson’s report assumes 10 movements along Kaldow Lane per day to and from two rural residential allotments. The uphill stormwater runoff is to be collected by a surface drain located along the upper edge of the proposed road and directed to the site. Mr Dickson’s report concludes that a permeable surface road design is achievable for the site with minimum disturbance to the surrounding vegetation. Dr Clements concurred with Mr Dickson’s conclusion that Kaldow Lane can be sealed with a permeable surface road and that the design proposed by Mr Dickson would result in minimum disturbance to the surrounding vegetation. The ecology/environmental experts agreed that the removal of the runoff from the adjoining property to the north of the laneway would benefit the stand of Cumberland Plain Woodland in this area.

45. I am satisfied that the applicant has adequately demonstrated that the upgrading Kaldow Lane is feasible and will not necessarily result in additional adverse impacts on the Cumberland Plain Woodland stand in the area of the laneway.

46. Furthermore, the upgrading of Kaldow Lane is required for access to the existing site and would be required regardless of whether or not consent is granted to the proposal. The creation of two lots, with the possibility of two future residences requiring access along Kaldow Lane, does not impose a more onerous requirement on the surfacing of Kaldow Lane when compared to the standard required by any future development of the site for access along Kaldow Lane, despite an increase in the intensity of the use of Kaldow Lane, as two dwellings would require much the same minimum standard for a short section of road as a single dwelling.

47. The conditions of consent (exhibit 5) include conditions regarding the upgrading of Kaldow Lane. As the works to Kaldow Lane are on public land and do not form part of the proposal, consent for any proposed works to Kaldow Lane would need to be granted under a new and separate application. For this reason, the conditions in Schedule 1; 1, 2 and 3 and Schedule 2; 4, 8 and 17 regarding the construction of the road surface in Kaldow Lane are to be deleted.

Findings

48. An exception to the minimum subdivision lot size of 4 ha, as shown on the Lot Size Map, applies to the site, pursuant to cl 4.1E of LEP 2012, if the proposal satisfies each of the four requirements at sub-cl 4.1E(3)(a) to (d) and I have regard to the effect of the proposal on each of the items in sub-cl 41E(5)(a) to (c). Clause 4.1E of LEP 2012 provides an alternative qualitative method for the subdivision of land in the area known as Grose Wold to the quantitative method of cl 4.1 of LEP 2012.

49. I am satisfied that the proposal meets each of the requirements at sub-cl 4.1E(3) of LEP 2012, providing for the conservation of Cumberland Plain Woodland on and near the site, as follows:

• The pattern of lots to be created by the subdivision is consistent with the various sizes of lots in the Grose Wold area (exhibit 2, attachment 3) and each allotment provides a suitable area for a future dwelling (exhibit C, figure 8), subject to a future development application, which satisfies the requirement at sub-cl 4.1E(3)(a);

• The geotechnical assessment demonstrates that the land is adequate for the on-site disposal of effluent in accordance with best practice (exhibit A, Wastewater Management Report), which satisfies the requirement at sub-cl 4.1E(3)(b);

• The extant stands of Cumberland Plain Woodland on the site are fragmented and located on the three corners of the site. The proposal does not result in the division of a stand of Cumberland Plain Woodland and for this reasons it satisfies the requirement at sub-cl 4.1E(3)(c);

• I accept the agreement of the ecology/environmental experts that there will be no significant adverse impact on Cumberland Plain Woodland or land in the environmental constraint area located adjacent to the south-western corner of the site. Their agreement satisfies the requirement at sub-cl 4.1E(3)(d).

50. I have had regard to the effect of the development on the water quality and quantity in the Grose River and its tributaries, the scenic qualities of the area and the existing riparian vegetation, pursuant to sub-cl 4.1E(5) of LEP 2012. I accept that the findings and recommendations of the ‘On-Site Wastewater Management Report’ (exhibit A) demonstrate that wastewater arising from the future development of the two lots can be disposed of on-site with an irrigation system that complies with Australian Standards and that there is sufficient land area outside of the conservation area for this purpose.

51. I am satisfied that the proposal is not likely to have any adverse impact on the condition, ecological value and significance of the fauna and flora on the land and that the proposal will maintain terrestrial biodiversity, pursuant to cl 6.4 of LEP 2012.

52. The applicant has adequately demonstrated that the upgrading Kaldow Lane is feasible and will not necessarily result in additional adverse impacts on the stand of Cumberland Plain Woodland in that area. Furthermore, the upgrading of Kaldow Lane is required for access to the existing site and would be required regardless of the grant of consent to the proposal.

53. It is not the granting of consent to this proposal that will set a planning precedent for the subdivision of land, within the Grose Wold area, below the minimum lot size shown on the Lot Size Map; but instead the provisions of cl 4.1E of LEP 2012 that provide for the subdivision of land in the Grose Wold area using an alternative qualitative method, that may result in subdivisions below the minimum subdivision lot size shown on the Lot Size Map.

Conditions of consent

54. The conditions of consent tendered by the Council (exhibit 5) do not adequately impose the commitments of the CMP as a condition on the consent.

55. The granting of consent to the proposal for a two lot subdivision does not include any construction works on site. Therefore conditions in Schedule 2, 6 – 18 are to be deleted, as they are conditions relevant to construction works.

Directions

56. Directions were handed down on 25 August 2015 for the respondent to provide amended conditions of consent, as follows:

• The conditions regarding the future construction of a road surface in Kaldow Lane are to be deleted, including conditions Schedule 1; 1, 2 and 3 and Schedule 2; 4, 8 and 17, as the construction of the roadway does not form part of the application;

• The CMP prepared by Dr Clements is to be provided an attachment to the conditions of consent and conditions 4 and 25(b) are to be redrafted to comprehensively impose the commitments in the CMP on the consent for the subdivision of the two lots; and

• Conditions in Schedule 2, 6 – 18 are to be deleted, as they are conditions relevant to construction.

57. The respondent filed the amended conditions of consent on 27 August 2015. 

Conclusion

58. For the reasons provided in the judgment, I am of the opinion that the proposal can be granted consent, subject to the amended conditions of consent. 

Orders

59. The orders of the Court are:

1. The appeal is upheld.
2. Development Application No. 0476/14 for a two lot subdivision of the land at 16-18 Kaldow Lane, Grose Vale, is approved, subject to the conditions of consent at Annexure ‘A’.
3. The exhibits, other than exhibits 1, 5, A and C, are returned.

Susan O’Neill

Commissioner of the Court

10229 of 2015 O'Neill (C) (1.29 MB, pdf)

10229 of 2015 O'Neill (C2) (617 KB, pdf)

**********

Decision last updated: 03 September 2015