Land and Environment Court of New South Wales CITATION : Nooramunga Holdings Pty Ltd v Gosford Shire Council [1988] NSWLEC 160 APPLICANT Nooramunga Holdings Pty Ltd PARTIES : RESPONDENT Gosford Shire Council FILE NUMBER(S) : 10529 of 1987 CORAM: Stein J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act CASES CITED: Warringah Shire Council v. Rippledeen ((l973) DATES OF HEARING: DATE OF JUDGMENT: 03/02/1988 APPLICANT LEGAL REPRESENTATIVES: Mr. Draper JUDGMENT: HIS HONOUR: This is an appeal in respect of the Council's refusal to consent to the subdivision of Lot 4 Deposited Plan 6227, Section l, Scenic Highway, Terrigal, into 2 lots. The application was refused on the basis of non-compliance with clause 26(2)(c) of the Gosford Planning Scheme Ordinance (the PSO) and the Council's subdivision code. The site has an area of 999m2 and is on the eastern side of the Scenic Highway, Terrigal. To the east the land adjoins a public reserve. The land is cleared and the rear half has a slope of generally l in 5 towards the east. A 2 storey brick residence stands on the front portion of the land and fronts Scenic Highway. At the time of the application to Council, and Council's consideration of it, the land was zoned residential 2(a2) under the PSO. However, the Planning Scheme was extensively amended by the Gosford Local Environmental Plan No. 200 gazetted on l2 February l988, a few days before the hearing of the appeal. Under this Plan all the residential zonings, 2(al) to 2(a6) inclusive, have been amalgamated into a new zoning - Residential 2(a). There is some significance in the zoning which I will consider later when addressing the arguments concerning the application of State Environmental Planning Policy No. 25 - Residential Allotment Sizes (SEPP 25). According to the subdivision application each lot is 497m2, (5m2 seems to have been lost somewhere along the way!). However, the rear lot (No. 42) is not a battle-axe allotment and its access is proposed to be via a right-of-way 3.5m wide to be created along the northern boundary of the front lot (No. 4l). The calculation by the applicant of the area of the front lot does not exclude this right of way. If the access is excluded from Lot 4l, as submitted by the Council, its area is reduced to 406m2. I should add for completeness that the rear lot (No. 42) does not include the access. Prior to the gazettal of LEP 200 clause 26(2)(c) of the PSO required, inter alia, that a person shall not erect a dwelling on land in the 2(a2) zone unless the land had an area of not less than 750m2. The new instrument provides that the Council shall not grant consent to the subdivision of land within zone 2(a) unless the minimum area of any allotment is not less than 450m2 and "(b) not more than 10% of the allotments in the plan of proposed subdivision have an area of less than 550m2", (Clause 30AAA(2)). The applicant lodged an objection under State Environmental Planning Policy No. l (SEPP l) to the shortfall in compliance with the old clause 26(2)(c) of the Ordinance on the basis that compliance with the standard was unreasonable. To the extent that it may be necessary for the applicant to rely upon the objection, it is my understanding that the Council has no objection to its being treated as amended in the light of the recent gazettal of LEP 200. The applicant also seeks to rely upon the provisions of SEPP 25. This policy was gazetted on 28 August l987. Clause 6 of the policy applies to the land specified in Schedule 2. Relevantly, it is in the following terms:- " (2) A provision of an environmental planning instrument does not operate so as to prevent the subdivision of land to which this clause applies (being the subdivision of land into allotments each having an area of 450 square metres or more) merely because one or more of the proposed allotments fails to comply with the requirements of the provision with respect to road frontage or with respect to the dimensions of an allotment that may be created by the subdivision of land in accordance with the instrument. (3) For the purpose of determining whether a hatchet-shaped allotment of land has an area of 450 square metre or more, the area of the access corridor to the allotment shall be ignored." Schedule l in the Policy lists the land to which the Policy does not apply. With respect to the Gosford Ordinance this includes, inter alia, zones 2(al) and 2(a4). I am informed that these zones include steep land. Schedule 2 of the Policy nominates land within zone 2(a6) of the Gosford Ordinance as land to which clause 6 applies. It is to be noted that neither Schedule refers to land in the former 2(a2), 2(a3) or 2(a5) zones. Indeed, these zones are not referred to anywhere in the Policy. As I have said the subject land was within zone 2(a2). However, since the l2 February l988 all the various 2(a) zonings have been amalgamated into a new residential 2(a) zoning so that the schedules to the Policy do not currently refer to any lands within the Gosford Council area. The Council concedes that it would be appropriate for the Court to assume that the Policy applies to that part of the new 2(a) zoning which was previously zoned 2(a6) but not to the subject land which was previously zoned 2(a2). Council also indicates that it expects that the Policy will, when amended (as it will need to be), apply to the new residential 2(a) zoning. The situation appears to be verging on the ludicrous. Firstly, the Policy seems to have omitted any reference to certain residential 2a zonings under the PSO so that they are neither within the policy nor excluded from it. But perhaps worse is the effect of the new residential zonings under LEP 200 which mean that SEPP 25, on its face, does not apply to the Gosford Council area at all! This situation could not possibly have been intended. However, I cannot see how I can accede to the submission of Mr. Draper on behalf of the applicant which is to the effect that the Court should interpret the Policy as applying to the land in the new Residential 2(a) zoning, when on its face it does not do so. It seems to me that I cannot apply SEPP 25. This is unfortunate for the applicant because I think that the Policy was intended to apply to this land and, by virtue of it, the subdivision would be permissible. It pervails over inconsistent provisions in the PSO (see clause 5) and overcomes any perceived problem of the area of the access corridor (clause 6(3)). Because of the provision in clause 30AAA(2)(a) of the PSO the area of the proposed front Lot 4l needs to be determined. Is it 497m2 or 406m2 if the right-of-way is excluded? On behalf of the Council Mr. Dawson submits that the access should be excluded from the lot. He relies on clause 26(3) of the Ordinance which provides:- "For the purposes of sub-clause 2 in assessing the area of any land, the area of any access corridor comprising any part of the land shall be excluded." On the other hand Mr. Draper submits that the area of the proposed right-of-way should not be excluded from Lot 4l because it remains in the ownership of the lot and does not become part of Lot 42. He also submits that the area of the right-of-way will still be available for the use of Lot 4l subject only to the right of access to and from Lot 42. In his submission the right-of-way is not an access corridor which comprises part of the land referred to in clause 26(3). In passing I should note that the Council does not submit that the rear lot is required to have a road frontage, (see Warringah Shire Council v. Rippledeen ((l973) 28 LGRA 214). In my opinion it is unnecessary to exclude the area of the right of way from Lot 4l. The right-of-way or "access corridor" does not comprise any part of the rear lot. It is part of the front lot but subject to the rear owner's right to utilise the right-of-way. The area of the easement remains in the ownership of the front lot, is not fenced off and can be utilised as part of that land. I do not believe that clause 26(3) was directed to a situation such as this but rather to the exclusion of an access handle from the calculation of area of a rear lot. Accordingly, I find that both proposed lots have an area in excess of 450m2 and therefore comply with the first limb of clause 30AAA(2). However, if I be wrong and the access is excluded from the area of lot 4l, then the short fall is less than l0% In these circumstances I would be prepared to uphold the SEPP l objection as compliance with the standard is seen as unreasonable. The underlying object is not defeated. However, in order to succeed the applicant also needs to rely upon its SEPP l objection in relation to the requirement in clause 30AAA(2)(b) of the Ordinance that not more than 10% of the allotments in the plan of the proposed subdivision have an area of less than 550m2. In a 2 lot subdivision one can readily appreciate the impossibility of compliance with this requirement. This leads to the question of the SEPP l objection to the standard contained in clause 30AAA(2)(b). It is not disputed that this is a development standard to which the Policy applies. In my opinion it is both unreasonable and unnecessary for a two lot subdivision to comply. The object of the provision or requirement is obviously directed to subdivisions larger than a division of land into 2 lots. Indeed, in this case it appears impossible to comply. No environmental detriment is done by the non-compliance with the requirement. Further, compliance tends to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Environmental Planning and Assessment Act, as well as being unreasonable and unnecessary in the present circumstances. In my opinion the objection is well founded and the granting of consent is consistent with the aims of the Policy. The Council also opposes the subdivision on the basis of certain section 90 heads of consideration, in particular section 90(l)(e), (f), (i), (o) and (q). On an examination of the evidence before the Court I am not persuaded that consent should be refused on the basis of any of these heads. The slope of the rear lot is not such as to make the siting or size of a dwelling unusually difficult. The position proposed for the access does not raise any real difficulties and appears suitable though it may fall short of the ideal. Sufficient space external to the dwelling on Lot 42 should be able to be provided with reasonable design. The remaining open space on the proposed front lot around the existing dwelling house should be adequate. I do not see the proposed subdivision as detrimental to the amenity of the neighbourhood. In the light of the provisions of the new LEP and indeed SEPP 25, a number of the provisions of the Council Subdivision Code become almost academic and I would not refuse consent because of the non-compliance with the Code which in some respects now represents an outdated policy. In the result the application is upheld and I grant consent to the subdivision subject to the conditions contained in Exhibit D which is annexed to this Judgment. There will be no order for costs and the exhibits may be returned with the exception of Exhibit D. 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