Smith R v Wollondilly Shire Council

[2004] NSWLEC 659

Land and Environment Court

of New South Wales

CITATION:

Smith R & Anor v Wollondilly Shire Council [2004] NSWLEC 659

PARTIES:

Smith R & Anor v Wollondilly Shire Council

FILE NUMBER(S):

11333 of 2003

CORAM:

Murrell C

KEY ISSUES:

Development Application :- SEPP 1 objection - Subdivision of 31 ha parcel into 3 lots - variation to 40 ha minimum allotment size under SEPP 1 - consistency with objectives of zone - special uses water catchment zone - consistency with development control plan - environmental impact on water catchment area and the precedential effect

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 1
State Environmental Planning Policy No. 58
Wollondilly Local Environmental Plan 1991
Development Control Plan No. 24

CASES CITED:

Winten Property Group Limited v North Sdyney Council [2001] NSWLEC 46;
BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399

DATES OF HEARING:

17/08/2004 - 18/08/2004

DATE OF JUDGMENT:

12/10/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Robson, barrister
instructed by Mr T. Cork
McPhee Kelshaw

RESPONDENT
Mr A Seton, solicitor

INTERVENOR
Sydney Catchment Authority
represented by Ms J Jagot, barrister
instructed by Mr C Drury, solicitor
Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

10 December 2004

11333 of 2003 Robyn Lillian Amy Smith and Silas Barry Sonter v Wollondilly Shire Council

JUDGMENT

1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act (the Act) against Wollondilly Shire Council’s refusal of a development application to subdivide the land known as No. 775 Silverdale Road, Werombi into three lots. The council refused the application in November 2003. A review under s 82A of the Act was sought and the council reaffirmed its decision to refuse the application in June 2003.

2 By way of background the Chief Judge on 7 April 2004 made orders whereby the Sydney Catchment Authority (SCA) be permitted to intervene in the proceedings. The Sydney Water Catchment Management Act 1998 provides in s 6(2) that the Authority is a statutory body representing the Crown and therefore, relevantly the Crown for the purposes of s 64(1) of the Land and Environment Court Act. His Honour held that the authority is entitled to appear in these proceedings to protect its interest in the matter.

3 The proposal is to subdivide Lot 1 DP 848866 on the corner of Braddocks Road and Silverdale Road, Werombi refer to figure 1. The subject land is 30.93 ha and the proposal is for two lots of 10 ha each and one lot of 10.93 ha. Currently on the subject land there is a dwelling house and associated structures including a number of dams and sheds utilised in the keeping and training of horses. The subject land has a number of drainage depressions and is generally undulating with steeper slopes in the south eastern corner of the site. The surrounding land uses include grazing and other agricultural pursuits as well as rural residential development on a number of smaller lots.

4 As can be seen from the aerial photograph at figure 2 the subject site is generally cleared apart from a few stands of trees, including one lining the driveway from Silverdale Road to the existing dwelling and other rows of trees–shrubs on the western portion of the site together with a number of isolated trees on the property.

5 For the applicant evidence was given by:

• Mr N R Kennan, a consultant town planner; and
• Mr R Morse, a consultant environmental scientist.

6 On behalf of the respondent evidence was given by:

• Ms R Smith, town planner, manager of development with Wollondilly Council.

7 Evidence was given to the Court for the Sydney Catchment Authority from:

• Ms Moran, town planner and manager of statutory planning SCA; and
• Dr Banens, senior environmental engineer with SCA.

8 The site is within the Sydney Water Catchment and State Environmental Planning Policy No. 58 – Protecting Sydney’s Water Supply is a relevant statutory instrument that must be considered in the assessment of the application. The Policy aims to:

(a) To ensure that development in the hydrological catchment from which Sydney draws its drinking water supply does not have a detrimental impact on water quality, and

(b) To provide a concurrence or notification role for the Chief Executive of the Sydney Catchment Authority in relation to development in the hydrological catchment that is likely to have an impact on water quality and

(c) To ensure that there is a consistent approach to the assessment and control of development in the hydrological catchment that is likely to have an impact on water quality.

9 Clause 10 of the Policy identifies matters for consideration for development or activities as the following:

(a) Whether the development or activity will have a neutral or beneficial effect on the water quality of rivers, streams or groundwater in the hydrological catchment, including during periods of wet weather,

(b) Whether the water quality management practices proposed to be carried out as part of the development or activity are sustainable over the long term ,

(c) Whether the development or activity is compatible with relevant environmental objectives and water quality standards for the hydrological catchment when these objectives and standards are established by the Government.

10 The concurrence of the Chief Executive of the S C A is required by the provisions of cl. 11 where development in Sch 2 is proposed to be carried out in a ‘special area’. Schedule 2 includes un-sewed development for any residential purpose in a rural zone being: “the subdivision of land into less than 4 lots intended to be used for rural residential development where the lots are unsewage and the land is within a special area.”

11 The matters to be taken into consideration by the Chief Executive in deciding whether concurrence should be granted include (b) a water cycle management study relating to the proposed development. Cl. 11(4) provides for the Chief Executive to refuse concurrence if certain information has not been furnished including a water cycle management study and the results of consultations between various agencies and departments.

12 The Wollondilly Local Environmental Plan 1991 includes the following relevant objectives:

( h) To ensure that development t does not compromise the protection and maintenance of water quality within water supply catchment areas; and

(i) To ensure that development reflects the integrated resource management principles of total catchment management; and

(k) To introduce planning controls to protect and maintain areas of significant agricultural production and

(l) To ensure that agricultural uses are considered to be equally as important as urban and rural residential uses …

13 The site is zoned for Special Uses “C1” Water Catchment under the LEP and the objective is to protect land which is designated as being part of a water catchment area from land uses which adversely affect, or are likely to adversely affect, the environmental quality of these areas.

14 Clause 2(2) of the LEP provides that land shall not be subdivided unless each separate allotment created will have an area not less than 40 ha in the case of land zoned 5(c1).

15 Clause 13(2) requires consent shall not be granted to the erection of a dwelling house on an allotment within 5(c1) zone where the area of land is less than 40 ha. Clause 14 provides for a rural workers dwelling to be erected if the council is satisfied that the dwelling will be occupied by a person engaged or employed by the owner for the purpose of agricultural production.

16 Clause 15A requires that development for the purposes of animal boarding or training can only be carried out with the consent of council.

17 The council pursuant to the provisions of cl.17 cannot consent to the carrying out of development of land within zone 5(c1) except with the concurrence of Sydney Water and in deciding whether concurrence should be granted Sydney Water shall take into consideration the likelihood of waters in the special area concerned being polluted as a result of the carrying out of the proposed development.

18 The operation of cl. 19 has the effect of preventing any agreement covenant or instrument, which purports to impose restrictions on the carrying out of development (including a consent) from applying.

19 Development of unsewered land must not be consented to in terms of cl. 45 unless the applicant demonstrates that the land is capable of supporting the development having regard to the capability of the soil for effluent disposal and buffer distances to watercourses and drainage depressions.

20 The council approved a Development Control Plan for development in water catchment zone areas (DCP No. 24) in June 1990 and it applies to land zoned 5(c1) and 5(c2). The objectives include:

To ensure generally that development occurring in water catchment zoned areas is compatible with the function of these areas especially in relation to water quality and to ensure that development does not have adverse environmental or amenity impacts on surrounding areas.

21 The Plan sets out a number of specific requirements for different forms of agriculture, including market gardens, turf farm, orchards, wholesale plant nursery, poultry farms, horse establishments, livestock grazing and commercial breeding establishments. The DCP also contains a number of provisions with respect to the erection of dwelling houses.

22 In s 5 of the DCP relating to subdivision, the Plan states: “The 5(c1) water catchment zone allows for a minimum subdivisional area of 40 ha. That is, an area of 80 ha is required before subdivision may be permitted in this zone.”

23 A State Environmental Planning Policy No. 1 objection was submitted to vary the minimum allotment size of 40 ha. The 30.93 ha parcel is proposed to be subdivided into 3 allotments. A draft SEPP Policy exhibited in May 2004 was also tendered to the proceedings. This draft restricts the use of the Policy in rural, non-urban environmental protection and water catchment zones for proposals involving subdivision and the erection of buildings. The draft also contains a savings and transitional provision whereby applications submitted prior to the policy being made are to be determined in accordance with the former Policy.

24 The statement of issues in the proceedings reads as follows:

1. The proposed development is unacceptable in so far as it does not comply with the minimum allotment size required by cl.. 12(2)(a) of Wollondilly Local Environmental Plan 1991 (“WLEP 1991”). The deficiency for proposed Lots 1 and 2 is 30 h, or 75%, and the deficiency for proposed Lot 3 is 29.08 h or 72.7%.

2. The proposal is inadequate in that the concurrence of the Chief Executive of the Sydney Catchment Authority has not been obtained as required by cl. 11(2) of Statement Environmental Planning Policy No. 58 – Protecting Sydney’s Water Supply.

3. Whether the proposed development is consistent with the Objectives of Zone 5(C1) “Special Uses – C1 Water Catchment Zone” of WLEP 1991.

4. The proposed development is unacceptable in that it does not comply with the minimum allotment size required by cl. 5.1 of Wollondilly Shire Council Development Control Plan No 24 – Development in Water Catchment Zoned Areas (“DCP 24”). The deficiency for proposed Lots 1 and 3 is 30 H or 75%, and the deficiency for proposed Lot 3 is 29.08 h or 72.7%.

5. Whether the proposed development is inconsistent with Objectives (i) and (ii) of cl. 2 of DCP 24.

6. The proposal will result in an undesirable precedent being created for undersized lots within catchment areas.

7. Whether the proposal will have an adverse environmental impact on the water catchment area within which the proposed development is located.

8. The Proposal is not considered to be in the public interest.

9. The site is not suitable for the proposal.

10. The State Environmental Planning Policy No 1 objection lodged with the development application is not well founded and is inconsistent with the aims of that policy.

25 During the proceedings the critical issues emerged as whether the SEPP 1 objection should be allowed and whether the water catchment area will be adversely impacted and the cumulative effect of allowing the proposed subdivision in terms of precedent.

26 The Department of Infrastructure Planning and Natural Resources (DIPNR) advised by letter dated 13 April 2004 that the proposed subdivision could not have been approved by the council without the concurrent of the Director General as the variation to the 40 h standard is greater than 10%. DIPNR further commented that if the application had been formally submitted it is unlikely that concurrence would have been granted. The letter also contained the following:

The department does not normally support the use of SEPP 1 to vary the minimum standard for subdivision in rural, environmental protection and water catchment zones by more than10%. …
The 40 ha development standard in the 5(c1), water catchment zone is designed to protect the environmental qualities of the Warragamba catchment. The proposed subdivision is not designed to support the maintenance of environmental qualities in this zone. In fact, it has the potential to encourage development, which would increase pressure on the important environment qualities of the Warragamba Dam catchment and change the character of the area to rural residential, should this application be approved and others follow…
The proposal would therefore be contrary to state government objectives of protecting the environmental qualities of Sydney Water Catchments.

27 In councils bundle of documents the SCA responded to councils letter for concurrence under SEPP 58 in the following terms:

… the water cycle management study prepared … for the proposed subdivision satisfies the specific criteria of SEPP 58, the chief executive would not withhold concurrence from the application should council decide to support it.
However, the purpose of SEPP 58 is to ensure that individual development proposals are assessed for their likely impact on water quality, whereas the authority considers this SEPP 1 objection to be a strategic planning issue, which should not be supported…

28 Ms Morgan comments in her statement to the Court that “legal advice regarding the appropriate exercise of discretion under SEPP 58 and under Wollondilly LEP 1991 cl. 17 has lead the SCA to conclude that the concurrence should also be withheld to the grant of consent to this subdivision application. This statement also confirms that the SCA remains of the view that the variation to the development standard is not justified and that any additional subdivision pressure on the water catchment zones arising from the variation of the standard would be inconsistent with the zones objectives and not in the public interest.

29 Ms Morgan’s statement also included a copy of the Draft Regional Environmental Plan No. 1 for drinking water catchments. The aim of this plan being to create healthy water catchments and achieve the water quality management goals of maintaining or improving water quality.

30 Mr Robson submitted that the SCA does not have a concurrence role and the applicant’s development does not fall within schedule 1 or schedule 2 of SEPP 58. Therefore he submits that the only statutory requirement arising under SEPP 58 is that the applicants are required to meet the provision of cl. 10.(see paragraph 19 above)

31 Mr Kennan in his statement of evidence supports the application and comments that:

The proposed development is for subdivision only, and any impacts which would accrue from the further development of the lots to be created is a matter for determination in subsequent development applications placed before the council. It is, however, reasonable to suggest that the likely development of the proposed lots is for a dwelling house and associated development which would be consistent with a rural residential lifestyle.
As detailed in the Statement of Evidence of Mr Morse each of the three lots to be created is capable of servicing the needs of a rural residential lifestyle in terms of, among other things sewage disposal and quality of stormwater runoff without adverse impact on the environmental quality of the area. As such, I am of the opinion that the proposed development will not offend the objective of the 5(c1) zone and as such is consistent with the planning objective for the locality.

32 Mr Kennan prepared a SEPP 1 objection to the 40 ha minimum lot size as contained in cl. 12(2)(a) of the Wollondilly Shire LEP 1991. Mr Kennan is of the view that the objective of the zone is the underying objective of the standard, although he provides comments on the the underlying purposes identified by the respondent. That is: to retain the rural landscape character; to control development so that it remains at a density which serves to protect water quality in the drinking water catchment; and to provide sufficient land for the carrying out of agricultural activities appropriate for the area having regard to the land capabilities. In his opinion the proposed three lot subdivision would not offend these purposes either.

33 Dr Banens in his statement of evidence states that, “water quality in streams and drinking water storages is largely the reflection of the nature of land use within their catchments”. He also notes that:

The Werriberri Sub-catchment is located with the Warragamba special area close to lake Burragorang and Warragamba Dam. It is the closest sizable catchment near the off take of Sydney’s water supply at the dam wall. Compared with much of the Warragamba catchment Werriberri Sub-catchment has a moderate – high population density in close proximately to the dam. Further, Sydney’s increase in population is placing additional pressure on the peri-urban areas such as Werriberri sub-catchment. The Audit report also noted that large areas of agriculture, increases in intensive agriculture and increase urbanisation and rural residential will all continue to put pressure on water quality within the catchment.

34 Dr Banens considers that:

Further, the nature of activity associated with rural residential use are uncertain and cannot be determined in advance… Un-sewered rural residential development is linked with prudent runoff, however there are site factors other than land use that also influence such impact.…
This subdivision has several major drainage lines running through it, while significant parts of two blocks are relatively steep, which are likely to increase pollutant runoff and have a greater impact on water quality.
Furthermore, being located relatively close to the reservoir, this development can be considered to have proportionally greater impact than in equivilent development located away from the drainage network and in the outer part of the catchment.
The site constraint may also concentrate activities over a smaller area resulting in a greater pressure than if that activity had been spread more evenly over the block. If this proposed subdivision is a precedent for allowing similar subdivision of larger lots across the Wollondilly LEP 5(c1) water catchment zone then there is the potential for very significant increases in polluted loads to be generated, as this zone comprises around 25% of the Werriberri catchment.

35 In response Mr Morse states:

Dr Banens is being relatively simplistic in linking pollution hazards to the intensity of development if intensity is measured mainly in terms of houses and the number of bedrooms contained in them. Pollutants also come from other sources, including livestock. While a proposed development will increase the number of people living on the site, it will substantially reduce livestock numbers.

The site as it exists today is one where the land use is highly polluting because of very high horse stocking rates (48 mares and 10 foals on 30 h). …
In terms of nutrient pollution on head for head basis, horses are not as pollutant as beef or dairy cattle nevertheless they still produce significant quantities.

36 Mr Morse proposes a number of development control measures in the form of conditions and these are outlined in his statement of evidence as follows:

We propose to allow for the extra houses and waste water treatments systems by reducing the horse carrying capacity by three horses from the current 53 to 50. This means each of the current allotments will carry the equivalent of 16.66 horses.
Further we propose to reduce the captivated carrying capacity to less than half that being carried now i.e. to eight horses to each allotment. Should a future owner wish to run cattle, however this number is reduced to four. Should a future owner wish to run any other form of livestock the total number is confined to eight.
Confining livestock numbers will be achieved through a s 88 the instrument.
By following the above requirements we can confidently state that we will a neutral or beneficial effect from nutrients from storm water.

37 The applicant also proposes that a ‘plan of management’ be prepared before any dwelling house is constructed on the resultant lots. The purpose of the plan is to provide water quality goals and bush-land regeneration, erosion control and stocking and fencing guidelines. The plans would also address issues like the on-going maintenance and monitoring of the system.

38 Mr Smith, Ms Morgan and Dr Banens are of the opinion that the subject land in the water catchment should not be subdivided because of the potential to lead to increased intensification and density as a result of dwelling houses being erected on the two additional allotments. Mr Kennan on the other hand sees this view as a fundamental misunderstanding of the planning regime as it applies to the catchment where subdivision is a permissible development and SEPP 1 allows for the variation of the 40 ha minimum lot size in circumstances where it can be demonstrated that the standard is unreasonable or unnecessary. Mr Kennan goes on to state that:

The evidence before the Court prepared by Mr Morse clearly establishes that the proposed subdivision, suitably conditioned, would result in a land use which is significantly less impacting on the water quality of the catchment than that which currently exists on the site. This, in my opinion, is a more appropriate response to the objects of the Environmental Planning and Assessment Act.

39 In my opinion Mr Kennan provides a narrow assessment of the application which is highly dependent upon a reduction in the number of horses and or livestock on the resultant allotments to compensate for the additional houses while at the same time seeking to meet the objective of the neutral beneficial effect on the water catchment. Further the proposed conditions on future land use and activities on the three lots would be unworkable.

40 The SEPP 1 objection is a threshold question although the merits assessment also coincides with an assessment under SEPP 1 in this matter. I have followed the steps set out in the judgment of Lloyd J in the matter of Winten Property Group v North Sydney Council (2000) NSWLEC46 for my assessment under SEPP1. Mr Kennan’s support of a variation to the minimum lot size for the application is totally dependent on Mr Morses advice with respect to the number of livestock and the creation of a s 88(b) instrument to control future activities of the lots once created and in this scenario water quality maintenance is achieved and this is the only objective of any substance in his opinion.

41 Subdivision is permissible with consent, however, I do not consider that the SEPP 1 objection is well founded. The absence of environmental harm in itself does not justify the use of SEPP 1 even if one accepts Mr Kennan’s assessment of the impact on water quality.

42 If the Court accepted that the capacity to reduce the number of stock on a parcel of land was the appropriate test it would not be unreasonable for other people to seek to present the same argument and such an approach would be incapable of monitoring especially having regard to the fact the keeping of horses for pets may not be subject to consent. Conditions of consent must be capable of practical implementation.

43 Furthermore in Ms Jagot’s submission, a s 88(b) instrument to impose such a contrived restriction would have little effect in light of cl 19 of the LEP where an instrument which purports to impose restrictions on carrying out development of land to which the plan applies to the extent necessary to serve that purpose shall not apply to any such development. In her submission this has the effect of quashing the covenant noting that other uses are permissible in the zone with consent including agriculture, market gardening and turf farming. The 88(b) instrument is premised on a neutral or beneficial impact on the catchment by reducing the number of livestock and this would provide for little certainty in the consent or the planning process.

44 Given that Mr Kennan’s assessment is based on Mr Morse’s recommendation that to achieve a neutral or beneficial effect on the water catchment that livestock must be reduced then the SEPP 1 objection (even if this was the only underlying objective) must fail and is not well founded.

45 In the LEP there are two special use water catchment zones, 5(c1) and 5(c2), and respectively the subdivision size is 40 ha and 16 ha. The Court must assume that the minimum allotment size has a proper planning purpose and the relevant test for the SEPP 1 objection cannot be simplistically confined to subdivision being permissible if it has the same or less impact on water quality. I accept Mr Seton’s submission that if a neutral or beneficial impact on the catchment was the only test then the LEP would not contain different minimum subdivision sizes for the various zones. And I must assume that the standard has a proper planning purpose. I also accept Mr Seton’s submission that SEPP 1 should not be used to give effect to a zoning change.

46 I agree with the evidence of the council and the SCA that the underlying purpose or objective of the 40 ha standard includes the intensity and density of development otherwise there would be no distinction between the (c1) or (c2) zones. Subdivision of the land into three parcels does not satisfy this objective as the subdivision in the long term would eventually lead to greater intensity of development associated with the pressures of rural residential properties. It would be short sighted of the court to allow the subdivision on the basis of the reduction in numbers of livestock to achieve a neutral of beneficial impact on the catchment, as at best, this could only be achieved in the short term. Clearly the issues raised in this matter of subdivision in Sydney’s water catchment are wider than a short term assessment and have implications for broader issues such as ESD and the public interest.

47 I agree with the submissions of Ms Jagot and Mr Seton that the livestock methodology provides for “an artificial and contrived approach” to assessing the application. Such an approach does not holistically embrace the spirit and intent of the planning regime for the subject land as outlined earlier. Mr Kennan does not consider the cumulative impact of allowing subdivisions in the catchment, for example he states that “the rural residential character of the area will not change by an additional two dwellings”. And he does not consider the precedential effect of other people invoking an approval of the subdivision for the many similar lots in the area. He considers this to be “irrelevant and that each application must be looked at on its merits and that one should not look at other potential lots to assess this application”.

48 DIPNR in its letter advising that concurrence would be unlikely to be granted also noted the following, “in particular it is concerned about the fragmentation of rural land for rural residential purposes where this has the potential to increase pressure on environmentally sensitive areas, agricultural land uses and rural landscapes as appears to be the case in this instance”. While it may be argued, as submitted by Mr Robson, that the 5(c1) zone is not a rural zone nonetheless it does form part of the rural landscape that supports the maintenance of the environmental qualities in this zone.

49 Clause 8 of SEPP 1 states that the matters to be taken into consideration in deciding whether concurrence should be granted are:

a. whether non compliance with a standard raises any matter of significance for state or regional environmental planning and
b. the public benefit of maintaining the planning controls adopted by the Environmental Planning Instrument.

50 Section 39(6) of the Land and Environment Court Act allows the Court to determine the application in the absence of concurrence but I must be satisfied that an application is worthy of approval. In my assessment the proposal should be refused because it raises significant issues and would not be to the public benefit to allow the SEPP 1 objection. Clearly it is in the public interest, which is also a matter for consideration in s79C of the Act, to maintain the development standard in the Sydney Water Catchment. The advice of DIPNR and SCA raises serious concerns and I accept their advice.

51 SEPP 1 provides flexibility in the application of planning controls only where strict compliance in a particular case would be unreasonable or unnecessary or hinder the objects of the Act. The subdivision would not hinder the objects of the Act, but rather it would be in direct conflict with many. In particular the provisions of s5(a):

(i) the proper management development and conservation of natural and artificial resources including agricultural land, natural areas, forests, minerals, water, city, towns and villages for the purpose of promoting the social economic welfare of the community and a better environment

(iii) the protection, provision and co-ordination of communication and utility services

(v) the provision and co-ordination of community services and facilities and

(vii) ecologically sustainable development.

52 In terms of ESD being an object of the Act inherent in this is the precautionary principle and in this regard the Court was referred to the judgment of McClellan CJ in the matter of BGP Properties Pty Ltd v Lake Macquarie CC [2004] NSWLEC 399. His Honour refers to Section 13 of the Inter-Governmental Agreement on the Environment (IGAE) that deals with landuse planning and decision-making and he states “the challenge and objectives are to ensure landuse decision- making processes and land-use allocations in all levels of government meet the overall goal of ecologically sustainable development. At paragraph 94 his Honour cites the four well-known principles of ESD as: the precautionary principle; inter-generational equity; conservation of biological diversity and ecological integrity; and improved valuation, pricing and incentive mechanisms.

53 McClellan CJ. makes the following observations in BGP that are helpful in these proceedings at para 117-119:

“although the fact that a particular use may be permissible is a neutral factor…planning decisions must generally reflect an assumption that in some form development which is consistent with the zoning will be permitted”. …

In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project.

54 The proposed development fails in my assessment under the provisions of SEPP 1 in that the underlying objectives of the standard are not met and the aims of the Policy. Furthermore, the development standard is not unreasonable or unnecessary in the circumstances. It follows that in my assessment the objection is not well founded being premised and dependent on an impracticable proposition of reducing the number of livestock on the property to achieve a neutral or reduced impact on the water catchment.

55 By way of comment the bona-fides of the owner and the desire to subdivide the land is not in question however the Court must have regard to the planning merit of the application and while subdivision is not prohibited in the zone at the same time the hurdle or threshold question to vary the 40 ha minimum cannot be supported and the objection under SEPP 1 is not allowed.

56 In many respects as indicated above a merits assessment overlaps significantly with the SEPP 1 assessment and while it is not necessary for me to further assess the merits of the application. I accept Ms Jagot’s submission that the issue of precedent is important in the circumstances of this case and warrants discussion. If one assumes the threshold question is satisfied the application would still fail on the basis that precedential affect would be determinative. This is because the cumulative impact of subdivisions in the water catchment area would be highly likely in all probability to lead to adverse cumulative impacts that would be objectionable. In this case even if the proposed subdivision, were to be unobjectionable in itself the precedential effect of allowing the subdivision, where the standard has been consistently administered since it was introduced, would be reason enough to refuse the application. Similarly under s 79C(1)(e) - the public interest would not be served by allowing this development and it must be incumbent on the consent authority to have regard to the ‘bigger picture’. This includes the precedential effect of the cumulative impact of similar developments being allowed in the catchment. If a development had to be objectionable in itself before one could consider precedent then the issue of precedent would not really arise to my mind.

57 In conclusion, for the reasons stated above, the objection to vary the minimum 40 ha subdivision size under SEPP 1 is not allowed. And on a merits assessment, in terms of cl10(3) of the LEP the proposal is not consistent with and antipathetic to the objective of the zone as set out in para 13 above. Furthermore approval of the application would have an undesirable precedential effect and for this reason the application also fails.

58 Therefore the formal Orders of the Court are:

1. The appeal in respect of the property known as No.755 Silverdale Road Werombi is dismissed.
2. The SEPP 1 objection to vary the minimum area of 40 hectares, as contained in cl.12(2)(a) of the Wollondilly LEP 1991, is not allowed.
3. The development application submitted to Wollondilly Shire Council to subdivide the above parcel of land into three lots is determined by the refusal of consent.
4. The exhibits are returned.

_______________________

J S Murrell

Commissioner of the Court

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