Land and Environment Court New South Wales Medium Neutral Citation: Yott v Penrith City Council [2011] NSWLEC 1031 Hearing dates: 14, 15 February 2011 Decision date: 23 February 2011 Jurisdiction: Class 1 Before: Hussey C Decision: 1. The appeal is dismissed. 2. The SEPP 1 objection to the minimum lot size development standard in cl 10A of the Penrith LEP 1998 is disallowed. 3. Development consent for DA 10/0815 for a 2 - lot subdivision of a proposed Lot 10 in an approved subdivision of Lot 1 DP 1033266 The Northern Road, Glenmore Park is refused. 4. The exhibits may be returned except for 5, 6, A and H. Catchwords: Development Application: Rural subdivision, SEPP 1 objection to minimum lot size, open space, visual amenity. Legislation Cited: Penrith LEP 1998 (PLEP) Penrith LEP 2010 Penrith LEP No 188 Penrith DCP 2006 Cases Cited: Wehbe v Pittwater Council [2007] NSWLEC 827 Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 Category: Principal judgment Parties: Bob Yott (Applicant) Penrith City Council (Respondent) Representation: Counsel: Ms J Reid, Solicitor (Applicant) Mr M Fraser (Respondent) Solicitors: Pikes Lawyers (Applicant) Penrith City Council (Respondent) File Number(s): 10863 of 2010 Judgment Background 1This appeal was lodged against council's deemed refusal of a development application for a 2 - lot semi-rural subdivision at No 2021 The Northern Road (TNR), Glenmore Park. 2The proposed lots are: * Lot 100; with an area of 1705 sq m and frontage to Boldero Crescent. * Lot 101; a hatchet-shaped lot connected to Bolero Crescent and having an area of 1.027ha. 3As the current planning controls prescribe a minimum lot size of 1ha in this 2(r) zone, a SEPP 1 objection to the minimum lot size development standard was lodged. Consequently, a number of issues were identified, which are summarised as follows: * Whether the proposal is consistent with the objectives of the plan and zone. * Whether the SEPP 1 objection should be allowed. * Consistency of the application with planning policies and the future planning direction, particularly landscape value and scenic character. * Rural landscape quality. * Site suitability. * Precedent and public interest. The site 4The site is currently described as Lot 1 in DP 1033226. It is hatchet-shaped with access handle connecting with the south-western side of TNR, Glenmore Park. This lot was created from the original 2ha lot fronting TNR that also created Lot 2, being the frontage lot with an area of 4000 sq m. 5Subsequently on 3 July 2008, DA 07/1131 was approved by council, which allowed the further 2 - lot subdivision of Lot 1 into: * Lot 11; A hatchet- shaped lot with an area of 4993 sq m, located at the back of Lot 2. A brick residence was approved and has been constructed on this lot. * Lot 10; The residue lot with an area of 1.167ha an extending through to its rear boundary that connects to the recently constructed Boldero Crescent. 6Whilst this 2 - lot subdivision has not been registered, the current application is for the further subdivision of Lot 10 so as to create the larger, hatchet - shaped Lot 101 with area of 1.027ha and 10.28m access corridor to Boldero Crescent and the smaller Lot 100 with area of 1705sq m, with direct frontage onto Boldero Crescent as shown on Attachment AA. 7The locality is described in terms that to the north are existing rural allotments characterised with large holdings of up to 2 ha in area . Glenmore Parkway is situated to the north, which provides the main thoroughfare that services Glenmore Park. Further to the north is Penr i th Golf Course, which continues the prevailing open, semi-rural buffer when viewed from TNR. 8East of the site is the Orchard Hills locality which is characterised as a rural/residential locality. The area has a prevailing open, scenic character which is consistent with the subject site and neighbouring allotments on the western side of TNR. 9The west of the site is characterised with existing low-density, residential development within Glenmore Park. The south of the site resembles the subject site comprising of a l arge rural al l otment with a 4000 sq m allotment addressing TNR and a hatchet shaped residue lot to the rear. Direct vehicular access is also permitted to Boldero Crescen t to the rear. 10The topography is undulating and the site and immediate surrounds falls towards the southeast due to an exist i ng swale, which traverses through the area . 11The immediate development pattern of the adjoining lots to the north, south and east are characterised with single detached dwellings w i th significant separation distances, which exude a low-density rural landscape. To the west is the urban area of Glenmore Park, which is by contrast urban in appearance and consistent with the different zone to the west of the subject land . Planning controls 12The site is subject to the following controls: * Penrith LEP 1998 (PLEP) ; under which it is zoned 2 (r) Residential and subdivision is permissible. Clause 10 contains the general subdivision provisions and clause 10A contains particular controls for certain rural residential at Glenmore Park, including the provisions of Amendment 19. * Penrith LEP 2010. This LEP became effective on the 22 September 2010 following the preparation and consideration of the Draft LEP 2008. Under this current LEP, the land is zoned E4 Environmental Living and zone objectives together with subdivision consent requirements are stated. However there is a savings provision in cl 1.8A that applies to the proposal whereby the provisions of PLEP are predominant and those in the LEP 2010 are to be accorded weight as for a draft plan. * Penrith LEP No 188. * Penrith DCP 2006 . The evidence 13Detailed evidence in the form of a joint planning report was presented by: * Mr R McGuinness; Applicant's consulting planner. * Mr S Chong; Council's senior environmental planner. 14Insofar as the threshold matter concerns the determination of the SEPP 1 objection to the minimum lot sizes, this is dependent on establishing the underlying objectives of this agreed development standard, considering that no specific objectives are stated. Consequently, the planners addressed this issue initially by reference to the consistency of the proposal with the objectives of the PLEP and zone 2(r) provisions. Objectives 15As noted, the PLEP is the prevailing control because of the savings provisions that apply to this application. Clause 9(2) of the PLEP restricts council from granting consent unless it: (a) is satisfied that the carrying out of such development is consistent with (i) the aims of this plan, and (ii) the objectives of the zone within which the development is to be carried out, and (iii) the objectives of the development controls contained within this plan, and ... 16The objectives of the Zone No 2(r) Rural - Residential (1 Dwelling/Hectare) are: (i) to conserve the open, semi-rural character of the M4 Motorway, TNR and Mulgoa Road frontages of Glenmore Park and that part of the Cranebrook escarpment between Nepean Street and Laycock Street, and (ii) to protect and promote a low density settlement pattern which: (A) recognises the importance of conserving the semi-rural land use pattern and the appearance of the approaches to the urban areas of the City of Penrith when viewed from major roads and adjoining and nearby areas, and (B) provides sufficient flexibility for dwelling siting and orientation of allotments to minimise the visual impact of development and overcome noise constraints, and 17Part 4 cl 10 contains the associated general subdivision controls. However the following site-specific controls in cl 10A apply to the identified Glenmore Park area: 10A(2) (2) Despite any other provision of this plan but subject to subclause (5), the council may consent to the subdivision of land to which this clause applies for the purposes of creating allotments, with each allotment to be of an area not less than one hectare. (3) The council must not consent to the subdivision of land to which this clause applies (whether or not occupied by buildings) unless: (a) the subdivision maintains the semi-rural character of the locality, and (b) it is satisfied that adequate arrangements have been made for stormwater and waste water management, and (c) new vehicular access to allotments created is provided by a road other than Bradley Street and TNR. 18In response to the issue of consistency with the semi-rural character requirements, Mr McGuinness says this refers to a whole range of elements including dwellings, hobby farm uses, open landscapes, sheds or urban uses on a mix of lot sizes larger than normal suburban lots. As the objective specifically refers to TNR frontages, he considers that as the proposed lot is approximately 340m from this road, it is remote from this frontage will be compatible with the neighbouring property mix so as to continue the semi-rural land use pattern. He considers the controls are predominantly concerned with the visual appearance of the area along TNR panorama. 19Against this, Mr Chong says that the cl 10A area is identified as an important visual buffer to provide a contextual transition to the low density residential areas to the west of the site. As this buffer land is characterised by single dwellings on large 'park like' holdings, he considers the proposal is an atypical residential lot that is inconsistent with the planning intent of the area. In particular, the proposed subdivision would allow excessive increase in dwelling density, which is not in keeping with the prevailing low-density settlement pattern. SEPP 1 objection 20It is agreed that the 1ha minimum lot size in cl 10A of the PLEP is a development standard. In the absence of specific objectives for this standard, the SEPP 1 adopts the objectives of the No 2 (r) zone as relevant. Also considered relevant are particular aims in Amendment 19, which refer to this area as a significant gateway site along TNR that is to be conserved. 21Consequently, the SEPP 1 lists the following as the underlying objectives of the 1ha minimum lot size standard: a. to conserve the open, semi-rural character of the frontages of TNR as a 'gateway site'. b. to protect and promote a low-density settlement pattern which recognises the importance of conserving the semi-rural land use pattern and the appearance of the approaches to the urban areas of the City of Penrith when viewed from major roads and adjoining and nearby areas, and c. to provide sufficient flexibility for dwelling siting and orientation of allotments to minimise the visual impact of development and overcome noise constraints. d. that adequate arrangements have been made for stormwater waste water management. e. new vehicular access to allotments created is provided by a road other than Bradley Street and TNR. 22With regard to objective (a), both planners agree that the semi-rural is made up of the following elements: * Open paddocks * Dwellings, with formal and informal landscaping * Open fencing * Sheds/outbuildings * Farm buildings * Trees in clumps/stands and rows. * No agricultural uses. * Visual clutter (co-location of lots of different hobby activities). 23In support of the objection, Mr McGuinness then says: * the lot will read as being on the zone interface to the adjoining urban zone, and have a curtilage much larger than that in the urban zone so as to clearly read as a semi-rural lot. * the location of the lot (and any subsequent dwelling) is such that it will have an appropriate distance to other built form in the 'gateway' thus preserving the open semi-rural character. * The location of the site would maintain the semi-rural character when viewed from the surrounding TNR. Glenmore Parkway and would be consistent with the presentation of the dwellings at Kyarra Terrace and 21-23 Bolero Crescent. 24Accordingly, Mr McGuinness refers to the matter of Wehbe v Pittwater Council [2007] NSWLEC 827 where Preston CJ presented a number of ways to demonstrate that compliance with the development standard is unreasonable or unnecessary. In paras 42 - 48 the Chief Judge listed five such ways, including: 43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served). 44 However, although this way is commonly invoked, it is not the only way to establish that compliance with a development standard is unreasonable or unnecessary: North Sydney Municipal Council v Parlby, unreported, LEC No 10613 of 1985, 13 November 1986, Stein J at p 5; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 97; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282-283. Other ways are explained in the authorities. 45 A second way is to establish that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary: SCMP Properties Pty Limited v North Sydney Municipal Council (1983) 130 LGERA 351 at 378-379; North Sydney Municipal Council v Parlby, unreported, LEC No 10613 of 1985, 13 November 1986, Stein J at p 5. 1. 25Consequently, Mr McGuinness relies on the second way, which is to establish that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary. The basis for this reliance is: "The proposed lot will not detract from the semi-rural character of the 'gateway' site and will provide an additional consistent element to the semi-rural character. The application of the standard to achieve the underlying zone objectives (i) and (ii)a are therefore not relevant to the development, objective (ii)b is achieved. Compliance is therefore unnecessary. The proposal will meet all the relevant objectives of LEP 1998 and provide a gateway to the city of Penrith. Therefore compliance with the 1ha standard is unnecessary. It is unreasonable to freeze land in close proximity to Penrith which could otherwise afford further opportunities for rural - residential living." 26Against this, Mr Chong says council has consistently maintained a position for the management of the 2(r) land along TNR with the vision that this precinct is a major gateway to Penrith city with an open semi-rural character. This is reinforced by Amendment 19, which specifically reinstated the 1ha minimum lot size, so as to achieve the desired future character for this area. 27His assessment of the SEPP 1 objection is both quantitative and qualitative. He says that the land parcels within the 2(r) zone range in size from 4,000 sq m up to 2ha. These parcels are a mixture of existing allotments or recently subdivided lots permitted prior to the gazettal of cl 10A . 28As the proposed subdivision involves the creation of the additional 1705 sq m lot and additional 1ha lot, he does not consider this is consistent with the outcome envisaged by compliance with the development standard because Lot 100 is too small. He also considers it relevant to take into account the previous subdivisions of the land, whereby the approval of the subject application would effectively result in four potential dwelling houses on the original 2ha parcel. This outcome would significantly reduce the opportunity for open space, paddocks and appropriate separation as envisaged for a semi-rural area. Future planning direction 29The planners mainly addressed this issue in the context of the LEP 2010 provisions and the associated reference to the "significant gateway" intentions. In light of the gazettal of LEP 2010 and its savings clause, the provisions of the LEP, particularly the zone objectives would be given significant weight on the basis that it would not result in an antipathetic development. 30This approach would be consistent with the approach taken in Coffs Harbour ENVC v Coffs Harbour CC 74 LGA wherein Clarke JA said: "Whatever is there precise ambit the paragraphs do not permit an antipathetic development whether or not it is so placed as to minimise the interference with public recreational use..." 31It appears that the objectives of the E4 zone are generally consistent with those prescribed in the 2(r) zone, particularly 1, 2, 3 which requires development to be of low impact so on the aesthetic values of the area. The specific references to the "gateway" are contained in aims of Amendment 9 as follows: (b) to ensure that the open semi-rural character of this significant gateway site along TNR is conserved. 32The associated controls to achieve the stated aims provide for a minimum lot size of 1ha. 33As previously stated, Mr McGuiness relies on his qualitative assessment that as the site is approximately 340m from TNR and there would only be limited views of any new dwelling on the, then there is no material impact on any 'gateway' intentions. 34However Mr Chong says the designated gateway area along the periphery of the Glenmore Park is identified as having significant visual and scenic quality, which is to be maintained as a critical rural landscape buffer. This includes a buffer to the established residential area. Conclusions 35Having considered the evidence submissions and undertaken a view, I accept that the effect of the current controls is that determining weight is to be given to the LEP 1998 provisions, with the provisions of LEP 2010 being given weight that accords with an imminent and certain instrument, on the basis that any new development is not antipathetic. 36The subject area is clearly defined on the Map for Amendment No 19 to PLEP 1998. It is apparent to me that the majority of the lots in this area are rectangular with reasonably consistent depths of approximately 400m and areas of 2ha or more. In a few cases the original lots have been subdivided to create 2 lots, each with areas of approximately 1ha or 4000 sq m, plus a residue of over 1ha. 37As this subdivision pattern is generally consistent with the current controls, I accept from Mr Chong's evidence and from my observations at the view that this subdivision pattern is a fundamental element contributing to the 'semi-rural character' in the subject context. The arrangement of the existing dwellings on these lots, together with the various elements agreed by the planners, particularly land area and paddocks around the dwellings then defines the settlement pattern and character of this area. 38By reference then to the agreed objectives for cl 10A, it is apparent to me that they are endeavouring to firstly conserve this open, semi-rural character of the lots fronting TNR. Secondly, the objectives are to protect and promote this low-density pattern to achieve this character when viewed from entry points to the city, particularly TNR. 39It seems from the progress of the planning controls that there has been a realisation by council that the planning controls required amendment to achieve the desired future outcome for the subject area. Whereas LEP 1998 generally allows subdivisions in the 2(r) zones to create lots with a minimum area of 4000 sq m in certain circumstances, this opportunity does not apply to the Glenmore Park area. Clause 10A specifies the development standard of a minimum lot size of 1ha for subdivisions. 40These cl 10A provisions were added by way of Amendment 19, wherein the stated aims of this amendment include: * the reinstatement of the minimum area controls and lot pattern of the identified land, * the conservation of the character of the gateway area and the protection and promotion of the low-density settlement pattern in this area. 41As noted before, the specific controls to achieve these aims rely on a minimum lot size of 1ha, which is a development standard. Insofar as there was disagreement between the planners about the importance of the numerical controls, Mr Chong says there should be a further underlying objective designated as: (f) to re-inforce the primacy of the 1ha control over cl 10(8). 42Accordingly, I have carefully considered Mr McGuinness's opinion that the approval of the subdivision lots is not what causes an impact, instead the more critical consideration of the settlement pattern concerns the location and separation of buildings. 43Having considered the disparate planning opinions and submissions on this issue, I do not accept that presented by Mr McGuinness. Whilst I acknowledge that the assessment of visual impacts and future character outcomes is highly subjective, I consider the actual subdivision configuration, of which the minimum lot size and shape is a critical component in the ultimate settlement pattern. In this regard, I also think it reasonable to assume that the purpose of the subdivision is to erect a future dwelling. 44It therefore seems to me that the area of the lot provides the opportunity for erection of a suitable dwelling together with the other identified elements of the semi-rural area, particularly the inclusion of open paddocks to ensure the separation of buildings and maintenance and enhance of larger type vegetation in the gateway corridor. 45Following this approach, the approval of the subdivision would potentially enable the erection of 4 dwellings on the original 2ha lot. This dwelling density would be in the order of double the surrounding area and likely result a greater amount of building area at the expense of paddocks and open space areas for separation and vegetation. In my opinion this would diminish the semi-rural character rather than conserve the "openness" of the area. As such, I consider it would be an antipathetic development. 46I note Mr McGuinness's reference the recent dwelling at 21-25 Boldero Crescent, which has been erected on a 4132 sq m lot in the E4 Environmental Living zone. However I give this minimal if any weight because it is not one of the lots with original frontage to TNR. But in any case, it is still double the size of the proposed lot 100 and is compatible with the other existing smaller lots in the 2(r) zone. 47Likewise I do not consider the recent approval of the large dwelling at 15 Kyarra Terrace provides any precedence for allowing the proposed smaller lot subdivision. Apparently this lot is environmentally constrained particularly by the extensive, central natural watercourse location. I understand the balancing decision was made to allow this dwelling alongside the existing residential area because it then leaves open the major central part of the lot, which facilitates open view corridors of the internal 2(r) land. As such the development of this land still conserves and protects the major part of the open, semi-rural character of the subject area. 48Insofar as the aims of the controls for this area include the reference to the conservation of the "significant gateway", I am satisfied to rely on the evidence of Mr Chong that in context, this refers to a corridor where there transition in building form/density from the outer rural areas experienced on entering/leaving the city area and which provides a buffer from the more intense low-density residential areas. 49Whilst I do not consider the proposal with potentially 4 dwellings would ultimately satisfy the objectives in terms of visual impacts from the major entrance roads, the agreed underlying objectives also refer to the protection and promotion of the low-density settlement pattern when viewed from nearby areas. In the subject context, it appears to me that Lot 100 would present as a larger residential lot rather a semi-rural lot and this outcome is not consistent with the controls. 50In this case, the site was viewed from the residential area near Boldero Crescent. It is apparent to me that the proposed lot 100 adjoins Lot 8333 in Boldero Crescent and will present substantially as an extension of the residential area, albeit with a larger area, but not one that I consider is of an open semi-rural character. If a dwelling house (2-storey permissible) is erected on the designated building envelope it would significantly diminish the semi-rural appearance and outlook from this established residential area. This would be an undesirable negative aspect of the development. 51In summary then, my assessment is that the minimum lot size is a critical control in achieving the desired qualitative planning outcomes for this defined 'gateway/buffer' area along TNR. As the proposal would likely lead to a level of intensification double that allowed by the controls, I do not consider the proposed Lot 100 with an area of 85% less than the development standard reasonably satisfies the conservation, protection and promotion objectives for the low-density settlement pattern envisaged for this area. These objectives being part of both PLEP 1998 and PLEP 2010. 52The stipulated minimum lot size of 1ha is a development standard that has been addressed in the SEPP 1 Objection. The determination of such objections has been subject to many determinations and often referred to is that of Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 where Lloyd J said: 26. In applying the above-mentioned judgment, it seems to me that SEPP 1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, 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 objects specified in section 5(a)(i) and (ii) of the EP&A Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection is well founded? In relation to the fourth question, it seems to me that one must also look to see whether a development which complies with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case. 53It appears to me that in endeavouring to address these questions, the SEPP 1objection is too focussed on subjective qualitative outcomes with little connection to the numerical development standard of 1ha minimum lot size. It does not in my assessment demonstrate how the semi-rural outcome can be achieved by the creation of an allotment, which is about 85% below the standard. 54It therefore seems to me that when the aforementioned fifth question is asked, the answer in this case is that a development that complies with the development standard is not unreasonable or unnecessary. Furthermore, I do not consider the SEPP 1 reliance on the second principle in Wehbe has been adequately demonstrated so as to allow the objection. Therefore I do not consider the objection has demonstrated compliance is unnecessary or unreasonable. 55A somewhat unusual aspect of this case is the approval sequence of the subject land as initially described and there was discussion in connection with appropriate conditions. That sequence involves t he parent site being subject to a number of previous subdivisions. DA01/0388 was approved under delegated authority on 5 March 2001 and involved a 2-lot Torrens Title subdivision resulting in one (1), 4,000 sq m lot (Lot 2) and one (1) residual lot with an area of 1.667 hectares (Lot 1). DA07/1131 was approved under delegated authority on 3 July 2008 which involved a two (2) lot Torrens Title subdivision to Lot 2 for one (1), 4,993 sq m lot (Lot 11) and a residual lot with an area of 1.167 hectares (Lot 10). 56To date , these final lots 10 and 11 have not been registered and the approval of the proposed subdivision would require prior completion/registration of this 2 - lot subdivision. It is submitted by the parties that this could be covered by a deferred commencement condition. Whilst I accept this is possible, nevertheless this sequencing of incremental subdivisions seems to lead to a different subdivision outcome that I do not consider represents orderly development as envisaged by the planning controls However I do not give this observation any determinative weight. 57In the circumstances of the case, I consider the proposal does not reasonably satisfy the minimum lots size standards to merit consent. Court orders 58The Court orders: 1. The appeal is dismissed. 2. The SEPP 1 objection to the minimum lot size development standard in cl 10A of the Penrith LEP 1998 is disallowed. 3. Development consent for DA 10/0815 for a 2 - lot subdivision of a proposed Lot 10 in an approved subdivision of Lot 1 DP 1033266 The Northern Road, Glenmore Park is refused. 4. The exhibits may be returned except for 5, 6, A and H. R Hussey Commissioner of the Court ********** 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. Decision last updated: 03 March 2011