Land and Environment Court of New South Wales CITATION : Hill v Blacktown City Council [2007] NSWLEC 108 APPLICANT William Hill PARTIES : RESPONDENT Blacktown City Council FILE NUMBER(S) : 10838 of 2006 CORAM: Bly C KEY ISSUES: Development Application :- Dwelling house, minimum lot size, growth centres policy, environmental conservation, aims and objectives, concurrence Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy (Sydney Region Growth Centres) 2006 Blacktown Local Environmental Plan 1988 Land and Environment Court Act 1979 CASES CITED: Winten Property Group Pty Ltd v North Sydney Council [2001] NSWLEC 4 DATES OF HEARING: 19/12/2006 DATE OF JUDGMENT: 8 March 2007 APPLICANT Mr A Bisits, solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr T O'Connor, solicitor SOLICITORS Houston Dearn O'Connor JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 8 March 2007 10838 of 2006 William Hill v Blacktown City Council JUDGMENT Introduction The appeal 1 This appeal relates to Development Application No. 04-424, which is for the construction of a single storey detached dwelling at 93 Barton Street, Marsden Park. The site 2 The site comprises Lots 29, 30, 31 and 32, s 6, DP 1146. Each of the four lots has a frontage of 10.06 m to Barton Street and together the four lots have an area of 1, 618.8 sq m. 3 Existing on the site is a detached dwelling house with various outbuildings. Reticulated water and sewerage services are not available. The locality 4 According to the Statement of Basic Facts (as revised by the applicant) this part of Marsden Park comprises vacant bushland lots and some parcels of a rural nature. There are three or four detached dwellings in the vicinity of the site. The bush land generally surrounding the site is highly degraded as a result of clearing, soil removal, rubbish dumping and bushfires. 5 This area was subdivided in the 1980's creating the present road and subdivision pattern. The majority of lots in the area are the same size and shape as those comprising the subject site. Advertising and council's decision 6 The application was advertised to adjoining landowners and no submissions were received. 7 By Notice of Determination dated 13 June 2005 the council refused the development application for reasons involving the unsatisfactory nature of the objection under SEPP 1; the creation of an adverse precedent in relation to scheduled lands; and aspects of solar access. 8 A review under s 82A of the Environmental Planning and Assessment Act 1979 (" the EPA Act") was similarly unsuccessful. Planning controls State Environmental Planning Policy (Sydney Region Growth Centres) 9 The site is subject to State Environmental Planning Policy (Sydney Region Growth Centres) 2006 ("the Growth Centres Policy" and "the policy"), despite the fact that the development application was lodged in February 2004 prior to its gazettal in July 2006. The policy includes the site in the Environment Conservation Zone that has the following objectives: (a) To protect and restore areas of special ecological, scientific or aesthetic values, (b) To conserve biological diversity, native vegetation corridors, aboriginal heritage or cultural values of the land, and its scenic qualities. 10 The land use table in cl 12 of the Growth Centres Policy identifies certain land uses that are permitted with consent and without consent and because dwelling houses are not included in either of these categories they therefore fall within the prohibited category. 11 Despite this prohibition, Pt 3, cl 14 provides that: (1) Despite anything to the contrary in this Part, the consent authority may grant consent to the carrying out of development on land zoned under this Part that is not otherwise permitted by this Part if: (a) the development is of a kind that could be carried out on the land under an applicable environmental planning instrument immediately before the commencement of this Policy, and (b) the relevant public authority referred to in cl 15 that may be required to acquire the land grants concurrence to the proposed development, and the development is consistent with the aims of this Policy. (2) In deciding whether to grant concurrence to proposed development under this clause, the relevant public authority must take the following matters into consideration: (a) the need to carry out development on the land for the purposes for which the land is zoned under this Part, (b) the imminence of acquisition of the land by the public authority, (c) the likely additional cost to the public authority resulting from the carrying out of the proposed development. Marsden Park Scheduled Lands 12 Within the Environment Conservation Zone there is an area referred to as the Marsden Park Scheduled Lands (which includes the subject land). According to the Growth Centres Fact Sheet ("the fact sheet") these lands cover around 180 ha and contain more than 4,000 small allotments created as a paper subdivision. The NSW Government and Blacktown City Council own a significant number of these small lots. 13 About half of the total area of these lands is flood affected, with the majority covered in Cumberland Plain vegetation of varying significance. The properties included in the Environment Conservation Zone are those with the highest ecological value. 14 The fact sheet explains that a scheme of voluntary land swapping will bring land within the Environment Conservation Zone into public ownership. This will involve the exchange of government owned land outside the zone for land within the zone. These arrangements have not yet been formalised and hence would not be available to this applicant. Blacktown Local Environmental Plan 1988 15 Under the Blacktown Local Environmental Plan 1988 ("the LEP") the site is zoned 1(a) General Rural. The objectives of the 1(a) zone deal with: the protection of agricultural lands; the minimisation of risks from natural hazards; and the provision of urban support functions. It was suggested that objective (d) is of some relevance to this application: To ensure that development within the rural zones does not hinder the proper and orderly development of any future urban lands 16 However, because the land is included in the Environment Conservation Zone, which zone does not provide for urban development, the proposal cannot be said to be inconsistent with this objective. Nevertheless it is still appropriate to consider the proper and orderly development of the zone. 17 Relevant to cl 14(1)(a) of the Growth Centres Policy, cl 12(3) of the LEP permits the erection of a dwelling house provided the site has an area of not less than 10 ha. In response to this requirement, the applicant submitted an objection under State Environmental Planning Policy No. 1- Development Standards ("SEPP 1" and "the objection") together with the development application, seeking to overcome the site's area deficiency. 18 It was submitted on behalf of the applicant, that in relation to a development application under cl 14(1) of the Growth Centres Policy, the SEPP 1 objection is superfluous. This is because the test of whether it "could be carried out" in cl 14(1)(a) is simply met by cl 12(3) of the LEP. Hence a development application can be made under cl 14(1) and considered without further reference to the LEP. 19 Also relevant is cl 8(2) of the Growth Centres Policy that provides, in effect, that land zoned under the policy is not subject to the provisions of any other environmental planning instrument applying to the land. Being an environmental planning instrument the LEP is thus excluded from consideration. In case these interpretations are wrong the applicant invited me to consider and uphold the SEPP 1 objection. 20 On behalf of the respondent council it was submitted that an SEPP 1 objection continued to be required notwithstanding cl 8(2) of the Growth Centres Policy. It was also submitted, relying on the evidence of Mr Apps, that the SEPP 1 objection should not be upheld. 21 In my opinion the interpretation of cl 14(1)(a) as submitted on behalf of the applicant is correct and that as a consequence the application can be approved and development consent granted without the need for an SEPP 1 objection. However in case I am wrong I will nevertheless consider the objection. The SEPP 1 objection 22 The SEPP 1 objection applies the tests in Winten Property Group Pty Ltd v North Sydney Council [2001] NSWLEC 4 and acknowledges that the 10-ha requirement in cl 12(3) of the LEP is a development standard. In the absence of specifically identified objectives associated with the standard, the objection suggests that guidance can be obtained from the objectives of the 1(a) zone. These objectives deal with agriculturally productive land; natural hazards; public services; urban support functions; and as referred to above the development of future urban lands. 23 In relation to agriculturally productive land the objection notes that the subject land has not and is highly unlikely to be used for agricultural production. As for bushfire and flooding hazards neither of these exist in respect of the subject land. Being already serviced with a good rural road, electricity, a nearby bus service and local shops and taking into account that sewage can be treated on site, any additional demand for public services is unlikely to be of concern, taking also into account that a dwelling house already exists on the site. The objective involving urban support functions simply does not apply. 24 As for the objective requiring that development not hinder the proper and orderly development of any future urban lands, the objection argues that this aspect has been resolved by the inclusion of the subject land in the proposed North West Growth Centre (the Growth Centres Policy). 25 The objection also considers assumed objectives regarding the ability of the site to accommodate a dwelling house as well as subdivision pattern, character, streetscape and residential amenity. Again taking into account that there has been a dwelling house on the land for over 50 years these matters raise no concern. 26 The objection concludes that the rebuilding of the existing dwelling on the land meets the underlying object/purpose of the development standard and that strict compliance with the development standard would be unreasonable or unnecessary. The development would continue the orderly, economic use and development of the land hence, in the circumstances of the case, the objection is considered to be well founded and should be upheld. The issues 27 The council's Statement of Issues raises the following matters: o Whether the proposed development satisfies the minimum 10-ha land size requirement in cl 12(3) of the LEP. o Whether the proposed development would comply with the requirements of the growth centres policy particularly with regard to the aims of the policy involving sustainability of land having conservation value, protecting and enhancing land with natural value and the conservation of biodiversity. o Whether the proposed development would meet objective (a) in the table to cl 10 of the Environmental Conservation Zone in the Growth Centres Policy. Concurrence requirement 28 As referred to in cl 14(1)(b) above the concurrence of the relevant public authority is required for any application under this clause. The relevant concurrence authority is, according to cl 15(b) of the Growth Centres Policy is the Growth Centres Commission whose power is vested in the Minister for Planning. I am advised and accept, on the basis of the evidence of Mr P Lee of the Department of Planning ("the Department") and that department's letter dated14 December 2006 that it is the relevant public authority for concurrence purposes pursuant to cl 15 of the policy. 29 In relation to the development application the department advised that: Given that the application is within an area identified as "Environment Conservation" under the SEPP the long-term objectives of the zone will be compromised by allowing new and/or replacement dwellings. And: The Department has agreed to have lands they own in the Scheduled Lands area of Marsden Park to be investigated for a "land swap" scheme. This is currently the subject of investigation and negotiation with the Growth Centres Commission. It is not the Department's intention to acquire any land in this location at present. And: The Department is concerned that if the application were to be approved it would increase the potential cost of the property in the event that it were to be acquired by the Department in the future. 30 For these reasons the department advised that it cannot grant concurrence to the application. However should the Court uphold the application the department requests that as a condition of consent and taking into account that land acquisition is not imminent, the following condition should be imposed: The landowner enter into a Deed of Release with the Department prohibiting the landowner and their successors in title from claiming compensation for the works associated with the D/A prior to the issue of a construction certificate. The evidence 31 On behalf of the respondent council Mr G. Apps provided expert town planning evidence. On behalf of the applicant expert evidence was provided by Dr T. Hawkeswood an environmental scientist. Dr Hawkeswood's evidence 32 According to Dr Hawkeswood, his inspection of the site and the immediately surrounding area enabled him to conclude that it does not have special ecological, scientific or aesthetic importance. It is highly degraded and dissected by roads and has no special aesthetics. The habitat is highly degraded with a few common bird species, low plant biodiversity and thus of no ecological importance. More generally the plant community is common. He noted that there are much better and larger stands of this threatened plant/ecological community in the nearby Air Services site as well as the adjacent ADI site. Also the lands surrounding the site have been cleared and fired many times in the past resulting in the forest having a low biodiversity and being in its present disclimactic situation. 33 Dr Hawkeswood also explained that if the area around the applicant's property were to be restored/revegetated, the erection of a new dwelling would not affect the restoration process provided there were no escape of contaminants into the adjoining would land. Mr Apps' evidence 34 Mr Apps explained that a search of aerial photographs revealed that the existing dwelling on the site must have been erected between 1955 and 1961. However a search of council's records did not reveal any approval for this and 3 or 4 other dwellings in the locality. The subject dwelling was purchased by the present owner in 1978. 35 In relation to the 10 ha requirement in cl 12 of the LEP Mr Apps accepted that this was a development standard that could be varied subject to an appropriate objection under SEPP 1. In considering the objection he rejected the approach therein that relied on the fact that the subject land has been used for exactly the same purpose (i.e. a dwelling house) for many years. Instead he said that although the development standard reads as a density control its more important function is to prevent development within the Scheduled Lands that is not likely to be sustainable. The Scheduled Lands comprise a vast number of small lots held in small parcels of a similar size to the subject parcel. Hence precedent is a concern. 36 In this same context Mr Apps was concerned that the applicant is seeking to legitimise the residential use of this land, comprising a dwelling house that has been erected without consideration of its impacts, with a new residence and the use of SEPP 1 to achieve this is inappropriate. 37 In relation to the Environment Conservation Zone Mr Apps noted the zone objectives in relation to the protection of the ecology and the conservation of biological diversity contending that these objectives not only involved protection but also restoration. Residential development in such areas results in fragmentation which is contrary to the objectives. Approval of this proposal could result in the 3 or 4 other unapproved dwellings in the locality also remaining and adding to the impact. Court's consideration 38 As I have already decided, the test in cl 14(1)(a) of the Growth Centres Policy of whether the proposed development could be carried out under the LEP is satisfied by the proposal. 39 The test in cl 14(1)(c) requires that the development be consistent with the aims of the policy. In this regard I was referred particularly to the aims in cl 2(e), (h) and (i) which deal relevantly with the sustainability, protection and enhancement of land that has conservation value and the conservation of biodiversity. These aims essentially point to the provision of land use and development controls which are to be found in the body of the instrument, including the land use provisions in Pt 3. Plainly the objectives of the Environment Conservation Zone and the other provisions of cl 14 are relevant here. 40 Whilst the fact sheet indicates that the properties of the Environment Conservation Zone are those with the highest ecological value, I accept the evidence of Dr Hawkeswood that the site and its immediate environs has little or no significance given that it is highly degraded. In addition I accept that the construction of a house on the site subject to appropriate conditions, including site rehabilitation would be of some benefit to the surrounding lands especially by comparison with the present situation. As Dr Hawkeswood explained, the construction of a house is not necessarily antipathetic to the restoration of the Cumberland Plain Woodland communities. 41 Taking these matters into account I do not find the proposed dwelling house, subject to appropriate conditions involving the rehabilitation of the site, to be inconsistent with the aims of the policy and the objectives of the Environment Conservation Zone. I have reached this conclusion notwithstanding that the proposal would not restore the site and its immediate environs to its previous natural condition. On this basis I find the test in cl 14(1)(c) of the policy to be satisfied. 42 In relation to the concurrence requirement in cl 14(1)(b) of the Growth Centres Policy, the Department of Planning has advised (see above) that, in the circumstances it cannot grant concurrence to the application. Notwithstanding this s 39 (6) of the Land and Environment Court Act 1979 enables the Court to determine the appeal whether or not this concurrence has been granted. 43 Clause 14(2) of the Policy sets out the matters for consideration in deciding whether or not to grant concurrence and it is appropriate for the Court to address these. The first matter raises the question of the need to carry out development on the land for the purpose for which the land is zoned. The Department's advice in this regard is that the long-term of objectives of the zone will be compromised by allowing new and/or replacement dwellings. 44 It is plain that the ecological and biological objectives of the zone insofar as they apply to the subject land cannot be achieved until the existing residential use ceases. It is also likely that the existing residential use will not cease until such time as the land has been acquired and acquisition is unlikely to occur in the foreseeable future given the advice of the Department. More particularly and in relation to the second matter in cl 14(2), it is clear, given that the land swap scheme has not been effected, acquisition of land in this location is not imminent. 45 In relation to the third matter the Department is concerned that if the application were to be approved it would increase the potential cost of the property in the event that it were to be acquired. This is an important public interest consideration and I agree that if development consent was given and if that resulted in the future cost of acquisition of the land being increased beyond the likely cost at the relevant date, then consent should not be granted. 46 Hence, if there is no additional cost for the Department in acquiring the land (at some time in the future) if it has been developed with a new house, then the existence of such a house on the site should make no difference. As to when the objectives of the zone can be progressed further, this is largely a matter for the Department following acquisition, although conditions of consent involving site rehabilitation can and should assist. On this basis I agree that the condition recommended by the Department should be imposed although the condition needs to be modified so as to provide an allowance for the existing house. 47 In these circumstances I have decided that the concurrence requirements of the Growth Centres Policy are met and the Department's decision under delegation is no impediment to the granting of development consent. 48 More generally and the notwithstanding the likelihood that the existing dwelling house was erected without development consent, I understand that the applicant has been paying council rates for many years, and council's records recognise that the land has been improved with a dwelling house. Some weight can be given in favour of the applicant to these circumstances and recognising that the house has been in existence for more than 40 years and occupied by the present owners since 1978 I accept that some weight can be given to the application on the basis it being for a replacement dwelling house. 49 It was suggested that approval of this development application would constitute an inappropriate precedent. Having concluded as I have that the proposal in itself is unobjectionable it is appropriate to consider whether there is resultantly a potential for other similar approvals which when considered together might have adverse consequences. 50 As I have been advised there are 3 or 4 the dwellings in the locality having somewhat similar circumstances to the existing dwelling house on the site. I do not know whether on their merits an approval would be likely to be given for the replacement of these dwellings if such applications were lodged or even if their circumstances would be essentially the same as those involved in this case. However if these dwellings were to be replaced in circumstances where the site is to be improved and there is no financial disadvantage to the community I do not accept that this would be indicative of an unsatisfactory outcome sufficient to reject the proposal on the basis of an inappropriate precedent. 51 Finally I am satisfied that, taking into account the applicant's circumstances and rights under the planning controls, an appropriately conditioned proposal would not unreasonably hinder the proper and orderly development of the Environment Conservation Zone. I am also satisfied that, even though the site is smaller than would otherwise be required in the 1(a) zone this is not an a sufficient reason to refuse the application taking into account the SEPP 1 objection which I have decided should, for the reasons contained therein, be upheld. Conditions 52 The applicant opposed the above-mentioned condition that is sought to be imposed by the Department requiring a deed of release to prevent the landowner from claiming compensation for the works associated with the development application. This is because the condition makes no allowance for the value of the existing improvements on the site. I agree with the submission and have decided to impose the following condition essentially as sought by the applicant: The landowner enter into a deed of release with the Department of Planning prohibiting the landowner and their successors in title from claiming compensation for the works associated with this development consent prior to the issue of a construction certificate, to the extent that the works increase the value of the land and its improvements over and above its present value . 53 Without a condition to this effect I would have refused the application taking into account the long-term future of this land on the basis of the purpose of the Environment Conservation Zone under the Growth Centres Policy. In my opinion allowing the erection of a new house on this site, subject to this condition provides a suitable balance between the public interest and the not unreasonable wishes of the applicant and would not be contrary to the object of the Environmental Planning and Assessment Act 1979 involving the orderly and economic use of land. 54 Clearly the applicant will have to carefully consider the conditions' consequences before proceeding to demolish the existing house and building a new one. 55 The applicant also objected to Condition 39 that requires the consolidation of the 4 lots into one title but I agree with the respondent that this is an appropriate condition. 56 I understand that there was no objection to the remainder of the proposed conditions including additional Conditions 4A and 4B, which deal with sewage treatment and landscaping. Orders 57 The orders of the Court are therefore: 1. The appeal is upheld. 2. Development Application No. 04-424, for the construction of a single storey detached dwelling at 93 Barton Street, Marsden Park, is determined by the granting of development consent subject to the conditions in Annexure 'A' hereto. 3. Exhibit H is retained. ___________________ T A Bly Commissioner of the Court rjs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.