Rodney Ernest Paull v Hawkesbury City Council [2004] NSWLEC 625

Land and Environment Court of New South Wales

CITATION : Rodney Ernest Paull v Hawkesbury City Council [2004] NSWLEC 625 APPLICANT: PARTIES : Rodney Ernest Paull RESPONDENT: Hawkesbury City Council FILE NUMBER(S) : 10730 of 2004 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Subdivision of land below 4 Ha standard LEGISLATION CITED: Hawkesbury Local Environmental Plan 1989, (LEP 1989) - State Environmental Planning Policy No 1, (SEPP1) CASES CITED: Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001 - Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported) - BP Australia Limited v Campbelltown City Council (1994) 83 LGERA 274 - Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75. DATES OF HEARING: 08/11/04 DATE OF JUDGMENT: 11/11/2004

APPLICANT: Dr S Berveling, barrister instructed by Mr R Paull, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Shaddick Baker & Paull RESPONDENT: Mr J A Cole, solicitor SOLICITORS:Abbott Tout

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

11 November 2004

10730 of 2004 - Rodney Ernest Paull v Hawkesbury City Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Hawkesbury City Council (the council) of an integrated development application to subdivide land at Lot B, DP 416222, being Nos 1027 and 1033 Grose Vale Road, Kurrajong. The application is integrated under Section 100b of the Rural Fires Act 1997. No General Terms of Approval, (GTAs) are available, however, by a proposed condition, subdivision may not take place until these are known. 2 The parties have reached agreement and seek a consent award. 3 I have concluded that the application should fail as the SEPP1 objection against the lot size standard of 4 hectares is not well founded. The land 4 The land is situated on the western side of Grose Vale Road about 1 km south of Kurrajong Village. The land is of an irregular trapezoidal shape with a frontage of about 140.8m to Grose Vale Road and a depth of about 120.7m, giving an area of some 1.212 hectares. The land falls from the west to the southeast. There is scattered vegetation on the land and the locality is characterised by single dwelling houses located on large rural allotments. The residential areas of Kurrajong are located about 450m to the northeast of the land. 5 Erected on the land are two separate dwelling houses, one of which, known as 'Curraweena', is listed as a heritage item under Schedule 1 of the Hawkesbury Local Environmental Plan 1989. After subdivision of the land one dwelling house would be located on each of the newly created allotments. Relevant planning controls Hawkesbury Local Environmental Plan 1989, (LEP 1989) 6 The land is zoned Rural 1(cl) (RURAL "Cl") under the provisions of the LEP1989 and the proposal is permissible with consent. However, the minimum allotment size in this zone under cl 11 of LEP1989 is 4 hectares. 7 Relevant development standards are: · Clause 11 - Rural Subdivision - general provisions. · Clause 9 - Carrying out development. · Clause 9A - Zone objectives. · Clause 17 - Rural workers' dwellings. · Clause 18 - Provision of water, sewerage etc. services. · Clause 27 - Heritage items. 8 Other planning controls include: · Hawkesbury Development Control Plan, (HDCP). · Hawkesbury Development Control Plan - Contaminated land policy. Part A - General Information; Part C - Chapter 5 - Bushfire Prone Land; Part D, Chapter 3 – Subdivision. · State Environmental Planning Policy No 1 - Development Standards (SEPP1). · Sydney Regional Environmental Plan No 20 Hawkesbury - Nepean River (No.2-1997), (SREP20) The proposal and its history 9 Development application No 0955/03 was lodged with the respondent council on 14 August 2003, to subdivide the land into two allotments with areas of 9,503m2 and 2,616m2. 10 One of the allotments would contain the original dwelling 'Curraweena'. 11 The application was supported by a SEPP1 objection to the development standard. State Environmental Planning Policy No 1 objection, (SEPP1) 12 Falson & Associates Pty Limited, Town Planners, filed a SEPP1 objection to the minium allotment area standard on behalf of the applicant: 1. Is the planning control a development standard? The planning control development standard objected to, is that contained within clause 11(2)(c) of Hawkesbury Local Environmental Plan 1989 . This clause requires a minimum of 4ha for each lot created within a Rural 1(c1) zone. This minimum area provision is a development standard falling within those defined in Section 4 of the Act. 2. What is the underlying object or purpose of the standard? There are no stated objectives for the minimum 4ha allotment size subdivision standards within the Rural 1(cl) zone. A clue to the underlying objectives can be found in the 1(c1) zone objectives as follows: (a) to primarily provide for a rural residential living style with "on site " collection of water and disposal of waste. (b) To maintain a subdivision pattern which permits the land to be subdivided for an urban use where such a use has been identified as being appropriate in the long term. (c) To ensure that development does not create unreasonable demands, in the present or in the future, for provision or extension of public amenities infrastructure. (d) To prevent the establishment of traffic generating development along main and arterial roads. (e) To ensure that development maintains the rural character of the locality and to minimise disturbance to the landscape through clearing, earthworks and access roads. Taking these zone objectives into account the underlying objectives of the development standard are considered to be, to maintain a rural/ residential living style with self-sufficiency of services whilst maintaining the existing rural character. 3. Is compliance with the standard consistent with the aims and objectives of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EP&A Act? Compliance with the standard is consistent with the aims of the Policy ie 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. If compliance with the development standard (minimum 4ha lot size) is maintained and the flexibility inbuilt into the Policy is not utilised in this case then the objects contained in Section 5(a)(i) and (ii) of the Act would be hindered. These objects are: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, and (ii) the promotion and co-ordination of the orderly and economic use and development of land. The objects would not be attained, as the underlying objectives of the standard are not met at present with the location of two dwellings on one rural/ residential allotment of land. Sound town planning dictates that rural/ residential allotments should not contain more than one dwelling. This might be contrasted with large rural land parcels where two or more dwellings might be located so as to assist in land management etc. In the subject case the two detached dwellings on a single allotment are an inconsistency in a rural/ residential land context. In contrast the location of the two dwellings and their relationship to each other are consistent with a rural/ residential style. They are fenced one from the other and have the appearance of single dwellings on single allotments. Their separation in title would make each separate lot contain a single dwelling and would result in consistency in rural/ residential living style in the locality. The subdivision is not one that will result in an additional "developable" lot. No further rural/ residential development will occur. Further the proposed lots are not inconsistent with the array of allotment sizes that already exist within the zone and in the locality. On site disposal of waste is currently carried out for each existing dwelling and this provision will remain or be enhanced by the proposal. The land has not been identified for any long-term urban use. No additional infrastructure is required from the existing facilities supplied to the land. Traffic will not alter as a result of the subdivision. The existing rural character of the locality will not be altered as a result of the subdivision that maintains existing rural/ residential dwellings in their current setting and recognises in title an existing physical separation of two existing dwellings. The current situation arises from Council listing the older dwelling house as a heritage item and over time granting consents to allow it being put to a variety of uses. The subdivision as proposed provides for an orderly and economic use of the land that recognises existing development and history over a period of time. 4. Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? The development standard is both unreasonable and unnecessary to apply in the circumstances of this case. This is due to the proposed allotments "existing" in a physical sense already if not in title. It is unreasonable and unnecessary to continue to apply the minimum subdivision standards in this case given that the proposed lots are already developed and given that separation of the existing dwellings in title will make each lot consistent with other rural/ residential lots in the locality that each contain only one dwelling. Consistency with the primary aim of the Rural 1(c1) zone will also result. The subdivision will also result in a positive outcome relative to the opportunities for conservation and maintenance of the heritage item that is one of the existing dwellings. 5. Is the objection well founded? In all of the circumstances indicated above the objection is believed to be well founded. There will be no adverse impact on existing rural/ residential amenity and there will be positive outcomes in that separate title will recognise the physical separation of the dwellings and their use whilst also recognising this separation in title. Compliance with the objects within section 5(a)(i) and (i) of the Act will not be attained by refusal of the application. Application of the Policy is the correct course of action in this case.