Land and Environment Court of New South Wales CITATION : Schulz Nursery Pty Ltd v Baulkham Hills Shire Council [2005] NSWLEC 98 APPLICANT Schulz Nursery Pty Ltd PARTIES : RESPONDENT Baulkham Hills Shire Council FILE NUMBER(S) : 11518 of 2004 CORAM: Hoffman C KEY ISSUES: Subdivision :- Below the minimum area required in the zone - consistency of application of the standard - reasons for the standard Baulkham Hills Local Environmental Plan 1991 Draft Baulkham Hills Local Environmental Plan 2003 State Environmental Planning Policy No. 1 LEGISLATION CITED: Development Control Plan No. 1 Environmental Planning and Assessment Act 1979 Interim Development Order 118 DATES OF HEARING: 25/02/2005 EX TEMPORE JUDGMENT DATE : 02/25/2005 APPLICANT Mr H Robilliard, solicitor SOLICITORS Robilliard Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr P Vergotis, solicitor SOLICITORS Mathews Folbigg JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 25 February 2005 11518 of 2004 Schulz Nursery Pty Ltd v Baulkham Hills Shire Council JUDGMENT 1 This is a class 1 appeal No. 11518 of 2004 between Schulz Nursery Pty Ltd and Baulkham Hills Shire Council in regard to a rural subdivision at Nos 217 - 219 Annangrove Road, Annangrove. 2 It was in the Rural 1(c) Zone under the Baulkham Hills Local Environmental Plan 1991. The existing lot was 3.2 ha overall, and the minimum area standard for subdivision was 2 ha and a minimum road frontage control of 60 m. 3 The proposal was for a new Lot 1 fronting Annangrove Road of 1.7 ha, and a new Lot 2 of 1.5 ha with frontage to Shoplands Road. 4 Lot 1 land had the existing hot house plant nursery and a paddock on it. Lot 2 had the existing house fronting Shoplands Road and also a paddock at the rear. The nursery had access and water supplies and utilities from Annangrove Road. The house had access and water supply and utilities from Shoplands Road. 5 Both frontages to the streets exceeded 98 m. The site was generally flat, the only slope being down about 4 to 5 m to Shoplands Road within the front setback of the proposed Lot 2. There were perimeter trees around the land including the street frontages but few trees in the central hectares. 6 The hearing was attended on behalf of the applicant by: - Mr H Robilliard of Robilliard Lawyers - Mrs Santoso representing the applicant - Ms J Grant, consultant town planner 7 Also the hearing was attended on behalf of the respondent by: - Mr P Vergotis of Mathews Folbigg, lawyers and - Ms A Howarth, senior subdivision planner for the council. 8 The statement of issues were as follows: The respondent says that the following issues arise to be determined in this appeal, namely that the application should be dismissed having regard to: 1.0 Whether the proposed development is contrary to ss 79C(1)(a)(i), 79C(1)(a)(ii), 79C(1)(a)(iii) and s 79C(1)(e) of the Environmental Planning and Assessment Act, 1979 (NSW) in that: Undersized allotments 1.1 the proposed development fails to comply with the Baulkham Hills Local Environmental Plan, 1991 ; 1.2 the proposed development fails to comply with the Draft Baulkham Hills Local Environmental Plan, 2003; 1.3 the proposed development fails to comply with the Respondent's Development Control Plan No.1 - Rural 1 (a), 1(b) and (c). SEPP 1 & Draft SEPP 1 objections 1.4 the proposed development fails to comply with State Environmental Planning Policy No.1 - Development Standards (SEPP 1) in that the applicant has not discharged its onus to demonstrate why discretion ought to be exercised in its favour to uphold an objection pursuant to cl 6 of SEPP 1 on the grounds that compliance with the development standards imposed by cl 12(1)(c) of .the Baulkham Hills Local Environmental Plan, 1991 and cl 16(1)(c) of the Draft Baulkham Hills Local Environmental Plan, 2003 are unreasonable and unnecessary in the circumstances of the case; 1.5 the proposed development fails to comply with State Environmental Planning Policy (Application of Development Standards) 2004 (Draft SEPP I') in that the applicant has not discharged its onus to demonstrate why discretion ought to be exercised in its favour to uphold an objection pursuant to cl 7 of Draft SEPP 1 on the grounds that compliance with the development standards imposed by cI12(1)(c) of the Baulkham Hills Local Environmental Plan, 1991 and cI16(1)(c) of the Draft Baulkham Hills Local Environmental Plan, 2003 should be departed from; and 1.6 The proposed development, if permitted would create an undesirable precedent in the locality which would undermine the intended future character of the locality as sought by the relevant planning instruments and the development control plans for land zoned Rural 1 (c). This would not be in the public interest. Particulars Undersized allotments (i) Clause 12(1)(c) of the Baulkham Hills Local Environmental Plan , 1991 prohibits land located within a Rural 1(c) zone to be subdivided into separate allotments which will each have an area size of less than 2 hectares; (ii) Clause 16(1)(c) of the Draft Baulkham Hills Local Environmental Plan, 2003 prohibits land located within a Rural 1(c) zone to be subdivided into separate allotments which will each have an area size of less than 2 hectares; (iii) Subclause 3.3 of the Respondent's Development Control Plan -Rural I(a), I(b) and I(c) requires land which is located within a Rural! 1(c) zone that is proposed to be subdivided into separate allotments to each have a road frontage of not less than 60 m and a minimum area size of not less than 2 hectares; SEPP 1 & Draft SEPP 1 (iv) The objection under SEPP 1 to the development standard prescribed by cl 12 of Baulkham Hills Local Environmental Plan, 1991 (the 'BHLEP') is not well founded and the granting of development consent would not be consistent with the aims of SEPP 1 in that: (a) The proposed subdivision having particular regard to the extent of the variations to the standard will be inconsistent with the aims and objectives of the BHLEP in cll 2(1)(e) and 2(2)(b) for the LEP being:- - "2(1)(e) to facilitate and encourage development which is compatible with the environmental amenity and heritage of the Shire;" - "2(2)(b) to protect areas from inappropriate development and ensure that local amenity is maintained and enhanced. " (b) the proposed subdivision having regard to the extent of the variation to the minimum area standards would tend to hinder the attainment of the objective in s 5(a)(ii) of the Environmental Planning and Assessment Act, 1979 NSW for: - "the encouragement of the promotion and coordination of the orderly and economic use and development of land." (v) The SEPP 1 objection if made under Draft SEPP 1 could not be upheld having regard to the extent of the variation to the minimum area standard in that two lots being proposed will have less than 90% the minimum area standard. One of the principal purposes of Draft SEPP 1 is to restrict the use of flexible planning mechanisms in rural, non-urban, environmental protection and water catchment zones. Public interest (vi) The approval of the proposed subdivision would have an adverse precedential effect in the Rural I(c) zone in that not only is the extent of the variations to the development standard objectionable but it would create a probability of further applications of a like kind and is therefore not in the public interest. 9 The issues could be summarised as: - the site was only 3.2 ha and - the proposal had Lot 1 as being 15% deficient in area and Lot 2 as being 25% deficient in area and - there would be a precedential effect for other properties seeking subdivision that did not comply with the 2 ha minimum in the Rural 1 (c) Zone. 10 The lack of other determinative issues was related to the respondent and its expert agreeing that one of the main State Environmental Planning Policy No. 1 (SEPP 1) tests could be complied with. That test was the question whether or not the objectives of the Zone 1(c) in the Local Environmental Plan 1991 could be achieved notwithstanding the non compliance with the minimum area. The objectives of the Zone 1(c) are: (a) To accommodate rural residential development that is sympathetic with the environment and minimises risks from natural hazards. (b) To provide for a range of activities which are compatible with the rural residential character of the locality, and (c) To ensure that development in the area does not unreasonably increase demand for public services and public facilities, and (d) To encourage the preservation of suitable areas for open space purposes. 11 So the remaining principle tests of an objection under SEPP 1 are: 1. Whether or not the inconsistency of application with Development Control Plan 1 (DCP 1) would threaten its power on similar applications. DCP 1 also asserted to minimum area of 2 ha and the same objectives as the Local Environmental Plan . 2. Whether such disturbance of the consistency of application of the 2 ha minimum area would be contrary to s 5 (a)(ii) of the Environmental Planning and Assessment Act 1979 , that is, the orderly and economic development of land in accordance with statutes and controls. 12 The respondent relied on a number of Case Law precedents to show that the 2 ha minimum had been consistently applied since it was first made a statute in 1977 under Interim Development Order 118. It seemed that the few lots under 2 ha in the locality were the result of road construction, or prior applications to the 2 ha minimum for subdivision, or the amalgamation of lots or boundary adjustments which actually enlarged existing substandard lots without bringing others below the minimum area. 13 A number of rural strategy studies by the Baulkham Hills Council since 1977 had not changed the 2 ha minimum over a period of nearly 30 years. The minimum area for subdivision was integral with the achievement of the existing rural amenity which included the separation of mixed rural agriculture, industrial, and residential uses such that they remained compatible, and such that the rural scenic quality was preserved. 14 The applicant put that the subdivision was not intended to change what existed. The house and nursery would remain. The applicant put that the planning outcomes of the proposal and its benefits would remain. They were: (a) The proposal is consistent with the objectives of the Rural 1(c) Zone (b) There is no specific objectives associated with cl 12(c) of the Baulkham Hills Local Environmental Plan 1991 (c) The proposed subdivision will not impact on environment as there is no change in the existing land uses or built form; (d) The proposed subdivision will not alter the range of activities undertaken on the site as the existing development is to be retained. (e) The rural residential character of the locality will not be altered because the property has two existing frontages and existing vehicular access arrangements will be retained. In this regard it is noted that the proposal will reduce the depth of the existing lot, rather than the width of street frontages, thereby maintaining the sense of space and separation between land uses; (f) There will be no increase in the demand for services as both parts of the property currently have town water, electricity and waste collection services and there is no increase in density proposed. (g) There are no environmental impacts associated with the proposed subdivision as there are no works proposed and all existing development is to be retained in its current form; (h) There is an existing caveat on the land providing security for Mr & Mrs Santoso in relation to the existing dwelling. The proposed subdivision will formalise this and provide legal tenure for an existing arrangement. (i) The proposal is not inconsistent with the existing subdivision pattern, where numerous examples of undersized lots can be identified; (j) The resultant lots are of a size and shape to accommodate a range of permissible land uses in the future. 15 In coming to a conclusion on this matter I was conscious that even if the subdivision itself did not change the existing uses or structures on the land, it must change the potential by creating two ownerships and, in theory, double the potential density of the land. 16 The applicant's own evidence showed that the flat nature of the land makes it highly capable of development for many of the permissible uses. There are few if any environmental or topographic constraints on the land to reduce this potential. 17 Looking at the overall control and statutes both numerical and performance criteria within the 1(c) zone, it is inescapable that in the long term doubling the density is contrary to the rural amenity currently achieved in the 1(c) zone. That amenity is achieved by combination of numeric and performance based criteria in the existing statutes and controls. 18 In a most recent Case Law of Stocklands v Manly, McClellan CJ stresses that a council policy expressed in statutes and development control plans that have been widely consulted with the community, and put into legislation and consistently applied should not be set aside without good reason. 19 A statutory minimum is even stronger legislation than a development control plan. It is my opinion that s 5(a)(ii) of Environment Planning and Assessment Act 1979 is determinative in this appeal. 20 The orderly development of land would be disturbed by this proposal because it is so unconstrained it would lend itself to doubling the potential created by its subdivision, and create a pocket of land of substantially undersized allotments that would not fit the amenity established in the Rural 1(c) zone. That rural residential amenity and scenic quality is intended to be maintained in the future as set down in the exhibited draft Baulkham Hills Local Environmental Plan 2003. 21 Therefore the orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties except Exhibits 6, 10, 11, 12, A, B and C. _________________ K G Hoffman Commissioner of the Court rjs/ljr 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.