Land and Environment Court of New South Wales CITATION : Miles v Armidale Dumaresq Council [2006] NSWLEC 360 APPLICANTS Peter John Miles and PARTIES : Annette Rosalind Miles RESPONDENT Armidale Dumaresq Council FILE NUMBER(S) : 10008 of 2006 CORAM: Bly C KEY ISSUES: Development Application :- Two lot subdivision, precedent, rural residential study, draft local environmental plan Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 1 - Development Standards LEGISLATION CITED: Dumaresq Local Environmental Plan No. 1 Dumaresq Local Environmental Plan No. 14 Draft Armidale Dumaresq Local Environmental Plan 2006 DATES OF HEARING: 26/06/2006 DATE OF JUDGMENT: 07/14/2006 APPLICANT Mr B Bilinski, solicitor SOLICITORS B Bilinski & Company LEGAL REPRESENTATIVES: RESPONDENT Ms M Hawley, solicitor SOLICITORS Lindsay Taylor Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 14 July 2006 10008 of 2006 Peter John Miles and Annette Rosalind Miles v Armidale Dumaresq Council JUDGMENT Introduction 1 This appeal relates to Development Application No. 0405/0032 which is for the subdivision of Lot 32 DP 248682 into two lots. Lot 32 is known as 178 Andersons Road and has an area of 11.94 ha. It is divided by Andersons Road into two portions having areas of 6.2 ha and 5.7 ha and it is these parcels of land that are to become the new lots. There is a dwelling house on the proposed eastern lot. 2 The site is situated to the southeast; about 15 minutes drive from Armidale. It is one of 13 lots in Andersons Road. These lots range in area between 2.5 ha and 16 ha. Relevantly there are three close by lots having areas of less than 4 ha. Other lots the locality have areas generally between about 2 ha and 40 ha. 3 The site, much like surrounding land is has been cleared of trees and is utilised for low intensity livestock production. Each of the two proposed lots will have a frontage to the river known as Commissioners Waters. Statutory provisions 4 The site and surrounding lands are zoned 1(c) Rural (Small Holdings) under Dumaresq Local Environmental Plan No. 1 ("the LEP"). Relevant to this application the applicable LEP objective in s 4(1) is: (d) To provide for a variety of small rural allotments without restricting the growth of the City of Armidale or the viability of agricultural pursuits. 5 The objective of the 1(c) zone is: To retain prime agricultural land while making provision for rural-residential development in appropriate locations. 6 Clause 10(5) of the LEP deals with the subdivision of land generally within the rural zones allowing, in certain circumstances, the creation of allotments with areas less than 200 ha but not less than 2 ha. The particular circumstances in subcl (5) include matters such as the specialised nature of the intended agricultural use and agricultural viability, water supply, vehicular access and amenity. The subject land does not meet these particular requirements. 7 Clause 11 of the LEP deals with rural-residential subdivisions in the 1(c) zone and provides in subcl (3) that, notwithstanding the provisions of cl 10 allotments can be created having areas of less than 40 ha but not less than 1.2 ha. Also, subcl (4) imposes a number of additional requirements such as the size of the land, the number of new lots, and range of lot sizes and land capability. 8 On 19 March 1997 the LEP was amended by Dumaresq Local Environmental Plan No. 14 ("LEP 14") by the introduction into cl 11 of a new subcl (7) that prohibits subdivision if the application is made after the commencement of the amendment. Clause 2 states that the aim of LEP 14 is to prevent subdivision of land in the 1(c) zone pending the preparation of a proposed local environmental plan arising from the Armidale-Dumaresq Joint Planning Study. 9 Because cl 11 is now no longer available and as a result of the proposal's non-compliance with the development standard in cl 10 of the LEP the applicant submitted with the development application an objection under State Environmental Planning Policy No. 1 - Development Standards ("the SEPP 1 objection"). 10 As anticipated by cl 11(7) of the LEP the Armidale Dumaresq Rural Residential Study ("the study") was undertaken so as to provide a basis for future rural residential areas within the local government area. It was completed in November 2004 and identified three areas for rural fringe development, such areas being located immediately adjoining the urban areas of Armidale. These areas do not include Andersons Road, which is instead identified as being for housing on vacant lots. 11 The draft consolidating Armidale Dumaresq Local Environmental Plan 2006 ("the draft LEP") has since been prepared, advertised, adopted by the council and submitted to the Department of Planning ("the Department"). 12 The draft LEP reflects the recommendations of the study and relevantly includes Andersons Road in the 1(b) Rural Living zone which, according to cl 15(7)(e) has a minimum subdivision lot size of 40 ha. Clause 15(7)(f) permits the creation of lots as small as 2 ha subject to a number of particular requirements including use for intensive agriculture which requirements are not satisfied by the proposal. Also, consistent with the recommendations of the study the three areas identified for rural fringe development are included in the 1(c) Rural Fringe zone. In this zone in certain identified areas, land can be subdivided down to 1 ha if reticulated water and sewerage are available and 2 ha if sewerage is not available. Advertising and council's decision 13 The application was notified to adjoining property owners resulting in two submissions objecting to the proposal being received. 14 On 14 January 2005 the application was refused essentially because the proposed subdivision: - Would not comply with cl 10(4)(d) of Dumaresq Local Environmental Plan No. 1, which requires a minimum lot size of 40 ha. - Is difficult to justify given the amount of vacant holdings and individual lots that already exist in the locality, which are less than 40 ha. - Is not considered to be in the public interest. Expert evidence 15 Expert town planning evidence was given behalf of the respondent council by Mr A Hallman and on behalf of the applicant by Mr P. Robertson. The issues 16 The statement of issues identifies the following matters: - The SEPP 1 objection is not well founded and should not be upheld; - Approval of the application would set an undesirable precedent; - The subdivision is unacceptable having regard to the fragmentation of land and adverse traffic impacts on Andersons Road; - The subdivision is not necessary to ensure effective management of the site. 17 Notwithstanding the statement of issues the principal issue in the case involves whether the subdivision would be inconsistent with the study and the draft LEP and whether, if it were approved it would establish an undesirable precedent. The study and the draft LEP 18 Section 79C of the Environmental Planning and Assessment Act 1979 requires that consent authority is to take into consideration matters relevant to the application including any draft environmental planning instrument that has been placed on public exhibition. The draft LEP is one such instrument that has not only been advertised but has also been forwarded to the department for finalisation by the Minister for Planning. 19 Section 79C also requires that the public interest be considered and in this context, and in the absence of any fundamental criticism of it I would here include the study which, in its preparation, has been the subject of extensive consultation and can be considered to be well founded. In these circumstances the draft LEP, particularly in relation to rural residential development, can be considered to have acquired a high degree of certainty and imminence and should thus be given significant weight. The SEPP 1 objection 20 The SEPP 1 objection argues that the lands surrounding Andersons Road comprise an existing rural residential estate with a clearly established community and because the proposal does not affect lands outside that community there will be no impact on the growth of Armidale itself. Taking this into account together with the likelihood that the subdivision would facilitate a more effective use of that part of land on the west side of Andersons Road, this indicates that this is an appropriate location for rural residential development. Subdivision would thus be consistent with the aims and objectives of the LEP. The objection also emphasises the difficulty for future development of the land given its dissection by Andersons Road, which means that the property is difficult to manage efficiently as a rural smallholding. It notes that the proposed lots would have areas of 6.2 ha and 5.7 ha by comparison with the average lot size in the Andersons Road estate of 8.4 ha. Also there are three lots in close proximity to the site that have areas less than 4 ha. 21 It is also argued in the SEPP 1 objection that the land has adequate public utility services; is not flood prone; is class 4 agricultural land; can accommodate domestic water supply and on-site disposal of sewerage; traffic generation will be within existing capacity; and there is no bushfire risk. Finally the proposed subdivision would be consistent with the aims and objectives of SEPP 1 because it would allow the owners to better use and develop the land in an orderly and economic way. 22 Mr Robertson supported the SEPP 1 objection. It was his opinion that the underlying objective of the development standard is to prevent small lot rural residential development until such time as a new local environmental plan identifies appropriate locations. Despite this, the application of this objective was inappropriate, unnecessary and unreasonable in the circumstances, taking into account that the land is already effectively subdivided by Andersons Road. 23 Mr Hallman did not agree, explaining that the SEPP 1 objection is not well founded because it would undermine the objective of the development standard which seeks to prevent rural residential development other than in appropriate locations. Such locations have now been identified by the study and the draft LEP and exclude the subject site. In this context he also expressed concern that the upholding of the SEPP 1 objection would encourage similar applications within the 1(c) zone, where such applications would undermine the underlying objective of cl 11(7) of the LEP which is, in part, to ensure that rural residential subdivisions only occur in appropriate locations. The study and the draft LEP clearly reveal Andersons Road to be an inappropriate location for further rural residential development at this time. Precedent 24 Mr Hallman also explained that in the present 1(c) zone and outside the areas identified in the study for rural residential development, there are approximately 90 lots, which are dissected by a road, lake, river, stream or railway line. The approval of this application could potentially result in similar applications being made in relation to these lands. Such approvals would be inconsistent with the study and the draft LEP and would result in an unsustainable development culture and an unreasonable demand for the provision of infrastructure and community services. 25 Conversely Mr Robertson argued that each application needs to be considered on its own merits and there would be no precedent established that would require a consent authority to necessarily approve similar applications. If however a precedent were to be established it would only apply to Andersons Road, the only properties that are relevantly similar to the proposal. Court's conclusions 26 I accept that the approval of this proposal would not result in any adverse consequences in Andersons Road and that the proposed additional lot with a house erected thereon would not be significantly out of place. Indeed it could be said that such development would represent orderly and economic development. 27 Despite this, such an approval would not be in the wider public interest. As I have already concluded the draft LEP and the study should be given significant weight and the proposal would be in direct contravention of these instruments that have a clear and important planning purpose. That planning purpose is to encourage rural residential development in what are now deemed, on the basis of the planning study, appropriate locations. This being the more relevant and important aspect of orderly and economic development, it must prevail over any local consideration. 28 Insofar as the approval of this application might represent a precedent in Andersons Road this would probably provide support for further rural residential development in this locality. By themselves one or two additional subdivisions and dwelling houses may not be of great concern in this locality. However any such approval would establish a precedent supporting the subdivision of existing lots that are effectively divided by roads, rivers, etc. This would be undesirable, being contrary to the planning purpose of the draft LEP and the study. I have thus been persuaded by the evidence of Mr Hallman that this would represent an inappropriate precedent. 29 Leaving aside cl 11(7) of the LEP, the purpose of the existing 1(c) zone is made plain by its objective which effectively means that the subject land comprises an appropriate location for rural residential development. However this has now been overtaken by the planning process which, for sound planning reasons as elaborated in the study, excludes the subject land from those lands deemed to be appropriate for such development. 30 I thus conclude that, the approval of this subdivision in Andersons Road would tend to undermine the established planning strategy reflected by these instruments. The SEPP 1 objection application is thus not upheld and the development application should therefore be refused. Orders 31 The orders of the Court are therefore: 1. The appeal is dismissed. 2. Development Application No. 0405/0032 for the subdivision of Lot 32 DP 248682 being land in Andersons Road into two lots is determined by the refusal of development consent. 3. The exhibits are returned. _________________ 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.