Agonic Holdings Pty Ltd v Lithgow City Council - [2008] NSWLEC 1347

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Agonic Holdings Pty Ltd v Lithgow City Council [2008] NSWLEC 1347

PARTIES:
APPLICANT
Agonic Holdings Pty Ltd
RESPONDENT
Lithgow City Council

FILE NUMBER(S): 10580 of 2007

CORAM: Murrell C

KEY ISSUES: Development Application :- Rural subdivision, 1855 hectares into 38 lots; fragmentation of rural holding and loss of agricultural land; land use conflicts; visual impact; threatened flora and fauna; effluent disposal; access and traffic; and public interest

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Lithgow Local Environmental Plan

DATES OF HEARING: 21/09/2007, 18 and 19/12/2007, 1/04/2008 and 10/07/2008

DATE OF JUDGMENT:
1 October 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr P. Tomasetti SC
Instructed by Mr D. Bolog
of DC Balog and Associates
RESPONDENT
Mr S. Griffiths, solicitor
with Ms N. Lowe, solicitor
of Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

1 October 2008

10580 of 2007 Agonic Holdings Pty Ltd v Lithgow City Council
JUDGMENT

1 The applicant in these proceedings is seeking to subdivide 1855 hectares into 40 allotments ranging in size from 40 to 104 hectares.

2 The subject land is located approximately 35 km west of Lithgow in the rural district known as Tarana. The topography of the land, not unlike the local district, varies considerably from relatively flat pasture and crop land, to moderate slopes, rising to very steep land. There is also a great variation in elevation over the property with the lowest point being at 750 metres, equivalent to Wentworth Falls, and the highest point 1200 metres equivalent to Mt Victoria in elevation above sea level. Some 60% of the site has a slope greater than 15% and 45% of the land is covered with woody native vegetation. There are 48 dams on the property. Figure 1 shows the topographical contours on an aerial photograph.

3 This matter commenced on-site as a Section 34 conciliation conference. An inspection of the subject land and surrounding area occurred at this time. While the issues were narrowed agreement could not be reached and the parties consented to me adjudicating the matter subject to a further hearing.

4 This judgment is pursuant to s 34(5)(a) of the Land and Environment Court Act.

5 For the hearing the respondent provided an amended Statement of Contentions as follows:

LOSS OF SUSTAINABLE AGRICULTURAL LAND/ FRAGMENTED AND ISOLATED DEVELOPMENT OF RURAL LAND/ LACK OF ACCESS TO SERVICES

1. The proposal seeks consent to subdivide 1854.74 hectares of land that includes prime crop and pasture land into 40 allotments ranging in size from 40 to 104 hectares. This will result in a large commercial agricultural holding being fragmented into lots that will not sustain efficient and effective commercial agricultural production.

Particulars

A Lots of the size proposed will not be able to support viable commercial agriculture.

B Lack of water to each lot results in the inability to sustain intensive plant agriculture.

C The proposed development denies current and future generations the opportunity to undertake commercial agriculture on this land.

D The proposed development is not consistent with Clause 2(b) (1) of the Lithgow City Council Local Environmental Plan 1994 ("LEP 1994") which specifies that an aim of the Plan is to encourage the proper management, development and conservation of natural resources and the built environment within the City of Lithgow by protecting, enhancing or conserving prime crop and pasture land.

E The proposal is not consistent with aim in Clause 2(c) (i) and (ii) of LEP 1994 which states as follows:

ii facilitates the efficient and effective provisions of amenities and services.

a protecting, enhancing and conserving:

i rural land, in particular prime crop and pasture land, in a manner which sustains its efficient and effective agricultural production potential.

ii providing, extending and maintaining public amenities and services.

H Clause 1 1 of LEP 1994 specifies that the consent authority is to take certain matters into consideration before determining a development application in relation to land within zone 1(a).

Clause 1 1 (1) (a) - The proposed development will have an adverse impact on the present use of land and the potential for sustained agricultural production of the land that is, prime crop and pasture land.

"Policy for Sustainable Agriculture in New South Wales" dated December 1998.
2001 Report to the Premier by the NSW Sustainable Agriculture Review Group on the Implementation of the Policy for Sustainable Agriculture in NSW.
Policy for the Protection of Agricultural Land dated 2004.

LAND-USE CONFLICTS

2 The proposed development will create conflicts with the use of agricultural properties in the vicinity.

Particulars

ii issues with domestic animals and the killing of livestock;

iv weed infestation;

v dust;

vi noise;

vii odour.

f providing for the separation of conflicting land uses.

vii encourages the separation of conflicting land uses.

VISUAL IMPACT-this issue may be satisfied by condition

3 The proposed development will adversely impact on the rural landscape.

Particulars

A Clause 11 of LEP 1994 specifies that the consent authority is to take certain matters into consideration before determining a development application in relation to land within zone 1(a).

Clause 11 (1) (d) - The proposed development will have an adverse impact on an area of high scenic value.

HERITAGE

4 Issue deleted.

FAUNA AND FLORA - this issue may be satisfied by the provision of an assessment of significance in respect of the box-gum-woodland and otherwise by conditions

5 Native Blackthorn (Bursaria spinosa ) has been found on the subject site and this species provides habitat for the Bathurst Copper Butterfly. Bathurst Copper Butterfly is an endangered species in the Threatened Species Conservation Act 1995 (NSW). The proposed subdivision may result in a decrease in the Native Black Thorn and therefore impact on the Bathurst Copper Butterfly habitat.

Particulars

a protecting, enhancing and conserving:

v trees and other vegetation in environmentally sensitive areas, where the conservation of the vegetation is significant for scenic amenity or natural wildlife habitat or is likely to control land degradation.

EFFLUENT DISPOSAL

6 The development application has not provided adequate detail in respect to the effluent disposal proposed. The Applicant is required to provide to Council a report from an appropriate expert which confirms that each proposed lot will have available to it an area suitable for effluent disposal.

ACCESS AND INCREASED TRAFFIC

7 The proposed development will result in an increase in traffic and will adversely impact on the access provisions of adjoining properties.

Particulars

a the proposal would substantially increase the current traffic volumes on Rydal/Sodwalls/Tarana, Curly Dick, Diamond Swamp and Goldies Roads.

PUBLIC INTEREST AND ISSUES RAISED BY THE OBJECTORS

9 The proposed development is not in the public interest as it will result in the .fragmentation and loss of viable agricultural land which will not be available for future generations and will result in land use conflicts. The proposed development will not be consistent with the NSW State Policies -

"Policy for Sustainable Agriculture in New South Wales" dated December 1998.
2001 Report to the Premier by the NSW Sustainable Agricultural Review Group on the Implementation of the Policy for Sustainable Agriculture in NSW.
NSW Policy for the Protection of Agricultural Land dated 2004.

b breaking up and loss of agricultural land;

c impact on flora and fauna;

d increase in traffic and impact on access;

e inadequate water for subdivision proposed;

f loss of wildlife refuge in the rough treed terrain.

Statutory planning framework

6 The subject land is zoned 1(a) rural (general). The objective of the zone is:

(i) rural land, in particular prime crop and pasture land, in a manner which sustains its efficient and effective agricultural potential, and effective agricultural production potential,

Without development consent

Only with development consent

Prohibited

7 The other rural zonings include: 1(c) small holdings; 1(d) future urban; and 1(f) rural forestry.

8 Clause 9 of the LEP sub clause 2 states:

The council must not grant consent to development unless it is of the opinion that such development is consistent with the objectives for the zone.

9 General considerations for development are contained in clause 11 as follows:

10 Clause 12 contains provisions for subdivision in Zone No. 1(a) as follows:

(1) General restriction

The Council may consent to a subdivision of land within Zone No. 1(a0 in accordance with either subclause (2), (3) or (4) and not otherwise. Each of those subclauses provides a separate and mutually exclusive set of requirements. Such a consent can be granted only if the land to be subdivided does not comprise the whole or any part of an allotment or portion of land previously subdivided in accordance with a consent granted after the commencement of this plan. However, a further subdivision under subclause 92) may be permitted to a parcel of land notwithstanding that a previous subdivision has been approved under that subclause.

(2) Creation of “40 hectare allotments”

The Council may consent to a subdivision of land within Zone No. 1(a) if each allotment to be created by the subdivision will have an area of not less than 40 hectares.

11 The general aims of the plan are set out at clause 2 of the LEP as follows:

12 The LEP defines prime crop and pasture land:

Land within an area identified, on a map prepared by on behalf of the Director General of Department of Agriculture deposited in the office of the council as Class 1, Class 2 or Class 3 or as land of merit for special agricultural uses, but does not include land with the Director General has notified the Council in writing is not prime crop and pasture land for the purposes of this plan.

Policies and Other Documents and Guidelines

13 The respondent referred to a report of 2001 entitled ‘On the Implementation of the Policy for Sustainable Agriculture in New South Wales.’ Chapter 9 on Integrated Regional Planning under the heading of Progress states:

14 The NSW Department of Primary Industries produced an update of the policy ‘Protection of Agricultural Land’ in May 2004. The purpose of the policy is to guide officers of NSW Agriculture in their input to development and implementation of environmental planning instruments and it includes the following:

Environmental Planning and Assessment Act 1979

15 Under the principles for implementation of this Policy it states:

16 Under the section on polices to protect agricultural land the document states:

The agricultural and suitability of the land in question;
The nature and requirements of agricultural industries in the area be considered;
The risk of creating land use conflict;
The current distribution of property sizes; and
cumulative impacts.”

17 The policy document of NSW Agriculture entitled ‘Agricultural Land Classification’ in section 2.2 states:

Environmental Planning and Assessment Act 1979

Class 1:

Class 2:

Class 3:

Class 4:

Class 5:

18 The Council’s bundle contained a paper on ‘Agricultural Land Use Analysis.’ This paper contains a table that shows the holding sizes within the Rural General zone in the Lithgow Local Government Area. Of a total of 2485 holdings; 22 are above 1000 ha; 76 holdings are between 100 and 400 ha; 529 are between 42 and 100 ha; and 586 are between 10 and 40 ha. While some 920 holdings are below 10 ha.

19 The above paper notes that in 2001 nearly 84% of holdings produced cattle and the gross beef output contributed almost 64% of the total agricultural output.

20 The paper examines gross value of agriculture by holding and states:

21 The Council has also adopted a subdivision and development code entitled ‘Engineering guidelines for subdivisions and developments.’

22 Subsequent to the completion of the hearing a State Environmental Planning Policy for Rural Lands was gazetted 9 May 2008. As such the matter was re-opened to allow the respondent to tender same and further submissions were made by the parties. This state policy contains a savings provision as follows:

If a development application has been made before the commencement of this policy in relation to land to which this policy applies and the application has not been finally determined before that commencement, the application must be determined as if this policy had not been commenced.

23 Part 2 of the SEPP contains Rural Planning Principles as follows:

24 The note under Part 3 says that the Policy does not change the minimum lot size provision in existing environmental planning instruments however, the policy does not permit variation of minimum lot sizes. Clause 8 contains Rural Subdivision Principles and they are as follows:

25 Clause 9 provides flexibility for subdivision in rural zones by allowing subdivisions for the purpose of primary production to create a lot less than the minimum size however such a lot cannot be created if an existing dwelling would be situated on the lot and a dwelling can not be erected on a lot created by such a subdivision. The SEPP removes the ability to vary the minimum subdivision size in rural areas by the use of a SEPP 1 objection.

26 The State Policy makes provision for State significant agricultural land to be identified in Schedule 2. At this time no land is included in the schedule.

27 Schedule 1 contains amendments to local environmental plans in the State and for the Lithgow Local Environmental Plan 1994 a number of amendments are made to reflect the intent of the SEPP and relevantly:

1.42 Lithgow City Local Environmental Plan 1994

Note

State Environmental Planning Policy (Rural Lands)

17A Dwelling entitlements on existing concessional lots

State Environmental Planning Policy (Rural Lands) 2008

28 A Planning Circular was issued by the Department of Planning to explain the provisions of the Rural Lands SEPP. It notes that in February 2007 the NSW Government established the Central West Rural Lands Panel and “the response to the panels findings is the Rural SEPP.” The circular states in respect of rural subdivision the SEPP:

Introduces rural subdivision principles to be considered when a council seeks to review minimum lot sizes in a rural zone.
enables a subdivision of rural land for the purpose of primary production (No dwelling) below the minimum lot size applying to the land.
removes provisions relating to concessional lots style subdivision from environmental planning instruments.
The SEPP does not require council’s to review their minimum lot sizes and may transfer the existing minimum sizes into a new LEP. Alternatively a council may voluntarily choose to review its minimum lot size when preparing a new comprehensive LEP.

29 Under the heading of Rural Land Use Conflict the Circular states:

When an application to which this clause of the SEPP applies the council should have regard to current and emerging trends in agriculture including current trends to transition from extensive agriculture to intensive agriculture such as horticulture and intensive livestock in some locations.

30 The Circular also contains advice on transitional arrangements and states:

31 The Circular goes on to say that the decision to seek off-farm income is a farm management decision and is generally beyond the scope of the planning system. However, strategic land use planning processes may define specially distinct areas for rural residential/lifestyle agriculture where a reliance on off-farm income may be expected. Part 2 of the circular on strategic planning states that, ‘this provides the context to determine suitable minimum allotment sizes for subdivision of ancillary dwellings and an appropriate sustainable minimum is necessary in order to limit the fragmentation of agricultural land to provide certainty for the industry while also managing potential for rural land use conflict and preserving where possible environmental values. In Part 4 on determining an appropriate minimum lot size encourages councils’ in preparing a local planning strategy to have regard to the spatial context and rational for provisions contained in an LEP including the proposed minimum lot size for rural land. The circular provides a framework for Local Government to assess the appropriate minimum allotment size to be contained in an a LEP.

32 New South Wales agriculture produced a fact sheet known as agricultural land classification in 2002 and this refers to the maps produced on rural land capability. This notes that agricultural land classification maps produced at small scales (1 to 50,000 to 1 to 100,000) are useful for strategic planning, including regional and local environmental planning instruments, regional economic development and natural resource management. They are inappropriate for making decisions relating to individual development applications or minor rezoning proposals. These types of applications involve decision making at the property level and require information at a scale of greater details than is available from these agricultural land classification maps. It notes that the report accompanying the agricultural land classification map outlines the major constraints and this should be read in conjunction with the map to help interpretation.

33 New South Wales agriculture first produced a document entitled “Farming in a Small Way” in 1983 and the fourth edition of 2003 addresses a number of issues including: the business of farming; the rural environment; farming basics; pastures and crops; fruit and nuts; animals; pets and diseases and weather effects farming. The document states that “there is no agreed industry definition of a small farm, but a rough rule-of-thumb is that a small farm is one that has either less 100 ha (247 acres) or has an annual value of operating of less than $50,000... many of the owners of small farms have off-farm incomes that enable them to enjoy the benefits of farming.” The document states that:

“The average capital involved in a full time farm today is more than $800,000. The low return on capital in farming means that if you want to begin full time farming you should have at least $600,000 of your own capital. Borrowing should be limited to less than 25% of the total capital invested in the farm. In common with other industries small scale enterprises in farming are often not viable. They are generally less profitable and more likely to be dissolved or go bankrupt than larger businesses.”

34 The document describes part-time farms as of being three main types:

The biggest is the ‘Pitt Street’ farm which differs little from most full-time farms. As the owner is generally a professional or in business, such farms are usually run very well and have access to large amounts of capital when needed.

‘Spare-time’ farms form a second group. They are usually small, intensive operations whole owners have full-time employment elsewhere and work on the farm during weekends and evenings. These are usually stable business units. Some have lasted through several generations. Off-farm income relieves the strain of family financial commitments on the resources of a small farm, permitting ti to be run near to top efficiency. Operators of spare-time farms, often have occupations that give them time to work their farms, for example, shift workers and teachers.

The third type of part-time farm is the ‘for-an-interest’ farm. All sorts of people run ‘for-an-interest’ farms: pensioners, speculators, idealists, nature-lovers, retired city people, weekend peace-seekers, and those who just want to farm a piece of land. They all have one thing in common - their farms cost more to operate than they produce. Like all hobby activities, these farms cost money.

Unless you are thinking of using a spade and a hoe, farming usually involves a lot of money, and as discussed previously, cash returns from farming are not very high. Most farm businesses average less than 5 per cent on capital invested, although some people may gain tax benefits in owning a small farm.

35 Farming in a small way also provides a definition for ecologically sustainable development (ESD) as:

The maintenance of long term productivity while protecting the biological and physical resources that agriculture depends on. It is also about human health and safety and ensuring that Australia continues to produce high quality agriculture without jeopardising the opportunities for future generations to also use the land in a sustainable way.

Evidence and Submissions

36 Several objectors gave evidence to the Court including Mr Taylor the owner of the adjoining property towards the north west. He expressed concern that the adjacent bushland should be maintained.

37 Mr David Perry owns the land that adjoins Westholme and runs about 2000 head of sheep, breeds cattle and currently has 300 head of cattle on his land. He is concerned about the long term viability of the primary production, he is of the opinion that a 40 ha parcel of land would require off-farm income and would not be used for agriculture. He also expressed concern about the conflict with his agricultural production by weed invasion and lots being ‘let go’. He said that new owners are not aware of problems of straying dogs killing sheep and that it would be difficult to move stock on the road with the increase in traffic. He said the area is not a good intensive area but it works well for grazing. Smaller lots in his opinion would require water for intensive agriculture for example, olive trees.

38 In Mr Perry’s opinion aggregation of land is more sustainable. He was questioned on the sale of 10 lots near the village that was once part of the family property and that one of these lots has an olive farm and he agreed that it appeared to be neat and clear and tidy and the improvements are in good order.

39 Mrs Shaw of Muttons Fall Road, Tarana is opposed to the development she stated that:

Australia does not have an abundance of sustainable agricultural land and that the government should impose rules to prevent the break up of agricultural holdings.

40 On cross examination she was aware that the Pearson’s farm was purchased by the Walkers’ and that there are small holdings supporting vineyards and olives farms in the area. She was not aware, however that they were originally apart of a larger holding. She is concerned that subdivision would not provide for sustainable meat production.

41 A joint report was prepared by the planners, Mr Ian Sinclair on behalf of the respondent and Mr George Smith for the applicant. The planners agreed that the property contains 21 allotments but Mr Sinclair notes that, 20 allotments are owned by the company and Lot 23 is owned by the director of the company. Mr Sinclair consider this to be the one parcel holding. Mr Smith on the other hand comments that the applicant could sell the existing lots separately and this would have the same effect as the proposed re-subdivision of breaking up the existing holding.

42 Mr Sinclair considers the resultant lots are more likely to be used for rural residential lifestyle use. In the Statement of Environmental Effects the lots are described as more intensive form of agriculture such as olive farms or vineyards. Mr Smith observes the fact that ‘Westholme’ and it seems every other property in the district requires off-farm income to continue producing and this challenges the concept of whether there is such a thing as a viable farm. That is, one which will sustain a family without off-farm income over a long period.

43 On the question of whether the proposed development denies current and future generations the opportunity to undertake commercial agriculture on this land Mr Sinclair is of the opinion that more than likely the 38 lots will be rural residential use in nature rather than agriculture. He states that: “experience has shown that the proliferation of rural residential lifestyle lots tends to increase the price of land making it harder for a prospective farmer to purchase land and amalgamate it into a larger holding”. This does not allow for intergenerational equity. Mr Smith states that there is nothing to stop a successful small farmer building up the size of his holding by leasing, share farming or adjistment to other small farms. That is the low cost way of entering the industry.

44 Mr Sinclair is of the opinion that the proposal is a rural residential lifestyle use and is not to be considered an agricultural use on land that is classified in part as prime crop and pasture land.

45 Mr Smith’s response is that the subdivision does not affect the agricultural potential of the Class 3 land and he raises the question that if the respondent believes that dividing into 40 ha lots will result in costly, fragmented and isolated development, why did it fix 40 ha as the minimum lot size in the 1(a) zone. Why has it not acted to change that minimum? Why did it approve the Taylor’s subdivision (application received and approved while considering this subject application on the adjoining property) without raising any of these issues.

46 Mr Sinclair considers that the proposal will have a detrimental impact on the present use of the land (being a large agricultural holding) and its potential for sustained agricultural production of the land including the prime crop and pasture land. Mr Smith on the other hand says there is no proposal which would alter the potential of the prime crop and pasture land and a large agricultural holding is not a ‘use’. Furthermore Mr Smith states that the objective to protect, enhance and conserve rural land is not offended by the proposed re-subdivision as the land will remain rural regardless of how it is farmed.

47 On the contention that the proposed development will create conflicts with the agricultural use of properties in the vicinity Mr Sinclair says this can occur when residential use is placed next to an agricultural use, and also land use conflict can occur between an extensive form of agricultural use and more intensive form of use. On the other hand Mr Smith considers that the alleged potential conflicts either individually, or collectively, are not likely to be of such significance.

48 The planners agree that the issue of visual impact can be dealt with by way of conditions of consent and there are no unreasonable adverse impacts on the rural landscape by the proposed subdivision into 38 allotments of 40 ha and above.

49 The ecologists Mr Greg Madafiglio for the applicant and Mr Roger Lembit for the respondent prepared a joint statement. The ecologists agree that they have carried out a seven part test in relation to the Box Gum Woodland and that the proposed conditions restrict removal, ring barking or destruction of the yellow box trees and there will be no significant effect on this community. They also agree that habitat for the threatened species Purple Copper Butterfly is present on the land and that a management plan is needed to protect the Black Thorn plants occurring above 900 metres altitude which forms part of their habitat. They agreed on a number of safe guards to protect the habitat of the Purple Copper Butterfly.

50 The ecologists provided agreed conditions including the need for a vegetation management plan and a s88B covenant and ‘restriction as to user’.

51 The agricultural experts in the proceedings are: Ms Mary Kovac a Senior Resource Manager officer with NSW Agriculture and on behalf of the respondent and for the applicant Mr John Dymock and Mr Joe Lane provided a joint report. The experts participated in the joint conference and prepared a joint report. The experts agree that viability is a term that can be defined in many ways, one important factor is that the viability of an enterprise can be influenced by the aims, objectives and ability of the operator and this is reflected in the operating environment of the farming business. However, Ms Kovac disagreed that smaller blocks can support viable commercial agriculture.

52 On the issue on “the lack of water to each lot resulting in the inability to sustain intensive plant agriculture” Ms Kovac considers that the lack of water to each lot will not justify any claim for intensive agricultural activity and that land form, slope, sewer type and climatic requirements are some of the other factors that are potential limitations. Mr Dymock and Mr Lane however believe that any prospective buyer would need to consider if the amount of water was sufficient for any proposed intensive enterprise and that additional water may be available from ground water supplies via a bore or via a licence to harvest surface water in excess of the maximum harvestable right.

53 On the issue that “the proposed development denies current and future generations the opportunity to undertake commercial agriculture on the land”, Mr Lane considers that this depends on the definition of commercial agriculture and that it can be argued the current generation is already denied the opportunity because of the annual financial losses sustained and off-farm income is required to meet short falls. Ms Kovac considers that the subdivision will deny future farming on a full time basis to be undertaken on any one of the lots and there is no guarantee that an aggregation of lots can be managed as one entity by a full time operator.

54 Ms Kovac considers that the application is not strategic and only takes advantage of subdivision provisions with no consideration to any background work into examining the need for such small lots and the accumulative impact on the environment and services required to support these. Mr Lane on the other hand says that all lots will be sold fully fenced with an appropriate access road as part of the subdivision thereby enabling careful planning and control over construction activities to mitigate risks to soil degradation and loss of vegetation.

55 Mr Dymock and Mr Lane consider that future individual purchases will be responsible for the management of the land and whether this sustains its efficient and effective agricultural potential is unknown. However, they say the same can be said irrespective of the size of the holding. Ms Kovac considers that the subject land including prime crop and pasture land will be lost from commercial agricultural use with less efficient and less productive land use that may not even be agricultural. Ms Kovac agrees that land management is not a planning issue however the outcome of this subdivision is the conversion of a large working holding into smaller lots where the intent of the land use is changed by the creation of smaller lots with reduced potential agricultural use and allowing instead lifestyle orientated uses.

56 On the issue of whether the proposed subdivision is consistent with the objectives of the zone Mr Lane considers that the proposal supports the objectives of the LEP’s zoning through a sensitive subdivision plan which achieves a balance between maintaining productive agricultural land as larger allotments and smaller allotments on the non-productive land providing high environmental value lifestyle lots. In particular he says the subdivision proposal has maintained larger lots on the Class 3 agricultural land to maintain and to encourage its suitability and use for agriculture. Ms Kovac considers the proposal will reduce the productive area available to pursue any commercial activity as prime crop and pasture lands will be fragmented and will be lost from the opportunity to support a commercial agricultural enterprise.

57 Ms Kovacs is aware that the subject land is made up of five separate holdings that were purchased over time by the applicant. When questioned as to whether she would object to the holding known as Mirrabooka which is 94 ha being sold tomorrow she stated that she could not oppose the sale but from a policy point of view she would be opposed. When questioned as to what would be the appropriate size for subdivision that is 40, 100 or 200 ha. Ms Kovacs was reluctant to directly answer the question but said that 40 ha was unrealistic and it may require a 1000 ha. It was pointed out that there are only nine holdings over a 1000 ha in the whole of the Lithgow Local Government area which has a total 2253 holdings. Ms Kovacs said that, ”one can not just look at the land area but the type and class of land.

58 When questioned by Mr Tomasetti as to whether she had any information or research to say that 1000 ha was more productive than 10 x 100 ha lots she responded in the negative. In response to Mr Griffith’s question about economies of scale Ms Kovacs said that would kick in at about 400 or 500 ha although she had no evidence available to the Court to support same. Ms Kovacs commented that 40 ha parcel of land would require more intensive agriculture requiring higher inputs and a lot of water.

59 Mr Dymock in his verbal evidence said that “38 Lots could be used for some form of agriculture including adjistment or grazing cattle”. Mr Lane in response to a question from Mr Griffith said that “farm enterprises may be smaller in scale but they may be just as productive or more productive than larger parcels of land. In response to a further question from Mr Griffith’s on whether the agricultural capacity of each lot would be maximised, Mr Lane said this depends very much on the owner. Mr Lane said that the proposed subdivision places some of the better quality land in larger lot sizes.

60 Mr Tomasetti questioned the experts on the subdivision that was approved for the adjoining property of Mr Taylor where 500 acres was subdivided into four lots. Mr Dymock said there was no evidence that the large lots were more efficient and that most agricultural holdings have a number of parcels but there was no relationship between productivity and lot size. Mr Dymock said that the applicant’s beef operation relied on off-farm income with major capital injections to make it productive.

61 Mr Lane commented that “what makes for a viable business structure has a number of factors including how much equity is in the farm.” Mr Dymock considers that small farms are no more at risk than larger farms and the viability is not just the family income derived but in fact the cash flow, the farm equity, the economic climate and the market. Mr Lane said that the viability of farming is a different question to enhancing agricultural production.

62 When it was brought to Ms Kovacs attention that the property on Curly Dick Road, Meadow Flat known as No. 8 in Exhibit B previously a single holding of 250 was divided into six lots of approximately 40 ha each ha she was not aware of any protocols for assessment. This is Class 3 land.

63 Mr John Masselos a chartered accountant for the applicant informed the Court there had been considerable off-farm income injected into the Westholme Wagyu Beef establishment and there had been accumulated losses. He said there had been a sale of the established business to Australian Agriculture for $10,000,000. That is the beef and the breeding technology developed. However, he said in fact this barely covers the losses, debt and investment over the years. Mr Masselos stated that the sale of $1,000,000 in 2006 was not a normal trading sale and is non-recurring. Mr Griffith’s cross-examined Mr Masselos about the profit and loss sheets and dissected the expenditure of the company in terms of expenses for travelling and miscellaneous articles of art work etc.

64 Mr Sinclair and Mr Smith gave concurrent evidence. Mr Sinclair advised the Court that the Council has a policy to refer the subdivision applications to the Department of Primary Industry where the land is in excess of 400 ha. He was further advised by Mr Nichols, a development manager at Council that the Department advised council that 400 ha was an appropriate subdivision minima. Mr Tomasetti asked Mr Sinclair if he had any advice in writing from the Department of Primary Industry or seen any material from the Department of Primary Industry to suggest 400 ha and Mr Sinclair in responding no, said however, in his opinion 400 is an appropriate minimum and that subdivisions must be assessed against the objectives of the zone and other clauses of the LEP.

65 Mr Sinclair in response to whether he had seen the assessment reports for other subdivisions that created 40 ha lots, Mr Sinclair said he had not seen the assessment report but in his opinion if you purchase a 40 ha parcel it is for rural residential purposes and not productive. When Mr Tomasetti asked Mr Sinclair whether there was any reference in the LEP to commercial farming or if council had a policy on same Mr Sinclair replied there is no current policy but in his opinion commercial farming means that it is able to sustain an income for a family. Mr Smith on the other hand said that all farming is commercial irrespective of the lot size.

66 It was agreed that in the policies of the 1998 ‘Sustainable Agriculture’ and the 2004 document there is no size stated and no statement made about setting minimum lot sizes in rural areas.

67 Mr Griffiths questioned Mr Smith on the maps used to classify the agricultural land. Mr Smith advised he went to the DPI in Bathurst and was told there was no map for this part as can be seen on Figure 3. At the same time he said no one is disputing the best land is in the south west corner of the subject site and the large scale aerial photograph and overlays at Exhibit C shows 40% to be Class 3 agricultural land. The current Lot 84 contains much Class 3 and it is proposed that this be subdivided into 3 lots and in the south west corner six lots are proposed from the one. Mr Smith in response to a question about building entitlements for the 22 lots said that sixteen of these had building entitlements and the proposed subdivision would allow for 38 dwellings each lot with a minimum of 40 ha where as the current configuration of 22 lots are of greater varying size and as such some do not have building entitlements.

68 Mr Walker the director of the applicant company gave evidence to the Court. He advised the Court that Lot 37 where the heritage dwelling ‘Westholme’ is located was restored by him at cost of half a million dollars. This property also contains lucerne flats plus some cattle grazing. Depending upon the climate and market 750 bails can be harvested per annum generating an income of some $300,000. Mr Walker informed the Court the proposed Lot 32 contains the artificial insemination laboratory yards and dwelling and it could continue to function as an AI facility.

69 Mr Walker has owned the property for about 15 years. In 1994 ‘Westholme’ and ‘Colenso’ properties were purchased together, although they were run separately at the time. In April 1996 the Pearson’s property was purchased in February 2001 ‘Mirrabooka’ was purchased, and in April 2001 the property known as ‘Hunters’ was purchased.

70 Mr Walker said that the property owned by the Goldies has been in the family for three generations and the 55 acres has sheep and cattle grazing and the farmer works in Lithgow. This property known as the Goldies Lot 1 is completely surrounded by the Walker properties in the middle of proposed lots 23, 24, 25, 26, 30 and 31.

71 With respect to the steeper land Mr Walker said this is not used for agriculture as the TPO requires that it cannot be cleared and it is for scenic purposes. Mr Walker said that before he sold the business operation he was exporting Wagyu Beef back to Japan. At the beginning of the process in 1992 he imported Wagyu Beef from Japan via the USA because of quarantine and he also collected 170,000 straws of semen. On cross-examination Mr Walker said that the steeper land only where it is cleared can be used for grazing but not for pasture improvement, on cross-examination he told the Court that this farming operation could not survive without off-farm income.

72 During the proceedings the applicant provided evidence of consents granted by the council for subdivision of land into 40 ha lots (although some subdivisions had varied sizes with lots greater than 40 ha). The property known as Lots 2, 89 and 112 in DP 547428 with an area of 121 ha was granted approval in June 2004 to be subdivided into three separate allotments. This land had previously been used for grazing purposes for over 70 years. In council’s assessment of the application the council considered the objectives of the zone and commented as follows:

73 The general comment in the council assessment reports was that:

The development does not aim to alter the use of the property and therefore the development is in keeping with the aims and objectives of the rural (a) zone.

74 Another application that was granted consent in 2004 is for the lot known as 112 DP 877190 situated on the Castlereagh Highway, Cullen Bullen the total area of the allotment was 85 ha and the topography was described as hilly with the land utilised for grazing purposes. The assessment report also notes that the land is part of a large holding owned with the same ownership. The assessment report states:

The proposal is permissible within the zone subject to development consent. The application has been lodged in accordance with cl 12(2) of Council’s LEP 1994 with a minimum area of each proposed lot greater than 40 ha.

75 The report further commented:

76 Subdivision approval was granted by the Council for the parcel of land known as Lot 20 in DP 1010564 being 240 ha to be divided into 5 lots between 40 and 60 ha each. This land slopes towards the Cox’s River to the west from a high north south ridge. The site is Class 3 and 4 agricultural land and is deemed partly prime, crop and pasture land. The report states:

77 The land known as Lot 1 in DP 189106 Cox’s River Road, Kanimbla Valley is 416 ha and the proposed nine holdings have an area of 40 to 60 ha consisting of five at about 40 ha, one at 50 ha and two at 60 ha. The Council consent to this application in February 2005.

78 In January 2006 development consent was granted for a subdivision into four allotments for the property known as 334 Curly Dick Road, Meadow Flat. This property has an area of about 198 ha and is land that is partly cleared for grazing with stands of Eucalypts on high ground. The existing house was to be on a 52 ha lot with the other lots of 44, 42 and 40 ha respectively.

79 On the issue of effluent disposal the assessment report states that:

As the lots are over 40 ha Geotechnical reports were not required to be provided with the application. Effluent disposal requirements therefore will be addressed at the time of dwelling construction on each allotment. There are no cattle dips on the land.

80 On the question of social and economic impact the report states:

As the proposed development will be generally in keeping with the provisions of the planning instruments and is reasonably compatible with other similar development in the locality, it is expected to have minimal social and economic impact.

81 Development consent was granted for the property known as 431 Jerrys Meadows Road, Sodwalls. This land is 276 ha and approval was granted for subdivision into six lots. The report notes, “Development is permissible subject to consent and comments as follows in respect to objective (a) of the zone:

The land is Class 3 and 5 agricultural land and is deemed mostly prime, crop and pasture land. The land has been used for grazing and this land use can continue due to the size of the proposed lots. The size of the existing property is well below the size required for commercial farming.

82 With respect to objective (b) the assessment report states that:

The existing use is grazing and this will not be compromised by this development.

83 With respect to objective (f) the Council notes, the property is currently in 20 allotments and this subdivision will allow for the suitable break up of the property and the consolidation of lots to ensure the best use of the site.

84 The applicant provided a response to the Council’s contention about effluent disposal in a report prepared by Mr J. Armitage, a Geotechnical engineer and in summary he states, ‘although bore logs were carried out on 11 lots in total, I have no hesitation in stating that an appropriate effluent treatment system would be suitable for all proposed 40 lots.

85 Council contends that the proposed development will be a rural residential development. I note that the Council has a DCP for rural residential development wherein it states:

Council has re-zoned land to allow 2 ha subdivisions subject to development requirements to ensure minimal disruption to the rural environment. The DCP applies to land in the Rural 1(c) Zone under the 1994 LEP for Lithgow.

86 In August 2007 there was a report to the Minister for Planning entitled Review of Land Use Planning in the Central West. In the executive summary of the report it states:

Fragmentation and Loss of Rural Land

Provide for the preservation of agricultural land, encourage agricultural enterprise and ensure the continued viability of rural communities at the same time;
Provide certainty and clarity in planning for rural areas that accommodates and encourages the full range of agricultural enterprise (including broadacre farming, intensive agriculture, small farms etc) and has regard to social, economic and environmental considerations and the changing face of agriculture (e.g. change in size, tenure, non contiguous holdings, off-farm income, new products);
Establish separate policies for rural residential development, small farms and general rural uses;
Recognise the demand for rural residential / rural lifestyle development in rural areas and the contribution this form of development makes to rural communities. Plan for this use in appropriate locations and in a manner that minimises the potential for land use conflicts with agricultural and other uses;
Ensure that the "Lot Size for a Dwelling Entitlement" development standard in the General Rural Zone in each LGA is based on local circumstances and actual trends including the existing pattern of farming, existing pattern of holdings, current pressure for subdivision / dwellings, current pressure for change, reasons for change etc;
Provide a degree of flexibility in the planning system in rural areas that enables merit consideration of exceptional cases which do not comply with the planning controls (e.g. new technology, family situations etc). Care needs to be taken in this regard that there are no unintended consequences of variations that may be allowed.

87 A map was produced by the Department of Primary Industries that classifies the agricultural suitability of land in the City of Greater Lithgow, this was prepared by the Department of Agriculture of New South Wales in July 1983 at a scale of 1 to 100,000. That is one square centimetre corresponds to one square kilometre on the ground and one square millimetre represents one hectare. The Ag Facts quoted above state that in 1987 with a scale of 1 to 100,000 one millimetre on the map represents 100 metres and 40 millimetres squared is equivalent to 40 ha. The original maps by the Department of Agriculture was provided on overlays and this is at a scale of 1 to 100,000 and the note provided in Exhibit 19 states:

88 Figure 4 is a composite of these maps with the proposed lots shown and it can be seen that the subject land falls into three Classes 3, 4 and 5 with a number of pockets scattered over the property, however, the river flat and adjacent undulating land falling within the Class 3 land.

Assessment and findings

89 In my assessment of this application I have given careful consideration to the planning controls and the volumes of documents tendered as well as the evidence of the experts and objectors. In my overall assessment I am persuaded by the evidence of the applicant and have concluded there is no reason to warrant refusal of the application.

90 A number of issues raised in council’s contentions have either been addressed or are capable of being resolved by condition. This includes the issue of heritage related to ‘Westholme’. While this is not a heritage item under the LEP at the same time it is recognized it does have local heritage significance but it is agreed that he proposed subdivision will not have any adverse impact and indeed it will continue to be a landmark in a rural setting. The dwelling on the property of Westholme has had significant expenditure of recent times and it is proposed to be retained on lot 37 that has an area 105 ha.

91 The issue of ecology, flora and fauna, and threatened species and habitats located on the subject land is the subject of a joint expert report of the ecologists carried out a 7 part test and agreed, subject to conditions including a vegetation management plan and a covenant for restriction as to user, that the proposed development is satisfactory and will not impact on the threatened species communities or their habitats.

92 An effluent disposal report was prepared on behalf of the applicant and this concludes that effluent disposal can be satisfactorily accommodated on each lot. I am also satisfied that given the size of the lots being a minimum of 40 ha that this issue can be addressed if and when future applications are made for the erection of a dwelling on the individual lots. This is consistent with the approach council has taken for other subdivisions where lot sizes are a minimum of 40 ha.

93 The question of access and increased traffic was initially raised and the Roads and Traffic Authority has provided advice and recommendations and the conditions require compliance with relevant standards.

94 Visual impact was also raised as an issue initially and it was contended that the development will adversely impact on the rural landscape and an area of high scenic value. The planners agreed that dwellings could be located on each lot in a satisfactory manner not to impact on the rural landscape. I am also satisfied given the size of the allotments the topography and vegetation that the erection of dwelling houses will not unreasonably impact on the scenic quality this rural landscape.

95 The respondent contends that the proposed subdivision will result in a loss of sustainable agricultural land by the fragmentation of a large commercial agricultural holding, that includes prime crop and pasture land, into 40 ha lots that will not sustain efficient and effective commercial agricultural production. The fact is that the large commercial operation of Waygu beef carried out on the aggregated holding of 1855 ha has been sold and transferred to Queensland. Although there is evidence of beef grazing and crop cultivation on the land the extraordinary sale was not for the value of agricultural land and as submitted on behalf of the applicant no approval is required to change the agricultural use of the land.

96 It is understandable that a district would benefit by the establishment and operation of a large and recognized primary producer and its sale interstate would be a significant loss. The aggregation of the various large five holdings and 22 lots was achieved over a period of years for the specific purpose of the establishment of the Waygu beef operation. The sale of the operation means that the land will no longer be required in this location. It must be recognized that the land was but one component and clearly given its transfer interstate the commercial operation was not dependent upon the intrinsic value of the subject land. Importantly however the land remains as a resource for agricultural use and as can be seen by past history this will change over time. Similarly, the size of allotments will change from time to time as may the minimum allotment size in the LEP.

97 The council and the Department of primary industry may consider it is now timely to review the 40 ha minimum for the 1(a) zone in the LEP and part three of the Environmental Planning and Assessment Act provides the appropriate process. In the interim council may choose to adopt a development control plan, policy or code that is available in the public domain. Case law has clearly acknowledged the relevance of such documents in the determination of development applications. However in these proceedings there are no such adopted studies plans or policies. Mr Sinclair commented in his statement that “ the strategic plan is based on the community’s visions and issues and does not address councils internal strategic planning”. It would be inappropriate to give weight to an internal report. Ms Kovacs in her statement when commenting on the Lithgow LEP said:

…

98 In the current proceedings there are no adopted plans, policies or codes that the respondent can rely on to say that the minimum allotment size should be greater than 40 ha. Whether that be 100, 200, 400 or 1000 ha Ms Kovac could not assist the Court either. At the highest the documents as detailed above provide a framework for council’s to review the zoning provisions.

99 It would appear that the respondent is seeking to establish a policy position through these proceedings. The Court however must assess the development application against the statutory planning framework and other adopted policies available to the public. The council has adopted the development standard of 40 ha in clause 12(2) of the LEP in all previous assessments and determination. As such it would appear that the aims and objectives are seen to be satisfied by the inclusion of the provision for a 40 ha standard. Clause 12 of the LEP has a general restriction for the subdivision of land in 1 (a) and the council may consent to a subdivision in accordance with either subclauses 2, 3, or 4 and not otherwise. Each of these subclauses provides a separate and mutually exclusive set of requirements. The applicant relies on sub clause 2 that requires each allotment to have an area of not less than 40 ha.

100 Clause 11 contains the general considerations for development in rural areas in both the 1(a) and 1(c) zones. The 1(c) zone is the zone that provides for subdivisions down to 1 ha in size and this is generally regarded as rural residential in nature. I do not except that 40 ha parcels can be equated with rural residential as contemplated by the rural (c) zone.

101 Early in the proceedings the Court invited the respondent through the DPI to identify the ‘better’ agricultural land on the subject site and that land that is of little or no agricultural value and the Court enquired if the councils considered it appropriate for larger lots on the ‘better’ agricultural land. For its own reasons the council did not embrace or respond to this enquiry. The respondent chose instead to supplement the 1983 maps required by the LEP. The DPI in various documents caution against using the land classification maps are not at a small-scale for decisions on individual properties and advised that the maps should only be used for strategic purposes because of the lack of detail at a larger scale.

102 In the absence of more detailed mapping the classes of land being 3,4 and 5 were depicted on a plan overlaid with the proposed lot boundaries.

The applicant during the court proceedings modified the number of lots from 40 to 38 to provide a number of larger lots, refer to Figure 2 and 5. That is lot 37 -105 ha; lot 35 - 82 ha, lot 38 -78 ha and lot 33 is some 81 ha. These lots are located predominantly on class three land which is the higher class land on the whole property. The higher class land as shown in the figures is also located towards the middle of the property, however these lots were not increased in size and are 40 to 45 ha.

103 The council has an unwritten practice of referring development applications to the DPI where the landholding is 400 ha or greater. It would appear from the council's assessments of previous applications that it is not concerned about any possible cumulative impact of subdividing 100, 200 or 300 land holdings into 40 ha lots. This practice would appear to discourage land owners from land aggregation or amalgamation of a number of smaller parcels for a farm enterprise.

104 I have concluded that the proposed development is not inconsistent with the objectives of the. zone and the subdivision can coexist and harmonise having regard to the proper management and utilisation of this agricultural land as a natural resource. I am satisfied the proposed subdivision will not undermine or be anti-pathetic to the objective of the zone. This includes promoting enhancing and conserving rural land, in particular prime crop and pasture land will be sustained together with its effective agricultural production potential for future generations. Similarly the objective of conserving the soil, trees and other vegetation for scenic amenity and the ecology is protected enhanced and conserved. The heritage significance of Westholme is also conserved in the proposal. The proposed developments does not prevent the land being used for purposes other than agriculture even though individual owners may not pursue the agricultural potential. The proposal includes the necessary infrastructure of the roads and requires a section 94 contribution that is not inconsistent with objective (d). I am also satisfied that the size of the allotments with a minimum of 40 ha will not create conflicts with existing agricultural uses. It could be seen on the view that there are many properties of 40 ha that coexist in this rural environment without adverse impacts.

105 In my assessment of the proposal there are no distinguishing features of this land compared to adjoining properties that have enjoyed subdivision approval. The difference is this property is the result of several amalgamations/aggregations. However this should not prejudice its potential for subdivision and there is no reason as to why I should not follow council's previous decisions and assessments in allowing subdivisions to create lots of 40 ha. The development standard and planning framework or adopted public policies have not changed to require new factors to be considered.

106 While a savings provision is contained in the Rural Lands State Environmental Planning Policy at the same time its gazettal reinforces my decision to allow the subdivision. The SEPP reflects the recommendations of the Central West Rural Lands Panel report including not increasing the minimum allotment size of 40 ha. Having regard to the 40 ha minimum I am also satisfied the proposal sits comfortably with the rural planning principles including ‘the provision of opportunities for rural lifestyle that contribute to the social and economic welfare of rural communities’. The proposal for 40 ha lots and larger is also not inconsistent with the rural subdivision principles in clause 8 of the policy.

107 Having concluded the proposal is not inconsistent with the zone objectives or the general considerations for subdivision in clause 11 the application should be approved. Furthermore, in the absence of any public policies, codes or development control plans to advise of the need for a larger minimum allotment size with clear objectives, or an amendment to the LEP to increase the minimum subdivision size, there are no reasons to persuade me that the application should not be approved. I am also satisfied the proposal satisfies the objects of the Act.

108 While Mr Griffiths cross-examined the accountant extensively, at the end of the day I agree with the respondents evidence of Mr Sinclair and the applicant's agricultural experts that the management and other factors such as capital invested play a significant role in the commercial viability of an agricultural activity. Mr Sinclair pointed out in his report that “the test for the subdivision of the land is not individual farm profitability, but as stated in objectives (a) and (b) of the zone”. And in this regard the proposal in my assessment is satisfactory

Conditions

109 The conditions were generally agreed to between the parties. The council in its Without Prejudice Conditions’ seeks to have the development carried out in accordance with the subdivision plan and the vegetation management plan as well as the effluent disposal report and the entry egress recommendations of the bushfire assessment report. The applicant submits that the application is for subdivision and not development approval for dwellings on each lot as separate approval is required for dwellings.

110 The effluent disposal report was submitted to demonstrate that septic systems could be accommodated on the lots and as such the report was submitted to demonstrate this purpose. The applicant contends that the minimum size of any of the lots is approximately 67 football fields and that the potential building envelope identified on each site is approximately the size of one football field and that a dwelling could be sited anywhere within the building envelope or outside the building envelope at the stage when a development application is submitted by individual lot owners. I note that the approvals issued by the council for other 40 ha lots did not require a building platform and effluent disposal area and given the size of the lots and the effluent disposal report I am satisfied that no uncertainty is created and this is a matter appropriately addressed at the development application stage for each dwelling.

111 In accordance with the deletion of reference to the building envelopes Condition E of No. 74 is deleted and is not required to be shown in the covenant. The reference conditions to the entry egress recommendations of the bushfire protection report I accept the applicants submission and I note ‘this is subject to final design and should not be referred to in development consent for the subdivision’. Similarly condition 83 is deleted as this refers to the effluent disposal report.

112 A number of other conditions appear to be inadvertently included in council’s amended set of conditions and these conditions namely 12, 21, 27, 35, 42 of Exhibit 26 are deleted to accord with council’s advice to the applicant of the 14 April 2008.

Condition 79 requiring any future development application to be the subject of the requirement set out in the planning for Bushfire Protection 2001 for clarity has the words added “as may be amended from time to time.”

___________________

J S Murrell
Commissioner of the Court
ljr

· Figure 1 - Aerial photo with contours

· Figure 2 - Subdivision Plan

· Figure 3 - Department of Primary Industry Land Classification Map

· Figure 4 - Map of subdivision over above compiled land map

· Figure 5 - Proposed subdivision over aerial photograph

Citations

Agonic Holdings Pty Ltd v Lithgow City Council [2008] NSWLEC 1347

Most Recent Citation

Cases Citing This Decision

1

Agonic Holdings Pty Ltd v Lithgow City Council [2009] NSWLEC 34

Cases Cited

0

Statutory Material Cited

2

Actions

Download as PDF Download as Word Document

CITATION:	Agonic Holdings Pty Ltd v Lithgow City Council [2008] NSWLEC 1347
PARTIES:	APPLICANT Agonic Holdings Pty Ltd RESPONDENT Lithgow City Council
FILE NUMBER(S):	10580 of 2007
CORAM:	Murrell C
KEY ISSUES:	Development Application :- Rural subdivision, 1855 hectares into 38 lots; fragmentation of rural holding and loss of agricultural land; land use conflicts; visual impact; threatened flora and fauna; effluent disposal; access and traffic; and public interest
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Lithgow Local Environmental Plan
DATES OF HEARING:	21/09/2007, 18 and 19/12/2007, 1/04/2008 and 10/07/2008
DATE OF JUDGMENT:	1 October 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr P. Tomasetti SC Instructed by Mr D. Bolog of DC Balog and Associates RESPONDENT Mr S. Griffiths, solicitor with Ms N. Lowe, solicitor of Pikes Lawyers