Anthony Johnson Good and Kristine Mary Good v Cowra Shire Council

[2006] NSWLEC 305

Land and Environment Court

of New South Wales

CITATION:	Anthony Johnson Good and Kristine Mary Good v Cowra Shire Council [2006] NSWLEC 305 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT: Mr Anthony Johnson Good and Kristine Mary Good RESPONDENT: Cowra Shire Council
FILE NUMBER(S):	11582 of 2005
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Whether or not the land is ‘prime agricultural land’ as defined in cl 5 to CLEP If prime agricultural land whether the proposal would conflict with other agricultural pursuits If non-prime agricultural land whether or not the proposal to subdivide the land would be consistent with the objectives of the CLEP
LEGISLATION CITED:	Cowra Local Environmental Plan 1990, (CLEP) Cowra Local Environmental Plan 1990, (Amendment 14), (Amendment14) Development Control Plan - Guidelines for Rural Development, (Guidelines) Environmental Planning and Assessment Act 1979, ss 79C and 97
CASES CITED:	Air Great Lakes Pty Limited v KS Easter [1985] 2 NSWLR 309
DATES OF HEARING:	29/05/2006 and 30/05/2006
DATE OF JUDGMENT:	06/06/2006
LEGAL REPRESENTATIVES:	APPLICANT: Mr P Clay, barrister instructed by Mr P Crennan, solicitor SOLICITORS: McIntosh, McPhillamy & Co RESPONDENT: Mr A Bradbury, solicitor SOLICITORS: Minter Ellison, Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

6 June 2006

11582 of 2005 - Mr Anthony Johnson Good and Kristine Mary Good v Cowra Shire Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Cowra Shire Council (the council) to refuse an integrated development application to originally subdivide into twenty-eight (28) allotments, now eleven (11) allotments, land at part Lot 179, DP752948 of 54.61 hectares and Lot 2, DP522956, of 25.18 hectares, Barryrennie and Barrs Roads, Parish of Mulyan, Cowra.

2 I visited the land in company with the parties on the morning of the first day of proceedings. On the first day evidence was taken on-site and at Cowra Court House. On the second day the hearing was held at Bathurst Court House.

3 I have concluded that the Class 1 appeal should be dismissed, as the proposed subdivision of rural land, if the subject is classified as 'prime agricultural land', the Court does not have power to entertain the application as there would be too many lots and the lot sizes would not be of the correct size and no objection to lot size has been filed.

The land

4 The land is situated around 8.5 km west of Cowra and 1.3 km north of the Mid-Western Highway. The land is accessible from the south off Barrs Road, and from the north off Barryrennie Road. Both these roads are sealed, two-way rural roads with a 100 km per hour speed limit.

5 The subject land is said to be around 80 hectares in area. It is undulating and largely cleared, although there is some scattered, remnant vegetation. The land has been used for grazing and intensive cultivation purposes, particularly irrigated Lucerne hay production. The only building on the land is a hay shed located near the eastern boundary, and there are two dams. The land is irrigated from a stock and domestic bore.

6 Nearby properties are used for agricultural purposes. The subject land is farmed in conjunction with the adjoining Lot 374, DP752948, [Note: Exhibit 1 Tab 20, p 14 of Item 11].

Relevant planning controls

Cowra Local Environmental Plan 1990, (CLEP)

7 Under the provisions of the CLEP, gazetted 23 November 1990, the land is zoned 1(a) – Rural and the proposed subdivision is permissible with consent provided it meets certain requirements of allotment size. Also permissible is the erection of a dwelling under certain circumstances.

8 The principle aims of the CLEP are: “…to promote the growth, development and prosperity of the Shire of Cowra, and to assist present and future residents of the Shire in their endeavours to maintain their prosperity, security and present rights.”

9 The particular aims in relation to the rural needs of the Shire are:

(i) to encourage and preserve all forms of agriculture and preserve prime agricultural lands, and
(ii) to promote the use of land within its capability, and
(iii) subject to subparagraph (i), to provide opportunities for people to live in rural areas, and
(iv) subject to subparagraph (i), to provide for other types of development appropriate in rural zones, particularly tourist oriented and employment generating development, and
(v) to permit development of small rural allotments of variable size to avoid waste and neglect of productive rural land, and
(vi) to ensure that noxious forms of development are precluded or isolated in the interests of rural residential lifestyle, and
(vii) to provide a choice of housing types and to support existing towns and villages, and…

10 Under cl 5 of the CLEP ‘prime agricultural land’ Court’s emphasis added,

…means land within an area identified, on a map prepared by or on behalf of the Director-General of the Department of Agriculture and deposited in the office of the Council, copies of which are deposited in an office of the Department of Agriculture, as Class A1, Class A2 or Class A3 (or as subsequently identified by or on behalf of the Director-General on a map as Class 1, Class 2 or Class 3) or land of merit for special agricultural uses, as notified to the Council in writing by the Director-General, but does not include land which the Director-General has notified the Council in writing is not prime agricultural land for the purposes of this plan.

11 Thus, in order to understand the planning controls applying to land within the rural 1(a) zone it is necessary also to refer to the Agricultural Land Suitability map to determine whether the land is classified as ‘prime agricultural land’ or not.

12 On the Agricultural Land Suitability map of the Cowra Shire, prepared by the Department of Agriculture NSW, dated November 1982, at a scale of 1:100,000, the land is identified as Class A4. On that map, ‘Class A4’ land is shown brown in colour and the legend states that it comprises land, which is, “Undulating to hilly; predominately class 2 of lower capability; sub-dominant classes 3 and 4; minor class 5.” [Note: Exhibit 12]. Thus if no other consideration were required, the land could be determined on this information as being other than ‘prime’ under cl 5 of the CLEP.

13 However, by letter dated 19 May 2006, [Note: Exhibit 11, Tab 10], Ms R Brooks, Deputy Director-General Agriculture, Fisheries and Regional Relations of the NSW Department of Primary Industries wrote to the council to explain that Ms M Kovac had inspected the subject land on 17 May 2006 and confirmed,

…the area under the subdivision application as being class 2 and 3 or prime agricultural land, that is mapped under the A4 land unit.
…the A4 land unit contains lands of Classes 2, 3 and 4. The use of maps for individual on-site assessment has and will continue to create conflict.

14 On about 22 May 2006, Ms Liz Rogers, Leader Regional Services (Land Use) on behalf of Ms Brooks, forwarded a map entitled ‘Agricultural Land Assessment for Development Application No 418/2004 for 11 Lot Subdivision at Property Lot 2, DP 522956, Lot 179, DP 752948, Barryrennie and Barrs Roads Cowra’, [Note: Exhibit 11, Tab 1]. There is a note on this map, signed on 22 May 2006 by Ms Brooks as Deputy Director General NSW Department of Primary Industries for the Director General that stated:

The land shown in yellow, subject to further assessment using appropriate mapping standards and supporting information, depicts land comprising Class 2 and 3, being prime agricultural land.

15 The map shows the subject land coloured yellow, and if the land were classed as ‘prime agricultural land’ under the provisions of the CLEP then cl 12 applies and reads:

(1) This clause applies the land, which is within Zone No 1(a) and is prime agricultural land.
(2) Subject to clause 13, land to which this clause applies shall not be subdivided sp as to create an allotment on which dwelling-house may be erected, or on which an existing dwelling-house will stand, where the allotment would have an area less than 4000 square metres or greater than 2 hectares.
(3) An allotment of land, to which this clause applies, may be created which is less than 4000 square metres in area where the allotment is for road widening or another public purpose.
(4) The number of allotment created under subclause (2) for the erection of additional dwelling-houses shall not exceed one per 40 hectares or part of 40 hectares of each existing holding.

16 If the land were classed as other than ‘prime agricultural land’, cl 14 of the CLEP applies. Clause 14 reads;

(1) This clause applies the land, which is within Zone No 1(a) and is not prime agricultural land.
(2) The Council shall not consent to the subdivision of land to which this clause applies which results in creation of an allotment of purposes of dwelling-house where the allotment is less than 2 hectares in area.
(3) The Council shall not consent to subdivision of land to which this clause applies which results in creation of an allotment on which there is an existing dwelling-house where the allotment is less than 2 hectares in area.
(4) Notwithstanding subclauses (2) and (3), the Council shall not the consent to a subdivision under this clause unless it is satisfied that the lot sizes permit the siting of dwelling-houses so that they are unlikely to inhibit or give rise to complaints about normal farming practice (such as aerial spraying, separation from noxious odours and the like).

17 The parties were in dispute as to whether the land was classified ‘prime agricultural land’ as defined under cl 5 of the CLEP. The Court is required to consider in the first instance the rural 1(a) zoning, then it is to consider the 1982 Agricultural Land Suitability map, and then later the map, dated 22 May 2006, prepared by the NSW Department of Primary Industries.

18 The legislative intention seems to be to zone the land broadly as rural, then refine this into ‘prime’ and ‘non-prime’ agricultural land, then to make a further more detailed up-to-date assessment. Only then is it possible to determine the development potential of the subject land.

19 In the s 149 certificates, obtained by the applicant in 2002 and 2003, the original subject lots are shown as zoned rural 1(a), [Note: Exhibit F]. Applicants are directed to make independent enquiries of the council as to appropriate classification and dwelling entitlement. It is stated that:

Where land to which this Certificate relates is identified as being within a rural zone the Council shall not consent to the erection of a dwelling house (under Cowra Local Environmental Plan 1990) unless the allotment:

(a) is within a Rural 1(a) zone, is within prime agricultural land and:
(i) has an area of not less than 40 hectares; or
(ii) has an area of less than 40 hectares and is to be used for intensive agriculture which use is supported by evidence in a programme of works submitted with a development and includes commencement dates for each stage of the agricultural enterprise and the evidence is satisfactory to the Council as to the practicability of performing the submitted programme; or
(b) is within a Rural 1(a) zone is within non-prime agricultural land and has an area of not less than 2 hectares; or
(c) is within a Rural 1(c) zone and has an area of not less than 400 square metres and not more than 2 hectares; or
(d) is within a Rural 1(a) zone (either in prime or non-prime agricultural land or a Rural 1(c) zone and
i) comprises a vacant existing holding; or
ii) is to contain a dwelling house that is ancillary to a non-agricultural use carried out on the land; or
iii) is to contain a dwelling house that is intended for occupation by a relative of the owner or a rural worker or
(e) is within rural 1(c) zone …

20 Amendment 14 was gazetted 10 April 2006 and applies to the land. However, under cl 5 applications made before 4 March 2005, being the first day of public exhibition of the draft of the plan, are exempt. As the original proposal was lodged with the council on 17 December 2004, and there is no dispute that the present application is substantially the same, Amendment 14 does not apply to or in respect of the development application the subject of this appeal.

21 There are substantive changes contained in Amendment 14, including changes to the objectives, and cll 12 and 14. Clause 14 is omitted entirely. Clause 12 is amended. Under cl 12(3) the minimum allotment size is 400 hectares. Under cl 12(4) the minimum allotment size under certain conditions is 40 hectares. Clause 13 of the CLEP is omitted and a new clause is added in Amendment 14 that addresses the control of subdivision for permissible uses other than agriculture or dwelling houses.

Development Control Plan - Guidelines for Rural Development, (Guidelines)

22 The Guidelines were adopted in May 1991 and amended last on 15 March 1996. The Guidelines provide more details about rural development issues than are contained in the CLEP.

23 Section 4.3 ‘Building Lines’ of the Guidelines states:

To maintain rural aesthetic amenity and to minimise any potential traffic conflicts a minimum building line of 20 m will apply to all land zoned rural.
In addition, Council may require additional setback for dwellings of 150 m from adjoining rural properties to ensure that normal farming practices such as aerial spraying can proceed without prejudice to rural lifestyle or farm management.
Where the Council is of the opinion that land adjoining a proposed subdivision may be subjected to aerial agricultural spraying requiring that any subsequent development for residential purposes be setback 150 metres from the perimeter of the land to be subdivided or from any boundary within the subdivision, the subdivision is to be designed to enable a development for residential purposes to be set back the required 150 metres, unless a restriction on user is provided over the lot adjoining the subdivision or the adjoining lot within the subdivision, to provide a 150 metre buffer (restriction area) to the site for development for residential purposes identified within each lot in the subdivision.

The proposal and its history

24 Integrated development application No DA 418/04 was lodged with the respondent council on 17 December 2004 to create twenty-eight (28) allotments for residential purposes (the original proposal).

25 On or about 1 September 2005, the applicant provided an addendum to DA 418/04 to create eleven (11) allotments, (the amended proposal). Also the amended proposal differs from the original proposal in that:

(a) the lots proposed to be created by the amended proposal do not correspond with the lots in the original proposal in area, and in the case of proposed lots 2, 6, 7, 8, 9, 10 and 12, in shape.

(b) Access arrangements to proposed lots 8 to 11 in the amended proposal differ to those proposed for lots 22 to 29 in the original proposal.

26 However, there was no issue in this appeal that the amended proposal was so substantially different to the development application as originally sought, as to require the making of a new development application.

27 The applicant has indicated that the primary purpose of the subdivision is to create allotments for the erection of dwelling houses.

28 The proposed lots vary in size, [Note: Addendum Information DA 418/04 in Exhibit 1, Tab 17 and Exhibit E plan that also shows services]:

Lot No	Lot size in hectares	Existing structures
1: Association property and includes a proposed 20m right of carriageway to Lots 10 and 11 and an area for services to be take between the north and south ends of the proposal	N/A	Bore
2: South end of the proposal with access to Barrs Road	3.85	N/A
3, 4 and 5: South end of the proposal with access to Barrs Road	3.07 each, total 9.21	N/A
6: South end of the proposal with access to Barrs Road	5.83	N/A
7: South end of the proposal with access to Barrs Road	37.17	Shed
8: North end of the proposal with access to Barryrennie Road	5.06	N/A
9: North end of the proposal with access to Barryrennie Road	2.66	N/A
10: North end of the proposal with access to Barryrennie Road	3.55	N/A
11: North end of the proposal with access to Barryrennie Road	31.19	N/A
Total area	98.52 excluding Lot 1

29 The total area in this table does not equate with the area of around 80 hectares of the combined area of the two original lots. I have no explanation for this discrepancy which was discovered after the appeal.

30 A buffer of 150m is proposed around the perimeter of the proposal and within that a 20m wide buffer zone of vegetation is proposed. The bore located on a new right of carriageway 20m wide with access from Barryrennie Road, Lot 1, would provide water to all lots, [Note: Exhibit 1, Tab 20].

31 The Statement of Environmental Effects states that the water supply is to be provided as part of a community plan with a pro-rata apportionment of irrigation license 70BL230330. The proposed subdivision would be allocated 18 Mega-litres of the original license of 430 Mega-litres. The water from the bore would be supplemented by roof water collection in tanks. All allotments would be provided with metered access to the bore supply.

32 The Department of Infrastructure Planning and Natural Resources, (now Department of Natural Resources) provided General Terms of Approval dated 1 November 2005, under the Water Act 1912 to the proposed groundwater use.

Notification

33 The council notified to nearby owners and occupants of the integrated development application on 21 December 2004. On 19 January 2005, the council re-notified nearby and adjoining residents to clarify the number of lots to be created in the original proposal. The re-notification letter invited written submissions. In response the council received twenty-one (21) submissions.

34 The council again wrote to nearby and adjoining residents on 25 July 2005 to invite interested residents to address a public forum of a council meeting to be held on 22 August 2005.

35 At the meeting of 22 August 2005, the council resolved that consideration of the original proposal be deferred pending receipt of further information from the applicant. The applicant submitted the amended proposal to the council on or about 1 September 2005. On 15 September 2005, the council wrote to nearby and adjoining landholders to inform them of the amended proposal, and to invite written submissions. On this occasion the council received eleven (11) submissions.

36 On 28 November 2005, the council invited interested residents to attend a public forum of a committee meeting to be held on 5 December 2005 and a council meeting on 19 December 2005.

37 On site, on the first day of the hearing, local residents reiterated their concerns expressed in these submissions against the integrated development application:

· The land should be classed as prime agriculture, for wheat, sub-clover and Lucerne cropping. It is suitable for broad acre farming and to put a number of houses on this land will cause nothing but conflict with the remaining farmers.

· The land is irrigated from a bore as are other farms nearby;

· Lucerne is a highly productive crop and has been grown on the subject land as evidenced by the photographs in Exhibit 7.

· To produce Lucerne it is necessary to spray in July, top dress in August, and then to cut and rake at night when the conditions are suitable for harvesting. There is dust, noise and light spill associated with the harvesting operation. It is difficult to anticipate when the raking would take place so notification of nearby owners is difficult. Spraying can occur around six times a year mostly during the day. It is difficult to get the correct wind direction to avoid spray drift.

· Nobody knows what is in the neighbourhood plan for the proposal. There is no mechanism for enforcement. The neighbourhood plan could be changed if there were a vote of 75% of the members agreeing to the change.

· More people living in the area will mean there is less water for irrigators. All existing entitlements to water have been used.

· Within 1 km of town there have been dog attacks on lambs. It is difficult to find the owners of the dogs.

· The aquifer is over-stressed and if more people draw from it there is likely to be a severe impact on the prosperity of irrigators.

· At a recent meeting of the local NSW Farmers’ Association, at which 112 people attended, the resolution to oppose the proposal was carried unanimously.

· Stock and domestic bores are not regulated and it would be difficult to police the water usage.

· Trees don’t thrive in this harsh climate and it would be some time before the proposed vegetative buffer is capable of screening the proposal.

· There are already sufficient rural residential lots approved in Cowra Shire to cater for 97 years of demand.

· There is likely to be complaints against noise of farm machinery operating in fields nearby and being taken from one field to another.

· Subsequent owners could remove the proposed buffer zone.

· There is need to provide for septic tanks and transpiration areas.

The council’s decision

38 At a meeting on 19 December 2005, the council refused the application for the following reasons:

(a) The development proposal is not consistent with the objectives of Cowra Local Environmental Plan 1990.
(b) The development proposal is not consistent with the objectives of the 1(a) – Rural Zone under Cowra Local Environmental Plan 1990.
(c) The development proposal does not comply with clause 14(4) of Cowra Local Environment Plan 1990 in that Council is of the opinion that it is not satisfied that the lot sizes permit the siting of future dwelling-houses on the 11 new lots so that they are unlikely to inhibit or give rise to complaints about normal farming practice (such as aerial spraying, separation from noxious odours and the like).
(d) The development proposal fails to demonstrate/justify (either through its layout and design, Statement of Environmental Effects or additional information submitted) that it will protect the productive agricultural land, the subject of the application, and surrounding prime agricultural land from the inappropriate large scale rural-residential development (11 lots).
(e) The development proposal fails to demonstrate/justify (either through its layout and design, Statement of Environmental Effects or additional information submitted) that it is consistent with Cowra Shire Council Development Control Plan – Guidelines for Rural Development 1996. In particular, it is assessed that the proposed subdivision layout is poorly designed to address/mitigate potential impacts on adjoining land-use, including the impacts on existing and likely future farming operations.
(f) The development proposal fails to demonstrate/justify (either through its layout and design, Statement of Environmental Effects or additional information submitted) that it will not result in significant adverse impacts on adjoining agricultural land-use, in particular

Lucerne hay producers and irrigators in the locality.

(g) The development proposal fails to demonstrate/justify (either through its layout and design, Statement of Environmental Effects or additional information submitted) that it will not result in significant adverse impacts on the site context and setting, including irreversible visual and character impacts on the rural locality.
(h) The development proposal fails to demonstrate/justify (either through its layout and design, Statement of Environmental Effects or additional information submitted) the loss of productive agricultural land that could likely result from the proposed subdivision.
(i) The substantial opposition to the development proposal from nearby landholders and the wider public interests that underpins an argument that the potential cumulative impacts borne about by allowing inappropriately located and designed rural-residential development on agricultural land in Cowra Shire should be avoided.
(j) The social and economic impacts of the development on a productive agricultural area of Cowra Shire.
(k) To safeguard the existing and future amenity of the locality.
(l) The circumstances of the case that it is highly productive agriculture land that may be impacted upon by non-agricultural rural residential type development.

The hearing

39 The appeal was filed on 22 December 2005.

40 At the hearing the Court heard evidence, on behalf of the respondent council from those present at the site visit including:

· Mr Brian Delaney, resident of No 6 Eucalypt Close, Cowra;

· Mrs Jennifer Bryant, resident of ‘Jimm-Dara’, Brook Lane via Forbes Road, Cowra;

· Mr Jason Wright, ‘Rosehill’, Young Road, Wattamondara, NSW 2794;

· Ms Fiona Clark, ‘Tymon’ Stud, Loudawn, Conimbla Road, Cowra, NSW 2794;

· Mr Peter B Wright, Collvanalbin, Cowra, NSW 2794, Chairman of NSW Farmers’ Association;

· Councillor Timothy P Bush, of Cowra Shire Council;

· Mr N C Siegert, Coorawoona;

· Ms Cheryl Smith, resident of No 151 Barrs Road, Cowra, NSW 2794;

· Mr Mark R Rankin, ‘Warrawong’, Forbes Road, Cowra, NSW 2794; and

· Mr David Delaney, J J Delaney & Sons Pty Limited, Lachlan Valley, Cowra, NSW 2794.

41 Mr L M Fletcher, who was the Court-appointed town planner. Mr Fletcher recommended approval of the application on the basis of a non-prime agricultural land classification.

42 Ms M A Kovac, an agricultural scientist represented the Director-General of the NSW Department of Primary Industry and gave evidence at the request of the Court.

43 Mr M Carter, Director, Environmental Services, Cowra Shire Council, prepared the statement of basic facts. This statement was amended before the hearing to delete the reference to the ‘non-prime’ agricultural land classification, as applying to the subject land. Mr Fletcher had accepted the statement of basic facts as being correct and had accepted that the land was categorised as ‘non-prime’ in his report in Exhibit 2.

The issues

44 On 24 May 2006 the council filed an amended statement of issues. This statement included two new issues and these became Issues 3 and 6.

(1) Whether the changes to the application made by the applicant on or about 1 September 2005 are so substantial as to require the making of a new development application.

PARTICULARS

(a) The application originally lodged with Council on 17 December 2004 (the original application) proposed the subdivision of part of lot 179, DP75248 and the whole of lot 2, DP522956 into 28 lots.
(b) The amended application lodged with Council on or about 1 September 2005 (the amended application) proposes a subdivision, on the same parcels of land, of only 11 lots.
(c) The lots proposed in the amended application do not correspond with the lots in the original application in area or, in the case of lots 2, 6, 7, 8, 9, 10 and 11, in shape.
(d) The access arrangements to proposed lots 8 to 11 in the amended application do not correspond with the arrangements for lots 22 to 29 in the original application.

(2) If the changes to the application are so substantial as to require the making of a new development application, whether the amended application is legally capable of approval.

(3) Whether the land to which the application relates is ‘prime agricultural land’ for the purposes of CLEP and, if so, whether the application is capable of being approved.

PARTICULARS
On 22 May 2006, a map prepared on behalf of the Director-General of the Department of Primary Industries was deposited in the office of the Council, which identifies the land to which the application relates as being Class 2 and 3 or prime agricultural land.
Clause 5 of the Cowra Local Environmental Plan 1990 ( CLEP ) provides that prime agricultural land means 'land within an area identified, on a map prepared by or on behalf of the Director-General of the Department of Agriculture and deposited in the office of the Council, copies of which are deposited in an office of the Department of Agriculture, as Class A1, Class A2 or Class A3 (or as subsequently identified by or on behalf of the Director-General on a map as Class 1, Class 2 or Class 3) or land of merit for special agricultural uses, as notified to the Council in writing by the Director-General, but does not include land which the Director-General has notified the Council in writing is not prime agricultural land for the purposes of this plan.
Clause 12 of CLEP has the effect of prohibiting subdivision of the kind proposed on prime agricultural land.

(4) If the subdivision is not prohibited, whether the development is inconsistent with the objectives of CLEP set out in clause 2(2)(a) and (b) and in paragraphs (a) and (b) of the objectives of Zone No. 1(a) in the Table to clause 9.

PARTICULARS

(a) Those objectives are:
a) to encourage and preserve all forms of agriculture and to preserve prime agricultural land, and
b) to promote the use of agricultural land within its capability.
(b) The creation of relatively small rural residential lots in an agricultural area will not encourage or preserve any form of agriculture on the land. Neither will the development promote any agricultural use of the land the subject of the development application.

(5) If the subdivision is not prohibited, whether the proposal satisfies clause 14(4) of CLEP.

PARTICULARS
Clause 14(4) of CLEP provides that:
Council shall not grant consent to a subdivision … unless it is satisfied that the lot sizes permit the siting of dwelling-houses so that they are unlikely to inhibit or give rise to complaints about normal farming practice (such as aerial spraying, separation from noxious odours and the like).
All proposed lots in the development adjoin land, which has an existing agricultural use.
Council received a number of submissions, which identify potential for conflict between the proposed development and surrounding agricultural land use.
Council considers that the location of this residential development, being bounded on all sides by farmed land, is likely to give rise to complaints about normal farming practice.

(6) If the proposal is not prohibited, whether the proposal will result in the fragmentation of a productive agricultural land resource.

(7) Whether the proposal will inhibit or restrict farming practices in the area.

PARTICULARS

Inhibiting or restricting farming practices in the area by way of increased complaints, land management problems or otherwise.

(b) For the same reasons set out above at paragraphs 4(b) to (d), Council considers that the development is likely to result in increased complaints.

(8) Whether the proposal is contrary to the public interest.

PARTICULARS

(a) Council is required to consider the public interest under s 79C(1)(e) of the Environmental Planning and Assessment Act 1979 (NSW).
(b) By introducing a number of additional dwellings in the area, the development is likely to increase the incidence of complaints by new residents about existing rural activities (which might involve aerial spraying, noise, odours and the like) and by existing residents about the activities of new residents (such as the control of domestic cats and dogs, increased bush fire hazard and weeds infestation).

(9) Whether the proposed subdivision is inconsistent with the requirements of draft CLEP Amendment No 14 which, when made, will have the effect of prohibiting of rural land in the manner proposed.

45 The council did not press Issues 1, 2 or 9 and following emerged as the salient issues:

· Whether or not the land is ‘prime agricultural land’ as defined in cl 5 to CLEP.

· If ‘prime agricultural land’ whether the proposal would conflict with other agricultural pursuits.

· If non-prime agricultural land whether or not the proposal to subdivide the land would be consistent with the objectives of the CLEP.

The evidence and findings

Whether or not the land is ‘prime agricultural land’ as defined in cl 5 to CLEP

46 The answer to this fact question involves interpreting the legal meaning of ‘prime agricultural land’ under the definition in cl 5 of the CLEP. The words of the definition, [Note: Para 10 above] including the bracketed words, have to be taken into account and given their ordinary English meaning. However, in adopting a purposive approach to interpretation, extrinsic evidence as to the circumstances surrounding the preparation of the documents may be admissible.

47 The specific question for me is whether the map dated 22 May 2006, at Exhibit 1, Tab 1, that shows the land coloured yellow and comprising Classes 2 and 3 and being ‘prime agricultural land’, could be equated with the bracketed words “(subsequently identified by or on behalf of the Director-General on a map as Class 1, Class 2 or Class 3)”, under cl 5 of the CLEP. The bracketed words in the definition under cl 5 of the CLEP appear to allow for a more detailed and updated assessment of the agricultural land classification than that provided by the Agricultural Land Suitability map of the Cowra Shire, prepared by the Department of Agriculture NSW, dated November 1982.

48 The agricultural land classification of the subject land is significant as the development potential of any parcel of land varies greatly if classified as ‘prime’ or other than ‘prime’.

49 Unfortunately, when the Department of Primary Industries, on behalf of the Director-General, prepared the map in Exhibit 1, qualifying words were added. These words within the commas on the face of the map “…subject to further assessment using appropriate mapping standards and supporting information” render the meaning of the map inconclusive and ambiguous. The determination as to whether the map in Exhibit 11, Tab 1, is one that may be equated with the bracketed words in the definition to cl 5 of the CLEP has been made thereby more difficult. Had there been no qualification, I am content that the information contained on the map would mean that the land classification of the subject is ‘prime agricultural land’.

50 Mr Clay for the applicant pointed to this qualification and submitted that the map could not be seen as meeting the requirements of the bracketed words in the definition and that, he submitted, are to be read in the context of the whole of cl 5 of the CLEP. He compared the cl 5 definition with a zoning reference and by inference that it should not be changed without proper consultation and notification. He urged the Court to conclude that the land is not classified as ‘prime agricultural land’.

51 There is no expert evidence before me to suggest that the subject land is other than ‘prime agricultural land’ when assessed today at the scale of the zoning map. To theoretically argue, as does the applicant, that it is other than ‘prime’, based on the qualifying words on the map would seem to lead to a perverse outcome and not a true reflection of prevailing circumstances and could lead to wasting high-quality broad-acre farming land.

52 Thus, I do not accept Mr Clay’s submission in this regard and consider that cl 5 of the CLEP was drafted to allow some flexibility in its interpretation.

53 Ms Kovac was the only expert to give evidence as to the agricultural land classification of the subject land. That evidence, she gave on behalf of Department of Primary Industries and after carrying out a field survey, she concluded, that the subject land is ‘prime agricultural land’. From this information, the department had prepared the map in Exhibit 11, Tab 1.

54 She gave oral evidence that the department would not need to make any further study of the land, and the map in Exhibit 11 serves to fill in the detail of the 1:100,000 map in Exhibit 12. I am satisfied, adopting a purposive approach to the interpretation of the definition in the CLEP, that the extrinsic evidence given by Ms Kovac that there is no need for further study of land classification, negatives the words in commas on the map. In Air Great Lakes Pty Limited v KS Easter [1985] 2 NSWLR 309 extrinsic evidence of surrounding circumstances was admissible in determining whether there was a concluded agreement in respect of a contract.

55 Given that no further study would be required and that the department is content that the land is classified as ‘prime agricultural land’, I am satisfied that the intent of the map in Exhibit 11, Tab 1 is clear. I am satisfied the requirement in cl 5 of the CLEP has been met and the land has been “subsequently identified by or on behalf of the Director-General on a map as Class 1, Class 2 or Class 3”.

56 Certainly, the map prepared by the NSW Department of Primary Industry for the Director-General and dated 22 May 2006, in Exhibit 11, Tab 1, is subsequent to the original map in Exhibit 12 prepared in 1982. It shows the subject land coloured yellow and identified, on behalf of the Director-General as Classes 2 and 3. Despite the ‘subsequent map’ being qualified by the words within the commas, I am satisfied that the map meets the requirements of cl 5 of the CLEP. I am satisfied the land is ‘prime agricultural land’ as defined and thus cl 12 of the CLEP applies.

57 As I have determined that the purposes of cl 5 of the CLEP the land is ‘prime agricultural land’ and as there would be too many lots and the lot sizes would not be of the correct size and no State Environmental Planning Policy No 1 – Development Standards, (SEPP1) objection to lot size has been filed, the application must be refused development consent. Mr Fletcher, the Court-appointed expert confirmed this in oral evidence and indicated that the Court would have no power to approve the application in the absence of a SEPP1 objection to the development standards of cl 12 of the CLEP that apply to rural 1(a) land identified as being ‘prime agricultural land’. Thus the application must fail.

If prime agricultural land whether the proposal would conflict with other nearby agricultural pursuits

58 Mr Clay asked that if I were to decide that the subject were found to be classified ‘prime’ agricultural land that I adjourn the matter to allow for the applicant to submit the appropriate SEPP1 objections to the standards. I decline to do this as I consider the proposal is inappropriate for other reasons.

59 For example, I am satisfied that the proposal to subdivide the land into lots as proposed, would directly impact on the agricultural use of the prime agricultural land by taking it out of broad-acre farming. The paddocks for broad-acre farming must be large in area to make practical and economic the use of large-scale machinery that is used to cultivate and harvest the crops.

60 I am also satisfied that if the subject land were developed for more intensive residential occupation there would be potential, if not real conflict, with normal farming of the area, through being too close to that farming activity, that is sometimes carried on at night. This is despite the proposal for extensive buffers.

61 Such impacts would be caused by adverse impacts associated with normal farming practices such as Lucerne farming. I was told that Lucerne is harvested usually at night when the dew point is correct. The equipment used to harvest is high-powered, noisy and creates dust. Also, I heard that such harvesters with folding arms sometimes traverse Barryrennie Road at night, travelling from one field to another, and there is noise associated with such movement that might be offensive to those not so empathetic to farming activities, living nearby. The mechanical harvesters are also equipped with high-powered lights and this has disturbed some rural occupants, I was told.

62 I was told that drift of spraying for weeds and pests are likely to conflict with more intensive residential occupation of the land. Putting aside the health risks, complaints have been made by rural occupants of the smell of the crop spraying. I was told that occupants of rural land might sometimes complain of adverse impacts, thereby restricting the industrial farming operation to the detriment of normal farming practices.

If non-prime agricultural land whether or not the proposal to subdivide the land would be consistent with the objectives of the CLEP

63 If I were forced to accept that the agricultural land classification of the subject is other than ‘prime’, the proposed use of the land would be permissible and the provisions of cl 14 of the CLEP apply.

64 Mr Clay submitted that by providing buffer strips of 150m around the proposed subdivided land, the problem of conflict with normal farming activities would be reduced. Nearby residents agreed that were these buffers heavily planted the problems of conflict would be reduced, however, they still considered some conflicts would remain as that have arisen in other similar situations.

65 However, the proposal would be likely to result in the fragmentation of a productive agricultural land resource and inhibit or restrict farming practices in the area. The proposed subdivision is broken in two parts. One part has frontage to Barrs Road and farming land separates the other part fronting Barryrennie Road. The farming activity of the land in between the two parts of the subdivision would be restricted by the presence of future dwellings.

66 Mr Fletcher, the Court-appointed town-planning expert assessed the present application against the provisions of the CLEP and recommended that it be approved, [Note: Exhibit 2]. Mr M Carter, the council’s Director of Environmental Services who assessed the development application also recommended approval, [Exhibit 1 Tab 20, p 51 of Item 11]. Both had assessed the application on the basis that the land was non-prime.

67 Despite Mr Fletcher’s opinion, I am satisfied that the proposal to subdivide the land would be contrary to the objectives of the rural 1(a) zone in cl 2(2)(a) and (b) of the CLEP, as it would not encourage and preserve all forms of agriculture and would not preserve prime agricultural land, and would not promote the use of agricultural land within its capability. Mr Carter considered the proposal would be inconsistent with objectives (a) and (b) of the rural 1(a) zone under the CLEP and stated that “…inconsistency with some of the objectives of the 1(a) rural zone is considered insufficient alone to warrant refusal of the proposed development,” [Note: Exhibit 1, Tab 20, p 44 of Item 11]. I disagree and I consider that objectives (a) and (b) are important in a rural area.

68 In this regard, the proposal would directly remove from broad-acre cultivation the subject land, and make more difficult continued viable farming use.

69 I am also satisfied that under cl 14(4) of CLEP, despite the lot sizes of the proposed subdivision being large enough to permit the siting of dwelling-houses the proximity of future dwellings would be likely to inhibit or give rise to complaints about normal farming practice (such as aerial spraying, separation from noxious odours and the like). I consider that simply complying with the provisions of the council under the DCP could not ensure that there would be no complaints in the particular circumstances of this case.

70 Ms Smith, who lives on a 40-hectare lot diagonally opposite the proposed subdivision pointed out that when she came to live in Barrs Road, the crop dusting pilot had to change his flight plan to fly north/south so as to not overfly her dwelling. If the proposal were approved, the option of flying north/south would need to be modified. As more dwellings are situated in rural areas the options for managing agricultural land are diminished.

71 Also Ms Clark of ‘Tymon’ Stud, who is an adjoining owner in Barryrennie Road pointed to the fact that the Zone 1 aquifer on the Upper Lachlan is severely stressed and over-allocated six fold. She considered the proposed eleven lots with ten households, with the potential for further households in Stage 2, would severely impact on the prosperity of local irrigators by further down-grading the underground water supply.

72 All the proposed lots adjoin agricultural land use. The submissions, received by the council and the evidence given to the Court on-site, confirms there is an identified potential for conflict between the proposal and surrounding agricultural land uses and as a result of the proximity those uses, complaints are likely to arise about conflict with normal farming practices.

73 For the above reasons, the appeal is dismissed.

Other matters

74 On the site inspection Mr Clay explained that the council had recently approved a subdivision on land to the north of the subject land across Barryrennie Road. The planning report on this application dated 21 January 2006, revealed that the rural 1(a) land had been subdivided into four lots, three of which were 40 hectares in area and the lot near the road, containing the existing dwelling, was some 19 hectares, [Note: Exhibit A]. This land is shown on the 1982 Agricultural Land Suitability map of the Cowra Shire, prepared by the Department of Agriculture NSW, as mainly Class 4A with some Class A2 on the northern end remote from the subject land. If the same controls had applied to the subject land it could be subdivided into say two or three allotments that would comply with the 40-hectare minimum allotment size.

75 The s 149 certificates obtained by the applicant in 2003 and 4 indicated that each lot in the proposed subdivision were zoned rural 1(a), however, the information concerning whether the agricultural land was ‘prime’ was not included. Whether or not the land is prime is such a fundamental factor in determining the development potential of the land, it is surprising that the council had not included it to complete the statutory planning picture.

76 The practice of defining the development potential of land by directing the applicant to a map, within a map, within a zoning map under a local environmental planning instrument is not ideal and it would be preferable for the zoning information to be found in the one place and included in the s 149 certificate.

77 Ms Kovac stated that the scale of the Agricultural Land Classification map at 1:100,000 is not large enough to be used for zoning individual properties and that it was not meant for this purpose. This I accept and if resources are available the council might consider refining the information contained on that map so that it can be used for zoning land at the scale of the local environmental plan.

Orders
78 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Integrated development application No DA 418/04 lodged with the respondent council on 17 December 2004 to subdivide the land into eleven (11) allotments land (originally twenty-eight (28) allotments), at part Lot 179, DP752948 and Lot 2, DP522956, Barryrennie and Barrs Roads, Parish of Mulyan, Cowra is refused development consent.

3. The exhibits except for Exhibits B, 1, 3, 4, 9 and 10 are returned.

S J Watts

Commissioner of the Court

sw

22/06/2006 - Deleted 'Mr' from the title - Paragraph(s) Title change