TCW Consulting Pty Ltd v Kiama Municipal Council

[2003] NSWLEC 321

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Land and Environment Court

of New South Wales

CITATION:	TCW Consulting Pty Ltd v Kiama Municipal Council [2003] NSWLEC 321
PARTIES:	APPLICANT TCW Consulting Pty Ltd RESPONDENT Kiama Municipal Council
FILE NUMBER(S):	10287 of 2003
CORAM:	Hussey C
KEY ISSUES:	Development Application :- Dwelling House - non urban area minimum lot size (SEPP 1 Objection) amenity separation distance
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Kiama Local Environment Plan 1996
CASES CITED:
DATES OF HEARING:	22 and 23 September 2003
DATE OF JUDGMENT:	11/05/2003
LEGAL REPRESENTATIVES:	Applicant: Mr I Hemmings, barrister Respondent: Mr P Moggah, solicitor Kearns and Garside

JUDGMENT:

10287 of 2003

Hussey C

5 November 2003

TWC Consulting Pty Ltd
v
Kiama Municipal Council

Judgment



Background


1 This matter involves an appeal under s 97 of the Environmental Planning and Assessment Act against council’s refusal of a development application for the erection of a dwelling house on a non-urban lot at No. 1025 Jamberoo Road, Curramore.

2 The site is an existing lot, which is significantly below the minimum area of 40 ha specified in the controls for the erection of a dwelling house, in this zone.

3 For the appeal a number of issues were identified and some of these addressed prior to the hearing. The outstanding issues can be conveniently summarised as:

• Non-compliance with the minimum area development standard contained in cl 11 ( 3) (a) of the Kiama Local Environmental Plan, requiring determination of a SEPP 1 objection.
• Compliance with the Local Environmental Plan objectives for non-urban land.
• Impact on adjoining land.
• Precedential/cumulative impact.

The site

4 The property is described as Lot 1, DP 735485 Jamberoo Road, Curramore. It has an area of approximately 1.6 ha.

5 The site is vacant and generally cleared, with the exception of existing trees and shrubs along part of the site's road (eastern) boundary, western boundary and southern boundary. Two intermittent watercourses and a dam are situated on the site, adjacent to Jamberoo Road. The boundaries of the site are fenced.

6 There is a levelled platform on the site, near to where it is proposed to erect the dwelling house. This rectangular area measures approximately 33 m x 23 m.

7 The site is immediately adjoined to its north, south and west by properties, which have dwelling houses erected upon them. The property to the north (Lot 223 DP 614814 No. 1027 Jamberoo Road) was created as a concessional (4,000 m2) allotment in 1981 under the provisions of the former Kiama Planning Scheme Ordinance . The dwelling house on that property was approved in 1981.

8 The property to the south (Lot 200 DP 878979, No. 1009 Jamberoo Road) was originally an Old System Title, being land in Deed Book 3330 No. 502, with a Limited Folio Creation registered as DP 744586 on 11 September 1987. On 22 January 1999 this land was consolidated with a private road which increased the area of the holding from 3,927 m2 to 5,117 m2. A dwelling house was erected on the land in 1985 and major alterations and additions to that dwelling house were constructed during 1998.

9 The property to the west (Lot 2 DP 1045992 No. 1043 Jamberoo Road) has an area of 12.98 ha, and was created on 31 December 2002 in a boundary adjustment between Lot 2 DP 137113 and Lot 1 DP 986784. Until September 1998, Lot 2 DP 1045992 was part of a larger holding of 25.7 ha comprising of three (3) separate allotments, but containing only one (1) dwelling house. The separate allotments were sold to two separate parties on the 3 and 4 September 1998. The dwelling house (now situated on Lot 2 DP 1045992) was originally approved by council in 1982, and underwent significant alterations and additions during 1999.

The proposal


10 It is proposed to construct a single storey, brick veneer dwelling house on the site. The proposed dwelling house contains 4 bedrooms, separate internal living areas and an attached triple garage. A covered verandah runs along the south-eastern elevation of the building. The dwelling house is proposed to be externally finished in sandstock brickwork, with a colorbond metal roof coloured "Mist Green".

11 The dwelling house is to be sited towards the north-western corner of the allotment, (to the south of the previously excavated and levelled platform) about 45 m from the northern property boundary and 20 m from the western boundary.

12 The dwelling house is orientated towards the south-east to take advantage of rural views towards Jamberoo Village.

13 Access to the proposed dwelling house is to be obtained from Jamberoo Road in a location adjacent to the south-eastern corner of the property. The access driveway will cross an intermittent watercourse before travelling in generally a north-western direction to the proposed dwelling house.

14 A landscape concept plan submitted with the development application indicates the planting of native vegetation along all four boundaries of the site, around the dam and along the two intermittent gullies.

15 It is intended to utilise the balance of the site for the raising of calves. A total of five (5) calves are to be raised each year, from the age of one (1) week to nine (9) months. This enterprise proposes to generate a net annual return of approximately $2,000.


Planning controls


Kiama LEP 1996 (KLEP):

16 Under this instrument the site is zoned 1(a) Rural A. It contains a number of zone objectives and dwelling houses are permissible with consent in this zone.

17 Any such consent is dependent satisfaction of the provisions of cl 11(3) of the KLEP, which states that where 1(a) zoned land does not have a dwelling house erected upon it, consent may be granted to erect a dwelling house if the land has an area of not less than 40 ha – i.e subcl (a). The other exclusions in this clause are not relevant to this matter.

18 Clause 12(1) requires council to take into account the effect that the proposed development will have on the agricultural viability of the subject land and other land in the vicinity.

19 Clause 13 requires consideration of the effects of the development on the natural attributes of the land.

20 This DCP came into effect on 23 July 2003 and provides design standards on rural buildings and guidelines for the appropriate siting of rural dwellings and buildings. It contains a number of objectives related to protection of the rural amenity which includes a minimum separation distance of 100 m between dwellings.

Illawarra REP 2 (IREP 1)
Illawarra REP 2 (IREP 2)

Kiama DCP No. 8 (KDCP 8)

Kiama DCP No. 35


The evidence

21 The evidence for council comprises:

• Mr G Debnam, senior town planner with Kiama Council and his report is Exhibit 2.

22 Other submissions contained in exhibit 1 have been considered.

23 For the applicant the evidence comprises:

• Mr T Wetherall, consulting town planner and his reports are exhibits A and B.
• Mr W Cowman, agricultural consultant,
• Letters of support in exhibit E.
Discussion of evidence


24 From his assessment of the proposal, Mr Wetherall acknowledges the significant deficiency in the area of the lot, which limits its agricultural potential. But he says that the proposal allows for a residence and associated calf raising undertaking, which enables proper management of the site. Accordingly he says the proposal satisfies the relevant zone and planning objectives.

25 Against this, Mr Debnam accepts that the agricultural potential of this site is limited but considers the intent of the controls is to prevent fragmentation of agricultural land, which in this case means retaining it until it is consolidated with an adjoining parcel. Also Mr Debnam’s evidence is that the proposal is not consistent with the objectives to maintain the rural character and provide reasonable amenity for neighbouring properties by satisfying the 100 m separation criteria contained in DCP 35.

26 The application was treated as integrated development and referred to the Department of Land and Water Conservation (DLWC). Its approval was granted and Part 3A permit issued. The application was also referred to New South Wales Agriculture, which responded as follows;

1) The proposed agricultural enterprise of five calves does not require provision for on-site accommodation.
2) Applications for rural managers cottages need to not only satisfy the appropriate clauses in Councils Local Environmental Plan, but also cash flow plus other farm cost requirements.
This budget in this application would hardly pay the rates let alone a wage to the owner operator .
This Department does not support the application. It has no agricultural merit at all .


27 The proposal was also referred to the RTA who raised no objection subject to compliance with a number of conditions.

28 Because of the degree of non-compliance with the development standard, the SEPP 1 objection for the erection of a dwelling on the subject land was referred to NSW Planning. On 22 August 2002 notification was received regarding this SEPP 1 objection for the erection of a dwelling on the subject land that:

"the Director General has decided to grant her concurrence to this application as submitted.
Planning NSW notes that the applicant objects to be 40 ha development standard contained in Kiama Local Environmental Plan 1996 and also in Clause 24 of the Illawarra Regional Environmental Plan No 1 (IREP 1). Planning New South Wales considers that clause 24 of IREP No.1 does not apply to the subject land."


29 In this case, the primary hurdle concerns the SEPP 1 objection to the development standard restricting erection of the new house on the allotment of less than 40 ha. Mr Wetherall submitted the objection based on a number of assumed objectives.

30 Following conferencing, the planners agreed that the underlying objectives of the standard are:

• to prevent the fragmentation of productive agricultural land,
• to prevent premature and sporadic subdivision of rural land,
• to protect the landscape and scenic qualities of rural land,
• to maintain a low-density settlement pattern in rural areas,
• to maintain the rural character.

31 Although, Mr Wetherall also placed some reliance on the stated objectives in the 1973 State Planning Authority Policy on "Resubdivision of Residential Development in Non-Urban Zones". However they are generally consistent with the aforementioned underlying objectives.

32 It is apparent from the evidence that one of the main aims of these minimum area controls is to retain reasonable sized rural land holdings to facilitate continuing agricultural activities. The controls also seek to maintain a low-density rural character of the area.

33 However, in this case the opportunities for productive agricultural pursuits appear to be extremely limited due to the size of this lot and those surrounding, which have been subdivided, or disaggregated in the past. Reference to Plan 1 shows a situation of the following neighbouring properties:

• No. 1027, area of 4000 m2,
• No. 1009, area of 5117 m2,
• No. 1043, area of 12.98 ha.

34 Accordingly, the retention of this lot for consolidation with any of these adjoining lot will not achieve the stated minimum 40 ha area.

35 Apart from this, it is also apparent that these smaller lots have very limited agricultural potential. This aspect was assessed by Mr Cowman, who acknowledges that the land is classified as Class 3, which enables pasture improvement and limited cultivation. Based on his experience in this area with smaller agricultural activities, his evidence is that the restricted size and situation on this and surrounding land is unlikely to facilitate viable agricultural activities. He says that by its self it is too small for calf raising and even with consolidation to the larger 12.6 ha adjoining property, the resultant area is still too small or marginal for cattle agistment.

36 Therefore Mr Cowman's conclusion is that:

“The property is very limited in its potential for agriculture by its small size, moderate slopes, the erodible nature of the soil, and the close proximity of neighbours.
Calf rearing is a genuine interest of Mr Smith and is a suitable use for the property.
The proposal meets all the requirements of cl 12 of the LEP and on this basis should be supported by council. It is noted that cl 12 does not require a proposed development to be agriculturally viable.
In the past 15 years Mr and Mrs Smith have attempted to utilise the land for a number of small-scaled agricultural activities, which have not been successful. The result is that the land is now unused and affected by weed growth and general property deterioration. The Smiths have shown that a full-time presence of the land is necessary even for a small enterprise to work well.”


37 Insofar as Mr Debnam nevertheless maintains that this lot should be retained for consolidation, the proposal was advertised and 2 of the adjoining neighbours raised no objection to the proposal. This includes No. 1043, which is the larger and most likely property for consolidation so as to facilitate productive agricultural land. However there is no evidence before the Court of any possible consolidation.

38 In these circumstances then, it seems to me that the proposal does not unreasonably conflict with the stated "fragmentation and subdivision" objectives.

39 The other objectives then deal with the appearance and visual impacts of the proposal, in its rural context. In this regard, Mr Debnam acknowledged that the main criteria concerns are viewing opportunities from various positions along Jamberoo Road.

40 Considering then the circumstances of this case, the adjoining property owners have taken advantage of the pre-existing, historic lot pattern and also previous planning controls, which allowed development of these smaller rural lots, with areas much less than the stated 40 ha. Consequently that has resulted in a number of dwellings and ancillary structures in relatively close proximity, which has a rural/residential character - albeit at low density.

41 It seems to me that the erection of the proposed dwelling will be consistent with the established rural character of this neighbourhood, which does not present as larger rural lots, with areas in the order of or exceeding 40 ha.

42 Taking into account that the proposal involves extensive perimeter landscaping of native species it appears that the existing landscape and scenic quality of this rural neighbourhood will be reasonably maintained.

43 In addition to these considerations, DCP 35 applies. Clause 7.5 provides for a minimum separation distance of 100 m from dwelling houses on adjoining properties. As noted, the following dwellings are in proximity:
• No. 1009 to No. 1043 - 97 m,
• No. 1009 to No. 1027 - 135 m,
• No. 1027 to No. 1043 - 55 m.
44 However in response to the separation provisions, the applicant altered the building position on shifting it to approximately 45 m from No. 1027 which is the critical control. Notwithstanding this, Mr Debnam still considers the proposal will have an unsatisfactory impact on the amenity of this existing dwelling house at 1027 Jamboree Road. This decision is supported by the objection from this property owner on the grounds of:

• loss of privacy due to southern orientation of existing living areas,
• clustering of rural outlook,
• environmental impact on Turpentine Creek,
• precedent.

45 However in cross-examination, Mr Debnam admitted that there was no scientific basis for the 100 m separation distance. He says it is taken from council’s 1989 Planning Policy Document and it is used to preserve visual and acoustic privacy and as well as maintaining a low density landscape.

46 Insofar as Mr Wetherall agrees that there will be an increase in urban form, he nevertheless says that the impacts created will be minimal and acceptable within this rural location and also there will be some improvement through intensification of the landscaping.

47 Taking into account then, the topographical features of the site, the fact that the proposed building platform is separated some 55 m from No. 1027 and at a considerably lower elevation and the orientation of the new dwelling and proposed landscaping, I am inclined to accept Mr Wetherall's opinion that the amenity impacts will be reasonable, notwithstanding the non-compliance with the 100 m separation control.

48 The other issue raised in this matter concerns the precedential effect of approval of the development. This concern is raised because there are some 9 other small lots, where the owners may have a similar expectation for development.

49 These other lots were identified by Mr Debnam and inspected on the view. It appears to me that there are significant differences with these lots from the subject land, due to its topography, visual exposure, screening vegetation and also its proximity to other neighbouring dwellings. Some of these other lots identified are much more open, where visual impacts would be greater and probably unacceptable.

50 In light of the fact that council relies on the policy option of SEPP 1 objections to deal with these undersized lots, rather than some other planning initiatives, it then seems that each application would be considered on its merits and precedence should not be a determining factor.

51 As noted, the written SEPP 1 objection was submitted by Mr Wetherall. In considering this, I have also taken into account the oral evidence of the planning consultants. I accept the aforementioned, agreed underlying objectives for this minimum area development standard in cl 11 (3) (a) of the KLEP. When the property is assessed against these objectives, it seems to me that:

• this proposal does not result in the fragmentation or breaking down of productive agricultural land. Whilst the option for consolidation may been reduced, nevertheless this relatively small rural lot has apparently be in existence for 128 years and no consolidation initiatives undertaken to pursue productive agricultural undertakings.
• the proposal does not involve subdivision of rural land,
• taking into account the situation of this land, which is below the ridgeline and generally well screened from the public domain, I accept Mr Wetherall's assessment that there will not be unreasonable adverse impact on the landscape and scenic qualities.
• whilst the proposal is for an additional dwelling in this rural area, it is obvious that this neighbourhood does not present as a well separated rural area. Instead the existing dwellings and structures gives the character of a rural/residential area. I consider this proposal maintains this existing low-density rural settlement pattern and is consistent with the natural attributes of the land.
52 Under these circumstances, then I consider compliance with the minimum standards in cl 11(3)(a) is unnecessary and unreasonable.

Conclusions


53 Having consider the evidence, the submissions and undertaken a view, I am satisfied this proposal merits conditional consent.

54 Whilst the site is substantially below the minimum area development standard, nevertheless it appears that the approval of the proposal is generally consistent with the prevailing objectives. There was no compelling evidence to indicate that the proposal would have an adverse effect on the agricultural viability of this and other land in the area. In reality, the grazing activities on other land can substantially be retained in this case. It then seems to me that the other matters identified in cl 12 (1) of the KLEP have been reasonably addressed.

55 With respect to cl 13, there was no compelling evidence indicating adverse effect on the matters listed. On the contrary, it appears that with a commitment by the applicant to provide additional landscaping and weed eradication programs, positive environmental benefits are likely.

56 In so far as the controls require consideration of the cumulative effects of the proposal, I have considered the possibility of other smaller rural properties pursuing similar objectives. However it is apparent that the natural attributes of those other lots are differentiated in a number of ways, necessitating their merits being assessed individually. From the details presented to the Court, there is no certainty that there will be an unsatisfactory cumulative effect to the approval of this development.

57 The ultimate matter concerns the SEPP 1 objection to the development of the undersized lot. Both planners agreed on the underlying objectives and while the degree of variation area is significant, nevertheless I consider the underlying objectives are reasonably satisfied and therefore strict compliance with a standard is unnecessary and unreasonable in this case.

58 In this regard, I particularly note that this SEPP1 objection was referred to Planning NSW and the Director-General granted concurrence to this proposal. Having considered the merits of this case, I give that concurrence significant weight in also deciding to allow the SEPP1 objection and grant development consent.

Court orders
1. The appeal is upheld.
2. The State Environmental Planning Policy No. 1 (SEPP 1) objection to the minimum lot area development standard in cl 11(3)(a) of the Kiama Local Environmental Plan is allowed.
3. Development application No. D183/02 for the erection of the dwelling house at Lot 1, DP 735485 No. 1025 Jamberoo Road, Curramore, is determined by the grant of development consent subject to conditions as set out in annexure "A".
4. The exhibits may be returned except exhibits 2, 4, 5, A, C and D.

___________________
R Hussey
Commissioner of the Court