Land and Environment Court New South Wales Medium Neutral Citation: Wise v Byron Shire Council [2012] NSWLEC 1313 Hearing dates: 29 October 2012 Decision date: 06 November 2012 Jurisdiction: Class 1 Before: Morris C Decision: 1. Leave to reopen the case is refused. 2. Appeal upheld. Catchwords: Consent Orders; SEPP1 objection to lot averaging provisions; whether leave to reopen the case to adduce further evidence should be granted. Legislation Cited: State Environmental Planning Policy No. 1 - Development Standards; Byron Local Environmental Plan 1988; North Coast Regional Environmental Plan; Environmental Planning and Assessment Act, 1979 Cases Cited: Lonergan v Byron Shire Council [2008] NSWLEC 1159; Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446; Australian Securities and Investments Commission v Rich [2006] NSWSC 826 Texts Cited: Byron Rural Settlement Strategy 1998; Draft Byron Local Environmental Plan 2012 Category: Principal judgment Parties: Robin Wise (Applicant) Byron Shire Council (Respondent) Representation: Ms M Taylor Bartier Perry (Applicant) Ms J McCullan Marsdens Law Group (Respondent) File Number(s): 10902 of 2012 Judgment 1Byron Shire Council refused consent to development application DA10.2012.237.1 which proposed the subdivision of Lot 10 DP 874882, Prior Drive, Coopers Shoot, into three allotments. The applicant, Mr Wise is appealing that decision. 2The issues between the parties have subsequently been resolved and they are seeking consent orders from the Court. The hearing in the matter was heard at Ballina Courthouse on 29 October 2012 and the decision was reserved. 3On 31 October, the applicant filed a Notice of Motion seeking leave to reopen the hearing so as to adduce further evidence. That matter was heard on 5 November 2012. 4This judgment addresses both matters. Background The application was lodged with the council on 24 May 2012 and refused by the council on 22 August 2012 on five grounds. Those grounds are summarised as: * The proposed subdivision is inconsistent with the density development standard and the objection to that standard was not considered to be well-founded; * Inconsistency with zone objectives; * Adverse impacts on the character and amenity of the rural locality; * Site is not suitable for the proposed development; * Development is not in the public interest. The site and its context 5The site comprises Lot 10 in DP 874882. Lot 10 has an area of 7.64ha, curved frontage to Prior Drive and Coopers Shoot Road and was created from a 12-lot subdivision of Lot 2 in DP 864630 that was approved by the council in 1997 and registered on 18 February 1998. The lots created under that subdivision varied in size from 6310sqm to 7.64ha, the site being the largest allotment in that subdivision. 6Land in the vicinity of the site comprises large lot, rural/residential style development with larger rural lots to the south. 7A gully bisects the allotment with a moderate to steep downwards slope across the site from the south-east to the north-west. Vegetation on the site is generally limited to grasses and shrubs and a number of Camphor Laurel trees. The proposal 8The application proposed the subdivision of Lot 10 into three allotments. Proposed lot 1 is located at the southern end of the site, would have and area of 2.64ha, the majority of its frontage to Coopers Shoot Road and contains the building envelope approved under the modified consent that created Lot 10. 9Proposed lot 2 has a curved frontage to Prior Drive and area of 2.5ha. A 900sqm building envelope and two effluent disposal areas are nominated as part of the application and these are located along the northern side of the proposed allotment. Proposed lot 3 is the northern lot and also has an area of 2.5ha. An 1848sqm building envelope in the location of the area originally approved by the original consent prior to its modification is proposed. That envelope is in the north-eastern corner of the lot setback 15m from Prior Drive and 10m from the common boundary with Lot 9. It is noted that the lot references differ in documents tendered during the hearing and accordingly, this description corresponds to the plan tendered by the council in Exhibit 12. 10The application was accompanied with an objection under State Environmental Planning Policy No. 1 - Development Standards (SEPP1) to a development standard applying to minimum allotments provisions. The planning controls 11The site is zoned 1(c1) Small Holdings Zone under the provisions of Byron Local Environmental Plan 1988 (the LEP). Clause 2 contains the Aim, objectives and guiding principles of the LEP and clause 2A requires: (1) The Council shall grant consent to the carrying out of development on land to which this plan applies only where the Council is of the opinion that the carrying out of the development is consistent with the aim, objectives and guiding principles of this plan. (2) Before determining a development application, the council shall have regard to the information, guidelines and recommendations in the following strategies, policies and studies adopted by the council: (a) State of the Environment Report, (b) Byron Flora and Fauna Study, (c) Byron Biodiversity Conservation Strategy, (d) Byron Rural Settlement Strategy, (e) Small Towns and Villages Settlement Strategies, (f) Coastline Management Plan. 12Clause 9(3) of the LEP states that: Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out. 13The objectives of the 1(c1) zone are: (a) to allow development of an essentially rural nature only in areas which, in the opinion of council, have adequate provision of services, are not so located as to jeopardise the efficient and economic future expansion of urban areas and where there will be no significant impact on agricultural activities or production, (b) to make provision for small rural holdings in appropriate locations and in response to a genuine demand, (c) to maintain a rural character in areas where small holdings are permissible, (d) to control by means of a development control plan the location, form, character and density of permissible development, and (e) to ensure that no development occurs within this zone until the likely impact of the development on the locality has been considered. 14Clause 11 provides development standards for subdivision in rural areas and the minimum lot size in a 1(c1) zone is 0.4ha however, of relevance to the application, subclauses 2 and 3 state: (2) Notwithstanding subclause (1), the council may only consent to: (a) the subdivision of any land within Zone No 1 (c1) where the number of allotments to be created by the subdivision for the purpose of a dwelling-house is not greater than the area of land divided by 2.5, and ........ (3) In subclause (2): land means a parcel or parcels of land held under a separate title on the appointed day. 15For the purposes of clause 11(3), the appointed day is 22 April 1988. On that date, the site formed part of Lot 2 in DP 600192 (the parent lot). Lot 2 had an area of 40.06ha and was partly zoned 1(c1) and partly zoned 1(a). That portion of the parcel within zone 1(c1) had, according to the evidence, an area of 33.94ha and, applying the controls in clause 11 (2)(a), the parcel could be subdivided into a maximum of 13.576 allotments. The parent Lot 2 was subdivided initially in 1996 into two lots, lots 1 and 2 in DP864630. Lot 1 had an area of 8872sqm and Lot 2 an area of 39.17ha. As stated at [5] above, the site forms lot 10 in the subdivision of the 39.17ha Lot 2 in DP864630. To date, a total of 13 lots have been created and, if consent is granted to this application, the number of lots created from the parent lot would be 15. That number exceeds the controls contained in clause 11(2) of the LEP. The applicant has lodged an objection to the development standard contained in clause 11(2) pursuant to the provisions of SEPP1. 16The Byron Rural Settlement Strategy 1998 (BRSS) is a strategic planning document prepared by the council to guide development within its rural areas and to which a consent authority must have regard in accordance with the provisions of clause 2A(2) (d) of the LEP. The strategy was prepared to satisfy the provisions of clause 20 (1) of the North Coast Regional Environmental Plan. That clause states: (1) The council should not prepare a draft local environmental plan for rural land permitting rural residential or small holding development unless: (a) it has prepared a rural land release strategy for the whole of its area, and (b) (Repealed) (c) the draft plan is generally consistent with that strategy. (2) A copy of any such rural land release strategy should: (i) be available, without charge, for public inspection and comment at the office of the council during normal office hours, and (ii) be forwarded by the council for their information to such public authorities as, in the opinion of the council, have responsibilities reasonably requiring them to be aware of the strategy. (3) In identifying land suitable for rural housing, any such strategy is to give preference to areas which: (a) are physically capable of supporting rural housing, and (b) are close to existing settlements which already have services and community facilities, or can otherwise be efficiently and economically serviced, and (c) are physically suitable for septic effluent disposal, and (d) are not required or likely to be required for future urban expansion of existing settlements, and (e) do not comprise prime crop or pasture land, and (f) are not subject to significant environmental hazard, and (g) are not of significant value for the conservation of wildlife. (4) Any such strategy is to be based on the average number of allotments needed annually to meet genuine demand for rural residential and small holding development. (5) The average annual number of allotments needed to meet such demand over any period approved by the council is not to exceed 130 percent of the average number of building approvals granted for the erection of dwellings (in the course of rural residential and small holding development) in the area in each of the preceding 5 years. 17The BRSS was adopted by the council on 20 and 27 October 1998 and approved by the then Department of Urban Affairs and Planning on 22 December 1998. 18The council is currently exhibiting Draft Byron Local Environmental Plan 2012 (the draft LEP). The exhibition period is for a period of 60 days from 24 September to 23 November 2012. The site would be within zone R5 - Large Lot Residential and the Lot Size Map provides for a minimum lot size of 2.5ha. The evidence 19The hearing commenced on site and evidence was heard from a number of objectors to the application. The issues raised are summarised as being: * Amenity impacts; * Impact of additional traffic on roads; * Not compliant with the council's planning controls and would create a precedent for future subdivisions; 20No expert evidence was provided to the Court by either party. Ms McCullan, for the council, submitted that the council's resolution of 27 September, 2012 was to seek consent orders in the event that the applicant agreed to conditions of consent deemed appropriate by the council's General Manager. The applicant has been provided those conditions and agrees they are appropriate. Accordingly, the council provided no further evidence. The report considered by the council and the minutes of the meeting were included in the council's bundle of documents, Exhibit 7. 21Ms Taylor, for the applicant, provided background in regard to the council's consideration of the matter and in particular, provided a copy of notes to an address to the council at the 27 September 2012 meeting by Mr Wise. (Exhibit A). That address took the councillors to the issues contained within its officer's report and specifically addressed the history of the subdivision, made reference to the BRSS, a previous decision in this Court, Lonergan v Byron Shire Council [2008] NSWLEC 1159, previous refusal of consent for subdivision by the council and the draft LEP. 22The Notice of Motion sought to adduce further evidence through the submission of the audio files of the address and the council's determination of the application. The reason provided was to inform the Court of the reasons the council agreed to proceed to consent orders in the hearing. The council did not oppose the application provided no further hearing was required. 23In consideration as to whether leave should be granted, I had regard to the evidence currently available and whether there would be any value in the additional evidence the applicant sought to provide. Austin J, in Australian Securities and Investments Commission v Rich [2006] NSWSC 826; 235 ALR 587 sets out some relevant factors that may be relevant to an application to reopen a case to addjuce further evidence and he lists these at [18] as follows: 18 .... The list is as follows: (a) the nature of the proceeding; (b) whether the occasion for calling the further evidence ought reasonably to have been foreseen; (c) the consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question; (d) the extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case-in-chief; (e) the importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case; (f) the degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time; (g) the prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs; (h) the public interest in the timely conclusion of litigation; and (i) what explanation is offered by the plaintiff for not having called the evidence-in-chief. 24The evidence sought to be adduced relates to the reasons why the council made its decision to seek Consent Orders in the primary proceedings. I do not consider that it is a matter that I need to go behind. The evidence already available to me is that the original application was refused under delegated authority granted by the council to its Executive Manager, Planning & Environment. The council then considered further information provided by its officers and heard from Mr Wise, with his address to them following generally, the information contained in Exhibit A. On that basis it made a decision to ask the Court to make the Consent Orders. 25The information the applicant seeks to rely on is information that was available to them prior to the hearing commencing. The fact the matter has been heard as a Consent Orders hearing does not mean that parties do not need to provide all available evidence to support their case. The Notice of Motion was filed two days after the hearing was completed. I consider that it is too late and, if considered critical in the case, the information should have been part of the evidence tendered in chief. In these circumstances, the application for leave to reopen the case is refused as I do not consider there to be any probative benefit in the additional evidence. 26What is critical in the case is whether it is appropriate to uphold the SEPP1 objection. 27Ms Taylor submits that the SEPP1 objection is well founded and makes particular reference to correspondence from the Department of Planning (Department) to the council dated 1 August 2012 (part of exhibit 7). That letter is in response to a referral of the SEPP1 objection to the Department seeking its concurrence to vary the development standard contained in clause 11(2) of the LEP. The Department, in noting that the subdivision complies with the minimum allotment size is met by the application, it does not consider concurrence is required however, for the sake of completeness, states: However, the Department does not support the concept embodied in clause 11(2)(a) which effectively prevents further subdivision of a large allotment within a strategically planned rural residential release area. Accordingly if the Council considers it appropriate or necessary, concurrence has been grated to vary the development standard for the 1(c1) Small Holdings Zone contained in clause 11 of the Council's planning instrument to permit the creation of proposed Lots 1 and 2 of 2.5ha and Lot 3 of 2.64ha. Concurrence was granted in this instance for the following reasons: (i)the proposal is an appropriate use of the subject land consistent with the small holdings development within the 1(c1) zone in this locality; and (ii)the proposal is consistent with the minimum lot size established for the 1(c1) zone. Our concurrence to the application is based on the merits of the application and its general consistency with the provisions of Clause 11 and the objectives of the 1(c1) zoning of the land. 28Ms Taylor also submits that the proposed subdivision has passed all of the appropriate merit tests imposed by the council in that its officer's assessment of environmental, drainage, site suitability, impacts and character all demonstrate the subdivision is appropriate and makes satisfactory provision for the siting of a dwelling house, associated outbuildings and effluent disposal area. Her submission is that approval of the application would be in the public interest as is it is a form of subdivision contemplated by the council's strategic planning document, the BRSS, is consistent with the current and proposed local environmental planning instruments, particularly the zone objectives and is consistent with the character of the locality, providing for well located building envelopes which ensure that dwellings do not impact on the amenity of adjoining properties and are appropriately separated so as to preserve the rural character of the area. Conclusion and findings 29It is necessary for the Court to determine the application on its merits. In this case, the application does not comply with the planning controls contained in the LEP regarding lot yield. For that reason, it is necessary to determine whether it is appropriate to uphold the objection to that development standard. The parties agree, for the purposes of determination that the controls contained in clause 11(2) are a development standard. 30In Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446, Preston CJ summarised the authorities addressing this topic. His Honour identified (at [38] - [40]) the essential elements as being - (i) satisfaction that "the objection is well founded"; (ii) formation of the opinion that granting consent is consistent with the aims of the policy as set out in cl 3; and (iii) satisfaction that a consideration of matters in cl 8(a) and (b) of the Policy justifies the upholding of the objection. 31Determination of whether the objection is well founded is also a matter considered in Wehbe, where, at [42], the Chief Judge states: An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard 32Clause 11(1) provides some guidance as to the objective of the development standard where it requires each allotment to be of a satisfactory shape and have a satisfactory frontage. A minimum allotment size of 4000sqm is also considered to be the smallest allotment that would achieve the objectives of the control. Subclause (2) seeks to limit the number of allotments that can be created by 'averaging' the number of allotments rather than allowing the parent parcel to be subdivided into lots all of which have a minimum area of 4000sqm. The zone objectives provide further guidance as to the objectives of the control. 33Having regard to these matters, the issues raised by the objectors and the aim, objectives and guiding principles of the LEP, I am satisfied that compliance with the 'averaging' development standard in clause 11(2) is unreasonable and unnecessary in the circumstances of the case. The objectives of the standard are met through the creation of three lots, all of which have areas of 2.5ha or more, have sufficient frontage to provide access, maintain rural character and provide appropriate area for the on-site disposal of effluent. The council's evidence is that the lots would have adequate provision of services, are located so as not to jeopardise the efficient and economic future expansion of urban areas and there will be no significant impact on agricultural activities or production. The provision of small rural holdings in the Coopers Shoot area is contemplated in the BRSS and there is no evidence that approval will create any adverse impacts. The building envelopes proposed have been determined to be acceptable by the council. Whilst there will be a minor increase to traffic in the area, the impact on the road system is not a reason to refuse the application, nor is the fact that any future dwelling will be visible from adjacent properties. 34For those reason, I am satisfied that the grant of consent is consistent with the aims of SEPP1 as set out in clause 3 of that policy. The fact that the concurrence of the Department has been granted is also an important consideration in this case. 35In accordance with the provisions of s 79C(1)(a)(ii) of the Environmental Planning and Assessment Act, 1979, the provisions of any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved) are matters that have to be considered in determination of the application. The draft LEP is such an instrument as it is currently on exhibition and it provides for a minimum allotment size for the site of 2.5ha and would abolish the current development standard for lot averaging. It is apparent from the evidence provided that the issue of lot size has been the subject of considerable debate and discussion between the council and the Department however, I do not find that the provisions of the draft LEP are such that they should be given significant weight. I have no evidence that the plan is either imminent or certain. 36The Orders of the Court are: (1)Leave to reopen the case is refused. (2)The objection to the development standard contained in clause 11(2) of Byron Local Environmental Plan 1988 is upheld (3)The appeal is upheld. (4)Development Application No. 10.2012.237.1 for the subdivision of the land known as Lot 10 DP 847882, Prior Drive, Coopers Shoot to create three (3) allotments is approved subject to conditions in Annexure 'A'. (5)The exhibits, other than exhibit B, may 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: 06 November 2012