Land and Environment Court of New South Wales CITATION : Acquaro v Great Lakes Council [2006] NSWLEC 574 APPLICANT Raffaele Acquaro PARTIES : RESPONDENT Great Lakes Council FILE NUMBER(S) : 10067 of 2006 CORAM: Hussey C KEY ISSUES: Development Application :- Shed for storage of bee keeping equipment, visual impact, enhancement of the area, precedence, public interest Environmental Planning and Assessment Act LEGISLATION CITED: Great Lakes Local Environmental Plan State Environmental Planning Policy No. 71 CASES CITED: Goldin and Anor. v Minister for Transport [2002] NSWLEC 75 DATES OF HEARING: 25/09/2006 (On-site Hearing) DATE OF JUDGMENT: 11/17/2006 APPLICANT Mr B Glendenning, solicitor SOLICITORS Harris Wheeler LEGAL REPRESENTATIVES: RESPONDENT Mr P Rees, solicitor SOLICITORS Mallik Rees JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 17 November 2006 10067 of 2006 Raffaele Acquaro v Great Lakes Council JUDGMENT Background 1 This appeal was lodged against council's refusal of a development application for the construction of a shed for the storage of farm related equipment, required in connection with the keeping of bees on a Rural 1(a) allotment at Eastslope Way, North Arm Cove. 2 The application was refused for a number of reasons and the outstanding issues for the appeal can be summarised as follows: o whether the development will enhance the environmental qualities of the area; o whether the development represents the orderly and economic development of land; o the suitability of the site for the development; o the impact on the scenic qualities of the area; o compliance with councils outbuildings policy; o precedence and public interest; o weight to be given to the Draft Great Lakes LEP 1996 (Amendment 55). The site 3 The subject site is described as Lot 1378, in DP 12277. It has a 18.28m frontage to the "unmade" Eastslope Way and has a total area of 777 sq m. It is situated on the northern side of Gloucester Street, which generally forms the northern border of the North Arm Cove Village. 4 The locality forms part of the Burley Griffin subdivision and is situated approximately 14 km north of Karuah. The township contains two zoning types. Rural 1(a) and Village 2. Approximately 407 sites are zoned village with the remainder of the 3000 lots being zoned 1(a) Rural. The Village zone extends around the North Arm Cove peninsula and contains approximately 291 dwellings and some 116 vacant allotments. 5 The majority of the rural land has no dwelling entitlements and is not being used for agricultural activity, as the average size of each lot makes standard farming uneconomical and there are significant environmental constraints. 6 The topography is typical of the New South Wales coastline, generally flat to undulating. The proposal 7 This proposal is to construct a "Storage Farm Shed" and carry out associated landfill upon the above land. The shed has an area of 52.9 sq m (9 m x 5.91 m) with an attached carport/awning of 26.86 sq m (9 m x 3 m) and height of ridgeline 3.47 m. It is proposed to use the shed for storage of "farming related equipment", in connection with the bee keeping activities. 8 The shed is setback 15.65 m from Eastslope Way, which is less than Council's adopted building line setback of 18 m for rural roads. Depending on the extent of the surrounding batters, the landfill covers an area of approximately 210 - 250 sq m. 9 The proposed access to the shed is via a re-aligned 4 m wide access driveway, right-of-way (ROW) over the adjoining Lots 1379 and 1380, as shown on the plan at the Attachment 1. 10 In support of the proposal, the applicant has submitted a site plan, a Statement of Environmental Effects and a Sediment and Erosion Control Plan. The applicant also requested that, council take into account an Assessment of Significance ecological report lodged with a previous application on an adjoining lot. Planning Controls Great Lakes Local Environmental Plan 1996 11 The land is identified within Great Lakes Local Environmental Plan 1996 (GLLEP) as being within zone 1(a) Rural, as shown in LEP Map 16. 12 The aims of the plan are contained in cl. 2 (1) as follows: ( a) to provide an updated and simplified plan for the area of Great Lakes, and (b) to protect and enhance the environmental qualities of the area; and (c) to facilitate the orderly and economic development of land within the area; and (d) to promote the well-being of the area's population (cl 2(1)). 13 The objectives of this plan are listed in sub-clause (2) as follows: (a) to provide a land use framework to guide the future use of the land within the area of Great Lakes; and (b) to provide a basis for the preparation of detailed development control plans, and (c) to protect environmentally sensitive areas and the heritage of the area; and (d) to improve opportunities for ecologically sustainable development, and (e) to provide, for the cultural needs of and the equitable provision of services and facilities for the community. 14 Clause 8 of the LEP details the working of the development control table and states that council must not grant consent for a development unless it has considered the aims of the plan and is satisfied the development is consistent with at least one of the objectives of the zone in which it is located. 15 The GLLEP defines "agriculture" as meaning the use of land for: a) the production of crops or fodder; or b) the keeping or breeding of livestock, bees, poultry or other birds; or c) horticultural purposes including fruit, vegetables and flower crop production, and wholesale plant nursery; or d) the grazing of livestock, … 16 "Filling of land" is referred to in GLLEP - 1996 under Special Provision Clause 11 - "Land Form Modification" which states: (a) Despite any other provision of this plan, filling or excavation of land (except as specified in subclause (2)) is permitted only with the consent of the Council. (b) Filling or excavation of land may be carried out without the consent of the council but only where the development will, in, the opinion of the council not significantly affect the natural and existing built environment. 17 The objective of the 1(a) Rural zone is to restrict development to those uses which are unlikely to: (a) prejudice in a significant manner the agricultural production potential of land within the zone; and (b) generate significant additional traffic, or create or increase a condition of ribbon development on any road relative to the capacity and safety of the road; and (c) have an adverse impact on the area's water resources; and (d) create unreasonable or uneconomic demands for the provision or extension of public amenities or services. NSW Coastal Policy 1997 18 The 1997 NSW Coastal, Policy is a Government Policy that applies to the site and the proposed development. The relevant strategic actions of the Policy are required to be assessed in the determination of a development application. The main thrust of the Policy is directed to broader issues, however, in the subject application, the Policy directs consideration to the aesthetics of the development as viewed from the public arena. State Environmental Planning Policy No. 71 - Coastal Protection 19 The Policy applies to all land within the coastal, zone as defined in the Coastal Protection Act and accordingly applies to the subject site. The matters prescribed for consideration in assessment of a development application include: (a) the relevant aims of the Policy including: ( i) to protect and manage the natural, cultural, recreational and economic attributes of the NSW coastal zone; and (iii) to ensure that the visual amenity of the coast is protected; and (iii) to protect and preserve native coastal vegetation: and (iv) to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality off the surrounding area; and (b) any detrimental impact the development may have on the amenity of the coastal foreshore; (c) the scenic qualities of the coast, and the means to protect and improve these qualities; and (d) the cumulative impacts of the development on the environment . Outstanding Policy - "Occupation of Outbuildings and Temporary Structures Policy The evidence 20 Detailed evidence on behalf of council was presented by Mr J. May, assessment planner with Great Lakes Council. Mr R. Bennett, consulting town planner prepared a detailed assessment of behalf of the applicant. 21 The respective planners conferred and prepared a joint planning report, which is Exhibit 3. However the planners were unable to agree on the significant issues. 22 Objections to the proposal were made by a number of residents including Mr J. Pegram and Mr S Gee, who gave oral evidence. The objections can be summarised as follows: o the proposed shed would create unsatisfactory visual impacts, o the proposed location is inappropriate adjacent to the village area, o the size and scale of the shed is excessive for the proposed use, o the approval of the shed will create a precedent and likely increase the intensity of unauthorised use of sheds for occupation purposes throughout the estate. 23 As I have noted, the subject land is located within the historic Burley Griffin subdivision estate, which was undertaken in the 1920s. It proposed the creation of some 3000 – 4000 residential type allotments, but appropriate access roads and infrastructure for urban development have never been provided. 24 The subject site is situated 2 lots north of Gloucester Street, which is one of the main access streets into the village of North Arm Cove. It adjoins the 2 lots (Lots 1379 and 1380) on the north-western corner of Gloucester Street and Eastslope Way, where there is an existing building, part of which is currently leased by council for library and community purposes. 25 When this building was conditionally approved by the Court in 1988, it was for the "establishment of an information and development site office". The conditions of consent included: (a) the consent is for a period of three years and is subject to review at the end of that period; (b) lot 1378 shall be added to the development site. Specific use of this part of the site shall be subject to the consent and/or direction of Council when the consent is reviewed; … (d) legal access, in a form satisfactory to the Council being made available over Eastslope Way; ((j) the applicant construct at no cost to Council, parking areas, manoeuvring areas and driveways with a dust free surface with a minimum standard surface of flush bitumen seal to the satisfaction of Council's engineer. Car parking spaces shall be line marked and the car parking area shall be constructed and drained in accordance with plans and specifications approved by Council's engineer. 26 The associated judgment stated: I have weighed this question carefully and have reached the conclusion that it would be equally wrong to give the applicant a blank cheque in the form of an unqualified approval or to refuse the application because of some uncertainty that the predictions regarding future use are correct. This is a case where acceptability or otherwise depends on the manner of operation and the usual technique in development control in such cases is to grant consent limited in time giving the consent authority, and if, necessary the Court on appeal, the opportunity to review the development at an appropriate time. In other words to give a consent in the nature of a licence. That seems to be even more appropriate in the present case when the presence of campers on their various lots is itself subject to license by the Council. I appreciate that there is also a principle or practice established in development control that time limited consents are not appropriate where the development involves capital expenditure which cannot be reasonably amortised over the life of the consent. I think, however, that that principle can be applied flexibly in the present case. The estimated cost of this project (given at $60,000) is well within the resources of the Association. It is also well within the resources of the company, given the scale and value of the total project. Moreover, if it is required that the use of the facilities cease in the future all would not be lost to the applicant because that would not necessarily mean cessation of the real estate activities. What I intend to do then is to grant a consent which will enable review when there has been sufficient time to see how the activity will function but not so long a time that any adverse consequence can get completely out of hand. An appropriate time would seem to be three years. 27 In light of the issues raised, it seems to me that the continuing presence of this building has an impact on the local environmental context and also on the considerations of economic and orderly development. There was no substantive evidence presented regarding the allowance of the continuing existence of the building, whose limited-time consent has long since expired. Insofar as the building has a "residential type" appearance, the evidence from the strategic plans for this area indicates that residential uses are most unlikely for the next 20 years, due primarily to the inability to provide adequate service infrastructure. 28 If the building was allowed to remain, I note that an integral part of its consent required the consolidation of the subject Lot 1378 and also the provision of satisfactory arrangements along Eastslope Way. But the consolidation has not taken place, nor apparently has necessary legal arrangements for access over Eastslope Way. 29 As a result, the proposed legal access to the shed is via a ROW over the "building lots 1379 & 1380, which then requires realignment and some alterations to the building carpark and manoeuvring areas. 30 The first issue concerns of the proposals are compliance with cl 2 (1) (b) "to protect and enhance the environmental qualities of the area". According to Mr May, this development will not enhance the environmental qualities of the area by the erection of the shed on fill, because the natural environmental quality of the area will be replaced by a "built" environment. As the strategic studies for this area say that this land will not be rezoned for residential purposes for at least 20 years and the existing rural lot sizes severely limits their economical viability for agricultural purposes, then he does not consider the erection of an isolated shed, which intrudes into the bushland environment satisfies this aim of the LEP. 31 Against this, Mr Bennett says that a broader view of the environment should be undertaken, which includes both the natural, social, economic and built environment. Accordingly he says that: "the construction of the shed will promote and enhance the economic and social qualities of the locality through making improvements to the built environment. The proposed development will not diminish that natural environment of the site as no trees will be removed. Access to the shed is via an existing formed gravel road. Increased use of this access generated by the shed will have a neutral impact on the existing environment." 32 On the basis of the evidence before the Court, I accept that any rezoning of this land to allow more intensive development of the built environment is likely to be a significant time in the future. Therefore, the predominant, natural bushland environment that exists on the northern side of Gloucester Street is likely to remain and forms an important benchmark to assess the local environment. 33 Accordingly, I consider that erection of the relatively large shed, in isolation would introduce a noticeable intrusion into this bushland environment, which in my opinion would not enhance this environment. In this regard, I rely on Mr Mays evidence and give reduced weight to Mr Bennett's reference to other aspects of the environmental qualities, taking into account the local context. 34 Alternatively, if the building was allowed to remain, I note that planners evidence that the shed would generally appear to compliment the building because of its location. However its erection would result in the intensification of the bulk and scale of the building, within the bushland context, which again I do not consider enhances the local environment. Therefore, I consider the erection of the shed is a negative element in terms of enhancement of the environmental qualities of the area. 35 The next issue concerns the GLLEP's cl 2(1)(c) provisions "to facilitate the orderly and economic development of land within the area". In response to this issue, Mr May referenced the following strategic plans: a) Hunter Coastal Urban Settlement Strategy (NSW Government 1994), b) Great Lakes Rural Living Strategy (March 2004), c) Tea Gardens Hawks Nest Conservation and Development Strategy, and d) Tea Gardens Hawks Housing Strategy. 36 According to Mr Mays assessment of these various strategies, he says they provide: "Historically, the rural zoning has been maintained to ensure that development of the 3500 lots did not occur because the lots lacked essential services, facilities and amenities. The proposal compromises the respondents planning strategy for the area which is essentially to prevent fragmented development of the Rural 1(a) zoned lots until the appropriate planning studies have been undertaken, the environmental values of the allotments have been determined, and the appropriate future development of those allotments is prescribed. North Arm Cove is not proposed for future development. 37 Furthermore, Mr May says: "Most of the lots zoned Rural 1(a) within North Arm Cove, including this lot 1378, do not have a dwelling entitlement. Development within the zone is constrained by the 40 ha minimum area requirement and significance of environmental factors such as threatened habitat. Almost all allotments in the zone are of dimensions usually associated with urban residential lots, are unserviced and have been sold over the last twenty years or so to speculative buyers at low prices. Those sales were the reason for that development on lots 1379 and 1380". The strategies demonstrate that the Hawkes Nest & Tea Gardens area can cater for future housing demand for at least the next 20 years. The residential sized rural zoned lots at North Arm Cove have not been identified for future urban growth and therefore no rezoning for residential purposes is likely in the identified future. In this regard the residential sized Rural zoned lots are unlikely to be used residential development and are also inappropriate for most rural development. Council originally had no say in the development of this area and inadvertent development from the current situation needs to be considered carefully." 38 As the proposal is inconsistent with the strategic planning for the area, Mr May says the approval of this application confirms his opinion that it would not represent economic and orderly development. 39 However, Mr Bennett's position is that the term "orderly and economic development" infers that over time all land will undergo some form of land use change. The Great Lakes Rural Living Strategy 2004 identifies North Arm of Cove as a "Rural Centre" and the subject site being designated as "Rural Mixed Uses". Therefore the subject land need not be reserved for future residential use and can be utilised for non-residential purposes. 40 As there is no reference to the control of "storage farm sheds" in the Strategy, then he says the proposed development of a storage shed on the site is not inconsistent with the aim of 2(1)(c) is because it is not on parcel of land identified for a future urban use. Furthermore, the development will provide for the economic development of the land through the placement of a building which will provide storage for an agricultural pursuit. 41 In my assessment of these disparate opinions, the set of strategic controls seem to be significantly restricting development, other than appropriate agricultural pursuits or residential development on larger lots, which have a dwelling entitlement. As the proposal was submitted on the basis of an agricultural pursuit, I have considered the evidence accordingly. 42 Mr Acquaro said that he intended to undertake the bee keeping activities as a hobby. As such he would have 2 hives locally, with others at Gerringong (4), Williamstown (4) and Medowie (2). He did not intend to extract any honey on-site because of the need for the hygenic conditions and hot water supplies. Nevertheless, he said that the proposed shed size was required to facilitate loading/unloading in a "dark environment". He expected to visit the shed every 3 weeks and less in winter. 43 To assess the appropriateness of this proposed agricultural use, further evidence was presented by Mr B White, an experienced apiarist. He listed the amount of the equipment required to service and remove the honey crop from 25 hives. Accordingly he says that the 25 hives in the field would be 2 boxes high in winter, which could be serviced every 3 weeks in the productive season and in winter every 6 weeks. He concludes that a much smaller shed would readily accommodate the necessary equipment. 44 This conclusion is consistent with Mr Mays evidence, that the proposed shed size is excessive for the proposed "hobby" bee keeping activity and as the excess space could possibly be used for other storage or residential purposes, it confirms his opinion that the proposal does not represent economic and orderly development of land. 45 It seems to me that the proposed shed is of significant and excessive proportions for the proposed bee keeping activities in this area. It also occurs to me that the unresolved situation with the existing buildings future and the original requirement for Lot 1378 to be consolidated, together with other conditions requiring satisfactory access arrangements being made, raises serious concerns about the orderly development of these adjoining lots. In particular, I consider the proposed realigned 4m ROW, in close proximity to the existing building and cutting through the car park represents undesirable planning, by reducing the amenity of Lots 1379 and 1380 particularly considering the general availability of open land in the immediate area. 46 Accordingly I do not consider this proposal demonstrates adequate compliance with the requirement for economic and orderly development and in my opinion, this is a further negative aspect of the proposal. 47 The next issue concerns that provisions of SEPP 71, which relevantly requires development: to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area. 48 My assessment of this issue follows the aforementioned reasons, which is that the proposed shed does not improve the natural scenic quality of the surrounding area. However I note that Mr Bennett says the proposal is not inconsistent with SEPP 71 because the building will not have a material impact on the natural scenic quality of surrounding area as it adjoins an existing group of buildings, so it will not be viewed in isolation from any vantage point on the waterway. I accept that viewing opportunities from the waterway are not critical in this case because of the separation distance. However, I do not consider Mr Bennett's assertion that the shed will compliment the adjoining library building because of its use and shape, is a positive element of proposal because this building does not have consent. As such, I do not consider it reasonable to give any significant weight to this buildings existence as a benchmark for assessing the visual and environmental character of this area north of Gloucester Street. 49 The next issue concerns compliance with the Outbuildings Policy. The objective of this policy is to maintain a reasonable standard for residential accommodation and reduce the possibility of unauthorised dwellings. The requirements of the policy are as follows: The approval of outbuildings or similar structures on vacant land will not be given unless approval for the dwelling is obtained simultaneously and construction first commences on the dwelling. 50 As the subject while does not have a dwelling entitlement, then Mr May does not support the proposal for the stand alone shed. However Mr Bennett says the policy applies to land on which approval for a dwelling can be obtained. Therefore, as the provisions of the GLLEP 1996 do not permit the erection of a dwelling on the site, the proposed building could not be characterised as an "outbuilding" in this instance and the Policy is not applicable. 51 Insofar as there are different interpretations and application is of this policy, which was adopted on 6 September 1988, I consider the underlying objective is to restrict the construction of isolated sheds unless they are in conjunction with an approved dwelling. Because of zoning restrictions on this lot prohibiting residential development, the proposal does demonstrate reasonable compliance with this policy, in my opinion. 52 The issues of precedence and public interest were also discussed. This matter was of particular concern to the residents who said that isolated structures on the small non-urban lots should not be approved, so that the bushland character was maintained. They also expressed concerns about possible dangers of bee keeping in relatively close proximity to the village area. 53 Mr May also agreed with this position saying that if the development was approved it would provide other landowners of similar residential-sized lots in the Rural 1(a) zone with a precedent for the establishment of other "storage farm sheds" with similar adverse attributes and impacts, including degradation of threatened flora and fauna and their habitats in the 1(a) zone. Additionally, there would be expenditure required by the respondent for upgrading and maintenance of roads at North Arm Cove as well as policing the use of sheds to ensure that they are not used for habitation. 54 However, Mr Bennett says that the application is not for habitation and its location adjoining the public library would render it subject to public scrutiny, so that any habitation would not occur. In response to the potential safety risks, he says that the development is not for keeping bees on the site and accordingly the development will not increase the risk to the community of bee sting attack. 55 The remaining issue concerns the weight to be given to the Draft LEP, Amendment 55. The relevant provisions of this Draft Plan are that buildings other than fences and gates shall not be erected for the purpose of agriculture on land within Zone No. 1(a) unless in accordance with a development consent under the plan. 56 Mr Bennett questioned the relationship of the assessment of an application for land use, if the details of the building within which associated use relates, cannot be approved without a development consent for an agricultural use first being obtained, when agriculture is a permissible use in the 1 (a) Rural zone "without consent". In any case these potential inconsistencies need to be resolved and the draft LEP could not be considered imminent and certain at this stage. 57 From the evidence presented to the court, I accept that this draft LEP is not imminent and certain, so I give it diminished weight. Conclusions 58 Having considered the evidence, the submissions and undertaken a view I do not consider this proposal merits consent. The planning controls have been put in place to restrict the development of these residential-sized, rural zoned allotments. Residential development is prohibited on lots with an area less than 40 ha. Whilst "agriculture" activities can be undertaken without consent, the controls generally do not allow for the construction of the structures such as sheds, unless the prescribed environmental quality criteria is reasonably satisfied. 59 This criteria requires the proposal to enhance the environmental qualities of the area. In my assessment, the most critical aspect in this case concerns the visual aspects of the predominantly natural bushland setting on the northern side of Gloucester Street. However the proposal for the shed introduces a relatively unattractive "built" element into this environment, which I do not consider results in any environmental enhancement, as required by cl 2 (1)(b) of GLLEP. I rely on Mr Mays evidence in this regard. 60 The associated criteria also requires the development to be undertaken on an economic and orderly basis. However the various strategic controls seem to restrict isolated developments on the smaller residential-sized lots. The proposed shed presents as a relatively large structure, even with the awning removed. The evidence presented does not satisfy me that a shed of this magnitude is required as an ancillary part of the low scale "hobby" bee keeping activity. In this regard, I rely on the evidence of Mr May and Mr White to conclude that the proposal does not represent and orderly and economic use of the land. 61 In addition to this, the unresolved status of the "existing building" and the applicants inability to comply with the conditions of consent, particularly to seek renewal or continuation of the consent and to undertake the consolidation of lot 1378 with that development, would result in a significant intensification of the use of these properties. This necessitates the use of a shared ROW for access that somewhat fragments properties to an extent and reduces their amenity, which I do not consider represents orderly development of the land. For these reasons, I do not consider the application reasonably satisfies provisions of cl 2 (1) (c) of the GLLEP and should therefore be refused. 62 With respect to the Draft LEP (Amendment 55), I note that its intention is to require consent for buildings other than fences and gates. However I accept the submissions that there are some inconsistencies with this amendment and in any case I do not accept that it is imminent and certain. Therefore I give it a little weight. 63 I do however consider that significant weight should be given to submissions and objections regarding precedence. In this regard I rely on the line of the authority in Goldin and Anor. v Minister for Transport [2002] NSWLEC 75, where Lloyd J. said at par 34: In the present case the Senior Commissioner did not err in law by taking into consideration the fact that approval of the applications would be a precedent. That was not an irrelevant consideration. It was a relevant consideration on the facts and circumstances of the case as found by the Senior Commissioner, namely: that the proposed developments were not themselves unobjectionable, having, as the Senior Commissioner found, an undesirable visual impact on a largely undeveloped shoreline, and that there was more than a mere chance or possibility that there may be later undistinguishable development applications of the same class – or, as the Senior Commissioner found, "would lead inexorably to a further three over time: and "pressure to achieve a further 13 shoreline facilities: - also described by the Senior Commissioner as "likely to be an inevitable consequence". 64 It is apparent from the evidence and submissions that there are many other similar smaller rural allotments, which could have similar expectations for erection of different forms of sheds for use in conjunction with various types of "hobby / agriculture" activities. The proliferation of similar sheds on the small Rural 1(a) allotments would not, in my opinion protect and enhance the environmental qualities of the area. My conclusion is that the approval of the shed would be contrary to the strategic planning controls and therefore not in the public interest. Court orders 1. The appeal is dismissed. 2. Development consent for DA311/2006, for the erection of a shed and ancillary land filling at Lot 1378, DP 12277 Eastslope Way, North Arm Cove, is refused. 3. The exhibits may be returned except for 3, 5, A and B. ___________________ R Hussey 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.