Wehbe v Pittwater Council

[2007] NSWLEC 827

Reported Decision: 156 LGERA 446

Land and Environment Court

of New South Wales

CITATION:	Wehbe v Pittwater Council [2007] NSWLEC 827
PARTIES:	APPLICANT Joe Wehbe RESPONDENT Pittwater Council
FILE NUMBER(S):	10744 of 2006
CORAM:	Preston CJ
KEY ISSUES:	Development Application :- subdivision of residential land - breach of development standard prescribing minimum allotment size - applicant justified departure by reliance on existing use rights and SEPP 1 objection - subdivision itself is not use of land and does not effect a change in use - subdivision application therefore does not involve change from existing use to another use - development standard for subdivision does not derogate from incorporated provision allowing for change from an existing use to another use - SEPP 1 objection therefore necessary to be able to consent to subdivision - requirements to uphold SEPP 1 subdivision discussed - ways of establishing that compliance unreasonable or unnecessary discussed - SEPP 1 objection not well-founded in circumstances of the case - development consent refused
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 4, s 81A, s 97, s 106 Environmental Planning and Assessment Regulation 2000 cl 11(2), cl 41(1) Land and Environment Court Act 1979 s 39(6)
CASES CITED:	Auburn Municipal Council v F N Eckold Pty Ltd [1974] 2 NSWLR 148 affirmed (1975) 34 LGERA 114; Bowen v Willoughby City Council [2001] NSWLEC 274 (4 December 2001); City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262; Colvest No. 27 Pty Ltd v Hastings Municipal Council, unreported, LEC No 10617 of 1986, 22 March 1988, Cripps J; Customs and Excise Commissioner v Viva Gas Appliances Ltd [1983] 1 WLR 1445; [1984] 1 All ER 112; Daniel v Manly Municipal Council (1975) 34 LGRA 14; Design 23 Pty Ltd v Sutherland Shire Council (2003) 125 LGERA 380; Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350; Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94; Gergely & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400; Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438; Hooker-Rex Estates v Hornsby Shire Council, unreported, LEC No 10506 of 1982, 27 July 1983, Bignold J; Leighton Properties Pty Ltd v North Sydney Council (1998) 98 LGERA 382; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192; Lyne v Moree Plains Shire Council (1999) 110 LGERA 120; Memel Holdings Pty Ltd v Pittwater Council (2000) 110 LGERA 217; Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 34 LGRA 151; North Shore Gas Co. Pty Ltd v North Sydney Municipal Council, unreported, LEC No 10185 of 1986, 15 September 1986, Stein J; North Sydney Municipal Council v Parlby, unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J; SCMP Properties Pty Limited v North Sydney Municipal Council (1983) 130 LGERA 351; Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246; Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79
DATES OF HEARING:	21 November 2007, 22 November 2007
DATE OF JUDGMENT:	21 December 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr P Tomasetti SC SOLICITORS Storey & Gough RESPONDENT Mr D Miller (barrister) SOLICITORS Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

21 DECEMBER 2007

10744 OF 2006

WEHBE V PITTWATER COUNCIL

JUDGMENT

1 HIS HONOUR: The applicant owns land known as 24 The Strand, Whale Beach, being Lot 66 in DP 11067. The site has an area of 1,029 square metres. The site has improvements including a restaurant, kiosk and associated structures and a dwelling house.

2 The applicant wishes to redevelop the site with two dwelling houses, one on each of two lots. To this end, the applicant lodged a development application, DA No 278/06, with Pittwater Council seeking consent to two types of development: first, demolition of the restaurant, kiosk and associated structures and second, subdivision of the site by way of Torrens title to create two allotments of equal size of approximately 514 square metres.

3 The development application proposed to retain the existing dwelling house on the proposed southern lot. The application did not seek consent for the erection and use of new dwelling houses on the two lots to be created by the proposed subdivision.

4 As the proposed lots to be created by the subdivision would be less than the minimum allotment size under clause 11(2) of Pittwater Local Environmental Plan 1993 (“PLEP”), the development application was accompanied by an objection under State Environmental Planning Policy No 1 – Development Standards (“SEPP 1”). The SEPP 1 objection was included in the statement of environmental effects accompanying the development application.

5 The Council refused the development application. The Council’s reasons for refusal in its letter dated 8 November 2007, included:

“1. Proposed Lot 1 will have an area of 514.4 sqm. Proposed Lot 2 will have an area of 514.1 sqm. This is not in keeping with the requirements in Clause 11(2) of Pittwater Local Environmental Plan 1993 which requires a minimum lot area of 700 sqm.
2. The State Environmental Planning Policy No. 1 objection is not supported as compliance with the statutory development standard has not been found to be unreasonable or unnecessary in the circumstances of this case.
3. The site coverage on proposed Lot 2 would exceed the allowed 40% limit. This is not in keeping with the requirements of Section D 12.10 of Pittwater 21 DCP.
4. The maximum depth of Proposed Lot 2 is only 24 m. This is not in keeping with the requirements of Section C 4.7 of Pittwater 21 DCP.
5. The proposed subdivision is not consistent with the existing allotment size and pattern within the locality”.

6 The applicant appealed to the Court under s 97 of the Environmental Planning and Assessment Act 1979 against the Council’s refusal.

Issues

7 The Council filed a statement of issues identifying eight issues. The last four of these issues concerned the inadequacy of information supplied by the applicant on hazards, including slip and wave inundation, on State Environmental Planning Policy No 71 – Coastal Protection, and on heritage assessment. The applicant has subsequently provided information in relation to these matters and the Council no longer presses these issues.

8 The first four issues all relate to the proposed subdivision. They are:

(1) The proposed lot areas are inadequate because they would be less than the minimum allotment size of 700 square metres under clause 11(2) of PLEP and 1,200 square metres under Pittwater 21 Development Control Plan;

(2) An objection under SEPP 1 is required in relation to the lot sizes and the applicant’s objection should not be upheld;

(3) The proposed lots are of insufficient size to accommodate an appropriate scale and intensity of development in that:

(a) the likely site coverage on proposed lot 2 would exceed the allowed 40% limit;
(b) the minimum depth of both lots is required to be 27 metres but the maximum depth of proposed lot 2 is 24 metres; and
(c) development of both lots by the erection of dwelling houses as proposed will result in a greater intensity of development than is contemplated by the controls.

4. The proposed subdivision and subsequent development of each lot by the erection of dwelling houses as proposed would not maintain the character of the area of the Palm Beach locality in that:

(a) the proposal is for lots smaller than the existing lot size pattern; and
(b) likely dwellings on both lots will result in a denser form of development than is sought by the controls having regard to the desired future character of the area in Pittwater 21 Development Control Plan.

9 The Council raised no issue in relation to the demolition of the restaurant, kiosk and associated structures. Objectors, however, have expressed concern that the restaurant and kiosk may possibly have some heritage significance and that the restaurant and kiosk provide a valuable amenity for beach goers.

10 It is appropriate to deal with the proposed subdivision before dealing with the proposed demolition of the building because, in the way the applicant puts its case, the latter is contingent upon the former.

The proposed subdivision and its context

11 The site proposed to be subdivided has an area of 1,029 square metres. The site is located on the northern corner of the intersection formed by Surf Road and The Strand. The site is irregular in shape and has an arced frontage to The Strand of some 32 metres and an arc to the intersection of 14.3 metres. The western boundary is to Surf Road and has a dimension of 23 metres and the eastern boundary is to The Strand and has a dimension of 15.7 metres. Adjoining the site to the north is a stone cottage and the common boundary is about 45 metres. The site is generally flat.

12 The land rises to the west at the rear of the site with a wide embankment rising several metres high to Surf Road. The area generally is characterised by one, two and three storey dwelling houses built on the flat of The Strand and on the steep slopes surrounding the site. To the east of the site is the Whale Beach carpark and Whale Beach beyond is framed by Norfolk Island Pines. The Whale Beach Surf Lifesaving Club is to the south of the site, separated by Surf Road and open space.

13 The lots in the surrounding, broader area vary in size. There are a large number of lots between 600 and 800 square metres with a significant number between Morella Road and Bynya Road of 570 to 605 square metres and a few lots over 1,000 square metres, including the subject site of 1,029 square metres.

14 The character of the area is low density residential with single dwelling houses of various architectural styles and periods with a backdrop of vegetation and canopy trees. The area is undergoing change in that many of the older beach houses are being replaced by more substantial dwellings of various architectural styles.

The planning controls on subdivision

15 The site is zoned 2(a) (Residential A) under PLEP. In this zone, development for any purpose other than for a purpose for which development may be carried out without development consent or a purpose for which development consent is prohibited, may only be carried out with development consent. No development is listed as being permissible without development consent. Prohibited development includes commercial premises, refreshment rooms, residential flat buildings and shops.

16 Special provisions dealing with the subdivision of land are found in Part 3 of PLEP. Clause 11 regulates subdivision in residential zones. So far as is relevant, clause 11 provides:

“(1) The aim of this clause is to create more varied allotment sizes, improve residential amenity and enhance the environment in relation to land to which this clause applies.

(2) A person shall not subdivide land in Zone No 2(a) or 2(b) generally north of Mona Vale Road, Mona Vale and east of Chiltern Road, Ingleside, unless each allotment to be created by the subdivision will have an area of not less than 700 square metres within Zone No 2(a) or 2(b), exclusive of any access corridor.”

Departing from the controls: The debate between the parties

17 The applicant submits that the Court, exercising the functions of the consent authority in relation to the development application, has power to grant development consent to the subdivision by two means.

18 First, the applicant submits that: the whole of the land has the benefit of an existing use for a restaurant/kiosk and dwelling house; the development application proposed that the existing use will be changed to another use in accordance with clause 41(1)(d) of the Environmental Planning and Assessment Regulation 2000; clause 11(2) of PLEP derogates or has the effect of derogating from clause 41(1)(d) in that it does not permit the proposed subdivision into allotments with an area less than 700 square metres; clause 11(2) is accordingly of no force or effect; and development consent can therefore be granted to the subdivision, notwithstanding clause 11(2).

19 Secondly and alternatively, the applicant submits that: the provision of clause 11(2) of PLEP is a development standard; the applicant has lodged an objection under SEPP 1 that compliance with clause 11(2) is unreasonable or unnecessary in the circumstances of the case; the SEPP 1 objection is well founded and the granting of development consent to the development application for the proposed subdivision is consistent with the aims of SEPP 1; and accordingly, development consent can be granted to the proposed subdivision, notwithstanding clause 11(2).

20 The Council contested the first means relied on by the applicant. The Council disputed that there was an existing use of the whole of the site for restaurant, kiosk and dwelling house, although it was prepared to concede that there was an existing use on that part of the land occupied by the restaurant and kiosk for a restaurant and kiosk. The Council contested the applicant’s propositions that the applicant’s development application, which merely proposed subdivision and demolition of certain buildings, involves a change of use within clause 41(1)(d) of the Environmental Planning and Assessment Regulation 2000; that clause 11(2), which regulates subdivision only, derogates or has the effect of derogating from clause 41(1)(d) of the Environmental Planning and Assessment Regulation 2000; and that clause 11(2) is void and of no effect in these circumstances.

21 The dispute as to the nature and extent of any existing use of the land also arises in proceedings commenced by the applicant in Class 4 of the Court’s jurisdiction. The parties agreed that those proceedings should await determination of these Class 1 proceedings.

22 Nevertheless, the applicant still relies in these Class 1 proceedings on the existence of an existing use of the land (whatever be its precise nature and extent) to found the argument that clause 11(2) of PLEP is void and of no effect and that the proposed subdivision can be approved notwithstanding clause 11(2). I can deal with this argument on the assumption that there is an existing use of the land, without needing to determine the precise nature and extent of the existing use.

23 The Council also contested the second means relied upon by the applicant. The Council contends that the applicant’s SEPP 1 objection is not well founded and should not be upheld by the Court. Accordingly, the Court would not be able to grant development consent to the proposed subdivision in breach of clause 11(2).

24 I will deal with each of these means relied upon by the applicant.

Existing use and subdivision

25 As I have noted, the development application seeks development consent for two of the types of development referred to in the definition of development in s 4(1) of the Environmental Planning and Assessment Act 1979: the demolition of buildings and works (paragraph (e) of the definition) and the subdivision of land (paragraph (b) of the definition). The development application does not seek consent for any other type of development referred to in the definition of development in s 4(1) of the Act. In particular, the development application does not seek consent for the use of land (paragraph (a) of the definition) or the erection of a building on the land (paragraph (b) of the definition) and hence any subsequent use of the building for the purpose for which it was erected (s 81A(1) of the Act).

26 The development application cannot, therefore, be characterised as seeking consent to change any existing use of the land to another use of the land. Neither demolition of buildings or works nor subdivision of land involves the use of land.

27 As to the former, demolition may be preparatory to some other type of development, such as the erection of a building or the use of land, but it is not part of that other development: see Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350 at 360; Auburn Municipal Council v F N Eckold Pty Ltd [1974] 2 NSWLR 148 at 153-154 affirmed (1975) 34 LGERA 114 and Customs and Excise Commissioner v Viva Gas Appliances Ltd [1983] 1 WLR 1445 at 1451; [1984] 1 All ER 112 at 116.

28 As to the latter, subdivision itself does not involve any use of land: see Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246 at 250; Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 34 LGRA 151 at 152 and Lyne v Moree Plains Shire Council (1999) 110 LGERA 120. Furthermore, consent for subdivision of land is consent for subdivision simpliciter and does not import any approval for subsequent use for any purpose. In Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246 at 250, Sugerman J noted:

“Approval of subdivision is approval of subdivision simpliciter and not approval of subdivision for any particular purpose, or with a view to the erection of some particular sort of building, either in the sense that it alone restricts the owners or in the sense that, by approving the particular subdivision, the Council must be taken to have approved of some particular sort of building being erected upon or some particular use being made of, the land”.

29 The consequence of the above propositions is that, even if it were to be assumed that there is some existing use of the land within the meaning of s 106 of the Environmental Planning and Assessment Act 1979, the development application does not, by seeking consent for the demolition of buildings and works on the land and the subdivision of land into two allotments, seek consent to change the use from any existing use to another use. The use of dwelling house, which the applicant has foreshadowed he wishes to pursue on each of the proposed lots, is not sought in the development application, either directly or consequently by seeking consent to erect dwelling houses on the proposed lots (see s 81A(1) of the Act). Before such use for dwelling house could lawfully be carried out on the proposed northern lot, a development application would need to be made and consent granted for such use (development consent already exists for the erection of the existing dwelling house and its use for that purpose).

30 As the development application does not seek consent to change the existing use to another use, clause 41(1)(d) of the Environmental Planning and Assessment Regulation 2000 is not applicable. In these circumstances, clause 11(2) of PLEP cannot derogate or have the effect of derogating from the incorporated provision of clause 41(1)(d). Clause 11(2) therefore continues to have effect.

31 The applicant alternatively submits that the existing use would cease if development consent were to be granted to the proposed subdivision on a condition imposed under s 80A(1)(b) and (5) that the applicant surrender any existing use rights conferred by Division 10 of Part 4 of the Environmental Planning and Assessment Act 1979 in relation to the land. Upon such surrender of the existing use right, the existing use would cease. Cessation of use, the applicant submits, involves a change in use under Clause 41(1)(d) of the Environmental Planning and Assessment Regulation 2000. Clause 11(2) operates to prevent the consent authority having the power to grant development consent to a subdivision that creates allotments less than the minimum size and hence having the power to impose a condition under s 80A(1)(b) and (5) to bring about such a change in use. Hence, the applicant submits, clause 11(2) of PLEP derogates or has the effect of derogating from Clause 41(1)(d) of the Environmental Planning and Assessment Regulation 2000.

32 This submission of the applicant involves a misinterpretation of clause 41(1)(d) of the Environmental Planning and Assessment Regulation 2000. Cessation of an existing use may be necessary but it is not sufficient by itself to cause a change to another use. Clause 41(1)(d) allows an existing use to “be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act” (emphasis added). The change required by clause 41(1)(d) is not merely to cease using the land for the lawful purpose that constitutes the existing use, but to take the further step to use the land for another purpose that is permissible with or without development consent. A cessation of the existing use does not result in the commencement of another use. Indeed, of course, if an existing use is abandoned, there can no longer be a change of use. It is only whilst the existing use continues to be carried out on land that the owner is entitled to seek consent to a change of use: see, for example, Daniel v Manly Municipal Council (1975) 34 LGRA 14 at 20.

33 Hence, even if a condition were to be imposed on a development consent for subdivision requiring the surrender of any existing use right applying to the land to be subdivided, and such surrender were to occur, no change to another use would be effected. Hence, the grant of development consent for subdivision with a condition requiring the surrender of an existing use right on the land does not authorise the existing use to be changed to another use under clause 41(1)(d).

34 If clause 41(1)(d) of the Environmental Planning and Assessment Regulation 2000 is not applicable, then clause 11(2) of PLEP cannot derogate or have the effect of derogating from the incorporated provision of clause 41(1)(d).

35 For these reasons, I reject the applicant’s submission, based on any existing use of the land that might exist, that clause 11(2) is void and of no effect by reason of it derogating or having the effect of derogating from clause 41(1)(d) of the Environmental Planning and Assessment Regulation 2000.

SEPP 1 objection and subdivision

36 This means that in order for the Court, exercising the functions of the consent authority, to have power to grant development consent to the applicant’s proposed subdivision, it must uphold the SEPP 1 objection to compliance with clause 11(2) of PLEP. Upholding the SEPP 1 objection is a precondition which must be satisfied before the proposed development of subdivision can be approved on a consideration of the merits: Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at 87-88 [19], 90 [29], 92 [44]-93 [45].

Requirements to uphold a SEPP 1 objection

37 The Court exercising the functions of the consent authority, must be satisfied of thee matters before it can uphold the SEPP 1 objection and grant development consent to a development application for development that could, but for a development standard, be carried out under the Act with or without development consent.

38 First, the Court must be satisfied that “the objection is well founded” (clause 7 of SEPP 1). The objection is to be in writing, be an objection “that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case”, and specify “the grounds of that objection” (clause 6 of SEPP 1). The requirement in clause 7 of SEPP 1 that the consent authority be satisfied that the objection is well-founded, places an onus on the applicant making the objection to so satisfy the consent authority: see North Sydney Municipal Council v Parlby, unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J, p. 8.

39 Secondly, the Court must be of the opinion that “granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3” (clause 7 of SEPP 1). This matter is cumulative with the first matter (it is prefaced by the words in clause 7 of SEPP 1 “and is also”). The aims and objects of SEPP 1 set out in clause 3 are to provide “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 or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act”. The last mentioned objects in s 5(a)(i) and (ii) of the Act are to encourage:

“(1) 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,
(2) the promotion and coordination of the orderly and economic use of developed land.”

40 Thirdly, the Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection: Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94 at 100 and City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 291. The matters in clause 8(a) and (b) are:

“(a) whether non-compliance with the development 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”.

41 Although the Court has power to uphold a SEPP 1 objection without the concurrence of the Director-General by reason of s 39(6) of the Land and Environment Court Act 1979, the matters in clause 8(a) and (b) are still relevant when the Court is considering exercising its power: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 100.

Ways of establishing that compliance is unreasonable or unnecessary

42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard: see SCMP Properties Pty Limited v North Sydney Municipal Council (1983) 130 LGERA 351 at 379; Hooker-Rex Estates v Hornsby Shire Council, unreported, LEC No 10506 of 1982, 27 July 1983, Bignold J, pp 16, 18 and 20; Gergely & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 406-407, 412-413; Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGRA 438 at 441; North Sydney Municipal Council v Parlby, unreported, LEC No 10613 of 1985, 13 November 1986, Stein J at p 5; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; Leighton Properties Pty Ltd v North Sydney Council (1998) 98 LGERA 382 at 386; Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 97; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282-283; Memel Holdings Pty Ltd v Pittwater Council (2000) 110 LGERA 217 at 220-221; Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at 88[25] - 89[28] and Design 23 Pty Ltd v Sutherland Shire Council (2003) 125 LGERA 380 at 387 [20]-[21].

43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).

44 However, although this way is commonly invoked, it is not the only way to establish that compliance with a development standard is unreasonable or unnecessary: North Sydney Municipal Council v Parlby, unreported, LEC No 10613 of 1985, 13 November 1986, Stein J at p 5; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 97; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282-283. Other ways are explained in the authorities.

45 A second way is to establish that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary: SCMP Properties Pty Limited v North Sydney Municipal Council (1983) 130 LGERA 351 at 378-379; North Sydney Municipal Council v Parlby, unreported, LEC No 10613 of 1985, 13 November 1986, Stein J at p 5.

46 A third way is to establish that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable: Hooker-Rex Estates v Hornsby Shire Council, unreported, LEC No 10506 of 1982, 27 July 1983, Bignold J at p 18.

47 A fourth way is to establish that the development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable: North Shore Gas Co. Pty Ltd v North Sydney Municipal Council, unreported, LEC No 10185 of 1986, 15 September 1986, Stein J at pp 11-12; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282 [69]-283 [70].

48 A fifth way is to establish that “the zoning of particular land” was “unreasonable or inappropriate” so that “a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land” and that “compliance with the standard in that case would also be unreasonable or unnecessary: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 97.

49 However, care needs to be taken not to expand this fifth way of establishing that compliance is unreasonable or unnecessary beyond its limits. It is focused on “particular land” and the circumstances of the case. Compliance with the development standard is unreasonable or unnecessary not because the standard is inappropriate to the zoning, but rather because the zoning of the particular land is found to be unreasonable or inappropriate. If the particular land should not have been included in the particular zone, the standard would not have applied, and the proposed development would not have had to comply with that standard. To require compliance with the standard in these circumstances would be unreasonable or unnecessary.

50 However, so expressed, this way is limited. It does not permit of a general inquiry into the appropriateness of the development standard for the zoning. An objection would not be well-founded by an opinion that the development standard is inappropriate in respect of a particular zoning (the consent authority must assume the standard has a purpose): Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 441; North Sydney Municipal Council v Parlby, unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J at p 7; and Colvest No. 27 Pty Ltd v Hastings Municipal Council, unreported, LEC No 10617 of 1986, 22 March 1988, Cripps J, pp 10-11.

51 The dispensing power under SEPP 1 also is not a general planning power to be used as an alternative to the plan making power under Part 3 of the Act to change existing planning provisions. An objection cannot be used as a means to effect general planning changes throughout a local government area (in circumvention of the procedures under Part 3 of the Act): Hooker-Rex Estates v Hornsby Shire Council, unreported, LEC No 10506 of 1982, 27 July 1983, Bignold J, at p 22; Gergely & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 412; Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 442; North Sydney Municipal Council v Parlby, unreported LEC No 10613 of 1985, 13 November 1986, Stein J at p 7; Colvest No. 27 Pty Ltd v Hastings Municipal Council, unreported, LEC No 10617 of 1986, 22 March 1988, Cripps J, pp 11-12; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 201-202 (affirmed (1990) 69 LGRA 201 at 203, 210); Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 99; Bowen v Willoughby City Council [2001] NSWLEC 274 (4 December 2001) at [113].

52 The requirement that the consent authority form the opinion that granting consent to the development application is consistent with the aims of SEPP 1 as set out in clause 3 (one of which is the promotion and coordination of the orderly and economic use and development of land) makes it relevant “to consider whether consent to the particular development application encourages what may be summarised as considered and planned development” or conversely may hinder a strategic approach to planning and development: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 100 [26] – [27], 101 [30] – [31], [35].

The SEPP 1 objection in this case

53 In this case, the original SEPP 1 objection to compliance with clause 11(2) of PLEP was included as part of the statement of environmental effects by Planning Direction Pty Ltd dated 2 May 2006, which accompanied the development application. The objection invoked the test of satisfaction of the objectives of the development standard. The objection identified the objectives to be those stated in clause 11(1) namely, “to create more varied allotment sizes, improve residential amenity and enhance the environment”. The grounds justifying departure from the standard were stated at pp 16-17 as follows:

“(A) Allotment sizes and configuration vary in the precinct. The varied allotment sizes within the Whale Beach locality are largely due to the change in topography and curvature of the road network. The proposed allotment sizes are reasonable lot sizes in an urban context and particularly benefit from having a flat topography ensuring the majority of the site is usable for building and recreation. The proposal therefore is consistent with the principal aim of the LEP, which is to encourage varied allotment sizes;

(B) Each of the proposed lots is capable of supporting individual dwelling houses to be constructed in a manner that responds to the site circumstances and characteristics. The proposed subdivision does not adversely impact on the environment. Any future development application for dwelling houses will take into consideration issues pertaining to landslip, coastal hazards, privacy loss, heritage and the like;

(C) The subject site currently accommodates intensive uses on a single allotment of land. The subject site currently contains a manager's dwelling house, a restaurant and a retail use. The subject site is of an intensity that would normally be associated with separate allotments. As such the proposed subdivision will not intensify the current uses of the subject site and will in fact ultimately result in less intensive use of the subject site.

The proposed subdivision can reasonably accommodate two new dwellings and provide the necessary associated spaces and car parking. The proposed building envelopes demonstrate that site specific dwellings will need to be erected given the site circumstances, which will provide a high level of amenity to future occupants. The proposed dwellings can be sited within their respective lot boundaries without compromising the amenity enjoyed by adjoining owners;


(D) The proposed subdivision for the purposes of future residential development accords with the aims of the clause, which seeks to improve the residential amenity of the area;

(E) The local road network has the capacity to absorb the low traffic levels likely to be associated with the development;

(F) All utility services are available in the locality;

(G) The proposal will not necessitate the removal of significant trees nor will the construction of dwellings detract from the heritage significance of the Norfolk Pines;

(H) The erection of two 2 storey dwellings on the subject site can be sensitively designed to ensure there will be no loss of views or overshadowing of adjoining properties.”

54 At the hearing of the proceedings, the applicant submitted a revised SEPP 1 objection dated September 2007 by Mr G W Smith, a consultant planner to the applicant. This objection was structured so as to answer the five questions posed in Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at 89 [26]. The objectives in the standard were noted to be those stated expressly in clause 11(1). The grounds for departure from the standard were stated at pp 4-5 to be as follows:

(a) The proposed development, involving the demolition of the existing commercial buildings and the subdivision into two allotments, one to provide a curtilage for the existing residence and the other a site on which a dwelling could be erected, would remove the breach of the primary planning control of zoning caused by the non-conforming commercial use of the land. Bringing conformity with the primary planning control should be given precedence over non-compliance with the secondary control of the development standard in clause 11(2). Bringing conformity would benefit the public interest and meet the objects of the Act.

(b) The objective in clause 11(2) “to create varied allotment sizes” could not be said to be offended by a proposal to create lots of smaller sizes than those generally prevailing.

(c) In relation to the objective in clause 11(2) “to improve residential amenity”, “the removal of a non-conforming use and its replacement with a conforming use in a residential zone must constitute an improvement in residential amenity”.

(d) In relation to the objective in clause 11(2) “to enhance the environment”, “the present use of Lot 66 attracts traffic with patrons occupying parking space in the publicly-provided, beachside, car parking area; the present building is not treated acoustically so that noise from functions held in it can reach nearby residents; patrons leaving late at night can generate noise which may – at times – disturb residential amenity; and the take-away food kiosk is, at least, a potential source of litter. In these circumstances, the replacement of the existing non-conforming use with a dwelling house must reduce these adverse environmental impacts and enhance the environment, thus meeting the third aim.”

55 The revised SEPP 1 objection states (at p 5) that compliance with the development standard would be both unreasonable and unnecessary. In relation to the former, “the current proposal should terminate the non-conforming use in the short term” and this “would benefit the public interest and meet the objects of the Act”. Hence, “insistence on compliance with the development standard would be unreasonable”. As to the latter, “since the product of upholding the SEPP 1 objection would be removal of the non-conformity and result in a conforming use, it is unnecessary to comply with the development standard”.

56 The revised SEPP 1 objection concludes (at p 5) that the objection is well founded because:

“As the outcome of upholding the objection would be conformity with the primary planning control – the zoning – at the cost of non-compliance with a secondary control – the development standard in Clause 11 – but would, nevertheless, result in fulfilment of the aims of Clause 11 – the objection is well founded”.

The SEPP 1 objection should not be upheld

57 I am not satisfied that: the SEPP 1 objection (either the original or the revised SEPP 1 objection) is well founded; the granting of consent to the proposed subdivision is consistent with the aims of SEPP 1 as set out in clause 3; or a consideration of the matters in clause 8(b) of SEPP 1 justifies the upholding of the SEPP 1 objection.

58 The revised SEPP 1 objection is flawed in that it is based on the assumption that granting of consent to the subdivision effects a change from the existing use (which is non-conforming) to a conforming use of dwelling house. This assumption is erroneous for the reasons I have given earlier. Subdivision is not a use of land and cannot effect by itself a change in use to another use.

59 The ground of the revised SEPP 1 objection that bringing conformity with what is said to be the primary planning control of the permissible uses under the zoning should be given precedence over non-compliance with what is said to be the secondary control of the development standard of the minimum allotment size for a subdivision, is also erroneous.

60 Although the power under SEPP 1 is wide (see, for example, Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 203 affirmed (1990) 69 LGRA 201 at 203, 210), it needs to be exercised on the grounds in SEPP 1 relating to the development standard and the circumstances of the case. It does not allow a consent authority to dispense with compliance with a development standard merely in order to bring about conformity with some other planning control. SEPP 1 does not permit the consent authority to rank in order of importance planning controls applicable to the land and the proposed development, and give precedence to other planning controls over the development standard.

61 I am not satisfied that the revised SEPP 1 objection is well founded.

62 The original SEPP 1 objection is more orthodox in that it endeavours to establish that the proposed subdivision would achieve the objectives of the development standard and hence that compliance with the development standard would be unreasonable or unnecessary. However, I am not satisfied that the proposed subdivision does achieve the objectives of the development standard.

63 The first stated aim of the clause establishing the development standard, clause 11, is “to create more varied allotment sizes”. The original SEPP 1 objection states that because granting consent would result in an allotment size at variance to the standard, this aim would be achieved. However, viewing the aim in this way would lead to an absurdity. On this construction, only departure from, and not compliance with, the development standard fixing the minimum allotment size could achieve the aim of the clause to create more varied allotment sizes. The standard would have no work to do.

64 Instead, the aim to create more varied allotment sizes should be viewed as descriptive of the result achieved by the clause itself. Clause 11 of PLEP, which applies only to residential zones, fixes varying minimum allotment sizes to be created by subdivision of land in residential zones depending upon the locality of the land to be subdivided and the type of allotment created by the subdivision, namely:

(a) 700 square metres for land within zone 2(a) or 2(b) generally north of Mona Vale Road, Mona Vale and east of Chiltern Road, Ingleside;

(b) 550 square metres for each allotment with road frontage created by the subdivision of land within zone 2(a) or 2(b) generally south of Mona Vale Road, Ingleside and Mona Vale; and

(c) 660 square metres for each internal or hatchet shaped allotment created by the subdivision of land within zone 2(a) or 2(b) generally south of Mona Vale Road, Ingleside and Mona Vale: see clause 11 (2) and (3).

65 The first aim of the clause is, therefore, descriptive of the result the clause achieves by these means, namely, the variation in allotment sizes across Pittwater local government area depending on the locality of the land to be subdivided and the type of allotment created by the subdivision.

66 Viewed this way, granting consent to the proposed subdivision which creates allotments each of 514 square metres does not achieve the aim of the clause. The clause aims to restrict allotments of that size to land within zone 2(a) or 2(b) generally south of Mona Vale Road, Ingleside and Mona Vale (in fact, the clause sets a minimum size of 550 square metres). To create allotments of that size in the locality generally north of Mona Vale Road, Mona Vale and east of Chiltern Road, Ingleside, in which locality the minimum allotment size is 700 square metres (27% larger than the proposed 514 square metre allotments), is contrary to the planning aim.

67 The second stated aim of clause 11 is to “improve residential amenity”. The original SEPP 1 objection states that the proposed subdivision can reasonably accommodate two new dwellings, one on each of the two allotments to be created by the proposed subdivision, together with necessary associated spaces and car parking. It is said that such new dwellings can provide a high level of amenity to future occupants, without compromising the amenity enjoyed by adjoining owners. The original SEPP 1 objection contrasts this ultimate use of two dwellings on the site with the existing use of dwelling house, restaurant and retail use, and states that the proposed subdivision will result in a less intensive use of the site.

68 I am not satisfied by this ground for two reasons. First, the second aim of clause 11 is to “improve the residential amenity”. That aim is to be achieved, according to the clause, by having allotments of the size specified for the locality. Again, the aim is descriptive of the result achieved by the clause fixing varying allotment sizes depending on the locality of the land to be subdivided and the type of allotment created by the subdivision. For land within zone 2(a) or 2(b) generally north of Mona Vale Road, Mona Vale and east of Chiltern Road, Ingleside, the locality of relevance in this case, the planning policy embodied in the clause is that residential amenity will be improved by fixing a minimum allotment size of 700 square metres rather than the smaller allotment sizes considered to be appropriate for land in the other locality, being in zone 2(a) or 2(b) generally south of Mona Vale Road, Ingleside and Mona Vale.

69 Viewing the second aim this way, granting consent to the proposed subdivision which creates allotments each of 514 square metres does not achieve the second aim of the clause which is to afford to land within zone 2(a) or 2(b) generally north of Mona Vale Road, Mona Vale and east of Chiltein Road, Ingleside, the improved residential amenity that comes from having a minimum allotment size of 700 square metres, rather than the smaller allotment sizes fixed for land in the other locality, being in zone 2(a) or 2(b) generally south of Mona Vale Road, Ingleside and Mona Vale.

70 Secondly, the original SEPP 1 objection does not establish, as it would need to, that the proposed subdivision will result in the level or degree of improved residential amenity that would be afforded by allotments that complied with the minimum allotment size of 700 square metres. The original SEPP 1 objection asserts that the proposed allotments of 514 square metres could reasonably accommodate new dwellings which would provide a high level of amenity to future occupants, without compromising the amenity enjoyed by adjoining owners. This does not establish that this level of residential amenity for occupants or adjoining owners is equal to or better than the residential amenity to occupants or adjoining owners that would result from an allotment that conforms to the minimum allotment size of 700 square metres. Unless this is established, the applicant cannot discharge the onus of showing that the proposed subdivision achieves the second aim of the clause establishing the development standard to “improve residential amenity”.

71 The third stated aim of clause 11 is to “enhance the environment”. The original SEPP 1 objection states that each of the proposed allotments to be created by the proposed subdivision is capable of supporting a dwelling house to be constructed in a manner that responds to the site circumstances and characteristics. The proposed subdivision, it is stated, will not adversely impact the environment.

72 This ground is unpersuasive for three reasons.

73 First, the planning policy adopted by the clause is that the environment will be enhanced in relation to land within zone 2(a) or 2(b) generally north of Mona Vale Road, Mona Vale and east of Chiltern Road, Ingleside, by fixing a minimum allotment size of 700 square metres rather than the smaller allotment sizes fixed for land in the other locality, being in zone 2(a) or 2(b) generally south of Mona Vale Road, Ingleside and Mona Vale. Granting consent to allotments of 514 square metres does not achieve this third aim to enhance the environment by having a larger allotment size of 700 square metres for land in zone 2(a) or 2(b) generally north of Mona Vale Road, Mona Vale and east of Chiltern Road, Ingleside.

74 Secondly, the original SEPP 1 objection does not establish that the proposed subdivision will result in the level or degree of enhanced environment that would occur by allotments that complied with the minimum allotment size of 700 square metres.

75 Thirdly, it is not sufficient merely to point to an absence of environmental harm: see Gergely & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 411-412; Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 441; Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at 89; and Memel Holdings Pty Ltd v Pittwater Council [2001] NSWLEC 240 (17 October 2001) at [102].

76 In relation to each of the three stated aims in clause 11, nowhere does the original SEPP 1 objection assert that development that complies with the development standard would be unreasonable or unnecessary. Such a consideration is relevant in determining whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case: see Gergely and Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 411-412; Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 441-442; Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at 89 [26] and Design 23 Pty Ltd v Sutherland Shire Council (2003) 125 LGERA 380 at 387.

77 In this case, the existing allotment is 1,029 square metres. It is therefore not possible to subdivide the land into two allotments meeting the minimum allotment size of 700 square metres. Hence, the existing allotment would need to remain at 1,029 square metres. However, there is nothing unreasonable or unnecessary about the existing allotment remaining at that size. It imposes no restrictions on development for any permissible purpose, including for a dwelling house. Indeed, the size of the existing allotment may provide greater flexibility for design of and compliance with development standards and planning controls applicable to development of the land than if the existing allotment were subdivided into two allotments each of 514 square metres.

78 Similar to the position noted in Memel Holdings Pty Ltd v Pittwater Council (No. 3) [2001] NSWLEC 240 (17 October 2001) at [87], which concerned land in the neighbouring suburb of Palm Beach, the existing subdivision pattern in the Whale Beach area is generally settled with little opportunity for re-subdivision (except very large lots of which there seem to be none in the neighbouring area). Lot sizes in the immediate vicinity of the site, along The Strand, Surf Road (with one exception) and Whale Beach Road, are generally significantly larger than the prescribed minimum 700m2. Allotments with lot sizes smaller than 700m2 are removed from the site on the side and crest of the ridge above the site, along Morella Road and Bynya Road. These lots were created by the original residential subdivision in Whale Beach prior to the commencement of relevant planning controls on residential lot sizes. The existing allotment size of 1,129 m2 is consistent with the existing character; however, the proposed allotments of 514 m2 would not be consistent with the existing character of the locality.

79 If the SEPP 1 objection to compliance with the development standard in clause 11(2) were to be upheld for subdivision of this land on the grounds given in the original SEPP 1 objection, there would be little justification for not also upholding SEPP 1 objections to subdivision of land of similar size and nature in the locality. These grounds are of a general nature and would be applicable to many sites in the locality. They are not particular to the circumstances of this land. The ad hoc deviation from the development standard in this case on these grounds would, therefore, create an adverse planning precedent for similar action to be taken in relation to other such land. This would affect the integrity of the planning policy embodied by clause 11. This would not be an appropriate use of the dispensing power under SEPP 1: see Bowen v Willoughby City Council [2001] NSWLEC 274 (4 December 2001) at [112(ix)] and [113].

80 For these reasons, the original SEPP 1 objection has not established that each of the aims of the development standard would be achieved by the proposed subdivision notwithstanding non-compliance with the development standard in clause 11(2). Accordingly, I am not satisfied that the original SEPP 1 objection is well founded.

81 For completeness, I should note that the applicant has not sought to establish that compliance is unreasonable or unnecessary in the other ways that can, in appropriate circumstances, be available. It is not put that the underlying objective or purpose of the development standard in clause 11(2) is not relevant to the proposed subdivision; that the underlying objective or purpose would be defeated or thwarted if compliance was required; that the development standard has been abandoned or destroyed by the Council’s actions in granting consents departing from the standard; or that the zoning of the land as Residential 2(a) was unreasonable or inappropriate so as to make the development standard appropriate to that zone unreasonable or unnecessary as it applied to the land. In any event, I am not satisfied that compliance with the development standard in clause 11(2) would be unreasonable or unnecessary in any of these ways.

82 I am also not satisfied that the granting of consent to the proposed subdivision is consistent with the aims of SEPP 1 as set out in clause 3. For the reasons give above, the applicant has not discharged the onus of establishing that compliance with the development standard in clause 11(2) is unreasonable or unnecessary. Further, the applicant has not established that compliance would tend to hinder the attainment of the objects in 5(a)(i) or (ii) of the Act. The argument in the revised SEPP 1 objection that compliance with the development standard hinders the objects of the Act by preventing a change of use from a non-conforming use to a conforming use is erroneous for the reasons I have given earlier. Other than putting that argument, the applicant has not established that compliance would hinder attainment of the objects in 5(a)(i) and (ii) of the Act. Indeed, to the contrary, I find that granting consent would tend to hinder the attainment of the planning policy embodied in the development standard and hence the proper, coordinated and orderly development of land in the locality to which the development standard applies.

83 Finally, I am not satisfied that a consideration of the matters in clause 8(b) of SEPP 1 justifies the upholding of the SEPP 1 objection. There is public benefit in maintaining the planning controls adopted by clause 11.

84 In reality, the applicant in this case objects to compliance with the development standard in clause 11(2) because it prevents the applicant maximising the potential for development of the land for two dwelling houses, one on each allotment. The applicant’s approach has been to submit a planning justification upon an assumption that there is no development standard and to use that justification as the basis for its objection under SEPP 1. As held in Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 442, “this is to invert or reverse the reasoning process required under SEPP No. 1.”

Development consent should be refused

85 For these reasons, I am not satisfied that the objection under SEPP 1 should be upheld. As a consequence, the proposed subdivision cannot be approved. This conclusion makes it unnecessary to deal with the merits of the proposed subdivision. As I have earlier noted, upholding a SEPP 1 objection is a pre condition which must be satisfied before the proposed subdivision can be approved on a consideration of the merits.

86 It is also unnecessary to deal with the proposed demolition of the restaurant, kiosk and associated structure. The applicant only proposed that demolition contingent upon subdivision being granted so as to enable the subsequent development of two dwelling houses, one on each allotment. If the subdivision were not to be granted, the applicant may wish to maintain the restaurant, kiosk and associated structures in order to continue the existing use thereof.

87 Accordingly, development consent should be refused to the development application for the developments of both subdivision and demolition.

Orders

88 The Court orders:

1. The appeal is dismissed.
2. Development consent is refused to development application No. 278/06 for subdivision of Lot 66, DP 11067, known as 24 The Strand, Whale Beach and for demolition of the restaurant, kiosk and associated structures on that land.
3. The exhibits are to be returned.

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