Land and Environment Court of New South Wales CITATION : Lonergan v Byron Shire Council [2007] NSWLEC 618 APPLICANT Chris Lonergan PARTIES : RESPONDENT Byron Shire Council FILE NUMBER(S) : 10370 of 2007 CORAM: Hussey C KEY ISSUES: Development Application :- refusal of a 2 lot rural/residential subdivision, SEPP 1 objection to minimise lot size, character of area. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Byron Local Environmental Plan 1988 DATES OF HEARING: 06/08/2007 DATE OF JUDGMENT: 25 September 2007 APPLICANT Ms A. Douglas, solicitor of Stacks Northern River LEGAL REPRESENTATIVES: RESPONDENT Mr A. Seton, solicitor of Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 25 September 2007 10370 of 2007 Chris Lonergan v Byron Shire Council JUDGMENT Background. 1 This appeal was lodged against council's refusal of a 2 lot residential subdivision at 204 Balraith Lane, Ewingsdale. The subject land is an irregular shaped allotment, which is described as Lot 3 in DP 582689 and has a total area of 2.029 ha. 2 The development proposal is to create the following 2 lots as shown in Attachment 1: i) Lot 1; a new allotment with an area of 0.56 ha. It is of irregular shape and has a 38.19m frontage to Balraith Lane and the benefit of a right-of-way over the battle-axe handle of the rear allotment. ii) Lot 2; the residue of the existing battle-axe shaped allotment, which is to have an area of 1.473 ha. It is connected to Balraith Lane via an 8m wide right-of-carriageway. 3 There is an existing dwelling situated on the upper level of the proposed Lot 2. The proposed subdivision maintains the existing driveway and servicing for this house and proposes that any dwelling on the new allotment be also serviced via the existing driveway with any required easements being registered as part of the subdivision. 4 The property is situated in an established rural-residential area and it is largely cleared with the exception of the gully which transects the site and the higher slopes towards the south-western and southern boundaries which contain a mix of native and exotic species. 5 The surrounding development consists of: o immediately to the west, a 4.45ha property with a dwelling; o immediately to the south-west, a 2.09ha property with a dwelling; o immediately to the south-east and east, a 66ha property, on the eastern part of which is situated a recreational facility; o immediately to the north-east a 0.41ha property with a dwelling; o to the north is Balraith Lane. 6 On the northern side of Balraith Lane are approximately 8 rural residential allotments ranging in size from 0.29 to 1.47 ha. 7 The main issues raised concern: o The proposal does not comply with the subdivision density development standards for the zone and consequently whether the SEPP 1 objection to the development standard should be allowed. o Whether the subdivision will have an adverse impact on the rural landscape character. o Whether the new lot 1 is suitable to support a new dwelling. o Whether the approval of the proposal would lead to a cumulative increase in intensity of residential development and result in an exceedence of the residential capabilities of the zone. Planning Controls 8 Byron Local Environmental Plan 1988 (LEP). Under this LEP the land is zoned partly 1(c2) – Small Holdings (c2). This portion of the land has an area of approximately 1.3ha. The remainder of the land is in the 7(d) (Scenic Escarpment Zone). 9 Subdivision of the land is permitted with consent, subject to the following provisions of clause 11 (1) of the LEP: Zone Minimum Area (ha) Rural 1 (c2) Small Holdings ("c2") Zone, 0.2 Environmental Protection 7 (d) Scenic/Escarpment Zone, 40 (2) Notwithstanding subclause (1), the council may only consent to: (a) … (b) the subdivision of any land within Zone No 1 (c2) shown unhatched on the map - where the number of allotments to be created by the subdivision for the purpose of a dwelling house is not greater than the area of the land divided by 0.8, and (c) … 10 Clause 9 refers to the zone objectives and development control table and states: (3) Except as otherwise provided in this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out. 11 Clause 2A deals with the LEP provisions for the implementation of the aims, objectives and guiding principles, wherein: (1) The Council shall grant consent to the carrying out of development on land to which this plan applies only where the Council is of the opinion that the carrying out of the development is consistent with the aim, objectives and guiding principles of this plan. (2) Before determining and development application, the Council shall have regard to the information, guidelines and recommendations in the following strategies, policies and studies adopted by the council: a. State of the Environment Report. b. … c. … d. Byron Rural Settlement Strategy. 12 State Environmental Planning Policy No 1 - Development Standards 13 North Coast Regional Environmental Plan 1998. 14 Byron Development Control Plan 2002, under which the following Part B - Subdivision controls are relevant. Part B 4.1; Element – Lot Size and Shape states the following objectives: o To ensure that new lot sizes and shapes are consistent with defined planning objectives. o To ensure that adequate access is available to hatchet-shaped lots. 15 Part B5.3 contains the provisions for allotment design. 16 Byron Shire Council s94 Contributions Plan 2005. The Evidence. 17 Expert evidence in this matter was presented by Ms P Newman (Council's senior development assessment officer) and Mr C Lonergan (Consulting town planner). This evidence is contained in the joint planning report – Exhibit 6. 18 A SEPP 1 Objection was lodged against the minimum subdivision lot sizes contained in cl 11(1) of the LEP. 19 Other evidence was presented by the following residents: o Mr D Young & Ms K Platt, neighbours 210 Balraith Lane. o Mr & E Freeman; neighbours 202 Balraith Lane. 20 Mr Young objected to the proposal because he considers the subdivision will facilitate the construction of a new dwelling in close proximity to his recently completed residence. Considering the constraints imposed by the shape of the new Lot 1, the designated building footprint indicates a new dwelling would be approximately 15m from his common boundary. As such, the proximity of any new dwelling would not be consistent with the rural/residential character of this neighbourhood where dwelling houses are well separated, in a landscape setting. 21 Furthermore, he considers the constrained location for a new dwelling would likely impose on the privacy of his dining and pool area, where intervening landscaping will be of little utility considering its potential impact on view corridors. 22 Mr Freeman did not consider the new lot suitable for the construction of an appropriate dwelling, which would achieve a similar level of amenity and privacy that currently exists. He considers that the non-compliance with the minimum lot size development standard is excessive and the SEPP I Objection should not be allowed. 23 The main hurdle in this matter concerns the SEPP 1 objection to the subdivision density control in cl 11 of the LEP, which the parties agree is a relevant development standard. It sets out a density for the 1 (c2) zone of 1 lot per each 0.8 ha, subject to each lot having a minimum area of 0.2 ha. 24 Even though the subject land has total area of 2.029 ha, only 1.3 ha is within the 1 (c2) zone and available for subdivision. This is below the minimum required area of 1.6 ha to allow subdivision. 25 Accordingly, the applicant proposes to round up the number of lots to 2, due to the large size of the parent lot, the compatibility of the proposal on the existing settlement pattern of the area - thus optimising the use of the land and enabling ecological benefits to the entire property. Furthermore, the SEPP 1 objection supports the proposal because: o The approval of the proposed development will not necessitate major site works. o The subdivision will not increase the density of the settlement pattern, which already exists, or affect the rural character of the area. o It will improve the environmental and economic utilisation of already zoned and serviced land. 26 In the application of the Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 tests for SEPP 1 objections, the 2nd test requires identification of the underlying objective. According to the SEPP 1 objection, the stated underlying object or purpose of this development standard is considered "to be one of permitting Rural subdivision, yet maintaining a perceived level of rural amenity by setting a minimum Lot Size. With the habitat restoration proposed, and the fact that the residue 7 (d) remains un-subdivided within the residue lot, and the small lot blends into the 1 (c2) settlement pattern, then the underlying purpose of the objective is met". 27 In the circumstances of this development, the purpose of the subdivision is to create a new lot, which will enable future erection of a dwelling house that should maintain a reasonable standard of rural amenity in this neighbourhood. However the shape of the existing battle-axe lot severely constrains the shape of the new allotment, which then limits the location of an appropriate building footprint. As I have noted, the designated 15m x 12m building footprint is approximately 15m from the common boundary with the Young/Platt dwelling, which is considerably closer than other dwellings in this part of the neighbourhood. 28 An associated concern is the provision of adequate area for effluent disposal fields. Given the environmental sensitivity of the site, limited area for the disposal are available, although I accept those tentatively shown should be satisfactory, if the notional potential building site is acceptable after other merit considerations. 29 Ms Newman does not consider the subdivision is compatible with the existing settlement pattern. Within the Ewingsdale neighbourhood, she distinguishes the section north of Taylors Lane from the southern section, where the subject lot is located. Whilst there are a significant number of smaller lots with areas of approximately 2000sqm in northern section, the southern section generally contains larger allotments, whereby she estimates 70% of lots exceed the size of the proposed lots. Accordingly, she does not consider the proposed subdivision adequately maintains the separation and rural residential character in this section of Ewingsdale. 30 Against this, Mr Lonergan says that the proposal is compatible with the neighbourhood and he supports the subdivision on the basis that the land is serviced and consistent with other allotments in the area and the rural land provision strategy. Conclusions 31 Having consider the evidence, the submissions and undertaken a view, I do not consider this subdivision application merits consent. The site is constrained by the irregular shape of the existing battle-axe allotment, which limits the configuration of the new allotment and opportunities for future location of a new dwelling and associated effluent disposal fields. 32 Accordingly, a 15m x 12m building platform has been identified within relatively close proximity to the large, recently completed residence on the adjoining lot 4, which has an area of 4047 sq m. Insofar as this is the standard residential "building footprint", it would seem to be minimal in the context of this neighbourhood where it is obvious that there are large dwellings, with ancillary structures situated in landscaped grounds. If a similar larger dwelling was erected where depicted, then I am satisfied that a much lower-level of amenity would be experienced by the property owners on Lot 4 and the occupiers of the proposed new Lot 1. This is primarily due to the minimal separation opportunities between existing and future residences and constraints imposed by the necessity to provide areas for effluent disposal fields. 33 From my observations on the view, I am inclined to accept Ms Newman's opinion that there is a noticeable character change in the properties that are located generally south of Taylors Lane. The allotments in this rural residential area are generally larger, enabling greater separation between dwellings and ancillary structures and this consequently provides a higher level of amenity and privacy, than might be anticipated in the northern section where there are significantly more smaller allotments. 34 I am therefore satisfied that it is appropriate to adhere to the minimum lot size, to maintain the established rural character density, as contained in objectives 1 (c) and (d) for this Zone 1(c) Small Holdings Zone. The maintenance of rural amenity and associated with a minimum lot size was identified as an underlying objective (2nd Winten test) of the development standard in cl 11 of the LEP. Consequently, I do not consider the proposal adequately satisfies this objective due to the under-sized lot imposing inadequate separation opportunities for a new dwelling and associated structures, likely to occur in this rural residential zone. 35 With regard to the 3rd (Winten) test concerning whether compliance with the development standard tends to hinder the attainment of the objects specified in section 5 (a) (i) and (ii) of the EP&A Act, the applicant concluded that by not allowing the variation to the development standard, then there will be: "no encouragement of proper management, development and conservation of natural and man-made resources, including agricultural land, and a development which promotes the social and economic welfare of the community, and the attainment of a better environment." 36 The applicant also referred to the Byron Rural Settlement Strategy 1998, which assessed land for new rural settlements on the basis of ecological, social and economic considerations that was encapsulated into an integrated decision-making process for the Shire. This strategy considered a supply analysis, however it maintains the current density level of 0.8 hectare average. It identified 2 lots in Ewingsdale (Lot 29 and 102) with a potential for boundary adjustments to create 8 lots in total. As the subject land is not included in the strategy for subdivision or boundary adjustment, I do not consider the refusal of the proposed subdivision will hinder the attainment of the section 5 (a) objectives of the EP&A Act. 37 Consequently, in response to the 4th test, I am satisfied that compliance with the development standard would not be unreasonable or unnecessary in the circumstances of the case, so as to maintain the particular rural residential character of this area. Because of the constrained shape of the land, I am satisfied that a complying development would require an allotment with a larger area that would consequently allow appropriate opportunities for the location of an appropriate dwelling, ancillary structures and services, which maintain the rural amenity of this neighbourhood. Accordingly I do not consider the proposal satisfies the 4th test. 38 For these reasons then, I do not consider that the SEPP 1 objection is well founded (5th test) and therefore the proposal fails. This conclusion is consistent with the opinion of Ms Newman that the site is not suitable for the proposed subdivision and I rely on this evidence. Court Orders 1 The appeal is dismissed. 2 The SEPP 1 objection to the minimum allotment size development standard contained in clause 11 of the Byron Shire LEP 1998 is disallowed. 3 The development application for a 2 lot subdivision of Lot 3 DP 582689, 204 Balraith Lane, Ewingsdale is refused. 4 The exhibits may be returned except for A, B and 6. ___________________ R Hussey 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.