Land and Environment Court of New South Wales CITATION : Playford v Wollongong CC & Anor. [2004] NSWLEC 516 revised - 10/12/2004 APPLICANT Thomas Playford PARTIES : FIRST RESPONDENT Wollongong City Council SECOND RESPONDENT Director General of the Department of Infrastructure Planning and Natural Resources FILE NUMBER(S) : 10218 of 2004 CORAM: Hussey C - Brown C KEY ISSUES: Development Application :- erection of dwelling - SEPP 1 objection to minimum lot size - visual impact - loss of trees - bushfire protection - site contamination Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No. 1 Illawarra Regional Environmental Plan No. 1 Wollongong Local Environmental Plan 1990 CASES CITED: Winten Property Group Ltd v North Sydney Council (2001) NSWLEC 46 DATES OF HEARING: 02 and 03/09/2004 DATE OF JUDGMENT: 09/17/2004 APPLICANT Mr I Hemmings, barrister SOLICITORS Norman Waterhouse FIRST RESPONDENT Mr A Pickles, barrister LEGAL REPRESENTATIVES: SOLICITORS Kells Lawyers SECOND RESPONDENT Mr P Clay, barrister SOLICITORS Baker & McKenzie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C Brown C 17 September 2004 10218 of 2004 Thomas Playford (Applicant) v Wollongong City Council (First Respondent) and Director General of Department of Infrastructure Planning and Natural Resources (Second Respondent) JUDGMENT Background 1 This is an appeal against the refusal by Wollongong City Council (the council) of development application DA 1456/02 for the erection of dwelling house at 24 Lady Wakehurst Drive, Otford (the subject site). 2 An inspection of the subject site and surrounding area was undertaken on the first morning of the hearing with representatives from all parties. A number of residents also provided their evidence at this time. 3 The Director General of the Department of Infrastructure Planning and Natural Resources (DIPNR) was joined as second respondent in the proceedings through s 64 of the Land and Environment Court Act 1979. DIPNR had declined to grant concurrence to the proposed development under State Environmental Planning Policy No. 1- Development Standards (SEPP 1) for the variation of the minimum lot size development standard. 4 For the reasons set out in the judgment we have concluded that the appeal should be dismissed and development consent refused. The subject site 5 The subject site is known as a lot 2 in DP 1037008 (See Attachment 1). It is generally regular in shape with an eastern boundary to Lady Wakehurst Drive of around 49 m, a rear boundary of 47.39 m, a southern boundary of 131.59 m and northern boundary along Beaumont Road of 104.95 m giving a total area of approximately 5000 sq m. The subject site falls approximately 35 m from the Lady Wakehurst Drive frontage to its south-western corner. 6 The subject site has a deposit of coal washery waste (CWW) along the Lady Wakehurst Drive frontage that provides a relatively flat area along this boundary. The coal wash has been pushed over the edge of this area and extends into the subject site. The portion of the site disturbed by the coal wash is subject to weed infestation, although there are number of native trees located throughout this area. The subject site is generally heavily vegetated with the western portion primarily rainforest species. 7 The area surrounding the subject site consists of scattered residential dwellings set amongst the existing vegetation. The village of Otford is located just to the west of the subject site. The proposal 8 The application proposes the construction of a dwelling house. The house is a split-level two-storey construction with two bedrooms, a studio and a family/guest room. Access to a car parking space at the lower level is obtained from Beaumont Road. The proposed dwelling is to be located 6 m from the Lady Wakehurst Drive frontage (See Attachments 2 & 3), on the area of the coal wash. Implementation of the proposal requires the removal of approximately 140 trees on this and the adjoining lot, to satisfy bushire protection requirements. Relevant planning controls 9 The subject site is zoned 7(d) Environmental Protection (Hacking River) under Wollongong Local Environmental Plan 1990 (the LEP). Clause 9 of the LEP sets out the aims and objectives of the zone. Sub-clauses 14(1)(a), (b) and (d) provide circumstances where a dwelling may be erected in Zone 7(d), however it was agreed that the proposed application does not satisfy the particular circumstances of these sub-clauses. 10 Relevantly in this matter, cl 14(1)(c) provides the council shall not consent to the erection of a dwelling house in Zone 7(d) unless the allotment is not less than 40 ha. As the proposed development does not comply with this requirement, an objection pursuant to State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) has been submitted. Clause 14(1)(f) requires the consent authority to be satisfied that the proposal will not detract from the environment, including the specific areas of "visual intrusion, vegetation clearance, drainage pollution and bushfire risks,..". 11 Illawarra Regional Environmental Plan No. 1 also contains provisions regarding dwelling houses on rural land. The issues 12 The council filed a Further Amended Statement of Issues containing 8 individual issues. Following further discussions between the relevant experts a number of issues were addressed through the submission of further plans or agreed conditions of consent. These involve the areas of water quality and flora and fauna (Issue 3), site contamination (Issue 3A) and bushfire risk (Issues 4 and 5). While these issues have been largely resolved to council's requirements, nevertheless the effects of these resolutions have an impact on the remaining issues, in determining the overall environmental impact of the proposal. 13 These outstanding issues can be conveniently described as: § Whether the proposal satisfies the provisions of cl 14(1)(f) by not detracting from the visual environment. § whether the SEPP 1 objection to the minimum lot size development standard is well founded (Issues 1, 2 and 2A). 14 Issue 6 dealing with the public interest is addressed as part of the consideration of the remaining issues. 15 The second respondent also filed a Statement of Issues. The evidence 16 Evidence for council was presented by: § Mr S Layman, consulting architectural town planner (Exhibits 4, 5 and 8) and also on behalf of the Second Respondent. § Mr A de Montemas, environmental project officer (Exhibits 6 and 7) 17 For the applicant, evidence was presented by: § Mr N Ingham, consulting town planner (Exhibits E and 8). § Dr K Mills, environmental consultant (Exhibits B and 6). § Mr R Rose, bushfire consultant (Exhibits D and 7) § Mr Wilson, consulting engineer (Exhibit C) 18 HLA Consultants were appointed as the Court appointed experts for soil contamination and their report became Exhibit A. 19 The threshold issue in this case concerns the proposal's non-compliance with the minimum area provisions and its reliance on the SEPP 1 objection to this development standard. As the evidence before the Court indicates that the objectives of this standard development relate to the environmental impacts, in particular the visual impacts, of the proposal, these matters have been considered within the SEPP 1 determination. 20 The SEPP 1 objection states that the underlying objective or purpose for applying the standard would have been applied to complement the objectives of the zone. These objectives are: (a) to identify and protect the conservation value of the relatively pristine tributaries of the Hacking River Catchment and thereby safeguard the natural qualities of the area to complement the Royal National Part; and (b) to allow for some diversity of activities on degraded land which will not prejudice the objective referred to in paragraph (a) from being achieved or detrimentally affect the environmental quality or character of the locality or the amenity of any existing or proposed development in the locality. 21 The objection states that the minimum lot size has been applied for two reasons. The first is to ensure that dwellings have enough area to suitably dispose or manage stormwater run-off and sewerage and secondly to ensure that a suitably sized area is maintained to buffer development from the Hacking River and National Park. 22 When considered against these objectives, the SEPP 1 objection states that Sydney Water has confirmed that water and sewerage connections are available to the site and therefore any adverse impacts that may otherwise result from an inappropriate management of sewerage will be prevented. The proposal will also provide an alternative use that will meet the other environmental objectives. The proposed development and associated works represent a suitable alternative use that will help preserve the natural qualities of the Hacking River and National Park. 23 Strict compliance with the standard is unreasonable and unnecessary in the circumstances in this case because: · the land will continue to pollute the Hacking River catchment, · the land will continue to be used for illegal dumping, · the land will continue to pose a significant bushfire threat, · native species and ecological communities will continue to be threatened, · services are available to the site, · dwellings are found elsewhere in the area, · alternative uses are promoted by the zone objective and · without a variation the attainment of the objects of the Environmental Planning and Assessment Act 1979 (the EPA Act) and the zone will not be achieved. 24 Mr Ingham, the applicant's town planner, did not prepare the SEPP 1 objection but adopts its contents (Exhibit G). He adds that there is no possibility of the subject site ever being consolidated or amalgamated with other lands to create a lot of 40 ha. In his opinion, unless a dwelling house is permitted the land cannot be used for any other private use. Having read the specialist reports on flora and fauna, bushfire and contamination, Mr Ingham concludes that the proposal will improve the ecological quality of the area and as such will be consistent with the underlying objectives of the development standard. 25 Mr Layman, provided evidence for the council. In his opinion the underlying objectives of the standard are: (a) to ensure that the density of residential development is commensurate with the environmental qualities and constraints of the 7(d) zone, being visual quality, water quality, flora and fauna, bushfire hazard and existing infrastructure; and (b) in relation to those lots that are vacant and already less than the minimum area, to: (i) encourage the rationalisation of the existing fragmented ownership pattern; and (ii) require consolidation of lots with other vacant land. 26 In his opinion these objectives are usually employed to either prevent the fragmentation of land to preserve its environmental or agricultural qualities or, in areas where ownership is already fragmented for historical reasons, to reverse the adverse effects of that fragmentation. In this case the underlying objective would appear to appear to be the latter. 27 He states that the density of residential development and its attendant clearing for bushfire protection purposes is not commensurate with the visual quality and water quality provisions envisaged in Zone 7(d). Strict compliance with the development standard would allow greater flexibility for the siting of a dwelling on a larger parcel land. While accepting that there may not be sufficient vacant lots of land in the vicinity of the subject site to achieve a consolidated area equal to or greater than 40 ha, the existing site area of the proposed dwelling limits such flexibility and result in a development that it is inconsistent with the environmental character of the locality and the Zone 7(d) generally. 28 Mr Layman goes on further to suggest that the approval of the development application would result in an undesirable precedent with respect to under sized lots in the locality. Establishing such a precedent is likely to initiate incremental change within Zone 7(d) as there are numerous lots with areas and visual quality not dissimilar to the subject site. 29 For these reasons, he concludes that the SEPP 1 objection is not well founded. Findings 30 The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are posed. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. As the LEP contains no specific objectives there was disagreement between the experts on the underlying objective of the development standard. The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state: 3. This policy provides 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 and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act. 31 This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state: 5. The objects of this Act are: (a) to encourage – (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; (ii) the promotion and coordination of the orderly and economic use and development of land. 32 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded. 33 In considering the different approaches by Mr Ingham and Mr Layman to the underlying objectives of the development standard we generally prefer the more expansive approach of Mr Layman. In our opinion, to rely solely on the objectives of the zone unacceptably limits the underlying purpose of the 40 ha minimum lot size development standard. 34 In considering the contents of the LEP, and specifically the zone objectives and the provisions in cl 14, it is clear that that there is an overarching objective to protect the natural environment of the area. This includes significant restrictions on the erection of dwelling houses, unless they are proposed predominantly on larger, existing allotments in the order of 40 ha, or other conditionally smaller lots. Where a dwelling is proposed on a smaller lot (as in this case), an assessment needs to be made of the impact of that proposed dwelling on the environment. Any assessment needs to compare the environmental impacts of the proposed dwelling with a dwelling on a lot that complies with the development standard. 35 In this case, the environmental constraints for dwelling house development on the subject lot includes the relatively prominent position of the existing property on the edge of the Royal National Park (RNP) and adjacent to Lady Wakehurst Drive, the existence of mature vegetation and the presence of unauthorised coal washery waste (CWW). 36 It was apparent to the Court from the site view that one of the natural features of the subject site and the Zone 7(d) land generally is the existence of dense and mature vegetation. This raises a number of specific issues relating to the underlying objectives of the development standard and those matters raised by cl 14(1)(f). 37 Firstly, there was no dispute that the unauthorised CWW requires treatment in the form of removal, replacement by compaction in layers and sealing. The preliminary site contamination investigation undertaken by HLA. indicated that: § the metal concentrations were below the EPA requirements in terms of SILs (Health Based Soil Investigation Levels) and PBIL (Phytotoxicity - Based Investigation Levels). § four samples of the CWW reported concentrations of manganese marginally greater than the PBIL. § concentrations of polycyclic aromatic hydrocarbons (PAHs) and phenols were below SIL. § concentrations of semi-volatile compounds (SVOCs) were below SIL. § chrysotile asbestos was identified in the fragment sampled. 38 HLA made no recommendations for remediating this CWW to enable the dwelling house proposal to proceed. 39 From this initial site investigation however, the applicant's consultant Mr Wilson (Douglas Partners) prepared a management plan to address the treatment of the CWW. It involves bulk earthworks being undertaken in the following two stages: Stage 1: remove the existing filling from Lot 1 and stockpiling on Lot 2. The stockpile filling will then be tested, conditioned where necessary and (once approved), reinstated on Lot 1 under controlled conditions. Stage 2: once reinstatement of Stage 1 is completed, the existing filling from Lot 2 can be removed and stockpiled on Lot 1. Testing, conditioning and reinstatement will then be a repeat of the Stage 1 works. 40 In conjunction with the bulk earthworks for the creation of building platforms, the Douglas Partners report addresses other matters such as minor earthworks to deal with the potential for exposure of soils to erosion during removal of vegetation as part of bushfire control requirements, the risk of localised stability and bushfire induced combustion with local coal waste covered sections of the hill slope west of building platforms. 41 The CWW covers the entire width of the subject site and also the adjoining property to the south (Lots 1 and 2 in the Douglas Partners report), to depths in the order of 3-4 m. The Court considers this represents considerable earthworks, in the context of the scale of proposed development. The Court is also concerned that this staged remediation work is not contained within the subject lot because it necessitates storage, removal and replacement of the CWW on the adjoining lot to the south (Lot 1). 42 Associated with the earthworks disturbance is the necessity to remove approximately 140 trees from both Lots 1 and 2 for bushfire risk protection. These measures were recommended by the applicant's bushfire consultant Mr Rose and apparently conditionally agreed to by Councils environmental project officer. These conditions include that an Asset Protection Zone (APZ) extends over the adjoining Lot 1, secured by way of a s 88B instrument (See Attachment 2). Whilst this may be acceptable to council, the Court does not embrace this approach, unless there are extraordinary circumstances. In the Court's assessment this was not demonstrated in this case. 43 The evidence of Mr Rose that any uncapped CWW in the outer Protection Zone will not contribute to fire intensity was not challenged. We note that Mr de Montemas in the joint statement accepted this conclusion, however we are unsure as to the expertise of Mr de Montemas in the area of bushfire protection. Notwithstanding this, the Court assumes the council is satisfied with this aspect of the proposed development. 44 Nevertheless, the removal of approximately 140 trees concentrated adjacent to the road frontage, represents a significant thinning on the tree canopy, so as to enable the erection of a prominent dwelling on the subject lot. In this regard, the Court was also made aware of a development application and pending appeal for a dwelling on the adjoining Lot 2. (Exhibit F). 45 Under these circumstances, the extensive earthworks and vegetation clearing for bushfire protection to enable the erection of the proposed dwelling house results in a significant visual intrusion which detracts from the predominant 7(d) Zone characteristics. Even acknowledging that the applicant has endeavoured to maintain as many trees as possible we accept that the loss of the trees will result in unacceptable visual impact. In coming to this conclusion, we consider that the need to retain existing vegetation is a matter that is strongly linked to any assessment of visual impact. This in turn is inextricably linked to the protection of the Hacking River catchment and to its association with the Royal National Park. In terms of tree loss, the proposed development would compare unfavourably to the erection of a dwelling on a lot with an area of 40 ha. The Court is not satisfied that the proposed loss of trees satisfies the consideration required by cl 14(f). 46 The protection of the Hacking River catchment is a fundamental objective of the development standard, although it must be said that an area of 40 ha would not materially be required to control run-off and on-site disposal of sewerage for the development of the house, even if connection to the reticulated sewerage system currently under construction in the area was not available. 47 The Court must assume that the development standard has a particular planning purpose. By restricting the erection of a dwelling house to a lot of 40 ha a certain character will result. Based on this development standard, this will generally take the form of large areas of natural vegetation with scattered dwellings. While Mr Ingham suggested that the refusal of the development application would effectively sterilise the land, it must be remembered that the planning controls that provided the 40 ha development standard postdate the subdivision by many years. In saying this, we acknowledge that the subject site has been subdivided in more recent times, however it still largely maintains its original form. The inference that can be drawn is that the planning controls reflect a desire to limit the number of dwellings despite the large number of existing lots that do not satisfy the 40 ha minimum lot size. 48 On the view, the Court was taken to the Otford Village, which is in the 7(c) Environmental Protection Residential Zone, where smaller lots are allowed. There is a noticeable difference in the character between this and the 7(d) zone, notwithstanding the presence of the existing dwellings along the Lady Wakehurst Parkway. But it appears that the controls seek to severely restrict further dwelling opportunities in this 7(d) Environmental Protection Zone, rather than allow a progressive expansion of the 7(c) Residential Zone. 49 Such expansion of the village zone characteristics necessitates significant vegetation removal, particularly to reduce bushfire risks. But in this case the proposal also requires the remediation of the CWW, together with the removal of some 140 trees to provide the suggested Asset Protection Zones for new dwellings. 50 The statement of Mr Ingham that the sterilisation of the subject site is contrary to the objects of the EPA Act must be rejected. It is an overly simplistic conclusion as any consideration of the proposed development against the objects of the EPA Act must be undertaken in conjunction with the zoning and its objectives. 51 We also accept the evidence of Mr Layman on the potential for the approval of further dwellings on under-sized lots if this application is approved. Precedent is a valid consideration (Gloreen Goldin and Matthew Lau v The Minister for Transport Administering the Ports Corporations and Waterways Management Act 1995 (2002) NSWLEC 75, par 32)) and while it is unlikely that the particular characteristics of the subject site would be replicated, the Court's attention was drawn to the large number of other under-sized lots that are located within Zone 7(d) (Exhibit 2). 52 In the current case, the Court is aware that a similar development application has been lodged on the adjoining Lot 2 (Exhibit F). It involves CWW remediation and sealing, together with the tree removal for bushfire protection in conjunction with the subject proposal. The combined approval of these two development would have the effect of significantly changing the visual character of this prominent part of the RNP, from a predominantly vegetative vista, to an open view of two dwellings against a significantly thinned tree backdrop, which the Court does not consider is appropriate in this 7(d) zone. 53 The SEPP 1 objection provided a number of reasons why strict compliance with the development standard is unreasonable unnecessary. We acknowledge that the development, if approved, would result in some environmental improvements to the existing situation at the subject site, particularly in relation to the coal wash. This, however has to be balanced against the overall objectives of the development standard and in our opinion, the benefits of the approval do not outweigh the overall visual impacts and the impact on the character envisaged by the 40 ha development standard. The Court considers that there are other ways of remediating the coal wash, with likely better environmental outcomes. 54 For the foregoing reasons, we find that compliance with the development standard does not tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. Further, we find that compliance with the development standard is not unreasonable and unnecessary in this instance and that the SEPP 1 objection is not well founded. Public interest 55 A considerable number of submissions were made, including objections and petitions against the proposal. In summary, these relate to perceived adverse environmental impacts, including the ecology of the area, visual impacts and servicing. Concern was also expressed about the likely changing character to the 7(d) area, if this and other similarly under-sized and zoned land was permitted to be developed for residential housing. These objections are contained in Exhibit 9 and have been considered in conjunction with the aforementioned merit matters. Conclusions 56 Having considered the evidence, the submissions and undertaken a view, the Court concludes that this application does not merit consent. 57 The site is situated in the 7(d) Environmental Protection Zone, where the primary objectives are to protect the conservation value of this area and safeguard the natural qualities to complement the Royal National Park. The erection of new dwelling is then a secondary consideration, where houses are restricted to 40 ha lots, unless they have pre-existing status. 58 As the subject lot has a comparatively small area of approximately 5000 sq m, relative to the minimum 40 ha standard, it relies on the allowance of a SEPP 1 objection, which the Court does not support in this case. 59 This is consistent with the DIPNR Assessment, which concluded that: § That SEPP1 is an inappropriate mechanism to achieve the erection of a dwelling on an under sized allotment within an environmental protection zone in this instance; § That the capability of the lands zoned 7(d) to support residential development in light of the provision of a sewerage system be considered through a strategic planning process, so as to enable consideration of the proposal by the relevant State government agencies and the broader community; § That the application undermines the objectives of the 7(d) zone under Wollongong LEP 1990; § That the application would set an undesirable precedent for development within the zone; § That the application undermines the objects of the EP & A Act. 60 This conclusion referred to the precedential effect of the proposal, to which Mr Clay also made submissions. Considering the evidence that there are approximately 70 other similar, under sized lots, which have residential development potential (because it is probable they can be serviced), the Court considers this a valid consideration and has addressed its probable effects in this case. 61 Under these circumstances, the Court considers that this proposal requires extensive vegetation clearing, resulting in significant visual intrusion of the new dwelling, which has a cumulative environmental impact that does not satisfy the provisions of cl 14(f) of Wollongong LEP 1990. Therefore the non satisfaction of these provisions, together with the disallowance of the SEPP 1 objection to the minimum lot size, results in the refusal of this application. Orders 62 The orders of the Court are: 1. The appeal is dismissed. 2. The SEPP 1 Objection to the minimum lot size development standard in cl 14 (1) of the Wollongong LEP 1990 is not well founded. 3. Development application No. D1456/02 for the erection of a dwelling on Lot 2 DP 1037008, No. 24 Lady Wakehurst Drive, Otford, is refused. 4. The exhibits may be returned except for 4, 5, 7, 8, A, F and G. ______________ R Hussey Commissioner of the Court ______________ G T Brown Commissioner of the Court 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.