Plannex Environmental Planning v Wingecarribee Shire Council

[2011] NSWLEC 1236

Land and Environment Court

New South Wales

Medium Neutral Citation:	Plannex Environmental Planning v Wingecarribee Shire Council [2011] NSWLEC 1236
Hearing dates:	25, 26 July 2011
Decision date:	26 July 2011
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	Appeal dismissed
Catchwords:	Development application - dwelling house - minimum lot size - whether prohibition or development standard - whether SEPP 1 objection should be upheld
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 1 - Development Standards Wingecarribee Local Environmental Plan 1989 Wingecarribee Local Environmental Plan 2010
Cases Cited:	Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107 Agostino v Penrith City Council (2010) 172 LGERA 380 Bell v Shellharbour Municipal Council (1993) 78 LGERA 429 Blue Mountains City Council v Lawrence Browning Pty Ltd (2006) 150 LGERA 130 North Sydney Municipal Council and PD Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222 Pancho Properties Pty Ltd v Wingecarribee Shire Council (1999) 110 LGERA 352 Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 Wehbe v Pittwater Council [2007] NSWLEC 827 Wingecarribee Shire Council v Pancho Properties Pty Ltd (2001) 117 LGERA 104 Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46
Category:	Principal judgment
Parties:	Plannex Environmental Services (Applicant) Wingecarribee Shire Council (Respondent)
Representation:	Mr P Moggach, RMB Lawyers (Applicant) Mr B Bilinsky, B Bilinksy & Co Solicitors (Respondent)
File Number(s):	10489 of 2010

EX TEMPORE Judgment

1. This is an appeal against the refusal by the respondent Council of consent to stage 1 in a staged development application under s 83B of the Environmental Planning and Assessment Act 1979 (the Act) , being an application for approval of a building envelope on lots 1 - 4, Section 10 and lots 1 - 7 Section 11 DP 758098, Sutton Street, Berrima (the site).

1. The site is on the eastern side of Sutton Street and fronts the Wingecarribee River to the west of Berrima village. The site has an area of approximately 2.2ha. The site was formerly used for horticulture and there is a shed erected on the site. The site is traversed by the western extension of Jellore Street, which is an unmade road. The 11 lots that comprise the site, together with a lot adjoining to the south (lot 5), were part of a parcel of land owned by the Crowe family. Lot 5 was sold to the owner of the adjoining land to the south in 2002.

1. The Development Application LUA09/1021 identified a building envelope located on the north-western part of the site, above the one in a hundred year and PMF flood lines. The proposed dwelling house is to be serviced by water and sewerage extensions from Berrima village. Stage 2 would involve a further development application detailing the physical design and appearance of the dwelling.

1. The issue between the parties is whether the erection of a dwelling house on the site is permissible under the Wingecarribee Local Environmental Plan 1989 (the LEP). The Council contends that under cl 13(3) of the LEP the erection of a dwelling house on land having an area of less than 40ha is prohibited; and that if the requirement that the land have an area of 40ha is not a prohibition, and is a development standard, that the objection made by the applicant under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) to the application of that development standard should not be upheld.

1. This appeal has taken longer than is desirable to be determined. The Class 1 appeal from the Council's refusal of consent was lodged on 24 June 2010, and the hearing has been adjourned pending the outcome of an appeal to the Court of Appeal in another matter involving the interpretation of the LEP, including the question of whether cl 13(3) of the LEP is a development standard. The Court of Appeal delivered its decision in Abret Pty Limited v Wingecarribee Shire Council [2011] NSWCA 107 on 5 May 2011, finding it unnecessary to deal with that question. The Council's first contention that cl 13(3) of the LEP is a prohibition rather than a development standard must accordingly be considered in these proceedings.

Planning controls

1. The relevant planning instrument at the date the development application was lodged was the Wingecarribee Local Environmental Plan 1989 (the LEP). Under the LEP the site is zoned 7(a) Environmental Protection. The objects of the 7(a) zone are:

(a) to identify and protect wetland areas and foreshores possessing special aesthetic, ecological or conservation value, hill-lands, escarpments, river valleys, inland waterways, lakes and other landscape features of scenic significance, prominent escarpments which are intrinsic natural features of the landscape and water catchment areas of significance for local water storage purposes, and

(b) to identify, by means of a development control plan, performance standards for the carrying out of development in the zone.

1. Clause 13 of the LEP relates to the erection of a dwelling house in zone 7(a) and provides:

13 Dwelling-houses-Zone No 1 (a), 1 (b), 5 (c), 7 (a) or 7 (b)

(1) This clause applies to land within Zone No 1 (a), 1 (b), 5 (c), 7 (a) or 7 (b).

(2) In this clause:

concessional allotment means:

(a) an allotment excised in accordance with clause 37 (5) of Bowral Local Environmental Plan No 1 as in force at any time before 12 January 1990, or

(b) an allotment excised in accordance with clause 30 (3) or (4) of the Shire of Mittagong Planning Scheme Ordinance as in force prior to 23 February 1979, or an allotment excised in accordance with clause 29 (5) of that Ordinance on or after 23 February 1979, or

(c) an allotment excised in accordance with clause 9 (5) of Wingecarribee Local Environmental Plan No 55 as in force at any time before 12 January 1990, or

(d) an allotment excised in accordance with clause 11 (2) or (3) of Interim Development Order No 1-Shire of Wingecarribee as in force at any time before 12 January 1990, or

(e) an allotment excised in accordance with clause 7 of Interim Development Order No 2-Shire of Wingecarribee as in force at any time before 12 January 1990, or

(f) an allotment created in accordance with clause 12 (4) of this plan as in force at any time before the amendments made by Wingecarribee Local Environmental Plan 1989 (Amendment No 68).

existing parcel means the aggregation of all adjoining or adjacent land held in the same ownership:

(a) at 8 October 1954, in the case of land to which the former Bowral Planning Scheme Ordinance applied, or

(b) at 23 July 1965, in the case of land to which the former Burradoo and Environs Planning Scheme Ordinance applied, or

(c) at 16 February 1968, in the case of land to which the former Shire of Mittagong Planning Scheme Ordinance applied, or

(d) at 18 January 1963, in the case of land to which the former Interim Development Order No 1-Shire of Wingecarribee applied.

former planning instrument means:

(a) in relation to land to which the former Bowral Planning Scheme Ordinance applied-the former Bowral Planning Scheme Ordinance, and

(b) in relation to land to which the former Burradoo and Environs Planning Scheme Ordinance applied-the former Burradoo and Environs Planning Scheme Ordinance, and

(c) in relation to land to which the former Bowral Local Environmental Plan No 1 applied-the former Bowral Local Environmental Plan No 1, and

(d) in relation to land to which the former Shire of Mittagong Planning Scheme Ordinance applied-the former Shire of Mittagong Planning Scheme Ordinance, and

(e) in relation to land to which the former Wingecarribee Local Environmental Plan No 55 applied-the former Wingecarribee Local Environmental Plan No 55, and

(f) in relation to land to which the former Interim Development Order No 1-Shire of Wingecarribee applied-the former Interim Development Order No 1-Shire of Wingecarribee, and

(g) in relation to land to which the former Interim Development Order No 2-Shire of Wingecarribee applied-the former Interim Development Order No 2-Shire of Wingecarribee.

(3) A dwelling-house may, with the consent of the council, be erected on land to which this clause applies, but only if the land:

(a) has an area of not less than 40 hectares, or

(b) comprises the whole of an existing parcel, or

(c) comprises the residue of an existing parcel, the area of which is less than 40 hectares and on which no dwelling-house is erected and is affected only by a subdivision made (whether before or after the appointed day) in accordance with a consent granted pursuant to a former planning instrument, or

(d) is a concessional allotment, or

(e) is an allotment created between 18 January 1963 and 10 April 1964 in pursuance of Interim Development Order No 1-Shire of Wingecarribee, or

(f) is an allotment created for the purposes of a country dwelling between 10 April 1964 and 21 November 1975 in pursuance of Interim Development Order No 1-Shire of Wingecarribee or lawfully created for any other purpose between those dates provided that the allotment concerned is 10 hectares or more in area, or

(g) is an allotment lawfully created in accordance with clause 30 (1) of the Shire of Mittagong Planning Scheme Ordinance as in force before 23 February 1979, or

(h) is an allotment in respect of which the Minister made a determination pursuant to clause 29 of the Shire of Mittagong Planning Scheme Ordinance as in force before 23 February 1979.

(4) (Repealed)

1. Under cl 6 of the LEP the definitions of the Environmental Planning and Assessment Act Model Provisions 1980 are adopted, which relevantly include the definition of "dwelling house", which "means a building containing 1 but not more than 1 dwelling".

1. The Wingecarribee Local Environmental Plan 2010 (the 2010 LEP) came into effect on 16 June 2010, and includes cl 1.8A which provides that a development application lodged before its commencement is to be determined as if the 2010 LEP had not commenced. Under the 2010 LEP the site is zoned E3 Environmental Management, under which a dwelling house is permissible with consent. Part 4 of the 2010 LEP provides Principal Development Standards. Clause 4.2A of the 2010 LEP provides for the erection of a dwelling house in the E3 zone, and subclause (3) provides:

(3) Development consent must not be granted for the erection of a dwelling house on a lot in a zone to which this clause applies, and on which no dwelling house has been erected, unless the lot is:

(a) a lot that is at least the minimum lot size specified for that lot by the Lot Size Map, or

(b) a lot created before this Plan commenced and on which the erection of a dwelling house was permissible immediately before that commencement, or

(c) a lot resulting from a subdivision for which development consent (or its equivalent) was granted before this Plan commenced and on which the erection of a dwelling house would have been permissible if the plan of subdivision had been registered before that commencement, or

(d) an existing holding.

1. Clause 4.6 provides that exceptions can be made to the development standards. Clause 4.6(8) specifies the provisions that cannot be varied, and clause 4.2A is not included in that provision.

1. There are a number of development control plans that apply to the land. The Council relied on Development Control Plan 14- Historic Berrima , in particular the policy objective of the visual catchment area within which the site is located.

Evidence

1. The hearing commenced on site, and included a view of the site and the surrounding development; and a view from the bridge across the Old Hume Highway, and from the other end of Jellore Street, both to the east of the site across the Wingecarribee River.

1. Evidence was given on site by Mr Clyde West, Secretary of the Berrima Residents Association, and by Mr Linderson, the owner of the adjoining land to the south. The Council's bundle of documents tendered in evidence includes submissions made by other residents in response to the notification of the development application. Those objections raised concerns as to the proposed effluent disposal, visual impacts from the other side of the Wingecarribee River and in the case of the immediately adjoining owner to the north, the impact of the erection of a dwelling in the proposed building envelope. More general objections were made on the basis of principle, and the desire to support the 40 ha minimum allotment restriction.

1. Expert planning evidence was given on behalf of the Council by Mr Graeme Hewat and on behalf of the applicant by Mr Glenn Debnam.

Consideration

1. It is common ground that the site, together with lot 5, was held in the same ownership as at 16 February 1968, and that before the sale of lot 5, cl 13(3)(b) of the LEP would have applied to permit the erection of a dwelling house. It was common ground that this provision does not apply since the sale of lot 5, and that none of the paragraphs (c) to (h) of clause 13(3) apply.

Is clause 13(3)(a) a prohibition?

Applicant's submissions

1. The applicant submits that clause 13(3)(a) is not a prohibition but is a development standard. The applicant relies on the decision of Talbot J in Pancho Properties Pty Ltd v Wingecarribee Shire Council (1999) 110 LGERA 352, which considered cl 13(3) and 13(4) of the LEP. While accepting that cl 13(4) has since been repealed, and cl 13(3) amended as a consequence of that repeal, the applicant relies on the conclusion of Talbot J, which was confirmed by the Court of Appeal on appeal ( Wingecarribee Shire Council v Pancho Properties Pty Ltd (2001) 117 LGERA 104) that cl 13(3) is a development standard. In Wingecarribee Shire Council v Pancho Properties Pty Ltd (2001) 117 LGERA 104 at [55] Giles JA referred to his judgment in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 in which his Honour set out the two step approach subsequently adopted in the Court:

96 The matters in the construction of the definition discussed by Mahoney JA in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) mean that, in order that a provision fall within the definition as a development standard, there must be a development in respect of an aspect of which the provision specifies a requirement or fixes a standard. A provision prohibiting the development in question (the use of land, subdivision of land, erection of a building etc, see the definition of "development" in the Act) under any circumstances will be a provision controlling development, but it will not be a development standard. The availability of SEPP No 1 will fail at the first step.

97 Beyond this, the debate should be over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development. I consider one can profitably return to the observations of McHugh JA in Woollahra Municipal Council v Carr , to his Honour's reminder of the need to define the development and its aspects before it can be determined whether the provision in question is a development standard. Referring again to the definition of 'development standards', there must be a provision in relation to the carrying out of development, and then the provision must specify a requirement or fix a standard in respect of an aspect of that development. Having identified the development in relation to which there is the provision, the aspects of that development must be considered in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development.

98 If the provision does not prohibit the development in question under any circumstances, and the development is permissible in circumstances expressed in the provision (whether positively or negatively, see the forms of provision earlier stated), in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development. In the absence of control, and subject for example to the private law of nuisance, a landowner may develop his land as he sees fit...

1. The applicant submits that the provision under consideration in Pancho Properties, Poynting , and in Bell v Shellharbour Municipal Council (1993) 78 LGERA 429, is very different to that under consideration by the Court of Appeal in Blue Mountains City Council v Lawrence Browning Pty Ltd (2006) 150 LGERA 130, where Tobias JA held:

53 ...Even accepting the "wider view" of the concept of "aspects of the development" advocated in Poynting , I would not be prepared to extend that concept to a requirement which is unrelated to the development proposed but is an attribute of the whole of the land within the area shown edged with a heavy black line on the Map and which engages more than the land the subject of the application.

54 In other words, even accepting the "wider view", I do not regard the consolidation requirement in cl.29.2 as being equivalent or analogous to a provision that a dwelling house shall not be erected upon an allotment of less than a specified area. The two requirements in my opinion are essentially different. Although one is a requirement with respect to an aspect of the proposed development, the other is not. The latter, as is implicit in the reasons of Basten JA, is an "essential element" to the permissibility as a matter of zoning (in the wider sense referred to by his Honour) of the proposed development and not an aspect of that development which is external to that element.

1. The applicant submits that the provision under consideration in Agostino v Penrith City Council (2010) 172 LGERA 380, which is the most recent consideration by the Court of Appeal of these issues, is also very different to that in cl 13(3). The applicant submits that the development for which consent is sought is a dwelling house, which is permissible in zone 7(a). The definition of "dwelling house" contains no area component, in contrast to the permissible development in Agostino , which was held by the Court of Appeal to be the composite or complete phrase of "fruit or vegetable store with a maximum floor area of 150 sq m". The provisions in cl 13(3)(a) constitute provisions of an environmental planning instrument relating to the carrying out of the permissible development, and being directed to area specifically fall within the included provisions of the definitions of "development standard" in s 4(1) of the Act. On that basis the applicant submits that cl 13(3)(a) of the LEP is a development standard.

Respondent's submissions

1. The Council submits that cl 13(3) is included within Div 2 of Part 3 of the LEP which deals with "development in rural and environmental zones", which includes zone 7(a), and that cl 13(3) deals specifically with a dwelling house in that particular zone. Clause 13(3) permits the erection of a dwelling house in that zone but only if the land has an area of not less than 40ha. Clause 13(3) specifies a number of circumstances in which a dwelling house may , with consent, be erected, and that includes land which comprises the whole of an "existing parcel". The Council submits that the proper construction of clause 13(3) is prohibitory, relying in particular on Agostino . The Council submits that the cases referred to above demonstrate that while opinions have differed on the identification and application of relevant principles in determining whether a particular provision is a development standard, the proposition that commands general support is that close and careful attention needs to be given to the particular drafting of the relevant provisions. The Council submits that as in Agostino , the essential conditions or considerations in determining the permissibility of a dwelling house in zone 7(a) are that the development proposal is for a single dwelling house as defined, and that proposal must relate to land which has a minimum of 40ha. Since the second element is not met, the development is prohibited.

1. In considering the relevant authorities, the Council submits in relation to Pancho Properties that the Court of Appeal did not deal with clause 13(3), and its findings on the nature of the 40 ha requirement in subclause 13(4) were obiter. In reaching its decision the Court of Appeal in Pancho Properties adopted and applied what was described as the wider view in Poynting , and held that the 40 ha requirement in subclause 13(4) was a development standard. In applying that wider view, the Council notes that the Court was dealing with a particular type of application for consent to erect a dwelling house, in that instance a second dwelling house on land. In that instance, under cl13(4) it was permissible with consent where the land in question had an area of not less than 40 ha, but only if the Council was satisfied that each additional dwelling house met the requirements stipulated in paragraphs (a) and (b) of what was then subclause 13(4). On the Council submissions, the essential considerations or conditions (in the sense used in Agostino ) in determining whether the particular development in Pancho Properties was permissible, were those specified in paragraphs(a) and (b) of subclause 13(4). The words "land which has an area of not less than 40 hectares" were regarded not as a essential condition or consideration, but rather was a development standard. The Council relies on the distinction drawn in North Sydney Municipal Council and PD Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222, where the Court distinguished between two provisions of the relevant LEP, being clauses 14A(1)(a) and 14A(2). The distinction between those provisions lay in their drafting; and the distinction between the two different provisions drawn in Mayoh applies, in the Council's submissions, equally to subclauses 13(3) and (4) of the LEP in this instance. Having regard to those authorities, the Council submits that the 40 ha minimum area requirement is an essential condition to the permissibility of the construction of a dwelling house, as opposed to being an aspect of the carrying out of a development which is permissible with consent, and that accordingly the proposed development is prohibited.

Findings

1. I note that consideration of the question of whether a particular provision is a development standard, and thus amenable to variation by means of an objection under SEPP 1 has, as the parties' submissions demonstrate, generated considerable litigation. The starting point for consideration of whether cl 13(3)(a) is a development standard is the definition of "development standards" in s 4(1) of the Act:

development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of:

(a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point,

...

1. I agree with the Council that the primary focus of attention must be on the particular provision in the LEP and its context. As noted by Giles JA in Poynting :

93 ...Care must be taken lest form govern rather than substance. A provision in the form, "A building may be erected on land in a particular zone if the land has an area greater than a particular area" appears regulatory, whereas a provision in the form, "A building must not be erected on land if the land has an area less than a particular area" appears prohibitory, but the substance is the same.

1. I agree with the Council that caution must be exercised in relying too heavily on conclusions drawn from construction of particular provisions in other LEPs, and that the correct approach to adopt is that most recently identified by the Court of Appeal in Agostino by Tobias JA (with whom Giles JA agreed):

43 As has been stated on a number of occasions in the authorities to which I have referred, at the end of the day what is involved in the resolution of the present issue is a question of construction of the particular provisions of the particular planning instrument under consideration. The starting point in the present case, in my view, is the proposition that prior to the insertion of clause 41 into the LEP, a fruit and vegetable store, being a shop (as defined) was a prohibited use. Clause 41 was inserted as an exception to that general prohibition to provide for a particular permissible use on a particular parcel of land.

44 The description of that permissible use is to be found in clause 41(3). In my view the Council's submission that the proper description of that use is a "fruit and vegetable store with a maximum floor area of 150m" should be accepted so that any such store with a floor area (as defined) exceeding that maximum falls outside the purview of clause 41(3) and is thus prohibited.

45 In Lawrence Browning Basten JA (at [102]), when dealing with the proper identification of the development proposed in that case, observed:

"Part of that identification should have included reference to the zoning criteria for the land on which the proposed development is to take place. That is because the particular zoning criteria are essential considerations in determining whether the development is permissible. It is clear that, had the erection of dwelling houses been proposed with respect to land on which such a development was not permitted, the decision would have been different. If the consolidation requirement were understood to be a part of the zoning of the land, on the same logic the result would have been different."

46 In the present case, what one is required to do is to identify the proposed development and then to determine whether it falls within the description of that which clause 41(3) makes permissible with consent. In performing this exercise it is necessary to identify which criteria are essential conditions in determining whether the particular development proposed is permissible. Thus as Giles JA observed in Lowy at [116], it is necessary to first address the LEP by reference not only to principle but also to its own structure and provisions. In so doing care is also to be taken to ensure that form does not govern substance: Poynting at [93].

1. In construing cl 13(3)(a) of the LEP, I agree with the submissions of the applicant that the permissible use is a "dwelling house". Contrary to the position in Agostino , where the use for a fruit and vegetable store would otherwise have fallen within the prohibition of a "shop", that use is permissible with consent in the 7(a) zone under the LEP. The only essential criterion for the permissibility of that use in the 7(a) zone is that it not be for a rural worker's dwelling. I agree with the applicant that what distinguishes Agostino from the circumstances of the present case is the inclusion of the essential element of area within the provision which identified the development that was permissible in that case. That does not appear in cl 13 of this LEP, which identifies that a "dwelling house" is that which requires development consent. The provisions contained in cl 13(3)(a) constitute provisions of an environmental planning instrument in relation to the carrying out of that permissible development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, and that characterisation accords with the definition of a development standard in s 4(1) of the Act. The provisions of cl 13(3)(a) are directed to area, in this instance being 40 ha, and thus falls specifically within the provisions included within the definition of development standards. I agree with the applicant that in this respect the provisions of cl 13(3)(a) is no different to clauses 18 and 41(4) of the Penrith Local Environmental Plan No 201 which were identified by Tobias JA in Agostino as being development standards .

1. That conclusion means that on my construction of the LEP, the proposed development is permissible, however upholding the SEPP 1 objection made by the applicant when lodging the development application to compliance with the 40 ha minimum lot size is a precondition which must be satisfied before the proposed development can be approved on consideration of the merits: Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46; Wehbe v Pittwater Council [2007] NSWLEC 827.

Should the SEPP 1 objection be upheld?

Applicant's submissions

1. The applicant submits that the SEPP 1 objection should be upheld. The applicant submits that compliance with the development standard is unreasonable or unnecessary, first, because the objectives of the development standard are met notwithstanding non compliance; and secondly, because the development standard has been virtually abandoned in the context of the settlement pattern in the vicinity of the site.

1. The applicant submits that the circumstances are unusual in that but for the sale of lot 5, the site would have been part of an "existing parcel" as defined in cl 13, and the erection of a dwelling house would have been permissible. The applicant also submits that the erection of a dwelling house on this site would not add a dwelling house to what would otherwise have been permissible. The approval of this application would not, in the applicant's submission, have a precedent effect, because of those unusual circumstances, the settlement pattern in the vicinity, and the agreed lack of visual impact and the availability of services to the site.

Respondent's submissions

1. The Council submits that the SEPP 1 objection should not be upheld. The Council submits that there is other similarly zoned area in the general area of the site which could equally be subject to an application for the erection of a dwelling house. The site is located on what is a remnant of the subdivision pattern dating from well before the inclusion of the 7(a) zone in the LEP, and the inclusion of the existing parcel exception in cl 13(3) acknowledges the circumstances in which people acquired rights before those controls came into place. There is no evidence that other than for one approval on the main road (discussed below), the Council has approved a similar application in the Berrima area that departs from the development standard, other than for those that meet the existing parcel requirement; accordingly, the Council has not abandoned its controls. To uphold the SEPP 1 objection in these circumstances would be a significant departure from the control, being some 94.5%, and that would give rise to others seeking to make similar applications.

Evidence

1. In the SEPP1 objection, Mr Debnam identified the underlying objectives or purpose of the standard as being:

• To prevent the fragmentation of prime crop and pasture land;
• To protect the landscape and scenic quality of the rural environment;
• To prevent the over-development of land potentially subject to flooding or bushfire risk;
• In relation to those lots that are vacant and already less than the minimum area, to:

(i) encourage the rationalisation of the existing fragmented ownership pattern; and

(ii) require consolidation of lots with other vacant land; and

• to provide for separation between towns and villages;
• to maintain a low density pattern of development in the rural areas of the Wingecarribee Shire.

1. In oral evidence Mr Debnam stated that he had derived this underlying objective from the zone objectives; the location of the site within the Sydney Catchment Area and in the curtilage of Berrima village; the fact that the site is bush fire and flood prone; and to reflect the shift in settlement pattern from towns and villages. Mr Hewat in oral evidence agreed with this statement of objectives, stating that in his opinion the objective was to prevent the development of unserviced lots which are environmentally constrained, and to be a control on the settlement pattern. Mr Debnam was of the opinion that compliance with the 40 ha standard is unreasonable or unnecessary in the circumstances of the case because:

(a) the objectives as they relate to visual quality, water quality, flora and fauna, bushfire hazard and existing infrastructure can be satisfied by the development proposal;

(b) a minimum allotment area of 40 ha cannot be achieved, even through the consolidation of the subject site with a number of contiguous and non contiguous vacant allotments of land;

(c) the density and settlement pattern of the area has a rural residential character, which is much denser than that which would be expected in an area that has adopted a 40 ha minimum allotment size; and

(d) the subject site is located in a part of Berrima where, despite the 7(a) zoning, dwellings have historically been erected on allotments of significantly less than 40ha in area.

1. In Mr Debnam's opinion, the proposal will not fragment prime agricultural land; it will result in consolidation of 11 undersized allotments into a single allotment; the site is not in a visually prominent area; the site is acceptable for a dwelling house having regard to water quality, bushfire hazard, flooding and existing infrastructure; the environmental impact to the dwelling house in this location would be similar if the site had an area of 40 ha; before the sale of lot 5 the site was part of an "existing parcel" and as such had a dwelling entitlement; and the circumstances of that sale to the neighbouring owner mean that the number of dwelling houses that could have been erected before the sale of lot 5 does not change.

1. Mr Hewat's evidence was that the Council has not, in the 21 years that he has been employed there, upheld a SEPP 1 objection and permitted the erection of a dwelling house on a lot less than 40 ha, other than for land that falls within the provisions of clause 13(3)(b)-(h), except for one instance where the Council had compulsorily acquired approximately 2ha of land for the purpose of augmenting the water supply and permitted the erection of a dwelling house on the remaining area, being some 30ha. Mr Hewat agreed that if lot 5 had not been sold, and the land had remained an existing parcel, he would have supported an application for the erection of a dwelling house under cl 13(3)(b) on the basis that it was possible to deal with issues of effluent disposal and siting the dwelling above the flood area. Mr Hewat agreed with the description of the locality as being rural residential in character. Mr Hewat accepted that the Council had, after debate, decided to retain the existing holdings provisions in the 2010 LEP and to retain the possibility of a variation of the 40ha control under cl 4.2A.

1. In Mr Debnam's opinion the approval of dwelling houses on lots smaller than 40 ha under the existing parcel provisions represents an abandonment by the Council of the 40 ha control which is reflected in the settlement pattern in the locality of the site. The SEPP 1 objection notes that in the locality there are 16 other parcels of land ranging in area from 0.1439 hectares to 4.59 hectares which have either a dwelling or a dwelling entitlement, and one parcel of land of 3.55 hectares which does not have a dwelling entitlement. Mr Hewat did not agree that the Council has abandoned the standard, relying on the absence of development consents granted by upholding SEPP 1 objections.

Findings

1. The approach to be taken in consideration of the SEPP 1 objection in these proceedings is that outlined by Lloyd J in Winten Property Group:

26. ... it seems to me that SEPP 1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EP&A Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection is well founded? In relation to the fourth question, it seems to me that one must also 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.

1. In Wehbe , Preston CJ held (at [37]-[40]), that the Court must be satisfied of three matters before it can uphold a SEPP 1 objection and grant development consent. Those matters are, first, that the Court is satisfied that the objection is well founded (cl 7 of SEPP 1), which places the onus on the applicant making the objection; secondly, the Court must be of the opinion that granting consent to the development is consistent with the aims of the SEPP1 as set out in cl 3 (cl 7 SEPP 1); and thirdly, the Court must be satisfied that a consideration of the matters in cl8(a) and (b) of SEPP 1 justifies the upholding of the objection.

1. It was common ground that the site is located in an area that can best be described as rural residential in character, and it was confirmed on the view that the prevailing settlement pattern in the locality is one of houses located on relatively small lots, which does not conform to the one dwelling per 40 ha standard in cl 13 (3)(a). It was common ground that the average size of land on which dwellings are erected in the immediate vicinity is approximately 1.8 ha and the largest is 4.59 ha. I accept the statement of the underlying objective for the 40 ha development standard as agreed between the experts.

1. The applicant's case relies in part on the argument that the objectives of the development standard are achieved notwithstanding non-compliance with the standard, and on the argument that based on the consents granted by the Council for the erection of dwelling houses on land in the locality on lots significantly less than 40 ha, the Council has by its own actions virtually abandoned the standard. As discussed by Preston CJ in Wehbe at [42]-[48], those are two of the ways in which an applicant can, on the authorities, establish that compliance with a development standard is unreasonable or unnecessary.

1. In considering the first basis on which the applicant submits that compliance with the development standard is unreasonable or unnecessary, I agree that some of the objectives of the development standard as agreed by the planners are not relevant to this application. The site is not rural land used for agricultural purposes and is, as agreed between the planners, located in an area best described as rural residential in character. While I accept, based on the planning evidence and the evidence from the view, that a house erected in the building envelope which is part of this application is unlikely to be directly visible from the bridge or from the other side of the Wingecarribee River, it would be the addition of a house in an area where the relevant zone objectives include "to identify and protect wetland areas and foreshores possessing special aesthetic, ecological or conservation value, hill lands, escarpments, river valleys, inland waterways, lakes and other landscape features of scenic significance, prominent escarpments which are intrinsic natural features of the landscape and water catchment areas of significance for local water storage purposes".

1. I agree with the Council that to uphold the objection in this instance, in a context where the Council has, on the undisputed evidence of Mr Hewat, been consistent in requiring compliance with the development standard other than in circumstances where the existing parcel or other concessional provisions apply, could encourage similar applications to be made. I agree with the Council that its approval of the erection of dwelling houses on lots that meet the requirements of paragraphs (b)-(h) of cl 13(3) does not represent an abandonment by the Council of the standard of 40 ha minimum lot sizes. Those provisions should, in my view, be considered to be, as characterised by the Council, a recognition that at the time the relevant planning controls were introduced there were many people who had acquired expectations of being able to erect a dwelling house on a parcel of land smaller than 40 ha. Those provisions are specifically defined by reference to the definitions of "concessional allotment" and "existing parcel" in cl 13(2) and the other specific provisions in paragraphs (e)-(h). While reliance on those provisions may have led to the settlement pattern in the vicinity of the site, that does in my view demonstrate why compliance with the development standard in this instance is unreasonable or unnecessary. The circumstances in which the site ceased to be part of an "existing parcel" is not, in my view, relevant to consideration of whether it is unreasonable or unnecessary to comply with the 40 ha standard in this instance. Equally, I would not regard the fact that the 2010 LEP retains provisions that are substantially similar to those in the LEP as indicating that the Council has abandoned its controls, rather, that they represent a recognition by the Council of the ongoing expectation of land holders who meet the existing parcel and concessional allotment provisions.

1. I am not persuaded that compliance with the development standard would, in the circumstances of this case, be unreasonable or unnecessary. I am also not persuaded that it would tend to hinder the attainment of the objects in s 5(a)(i) and (ii) of the Act. To the contrary, I am of the view that compliance with the 40 ha minimum lot size in the zones identified in cl 13(3), subject to recognition of the existing parcel provisions, would enhance the object of promoting the orderly and economic use of developed land.

1. The final matter to be considered is the requirement in cl 7 of SEPP 1 that the concurrence of the Director-General be obtained by the consent authority. The Department of Planning expressed its opinion in a letter to the Council dated 8 October 2010 in which the Department, while noting that the Council had refused the application and that the matter was currently before the Court, made comments on how the Department would have considered the proposal, and indicated that it was likely that the Department would not have granted concurrence to the application. Those comments included comments that the proposal represented a significant variation of the development standard; and that if concurrence were granted to such a significant variation it could lead to similar applications within the vicinity and more generally across the local government area; and thirdly, that the proposal could be considered to undermine the objectives of the zone.

1. It was common ground that by s 39(6) of the Land and Environment Court Act 1979 it would be open to the Court to uphold the SEPP 1 objection notwithstanding that the concurrence of the Department has not been obtained. However, as noted by Preston CJ in Wehbe , the provisions of cl 8 of SEPP 1 must still be considered by the Court. That includes consideration of the public benefit in maintaining the planning controls adopted by the LEP, and in the circumstances of this case, I agree with the Council that the potential precedent effect of upholding the SEPP 1 objection in this instance would be contrary to the public benefit of maintaining the planning controls.

Conclusion

1. In conclusion, while I am satisfied that cl 13(3)(a) of the LEP is a development standard, I am not satisfied that the SEPP 1 objection to compliance with that standard is well founded, or that the granting of consent to the erection of a dwelling house on the site is consistent with the aims of SEPP 1, or that a consideration of the matters in cl 8(b) of SEPP 1 justifies the upholding of the SEPP 1 objection. That means that the proposed development cannot be approved.

1. Accordingly the orders of the Court are:

(1)   The appeal is dismissed.

(2)   Development consent is refused to development application LUA09/1021 for the approval of a building envelope on lots 1 - 4 Section 10 and lots 1 - 7 Section 11 DP758098 Sutton Street, Berrima.

(3)   The exhibits, other than exhibits 1 and A are returned.

Linda Pearson

Commissioner of the Court

Decision last updated: 15 August 2011