Nicholson v Wollondilly Shire Council

[2007] NSWLEC 818

Land and Environment Court

of New South Wales

CITATION:

Nicholson v Wollondilly Shire Council [2007] NSWLEC 818

PARTIES:

APPLICANT
Maree Nicholson

RESPONDENT
Wollondilly Shire Council

FILE NUMBER(S):

10586 of 2007

CORAM:

Bly C

KEY ISSUES:

Development Application :- rural residential subdivision-development standards-site area and density.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 1-Development Standards
Wollondilly Local Environmental Plan 1991
Wollondilly Rural Living Development Control Plan

DATES OF HEARING:

23/11/2007

 
DATE OF JUDGMENT: 

18 December 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr P McEwen, SC
with Ms Berglund

RESPONDENT
Mr A Seton solicitor
of Marsdens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

18 December 2007

10586 of 2007 Maree Nicholson v Wollondilly Shire Council

JUDGMENT

Introduction

1 This appeal involves a development application for a three lot rural residential subdivision of land identified as 224 Donalds Range Road in the Razorback locality ("the site"), some 5 kilometres to the east of Picton in the Shire of Wollondilly (“the shire”). The site, comprising lot 132 in DP 1020102, is irregular in shape and has an area of 7.479 hectares. It is largely cleared of vegetation and contains two small dams. Vehicular access is obtained off Donalds Range Road.

2 The issues in this case for the most part involve the proposal's non-compliance with the applicable density standard for rural residential subdivisions. This judgement concludes that the development application should not be approved essentially as a result of this non-compliance.

3 In response to growing pressure for the development of rural lands in the shire, the Wollondilly Shire Council ("the council") undertook an agricultural lands study and a subsequent review of rural lands and these studies provide a useful context in which to consider this application.

Wollondilly Agricultural Land Study

4 In 1993, the council published the Wollondilly Agricultural Land Study ("the agricultural land study") in conjunction with the Wollondilly Local Environmental Plan 1991 (Amendment No 11). That study recognized that agriculture was an important land use within the Shire and recommended that a rural lands review be undertaken with a view to protecting agricultural land as well as providing for rural living opportunities.

Review of Rural Lands Report

5 In September 1996 the council completed the Review of Rural Lands Report ("the rural lands report"). This report describes the Wollondilly Shire as comprising:

A diverse landscape consisting of undulating rural land, fertile alluvial river flats and steep river gorges. There is a large amount of indigenous vegetation associated with this diverse landscape, the majority of it forming significant corridors, which are associated with the river gorges. The Shire has a scattered population of which approximately half live in the 16 towns and villages. The other half live in the rural areas on rural residential and farming lots. The towns and villages range in size from 70 to over 3, 000.

6 The objectives identified in the rural lands report not only involve the protection of agricultural lands but also to maintain the rural landscape character of the Wollondilly local government area by providing a balance between agriculture and other land uses. These objectives are to be achieved by the introduction of three new rural land use zones:

1(a) Agriculture;
1(b) Agricultural Landscape; and
7(c) Environment Protection Rural Living.

7 The site is now included in the 7(c) zone and, according to section 7.3 of the rural lands report, this zone is to provide: rural living opportunities within a sensitive environment and that subdivision and dwelling houses must be for the protection of that sensitive environment. Also rural living is a residential use of land in a rural environment. Accordingly, Amendment 11 sets a minimum lot size in the 7(c) zone of 2 ha with a maximum density of one dwelling per 4 ha. The primary objective of the 7(c) zone is to provide rural living opportunities having regard to the preservation of the landscape character as well as the constraints of the land. The lot size and density standards were determined as follows:

The 2 ha subdivision minimum and 4 ha density was arrived at after an assessment of the existing lot size range, landscape as well as topographical considerations. It was considered that by providing a density of 4 ha, the integrity of the landscape would be preserved and that land degradation would not occur. The 2 ha minimum was introduced to allow for a range of lot sizes to be created so that they conform to the landscape and land forms of the area and to provide for variety in the lots created. It should be pointed out that the primary objective of the zone is to encourage the preservation of the landscape character by ensuring that development does not detract from that character. It is considered that any lesser density would not achieve that objective.
And:
The minimum subdivision for the area is 2 ha with a density of one dwelling per 4 ha. This was arrived at using a number of factors including the existing subdivision pattern and potential subdivision that would occur and its impact on landscape quality and scenic attributes of the area. The capability of the land for effluent disposal was also taken into consideration.

8 The 7(c) zone applies to several different localities and the site of this appeal is in the Razorback Locality. This locality is centred on the Razorback Range, a distinct plateau with steep sites. The steep land is not suitable for development and thus identifies the limit of the 7(c) zone.

9 According to the rural lands report, taking into account the need to protect the sensitive rural environment rural subdivision proposals need to be subject to a constraints and opportunities analysis. Matters to be considered in such an analysis include slope, soil quality, runoff, and effluent disposal. These matters may result in a dwelling density of less than one dwelling for each 4 ha of the site under consideration.

Wollondilly Local Environmental Plan 1991

10 The aim and strategy of Amendment 11 provides for the maintenance of the rural landscape character of rural lands by the introduction of three new zones including the 7(c) zone together with new planning controls. The objectives of the 7(c) (Environmental Protection C (Rural Living) Zone) zone in the now amended Wollondilly Local Environmental Plan 1991 ("the LEP") are:

(a) To provide for rural living opportunities, and
(b) To encourage the preservation of the rural landscape character by ensuring that development is compatible with that character, and
(c) To ensure that land degradation does not occur and that the water quality of receiving streams is protected, and
(d) To maintain existing significant standards of indigenous vegetation.

11 Clause 10 (3) of the LEP requires that consent shall not be granted unless the consent authority is of the opinion that the carrying out of the development under consideration is consistent with the objectives of the zone in this case the 7(c) zone.

12 Clause 45 of the LEP provides that consent must not be granted unless it has been demonstrated that the land is capable of supporting the development having regard to the capability of the soil for effluent disposal and buffer distances to watercourses and drainage depressions. No evidence has been provided to satisfy this requirement although I expect that, given the existence of many houses in the locality with on-site sewage treatment and disposal that this could be achieved.

13 Relevant to the subdivision application clause 13B of the LEP contains the following development standards ("the development standards"):

(1) The council may consent to a subdivision of all part of an original holding consisting of land within Zone No 7(c), or of land partly within that zone and the residue of which is within Zone No 1(b), only if:
(a) the total number of lots into which the original holding will be divided after the subdivision will not exceed the number of obtained by dividing, by 4, the area (in hectares) of the original holding that is within Zone No 7(c) only, the dividend being rounded down to the nearest whole number, and
(b) none of the allotments to be created by the subdivision will have an area of less than 2 ha.

14 Clause 13B(2) defines original holding as:

… a lot in a current plan (within the meaning of section 327AA(1) of the Local Government Act 1919) as at the date of publication in the Gazette of Wollondilly Local Environmental Plan 1991 (Amendment No 11).

15 There are no stated objectives for the development standards in clause 13B of the LEP.

The Wollondilly Rural Living Development Control Plan

16 The Wollondilly Rural Living Development Control Plan ("the DCP") applies to all land in the 7(c) zone and contains objectives dealing with the integration of rural living development into the landscape of the surrounding area taking into consideration land capability, natural hazards and effluent disposal. It emphasises the benefits that the rural landscape character provides including a relaxed country lifestyle and how of the surrounding landscape features should be protected from adverse development.

17 The more particular subdivision objectives include the need to ensure that new allotments are sensitive to the natural landscape features of the area. Such lots must have acceptable access to a public road and building envelopes are designed to suit the landscape character of the area.

The proposed subdivision

18 There was no dispute that lot 120 DP 751287 is, for the purposes of clause 13B(2) of the LEP, the relevant existing holding. Lot 120 has an area of 44.67 ha and has frontages to Donalds Range Road and but for a 1 m wide strip of land along Stonebrook Meadows Road (lot 233 DP 816116) it would also have a frontage to that road.

19 Lot 120 was subdivided into two lots in 1998 (lots 121 and 122 DP 882211) and further subdivided in 2000 (lots 123 to 131 (inclusive) DP 1020102). Together these subdivisions created 11 lots ranging in area between 7.429 ha (lot 132 - the site the subject of this appeal) and 2.008 ha. Importantly these 11 lots are in compliance with the development standards in clause 13B of the LEP. All lots have areas in excess of 2 ha and the average density is one lot per 4.061 ha.

20 The plan of proposed subdivision, the subject of this appeal provides for the subdivision of lot 132 in DP 1020102 that has an area of 7.479 ha including the accessway (135.27 m by 10 m) off Donald's range Road. It would also have a frontage (574.5 m) to Stonebrook Meadows Road, but for the previously mentioned 1m wide strip of land along that road. On average lot 132 measures about 550 m by 140 m. Development consent has been granted for a dwelling house on this lot.

21 It is now proposed to subdivide lot 132 into three lots (creating two additional lots) as follows:

• Proposed lot 1 - 2.071 ha with access via the above-mentioned 10 m wide accessway off Donald Range Road and having a 154.6 m frontage (but for the 1m wide strip of land) to Stonebrook Meadows Road.
• Proposed lot 2 - 3.408 ha with a frontage of 256.22 m to the 1 m wide strip of land to Stonebrook Meadows Road.
• Proposed lot 3 - 2.0 ha with access across its frontage of 163.7 m to the 1 m wide strip of land to Stonebrook Meadows Road.

22 These three lots comply with the minimum area development standard of 2.0 ha in clause 13B of the LEP. However they do not comply with the one lot per 4 ha density development standard, having an average area across the existing holding of (44.67 / (11 + 2)) 3.44 ha per lot. This is to be compared with the existing (complying) average density of 4.06 ha per lot. Strictly applying the 4 ha per lot standard to the existing 11 lots leaves a surplus of only 666 square metres (44.67 ha - (4 * 11) = 0.666 ha.) and this surplus is not nearly enough to create a single additional 2 ha lot, much less comply with the 4 ha density standard.

23 Because of the non-compliance with the density development standard in clause 13B of the LEP, the applicant has provided an objection pursuant to State Environmental Planning Policy Number 1 - Development Standards ("SEPP 1").

Advertising and Council's decision

24 The application was advertised and one objection was received from the owners of lot 233, the 1 m wide strip of land along Stonebrook Meadows Road.

25 Lot 233 is the subject of a deed made in March 1992 between the then owner of certain lands and the council in conjunction with a subdivision approval (DP 816116) that, in part, created Stonebrook Meadows Road. This deed has the effect that if the subdivision of adjoining land requires access to Stonebrook Meadows Road then payment of a sum of money (calculated in accordance with the deed) is to be paid to the owner of the strip of land. The applicant in these proceedings has now agreed to abide by this deed thus resolving the objection.

26 On 10 July 2006 Mr D Smith a Council town planner (and Manager Development Services) prepared a report dealing with the development application. This report recommends that the application should be refused for reasons including: non-compliance with the density requirements of the LEP; the adverse impacts on the rural landscape character of the area; and the inappropriate precedent that would be set the approval if these subdivision application were to be approved.

27 On 24 July 2006 the development application was refused for the following reasons:

1. The proposed development is prohibited, as it does not comply with the requirements of clause 13B of Wollondilly Local Environmental Plan 1991,
2. The proposed development is not consistent with objective (b) of Zone No. 7(c) (Environmental Protection C (Rural Living) Zone),
3. The proposed development is contrary to the density provisions in part B3 of the Wollondilly Rural Living Development Control Plan.
4. The proposed development is contrary to the provisions of the Wollondilly Rural Living Development Control Plan in that it does not identify a building envelope for proposed lot 3,
5. The proposed development is contrary to the provisions of the Wollondilly rural living development control plan in that it does not identify any legal or physical access for proposed lots 2 and 3,
6. Insufficient information has been provided to demonstrate that the land is suitable for the disposal of effluent in the long term.
7. The proposed development will create an undesirable precedent.
8. The proposed development is not in the public interest.

The statement of contentions

28 Part B of the Statement of Facts and Contentions identifies eight separate matters of contention essentially reflecting the reasons for the refusal of the development application. In his submissions Mr Seton identified three relevant contentions to be considered by the Court in its determination of the application:

1. The non-compliance with the development standards in clause 13B(1) of the LEP,
2. The non-compliance with objective (b) of the 7(c) zone.
3. The inappropriate precedent that would be created should development consent be granted.

The hearing

29 The hearing began with an inspection of the site and various relevant aspects of the Razorback locality. During the inspection I was assisted by the advocates and by the town planning experts Mr Smith and Mr N Ingham (the applicant’s consultant town planner). These experts also provided a lengthy joint report dealing with the council's contentions.

30 Taking all of the evidence into account and the submissions of the advocates the contentions for the determination of the Court are largely contained within the SEPP 1 objection that deals with the development standard in clause 13B of the LEP.

The SEPP 1 objection

31 The SEPP 1 objection having identified the lot size and density development standards in clause 13B of the LEP and there being no stated objectives for these standards identifies their underlying purpose as expressed by the objectives of the 7(c) zone and the objectives for rural living development as contained in the DCP. In this regard it concludes that:

It is clear that the underlying objectives of the development controls is to preserve the essentially rural character of the Zone by limiting housing density and protecting and preserving the character and quality of the land, vegetation (particularly stands of trees) and water. The objectives of Zone 7(c) expressed in terms of ensuring there is no degradation of land or of water quality and otherwise being compatible with the "rural landscape character". The DCP expresses the objectives more in terms of the capability of land, for example objectives 3 and 4.
To summarise the underlying purpose of the standard, it can be stated that clause 13B(1) of the LEP 1991 is to allow the subdivision of land within Zone 7(c) to occur at a level of density which retained the overall integrity of the landscape and its scenic attributes at the same time maintaining objectives (b) to (d) and the objectives of section A4 of the Rural Living DCP.

32 In the context of the objects of the Environmental Planning and Assessment Act 1979 the objection argues that the proposed subdivision would be consistent with objective (a) of the 7(c) zone because it provides rural living opportunities. It would also be consistent with the remaining objectives because it would preserve the rural character of the zone by avoiding land degradation and maintain any significant stands of indigenous vegetation and protecting water quality. Appropriate access can be provided to the three lots. The objection emphasises that the development standard is about achieving planning objectives rather than compliance with a mathematical formula and approach suggested to have been taken by the council in approving developments elsewhere that do not comply with the development standards. It also suggests that there is nothing in the application, which would indicate a cumulative or precedent impact on the objectives of the zone. Hence a qualitative rather than quantitative approach is required.

33 In these circumstances the objection argues that compliance with the development standard is unnecessary (but accepts at paragraph 5.2 that compliance with the development standard is not unreasonable), taking into account the objectives and purposes of the standard and of the 7(c) zone. Subject to the requirements of the Rural Living DCP the proposed subdivision can comply with the development standard by meeting its objectives. In the circumstances the objection submits that the objection is well founded and the variation from the development standard should be allowed.

Expert evidence

34 Mr Ingham is of the opinion that the SEPP 1 objection is well founded as discussed in the objection itself. To this he added a number of supporting considerations. First the resulting development will have the same lot size as the vast majority of lots in the locality. Second the proposed development does not create any greater impact on the rural landscape character of the locality other than other rural residential lots, which have already been subdivided. Third, noting that perceptions are important, anyone visiting this locality would not be aware that two additional lots had been created by the subdivision and nor would this be apparent from external views into the locality. The proposed lots will have road frontages similar to others in the locality, another indicator of consistency with the rural landscape character. Fourth the density average of one not per 4 ha is a mathematical round number and can be treated flexibly and this is reflected by the fact that the standard has not been applied consistently.

35 Mr Ingham also pointed out that because dual occupancy development is permissible in the 7(c) zone this removes any consideration relating to the density of dwellings or of traffic generation. He further contends that the rural landscape character of the locality is not adversely impacted upon by the proposed subdivision and hence objective (b) is not infringed.

36 Mr Smith disagrees with Mr Ingham contending that the SEPP 1 objection does not demonstrate that the proposed development satisfies the underlying purpose of the standard. He explained that the underlying purpose of the development standard is to control subdivision in a manner that preserves the rural landscape character whilst providing a flexible approach to minimum lot size within the zone, having regard to the topographic features and constraints of a particular site. The submitted SEPP 1 objection does not explain how the proposal satisfies that purpose, nor does it identify what planning outcome will be achieved by the subdivision.

37 It was Mr Smith's opinion that the proposed subdivision will result in an increase in development density altering, rather than preserving, the rural landscape character because the construction of dwellings will be at a higher density than on other original holdings in the locality. The proposed lots are visible from many locations. As a consequence the development would not be in keeping with the underlying purpose of the standard. Hence the SEPP 1 objection is not well founded.

38 In dealing with landscape character Mr Smith said that that key characteristic for determining this is the density of dwellings, which is ultimately based on the density of lots. The fact that dual occupancy is permissible merely adds to the potential scale and bulk of constructed buildings and therefore the potential impact of development on the landscape character. Also, although dual occupancies are the exception rather than the rule in the Razorback locality, it is of concern that each additional allotment would create an additional site with potential for dual occupancy. Mr Smith disagreed that the availability of road frontages similar to others in the locality was determinative as overall density. He did not accept that the issue was about site frontage but was mainly about density with frontage only having a limited role in determining rural landscape character.

39 In relation to precedent Mr Ingham was of the opinion that the proposed subdivision would not have any impact in relation to the subdivision of other lands in the locality because there is only one other obvious parcel of land in this locality that could create frontages of 150-260 m to an existing public road. He also said that the fact that the subdivision has frontage (albeit with a 1 m strip separating) to an existing bitumen road takes it out of the category of residue lots generally and ensures that there is no issue of precedent which could apply.

40 Mr Smith disagreed explaining that approval of the proposed subdivision would create a significant adverse precedent that would have a compounding impact on the visual character of the surrounding rural landscape would and adversely affect the desired character of the 7(c) zone. Whilst there are other similar sized allotments to those proposed located in the locality these are balanced by the other larger lots together creating the rural landscape character intended by the LEP and the DCP. he also explained that if a precedent were to be established and applied to the lots created in DP 1020102, lots 124, 125, 128 and 129 could be further subdivided, reducing the density of the original holding significantly.

41 It was his opinion that the circumstances of this subdivision are not unique there being other lots in the locality that could be further subdivided whether they be lots with a frontage to a road or hatchet shaped lots.

Conclusions

42 It is clear that the 2 ha minimum lot size and the 4 ha average density development standards in the LEP are intended to work together with the 7(c) zone objectives to produce a certain character for the lands so zoned. Support for these standards can be found in the agricultural land study and the rural land report that have taken into account the constraints and sensitivities of the 7(c) lands. They undoubtedly have a proper planning purpose. However whilst it is plain that a low-density residential environment is appropriate, there is little in the study and the report to understand exactly how the figures of 2 ha and 4 ha were arrived at.

43 Despite this, the 2 ha minimum lot size and the one lot per 4 ha density provisions are development standards in a local environmental plan and their significance as such should not be diminished. These development standards must be accepted, together with the zone objectives, as foundation requirements for the future character of, in this instance the Razorback locality.

44 I have considered the SEPP 1 objection and agree with Mr Smith that the proposed subdivision does not satisfy the underlying purpose of the standard as summarised in the objection as providing for the subdivision of land at density that retains the overall integrity of the landscape and its scenic attributes, consistent with the 7(b) zone objectives and the objectives of the DCP.

45 In my opinion the character sought, particularly by zone objective (b) that requires the preservation of the rural landscape character, needs to be considered in the context of the development standards that provide for a mix of lot sizes that together achieve a density of one lot per 4 ha. Whilst the minimum lot size of 2 ha is important it is the density standard that is more indicative of the character that is sought to be achieved. Taking into account the zone objectives and the development standards a mixture of lot sizes is anticipated with the resulting larger lots compensating for the smaller lots thus producing the sought character.

46 There are a number of 2 ha lots developed with dwelling houses along roads in the area and these contribute to its character. In this regard some weight can given to the proposed subdivision's compliance with the minimum 2 ha lot size. However greater weight must be given to the more broadly based density requirement of one lot per 4 ha. The extent of the non-compliance with the density control is described above (3.44 ha per lot compared to 4 ha per lot) and I am satisfied that this is of such significance as to make the proposal unacceptable. Whilst I agree with the applicant's contention that the density standard could be rounded down, the degree of rounding down in this case is too great for such an approach to be taken.

47 Mr Ingham's contention that the resulting development has the same lot sizes as many other lots in this locality was not in dispute. However it seems to me that those instances where houses are constructed on 2 ha (or similar) lots in close proximity to the roads are indicative of a limit beyond which further development would adversely affect the sought character of the 7(c) zone. Taking into account the existing lot pattern in Stonebrook Meadows Road and the approval for a house on the site I have been persuaded by the evidence of Mr Smith that two further houses in this locality indicate a dwelling density that would be inconsistent with the desired future character of the area.

48 Whilst I accept (notwithstanding that no landscape plan was provided) that the proposed lots could be landscaped to assist in the preservation of the rural landscape character this is not sufficient to overcome the fundamental concerns involving excessive site density.

49 It was suggested that the density standard was not indicative of the orderly and economic use and development of land and that failure to approve this application would be a waste of a scarce resource that being Stonebrook Meadows Road. Whilst optimising the use of a public road is an appropriate planning outcome, I do not give much weight to this proposition in the light of the overriding planning purpose of the applicable statutory planning controls (supported by the agricultural land study and the rural lands report).

50 For these reasons I have decided that the applicant's contention that compliance with the development standard is unnecessary, has not been made out. Hence the SEPP 1 objection should not be upheld. Also, having been persuaded that the proposed development would not be consistent with objective (b) of the 7(c) zone, cl 10 (3) of the LEP requires that consent should not be granted.

51 In many merit cases the notion of precedent becomes irrelevant for reasons of unique circumstances and that subsequent similar developments are determined on their own merits. In this case I accept that the proposed subdivision on its own facts is unique but a question of precedent nevertheless arises in relation to the principle of dwelling density arising from the density development standard in the LEP.

52 I estimate that the Razorback 7(c) zone extends over some 600 ha and a cursory examination of the cadastral/zoning maps for this area indicates numerous lots that might be available for further subdivision. As Mr Smith says there are many lots throughout the surrounding locality for which subdivision potential would be increased if the density standard were reduced. I do not accept Mr Ingham's proposition that the opportunity for similar applications to occur in the locality is extremely limited. I also do not accept that the availability of lots capable of being resubdivided need to have an existing road frontage that is sufficient to provide a road frontage for the new lots. Plainly new lots could be created in the 7(c) zone for rural residential purposes by the construction of new roads or they could be lots accessed via rights of way or the access ways of hatchet shaped lots.

53 In my opinion, approval of this subdivision application could create an adverse precedent resulting in other landowners in the Razorback locality seeking to obtain similar variations to the development standard. This could, over time, undermine of the density standard to the detriment of the character sought by the planning controls. In this regard, I agree with Mr Smith.

54 For the above reasons I have decided that the appeal should be dismissed and the development application refused.

___________________
T A Bly
Commissioner of the Court
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