Land and Environment Court of New South Wales CITATION : Allen and anor v Cessnock City Council [2010] NSWLEC 1179 APPLICANTS N & K Allen PARTIES : RESPONDENT Cessnock City Council FILE NUMBER(S) : 10072 of 2010 CORAM: Moore SC KEY ISSUES: DEVELOPMENT APPLICATION - DEVELOPMENT STANDARDS - SUBDIVISION :- Non-compliance with minimum allotment size Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Cessnock Local Environmental Plan 1989 State Environment Planning Policy No 1 CASES CITED: Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46 Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 DATES OF HEARING: 28 May 2010 EX TEMPORE JUDGMENT DATE : 28 May 2010 APPLICANTS In person LEGAL REPRESENTATIVES: RESPONDENT Mr A McKelvey, solicitor Sparke Helmore JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE SC 28 May 2010 10/10072 N & K Allen v Cessnock City Council JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 SENIOR COMMISSIONER: By Development Application 8/2008/824/1, Mr and Mrs Allen sought consent from Cessnock City Council (the council) to subdivide Lot 1154 in Deposited Plan 785691 into two allotments. The present lot is some 21.5 ha in area with dual frontages to Richmond Vale Road, Mulbring – a small rural area between Cessnock City and the main Sydney to North Coast Freeway. 2 The proposal seeks to create an allotment of some 19.6 ha that would include the present residence and machinery shed and a new allotment (using the smaller and south-western arm of the frontage to Richmond Vale Road) of 2 ha. 3 The reason for the unusual configuration of the road frontages and the present allotment is a consequence of the subdivision, some 25 years or so ago, of a 2 ha concessional allotment under the then provisions of the then Cessnock Local Environmental Plan. 4 The present proposal and has been rejected by the council on a number of bases – the principal ones arise from the terms of the Cessnock Local Environmental Plan 1989 (the LEP) and the objectives of the Rural 1(a) zone within which the land is located coupled with the minimum allotment size specified by cl 12 of the LEP. This clause requires that the land in the zone shall not be subdivided unless each allotment to be created has an area of not less than 40 ha. 5 The applicants have submitted an objection pursuant to State Environment Planning Policy No 1 (SEPP 1) to compliance with the development standard contained in that provision of the LEP. 6 If the applicants surmount that hurdle, a matter to which I will return, the council then submits, through its solicitor, Mr McKelvey, that as a consequence of cl 9(3) of the LEP, I would not be satisfied that the development is consistent with the objectives of the zone and that, unless I am able to form that opinion as required by that clause, on the merits I must refuse the application. 7 If Mr and Mrs Allen surmount both those hurdles, there are a number of minor matters that are put as impediments by the council – the principal one of which, on my understanding of the council's Statement of Facts and Contentions, is the potential unavailability of electricity supply to the land. 8 I indicate at this point that it if the application surmounts the earlier more formidable hurdles, I have reached the conclusion that the question of electricity supply is capable of being dealt with by deferred commencement of condition and does not stand as an impediment. Any other minor concerns are also able to be dealt with by condition. 9 There are no other substantial merit matters, at least as I understand it, concerning access to the road, other services and the like that stand as impediments to the proposal. 10 It is appropriate, at this point, to record the objectives of the Rural 1(a) zone from the zoning table in the LEP. These are: (a) to enable the continuation of existing forms of agricultural land use and occupation, (b) to ensure that potentially productive land is not withdrawn from production, (c) to encourage new forms of agricultural land use, (d) to enable other forms of development which are associated with rural activity and which require an isolated location, or which support tourism and recreation, and (e) to ensure that the type and intensity of development is appropriate in relation to: (i) the rural capability and suitability of the land, (ii) the preservation of the agricultural, mineral and extractive production potential of the land, (iii) the rural environment (including scenic resources), and (iv) the costs of providing public services and amenities. 11 It is necessary, therefore, first to consider the question of whether or not the objection pursuant to SEPP 1 should be sustained or not. 12 The conventional formulation of assessing an application to object to compliance with a development standard was set by Lloyd J in Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46. His Honour there posed five questions those questions have been set out classically by commissioners of the court since at that time as being a framework within which we have considered objections pursuant to SEPP 1. 13 Although that classic formulation was expanded further by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446, it is not necessary, in my view, in these proceedings, to go beyond the five questions posed by Lloyd J in Winten. Those questions are as follows: 1. Is the planning control in question a development standard? 2. What is the underlying object or purpose of the standard? 3. Is compliance with the development standard consistent with the aims of the policy and, in particular, does compliance with the development standard tend to hinder the attainment of the objectives specified in section 5 (a)(i) and (ii) of the Environmental Planning and Assessment Act 1979? 4. Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? and 5. Is the objection well founded? 14 Although Mrs Allen indicated she did not consider that the minimum allotment size provision was a development standard, it is unquestionably such a standard. Because of the structure of the clause, it is a standard that is amenable to an objection pursuant to SEPP 1 as it is not an absolute prohibition on the development for which consent is sought. 15 Although Mr McKelvey endeavoured to take me to a recital of historical sources relating to what might be regarded as the underlying objectives of the 40 ha minimum allotment size standard, I decline to have regard to them. As I indicated to him during the course of the hearing, I do so because there is no evidence that that material was in the minds of or informed the decision-making process of the councillors of the council when considering and adopting cl 12(1) of the LEP. 16 It is therefore appropriate, in my view, as is traditionally the case in such circumstances where there is no expressly articulated set of objectives for such a minimum allotment size standard, to turn to the objectives of the relevant zone in the LEP. 17 In the support of their objection, Mr and Mrs Allen rely on a number of documents as being relevant. The first of them is a letter dated 12 December 2008 – a letter that is a formal objection pursuant to SEPP 1. The second is the material contained in their statement of environmental effects lodged with their application – being a document that sets out what they say are the special features of their allotment that sets them apart from other allotments in the vicinity. 18 The third document upon which they rely is a letter dated 3 March 2009 to the General Manager of the council which letter deals with several points in support of their SEPP 1 objection. Next, they rely on a longer letter, dated 29 March 2010, addressed to the Court and dealing with a number of matters. As I indicated during the course of the hearing, I consider appropriate to regard this document as a submission in support of the SEPP 1 objection. 19 The final documents upon which they rely are development consents granted to a Mr and Mrs Redford, in 2004, for subdivisions at 1060 Leggett Drive, Mount Vincent, creating two smaller allotments in arrangements that might be regarded as generally consistent with the arrangement that the Allens propose here. 20 It is appropriate to dispose of reliance on those subdivisions before turning to the matters of merit upon which they rely. It is clear from the documentation that has been submitted to me that the development consents granted to Mr and Mrs Redford were ones that were granted pursuant to the then provisions of the LEP - being contained in cl 12(4) of the LEP that dealt with concessional allotments. That position is quite clear from the documentation provided relating to that assessment process. Clause 12(4) has been repealed and was repealed prior to the lodgement of Mr and Mrs Allen's development application. 21 Mr and Mrs Allen's development application stands to be assessed based on the present provisions of cl 12 of the LEP. In my view, Mr and Mrs Allen can obtain no comfort from Mr and Mrs Redford's consents – these being consents that were granted under a provision that is incapable of applying to Mr and Mrs Allen's development application. 22 I turn now to deal with what Mr and Mrs Allen say is the special case of their application. Their application, they say in their letter of December 2008, proposes to create a new residential allotment in an area (paraphrasing the letter) where there are many semirural lots less than 40 ha in size and they say in the letter that the proposed subdivided lots are adequate in size for their intended use. I observe, at this point, that it is clear that the intended use of the smaller of the two allotments is – from the documentation provided – quite clearly a purely residential purpose rather than a rural purpose. 23 Mr and Mrs Allen's statement of environmental effects sets out, under 1.3 - Site Analysis, the opportunities that are said to arise with respect to the proposed allotment: o first, it is part of a lot by nature of its shape and location that is not integral to the "usable" rural component the land; o it falls away from Richmond Vale Road to a natural water course, thus giving good drainage; o there is appropriate solar and daylight access provided to any new dwelling; o services and utilities are available; o generous setbacks can be established thus ensuring privacy (both visual and acoustic); and that o there would no be no loss of healthy or mature trees. 24 I do not understand that the use any dispute by the council with respect to those matters - save as to the assertion that the element proposed to be excised is not integral to the usable rural component of the allotment 25 Mr and Mrs Allen's letter of 3 March 2009 refers to the Redford subdivision which is, as I have earlier indicated, of no assistance to Mr and Mrs Allen in these proceedings but also indicates that: The area and location of the proposed new lot does not contribute to the usable rural purpose of the total site and the proposal will not decrease the available arable land 26 The final element of correspondence – that of 9 March 2010 – deals with, amongst other things, the reason why Mr and Mrs Allen wish to undertake the subdivision. This new allotment is to permit them to use the property as their residence on the site once the property is beyond their capacity to maintain it as rural land. Whilst that is a matter with which I might sympathise, it is not a matter that plays any role in the development assessment process. 27 Mr and Mrs Allen's application is supported further, in this letter, by a number of propositions. They put that: o the proposal does not result in the effective loss of useful agricultural land; o the proposal is consistent with the intent of the zoning controls; o whilst the proposal is primarily for the purposes of an additional dwelling, it is not contrary to cl 12(1) of the LEP because local services, facilities and necessary infrastructure available; o the site is adjoined on both sides by existing dwellings with a scale related to the lot sizes that no "ribbon" development will result; and o in the context of the specific site, the minimum lot sizes are not relevant to the intent of the zoning. 28 Mr and Mrs Allen's letter then continues to deal with the proposed zoning under the draft LEP. I am satisfied that the application would be preserved by the application of clause 1.8A of the draft LEP if it were come to come into effect. However, on the evidence available to me today, there is no basis upon which I could conclude that the draft LEP was both imminent and certain – there have been some 900 public submissions made to it requiring consideration. I am therefore satisfied that I should give so little weight to the draft LEP that it is not a matter for relevant consideration. I therefore do not need to turn to the matters that Mr and Mrs Allen put with respect to that draft and the zoning for the site that is proposed pursuant to it. 29 Having set out those historic matters, it is then relevant for me to deal with a number of the Allen's submissions in response to the third Winten question. 30 I turn first to the question of the presentation of the development to Richmond Vale Road. Although, during the course of the site inspection, I had pointed out to me by Mr Allen houses that are located in the vicinity, those houses (with the exception of the house on the concessional allotment that was subdivided from and is an island in the middle of the present land and the possibility of a dwelling on the corner of Richmond Vale Road and Maitland Road) all of the other dwellings, although consistently in the streetscape are relatively close to their frontages with Richmond Vale Road, are nonetheless (on the basis of the subdivision pattern available to me in the council's plan) on significantly larger allotments that appeared to vary from some 12 ha in size and upward. 31 Although I accept that the dwelling that is proposed would follow from the granting of this application would be consistent with that streetscape, it is not a factor that I consider appropriate to take into account as the location of the remainder of the dwellings is not informed by the nature of the subdivision pattern. 32 Similarly, the question of availability of services and the like is not relevant to my consideration as to whether or not the underlying objectives of the Rural 1(a) zone should be set aside as the basis of maintaining the development standard 33 I return to the Winten tests. The question first arises is whether I should regard to the compliance of development standard as being consistent with the aims of the policy. The aims of the policy are, in summary, to provide flexibility in development and to ensure that local environmental plans do not operate in an inflexible and rigid fashion and deny development that would otherwise be appropriate in a locality. The question posed by Lloyd J also requires consideration of the objectives specified in s 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979 – the principal one of which is relevant in these proceedings is the promotion and coordination of the orderly and economic use and development of land. 34 It seems to me, in this instance, although there are a wide range of matters of convenience understandably advanced by Mr and Mrs Allen, that the orderly and economic use and development of land in this case is framed by the objectives of the zone. None of those objectives supports the excision of a block of land of this size dominantly or principally for the purposes of residential use. The taking out of 2 ha from a 21.5 ha allotment undoubtedly reduces the potentially productive land based on the Department of Agriculture's land capability mapping which has been tendered. The proposed excision is therefore entirely contrary to the objectives (a), (b) and (e)(ii) of the zone – in that seeks the withdrawal of some 10% of the existing allotment from potentially productive agricultural use. 35 Thus, I do not consider that it is possible – understandable though the reasons for Mr and Mrs Allen in seeking to have the provisions of the development standard set aside – that I could reach the conclusion that it would be unreasonable or unnecessary in the circumstances of this case to conclude that the standard should be upheld. 36 As a consequence, it would be inappropriate for me to sustain the SEPP 1 objection as there is no basis advanced in any of the material as to why it would be unreasonable and necessary to comply with the underlying objectives of the standard (being those derived from the zone objectives). 37 Whilst it might be considered undesirable by the Allens in their circumstances to do so, mere undesirability is not one of the tests that provided for in SEPP 1. The necessary consequence of the foregoing is that: 1. The appeal is dismissed; 2. Objection pursuant to State Environmental Planning Policy No 1 to compliance with the required minimum allotment size is not sustained; 3. Development Application 8/2008/824/1 to subdivide Lot 1154 DP 785691 (known as 40 Richmond Vale Road, Mulbring) is determined by the refusal of development consent; and 4. The exhibits, other than Exhibits 3, A, B, D and E, are returned. Tim Moore Senior Commissioner 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.