Land and Environment Court New South Wales Medium Neutral Citation: Johnson v Hawkesbury Council [2012] NSWLEC 1277 Hearing dates: 3-4 October 2012 Decision date: 10 October 2012 Jurisdiction: Class 1 Before: Morris C Decision: Appeal dismissed Catchwords: Subdivision; SEPP 1 objection to minimum allotment size, weight to be applied to new LEP. Legislation Cited: Environmental Planning and Assessment Act 1979 Hawkesbury Local Environmental Plan 1989 Hawkesbury Local Environmental Plan 2012 NSW Water Act 1912 State Environmental Planning Policy No. 1 - Development Standards Sydney Regional Environmental Plan No 20 - Hawkesbury Nepean River (No 2 - 1997) Cases Cited: Grubisic v Hawkesbury City Council Appeal No: 10511 of 1996. Wehbe v Pittwater Council [2007] NSWLEC 827; Texts Cited: Agricultural Land Classification Atlas for the Sydney Basin Hawkesbury Development Control Plan 2002 Hawkesbury Residential Land Strategy Hawkesbury Sustainable Agricultural Development Strategy 1998 Interim Development Order No 1 - Shire of Colo Interim Development Order No 3 - Shire of Colo Category: Principal judgment Parties: William Ronald and Betty Elaine Johnson (Applicants) Hawkesbury City Council (Respondent) Representation: Counsel Ms L Saw (Applicant) Solicitors Ms L Johnson Lynne M Johnson Solicitor (Applicant) Mr A Seton Marsdens Law Group (Respondent) File Number(s): 10579 of 2012 Judgment 1This is an appeal against the refusal by Hawkesbury City Council of Development Application No. DA0018/12 which proposed a two lot Torrens Title subdivision of land known as Lot 7 in DP 249442, No. 33 Griffins Road, Tennyson. 2The issues in the case are whether the proposed allotments are of a suitable size to meet the objectives of the council's planning controls and state government policy, whether an objection to the minimum allotment size under the provisions of State Environmental Planning Policy No. 1 - Development Standards should be upheld and the weight to be applied to the council's new local environmental plan. Background and the proposal 3The application was lodged with the council on 17 January 2012 and refused consent by the council in accordance with a resolution passed on 27 March 2012. 4The application proposes the subdivision of Lot 7 into two allotments. The area of Lot 7 is 10.12ha and it is an irregular shaped allotment with frontages to Griffins Road (107.64 m), Tennyson Road (308.15 m) and Murrays Road (139.73 m). 5The site surrounds Lot 6 in the same Deposited Plan 249442. That lot has frontage to Tennyson Road and is a small allotment with dimensions of 61 m x 66.4 m and area of 4050 sq m and contains a dwelling house. 6A dwelling house fronting Griffins Road is situated at the northern end of the site and there are also a number of outbuildings, a swimming pool and tennis court. Two ephemeral watercourses flow through the site and three dams have been built along those creeks. 7The proposed subdivision would divide the site into two allotments to be known as Lots 701 and 702. Lot 701 would retain the existing frontages to Griffins and Murrays Road and also have a frontage of 104 m to Tennyson Road at its intersection with Murrays Road. The area of proposed Lot 701 is 8.12 ha and it would contain the existing dwelling house, outbuildings, pool and tennis court and the largest dam in terms of footprint. 8Proposed Lot 702 would have a frontage to Tennyson Road of 204.2 m, irregular depth and area of 2 ha. Two dams are located on this proposed allotment and a building envelope of 4770 sq m has been nominated. That area is bisected by an existing easement for water supply. The easement is in favour of the Tennyson Irrigation Co-operative Society Ltd, a society created in 1977 to provide a supply of water for Irrigation, Stock and non-potable domestic use by approximately 50 properties created by the subdivision of the Griffin Estates at Tennyson. The Society currently holds a 5 year Water Licence under the NSW Water Act 1912, covering the 200 ha, with an overall volume of 1.2 gigalitres, although, according to the information provided in Exhibit C, over the past 10 years, only 50 megalitres has been utilised. 9The locality in the immediate vicinity of the site is characterised by rural residential land uses on smaller allotments with a number of agricultural land uses comprising orchards and grazing lands forming a generally broad acre character. The planning controls 10At the time of lodging the application, the site was zoned Mixed Agriculture under the provisions of Hawkesbury Local Environmental Plan 1989 (LEP1989). Clause 10 and 11 of LEP1989 permit subdivision within the zone subject to the development being consistent with the provisions of those clauses and the zone objectives listed in Clause 9A. Those zone objectives are: (a) to encourage existing sustainable agricultural activities, (b) to ensure that development does not create or contribute to rural land use conflicts, (c) to encourage agricultural activities that do not rely on highly fertile land, (d) to prevent fragmentation of agricultural land, (e) to ensure that agricultural activities occur in a manner: (i) that does not have a significant adverse effect on water catchments, including surface and groundwater quality and flows, land surface conditions and important ecosystems such as streams and wetlands, and (ii) that satisfies best practice guidelines and best management practices, (f) to promote the conservation and enhancement of local native vegetation, including the habitat of threatened species, populations and ecological communities by encouraging development to occur in areas already cleared of vegetation, (g) to ensure that development retains or enhances existing landscape values that include a distinctive agricultural component, (h) to prevent the establishment of traffic generating development along main and arterial roads, (i) to control outdoor advertising so that it does not disfigure the rural landscape, (j) to ensure that development does not create unreasonable economic demands for the provision or extension of public amenities or services. 11Clause 10 of LEP1989 provides general controls for subdivisions including the requirement for consent and clause 11 provides general provisions for rural subdivision and, relevant to the application, includes a development standard requiring a minimum lot size of 10 hectares for subdivision within the Mixed Agriculture Zone. 12Other relevant clauses in LEP1989 are 18 - Provision of water, sewerage etc services and 28 - Development within the vicinity of heritage items. 13Since lodgement of the application Hawkesbury Local Environmental Plan 2012 (LEP2012) has been made. That plan took effect on 21 September 2012 and includes a savings provision in clause 1.8A that states: If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. 14The site is zoned RU1 Primary Production under LEP2012. The Objectives of the zone are: * To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. * To encourage diversity in primary industry enterprises and systems appropriate for the area. * To minimise the fragmentation and alienation of resource lands. * To minimise conflict between land uses within this zone and land uses within adjoining zones. * To encourage agricultural activities that do not rely on highly fertile land. * To ensure that development occurs in a way that does not have a significant adverse effect on water catchments, including surface and groundwater quality and flows, land surface conditions and important ecosystems such as waterways. * To promote the conservation and enhancement of local native vegetation including the habitat of threatened species, populations and ecological communities by encouraging development to occur in areas already cleared of vegetation. * To ensure that development retains or enhances existing landscape values including a distinctive agricultural component. * To ensure that development does not detract from the existing rural character or create unreasonable demands for the provision or extension of public amenities and services. 15Clause 4.1 of LEP2012 permits subdivision of land provided that the new lots are not less than the minimum size shown on the Lot Size Map. A development standard of 10 ha minimum lot size applies to the site according to the relevant map. Clause 4.6 is also relevant to the application and the issue of precedent, an initial contention raised by the council however altered to the weight to be applied to LEP2012 as a result of the plan being made between the time the application was filed and the hearing. Clause 4.6 provides for exceptions to development standards and subclause (6) states: Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone E4 Environmental Living if: (a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or (b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard. 16The parties agree that this clause would not permit the subdivision of the land as proposed and the applicant relies on the savings provisions of clause 1.8A. 17The land falls within the Middle Hawkesbury Nepean River Catchment area defined by Sydney Regional Environmental Plan No 20 - Hawkesbury Nepean River (No 2 - 1997) (SREP20). Part 2 - General Planning Considerations, Specific Planning Policies and Recommended Strategies is applicable, in particular clauses 5, 6 and 17. 18Hawkesbury Development Control Plan 2002 (DCP2002) also applies to the site with Part D Chapter 3 - Subdivision, relevant to the application. The evidence 19The hearing commenced on site and a view of the locality was undertaken. Evidence was heard from the owners of an adjoining property in Murrays Road who raised the issues of land fragmentation, change of character of the area, impacts on agricultural land and the need to maintain the 10 ha minimum allotment standard that has applied to the area for a considerable period of time and has been recently confirmed in LEP2012. 20Expert town planning evidence was heard from Mr K Nash for the applicant and Mr R Nej for the council. 21The planners agree that the formal planning controls relating to the site and the area generally commenced on 13 March 1964 through the introduction of Interim Development Order No 1 - Shire of Colo (IDO1) which zoned the land Non-Urban 1(a) and introduced a minimum allotment size standard of 25 acres (10 Ha). Interim Development Order No 3 - Shire of Colo (IDO3) was gazetted on 2 May 1975 and zoned the land Non-Urban 1(b1) and maintained the 10 ha minimum allotment development standard. On the amalgamation of Windsor and Colo Councils, the planning controls were subsequently consolidated into Hawkesbury Local Environmental Plan 1989 and the site was zoned Rural "B" with a minimum allotment size of 10 ha. LEP1989 was gazetted on 22 December 1989 and maintained the 10ha development standard, as does the recently made LEP2012. The SEPP 1 objection 22For consent to be granted to the application, it is necessary for the Court to determine whether the 10 ha development standard should be varied and the objection to that standard submitted under SEPP1 upheld. The SEPP1 objection was lodged with the development application and forms part of Exhibit B. Its author concludes that compliance with the development standard is both unreasonable and unnecessary in the circumstances of the case and lists the following grounds of objection: * The land has frontages to three roads i.e. Griffins, Murrays and Tennyson Roads, therefore no earthworks are required and no new road construction in necessary. * The land is not suitable for agriculture, as suggested by the Mixed Agriculture zoning. * The proposed lots are consistent with the size of surrounding lots, with numerous lots in the immediate locality ranging in size from 4,000 sq m to 3 ha. Proposed lot 701 will be similar in size and shape to the existing lots adjacent to the west, while proposed lot 702 is similar in size and shape to the adjacent lots to the north, south and east. * The proposal will not create any land use conflict within the zone, as it is consistent with surrounding rural residential allotments. * The proposal will not create any unreasonable demands for public services. * The proposal will not have adverse environmental impact as demonstrated by the statement of environmental effects. * The proposal is essentially infill development. It will not create a precedent, as the proposal simply follows the lot size precedent already set in the locality. 23The SEPP1 objection identified the underlying objective of the development standard as being to regulate allotment sizes within the rural area, based on agricultural potential, availability of infrastructure and services and to minimise land use conflicts. 24Both expert planners agree that to determine whether the SEPP1 objection should be upheld, the principles outlined by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 provide guidance however they reach different conclusions, Mr Nash saying the objection to the 10 ha development standard is well-founded and Mr Nej disagreeing. They also disagree as to what is the underlying purpose of the development standard. They do agree that LEP1989 does not specify the objective or purpose of the development standard. 25Despite the SEPP1 identifying the purpose of the development standard as that set out in [23] above, Mr Nash says that the underlying objective of the rural subdivision development standard is to achieve the four planning and environmental outcomes contained in clauses 11(3) and (4) of LEP1989. His evidence particularly focussed on subclause (3) which states: (3) The Council may consent to the subdivision of land to which this clause applies only if: (a) there is a ratio between the depth of the allotment and the frontage of the allotment that, in the opinion of the Council, is satisfactory having regard to the purpose for which the allotment is to be used, and (b) the pattern of allotments created by the proposed subdivision and the location of any proposed buildings on those allotments will, in the opinion of the Council, minimise the impact on any threatened species, populations or endangered ecological community or regionally significant wetland, watercourses, agriculture and bush fire threat, and (c) the Council has considered a geotechnical assessment that demonstrates the land is adequate for the on-site disposal of effluent, and (d) in the opinion of the Council, each of the allotments created contains suitable areas for a dwelling-house, an asset protection zone relating to bush fire hazard and effluent disposal. 26Mr Nash concludes, in accordance with principle 1 in Wehbe, that the proposed subdivision satisfies the outcomes envisaged in clauses 11(3) and (4) of LEP2012 and therefore the objectives of the standard are met, in the following terms: * The depth and frontage of the new allotment and the nominated building location are adequate for the purpose of constructing a dwelling without impact on the landscape, environment or amenity of neighbours; * The subject site is not occupied by any threatened species, endangered ecological communities nor regional wetlands and watercourses; * The subject existing allotment is not of a size that enables a viable economic agricultural use to be carried out on the land, * The subject site and proposed new lot are capable of satisfying the requirements for bushfire protection; and * The proposed new lot can satisfy the required on-site effluent disposal. 27Mr Nash also states that, in his opinion, the agricultural potential for the existing site is only suitable for light grazing as the site is classified as Class 3 agriculture land in the Agricultural Land Classification Atlas for the Sydney Basin (the Atlas) prepared by the NSW Department of Agriculture and that the subdivision would maintain the option for light grazing on Lot 701 and the portion of Lot 702 to the west of the watercourse. He says the high land prices and values mitigate against an achievable economic return for agricultural activities on smaller land holdings such as the site and concludes the proposal achieves the outcomes envisaged through what he says are the underlying objectives of the development standard. 28Mr Nej says the objective of the development standard is informed by the zone objective and submits that the primary objective is to prevent the fragmentation of agricultural land by ensuring that large rural allotments are not further subdivided below the minimum standard. He says the current Mixed Agriculture zone has been introduced having regard to an overall strategic plan for the area developed in the Hawkesbury Sustainable Agricultural Development Strategy 1998 (the 1998 Strategy) and has made reference to the anticipated agricultural potential associated with parcels of land and accordingly, the proposed subdivision does not meet the objective and does not provide an alternate way of meeting that objective. 29Mr Nej says that, in regard to principle 2 in Wehbe, the underlying objective of the standard is relevant to the proposed subdivision as the minimum allotment size criteria has been established following the creation of the majority of the smaller allotments situated in the locality to stop further fragmentation of agricultural land consistent with those policies. He cites Attachment 8 to the Joint Report, Exhibit 9, which he says, demonstrates the way the council has applied the 10ha subdivision standard in the Tennyson Locality and submits that standard should be upheld as it has been consistently applied. He notes that the 1975 subdivision that created the site resulted in the site being a compliant lot with an area of 10.12 ha. He acknowledges that there are a number of smaller allotments in the vicinity of the site including ones created in the same deposited plan however says that since that time the council has reviewed its planning controls and there has not been any example of similarly sized lots being created. He says that any other smaller lots were created under former clause 11(4) of LEP1989 that provided for subdivision of land where the land contained a dwelling house. 30That provision was omitted on 20 May 1994 and, as demonstrated in Attachment 8, since that amendment was made, the council has upheld SEPP1 objections to the 10 ha development standard in the Tennyson locality on 7 occasions, 3 for boundary adjustments of lots already less than 10 ha. Of the four subdivisions that created undersized allotments, the variation to the 10ha development standard was 2%, 3.8%, 9%, 10% and 41%. In the case of the latter, the objection was supported due to the original lot having an area of 31.59 ha (thus being capable of a three lot subdivision) and the lots having areas of 11.59 ha, 14.1 ha and 5.9 ha having regard to the irregular shape of the land and a fragile creek/treed areas on the land. Two other applications, one of which applied to the subject site, were refused. The Court upheld the council's refusal of an earlier application for the site that proposed a three-lot subdivision, two 4ha lots and one 2ha lot. See Grubisic v Hawkesbury City Council Appeal No: 10511 of 1996. 31For this reason, Mr Nej maintains that the council has not abandoned the development standard (Wehbe principle 4). Mr Nash accepts the evidence provided in Attachment 8 shows a reasonable level of consistency in the application of the development standard but says a merits review of the application demonstrates that the subdivision will not impact on the sustainability of agricultural pursuits as there are no sustainable and viable economic agricultural activities that can be reasonably undertaken on the subject site given the soil type, existing allotment sizes, topography and proximity to residential uses. Combined with the existing subdivision pattern, he concludes the proposal merits variation to the development standard and the grant of consent. 32Mr Nash maintains the underlying objectives of the rural subdivision development standard are satisfied, not thwarted, by the proposed subdivision of the site and the resultant pattern of subdivision of the land will be consistent with the existing pattern of subdivision in the immediate locality which includes 13 properties with areas between 0-1ha, 14 properties between 1-2 ha and 2 properties 2-3ha. It is his opinion that the character of the locality in the vicinity of the site is "suburban" for Griffins Road and large lot residential for Tennyson Road rather than mixed agriculture of rural residential and that because the predominant use in the immediate locality is residential with low intensity "hobby farming" activities rather than agricultural, the purpose of applying the development standard to the site is not relevant and therefore compliance is not necessary. In his opinion, the existing allotment size (10.2 ha) and the proposed new allotments (8.2 and 2 ha) are unable to sustain a viable economic agricultural activity on the land. He concludes the subdivision will not thwart the underlying objectives of the development standard but rather maintain the status quo of the character of the locality as large lot residential because light grazing and other low intensity hobby farming activities can still be undertaken on the new Lot 701. 33Mr Nej disagrees and says the preservation of the existing allotment would be consistent with the strategic aim to ensure that larger rural allotments having the potential to sustain agricultural land uses are preserved. It is his opinion that excision of the 2 ha lot from an existing, compliant, 10 ha parcel, will result in a diminution in the availability of potentially productive land as identified in the Atlas. For this reason he says compliance with the development standard is not unreasonable as non-support of the proposal would hinder the future development of the land consistent with the objectives contained in LEP1989 and LEP2012, in particular objectives b, c, d and g of the Mixed Agriculture Zone and 1, 2, 3, 4, 5 and 8 of the RU1 Zone. 34With regard to the 5th principle in Wehbe, Mr Nej says the council's strategic planning studies, particularly the 1998 Strategy, were the precursor to the creation of the range of rural zones in LEP1989 and, that one of its recommendations, contained a strategy to "consider ways in which larger agricultural landholdings can be retained in agricultural use e.g. through density schemes". 35Mr Nash says things have "moved on" and that, as evidenced by surveys of the use of land in the vicinity of the site there is no evidence of new agricultural activity in the area since 1997 and he is of the opinion that the zoning of the site is inappropriate and should reflect the current rural residential character. Findings on the SEPP1 objection 36I accept the opinion of the author of the SEPP1 objection and that of Mr Nej that the objective of the 10 ha minimum allotment size development standard is to regulate allotment sizes within the rural area, based on agricultural potential, availability of infrastructure and services and to minimise land use conflicts and prevent the fragmentation of agricultural land. Having regard to the evidence, I am of the opinion that the objection to the development standard is not well founded. The subdivision of the land will not achieve the objectives and underlying intent of the development standard. No alternate means of achieving the objectives has been proffered. 37Having regard to the 1998 Strategy and the more recently completed Hawkesbury Residential Land Strategy adopted by the Council on 10 May 2011 and used to inform LEP2012, I am satisfied that the 10 ha development standard and its underlying objective or purpose are relevant to the application. There is no evidence that the land is not suited for agricultural activity, just that it is not currently being used for that purpose. The objectives of the Mixed Agriculture Zone recognise that the land is not the highest quality land (see objective c - to encourage agricultural activities that do not rely on highly fertile land) and encourages sustainable agricultural activities. I do however agree that due to the lower range of agricultural activities that could take place on the land that it would not be appropriate to excise the 2 ha allotment thereby dividing the available water supply. It is apparent from the evidence in the case that the smaller the allotment, the less likely it is to sustain agriculture and for that reason it is not appropriate to vary the development standard. 38It is also clear from the evidence that the council has consistently applied the standard to the locality since the 1990s and that the smaller allotments were created prior to this date and prior to the council's strategic planning assessment of the zone and allotment sizes. The development standard has not been abandoned and there is no evidence that the Mixed Agriculture Zone is no appropriate. The making of LEP2012 confirms this view. 39I am also of the opinion that the subdivision would be contrary to the objects of the Environmental Planning and Assessment Act 1979, particularly (a) (i) and (i) which are to encourage the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment and the promotion and co-ordination of the orderly and economic use and development of land. 40For these reasons, the application must fail. Merit review 41For the sake of completeness, if I am found wrong in relation to the SEPP1 objection, I consider the merits of the case and the remaining contentions. 42The council contends that the application is not consistent with the objectives of the Mixed Agriculture Zone. Those objectives are set out in [10]. I have addressed this in my consideration of the SEPP1 objection however provide more detailed comments on each objective. In this regard, I prefer the evidence of Mr Nej and the submissions made by Mr Seton, for the council. I concur that objective (a) is to encourage those agricultural activities that are sustainable in the zone and do not require that the land be used for an existing sustainable agricultural use. The siting of an additional dwelling on Lot 702 has the potential to contribute to rural land use conflicts that may occur on Lot 701 and therefore, limit its ability to be used for agricultural pursuits. Objective (c) recognises the site is not highly fertile and that other agricultural activities should be encouraged on the land. It is common ground that the site is unlikely to be used for intensive cropping and more likely to be used for grazing or other agricultural activities that do not rely on highly fertile land, consistent with the objective. 43Objective (d) is to prevent the fragmentation of agricultural land and the proposed subdivision of a 10 ha allotment, being the minima allowed in the zone is inconsistent with that objective. The parties agree that objectives (e) (f) (h) and (i) are not relevant to the application. Whilst the application does not propose a dwelling house on Lot 702, it is clearly the intention to facilitate this at some time in the future through the nomination of a building envelope. The construction of an additional dwelling along Tennyson Road, despite the setbacks provided by way of the building envelope, will change the character of that part of the locality and result in the loss of the open rural landscape and instead, take on the more intense character typical to Griffins Road, an anomaly in the locality. As such, the proposed subdivision would not retain or enhance the existing landscape values that include a distinctive agricultural component. The final contention, (j) was also not pressed by the council and I do not consider that the additional dwelling house would create unreasonable economic demands for the provision or extension of public amenities or services such that would warrant refusal of consent. 44The objectives of the RU1 zone are similar and I do not consider it necessary to conduct a detailed analysis of each however, I do consider that the subdivision is also inconsistent to those relevant objectives. The fact that LEP2012 is now made is a matter that I would give significant weight to, and in particular the fact that the 10 ha minimum allotment continues to apply to the site. I do not agree that because it would no longer be possible to subdivide the land as proposed under the new planning instrument, that this is a reason to allow the proposal. I take the contrary view and that is that the subdivision should not be allowed as I give significant weight to the development standard contained within the new plan. 45My opinion on the provisions of SREP20 are the same as those in relation to the zone objectives and I find that the development is inconsistent with the objectives of the plan that go to sustaining agricultural production and providing an effective separation of rural residential and agricultural land uses. Conclusion and findings 46In accordance with my finding that the objection to the development standard of the 10 ha minimum allotment size is not well founded, the application must fail. In addition, a merits review of the application finds that the application is inconsistent with the council's planning instruments and strategic vision for the area. 47The Orders of the Court are: (1)The appeal is dismissed. (2)Development Application DA0018/12, which proposed a two lot Torrens Title subdivision of land known as Lot 7 in DP 249442, No. 33 Griffins Road, Tennyson is refused consent. (3)The exhibits, other than exhibits A, B and 1 can be returned. _______________________ Sue Morris 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: 10 October 2012