Rein Warry and Company v Wollondilly Shire Council

[2008] NSWLEC 1176

Land and Environment Court

of New South Wales

CITATION:

Rein Warry and Company v Wollondilly Shire Council [2008] NSWLEC 1176

PARTIES:

APPLICANT
Rein Warry and Company

RESPONDENT
Wollondilly Shire Council

FILE NUMBER(S):

10098 of 2008

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Subdivision, SEPP1, Objection to minimise lot size

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Wollondilly Local Environmental Plan 1991
State Environmental Planning Policy No.1

DATES OF HEARING:

12/05/2008

EX TEMPORE JUDGMENT DATE:

12 May 2008

LEGAL REPRESENTATIVES:

APPLICANT
Ms P. Whitford, solicitor
instructed by Mr S.Kondilios
of Maddocks lawyers

RESPONDENT
Mr D. Baird, solicitor
Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT

OF NEW SOUTH WALES

Hussey C

12 May 2008

10098 of 2008 Rein Warry and Company v Wollondilly Shire Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

1 Rein Warry lodged this appeal against council’s refusal of a development application for a 2- lot subdivision at 50 Nectarbrook Drive, Theresa Park. This lot has an area of 9.546ha and currently comprises 2 separate portions, which are bi-sected by Nectarbrook Drive. There is a brick cottage and shed erected on the eastern lot (Lot 42).

2 The subdivision proposal is to create:

• Lot 41; with a road frontage of 171.9m and area of 4.518ha.
• Lot 42; with a road frontage of 173.248m and area of 5.028ha.

3 The current controls in the Wollondilly LEP 1991 prescribe a development standard for a minimum lot size of 40ha in this Zone No 1 (b) (Agricultural Landscape Zone).

4 Rein Warry lodged a comprehensive SEPP 1 Objection to this standard in the circumstances of this case. Initially, this was not accepted by council, resulting in the refusal of the application. However, on review the council decided to support the proposal and referred it to the Department of Planning for concurrence.

5 On 20 September 2007 the Department did not provide its concurrence and noted that:

• The land is in Wollondilly Shire LEP 1991 Zone No. 1(b) (Agricultural Landscape), and
• The standard under clause 12(2)a is a minimum lot size of 40 hectares. The applicant requests that this standard be greatly varied to allow a subdivision resulting in 2 lots with respective areas of 4.518 hectares and 5.028 hectares.
• A major argument presented by the applicant to vary the standard by 90% is that the existing property is affected by a road severance.
• Immediately adjacent to this property there are 3 other properties dissected by the same road. Along with this, it is likely that there are other properties affected in a similar manner in the Wollondilly LGA.
• The report prepared by staff firmly recommends that Council refuse the development application for a number of valid reasons.
• The Department has a particular concern that an undesirable precedent for further subdivision within Zone No. 1(b) (Agricultural Landscape) could be established.

6 Wollondilly Local Environmental Plan 1991 . Under this LEP the land is in the Zone No 1(b) (Agriculture Landscape Zone). The zone objectives are:

(a) to encourage the preservation of the rural landscape character by ensuring that development is compatible with that character; and

(b) to allow for the continuation of existing agricultural practices; and

(c) to provide for community titles subdivision subject to appropriate controls; and

(d) to maintain existing significant stands of indigenous vegetation; and

(e) to protect the water quality of receiving streams and to reduce the incidence of land degradation; and

(f) to minimise the visual impact of development on the rule landscape. Amendment No. 28-26/6/98)

7 The LEP does not state the objectives for this minimum lot size of 40 ha contained in cl 12.

The SEPP1 objection provided an assessment of the rural character of this area, which has evolved as a distinct rural/residential character. Previous subdivisions have allowed allotments with areas in the vicinity of 1 – 2 ha.

9 The subdivision proposes a building envelope control to ensure that there will be minimal impact on flora and fauna and the strands of vegetation are to be preserved.

10 The SEPP 1 objection also contains details, which indicate that the traditional agricultural grazing and dairy practices are no longer able to be practiced on this land as they are not agriculturally, socially or economically sustainable.

11 In terms of the tests for SEPP 1 assessment and in the absence of stated objectives for this development standard, then the underlying objective (Test 2) is taken as a joint function of the zone objectives and lot size. These objectives relate to preservation of the rural landscape, preservation of agriculture and protection of the environment.

12 The next tests are dealt with in the SEPP 1 as follows:

Question 3
(i) The total area for both existing allotments is 9.546 in a zone with a minimum allotment development standard of 40 ha, however, the site is severed by a public road in use for access to more than 60 properties further out along Nectarbrook Drive. This is a particularly unique circumstance of this property. Whilst the historical use of the land was for cattle grazing, this had now ceased. The nature and use of Nectarbrook Drive has now changed. Where once the area was inhabited by only a few farming families, it is now occupied by a potential of 61 families. These farming families used the land, however, the new residents do not use the land for anything, other than lifestyle allotments. This land is no longer a viable rural holding because of its proximity to other dwellings, its terrain and the loss of agricultural land due to the large riparian area and setbacks. The argument that splitting the land into two allotments will further erode the viability of the holding is somewhat hollow as the viability has been eroded over many years by a significant reduction in the land which is used for agriculture. The essential appearance and use of the land in this vicinity has now changed.

(ii) This proposal is therefore a case for flexibility in planning controls, due to the specific site circumstances, where flexibility will encourage the proper use and development of this land resource, and provide a better outcome and welfare for the local community by providing a development which is within the capability of the land and in accordance with the expectations of the local residences.

(iii) With the increase in allotments comes the natural increase in population. Planning for crime principals dictate that this area should be further populated to provide better surveillance and protection for the increased population. It should be considered that the section of road between the four(4) severed allotments and the community title developments to the north and south presents itself as an isolated piece of rural road, which is not visible from any other area. The increase in the number of dwellings in this area will have a positive increase in public safety. One needs only to look at the Ebony Simpson abduction at Pheasants Nest in 1991 to realise that isolated sections of rural road require intensification of possible casual surveillance particularly at school bus drop off time. This proposal does respect the issues of planning for crime prevention.

(iv) If flexibility is not applied to the subject development standards by virtue of cl.3 of SEPP 1 then there will be hindrance to attaining the objectives of the EPA Act 1979. The land exists as two independent parcels, the only difference will be the potential for a second dwelling. Given that Clause 14 of the LEP does provide for a rural workers dwelling (subject also to SEPP 1), then it could be argued that after approval, this development will have no greater capability of affecting the rural landscape amenity than currently exists.

Question 4

(i) In relation to this application, the 40ha development standard has no underlying objectives other than the maintenance of the rural character of the locality and the prevention of fragmentation (except in accordance with a community title development). It is satisfactory, according to the LEP requirements, to fragment land as long as it is done on a larger scale, ie. 10 allotments for 80ha or 10x2ha allotments and one residue allotment of 60ha. However, until amendment 28 to LEP 1991 took place the community title developments were available on original holdings of 40ha allotments with a density of one dwelling per 4ha and a minimum allotment size of 1ha. This is the standard that applied to the developments further along Nectarbrook Drive and now makes the overall character of the locality. This density is almost identical to the density being achieved by this application.

(ii) The rural character has been discussed in detail above and will not be compromised by this application. The proposed subdivision does not introduce any new boundaries that don’t exist today. The subject allotment is already fragmented by the severing road.

(iii) The facts are that the subject property is already severed by a public road, has no cropping capability and it is capable of having two dwellings erected on it in a manner that is compatible with adjoining development is a circumstance of the application and should be given substantial weight.

(iv) In relation to severance, the converse argument is that if the land is not used for agriculture then there is no need to separate the two components. In answer to this we submit that this application is essentially different to the previous application in DA D87-02. In that application there was no opportunity to reconfigure allotments to be both sides of the road. This is not the case with this application, which now involves purely a road severance. From ecological assessments, greater human occupation leads to better management and control of weeds and feral animals. Un-maintained, there is clear potential for weeds and noxious plants to take over the site. Leaving the land idle will not add to the character of the locality that has evolved as a result of the community title developments.

(v) For support under SEPP 1 an application must not hinder the objectives of the zone and clearly this application does not hinder the zone objectives as discussed in the Statement of Environmental Effects.

(vi) It is therefore unreasonable and unnecessary to impose the 40ha development standard.

Question 5
In itself, this proposal does not offend any objectives of the Wollondilly LEP 1991, does not offend any other environmental planning instruments or development control plans. This development is a logical and a reasonable development of this land. In the absence of this standard, the allotments sizes are still compatible with other allotments in the locality. The argument that the 61 community title allotments are counter balanced by the agricultural use of the community land is not a persuasive argument. If the individual owners had access and capacity to use these community land areas, that use would not be for agricultural purposes, it would be for recreational purposes. The retained agricultural practices on the community land are not representative of the former use or intensity of use. The best agricultural land, in the community title developments, is now covered by dwellings. With this proposed development, most of the best agricultural land is still available for the maintenance of the limited agricultural use.

CONCLUSION

13 Having considered the evidence and submissions I am satisfied this application merits conditional consent.

14 The Council is satisfied with the proposal and raised no objection to the SEPP 1 objection.

15 The only objection is the withholding of concurrence from the Department of Planning, however they declined to participate in the hearing. Notwithstanding this,the council advised that in relation to the precedence concern and accordance with the line of authority for such ‘precedence’ considerations, there is not a significant number of other similar applications. Therefore I give this little weight in the circumstances.

16. Apart from the dissection by the road, I am satisfied with the other grounds that these 2 land portions are unlikely to be suitable for agriculture and that the conditions of consent can reasonably achieve the rural landscape objectives. Therefore I accept the council’s submissions that strict compliance with the development standard is unnecessary and unreasonable.

17 The Court orders:

1 The appeal is upheld.

2 The SEPP 1 Objection to the minimum lot size in cl 12 of the Wollondilly LEP 1991 is allowed.

3 Development consent is granted to DA ID610-06 for a two lot Torrens Title subdivision of the property legally described as
Lot 4, DP1030244 and known as 50 Nectarbrook Drive. Theresa Park, subject to the conditions in Annexure “A” hereto.

4 The exhibits be retained except A.

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