Land and Environment Court of New South Wales CITATION : McLean v Liverpool City Council [2010] NSWLEC 1106 APPLICANT R McLean PARTIES : RESPONDENT Liverpool City Council FILE NUMBER(S) : 10976 of 2009 CORAM: Moore SC KEY ISSUES: DEVELOPMENT APPLICATION - SUBDIVISION :- Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 LEGISLATION CITED: State Environmental Planning Policy No 1 Liverpool Local Environmental Plan 1997 Liverpool Local Environmental Plan 2008 CASES CITED: Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 DATES OF HEARING: 30 and 31 March 2010 EX TEMPORE JUDGMENT DATE : 31 March 2010 APPLICANT Mr J Cole, solicitor HWL Ebsworth LEGAL REPRESENTATIVES: RESPONDENT Mr C Drury, solicitor Sparke Helmore JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE SC 31 March 2010 09/10976 R McLean v Liverpool City Council JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 SENIOR COMMISSIONER: Denham Court Road climbs to the north-west toward Camden Valley Way from the lower parts of a portion of the Cumberland Plain in the vicinity of Campbelltown and its suburbs. The climb from Denham Court Road is along a prominent ridgeline in the area. Planning controls for both the Liverpool City Council (the council) local government area and the Campbelltown City Council local government area, Denham Court Road being the boundary between the two, have long sought to protect the scenic and visual quality of this area by the land use zonings on each side of Denham Court Road. 2 The present application comprises an application to subdivide an existing 2 ha allotment (toward, but not at, the lower portion of part of the rise of Denham Court Road in the Liverpool local government area) into two residential allotments, one of which would be of 1 ha, and the other one of which would be fractionally over 1 ha. The site is known as 185 Denham Court Road, Denham Court, and comprises Lot 100 in Deposited Plan 773919. The land is generally rectangular in shape and slopes from Denham Court Road away from the road with a fall of approximately 17 m from the Denham Court Road boundary to the rear boundary. A large brick dwelling house is erected at the upper part of the site in close proximity to Denham Court Road. The proposed subdivision is to be a battleaxe shape allotment created at the rear of the existing dwelling but down slope from it, coupled with an allotment that would encompass the existing house and have a lengthy frontage to Denham Court Road. 3 The requirement in the 1997 Liverpool Local Environmental Plan is for a minimum allotment size of two hectares in the rural 1C zone, being the zone within which 185 Denham Court Road is located. The applicant has applied to the council for the subdivision and accompanied the original application with an objection pursuant to State Environmental Planning Policy No 1 (SEPP 1) to compliance with the minimum allotment development standard. As the council does not have a delegation from the Director-General of the Department of Planning to uphold such SEPP 1 objections for such applications, although the council viewed the proposed subdivision favourably, it would appear from the council's bundle of documents the Director-General of the Department, through his delegate, determined not to grant the facultative benefit of sustaining the SEPP 1 objection. As a consequence, the council determined to refuse the application on the basis that the Director General's consent had not been provided. As a consequence of that, the applicant for the development consent appealed to the Court seeking that the court exercise the concurrence power permitted by the Land and Environment Court Act 1979 on behalf of, or in place of, the Director-General. 4 When the matter was set down for hearing, I was advised that the council now intended to enter into consent orders. When I attended the site for the purposes of dealing with the proposed consent orders, I had examined those proposed orders and informed Mr Drury, solicitor for the council, and Mr Cole, solicitor for the Applicant, that I consider that the then form of the orders was defective in that an order sustaining the SEPP 1 objection had not been included. I indicated further that I considered that as the council did not have the delegation of the Director-General and the Director-General's delegate's earlier decision had not been set aside by a subsequent granting of the Director-General's consent to sustaining the SEPP 1 objection, the council lacked the power to enter into consent orders, and that the matter would need to proceed to a hearing. I adjourned the matter to the following day to permit the applicant and the council to consider that, and to permit the applicant to deal with what I considered were a number of fundamental defects in the then proposed SEPP 1 objection. I granted leave for the applicant to file a further SEPP 1 objection that was responsive to and dealt with the concerns that I had expressed concerning the documents on the Court's file. Such a further SEPP 1 objection has been prepared, and was tendered today. 5 It is necessary therefore for me to consider two matters in these proceedings. The first is the question of whether I should sustain the SEPP 1 objection to compliance with the minimum allotment standard contained in the 1997 LEP, and second what weight, if any, I should give to the terms of the 2008 Liverpool Local Environmental Plan, a Local Environmental Plan that retains the 2 ha minimum allotment size for this location, but which is subject to a specific provision not amenable to being modified by SEPP 1 objection – as only a ten per cent variation for one of two allotments to be created for any subdivision of a single allotment into two allotments is allowed to be the maximum extent of the departure from the minimum allotment sizes. It is clear that if the 2008 LEP provisions were to be applied, as this proposed subdivision does not result in an allotment of 2 ha and a secondary allotment of 1.8 hectares, the subdivision would be prohibited and not available to be facilitated by an SEPP1 objection. 6 I turn first to the question of the revised SEPP 1 objection that has now been provided in these proceedings. This objection deals with the matters required to be dealt with in the conventional fashion following the formulae set out by Lloyd J in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46, that is the posing and answering of five questions, they being: o is the planning control in question a development standard? o what is the underlying object or purpose of the standard? o is compliance with the development standard consistent with the aims of the policy - I interpolate that being SEPP 1 – and, in particular, does compliance with the development standard tend to hinder the attainment of the object specified in ss 5(a)(1) and (2) of the Environmental Planning and Assessment Act 1979 (the Act)? o is compliance with the development standard unreasonable or unnecessary in the circumstances of the case and whether a development which complies with the development standard is unreasonable or unnecessary? and o finally is the objection well-founded? 7 There is, in dealing with those questions, no doubt that the numerical restrictions comprise a development standard pursuant to the 1997 and 2008 LEPs. 8 Mr Haskew, the applicant's consultant planner, has, in the most recent SEPP 1 objection, analysed what he says is the underlying objective or purpose of the standard by having regard to the objectives, the Rural 1(c) Environmental Protection zone, within which the site is located. With the exception of a small area of land so zoned in the vicinity of the village of Wallacia, the only other areas in the Liverpool local government area so zoned are those that are along the boundary between the Liverpool local government area and the Campbelltown local government area in the vicinity of the site, being those lands generally on the Liverpool side of Denham Court Road as it goes from Campbelltown Road through to Camden Valley Way. 9 Although there is a portion of that land that is to the north-west of the main canal operated by Sydney Water to transport water through to the Prospect Reservoir, the dominant area is on the ridgeline to which I have earlier referred, and at its northern end on land on both sides of the ridge, rather than merely on the northern side in the vicinity of the site. The land that is on the flat land to the Camden Valley Way frontage of the 1(c) -zoned area is also comparatively visually prominent both from the Camden Valley Way and from Denham Court Road. The objective of the rural 1(c) zone are as follows: "(a) to provide a physical and visual barrier to urban development; (b) to preserve the rural character and scenic landscape qualities of the area; (c) to permit rural residential development which is compatible with the rural character and scenic landscape qualities of the area in terms of allotment size, design, and siting of buildings and landscaping; (d) to ensure that development is compatible with the ecological attributes of the area; and (e) to preserve bushland, wildlife refuges, wildlife corridors, and natural habitat." 10 I observe at this point that objectives (d) and (e) are not applicable to the present site 11 It is reasonable in my view, as discussed in the SEPP 1 objection, to assume that all five of those effectively comprise the underlying purposes for the development standard, and that in this case I should have regard to objectives (a) through to (c) in determining whether or not the present development standard objections should be sustained. There are a number of matters that are of relevance in this fashion, some of which are discussed by Mr Haskew, and others of which have arisen by information provided to me by Mr Drury on instructions. 12 The first is that in this instance the proposed subdivision will result in a building envelope on the lower end of the present site. It is a building envelope that will be subject to a development restriction by public-positive covenant limiting any proposed building to one storey. It will be in a location that is shielded (at least significantly on two sides and to a lesser extent on the other two sides, of the building envelope) from visual intrusion by virtue of existing landscaping that is located on the site. No element of the building that will be located on the proposed building site will be visible to any extent, if at all, from Denham Court Road or from, I am satisfied, any other frequently trafficked area in the public domain. That element, to my mind, is a significant matter to be taken into account in considering whether or not the objectives of the rural 1(c) zone are satisfied or not. 13 The size of the site and the nature of the open grassed area and the significantly sized rural dam in the corner of the property down-slope, part of which dam is within the site, part of which dam is shared by one or more neighbouring properties, I am satisfied will assist with the satisfaction of the second of the zone objectives, and finally, the siting of the buildings and the limitations on it are in general terms satisfactory of the third of the relevant zone objectives. 14 As a consequence, I am satisfied, in light of those findings and in light of the fact that there is a subdivision pattern further to the north and down slope that is also generally consistent with the proposed development here, that the compliance with the development standard in this instance would tend to hinder the attainment of the objectives in the relevant sections of the Act because it would be contrary to the orderly economic development of land. However, it is important at this time that I note that Mr Drury's instructions are that there are no other undetermined subdivision applications of this nature in the vicinity along Denham Court Road or Fox Valley Road (this latter road being the road along the ridgeline to the north-west of the site), that would be susceptible to having the determination I am making today regarded as a precedent for their approval. 15 One of the reasons why I am satisfied that this application is acceptable is because not merely of the fact that the proposed building envelope is down-slope to the east on the site, but because the site itself is significantly down-slope to the south-west towards Campbelltown Road on Denham Court Road, and that those factors make not merely the proposed development less perceptible, if not imperceptible, but the slope of the land up the ridgeline itself renders the nature of the subdivision less perceptible (or imperceptible), whereas such a subdivision further up-slope towards the top of the ridgeline would be more prominent and would not be immediately susceptible to such an SEPP 1 objection being sustained. I make that observation as a precautionary one, less the instructions that Mr Drury has been given concerning subdivision applications were inadvertently to prove to be incomplete, as I would not wish this subdivision approval and sustaining of this SEPP 1 objection to be taken as a precedent for any other subdivision application further upslope towards the north-west on Denham Court Road. 16 As a consequence of all that I have said, I am satisfied that compliance with the development standard is unnecessary in the circumstances of this case and, as a development complying with the standard is not possible, it is unreasonable to consider that such a development would be able to occur. I am therefore satisfied that the SEPP 1 objection in this instance is well founded. 17 That leads me to turn to the provisions of the 2008 LEP. At the time the application was made, the 2008 LEP was on display but had not yet been finalised. Clause 1.8A of that LEP is in the standard form of such clauses in the template LEP and requires that undetermined applications at the time of making the LEP are to be considered as if effectively the LEP was on display but not yet made. As a consequence, it has been the practice to hold that this LEP's provisions, and similar provisions in other LEPs should be given significant but not necessarily determinative weight. I am satisfied that that is the appropriate course for me to take here. 18 Because the 2008 LEP effectively closes the gate on any further subdivision applications along this portion of Denham Court Road close to the top of the ridgeline and because I am satisfied (for the reasons I have previously outlined) that this subdivision approval should not be regarded as a precedent should there be any undiscovered applications pending, I am satisfied that on very fine balance, I should not regard it as sufficient weight to tip the scales against the applicant in these proceedings. 19 I make, before giving formal orders upholding the appeal, one further observation. The original plans for which approval was sought were based on a subdivision plan that simply identified the cadastral boundaries of the further proposed subdivision in the building envelope. 20 The proposed subdivision had been notified to a number of surrounding residents, and one objection had been received, that being from residents of the adjacent dwelling immediately to the north-west at 195 Denham Court Road. Part of the documents that had been filed by the Court but not incorporated in the development application had included a landscape plan for the proposed subdivision. The objection from the neighbours is based in significant part on their wish to have the driveway screened from their residence and to have that for what they considered to be noise and visual intrusion protection. 21 Whilst, in my experience, it is unlikely that the vegetation will have any significant noise improvement for them, it is also unlikely that there is to be a vast volume of traffic arising from any dwelling on the site. However, there, are given the slope of the land away in that direction, some limited visual intrusion impacts and they would be addressed by the landscaping proposed in the landscaping plan - being landscaping generally between the existing row of European olive trees running (in rough terms) north-west along the boundary of the proposed building envelope on its western side, from that point back to Denham Court Road. 22 Mr Cole, solicitor for the applicant, was given instructions during the course of the hearing this morning, that the applicant was prepared to accept the condition that that landscaping should be planted as part of the subdivision consent, and I am satisfied that that is an appropriate and desirable response to the concerns of the neighbours. 23 As a consequence of all of that, the orders of the Court are: 1. Objection pursuant to State Environmental Planning Policy No 1 to compliance with the minimum allotment size in the Rural 1(c) zone contained in the Liverpool Local Environmental Plan 1997 is sustained; 2. The appeal is upheld; 3. Development Application 79/2009 to subdivide 185 Denham Court Road, Denham Court, into two allotments is determined by the granting of development consent subject to conditions of consent that will be incorporated in the formal orders of the court; and 4. The exhibits other than Exhibits 1, 9, 10, and C are returned. 24 I direct: 1. the respondent is to file and serve revised settled conditions of consent, both electronically by email and physically, by the close of business on Friday 9 April; the matter is set down for mention before the Registrar on Wednesday 21 April; 2. if direction (1) is complied with I will make orders in chambers and vacate the mention; and 3. liberty to re-list before me on two days notice in the week commencing 12 April. 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.