In a recent Land and Environment Court case, the Court determined that even though a particular greenfields site was zoned for residential purposes did not mean that the owner of the land had an entitlement to develop the site for residential purposes.

This case is known as Goarin v Manly Council [2014] NSWLEC 1108 and was an appeal to the Court against the refusal by Manly Council for the construction of a one-bedroom dwelling in Manly.

The site

The site had a frontage to the northern side of a public walkway located within the unmade section of the street. The site was subdivided in 1908 and had remained undeveloped. It consisted of a grassed area, rocky outcrops, native trees and was located on top of a cliff, some 10m above a row of houses on the street below. The site had pedestrian access along a public walkway located within the unmade section of the street, but had no vehicular access.

The surrounding area included dwelling houses and some residential flat buildings in landscaped settings and the unmade road, which formed a landscaped and sealed pedestrian link within the area.

Zoning

The site was located within Zone R1 General Residential under Manly Local Environmental Plan 2013 (LEP 2013). The development application was lodged, but not determined, prior to the LEP 2013 coming into effect. Therefore, the primary planning controls were contained in the previous LEP, Manly Local Environmental Plan 1988 (LEP 1988). In LEP 1988 the site was within the No.2 Residential Zone. The construction of a dwelling house was therefore permissible under both LEP 1988 and LEP 2013.

Development suitability

Commissioner Brown found that in accepting that the site was appropriately zoned for the construction of a dwelling, the application was also to be considered against the matters in s 79C(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and any relevant LEP or development control plan (DCP).

The Applicant relied on the findings in BGP Properties Pty Limited v Lake Macquarie City Council[2004] NSWLEC 399 (BGP Properties) at paragraphs 117 and 118 which state:

“In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site.”

Commissioner Brown found that in most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided the design of the project would result in acceptable environmental impacts. The Commissioner also referred to paragraph 119 of BGP Properties which states:

“However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project.”

Commissioner Brown stated that “[i]f it was suggested that there is somehow an entitlement for a dwelling on the site because of the zoning, then this must be rejected.”

The Commissioner determined that insufficient evidence was provided to satisfy the Court that the proposed development was suitable for the site for the following reasons:

  1. The site has no vehicular access. There was no suggestion that the unmade road would ever be constructed in the future, particularly as the road reserve has been included in Zone RE1 Public Recreation under LEP 2013. Access to the site required either descending or ascending stairs and walking a distance of between 45-60m. Commissioner Brown found that this it was unacceptable that a new dwelling should be so difficult to access for its future occupants. The difficulty in performing simple day-to-day functions, such as unloading shopping or receiving deliveries was not found to be consistent with what would be reasonably expected of a new dwelling. No evidence was provided to suggest how this concern could be addressed or any potential difficulty minimised.
  2. The site had unacceptable access for waste collection. Although Commissioner Brown stated that in normal circumstance this would not make a development application unsuitable, in this case it was. No evidence was provided to suggest how this concern could be addressed or any potential difficulty minimised.
  3. The applicant had not demonstrated that the site could be connected to water supply or sewerage disposal. The application had also not demonstrated that stormwater could be appropriately directed away from the site.
  4. The potential difficulty in locating the site and the only means of access being along the pedestrian pathways raised issues over the ability of emergency services, such as ambulance and fire fighting services to access the property in a reasonable time.

What have we learned?

This case has shown us that whilst zoning is important, it does not create an entitlement to develop the site for the purposes identified in the zone.