Land and Environment Court of New South Wales CITATION : Rein Warry & Co v Wollondilly Shire Council [2007] NSWLEC 430 APPLICANT Rein Warry & Co PARTIES : RESPONDENT Wollondilly Shire Council FILE NUMBER(S) : 11002 of 2006 CORAM: Murrell C KEY ISSUES: Development Application :- Subdivision of land, SEPP No. 1 Objection Environmental Protection (Rural Living) Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Wollondilly Local Environmental Plan 1996 and 1991 Wollondilly Rural Living Development Control Plan State Environmental Planning Policy No 1 DATES OF HEARING: 18/04/2007 and 24/04/2007 EX TEMPORE JUDGMENT DATE : 30 May 2007 APPLICANT Mr C. Shaw, solicitor of Shaw Reynolds Bowen and Gerathy LEGAL REPRESENTATIVES: RESPONDENT Mr A. Seton, solicitor of Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 30 May 2007 11002 of 2006 Rein Warry & Co v Wollondilly Shire Council JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act against Wollondilly Shire Council's refusal of a development application for the subdivision of land. The subject property is Lot 3 1052273, known as No 40 East View Drive, Orangeville. The development application is to provide for two lots from a parcel of land that is currently 8.595 hectares. The proposal will provide for a lot of 2 hectares on the corner of Bobs Range Road and the other allotment, the larger allotment, will be with access from East View Drive. 2 The subdivision history of this application is important to understand. The original parcel of land in terms of council's controls (that is as of the relevant date) was 10.5 hectares and there was subsequently, in April 2002 a subdivision approval for a lot which has access to Bobs Range Road of 2 hectares, leaving the 8.5 hectare allotment of land. Later that year there was a reconfiguration that constituted not just a boundary adjustment but a subdivision application, of a paper road that was acquired by the applicant of some 2.25 hectares (see figure 1) 2002 the paper road, which was the previous Lot 100, was reconfigured such that it had the effect of splitting the subject Lot 3 (the land of the current subdivision application) into two physically separated areas, one of some 2.005 hectares on the corner of East View Drive and Bobs Range Road, and the larger portion of 6.59 hectares along East View Drive. The council also approved a dwelling application for what was previously a unmade paper road. This narrow parcel of land shown in Figure 1 as lot 100 became the new reconfigured lot 2 and contained the dwelling house site previously approved on the former lot 100. However I note that the dwelling house approval was current until 5/9/2006. 3 Figure 2 shows: lot 1 created in April 2002; and then later that year the subdivision creating lot 2 (the reconfigured road) that has the effect of severing lot 3 into two separate portions. One smaller portion on the corner of Bobs Range Road and the larger portion with frontage to East View Drive and Fulcrum Drive. 4 It is proposed in these proceedings on behalf of the applicant that the subdivision merely formalises what already exists on the ground, and that for all intents and purposes one already sees a separate parcel on the corner that is fenced. It is submitted that the proposal would have negligible impact on the 4 hectare average in the area, and because of the unique circumstances of this particular lot, that is being in two parts, it would not be a precedent. 5 On the other hand the council has raised a number of issues, and whilst they have been identified in the statement of issues, exhibit 6, in summary they are as follows: Issue one: the proposed development is unacceptable because it is inconsistent with cl 13B(1)(a) of the Wollondilly Local Environmental Plan and it cites the particular provisions. Issue two: that the proposed development is unacceptable because it would be inconsistent with Pt B3 of the Wollondilly Rural Living Development Control Plan for allotment density. That is, B3, for subdivision in the Rural Living DCP, states: "The Environmental Protection Rural Living 7(c) zone has a minimum subdivision size of 2 hectares, with a density of one dwelling per 4 hectares. This is to ensure that the rural living areas maintain their scenic and landscape qualities by still allowing for smaller subdivisions where necessary." Issue three: identified by the council is the proposed development is inconsistent with objective B of the 7(c) zone; issue four is the proposed subdivision will set an undesirable precedent for future development within the area; and five, the development is not in the public interest. 6 By way of background, the Wollondilly Local Environmental Plan 1991 sets out a number of general aims and objectives, including: "(m) to maintain the rural natural landscape character of the Wollondilly local government area by providing a balance between agricultural and other land uses, and (n) to provide for rural residential living opportunities which are compatible with the capability of the land." 7 The subject site is zoned 7(c) under the Wollondilly Local Environmental Plan of 1996. This is the Environmental Protection (Rural Living) Zone. The LEP contains the clause except as otherwise provided in the plan the council shall not grant consent to the carrying out of development unless it is consistent with the objectives of the zone within which the development is proposed to be carried out. 8 In the 7(c) zone the objectives are: (a) to provide for rural living opportunities, and (b) to encourage the preservation of rural landscape character by ensuring that development is compatible with that character, and (c) to ensure that land degradation does not occur... and (d) to maintain existing significant stands of vegetation. 9 Subdivision of land has special provisions by virtue of cl 13B. The council may consent to subdivision of all or part of any original holding consisting of land within Zone 7(c) only if: (a) the total number of lots into which the original holding will be divided after the subdivision will not exceed the number obtained by dividing, by 4, the area (in hectares) of the original holding that is within... the dividend being (rounded down to the nearest whole number) and (b) none of the allotments to be created by the subdivision will have an area of less than 2 hectares. 10 On behalf of the council Mr Kelly gave evidence to the Court and Mr Bulfin for the applicant gave evidence to the Court. 11 There is no dispute between the parties that the proposed development requires a State Environmental Planning Policy No 1 objection in that it does not satisfy the 13B provisions as stated above. A SEPP 1 objection was provided to the Court. 12 The underlying purpose of the development standard as stated by Mr Bulfin is "to allow the subdivision of land to occur within the 7(c) zone at a level of density which retains the overall integrity of the existing subdivision pattern of the locality and landscape and scenic attributes of the area whilst promoting the objectives of the 7(c) zone that are relevant to such subdivision". 13 Mr Kelly states his interpretation of the underlying purpose, that is not explicitly stated in the LEP, "is that the primary objective of the provisions the cl 13B is to preserve the rural landscape character of the area whilst providing a flexible approach to subdivision within the 7(c) environmental protection zone so as to reflect the constraints of a particular site". 14 In many respects, as submitted on behalf of the applicant, the above interpretations are not so far apart. 15 It is noted that amendment 11, provides for the additional breakdown of Agricultural and Environment Protection (Rural Living) zones. The aim is stated as: "This plan aims to enable the rural landscape character of the land to which this plan applies to be maintained by allowing development on that land which will provide a balance between agricultural and other land uses." 16 The issue for the Court is, first of all, to consider the SEPP 1 objection because this is a threshold question. The Court must look at the underlying objectives or purpose of the standard, and the issue in these proceedings is more finely balanced, having regard to the fact that there is an existing physical separation of the lot under consideration. The uniqueness of the two separate parcels is however, only one consideration for the Court in my assessment. 17 By way of comment the council consented to a most unusual subdivision pattern and whilst not a matter for me in these proceedings it is difficult to understand why the council would approve of such a subdivision allowing an allotment to be separated or severed as shown in Figure 2. 18 While it is a unique factor that the subject land is in two separate areas, nonetheless that does not mean that the Court can disregard the intentions and the spirit of not only State Environmental Planning Policy No 1 but also in terms of the council's own planning regime, in particular the provisions council introduced for the identification of the Environmental Protection (Rural Living) zone, which is to provide opportunities for rural residential living, but also to maintain the scenic landscape quality of an area. 19 There was a great deal of consideration given during the proceedings, or an analysis, as to the allotment sizes within the vicinity of the area. One must bear in mind that the existing configuration, that is with many allotments at or near the size of the proposed smaller allotment of two parcels of land, does not in itself justify approval. Clearly there was an intention with the introduction of the Rural Living zone to provide for a new regime under which to consider development applications. SEPP 1 should not be used to give effect to a rezoning. This the province of Pt 3 of the Environmental Planning and Assessment Act. 20 An analysis of what is in the area at the moment in terms of many other allotments of similar size does not justify approval of this development application. Similarly the percentage change or the absence of environmental harm does not justify approval. One must have regard to a holistic reading and understanding of the council's controls. 21 In my assessment and consideration of the SEPP 1 objection I am not satisfied that the underlying purpose is satisfied by the proposed subdivision. It is true that one additional lot will only be created, and whilst it may exist in a physical sense the test or the underlying purpose is to allow subdivision where it will retain an overall density and a landscape and scenic quality of the area. While this case is not about agricultural viability and the conflict with agricultural lands and their sustainability, nonetheless there is a clear purpose and the underlying intent in terms of the size of the subdivision pattern as council has articulated in cl 13(b), is to provide for an averaging of 4 hectare parcels of land and a minimum of 2 hectares to retain the scenic landscape quality of the area. 22 While the land has been physically severed, as submitted on behalf of the applicant the approval under SEPP 1 would also be consistent and support the aims and objectives of the Act in terms of economic use of this land. However, the object is for orderly and economic use and in my assessment by not allowing the subdivision this would not sterilise the subject land. The subject land could be amalgamated with either of the two adjoining 2 hectare parcels of land, known as Lot 1 and 2 and this would achieve a parcel of 4 hectares, which is what council is seeking to do by averaging. 23 In my assessment the underlying purpose is not satisfied by the subdivision and therefore it fails in terms of a SEPP 1 application. 24 While it is not necessary for me to assess the application further in terms of its merits, nonetheless I will provide comments in this regard. 25 The abundance of 2 hectare allotments, as I stated earlier, are located on the western side of East View Drive and a majority of these were subdivided prior to the creation of the 7(c) zone. I must assume that 7(c) zone, has a purpose and the introduction of this zone must be considered in a merits assessment of the application. 26 It was noted in the documents provided to the Court on the previous subdivision approval and I quote from the letter provided to the council by the applicant: "The physical features of the land and the desire to quickly achieve the subdivision were the reasons for the current allotment layout." 27 It goes on to say "the reasons for the subdivision layout" and cites a number of matters, including the desire to improve the building envelope for Lot 612, the desire to complete the boundary adjustment as quickly as possible, poor access and shape of Lot 100, position of Lot 2 was to give improved access to the approved building site on Lot 100, the location of the dam, and these factors led to the location of the northern side boundary of Lot 2 with the desired size of 2.1 hectares, and this resulted in a 2 hectare section of Lot 3 remaining on the south-western corner. The submission states: "Whilst the owners acknowledge that they consider that the 2 hectare part of Lot 3 would be suitable for a possible subdivision in the distant future if ever the 7(c) zone was changed to a 2 hectare zone the subdivision layout was dictated by the land's physical features and the desire to quickly achieve the boundary realignment." 28 It is also noted that the applicant was not aware of SEPP 1 prior to the boundary adjustment, so the Court is not inferring that this was a contrived incremental step in terms of seeking to then have what is the separate portion of land subsequently subdivided off. Nonetheless, as is clear in the applicant's own letter, that if there was ever a change to a 2 hectare zone then there may be consideration. Circumstances are that the zoning is still as it was at that particular time and the appropriate course would be by way of an amendment to the subdivision standard for the zone if council considered that to be desirable. But clearly at the moment the planning regime in place is to provide for a rural landscape quality as contemplated by clause 13 of the LEP. 29 The proliferation or cumulative impact of other subdivisions is also a matter that the Court must have regard to in its assessment. Clearly other applicants would seek to invoke variations to gain a greater number of allotments, and the intent is for an averaging of 4 hectares. We can see in the vicinity of the subject site in terms of the analysis that was carried out there are a significant number of lots that are smaller than the 4 hectare minimum. However, this does not justify approving another one as such. Clearly there was a line drawn in the sand when council amended its LEP to introduce cl 13(b) and I must assume it has a proper planning purpose. 30 The variation as agreed to between the experts is some 12.5 per cent and whilst that may not be substantial in some respects, the percentage variation is not the issue and the Court must look at the underlying purpose of the standard. The underlying purpose allows for flexibility in the size of the allotments dictated by the constraints of the topography or the site. In this particular instance there are no topographical or other constraints of the site to justify the subdivision as proposed. 31 With respect to the issue raised by the council about public interest, once again in terms of providing for some certainty in the planning system I am of the view that the proposed development is not one that is in the public interest. It was submitted on behalf of the applicant, that there have been other approvals by council in the area and I appreciate that applicants expect consistency in decision-making. However, I must assess the merits of this application now before the Court and in my assessment allowing another subdivision that would reduce the overall average and scenic quality of the area would not justify approval of this application. 32 Clearly if council is approving applications that are inconsistent with cl 13(b) then the council should consider a review of such a clause so that owners of land are clear as to the future desired character of the area. I can understand how the applicant may feel aggrieved by the refusal of this application. However, the role of the Court is to assess this development application against the planning regime currently in place and the Court's role is not an inquiry into the appropriateness of the zoning and subdivision control. 33 In my assessment the development application fails the threshold test as the purpose of the standard is not satisfied in the SEPP 1 objection. Furthermore I am not satisfied on a merits assessment that the proposed development is consistent with the zone objective. That is objective (b), of the zone, "to encourage the preservation of the rural landscape character by ensuring that development is compatible with that character". 34 Accordingly the formal orders of the Court are: 1. The appeal in respect of the property being Lot 3 in DP1082273, known as No. 40 East View Drive, Orangeville is dismissed. 2. The development application to subdivide the subject land into two allotments is determined by the refusal of consent. 3. The exhibits except 5, 6, A and F are returned to the parties. ___________________ J S Murrell Commissioner of the Court 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.