Liberty Investments Pty Limited v Blacktown City Council and Tringas v Blacktown City Council [2008] NSWLEC 1154 (29 April 2008)

Last Updated: 29 April 2008

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Liberty Investments Pty Limited v Blacktown City Council and Tringas v Blacktown City Council [2008] NSWLEC 1154


PARTIES:
APPLICANT
Liberty Investments Pty Limited and
Nicholas Tringas

RESPONDENT
Blacktown City Council


FILE NUMBER(S):
10943 of 2007
10944 of 2007


CATCHWORDS:
Development Application :- dwelling house
impact on ecological value and native vegetation
whether approval of the applications is a precedent


LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Threatened Species Conservation Act 1995
Commonwealth Environmental Protection and Biodiversity Conservation Act 1999
State Environmental Planning Policy (Sydney Region Growth Centres) 2006
State Environmental Planning Policy No 1 - Development Standards
Blacktown Local Environmental Plan 1988

CASES CITED:
Hill v Blacktown City Council [2007] NSWLEC 401
Hill v Blacktown City Council [2007] NSWLEC 108
Goldin and Anor v Minister for Transport [2002] NSWLEC 75
Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177


CORAM:
Tuor C

DATES OF HEARING:
13,14 and 19/02/2008

JUDGMENT DATE:
29 April 2008


LEGAL REPRESENTATIVES

APPLICANT
Mr J Robson, SC
instructed by Mr A Bisits, solicitor

RESPONDENT
Mr T O'Connor, solicitor
of Houston Dearn O'Connor



JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES


Tuor C


29 April 2008


10943 of 2007 Liberty Investments Pty Limited v Blacktown City Council
10944 of 2007 Tringas v Blacktown City Council


JUDGMENT

1 COMMISSIONER: These are two appeals against the refusal by Blacktown City Council (the council) of two development applications under the Environmental Planning and Assessment Act 1979 (the Act) to construct a single storey dwelling at lots 76 and 77, Section 14, DP 1480 Hobart Street, Riverstone (the Hobart Street site) and lots 25 and 26, Section 8,DP 1477 Brewer Street, Marsden Park (the Brewer Street site).

2 Appeal No 10943 of 2007 is for the development application (06-2326) for the Hobart Street site. Appeal No 10944 of 2007 is for the development application (06-2411) for the Brewer Street site. The parties agreed that the Appeals could be heard concurrently.

3 For the reasons set out in this judgment I have concluded that the appeals should be dismissed and development consent refused.

The sites and surrounding area
4 The Hobart Street site is rectangular in shape with an 18.29m frontage to Hobart Street, a depth of 60.96m and an area of 1114.8 sqm. The land falls slightly towards the north. The site is vacant and contains Cumberland Plains Woodland (CPW). The site and the adjoining land to the west have been used for dumping of fill, car bodies and waste, which has resulted in degradation of the vegetation and weed infestation.

5 The surrounding land and land to the east is vacant. Land further to the west, across Hamilton Street, is residential and industrial. Land to the south of Hobart Street is residential and to the north is industrial. Hobart Street is a dirt road.

6 The Brewer Street site is triangular in shape with frontages of 69.65m to Brewer Street and 73.97m to Walker Parade and a site area of about 881sqm. The land falls towards the east. The site is vacant and also contains CPW.

7 Surrounding land to the south and west is vacant and also vegetated with CPW. Land to the north across Walker Parade is developed with a number of rural residential properties. Brewer Street is unformed and Walker Parade is a sealed road with services.

Background
8 Both development applications were lodged in August 2006. Neither application was notified. Council refused both applications on 20 February 2007 on the basis that dwelling houses were not a permissible use on the sites and that the Department of Planning (DoP) had not granted concurrence to the applications.

Planning framework
9 Both sites are zoned Environment Conservation under State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (the Growth Centres SEPP).

10 The aims of the Sydney Region Growth Centres SEPP in cl 2 are:

The aims of this Policy are (in conjunction with amendments to the regulations under the Act relating to precinct planning) as follows:
(a) to co-ordinate the release of land for residential, employment and other urban development in the North West and South West growth centres of the Sydney Region,
(b) to enable the Minister from time to time to designate land in those growth centres as ready for release for development,
(c) to provide for comprehensive planning for those growth centres,
(d) to enable the establishment of vibrant, sustainable and liveable neighbourhoods that provide for community well-being and high quality local amenity,
(e) to provide controls for the sustainability of land in those growth centres that has conservation value,
(f) to provide for the orderly and economic provision of infrastructure in and to those growth centres,
(g) to provide development controls in order to protect the health of the waterways in those growth centres,
(h) to protect and enhance land with natural and cultural heritage value,
(i) to provide land use and development controls that will contribute to the conservation of biodiversity.
Note: This Policy provides the initial environmental planning instrument component of the Metropolitan Strategy released on 4 December 2005 for the release of land for urban and employment development in areas suitable for growth in the Sydney Region (with more detailed land use and other development control components to be progressively included on completion of the planning process in precincts released for urban development from time to time under clause 276 of the Environmental Planning and Assessment Regulation 2000 ).


11 Part 3 - Land Use applies to the Environment Conservation Zone (ECZ). Cl 8(2) provides:

(2) Land that is zoned under this Part is not subject to the provisions of any environmental planning instrument (other than a State environmental planning policy or regional environmental plan) applying to the land concerned, except to the extent that this Policy otherwise provides.

12 Clause 10 provides objectives for development in land use reservation zones, including the ECZ. It provides:

(1) The objectives for development in each land use reservation zone are set out in the Table to this clause.
(2) The consent authority must have regard to the objectives for development in any such zone when determining a development application in respect of land within the zone.

13 The ECZ has the following objectives:

(a) To protect and restore areas of special ecological, scientific or aesthetic values,
(b) To conserve biological diversity, native vegetation corridors, aboriginal heritage or cultural values of the land, and its scenic qualities.

14 The land use table in cl 12 identifies certain land uses that are permitted with consent and without consent in the ECZ, dwelling houses are not included in either of these categories and therefore fall within the prohibited category.

15 Despite this prohibition, cl 14 provides:

(1) Despite anything to the contrary in this Part, the consent authority may grant consent to the carrying out of development on land zoned under this Part that is not otherwise permitted by this Part if:
(a) the development is of a kind that could be carried out on the land under an applicable environmental planning instrument immediately before the commencement of this Policy, and
(b) the relevant public authority referred to in cl 15 that may be required to acquire the land grants concurrence to the proposed development, and
(c) the development is consistent with the aims of this Policy.

(2) In deciding whether to grant concurrence to proposed development under this clause, the relevant public authority must take the following matters into consideration:
(a) the need to carry out development on the land for the purposes for which the land is zoned under this Part,
(b) the imminence of acquisition of the land by the public authority,
(c) the likely additional cost to the public authority resulting from the carrying out of the proposed development.

16 For the purpose of cl 14(1)(a), Blacktown Local Environmental Plan 1988 (LEP 1988) is an environmental planning instrument that applied immediately before the commencement of this Policy. Under LEP 1988 both sites were zoned 1(a) General Rural and dwellings were permissible with consent. Cl 12(3) of LEP 1988 permitted dwellings only on parcels of land of not less than 10ha. Both sites are less than 10ha and would have required an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) to cl 12(3). Nonetheless, consistent with the judgment of Jagot J in Hill v Blacktown City Council [2007] NSWLEC 401 the proposed development is of a kind that could be carried out under LEP 1988 and SEPP 1 and therefore meets the test of permissibility under cl 14(1)(a) of the Growth Centres SEPP. Clause 14(1)(b) and (c) are also required to be satisfied for the development to be permissible.

17 The relevant public authority for the purpose of cl 14(2) is stated in cl 15(a) of the Growth Centres SEPP as the Corporation under s 8(1) of the Act. The DoP is the relevant authority to undertake this role on behalf of the Minister for Planning. By letter dated 5 February 2007, the DoP did not grant concurrence to the Brewer Street site for the following reasons:

(a) the need to carry out development on the land for the purposes for which the land is zoned under this Part,
Given that the application is within an area identified as ‘Environment Conservation’ under the SEPP the long term objectives of the zone will be compromised by allowing new dwellings.

(b) the imminence of acquisition of the land by the public authority,
The Department has agreed to have lands they own in the Scheduled Lands area of Marsden Park to be investigated for a ‘land swap’ scheme. This is currently the subject of investigation and negotiation with Growth Centres Commission. It is not the Department’s intention to acquire any land in this location at present.

(c) the likely additional cost to the public authority resulting from the carrying out of the proposed development.
The Department is concerned that if the application were to be approved, it would increase the potential cost of the property in the event that it were to be acquired by the Department in the future.

18 The DoP also did not grant concurrence to the Hobart Street development for the same reasons. Under s39(6) of the Land and Environment Court Act 1979, the Court is not bound by the decision of the DoP.

19 Clause 23 of the Growth Centres SEPP applies to the clearing of native vegetation and applies to the sites. It provides:

(2) Development consent under this clause is not to be granted unless the consent authority is satisfied of the following in relation to the disturbance of bushland caused by the clearing of the vegetation:
(a) that there is no reasonable alternative available to the disturbance of the bushland,
(b) that as little bushland as possible will be disturbed,
(c) that the disturbance of the bushland will not increase salinity,
(d) that bushland disturbed for the purposes of construction will be re-instated where possible on completion of construction,
(e) that the loss of remnant bushland caused by the disturbance will be compensated by revegetation on or near the land to avoid any net loss of remnant bushland,
(f) that no more than 0.5 hectare of bushland will be cleared unless the clearing is essential for a previously permitted use of the land.
(3) The consent authority must, when determining a development application in respect of the clearing of native vegetation on land within a zone under Part 3, have regard to the objectives for development in that zone.

The issues
20 The Statement of Facts and Contentions for both appeals raised the same 7 contentions. The key issues between the parties can be summarised as whether:
i) The proposed dwellings would protect and restore the special ecological value of the ECZ,
ii) The removal of native vegetation was acceptable, and
iii) The proposal would create an adverse precedent for future applications of a similar nature.

The evidence
21 The Court heard expert evidence from:

22 For the council
Ms E Norris, ecologist
Mr R Mezzatesta, ecological consultant
Mr G Apps, town planner

23 For the applicant
Dr T Hawkeswood, flora and fauna consultant
Mr S Craythorn, town planner

Ecological issues and removal of native vegetation
24 The experts addressed the issue of whether the proposed dwellings would meet the ecological objectives of the ECZ. The Hobart Street site is in the centre of a 31ha contiguous patch of vegetated land in the South Riverstone conservation area. The Brewer Street site is part of the 41ha Marsden Park conservation area. The ECZ includes these “patches”, together with the Shanes Park Air Services conservation area, which are the 3 largest remnant patches of native vegetation within the North West Growth Centre.

25 Mr Mezzatesta stated that 68% of the remnant vegetation is less than 4ha in area and is not considered to be viable for long term management of biodiversity values. The patches in the ECZ were identified in the Growth Centres Conservation Plan to conserve biological diversity in the growth centre. He stated that the patches:

conserve biological diversity and provide for the long term management of biodiversity values and habitat due to their size (larger than 4ha), vegetation patch configuration with a low edge to area ratio (favouring a “round” or “blocky” shape as opposed to a long narrow strip), proximity to other remnants and riparian areas to provide a habitat corridor function for threatened fauna such as birds and bats.

Hobart Street site
26 The experts agreed that the vegetation on the Hobart Street site is typical of Shale Plains Woodland (SPW) which is a category of CPW, listed as an Endangered Ecological Community under the Threatened Species Conservation Act 1995 (TSC Act) and as a Threatened Ecological Community under the Commonwealth Environmental Protection and Biodiversity Conservation Act 1999.

27 The vegetation is degraded from dumping of waste and fill and the prevalence of exotic weeds. The canopy species are present with a modified understorey and disturbed soils.

28 The site includes habitat for the Cumberland Plains Land Snail (Meridolum corneovirens) listed as endangered under the TSC Act and snails have been observed on the site.

29 The development will retain the tree canopy on the site but there will be clearing of indigenous shrubs and ground cover.

Brewer Street site
30 The experts agreed that the vegetation on the Brewer Street site is Cooks River Castlereagh Ironbark Forest which is also a category of CPW. Some of the site has a prevalence of weeds, particularly in the more open and previously cleared areas where African Love Grass dominates.

31 The site includes habitat for two threatened flora species (Dillwynia tenuifolia and Micromyrtus minutiflora), which have been seen on the site.

32 All trees on the site, except one, will be retained. The indigenous mid-storey and groundcover will be removed over part of the sites, including identified threatened plants.

33 The key area of disagreement between the experts was the ecological value of the sites and the surrounding area, the extent of impact from the proposals and whether the ecological value could be restored.

34 Dr Hawkeswood considered that both sites and surrounding areas had been “drastically” altered, were regrowth, in poor condition and had no conservation value now or in the long term. He considered the sites had no potential to be restored. He accepted that the surrounding area was identified as ECZ but considered this to also be in poor condition with little potential for restoration. In his opinion restoration would require the area to be returned to “pristine” condition with all elements of the ecological community present, including fauna and fauna, which is not possible.

35 In Dr Hawkeswood’s opinion, even if the sites were of ecological value, the proposals would have minimal impact as the footprint of the dwellings and driveways was small in relation to the site areas and located on disturbed areas of the sites. He estimated that the dwelling (each 124sqm) plus driveway (111sqm for Hobart Street and 45sqm for Brewer Street) would occupy about 20% of each site area. Although of little ecological value, he considered that approximately 100sqm of each site could be planted with canopy trees and ground cover, but not understorey. He considered the proposal met the requirements of cl 23(2) of the Growth Centres SEPP.

36 Both Ms Norris and Mr Mezzatesta recognised that the sites were regrowth and degraded but considered them to be of ecological value due to the presence of endangered ecological community on the sites and in the surrounding area. They agreed that most remaining CPW is regrowth, which demonstrates how sites can regenerate after disturbance.

37 Ms Norris assessed the potential for each site to be restored individually. She concluded that the recovery potential of the Hobart Street site is “low” but stated that this does not reflect the higher recovery potential of the larger contiguous area of which it is a part.

38 The recovery potential of the Brewer Street site Ms Norris estimated as “high” and noted that the site is likely to regenerate well provided disturbances such as African Love Grass are managed.

39 Both Mr Mezzatesta and Ms Norris did not agree with the standard of restoration sought by Dr Hawkeswood, rather they considered the aim to be to conserve and enhance biodiversity.

40 Ms Norris accepted that the footprint of the dwellings was small but stated that there would be further clearing of the site for construction, the septic tank, services and outdoor areas and to comply with bushfire requirements of the Rural Fire Service (RFS) that the sites be managed as an inner protection area (IPA). She considered that a vegetation management plan (VMP) would assist in restoring the vegetation on the site but doubted whether sufficient area was available. She raised concerns about the adequacy of the information to address the requirements of cl 23(2) of the Growth Centres SEPP.

41 Mr Mezzatesta considered that the proposal would impact on the site and the surrounding area due to the removal of vegetation, introduction of pets, greater access and weed infestation. In particular, the Hobart Street site, while in poor condition, is located within the ECZ, the development is likely to transfer disturbances such as weed infestation to other sites and fragment habitats within the patch. He stated that the cumulative impact of individual sites being developed reduces the long term viability of the patch to conserve and restore biological diversity.

42 Mr Mezzatesta noted the principles of biodiversity include: minimise landscape fragmentation, minimise boundary to site shape, consolidate areas and minimise edge effects. He considered that development of these sites was not consistent with conserving biological diversity because of edge effects and fragmentation.

Precedent
43 The main concern of council was that approval of these applications would create a precedent for other approvals. In the Marsden Park Environment Conservation Zone, 147 lots out of 158 are privately owned. In the Riverstone Environment Conservation Zone, 77 of the 92 lots are privately owned. Currently very few lots are developed. Mr Apps stated that there have been no approvals of new dwellings in the ECZ only approvals of replacement dwellings (such as the Hill decision). He was concerned that there are no characteristics of these sites that would distinguish them from other undeveloped sites in the zone. Both he and Mr Craythorn considered the planning environment of the area to be “dynamic” with the detail in the Growth Centres SEPP likely to change as further precinct plans are developed. They considered that any precedent may therefore be “short lived”.

Findings
44 Mr Robson SC, for the applicant, submitted that considerable weight must be given to the permissibility of dwellings on the sites. The dwellings are minor developments, which do not impact on the long term planning of the area, the refusal of the applications would unreasonably sterilise land in private ownership where there is no intention that the land is to be acquired in the near future for public use.

45 The dwellings gain permissibility by the application of cl14(1). Jagot J in Hill states:

34 Clause 14(1) operates despite anything to the contrary in Pt 3 of the Sydney Region Growth Centres SEPP. The contrary provision is cl 12 incorporating the land use table. Clause 14(1)(a) is a form of savings provision. It allows a person to carry out on land development that could have been carried out under applicable environmental planning instruments before the Sydney Region Growth Centres SEPP commenced..... The objectives of the Sydney Region Growth Centres SEPP are achieved not by prohibiting such development but, rather, by the other requirements of cl 14(1).

46 The other requirements of cl 14(1) to establish permissibility are whether concurrence has been granted (cl 14(1)(b)) and whether the proposal is consistent with the aims of the policy (cl 14(1)(c)).

47 The aims of the Growth Centre SEPP in cl 2 relevantly include:

(a) to co-ordinate the release of land for residential, employment and other urban development in the North West and South West growth centres of the Sydney Region,
....
(c) to provide for comprehensive planning for those growth centres,
(d) to enable the establishment of vibrant, sustainable and liveable neighbourhoods that provide for community well-being and high quality local amenity,
.....
(i) to provide land use and development controls that will contribute to the conservation of biodiversity.

48 The North West Structure Plan divides the Growth Centre into precincts to facilitate the orderly release of land for urban development over the next 25-30 years. The Structure Plan identifies areas for urban development including major centres, town and neighbourhood centres, industrial and employment lands, flood liable lands, and conservation and open space areas. Environment conservation and open space areas are included in the zoning map of the Growth Centres SEPP. Further planning of precincts will provide more detailed controls for development as areas are released.

49 The ECZ are areas of special ecological, scientific or aesthetic values, which will assist in conserving biological diversity, native vegetation corridors and scenic qualities of the area. Within the context of the aims of the policy, particularly the aim to coordinate future urban growth and to contribute to conserving biodiversity, the impact of development within areas identified for environment conservation gains strategic importance.

50 Under cl 10(2) of the Growth Centres SEPP, I must have regard to the objectives of the zone. I note that due to the restrictive nature of the land uses and the objectives of the ECZ it may be difficult for any development, not permissible within the zone under the land use table, to meet these objectives. I do not consider that the regard that should be given to these objectives has the same weight as for a land use permissible within the zone. As stated by Jagot J in Hill, cl 14(1)(a) is a form of savings provision, and the regard to the objectives that should be given is one of not undermining the planning intent of the zone rather than one of consistency. Nonetheless a consideration of the objectives of the zone is useful in determining whether the proposal is consistent with the aims of the Growth Centres SEPP.

51 There are no development controls in the Growth Centres SEPP to provide guidance in the assessment of the application other than a test of consistency with the aims of the policy and the concurrence provisions. It is somewhat odd that the objectives of the ECZ are more restrictive than the previous Rural 1(a) zone in LEP 1988. However, in relation to the development of a house it is less restrictive as the LEP required a 10ha minimum lot size.

52 Clearly an assessment of the impact of the development on the ecological value of the site is required to determine its consistency with the aims of the policy. Again the objectives of the zone to “protect and restore” and to “conserve” provide assistance in this assessment.

53 Dr Hawkeswood’s evidence is premised on not only the sites but also the ECZ as having little ecological value. I do not accept this assumption. The Growth Centres SEPP identifies the ECZ as being of “special ecological value”. It is within this context that I must assess the applications. This requires an assessment of the value of each site, both individually and as part of the wider area as well as an assessment of the impact of the proposal on the site and the wider area.

54 Ms Norris and Mr Mezzatesta recognise the degraded condition of the sites but consider that they retain conservation significance as part of the wider patches. Ms Norris concluded that the Brewer Street has high potential for recovery and that development of dwellings on each site is likely to impact on the wider area. I accept Ms Norris’ evidence.

55 While Ms Norris assessed the Hobart Street site individually as having low potential for recovery, she observed the surrounding area was in good condition with a high recovery potential. Mr Mezzatesta was concerned that the central location of the Hobart Street site would impact on adjoining sites, if developed.

56 The footprint of the dwellings is small, however, the associated works and requirements of the RFS that the sites be managed as IPA in accordance with Appendix 2 of Planning for Bushfire Protection 2006 (p 50 and 51) mean that a greater part of the site will be disturbed. These requirements conflict with the retention or restoration of CPW on the sites and their ecological value. While the applicant has proffered a condition that 100sqm of new vegetation be provided on each site, this is not and cannot be CPW as no understorey is provided. The applications provided little information about the extent of native vegetation to be removed or the extent of revegetation other than the condition, which was proffered during the hearing. It is therefore difficult to conclude that cl 23(2) has been satisfied.

57 I accept Mr Robson’s submission that the permissibility of the proposal under cl14(1)(a) is to be given considerable weight. However, a dwelling is only permissible if it is also consistent with the aims of the Growth Centres SEPP. In reaching the decision that the proposals are unacceptable it does not necessarily follow that no dwellings could be approved within the zone. A dwelling on a considerably larger site could meet the objectives of the policy. A larger site could provide more opportunity to conserve and restore vegetation, particularly if the application were accompanied by a VMP, which demonstrated that the impacts of the house could be balanced against the benefits of the proper management of the CPW.

58 The sites are of value as part of the wider area. The proposed dwellings and the associated works, particularly the bushfire requirements, will impact on the sites themselves. While the Hobart Street site has low potential for recovery its location within the ECZ will impact on the wider area. The Brewer Street site has high potential for recovery and, while the site is on the edge of the ECZ, the proposed dwelling is located on that part of the site, which adjoins land in public ownership and is likely to impact upon it. The proposal will impact on the ecological value of the sites and the area and consequently does not achieve the biodiversity aims of the SEPP or other aims, including to co-ordinate the release of land and provide comprehensive planning. On this basis the applications must fail.

59 In relation to the other requirement to establish permissibility, pursuant to cl 14(1)(b). The DoP did not grant concurrence to the applications. Under s39(6) of the Land and Environment Court Act 1979, the Court is not bound by the decision of the DoP.

60 Cl14(2) requires consideration of the following matters:

(a) the need to carry out development on the land for the purposes for which the land is zoned under this Part,

61 There is no demonstrated need to carry out the development of dwelling houses on the land and it is not a purpose for which the land is zoned. However, the land is privately owned and cl 14(1)(a) permits dwelling houses, although subject to satisfaction of other criteria. It therefore is not an unreasonable expectation that development of dwelling houses can occur within the zone or alternatively that the land will be acquired.

(b) the imminence of acquisition of the land by the public authority,

62 The planners agreed that:

To date, other than Environment Conservation zoning under the SEPP, there has been no commitment to acquire the appeal sites, or any other EC zoned land at Marsden Park or Riverstone. There is no knowledge of any administrative or financial commitment to apply land management to give effect to the aims of the proposed ‘Environment Conservation’ zoning mentioned in the SEPP.

63 The DoP has stated it is investigating a land swap scheme. It is not the Department’s intention to acquire any land in this location at present. Acquisition of the land is not imminent, however, this does not mean it is not likely to occur in the future. The objectives of the ECZ are only likely to be achieved through public ownership of the land. A land swap scheme is a method by which the land can be acquired, but it is a matter that needs to be implemented expeditiously as there are large numbers of small allotments in the ECZ in private ownership. Given that the Growth Centres SEPP was made in 2006 and it plans the coordinated release of land over 25-30 years it is not unreasonable that a land swap scheme has not been implemented to date. However, if this situation were to continue, it would be unreasonable.

(c) the likely additional cost to the public authority resulting from the carrying out of the proposed development

64 The Council has proposed a condition, agreed to by the DoP, which results in no increase in acquisition costs by the construction of the house. The applicant is opposed to the condition in its current wording. I note that the condition sought is of a similar form to that imposed by Bly C in Hill v Blacktown City Council [2007] NSWLEC 108 and considered by Jagot J in Hill, where her honour concluded that the imposition of the condition was lawful but at para 43 commented upon its wording. If in the circumstances the developments were found to be acceptable, I accept that the wording sought by council “could have an onerous impact on the applicant” which could be ameliorated by different drafting as suggested by the applicant, however, the period of 6 months would appear to be too short.

65 In relation to precedent, the parties recognised that approval of these applications was likely to result in other applications seeking consent for development. However, Mr Robson SC submitted that each application would need to be considered on its merits and approval of these applications was not of itself objectionable and did not set a precedent for approval of other applications.

66 The parties referred to Goldin and Anor v Minister for Transport [2002] NSWLEC 75 where Lloyd J relied on Sugarman J in Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177, where he said at 182:

It is sometimes contended that a proposed development, in itself unobjectionable, should not be allowed because it is likely to lead to others of a similar character and the totality would prove objectionable. That depends, inter alia, upon the existence of a sufficient probability that there will be further applications for a number of undistinguishable developments of the same class sufficient in their totality to bring about the objectionable condition of affairs. Here it seems, as I have said, unlikely that all the hypothetical subdivisions shown on the plan tendered by the council would be sought. Applications must be considered on their own merits and it would appear to be unduly onerous to refuse an application, unobjectionable on its individual merits, on the mere chance of probability that there may be later applications sufficient, if approved, to produce in their totality some undesirable condition. In such a case as the present, if what originally appeared to be a mere possibility or chance turned out later to become a distinct possibility, there would be no reason why the council should not at that stage call a halt, if it should then appear proper to do so. Justice is not offended in these circumstances by the refusal of further applications calculated to lead to objectionable conditions after the granting of one or more earlier applications unobjectionable in themselves.

67 In Goldin, Lloyd J analysed a number of decisions following Emmott which considered the issue of precedent in planning appeals. He notes at para 31 and 32 that:

The authorities relied upon by Mr Hale show clearly that the precedent effect of a particular proposal is a valid consideration. In Shellcove Gardens Pty Ltd v North Sydney Municipal Council, Sugerman J expressly referred to his earlier decision in Emmott, in which he corrected the misprint in the latter judgment. Sugerman J acknowledged that “if one application were granted it might prove difficult for the council to refuse others unless the circumstances were distinguishable”. In the present case there has been a finding of fact by the Senior Commissioner that there is more than a mere “chance or possibility” of such later applications.

In particular, the decision of the Court of Appeal in BP Australia Ltd v Campbelltown City Council is, of course, binding upon me. As noted above, that Court held that the risk of establishing a precedent is readily invokable by prospective developers of other land in the vicinity is a valid consideration.

68 In applying this consideration to the current applications I conclude that there the majority of sites in the ECZ are vacant and there is a real probability that there will be further applications on sites with similar characteristics. While each application must be considered on its merit, other applications and other site are likely to have very similar constraints and considerations and approval of these applications would set a precedent for other approvals.

69 For the reasons above, I have concluded that approval of the applications is unacceptable on their merits and they are therefore objectionable in their own right. In addition, the cumulative impact of incremental development will fragment the “patches” thereby reducing their viability and eroding the intent of the zone and the aims of the SEPP. In reaching this conclusion I am mindful that the land is largely in private ownership and that the conflict between achieving the zone objectives and residential development of the land appears unresolved.

Orders

70 For the above reasons the Orders of the Court are:

1. The appeals are dismissed.

2. The development applications to construct a single storey dwelling at lots 76 and 77, Section 14, DP 1480 Hobart Street, Riverstone (DA 06-2326) and lots 25 and 26, Section 8, DP 1477 Brewer Street, Marsden Park (DA 06-2411) are refused.

3. The exhibits, except Exhibits 6 and 7, may be returned.




______________________
Annelise Tuor
Commissioner of the Court