Simpson v Ballina Shire Council
[2009] NSWLEC 1123
•24 April 2009
Land and Environment Court
of New South Wales
CITATION: Simpson v Ballina Shire Council [2009] NSWLEC 1123
This decision has been amended. Please see the end of the judgment for a list of the amendments.PARTIES: APPLICANT
RESPONDENT
Colin Simpson
Ballina Shire CouncilFILE NUMBER(S): 10845 of 2008 CORAM: Brown C KEY ISSUES: DEVELOPMENT APPLICATION :- convert an existing banana packing and storage shed to a single storey dwelling, carport and the installation of a on-site sewage management system - construction of cl 12(3)(e) - SEPP 1 objection to minimum lot size LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 1
Ballina Local Environmental Plan 1987CASES CITED: Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46
Wehbe v Pittwater Council [2007] 156 LGERA 446DATES OF HEARING: 14/04/09 and 15/04/09
DATE OF JUDGMENT:
24 April 2009LEGAL REPRESENTATIVES: APPLICANT
Mr M Young, solicitor
SOLICITORS
McCartney Young LawyersRESPONDENT
Mr P Clay, barrister
SOLICITORS
Allens Arthur Robinson
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Brown C
28 April 2009
JUDGMENT10845 of 2008 Colin Simpson v Ballina Shire Council
1 COMMISSIONER: This is an appeal against the refusal of Development Application 2008/751 by Ballina Shire Council (the council) to convert an existing banana packing and storage shed to a single storey dwelling, carport and the installation of a on-site sewage management system at 215 Duck Creek Mountain Road, Alstonville (the site).
2 The issues relate to the whether there is an entitlement for a dwelling on the site and if not, whether the State Environmental Planning Policy No 1 - Development Standards (SEPP 1) objection to the minimum lot size development standard is well founded.
- The site
3 The site is Lot 6 in DP 771593. It is in regular in shape with a frontage to Duck Creek Mountain Road of 83.5 m, side boundaries of 38 m and 32.9 m and a site area of 3008 sq m. The existing banana packing and storage shed is currently not used and is located centrally on the site. Despite its intended agricultural use, the building has the appearance of a dwelling.
4 The locality is rural in nature and characterised by a mix of smaller rural residential and larger lots used for agricultural uses such as grazing and banana growing. Duck Creek Mountain Road was the original alignment of the road between Lismore and Ballina. The existing alignment of the Bruxner Highway (that currently joins Lismore and Ballina) runs generally parallel and just to the north of Duck Creek Mountain Road.
- Relevant planning controls
5 The site is zoned 1(b)-Rural (Secondary Agricultural Land) under Ballina Local Environmental Plan 1987 (LEP 1987). The objectives of the zone are found in the zoning table and state:
- 1. Objectives of zone
A. The primary objective is to regulate the subdivision and use of land within this zone -
- (a) to encourage the productive use of the land and enable development ancillary to agricultural land uses, particularly dwelling-houses, rural workers’ dwellings and rural industries; and
(b) to permit a range of uses which are compatible with the rural character of the land, particularly tourist oriented developments and recreation establishments and recreation facilities.
B. The secondary objectives are to ensure that development within the zone -
- (a) maintains the rural character of the locality; and
(b) does not create unreasonable or uneconomic demands, or both, for the provision or extension of public amenities or services.
- (a) development of land within the zone for public works and services, outside the parameters specified in the primary and secondary objectives, subject to the impact on agricultural resources being minimised, where practical;
(b) development of land for extractive resource purposes; and
(c) development of an industry which, by reason of the processes involved or the method of manufacture or the nature of the materials used or produced, requires isolation from other buildings.
6 Clause 9(7) provides that consent shall not be granted unless the carrying out of the development is consistent with the objectives of the zone.
7 Clause 11(2)(b) provides that land within the 1(b) zone shall not be subdivided unless the land is 40 ha. Clause 12 provides requirements for dwelling houses in the 1(b) zone (as well as other zones). Relevantly, cll 12(2), (3) and (3A) state:
(3) A dwelling-house may, with the consent of the council, be erected on vacant land to which this clause applies only where that land -(2) The council shall not consent to the erection of a dwelling-house on land to which this clause applies except in accordance with this clause.
- (a) has an area of not less than -
- (i) in the case of land within Zone No. 1(a1) or 7(i) - 20 hectares;
(ii) in the case of land within Zone No. 1(a2), 1(b), 1(d), 1(e), 7(a), 7(c), 7 (d), 7(d1), 7(f) or 7(l) - 40 hectares;
(b) is an existing holding;
(c) is an allotment created by subdivision to which development consent has been granted in accordance with clause 11;
(d) is an allotment created by a subdivision to which development consent was granted in accordance with clause 13 as in force, which consent for the subdivision was granted, but before the gazettal of Ballina Local Environmental Plan 1987 (Amendment No. 36) ;
f) is an allotment not in the 7(f) zone created on or after the appointed day by a subdivision carried out in accordance with part 12 of the Local Government Act 1919 where:(e) is an allotment created by a subdivision to which development consent was granted before the appointed day, not being a development consent which was granted subject to a condition that a dwelling-house could not be erected on that allotment;
- (i) the consent of the Council was not required for the subdivision, and
(ii) before the subdivision was carried out, a dwelling-house could have been erected under this clause on the land comprising that allotment.
8 Mr Young, for the applicant, submits that the Court can approve the dwelling using the provisions of cl 12(3)(e) however in the event that the Court does not accept this submission, the dwelling can be approved using the applicant’s SEPP 1 objection that shows that the minimum area development standard in cl 12(3)(a)(ii) is unreasonable and unnecessary in the circumstances of this case. Mr Clay, for the council, submits that the provisions of cl 13(3)(e) are not available to the application and that the SEPP 1 objection does not show that strict compliance with the development standard is unreasonable and unnecessary in the circumstances of this case.
- The creation of Lot 6 in DP 771593
9 The parties provided extensive evidence on the creation of Lot 6 through surveyors Mr Tony Hart, for the applicant, and Mr David Kelly, for the council. They prepared a joint report that set out the history leading to the creation of Lot 6. Because of the contention from the applicant that Lot 6 has a dwelling entitlement in accordance with cl 12(3)(e) and also that the history has some influence on the SEPP 1 objection, it is necessary to provide a brief outline on the substantially agreed evidence of Mr Hart and Mr Kelly.
10 On 7 July 1936, a Road Plan was approved that showed land in the locality of the site that was to be resumed (shown red on the Road Plan) and unwanted land to be closed and granted as compensation or added to adjoining holdings (shown blue on the Road Plan) under the Public Roads Act 1902 for deviations and widening of the road between Lismore and Ballina. Lot 6 formed part of Portion 180 at this stage and was shown as blue on the Road Plan, that is land designated but unwanted for road purposes.
11 On 18 February 1972, DP 552106 was registered. The purpose of this plan was to register an easement for access in favour of the council although the plan identified land shown on the Road Plan.
12 On 14 October 1978, DP 112887 was registered. This plan was a "Departmental" plan used to generally to create those parts of the Road Plan shown blue and red. It was agreed that this plan did not represent a council approved subdivision.
13 On 11 June 1981, DP 261363 was registered. This plan was for the subdivision of Lot 2 DP 552106 and Lots 1, 2 and 3 in DP 112887. While the development consent referred to a subdivision to create 3 lots, the subdivision plan created 5 lots. Mr Hart and Mr Kelly disagreed on the reason for the creation of Lots 5 and 6. Mr Kelly stated that these lots appear to have been created for road purposes although there is no notation on the plan to confirm this. In the absence of any notation, Mr Hart takes the view that it cannot be said that the purpose of Lots 5 and 6 was for road purposes.
14 In considering that the development application sought the creation of only 3 lots, the location and configuration of Lots 5 and 6 and the statement from the applicants surveyor that "road widening has been provided for as required by Department of Main Roads, and has been designated as Lots 5 and 6 on the plan" (letter from Steel and Hosie Pty Ltd, dated 25 September 1980 – Exhibit 8)), I am satisfied that Lots 5 and 6 were created for the purposes of road widening. The lot the subject of these proceedings (Lot 6 in DP 771593) forms part of the area of Lot 6 in DP 261363.
15 On 5 February 1988, DP 771593 was registered. The plan was for the subdivision of Lots 2, 3, 4, and 6 in DP 261363 and Lot 2 in DP 622891 and created Lot 2 (2.03 ha), Lot 3 (4.22 ha), Lot 4 (13.5 ha), the lot in question, Lot 6 (3008 sq m) and Lot 7 (44 ha). The council file (Exhibit 7) did not contain a planning report however comments in the file provided some understanding why Lot 6 was created considering the area of Lot 6 was significantly below the minimum lot size at the time. The following file notes are relevant:
- 20.2.1987 Lot 6 unacceptable.
- 23.2.1987 S/C (presumably Shire Clerk) advised Lot 6 unacceptable.
- Simpson advised S/C:
1) Lot 6 had a mortgage over it - bank was prepared to allow reduction in size but Simpson had no other land (unencumbered) to which mortgage could be moved.
.
4) Queried possible transfer of allotment to another property (S/C said Lot 6 created for road widening - no entitlement transfer possible).
16 By letter dated 24 February 1986 (presumably 1987), the following acknowledgement was addressed to the Shire Clerk and signed by C E Simpson and M E C Simpson:
- AMENDMENT TO DEVELOPMENT APPLICATION 1985/278
We hereby acknowledge that we are aware the residue Lot 6 shown in green in the annexed plan does not have any residential building entitlement whatsoever. We confirm and undertake that we shall not make any application to your Council for the erection of a dwelling on the said residue of Lot 6.
17 On 25 February 1987, the council issued a Notice of Determination of Application to Amend Development Consent 1985/278. Condition 4 states:
- 4. Lot 6 has no entitlement for the erection of a dwelling .
- Does cl 12(3)(e) provide a dwelling entitlement?
18 Mr Young submits that cl 12(3)(e) allows the Court to grant consent to the erection of a dwelling Lot 6. Clause 9 provides that a dwelling can be erected within the 1(b) zone. He submits that the emphasis placed by the council on Lot 6 as an area set aside for road widening has distracted the proper assessment under LEP 1987. In his submission, neither Lot 6 in DP 261363 nor Lot 6 in DP 771593 was created for road widening purposes.
19 Mr Young submits that as the area of Lot 6 in DP 771593 was part of Lot 6 in DP 261363 (created on 11 June 1981) then it is an allotment created by a subdivision to which development consent was granted before the appointed day (27 February 1987, being the day that LEP 1987 takes effect (cl 5, LEP 1987)). Put simply, Mr Young submits that based on the construction of cl 12(3)(e), it is not relevant that Lot 6 in DP 771593 was created after the appointed day but relevant that the area of this lot was part of Lot 6 in DP 261363 that was created before the appointed day. A plan showing the relationship between Lot 6 in DP 771593 and Lot 6 in DP 261363 was provided to the Court (Exhibit G).
20 Mr Clay submits that Mr Young’s submission cannot be accepted. Any reliance on Lot 6 in DP 261363 is irrelevant as a reference to "that land" in cl 12(3)(e) must be a reference to Lot 6 in DP 771593, being the land that the development application relates to and the land where the dwelling to be erected. Mr Clay submits that the intent of cl 12(3)(e) is to provide "a line in the sand" for the erection of a dwelling on lots below 40 ha. To adopt the submissions of Mr Young would be to place no restrictions on the erection of a dwelling as every existing lot is part of a previous larger allotment. Such an interpretation could only be achieved if cl 12(3)(e) was read as " is part of an allotment created by a subdivision….". This gives a totally different meaning to the clause as such could not be accepted.
21 In considering the competing submissions, I am largely untroubled in accepting the submissions of Mr Clay. In my understanding, there was no dispute that Lot 6 in DP 771593 was created after the appointed day even though the council approval on the 23 February 1987 was two days prior to the gazettal of LEP 1987 on 25 February 1987. The term "allotment created by a subdivision" means an allotment created by the registration of the subdivision. In this case, DP 771593 was registered on 5 February 1988.
22 Clause 12(3)(e) can be put simply as allowing the erection of a dwelling house on an allotment of land below 40 ha provided that the allotment was registered prior to the gazettal of LEP 1987. To suggest that the clause refers to allotment of land, not the subject of the application makes no sense, particularly when read in conjunction with the other provisions of cl 12(3) where each seeks to limit the opportunity for the erection of dwelling on land below 40 ha.
23 The consequence is that the provisions of cl 12(3)(e) are not available for the erection of a dwelling, in this case as the allotment of land for the proposed dwelling was created after the appointed day.
- The SEPP 1objection
The expert’s assessment framework
24 The manner of dealing with a SEPP 1 objection by the experts was through the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are asked. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state:
- 3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act.
25 This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state:
- 5.The objects of this Act are:
- (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment;
(ii) the promotion and coordination of the orderly and economic use and development of land.
26 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.
The applicant’s case
27 Mr Adrian Zakaras, town planner provided the SEPP 1 objection and evidence at the hearing. As LEP 1987 provides that no specific objectives for the minimum lot size development standard in cl 12(3)(a)(ii), Mr Zakaras relies on the zone objectives. He states that the underlying objects or purposes of the development standard are:
- to encourage the productive use of land,
- to enable development ancillary to agricultural land uses,
- to permit a range of uses which are compatible with the rural character of land,
- to maintain the rural character of the locality, and
- to permit development that does not create unreasonable or uneconomic demands, or both, for the provision or extensions of public amenities or services.
28 He states that no significant or viable agricultural land will be lost as a result of the proposal as the 3008 sq m site cannot be used as a viable agricultural pursuit in its own right. There is no policy or proposal by the council that would encourage or promote the acquisition of this land or amalgamation with adjoining land. Further, the land in the immediate vicinity is being used for residential purposes to the exclusion of agricultural uses and the use of the site would be consistent with this use. Appropriate buffers are provided to minimise land use conflict. In his opinion, the character of the area may be described as rural residential allotments interspersed amongst medium to large sized rural lots that are used for various agricultural purposes (including cattle grazing and banana farming). The erection of a dwelling on the site would be consistent with this character.
29 For these reasons, Mr Zakaras concludes that to insist on the 40 ha minimum before consent can be granted to a dwelling is unnecessary in the circumstances as it would prevent a development that otherwise satisfies the objectives of the standard.
- The council’s case
30 Mr Anthony Peters, town planner, provided evidence for the council. While not necessarily disagreeing with the underlying objectives of the development standard suggested by Mr Zakaras, Mr Peters nominates the underlying objectives of the development standard as;
- to maintain the productive use of agricultural lands,
- to discourage rural/lifestyle allotments and associated dwelling houses that increased densities within rural areas and create potential land use conflicts with agricultural enterprises,
- to prevent increased densities and associated infrastructure/servicing requirements in rural areas.
31 Mr Peters states that the approval of a dwelling on the site is inconsistent with the objectives of the development standard and would be prejudicial to the use of the land as part of an agricultural enterprise. The approval of a dwelling house would prevent amalgamation/consolidation with adjoining land, make the site unviable for agricultural use because of a loss of land for the dwelling and ancillary structures and uses and lead to duplication of services which would create an unreasonable and uneconomical demand for the provision or extension of public amenities and services.
32 The approval of a dwelling would also create an undesirable precedent. There are approximately 3866 lots below the 40 ha minimum in the Ballina local government area. Of these, approximately 1338 lots (35%) have been determined to have a dwelling entitlement. For areas with a 20 ha minimum lot size, approximately 198 lots (35%) have been determined to have a dwelling entitlement. Consequently, there are approximately 2898 lots that could rely upon the approval of this application for the erection of a dwelling house.
33 For these reasons, the SEPP 1 objection should not be supported.
- Findings
34 SEPP 1 provides for the opportunity to vary development standards where strict compliance with those standards would be unreasonable or unnecessary in the particular circumstances of the case or tend to hinder certain specified objects of the EPA Act (cl 3). To take advantage of SEPP 1, a written objection must be provided that sets out why compliance with that development standard is unreasonable or unnecessary in the circumstances of the case and specifying the grounds for that objection (cl 6). If that objection is well founded (and consistent with the aims of SEPP 1) consent can be granted to the development application notwithstanding the non-compliance with the development standard.
35 The use of objectives for the development standard in question or the adoption of underlying objectives if specific objectives are not available is widely used in the consideration SEPP 1 objections through the leading judgement in Winten. The approach in Winten is the most effective way of addressing the question of whether strict compliance with a development standard would be unreasonable or unnecessary in the vast majority of cases. The judgement of Preston J in Wehbe v Pittwater Council [2007] 156 LGERA 446 supplements the findings in Winten and identifies a number of additional ways of establishing that compliance is unreasonable or unnecessary beyond reliance on objectives or underlying objectives of the development standard in question.
36 Importantly, SEPP 1 makes no reference to objectives or underlying objectives. It follows that the consideration of a SEPP 1 objection is not limited to a comparison against the objectives or underlying objectives of the development standard in question. For an objection under SEPP 1 to be successful, the objection must simply show that it is consistent with the aims of SEPP 1, in that strict compliance with the development standard:
- would be unreasonable or unnecessary (cl 3), or
- tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act (cl 3).
37 In this case, I am not satisfied that strict compliance with the development standard would be unreasonable or unnecessary for a number of reasons that do not relate to the underlying objectives of the development standard. First, Lot 6 was not created for a planning purpose. The undisputed evidence is that the lot was created to maintain an area of land for mortgage purposes.
38 Second, it would be absurd in planning terms to allow a SEPP 1 objection to the minimum area requirement in cl 12(3)(a)(ii) as the construction of a dwelling would effectively override the requirement in cl cl 12(3)(e) that prohibits a dwelling where there is a specific condition prohibiting the construction of a dwelling.
39 Third, condition 4 of the Notice of Determination of Application to Amend Development Consent 1985/278 specifically states that Lot 6 has no entitlement for the erection of a dwelling. Of added importance is that this particular circumstance is specifically addressed in cl 12(3)(e).
40 Fourth, the letter dated 24 February 1987 from C E Simpson (the applicant in these proceedings) and M E C Simpson acknowledges that Lots 6 does not have any residential building entitlement whatsoever and further undertakes not to make any application for the erection of a dwelling on Lot 6.
41 Fifth, to allow the SEPP 1 objection would be to ignore the clear intent of the council in the creation of Lot 6 and the reason for the prohibition of a dwelling. There was no evidence of any changed circumstances (beyond the desire of the applicant to construct a dwelling on Lot 6) that would warrant the council’s restrictions on Lot 6 being reconsidered.
42 Sixth, I am not satisfied that the erection of a dwelling on Lot 6 could be seen as the promotion and coordination of the orderly and economic use and development of land given the history that led to the creation of Lot 6. The provisions of cl 12(2), (3) and (3A) provide the opportunity for the erection of a dwelling on lots below the minimum lot size but only in specific circumstances. The orderly and economic use and development of land cannot be considered in a vacuum but must be considered in conjunction with the adopted planning regime of LEP 1987.
43 For the above mentioned reasons, the SEPP 1 objection is not well founded and development consent must be refused.
44 The Orders of the Court are:
- 1. The appeal is dismissed.
2. Development Application 2008/751 by Ballina Shire Council to convert an existing banana packing and storage shed to a single storey dwelling, carport and the installation of a on-site sewage management system at 337 Duck Creek Mountain Road, Uralba is refused.
3. The exhibits are returned.
- _______________
G T Brown
Commissioner of the Court
04/05/2009 - Typeographical errors - Paragraph(s) Front Coversheet, Paragraphs 1, 3, 7, 8, 11, 15, 21, 22, 27, 34, 38, 39 and 42
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