Simmat & Associates Architects Pty Limited v Kiama Municipal Council

[2006] NSWLEC 362

Land and Environment Court

of New South Wales

CITATION:	Simmat & Associates Architects Pty Limited v Kiama Municipal Council [2006] NSWLEC 362
PARTIES:	APPLICANT: Simmat & Associates Architects Pty Limited RESPONDENT: Kiama Municipal Council
FILE NUMBER(S):	11443 of 2005
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Compliance with the 40-hectare development standard for the erection of a dwelling house in zone 7(d) of KLEP Visual impact
LEGISLATION CITED:	State Environmental Planning Policy No 71 - Coastal Protection, (SEPP71) State Environmental Planning Policy No 1 - Development Standards, (SEPP1) Illawarra Regional Environmental Plan No 1, (IREP1) Kiama Local Environmental Plan 1996, (KLEP)· Development Control Plan No 35 - Rural Dwelling Design & Siting Guidelines, (KDCP35) Environmental Planning and Assessment Act 1979, ss79C and 97
CASES CITED:	Goldin v Minister for Transport (2002) 121 LGERA 101; Hooker Corporation Pty Limited v Hornsby Shire Council NSWLEC, unreported, 2 June 1986; Thorncraft v Bathurst Regional Council & Anor [2005] NSWLEC 571; Winten Property Group Limited v North Sydney Council, (2001) 130 LGERA 79
DATES OF HEARING:	13/06/2006 and 14/06/2006
DATE OF JUDGMENT:	06/23/2006
LEGAL REPRESENTATIVES:	APPLICANT: Mr P McEwen, SC, barrister instructed by Ms M B Peatman, solicitor SOLICITORS: Hunt & Hunt RESPONDENT: Mr P V Moggach, solicitor SOLICITORS: Kearns & Garside with RMB Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

23 June 2006

11443 of 2005 - Simmat & Associates Architects Pty Limited v Kiama Municipal Council

Introduction

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Kiama Municipal Council (the council) of a development application to erect a dwelling house, shed, cattle crush and dam and to use as a Wagyu beef stud, Lot 5, Section 4, DP 758437; Lot 2, DP 131737; Part Lot 1, DP 448731; Lot 1, DP 198784; Lot 10, DP 703395; just south of the intersection of Jupiter and Fern Streets, Gerringong.

2 I visited the land in company with the parties on the morning of the first day of proceedings. Mr Nott resident of No 44 Jupiter Street, Gerringong, gave evidence on site.

3 I have concluded that the State Environmental Planning Policy No 1 objection to the development standard of 40 hectares is not well founded and as a result the application must fail.

The land
4 The land that comprises five allotments of Class 3 ‘prime crop and pasture land’ is situated on the eastern side of Fern Street, at Gerringong. The land has an area of 7.6207 hectares and is cleared and according to the applicant has been used for many years for grazing and horse agistment. The land adjoins the southern edge of the urban area of Gerringong, abutting:
· to the north – detached dwellings on residentially zoned land fronting Jupiter Street and St Mary's Star of the Sea Catholic Church (a listed item of environmental heritage pursuant to Kiama Local Environmental Plan 1996);
· to the east – a small holding Lot 2, DP 198784 of 1.41 hectares, and Lot 1, DP 198785 of 0.6542 hectares on which a dwelling can be erected (within the residentially zoned land) and land zoned 6(a) partly Crown land;
· to the south – presently around 47 hectares farmland in Lot 11, DP 874728, owned by Mr M Weir; who on 4 July 2005 presented a rezoning request to the council that seeks to dedicate 13.3 hectares of land for a walking trail; to retain about 23.5 hectares as farming including the existing homestead; rezone about 9 hectares fronting Fern Street for residential purposes [possible 140 dwelling houses] and provide a ridge top park [around 1.3 hectares]; and
· to the west – detached dwellings on residentially zoned land.

5 The land slopes upwards from Fern Street in the easterly direction to the ridgeline on which is proposed to site the dwelling house. It then slopes down in a generally northeasterly direction. Spectacular views of the coastline, Boat Harbour and the township of Gerringong are obtained from the land. The land is of high scenic quality. Not one of the existing lots has a dwelling entitlement.

6 The areas of the five separate parcels are:

Lot 5, Section 4, DP 758437	0.5968 hectares
Lot 2, DP 131737	0.0759 hectares
Part Lot 1, DP 448731	5.485 hectares by calculation
Lot 1, DP 198784	1.22 hectares
Lot 10, DP 703395	0.2430 hectares
Total area	7.6207 hectares

Relevant planning controls

State Environmental Planning Policy No 71 - Coastal Protection, (SEPP71)

7 The land is located within the coastal zone, requiring consideration of the objectives and matters for consideration prescribed by SEPP71.

8 Clause 8 of SEPP71 requires consideration of “…the scenic qualities of the New South Wales coast, and means to protect and improve these qualities.”

State Environmental Planning Policy No 1 - Development Standards, (SEPP1)

9 The development application was accompanied by an objection made under SEPP1 to the 40-hectare minimum allotment size development standard in cl 31 of KLEP.

10 Under the delegations given to the staff of Kiama Council any variation to the standard greater than 10% requires concurrence of the Director-General of the Department of Planning.

Illawarra Regional Environmental Plan No 1, (IREP1)

11 The land is subject to the objectives and provisions of IREP1. Under Part 2 of the IREP1 part of the land has been identified as having prime crop and pasture potential and as having landscape and environmental attributes.

Kiama Local Environmental Plan 1996, (KLEP)

12 The land is zoned part 7(d) Rural Environmental Protection (Scenic) and part 6(a) Existing Recreation under the provisions of KLEP and ‘dwelling houses’ are permissible with development consent in the 7(d) zone. ‘Agriculture other than intensive livestock production carried out on lawfully cleared land’ is permissible without development consent in the 7(d) zone. In the 6(a) zone ‘agriculture’ of any kind requires development consent and dwellings are prohibited. Lot 1, DP 198784 near the coast is within the 6(a) zone. Consolidation of lots is not considered development and no development consent is required to combine the five lots into one as proposed.

13 Clause 4 of the KLEP sets out the aims and objectives for the 7(d) zone:

(a) to protect vegetation and land of significant scenic or aesthetic value;
(b) to preserve, within the land referred to in paragraph (a), significant vegetation stands and promote revegetation programs;
(c) to preserve dominant land forms which contribute to significant landscapes and form part of an aesthetic environmental feature;
(d) to provide suitable land for agricultural use;
(e) to protect the agricultural potential of rural land;
(f) to prevent the fragmentation of rural land of prime crop and pasture potential
(g) to allow on lawfully cleared prime crop and pasture land the continuation of animal grazing and cropping practices associated with the use of land for agriculture;
(h) to cater for small domestically-based enterprises that do not adversely affect the environment or the amenity of the neighbourhood and its residents; and
(i) to ensure that development and land management practices do not have an adverse effect on water catchments, water quality, land surface conditions and important ecosystems such as streams, estuaries and wetlands.

14 Clause 31 of the KLEP provides development standards for the erection of a dwelling house on 7(d) zoned land. Clause 31(3)(a) requires a minimum allotment size of 40 hectares for the erection of a dwelling house in this zone. As the land does not satisfy this criterion the applicant has lodged an objection to the development standard under SEPP1.

15 Clauses 32 and 39 of the KLEP provide heads of consideration for the assessment of development applications. Clause 32(1) of the KLEP states that the effect that the proposed development will have on the agricultural viability of the land and land in the vicinity of that land.

16 Under cl 32(2) of the KLEP the following are to be taken into account

i) the effect of the proposed development on agricultural and other land uses undertaken on adjacent and adjoining holdings and other holdings in the vicinity;
ii) the quality of the land and the potential agricultural productivity of the land;
iii) the likely impact of the proposed development on the landscape, vegetation, soil resources and stability and water resources (including the quality of water courses, ground water storage and riparian rights), and the cumulative impact of the development on surface and ground water quality and quantity and on the physical and biological functions of watercourses and riparian corridors;
iv) the effect of the proposed development on the structure and nature of agricultural industries in the area;
v) the traffic generating effects of the development on access roads;
vi) the cumulative effect of similar proposals if consent is granted;
vii) the likelihood of the land remaining available for agriculture.

17 Clause 39 of the KLEP deals with:

(a) the protection of rare and endangered flora and fauna species and the protection of habitats for native flora and fauna;
(b) the protection of wildlife corridors and vegetation links with other nearby bushland;
(c) the protection of bushland as a natural stabiliser of the soil surface and the protection of existing landforms such as natural drainage lines, water courses and foreshores;
(d) the protection of bushland for scenic values and the retention of the unique visual identity of the landscape;
(e) the cumulative impact of a series of development proposals.

18 Clause 44 of the KLEP requires that the consent authority to not grant consent to a development application on land in the vicinity of a heritage item unless it has made an assessment of the effect the carrying out of that development will have on the heritage significance of the item and its setting.

19 Clause 50 of the KLEP limits the height of any buildings to two storeys.

20 Clause 54 of the KLEP relates to development located along arterial roads. This clause requires that the council not grant consent to a development application on land, which has frontage to an arterial road unless a road other than the arterial road provides access to the land, wherever practicable. Further, it also requires that the council is satisfied that the safety and efficiency of the arterial road will not be adversely affected by:

i) the design of the access to the proposed development, or
ii) the emission of smoke or dust from the proposed development, or
iii) the nature, volume or frequency of vehicles using the arterial road to gain access to the proposed development.

21 Clause 55 of the KLEP requires consideration of traffic impacts of a proposed development, having regard to its traffic impacts on the road system and the amenity of residents, the safety of traffic access and the adequacy of car parking.

Development Control Plan No 35 - Rural Dwelling Design & Siting Guidelines, (KDCP35)
22 KDCP35 applies to all rural areas. The performance criteria and development standards are contained in KDCP 35.
23 Clause 7.1 of the KDCP35 addresses general design requirements:
· Buildings should be sited so that they are not located or project above ridgelines or knolls and are sensitively placed within the rural landscape.
· Houses and outbuildings shall be single story in height except where the second storey is concealed within a roof loft space.
· Rural buildings should be clustered to form a group. Buildings shall be broken into smaller elements rather than presenting a large building mass.
· The buildings shall be set back at least 15 metres from the front property boundary.
· Dwelling houses and associated buildings shall present a small form when viewed against the surrounding landscape within the relevant visual catchment. The proposed buildings shall not dominate the landscape when viewed from surrounding properties and public areas.
· Developments shall be designed and sited so as to be sympathetic with the heritage qualities of existing development.
· Dwelling houses as shall be part of an integrated landscape plan, which achieves appropriate landscaping.
· Materials and external finishes shall not give rise to visual intrusion. The use of recessive and earthy tones is required.
· Developments shall be located and designed to achieve maximum solar energy collection and to minimise energy use.

24 Clause 7.2 of the KDCP35 addresses vehicular access

· Access to a development should be located having regard to its potential impact on the landscape and native vegetation. The provision of access should be unobtrusive and sympathetic to the existing landforms and neighbouring development.

· Legal and practical access from a public road is required.

· Compliance with Planning for Bushfire Protection 2001 is required.

· All grades in excess of 12% are to be sealed.

25 Clause 7.3 of the KDCP35 addresses environmental considerations:

· Developments shall not be carried out on slopes steeper than 20%.

· Minimal tree clearing shall be undertaken.

· Consideration to be given to possible impacts on fauna and flora.

· Riparian areas to be protected.

26 Clause 7.4 of the KDCP35 addresses natural hazards:

· A bushfire risk assessment is required to be provided with an application.

· The design and construction of buildings shall be undertaken to minimise the risk of fire.

· Provision shall be made for sufficient water storage for fire-fighting purposes.

· Access for fire-fighting vehicles is required.

· A geotechnical report is required in relation to the proposed building envelope and any access roadways.

27 Clause 7.5 of the KDCP35 addresses amenity of the area

· Minimum front setback of 15 metres.

· Landscaping is required to partially screen development.

· The dwellings and associated buildings, including farm/machinery sheds and stockyards, shall be located a minimum distance of 100 metres from dwelling houses on adjoining properties.

· New buildings shall be located to minimise the impact on prime crop and pasture land and any agricultural activities being carried out on neighbouring land. The dwelling houses shall be well setback from dairies, cattle yards and other intensive areas of agricultural production to minimise potential rural/residential conflict.

28 Clause 7.6 of the KDCP35 addresses services:

· The method of effluent disposal shall be determined having regard to a range of criteria.

· Council encourages the use of sustainable energy resources.

· Any structures associated with the provision of electricity and telecommunications should be located to have minimal environmental impact including visual impact.

· A satisfactory level of water supply shall be provided for a domestic and fire-fighting purposes.

· Rural buildings without a reticulated water supply shall have water storage facilities containing a minimum of 45,000 litres of water of which 10,000 litres at shall be reserved for fire-fighting purposes.

29 Land abutting the northern boundary is zoned a combination of 2(a) Residential ‘A’ and 5(a) Special Uses (Church). Mainly detached dwelling houses are erected on the residentially zoned land in Jupiter Street. The 5(a) zoned land contains a church hall and St Mary's Star of the Sea Catholic Church, a nominated item of environmental heritage under the KLEP.

30 To the south, the land abuts a large parcel of land which is zoned a combination of 7(d) Rural Environmental Protection (Scenic) and 7(f) Rural Environmental Protection (Foreshore). Mr M Weir, owner of this land, has sought a rezoning. The council on 20 September 2005 resolved to deal with the rezoning request as part of the review of the KLEP. It is expected that a draft of the KLEP amendment would be prepared for the council’s consideration by late 2006 or early 2007. Land abutting to the east is zoned 6(a) Existing Recreation.

Draft Amendment No 61 of KLEP, (Amendment61)

31 Amendment61 relevantly aims, [Note: Exhibit 1, Tab A3]:

To insert a new clause 67 in the plan to limit the application of State Environmental Planning Policy No 1 - Development Standards in so far as it allows for the variation of minimum area development standards applying to a subdivision or residential development on land in Zone Nos 1(a), 7(d), 7(e) or 7(f).

32 There is apparently no savings provision applying to this amendment and it was common ground that once gazetted it would have the effect of prohibiting the development the subject of these proceedings.

Draft State Environmental Planning Policy (Application of Development Standards) 2004, (Policy2004)
33 The aims of Policy2004 are, [Note: Exhibit 1, Tab A4]:
(a) to provide an appropriate degree of flexibility in the application to particular development of a development standard specified in or under an environmental planning instrument, and
(b) to achieve outcomes for and from development in the circumstances addressed by this policy, and
(c) to promote good strategic planning practice by incorporating provisions allowing flexibility in local environmental plans.

34 Apparently a savings provision applies, however, once gazetted it appears likely that s 8(2)(c) to Policy2004 a development application cannot be made for the subdivision of land resulting in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard. Subdivision is not sought in the present application; however, it was common ground that the amendment would have the effect of prohibiting the development the subject of these proceedings.

The proposal and its history

35 Development application No DA10.2005.225.1 was lodged with the respondent council on 29 June 2005 to erect a dwelling house, shed, cattle crush and dam and to use as a Wagyu beef stud the land.

36 The proposed single-storey dwelling house would provide three bedrooms. It would be setback around 100m from the Fern Street alignment and oriented to the east to provide views to the coast. The dwelling, surrounded by verandahs, would comprise four (4) linked pavilions and a carport.

37 The external walls would be constructed of stone and glass with external horizontal timber louvres. The hipped and gabled 30-degree pitched roof would be clad with ‘Colorbond’ custom orb roof sheeting. A pergola would be provided over the western wall of the living room.

38 Vehicular access would be via an existing vehicular entrance off Fern Street.

39 A 10,000 litres underground water tank is proposed. On-site treatment and disposal of wastewater is proposed.

40 Vegetation regeneration is proposed around the boundaries of the Wagyu beef breeding property. The applicant has indicated that, if the land is well managed, it could carry up to 20 head of cattle.

41 A farm shed and cattle yard crush are also proposed close to Pt Lot 1, DP 448731 and Lot 5, Sec 4, DP 758437. A 13.5 metres by 13.5 metres shed would be constructed of vertical ‘Colorbond’ custom orb sheeting with a ‘Colorbond’ custom orb roof. The shed would house a small laboratory and space for the storage of machinery and hay.

42 Adjacent to the shed it is proposed to construct the cattle yard crush and loading yards.

43 A 100,000 litres dam is also proposed, to the northeast of the proposed dwelling adjacent to Lot 2, DP 198784.

SEPP1 objection

44 The application was supported by a SEPP1 objection prepared by Mr Stoddart, [Note: Exhibit 1, Tab B4, Annexure 2]. A SEPP 1 objection to the development standard is necessary as the land is 32.4 hectares less than the development standard, and is an 81% variation to the development standard. The objection related to the minimum allotment size for the erection of a dwelling house on land zoned 7(d) Rural Environmental Protection (Scenic), cl 31(3)(a) of the KLEP that states:

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 hectares; or
(b) …

45 The application is not for a ‘rural worker’s dwelling’ under cl 31(4) of the KLEP. In respect of which the council, or the Court on appeal, must

…be satisfied that the additional dwelling house will be actually occupied by a person employed or engaged by the owner of the land in the use of the land for the purposes of agriculture and that separate ownership of the proposed dwelling could only be achieved by a subdivision of the land in accordance with cl 30 [no greater in area than 4000m2].

46 Other provisos apply to the consideration of a an application for a ‘rural worker’s dwelling’.

47 Mr Stoddart identified the objectives of the SEPP1 objection as being:

· Minimising fragmentation, [of agricultural land];

· Avoiding the proliferation of dwelling houses. Restricting the erection of a dwelling to holdings of 40-hectares will establish a dispersed settlement pattern.

· The standard reduces the potential for land use conflicts.

48 Mr Stoddart concluded in the SEPP 1 objection “…that 40 hectares is unnecessary to attain the objectives of the standard,” and “…strict compliance is unnecessary and unreasonable in this case”.

49 The objectives of the zone 7(d) Rural Environmental Protection (Scenic) are set out above and are more encompassing than those identified by Mr Stoddart. Of particular interest are those that protect the scenic and aesthetic value of the dominant landforms; protect the agricultural potential of rural land; prevent the fragmentation of rural land of prime crop and pasture potential.

50 The parties were agreed that the underlying purpose of the 40-hectare minimum allotment development standard for the erection of dwelling houses within the 7(d) Rural Environmental Protection (Scenic) zone was that identified by Mr Layman, [Note: Exhibit 5 p 12] as being to:

· prevent the fragmentation of holdings of land suitable for agriculture;

· maintain a dispersed settlement pattern that protects the scenic quality of the landscape and minimises potential for land-use conflicts;

· protect the agricultural potential of the land suitable for rural use;

· protect vegetation and promote revegetation on land of significant scenic or aesthetic value; and

· preserve dominant landforms which contribute to significant landscapes.

Notification
51 Adjoining and adjacent property owners were informed of the development application and submissions were invited. The council received six (6) submissions and these raised concern in relation to the proposal on the grounds of:
· odour and noise generated by cattle, associated heavy vehicles and the effect on residential amenity;
· the proximity of the cattle crush and shed to neighbouring residential properties;
· the permissibility of a dwelling on the land;
· loss of coastal views;
· effect on landscape character;
· use of chemicals in conjunction with the laboratory;
· at the time of sale of the property other prospective purchasers were advised that it would not be possible to erect a dwelling on the land;
· a dwelling is not necessary on the land. A nearby house would provide convenient access;
· a more substantial fence should be provided between the paddocks and the boundary with the properties fronting Jupiter Street;
· there is no need for a ‘landscape regeneration screen’ inside the boundary. its creation would impede coastal views available from properties fronting Jupiter Street and would encourage vermin; and
· some form of drainage should be put in place to divert water from the subject property running into the neighbouring Jupiter Street properties.

52 As the variation in allotment size was greater than 10% of the 40-hectare development standard, the council referred the development application for concurrence to the Department of Planning. The Director-General for Planning declined to give concurrence and commented:

The use of SEPP1 is not considered to be appropriate for this proposal. The land is zoned 7(d) Rural Environmental Protection (Scenic), as well as being identified in Illawarra REP No.1 as prime crop and pasture land and of high scenic quality. It is important that the objectives of the environmental protection zone and prime agricultural lands are upheld and that the environmental attributes and agricultural potential are not undermined. The Department does not consider that the proposal is consistent with the objectives of the 7(d) Rural Environmental Protection (Scenic) Zone or prime agricultural lands.
The site is substantially below (81%) the minimum area development standard. In order for planning to be effective, it is necessary to apply consistent and transparent processes. Decisions, which allow development that is inconsistent with the objectives of the zone, can lead to cumulative impacts that undermine those objectives. In cases where a particular objective or development standard is no longer considered relevant, it is appropriate to address this through the LEP process.
Your Council is currently reviewing its Shire wide LEP, which includes a strategic approach to rural, urban and environmental issues. The Department asked Council to review the boundaries for residential development at South Gerringong through this process. In addition a development control plan for Gerringong and Gerroa is also being drafted which addresses the issues of, and identifies the boundaries for, future residential development.
In, light of the LEP review and other planning studies; the Department considers it inappropriate to approve a development substantially below the minimum development standard. Such a decision is considered premature and could prejudice the outcomes of the strategic planning for this area. The LEP process is the most appropriate mechanism by which to consider the adequacy of the zones and their objectives.

53 The development application was referred to the Department of Primary Industries (DPI) that commented.

I understand that the Wagyu stud is proposed as a breeding centre for the collection of embryos for transfer to females at Goolloinboin Station in the Central West.
I have perused the documents provided to me on the stud. I have some doubt about the legitimacy of the enterprise as a commercial agricultural operation. The key reasons are:

· The stud is not sizeable enough to be a commercial operation in its own right unless it is operated as an intensive cattle feedlot. Intensive agriculture is not permissible on the land under the Kiama LEP 1996.

· The stud would need to maintain a strong connection with Goolloinboin Station. That connection cannot be guaranteed in the long term.

· The land could be used for residential purposes resulting in the land being lost to agriculture. The land is classified as Class 3 in accordance with the agricultural suitability maps prepared by NSW Agriculture. The land is therefore well suited to agriculture.

· It is considered that SEPP 1 is not an appropriate instrument to use to vary the standard, as it is greater than 80%.

54 The Roads & Traffic Authority (RTA) recommended that access to the classified road network be avoided where possible to minimise the impact to road safety and traffic efficiency. The RTA also recommended that the applicant explore options of accessing their property via the local road network, such as Jupiter Street. Further, the RTA recommended that the council look at developing the local road network in the area to minimise the need for future development related access points along Fern Street. This issue of traffic access was not strongly pressed in the proceedings.

55 The council’s heritage adviser reviewed the application from numerous vantage points, and from the adjacent Catholic Church. The council's heritage adviser considered that the potential visual impact of the house and sheds on the church had been inadequately addressed within the Statement of Environmental Effects (SEE) lodged with the application. It was considered that the visual impact of the proposed dwelling on the church would be far greater than suggested by the SEE. It was also noted that the SEE is somewhat dismissive of the heritage value of the church and the surrounding landscape. Based on the significance of the church and cemetery, and the importance of the landscape context and setting of the area, it was recommended that a more detailed analysis of the potential visual impact from heritage perspective, prepared by a heritage landscape consultant, should be provided. This issue of heritage significance was not strongly pressed in the proceedings.

The council’s decision

56 When the appeal was filed the council had not determined the application.

The hearing

57 The appeal was filed 6 December 2005 as a deemed refusal.

58 At the hearing the court heard evidence on behalf of the respondent council from:

· Mr K N Nott, owner, and part time resident of No 44 Jupiter Street, Gerringong;

· Mr G Towers, Senior Planner Southern Region Department of Planning;

· Mr G Meaker, and

· Ms W D Goodburn, Agricultural Environment Officer, South East Region, Department of Primary Industries.

59 On behalf of the applicant evidence was given by:

· Mr C A Stoddart, consultant town planner; and

· Mr S Yeates, agricultural expert.

60 Mr S R Layman was the Court-appointed town planner.

61 Ms T Smyth, Senior Town Planner of Kiama Municipal Council prepared the statement of basic facts dated 11 January 2006, used in this judgment.

The issues

62 On 29 March 2006 the council filed an amended statement of issues.

1 Contrary to clause 31 of Kiama LEP1996
1.1 The land the subject of the development application is situated off Jupiter and Fern Streets, Gerringong and comprises:

· Lot 5, Section 4, DP758437;

· Lot 2, DP131737;

· Part Lot 1, DP448731;

· Lot 1, DP198784;

· Lot 10, DP703395;

("the Land").
1.2 It is proposed to erect a dwelling house on that part of the land contained in Part Lot 1, DP448731 ("Lot 1").
1.3 The dwelling house is proposed to be constructed on that part of the land zoned 7(d) Rural Environmental Protection (Scenic) under Kiama LEP1996.
1.4 The land contains an area of approximately 7.6 hectares.
1.5 The Applicant proposes to consolidate the 5 parcels comprising the Land as part of the application.
1.6 Clause 31(3) of Kiama LEP1996 sets a 40 hectare development standard for the erection of a dwelling-house in zone 7(d) unless the land comprises one of the exceptions to the general rule noted in clause 31(3)(b) to (f).
1.7 Neither the land nor Lot 1 is one of the exceptions to the 40-hectare development standard.
1.8 The SEPP1 objection lodged by the applicant fails to establish that strict compliance with the 40 hectare development standard is unreasonable or unnecessary or would tend to hinder the attainment of the objects of section 5 of the Environmental Planning and Assessment Act.
1.9 The Director-General of Planning has declined to grant concurrence to the SEPP1 objection.

2 Contrary to draft amendment No 61 of Kiama LEP 1996 and draft SEPP No 1 – Development Standards (Amendment No 1)
2.1 Draft amendment No 61 to Kiama LEP 1996 ("amendment no 61 ") proposes a new clause 67 which would have the effect of prohibiting the development the subject of these proceedings.
2.2 Amendment No 61 was placed on public exhibition on 22 February 2006.
2.3 The draft amendment to SEPP 1 would also have the effect of prohibiting the development the subject of these proceedings.
2.4 The proposed development is contrary to both draft environmental planning instruments.

3 Contrary to the aims and objectives of Kiama LEP1996
3.1 The proposed development is contrary to the objectives of Kiama LEP1996 set out in clause 4(2) specifically;

(aa) to restrict the fragmentation of non-urban land other than for agricultural purposes.

3.2 The proposed development is contrary to the objectives of land zoned 7(d) set out in clause 9 specifically:

4 Contrary to Kiama Development Control Plan No 35
4.1 Kiama Development Control Plan No 35 Rural Dwellings Design & Siting Guidelines apply to the proposed development.
4.2 The proposed development is contrary to clause 4 - Objectives being:

4.3 The proposed development is contrary to clause 7.1 (General Design Requirements) in that:

· it does not preserve the rural character of the locality (Aim 1);

· it does not protect items and areas of heritage value (Aim 2);

· the bulk and scale of the development is not limited and it dominates the surrounding rural area (Aim 3);

· the rural buildings are out of character with the surrounding area and are not consistent with the traditional form of clustering of rural buildings on individual properties (Aim 4);

· the dwelling-house is sited so that it projects above a ridgeline and is not sensitively placed within the rural landscape (Criteria 1);

· the buildings are not clustered to form a group (Criteria 3);

· the dwelling-house does not present a small form when viewed against the surrounding landscape within the relevant catchment (Criteria 5);

· the development is not designed and sited to be sympathetic with the heritage quality of the nearby Star of the Sea Church.

4.4 The proposed development is contrary to clause 7.2 (Vehicular Access) in that the RTA does not consider that the proposed access road provides a safe and practical access to the dwelling-house site from the public road off Fern Street contrary to Aim 1.
4.5 The proposed development does not comply with clause 7.5 (Amenity of the Area) in that:

· it does not preserve the rural character of the locality (Aim 1);

· it has an adverse impact on the amenity of surrounding property (Aim 2);

· it increases the potential for conflict between agricultural enterprises and nearby dwelling-houses (Aim 3);

· it increases the density of the development pattern (Aim 4);

· the farm machinery sheds and stockyards are located less than 100 metres from dwelling-houses on adjoining properties (being located approximately 45 metres from the nearest dwelling) (Criteria 5).

5 Premature development
5.1 The Land is situated immediately south of the Gerringong township. It is bounded on its north and west by land zoned 2(a) Residential.
5.2 The Land is under investigation for rezoning for urban uses under the review of Kiama LEP1996.
5.3 Approval of the development application is premature and may undermine the orderly development of the Land for urban purposes should a rezoning occur.

6 Contrary to clause 32 of Kiama LEP1996
6.1 Clause 32(2) requires Council not to grant consent to development on land within 7(d) unless it has considered:
(f) the likelihood of the land remaining available for agriculture; and
(g) the cumulative effect of similar proposals if consent is granted.

6.2 The NSW Department of Primary Industries is concerned about the long-term viability of the proposed Wagyu Stud enterprise. If that enterprise fails, the Land will be used for rural residential purposes and will be lost to agriculture.
6.3 The approval of the development application would raise the expectation of owners of similar sized vacant allotments within the Council area; thereby undermining the objectives of Kiama LEP1996 and the 40 hectare development standard. This will be contrary to the public interest.

7 Heritage issues
7.1 The land adjoins the Star of the Sea Church, which is a listed item of environmental heritage under Kiama LEP1996.
7.2 The proposed development on the land will have an adverse impact on the heritage significance of the Star of the Sea Church and its setting.

8 Visual impact
8.1 The land is identified as having landscape and environmental attributes under Illawarra Regional Environmental Plan No 1.
8.2 The proposed dwelling house contains a roofline extending for more than 63 metres and is situated on a ridgeline.
8.3 The proposed dwelling house will have an unacceptable visual impact when the Land is viewed from various vantage points within the township and surrounds of Gerringong.

9 Lack of a need for the dwelling house
9.1 The Applicant contends that the dwelling house is required for supervision of the proposed Wagyu Stud.
9.2 The Land adjoins the township of Gerringong and there are a number of residential allotments, which have a common boundary with the land.
9.3 The size and design of the dwelling house far exceeds that required for the supervision of a small number of cattle.
9.4 If it was essential for the proposed agricultural pursuit to be constantly supervised, this could be done from an adjoining or nearby residence within the township of Gerringong.

63 Issue No 7 in regard to heritage impact was not pressed and the following emerged as the salient issues:

· compliance with the 40-hectare development standard for the erection of a dwelling house in zone 7(d) of the KLEP; and

· visual impact of the proposed dwelling, shed and planting on the prominent grassy ridgeline.

The evidence and findings

Compliance with the 40-hectare development standard for the erection of a dwelling house in zone 7(d) of the KLEP

64 The NSW Department of Primary Industries does not support the SEPP1 objection and questioned the efficacy of the Wagyu Stud enterprise as a commercial operation, [Note: Exhibit 1, Tab B8].

65 The concurrence of the Director-General of the Department of Planning was sought by the council as the proposal would involve a variation to the 40-hectare minimum allotment size for dwellings in rural areas, development standard, by greater than 10%, and that concurrence was declined, [Note: Exhibit 1, Tab B9].

66 Despite Mr Stoddart’s support for the SEPP1 objection to the 40-hectare standard, Mr Layman the Court-appointed town-planning expert considered it to be flawed, “…in respect of the matter of protection of the agricultural potential of land suitable for rural use,” and “…could have an effect of undermining the orderly and economic development of land” [Note: Exhibit 5, p 14, paras 3.1.23 and 3.1.24]. I accept the evidence of Mr Layman in that regard and consider the 40-hectare minimum standard for the erection of a dwelling house on rural land has important work to do to protect the agricultural potential of the land and limit the expansion of the village of Gerringong.

67 I have considered the SEPP1 objection to the 40-hectare standard of the KLEP applying to the erection of a dwelling house in zone 7(d), 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 SEPP1 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.

68 Taking each question posed by his Honour Lloyd J and answering it:

· First, there was no dispute between the parties that the 40-hectare minimum allotment standard in cl 31(3)(a) of the KLEP is a development standard.

· Second, the underlying object or purpose of the standard is as set out above in para 44, derived from the evidence of Mr Layman, [Note: Exhibit 5, p 12, para 3.1.10], which both parties accepted, including:

o to prevent the fragmentation of holdings of land suitable for agriculture, in this case prime crop and pasture land; Despite the applicant being willing to amalgamate the five existing allotments, into one, the erection of a dwelling house on 7.6207 hectares of land I am satisfied, would undermine this underlying objective. The erection of a dwelling house for other than purely agricultural purposes, would ensure that the value of the land would increase and render its use for purely farming activities more difficult and down grade its usefulness for this purpose. This would in turn fragment the land by creating an economic disincentive to use the land for farming in association with other farming land nearby. I am satisfied on the evidence of Mr Yeates for the applicant and Ms Goodburn and Mr Meaker for the respondent that leasing a dwelling in close proximity to the land, while not ideal from the point of view of the applicant, would be an option and would allow for agricultural use of the full area of the land for the undoubtedly valuable Wagyu stud, [Note: Exhibit 12, para 6.2]. Electronic monitoring might also be an option and would allow the manager to reside off-site nearby. There are likely to be nearby properties available for lease or purchase within the residential area of Gerringong and I am satisfied that the prime crop and pasture land would be better protected by not building a dwelling on the land as proposed.

o maintain a dispersed settlement pattern that protects the scenic quality of the landscape and minimises potential for land-use conflicts; If no dwelling were erected on the land the grassy slopes of the subject land would remain and provide a separation between the southern edge of the Gerringong township and Gerroa to the south. The next property to the south on the eastern side of the Princes Highway is that owned by the Weirs. Their homestead would not be within the visual catchment of the town, unlike the proposal that would be clearly visible on the hillside, despite there being proposed screening vegetation.

o protect the agricultural potential of the land suitable for rural use; This is important as the land is identified as prime crop and pasture land. Its agricultural potential would be diminished were it to be covered in part by a dwelling. The parties agreed that the dwelling house and associated buildings and calf yards and cattle race would be 1.6 hectares in area and these uses would reduce the productive capacity of the land for purely rural use significantly.

o protect vegetation and promote revegetation on land of significant scenic or aesthetic value and preserve dominant landforms which contribute to significant landscapes; The erection of a dwelling with screening vegetation, as proposed, would significantly affect the scenic and aesthetic value of the land. The grassy slopes of the land leading to the ocean provide its scenic and aesthetic value. This would be lost if the proposal were to go ahead.

· Third, compliance with the development standard would be consistent with the aims of the Policy, and in particular, compliance with the development standard not tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979. The objects are “…to encourage the proper management, development and conservation of natural and artificial resources, including agricultural land; and the promotion and co-ordination of the orderly and economic use and development of land,” [Note: Thorncraft v Bathurst Regional Council & Anor [2005] NSWLEC 571]. The proposal would not be a stand-alone agricultural holding as it is proposed to be used in conjunction with a larger cattle property, Goolloinboin Station, near Mudgee. The Wagyu Stud at Gerringong would not be sizable enough as a commercial operation in its own right, unless operated as an intensive cattle feedlot, and that intensive agriculture use is not permissible in the 7(d) zone under the KLEP. The connection between the land and Goolloinboin Station is tenuous and might be severed at some time in the future. However, the legal connection between the land and the proposed dwelling/dwelling entitlement would be enduring and ‘travels with the land’ as submitted by Mr Moggach in his submissions. The proposed dwelling/dwelling entitlement and the land are within the same development application and have been considered together. Whereas the Goolloinboin Station is not part of this application. The subject development application would immediately change its character were the connection with Goolloinboin Station severed, and I am satisfied that this is a highly likely at some time in the future. Then the proposal would be of a character more like a rural residential use or a hobby farm situated close to the services of Gerringong. I am satisfied that in order to ensure the objectives of the zone are met, it would be more appropriate for the land to be used for agistment, with no dwelling/dwelling entitlement, in association with a larger parcel of rural land nearby or to the south. Mr Towers was of the opinion that by granting a dwelling entitlement to the land would “…impact on the ability to consolidate” it with other parcels nearby. I accept the thrust of that evidence. Should the connection between the land and Goolloinboin Station be severed, either upon approval or some time in the future, the proposal would be contrary to the aims of the Policy and the intention of the Act and the answer to this question is no and the application must fail.

· Fourth, compliance with the development standard would not be unreasonable or unnecessary in the circumstances of the case.

· Fifth, the objection is not well founded and the application must fail.

69 Mr Layman also agreed that “…the LEP process is the appropriate method for consideration of zoning change and SEPP1 should not be used as a ‘de facto’ rezoning mechanism,” [Note: Exhibit 5, p 14]. SEPP1 is not to be used to effect planning changes: Hooker Corporation Pty Limited v Hornsby Shire Council, Winten Property Group Limited v North Sydney Council at 89 and Thorncraft & Anor v Bathurst Regional Council at para 14.

70 The council is presently reviewing the shire-wide local environmental plan and this would be the appropriate vehicle to consider and perhaps to effect a change to the 40-hectare minimum allotment size for dwellings in rural areas especially those within prime crop and pasture land.

71 The tests posed by SEPP1 have not been met and the development standard of 40-hectares should be observed and the development application is refused.

Visual impact of the proposed dwelling, shed and planting on the prominent grassy ridgeline

72 However, were I not correct in concluding the SEPP1 objection is not well founded, I have considered the merits of the proposal to site the dwelling, shed and planting on the prominent grassy ridgeline.

73 The council contends that the application would be contrary to the aims and objectives of the KDCP and would be of inappropriate design and siting for a rural dwelling.

74 However, Mr Layman was satisfied that were the proposed dwelling well-screened by landscaping it would be acceptable in the landscape. He said, [Note: Exhibit 5, p 13]

I consider that the scenic quality of the landscape has the potential to be protected from the north, south and west by ‘landscape regeneration screen’ plantings. Views from the central park in the Gerringong Township and from the main street would be protected by northern boundary landscaping that would need to be in the order of 5-6m high at maturity. The proposed tree and screen/barrier shrubs landscaping in ‘shelterbelt planting Type 3’ should appropriately screen the proposal at maturity.

75 Putting aside the question as to whether trees to 6m high would grow in this exposed location, Mr Layman seemed to place little weight on the fact that the existing character of the land that has few trees and is a cleared, grassed headland sloping down to the sea. I consider that this has led him into error in this respect.

76 Mr Towers stated, [Note: Exhibit 2, p 6]:

The Illawarra REP No 1 has mapped the lands as having landscape or environmental attributes.
The land is visible from a number of public vantage points around Gerringong. It is proposed to construct the dwelling house, stud and sheds on a cut and fill bench towards the top of a hill slope ridgeline with associated backdrop and screen landscaping. The dwelling will be visible from the east near the cemetery. This will diminish the scenic amenity. Whilst the dwelling is single storey, its sprawling design (presumably to gain maximum benefit from the extensive coastal views) results in a greater visual impact than if the dwelling had a compact built form.
The coastal lands between Gerringong and Gerroa are well known for their typical character of cleared, grassed headlands used for agriculture and open space with pockets of coastal vegetation and scattered rural dwellings and outbuildings. The lots immediately to the south of this proposed development have been mapped for protection under the coastal protection scheme in recognition of their visual attributes. Although this site does not have direct coastal frontage it includes the hill slopes, which complete the coastal headland landscape.

77 On the site inspection, staves had been erected to indicate the position and height of the proposed dwelling. These staves were viewed from a number of vantage points to the north of the land. I am satisfied that the proposed dwelling and screening vegetation would be visible from various public vantage points including those in Belinda Street to the north and from near the cemetery to the northeast. I am satisfied the proposed dwelling and screening landscaping would visually interrupt the line of the ridge and intrude onto the grassy slopes. I consider it appropriate to maintain a natural landscape between the southern edge of Gerringong and Gerroa to the south and to maintain the land for grazing use. For this reason the application fails.

Other matters

Public interest and need to retain the 40-hectare minimum allotment standard

78 The council was concerned that, contrary to the public interest, approval of the development application would raise the expectation of owners of similar sized vacant allotments within the council’s area; thereby undermining the objectives of KLEP and the 40-hectare development standard. Allied with the issue of precedent; however, this matter was not strongly pressed during the proceedings.

79 Mr McEwen, SC submitted that the applicant does not rely on precedent to advance its case.

80 Mr Moggach submitted that the council does not strongly press this issue, as the council has not been able to identify a large number of similar sized allotments within the rural zones near the subject land. The raw data suggests that, within the rural zones, within the municipality, there would be around 434 vacant lots of 8 ha or less. Some of those lots would be within existing larger parcels and were concessional lots created before 1996.

81 Some of the lots within existing larger parcels might be sold off and the new owners who might seek to obtain a dwelling entitlement for their land. As was noted with approval by his Honour Lloyd J in Thorncraft & Anor v Bathurst Regional Council, as stated in Goldin v Minister for Transport (2002) 121 LGERA 101 at 110, if a development application is objectionable and there is sufficient probability that further applications of a like-kind, are likely, the precedential effect should be taken into consideration.

82 If the proposal were to lose its connection with Goolloinboin Station, sometime in the future, as discussed by the representatives of the Department of Primary Industry at para 53 above, and the proposed dwelling becomes an adjunct to a hobby farm or for rural residential, other applications for similar proposals might be expected to be received by the council.

83 Prime agricultural land is a scarce resource, its preservation and protection for agricultural uses is to be encouraged. To lose some of this prime land to non-agricultural development would be contrary to the public interest.

Draft environmental planning instruments

84 The parties were agreed that Policy2004 and Amendment61 were not ‘certain and imminent’ and thus could be given little weight in the determination of this matter. Mr Moggach submitted that as the proposed Amendment 61 would be consistent with State government policy as outlined in the Department of Planning’s Local Environmental Plan Template, refusal of the application would also be consistent with this. He pointed out that the LEP Template would not have any savings clause so would apply immediately to shire-wide plans. However, I do not need to determine this matter here.

85 For the above reasons, the appeal is dismissed.

Orders
86 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed

2. State Environmental Planning Policy No 1 objection to the development standard of 40-hectares is not upheld.

3. Development application No DA10.2005.225.1 lodged with the respondent council on 29 June 2005 to erect a dwelling house, shed, cattle crush and dam and to use as a Wagyu beef stud the land at Lot 5, Section 4, DP 758437; Lot 2, DP 131737; Part Lot 1, DP 448731; Lot 1, DP 198784; Lot 10, DP 703395; near the intersection of Jupiter and Fern Streets, Gerringong is refused consent.

4. The exhibits are returned except for Exhibits A, 1, 7, 8 and 9.

S J Watts

Commissioner of the Court

sw