Noel-Gough v Kiama Municipal Council

[2006] NSWLEC 715

Land and Environment Court

of New South Wales

CITATION:

Noel-Gough v Kiama Municipal Council [2006] NSWLEC 715

PARTIES:

APPLICANT
Garry Noel-Gough

RESPONDENT
Kiama Municipal Council

FILE NUMBER(S):

11061 of 2005

CORAM:

Murrell C

KEY ISSUES:

Development Application :- For erection of dwelling on parcel of land, 5,248 sq m in rural zone with 40 ha minimum, impact on agricultural land and impact on scenic quality of area, SEPP 1 Objection, precedential effect

LEGISLATION CITED:

Kiama Local Environmental Plan 1996
State Environmental Planning No. 1
Illawarra Regional Environmental Plan No.1 and No. 2
Development Control Plan No. 35 Rural Dwellings - Design and Sighting Guidelines
Development Control Plan No. 36 - Building Lines and Foreshore Building Lines

CASES CITED:

Winten Property Group Ltd v North Sytdney Council [2001] 130 LGERA 79,

DATES OF HEARING:

08/08/2006

 
DATE OF JUDGMENT: 

11/16/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Clay, barrister
Instructed by: Mr G Gleeson, solicitor
Of: Morton & Harris

RESPONDENT
Mr A Galasso, SC
Instructed by: Mr P Moggach
Of: Kearns & Garside with RMB Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

16 November 2006

11061 of 2005 Garry Noel-Gough v Kiama Municipal Council

JUDGMENT

1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act against Kiama Municipal Council's refusal of a development application for a dwelling house on the land being Lot 1 DP 799756 North Curramore Road, Curramore. Figure 1 shows the location of the subject site.

2 The subject site is triangular in shape and has an area of 5,248 sq m. It is generally flat having a fall of 1.5 m from North Curramore Road over the total length of its southern boundary of 97.5 m. The northern corner of the site slopes down to the embankment adjoining Turpentine Creek. The site does not support any significant vegetation consisting mainly of pasture grasses with a row of trees along the North Curramore Road boundary and scattered smaller trees in the southwestern corner of the site. The land is prime crop and pastureland.

3 The site is currently vacant and was created in 1971 through a road realignment initiated by the council. This was undertaken to achieve a new crossing of Turpentine Creek and as a result of the road realignment residue parcels were created on either of the new road. In 1980 council approved the subdivision of part of the land to create 2 x 1 ha allotments. When the subject site was created as a residue parcel the minimum allotment size for the erection of a dwelling house was 48 ha.

4 North Curramore Road is a bitumen sealed local road with gravel shoulders and serves the local rural area north of Jamberoo Village that is generally bounded by the Minnamurra River to the south, Jamberoo Road to the east and the Illawarra Escarpment to the west. The topography in the area varies from steep vegetated slopes to undulating hills to the fertile floor of the valley where the subject site is located adjacent to Turpentine Creek.

5 To the east of the site there is a 5.4 ha parcel of land containing a dwelling house set amongst cleared pastures. To the west, on the opposite side of North Curramore Road, there are four allotments ranging in size from 0.5 ha, 2.7 ha with two lots of 4,000 sq m. There are dwellings erected on three of these lots that were created under the provisions of the former instrument with a dwelling house entitlement. To the north of the subject site there is an allotment of 12.2 ha which is mostly cleared for pasture with a dwelling house on the eastern end. On the southern side of Curramore Road, some 500 m distant from the subject site, there is a community title subdivision known as Byrn's Run. This contains 10 dwelling houses and was approved as a site specific amendment to the Kiama Local Environmental Plan.

6 The council submitted a Statement of Issues and the first issue identified is that the proposed erection of a dwelling house on the subject lot is contrary to the 40 ha development standard for the erection of a dwelling house in the 1(a) Zone and that the Objection submitted under the State Environmental Planning Policy No. I fails to establish that compliance with this standard is unreasonable and unnecessary.

7 In the Statement of Issues the council also refers to the fact that the draft amendment No. 61 to the Kiama LEP proposes a new clause which would have the affect of prohibiting the dwelling house application. This amendment has been placed on exhibition but at the time of the hearing has not been gazetted. Nonetheless in terms of s79C (1) (a) (ii) of the Act this draft plan is a relevant matter for my consideration.

8 Council also maintains that the proposed development is contrary to the objectives of the LEP including “to protect prime crop and pastureland outside defined urban boundaries and to ensure the preservation of the landscape and the special scenic qualities of the area”. Council also contends that the proposal is contrary to the zone objectives: to protect agricultural potential of rural land; to prevent the fragmentation of prime agricultural land; to enable uses that are compatible with the rural use of the land; and to protect the landscape quality of the rural area.

9 Council is also of the opinion that the proposal for a dwelling house will be out of character with the surrounding rural landscape and even if screened by landscaping this will be contrary to the present open pastures. The precedential affect and the cumulative impact of similar proposal if consent is granted was also raised as an issue.

10 The proposal is to construct a dwelling house with an overall length of some 35 m and a width of some 13 m located in the south-eastern corner of the site 5 m from the southern boundary with a setback of 20 m to North Curramore Road. The proposed dwelling is single storey with a wide covered verandah to the north.

11 The development application was accompanied by a State Environmental Planning Policy No. I Objection to vary the 40 ha minimum for the erection of a dwelling house in the 1(a) zone under the Kiama Local Environmental Plan 1996.

12 The Illawarra Regional Environmental Plan No. I and No. 2 for Jamberoo Valley also apply to the subject site.

13 The general aim of the Illawarra Regional Environmental Plan No.2 is "to conserve the agricultural, environmental and aesthetic values of the Jamberoo Valley". The specific aims include:

a) to conserve the agricultural potential of the Jamberoo Valley

b) to protect the rural environmental and scenic amenity of the Jamberoo Valley escarpment area

e) to conserve the scenic quality of the valley.

14 The Kiama Local Environmental Plan 1996 (KLEP) contains objectives for the 1(a) zone and these include:

a) to provide suitable land for agricultural use

b) to protect the agricultural potential of rural land
c) to prevent fragmentation of rural land of prime crop and pasture potential

d) to enable uses that are compatible with the rural use of the land

e) to protect the landscape quality of the rural area

15 Dwelling houses are permissible in the zone subject to satisfying the requirements of cl 11(3) of the KLEP which provides as follows:

Where land to which this clause applies does not have a dwelling house erected on it, a person may, with the consent of the council, erect a dwelling house or carry out dual occupancy development if the land:

a) has an area of not less than 40 ha

16 There are exceptions for the erection of a dwelling house that include concessional allotments and allotments created under specific clauses of the LEP. However, the site does not satisfy any of the circumstances outlined in cl 11(3) to enable the erection of a dwelling house on the subject land. Therefore a SEPP 1 objection to vary the 40 ha standard was submitted.

17 Clause 12(1) of the LEP requires council to take into account the effect of the proposal on the agricultural viability of the site and the land in the vicinity of the site. Clause 12(2) requires council to take into consideration the following matters:

a) the effect of the proposed development on agricultural and other land uses undertaken on adjacent and adjoining holdings and other holdings in the vicinity;

b) the quality of the land and the potential agricultural productivity of the land;

c) the likely impact of the proposed development on the landscape, vegetation, soil resources and stability and water resources including the quality of watercourses, ground water storage and riparian rights, and the cumulative impact of the development on service and ground water quality and quantity and on the physical and biological functions of the watercourses and riparian corridors;

d) the affect of the proposed development on the structure and nature of agricultural industries in the area;

e) the traffic generating effects of the development on access roads;

f) the cumulative affect of a similar proposal if consent is

g) the likelihood of the land remaining available for agriculture.

18 Clause 13 of the KLEP requires council to consider a number of matters on the natural environmental attributes of land zoned 1(a) including: “(e) the cumulative impact of a series of development proposals”.

19 Relevant DCP's must also be considered in the assessment of the development application. These include: DCP No. 8 in terms of height and residential amenity; DCP No. 35 Rural Dwellings - Design and Sighting Guidelines; DCP No. 36 Building Lines and Foreshore Building Lines.

20 The proposal to erect a dwelling house on the subject site was advertised and three submissions opposing the proposal were received. These raise issues including non-compliance with the 40 ha standard, the precedential affect, the adverse impact on the amenity and rural character of the area.

21 The proposal requires a variation of more than 10% to the development standard and as such the council is unable to exercise its delegation under SEPP 1 and the matter was referred to the then Department of Infrastructure Planning and Natural Resources to obtain the concurrence of the Director General. The Department advised in its letter of 17 September 2004 that:

“I am writing to advise you of the Director-General's decision to decline to grant her concurrence to this proposal. Jamberoo Valley is an area of high agricultural and scenic value and it is important that these attributes are not undermined by the cumulative impact of individual decisions. Whilst is could be argued that the subject land has little agricultural potential in its own right, the erection of a dwelling would remove any possibility of the land being used for agricultural purposes in the future. This is inconsistent with the objectives of the Rural "A" zoning that relate to the protection of the agricultural potential of rural areas. The Department acknowledges that a number of nearby properties are undersized but considers that the area has retained a distinctly rural character.

The other major issues arising from this application relate to precedent and the appropriate use of SEPPI. There are undersized allotments in this area that have similar characteristics to this property. The approval of this application may set a precedent that will further undermine the objectives of the Rural "A" zone and significantly change the character and function of Jamberoo Valley. The issue of undersized allotments needs to be considered strategically rather than by the ad hoc application of SEPPI. If it is considered that a particular objective or development standard is no longer relevant, it is appropriate to address that issue through the Local Environmental Plan process. It is interesting to note that this proposal would not be permitted under proposed changes to SEPPI. "

22 The application was also referred to the former NSW Department of Agriculture for comment and by letter dated 20 July 2004 council was advised as follows:

" This matter is not a simple case of allowing a single dwelling entitlement on the subject land because it is only 0.52ha in area and located within an area where many other lots fall below the minimum development standard for dwellings under the Kiama Local
Environmental Plan 1996 (KLEP). The matter needs to be considered in the broader context of policy objectives for the Jamberoo Valley...

NSW Agriculture has always supported a consistent implementation of transparent strategic planning processes for agricultural land. Unless objectives outlined in gazetted plans are adhered to, the cumulative effects of ad hoc decisions contrary to the intent of the plan will eventually undermine its objectives. The community clearly indicated a preference to retain the agricultural character of the area.

I understand that there are many similar lots to the one in question that are considered too small for agricultural purposes. If the community's preferred land use for this area has changed from agricultural land use to residential, then the appropriate process is through a revision of the Local Environmental Plan for the area of the subject land and other similar areas. That process ensures that the changes are transparent and has community support.

It should also be noted that the departure from the 40ha minimum standard is of the order of 39.48ha, a. 98.7% variation. There have been concerns about the misuse of State Environmental Planning Policy Number I (SEPP 1) and as a result a 10% limitation on variation from a development standard is proposed as part of the review of SEPP 1. It would appear therefore that the use of SEPP I exceeds the routine use as it is not a minor variation from the planning standard.”

23 The Court met the parties on-site and heard evidence from neighbouring objectors including Mr John Griffiths of 17 North Curramore Road who considered that the open outlook from his dwelling and his privacy would be impacted by the erection of a dwelling house on the subject site. He also expressed concern about the location of the driveway opposite his driveway and that if the property was screened by trees this would detract further from the open outlook of the pastureland.

24 Mr Graham Arthur of 31 North Curramore Road expressed the view to the Court that he considered the proposal was not consistent with the objectives of the rural area and that the proposal represented residential development in the rural zone that would be a precedent and contrary to the area and increase the value of small properties akin to residential blocks of land as opposed to agricultural land.

25 Mr & Mrs Van Oudtshoorn of No. 9 Curramore Road are also of the opinion that the proposal would set an undesirable precedent and would be out of character with the area.

26 On behalf of the respondent evidence was given to the Court by Ms Louise Wells a senior planner with the Department of Planning and Mr Glenn Debnam, a consultant planner. Mr Stephen Richardson, a consultant planner, gave evidence to the Court on behalf of the applicant.

27 Ms Wells provided a statement and this contains the following:

“The underlying purpose of the development standard is to restrict development within the zone in order to conserve the agricultural potential and character of the area by preventing fragmentation and to ensure that zone objectives are met.

The Department of Planning has assessed SEPP 1 objection and concluded that the applicant has failed to illustrate that compliance with the 40 ha development standard is unreasonable or unnecessary. The use of SEPP 1 as proposed, to significantly vary the standard for a site that is not unique, would promote an ad hoc approach to a development within the zone and undermine certainty regarding development and environmental outcomes. This approach would result in an unforeseen level of development within the zone and would undermine the objectives of the zone … .

The development proposal is contrary to the exhibited draft amendment No. 61 of Kiama LEP in that it proposes a development standard variation greater than 10%. A 98% variation to the minimum area is proposed.

Jamberoo Valley has been identified as an area of high agricultural value and scenic amenity … The Kiama LEP includes the express aim of preserving the essence of the special qualities of the council’s area.

The potential erection of nine additional dwellings in this locality would change the character and scenic quality of this area as well as have a significant impact on the potential agricultural use of the land.

The proposed development also involves planting to screen the dwelling and minimise visual impact. Such plantings, in itself, is not characteristic of the open pastures in this locality. …

The circumstances of this property – i.e. its history and physical characteristics – are not sufficiently different to enable concurrence, or consent to be granted without having a precedential effect…”

28 Mr Debnam in his Statement of Evidence comments on the objectives of the 40 ha standard and in his opinion the proposal will:

• “Remove any possibility of the land ever being consolidated with adjoining class three agricultural land. While the land remains vacant, the future possibility of consolidating it with adjoining land or leasing it for use with adjoining land remains available. However, once the land is developed for residential purposes as proposed, that possibility will be lost forever.

• Effectively fragment the land for a residential use. The fact that the allotment already exists and will not be fragmented from a larger holding by virtue of the subdivision is acknowledged. However, as noted above, by enabling the land to be developed for the residential purpose proposed, the ability to consolidate the land with an adjoining larger parcel will be lost. Indeed, the act of granting consent itself or greatly inflate the market value of the land, a vacant allotment in Curramore with a dwelling entitlement is more expensive than one without a dwelling entitlement), rendering the ability of an adjoining property to purchase the land for agricultural purposes totally uneconomical.
The proposed development does not protect the agricultural potential of the land. Instead the proposal seeks to use good quality, class three agricultural land for purely residential purposes.

The proposed dwelling house, access driveway and extensive landscaping will detract from the present open, rural landscape which exists between Curramore Road and Turpentine Creek. …

The visual impact assessment has also recommended that “ no further dwellings are located in the rural flats adjacent to this property ”. This would appear to be an acknowledgment that the sparsity of dwellings on these flat open grassed paddocks is part of the landscape character of the Curramore area. The desire for the proposed dwelling house to stand alone on the eastern side of north Curramore Road, also appears to contradict the justification for the construction of the dwelling on the land – namely that the adjoining residence and gardens would form a backdrop to the proposal, giving it the appearance of being part of a clustered group of buildings .”

29 Mr Richardson in his statement comments that:

“as the subject site is an existing allotment, this proposal does not seek to subdivide land and accordingly, the proposal cannot be said to promote any fragmentation of prime crop and pasture land. In reality, the difficulty of this allotment is that it will, in all likelihood remain sterile to agricultural uses.

All that these isolated approvals demonstrate is that on a few occasions the Court, the Department and/or council have taken the view that there is merit to approve a development having regard to the nature of the individual case even though a proposal may not strictly comply with the 40 ha development standard. That is the stated purpose of SEPP 1.”

30 Mr Richardson considers comments on the draft LEP “insofar as it relates to these proceedings could be seen to be a device to frustrate an existing Court case that council has found itself defending”. He also comments that the draft amendment does not contain a savings provision and that this is good standard town planning practice. And he considers that “little weight should be afforded this draft amending LEP (Amendment No. 61) with respect to this proposal.

31 On the issue of precedential effect Mr Richardson comments that “given the number of existing dwellings and the overall area of land involved, it is my view that this individual proposal to introduce one dwelling would not result in an unsatisfactory cumulative affect within this locality. Furthermore, amendment No. 61 if gazetted would remove the ability for future SEPP 1 applications … this would remove any argument as to any precedential effect that the subject proposal may have is approved”.

32 On the other hand Mr Richardson refers to the fact that the proposal cannot be distinguished from other recent approvals within the area. And states that the site is surrounded by dwellings and the approval to this development will maintain the existing low density rural residential settlement pattern. Mr Richardson further states that “consolidation is unlikely because of economic considerations. The proposal will ensure that this land, which is presently sterile is developed in an orderly and economic pattern”.

33 The planners conferred and agreed that the subject site is prime crop and pasture land and that while the site remains vacant there is more chance of it being consolidated or used in conjunction with an adjoining property than if it contains a dwelling. They also agreed that the subdivision pattern of the area generally contains lots less than 40 ha and a proposed dwelling on the site would visible from Curramore Road but not Jamberoo Road. They also agreed that cl 12(2)(s) of the Kiama LEP requires consent authority to consider the cumulative effect of similar proposals and that there are nine lots of similar size within 2 km radius ranging in size from 5,000 sq m to 3.5 ha. They also noted there is a further 14 lots between 3.5 ha and 39.9 ha.

34 For my assessment of the application to erect a dwelling on the subject site, the SEPP 1 Objection to vary the minimum 40 ha standard is a threshold question. At the same time, an assessment under SEEP 1 in this matter also overlaps or coincides with the merits assessment of the development application.

35 I have considered the SEPPI objection to the 40-hectare standard of the KLEP applying to the erection of a dwelling house in zone 1(a) in the light of the decision of his Honour Justice Lloyd in Winten Property Group Limited v North Sydney Council, (2001) 130 LGERA 79, 6 April 2001, at 22 - 26. His Honour at para 26 stated that in applying the principles of Hooker Corporation Pty Limited v Hornsby Shire Council NSWLEC, unreported, 2 June 1986:

... “ it seems to me that SEPPI 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 EPA Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection well founded? In relation to the fourth question, it seems to me that one must look to see whether a development, which complies, with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case.”

36 It was agreed between the parties that the 40 ha minimum is a development standard that can be varied under SEPP 1 in circumstances where variation is justified and the standard is unreasonable or unnecessary in the circumstances of the case. The aim of State Environmental Planning Policy No. 1 is to allow for flexibility in the implementation of standards, however, the objects/ purpose, or the underlying objectives, of the standard must be taken into consideration in an assessment as well as the objects of the Act.

37 Mr Richardson cites two underlying objectives:

• To prevent the fragmentation of productive agricultural land;
• To prevent premature and sporadic subdivision of rural land.

38 The subject site has been in existence for some 25 years and while subdivision is not proposed, nonetheless in my assessment I must have regard to whether a dwelling house on the site would fragment productive agricultural land. I also accept that the amalgamation of the subject site with adjoining parcels would not provide for a 40 ha property. However, at the same time this does not justify allowing the erection of a dwelling house on the land and a variation to the standard. While the lot may not be currently used for productive agricultural purposes, there is no dispute that it is prime crop and pastureland located on a fertile valley floor. Given the agricultural classification of the land and the location of the site, I am not satisfied that the underlying objective of the standard, not to fragment agricultural land, is satisfied by the proposed development to erect a dwelling house.

39 The planning regime clearly identifies the importance of prime crop and pastureland and to allow a variation to the minimum size in the circumstances of this case would not constitute orderly and economic development in terms of the objects of the Act. I agree with the evidence of the respondent that the subject site would be lost for agricultural purposes in the future if the proposed dwelling house is approved. While the applicant advised that the parcel of land had not been used for agriculture for some time the erection of a dwelling would remove the potential possibility of it being used for agriculture in the future whether that be in conjunction with adjoining land or not. There are no physical constraints for the subject land being used for agriculture in terms of its location and in the circumstances of this case the SEPP 1 Objection is not well founded and should not be allowed. The fact that this parcel of land is only 0.52ha does not justify the erection of a dwelling on land zoned for Rural purposes.

40 While it is not necessary for me to further assess the application as I have found that the SEPP1 objection should not be allowed, nonetheless given the issues raised in the circumstances I consider it appropriate.

41 Pursuant to the provisions of cl 9(3) of the LEP the council, in this case the Court, must not grant consent unless it is of the opinion that the development is consistent with the objectives of the zone. These objectives are provided above and in my assessment the proposal is not only inconsistent but antipathetic to these objectives. The proposal is not consistent with “providing suitable land for agricultural use” nor is it consistent with the objective “to protect the agricultural potential of rural land”. The erection of a dwelling is inconsistent and incompatible with these objectives. A dwelling would have the effect of removing this parcel of land, albeit small, from agricultural production. The fact that there are numerous other residences within the local area that do not contribute to the objectives of the zone does not justify the further alienation of agricultural land for the purpose of a dwelling.

42 While not raised directly as an issue in the proceedings the proliferation of dwellings on prime agricultural land can lead to inherent conflicts with agricultural uses thereby impacting on the agricultural potential of other prime land. Matters such as this relate to “the effect the development will have on the agricultural viability of that land and land in the vicinity of that land” identified in cl 12 of the KLEP. Subclause 2(f) requires the Court to also consider the cumulative effect of similar proposals if consent is granted. While the merits of each case need to be assessed at the same time the circumstances of this case do not in my assessment distinguish it from other similar parcels of land to justify an approval and the cumulative effect would be to undermine the objectives of the zone and the matters for consideration in cl 12. As such the precedential effect of approving a dwelling on the subject land is a relevant consideration. While this is not determinative of this case in itself, nonetheless the cumulative impact and precedential effect coincides with other merit considerations.

43 The submissions of local residents included that the erection of a dwelling and landscaping on open pastureland would detract from the scenic quality of the area. This is also referred to in the evidence of the respondent. In my assessment this in itself is not fatal to the application in the context of observing an extra dwelling in the landscape. The fundamental issue is the protection of prime agricultural land and the potential conflict of allowing residences to be erected in a sporadic unplanned manner on rural zoned land for agricultural purposes, and not related to identified villages and townships. Although from a scenic point of view it is also regrettable.

44 I have given little weight to the draft amendment No. 61 to the Kiama LEP in my assessment. If gazetted this plan would have the effect of prohibiting dwellings on similar rural parcels below the minimum size (without a building entitlement), however, I do not rely on this draft plan in refusing the application as the application is inconsistent with the current planning controls for the land. On the other hand it would also be inappropriate to rely on the draft amendment to justify approval on the basis that no further dwellings could be built on similar parcels thereby overcoming the cumulative / precedential effect.

45 Accordingly on the basis of my assessment above the formal orders of the Court are:

1 The appeal in respect of the land being Lot 1 DP 799756 North Curramore Road, Curramore, is dismissed.

2 The SEPP 1 Objection to the development standard of 40 ha is not allowed.

3 The development application submitted to Kiama Council for the erection of a dwelling is determined by the refusal of consent.

4 The exhibits are returned.

J S Murrell
Commissioner of the Court
Rjs/ljr