Zimmerman v Wollondilly Shire Council [2004] NSWLEC 576

Land and Environment Court of New South Wales

CITATION : Zimmerman v Wollondilly Shire Council [2004] NSWLEC 576 APPLICANT Ron S Zimmerman PARTIES : RESPONDENT Wollondilly Shire Council FILE NUMBER(S) : 10763 of 2004 CORAM: Murrell C KEY ISSUES: Development Application :- Subdivision of land Environmental Planning and Assessment Act LEGISLATION CITED: State Environmental Planning Policy No. 1 Wollondilly Local Environmental Plan 1991 CASES CITED: Winton v North Sydney Council; Golden v The Minister for Transport DATES OF HEARING: 13/09/2004 EX TEMPORE 09/13/2004 JUDGMENT DATE :

APPLICANT Mr R Creighton, agent

LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Murrell C

13 September 2004

10763 of 2004 Ron S Zimmerman -v- Wollondilly Shire Council

JUDGMENT 1 This is a verbal judgment for an on-site hearing of an appeal under s. 97 of the Environmental Planning and Assessment Act against the council's refusal of the development application to subdivide the land is known as 195 East Parade, Buxton Village. The land is currently a 1.878 ha parcel and it is proposed that there be two lots created with a battleaxe serving the rear lot, rather a right of way contained within the area of the rear allotment. Both lots would then have an area of approximately 0.93 ha per lot. 2 This is a case where applicants come to the Court with a proposal which they consider would make no difference in terms of the overall general area if there was an additional parcel of land and an additional dwelling. The Court has gone to great lengths today to understand and explain the intent of the planning instruments. For this particular application a 40 ha minimum subdivision size exists as the area is zoned 1(a1) under the Wollondilly Local Environmental Plan 1991. It is noted that there are two other rural agricultural zones, that require 16 ha minimum and the other a 100 ha minimum. 3 The land to the south of the subject site is within an area that requires the amalgamation of lots in order to achieve a 4000 m sq. parcel that would allow a dwelling house. It is noted that there are a number of paper subdivisions in this particular area and council has brought in a provision to ensure that dwellings are not erected on each allotment of land. It is also noted in the area to the north there is one parcel that contains a primary school and there have been some seven dwellings erected to the rear of the school on parcels of approximately 1 ha each. 4 In the old orchard area there are other parcels below the minimum size. However, this subdivision was created in December 1985 with allotments of approximately 2 ha each. 5 To the north of the subject lot there are three similar size lots, ranging from 1.6 ha approximately. The applicant is desirous of subdividing the subject land and he maintains that it is no longer used for agricultural purposes. An aim of the plan or objective of the zone is to maintain agricultural holdings. 6 The State Environmental Planning Policy No. 1 objection to vary the minimum allotment size from 40 ha to approximately 0.93 ha per lot is a threshold question. In other words it is a question that must be answered prior to looking at the merits of the application. State Environmental Planning Policy No. 1 is a policy that allows for flexibility in the application of development standards. Mr Seton has taken me to the judgment of Winton v North Sydney. This is a judgment of his Honour Lloyd J, where a number of steps are set out in terms as to how one must look at a SEPP 1 objection. Firstly it is agreed that the 40 ha minimum is a development standard, one must then look at what the underlying objectives or purposes of that development standard are and these do not necessarily equate to the objectives of the zone although at times the objectives of the zone may provide some guidance as to the purpose of the minimum allotment size. 7 There was a slight difference of opinion as to what the underlying objectives are for the 40 ha standard. Mr Smith is of the opinion that the standard is there to ensure that there is not subdivision that would create agricultural holdings smaller than those of a viable economic nature. In his opinion it is also: the character of the area in terms of the rural character of the area, agricultural character of the area, that is sought to be maintained by the minimum; as well as ensuring that there is not premature subdivision or ad hoc subdivisions in terms of the overall future development or economic development of the land. Mr Boers addressed the purpose of the standard in terms of the objectives of the zone. 8 At this point it is probably relevant to point out that the objectives of the zone are to: a. protect the agricultural potential and prevent fragmentation.