Baker v Wagga Wagga City Council - [2010] NSWLEC 1293

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Baker and Ors v Wagga Wagga City Council [2010] NSWLEC 1293

PARTIES:
APPLICANTS
Richard Rowe Baker
Michelle Maree Baker
RESPONDENT
Wagga Wagga City Council

FILE NUMBER(S): 10308 of 2010

CORAM: Murrell C

KEY ISSUES: DEVELOPMENT APPLICATION :- erection of dwelling; 200 ha minimum; objection under SEPP1; rural character of area; prime crop; precedent.

LEGISLATION CITED: Land and Environment Court Act 1979
Wagga Wagga Rural Local Environmental Plan 1991
State Environmental Planning Policy No.1

CASES CITED: Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46
Zhang v Canterbury City Council [2001] NSWCA 167
Wehbe v Pittwater Council [2007] NSWLEC 827

DATES OF HEARING: 29 July 2010, 17 & 31 August 2010

EX TEMPORE JUDGMENT DATE: 31 August 2010

LEGAL REPRESENTATIVES:
APPLICANTS
Ms M Hawley
SOLICITOR
Lindsay Taylor Lawyers
RESPONDENT
Mr T Abbott
SOLICITORS
Walsh & Blair Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

31 August 201
10308 of 2010 Baker & Ors v Wagga Wagga City Council

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

1 The applicant in these proceedings is seeking to erect a dwelling house on the property known as 290 Old Narrandera Road from O’Sheas Lane, Euberta, about 12 km from the Wagga Wagga CBD. The subject site is lot 177 in DP 750863 and is some 66 ha with 4 ha currently being used for grape production, viticulture with expansion planned.

2 The Court had the opportunity on the day of the proceedings in Wagga to carry out a site inspection of the subject property and the intensive agriculture being carried out. The Court also had the opportunity of viewing adjoining properties and activities on same. As well as visiting or inspecting a fish farm on 12 ha which was subdivided recently from a parcel of land.

3 During the proceedings there was evidence given to the Court on behalf of the council by Mr Sam Robins, council’s assessment planner. Mr Peter McInerney, also gave evidence on behalf of the respondent as an agricultural scientist. Mr Michael Ryan, also an agricultural scientist, gave evidence on behalf of the applicant. Mr Baker himself also provided an affidavit and gave evidence.

4 By way of background the land was purchased in 1994. The subject development application has a very long history as it was submitted originally in 2002. The application has been assessed by council on several occasions, however, no determination was given earlier. Some years ago there were moves to prepare a draft LEP where if intensive agriculture could be established, then a dwelling house could be erected. And there were also discussions with the Department of Planning about the possibility of site specific LEP however, this did not progress. The Department of Planning did not concur with the SEPP 1 objection to vary the minimum lot size.

5 The subject site is zoned under the Wagga Wagga LEP and a 200 ha minimum allotment size applies for the erection of a dwelling house. This has recently been confirmed in the new LEP for Wagga Wagga of 2010 whereby the subject site is zoned AE and this contains provisions in accordance with the standard template for zonings. This LEP has a savings at cl 1.8A relating to pending development approvals, as follows:

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had been exhibited but had not commenced. The new LEP also contains a self-contained provision with respect to a SEPP 1 objection, as opposed to the old instrument whereby the concurrence of the Department was required.

6 The Department of Agriculture granted concurrence and supported the application and there is a letter in evidence to that effect. The Department of Planning has not granted concurrence and this is required because the savings provision requires the application to be determined under the previous instrument and the council cannot assume the Department's concurrence in this matter.

7 The Wagga Wagga Rural Local Environmental Plan 1991 contains a number of provisions relevant to the assessment of this application. At clause 2 there is a general aim as follows:

(i) prime crop and pasture land.

8 Clause 9 states:

(3) Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

9 The subject site is zoned Rural 1 and the objective is “to promote the proper management and utilisation of resources by any one or more of the following:

(f) providing land for future urban development, for future rural residential development and for future development for other non-agricultural purposes, in accordance with the need for that development;
(g) providing for a range of rural living styles in appropriate locations within the area to which the plan applies; and
(h) encouraging the establishment of rural industries within the area to which the plan applies.

10 Clause 10 contains general considerations for development within the rural zone No.1

11 Clause 11 for the subdivision of land states:

(1) A person shall not subdivide land to which this plan applies except with the consent of the Council.

(3) The Council shall not consent to an application for development consent to subdivide land within Zone No 1 unless the application form appears to have been completed in accordance with subclause (2).

12 Clause 12 Subdivision for the purposes of agriculture in Zone No 1

Note.

State Environmental Planning Policy (Rural Lands) 2008

13 Clause 14 Subdivision for other purposes in Zone No 1

14 Clause 17 Dwellings in Zone No 1-vacant land

vacant land

15 The Public Exhibition Draft Wagga Wagga Local Environmental Plan 2008 zones the subject site RU1 - Primary Production and the objectives of the zone are:

To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.
To encourage diversity in primary industry enterprises and systems appropriate for the area.
To minimise the fragmentation and alienation of resource lands.
To minimise conflict between land uses within the zone and land uses within adjoining zones.
To foster strong, sustainable rural community lifestyles.
To maintain the rural landscape character of the land.
To allow tourist and visitor accommodation only where it is in association with agricultural activities.

4.2 Rural subdivision [compulsory if clause 4.1 adopted and land to which Plan applies includes land zoned RU1, RU2, RU4 or RU6]
(1) The objective of this clause is to provide flexibility in the application of standards for subdivision in rural zones to allow land owners a greater chance to achieve the objectives for development in the relevant zone.
(2) This clause applies to the following rural zones:

(4) However, such a lot cannot be created if an existing dwelling would, as the result of the subdivision, be situated on the lot.
(5) A dwelling cannot be erected on such a lot.

(e) an existing holding to which Wagga Wagga Rural Local Environmental Plan 1991 applied immediately before its repeal by this Plan.
Note. A dwelling cannot be erected on a lot created under clause 9 of State Environmental Planning Policy (Rural Lands) 2008.

(4) Despite any other provision of this clause, development consent may be granted for the erection of a dwelling house on land in a zone to which this clause applies if:

(b) the land would have been a lot or a holding referred to in subclause (2) had it not been affected by:

(ii) a subdivision creating or widening a public road or public reserve or for another public purpose.

existing holding

(3) Consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

Contentions

16 The respondent provided a statement of contentions and in summary this raises the issue the proposal is inconsistent with cl 17 of the Wagga Wagga Rural LEP requiring 200 ha minimum and the SEPP 1 objection is not well-founded the standard is not unreasonable or unnecessary in the circumstances of the case. Council also raised the draft LEP clause 4.1, 4.2B, 4.6, and the inconsistency with the objectives of the RU1 zone. The issue of the proposal creating an inappropriate precedent was also raised and the adverse impact on the existing rural character of the zone.

17 In the particulars to the contentions the council is concerned about fragmentation of the use of rural land used for agricultural purposes, which will adversely alter the character of the area, threaten agricultural production potential of the land and diminish the certainly of rural land values.

18 Council contends that it would impose unnecessary limitations on the productive agricultural use of the land and surrounding land and hinder farm adjustment as the cost of land will increase. Council further contends that the development would be inconsistent with the aims and objectives of the rural zone that is; protecting, enhancing and conserving and preventing the unjustified development of prime crop and pasture land for purposes other than agriculture and the other objective of facilitating farm adjustments.

19 Council contends that the proposal is also inconsistent with cl 10 and that the present use and potential use of the land for the purposes of agriculture will impact on other lands, that is the applicant has not established that the dwelling can be justified as being necessary, otherwise than an ancillary to the existing proposed viticultural operation and has provided no substantiative case to justify the dwelling.

20 The council states that the lot was created prior to the commencement of the draft plan and it is agreed between the parties that there is no dwelling right attached to the subject lot. Council also maintains that there is insufficient environmental planning grounds to justify contravening the standard and no need for the dwelling as such and it is not in the public interest.

21 The issue of precedent is one that also was ventilated with some rigour at the hearing in that the council contends that it would set an inappropriate precedent encouraging multiple similar developments in the locality that will have cumulative adverse impact on the locality and the city.

22 The issue of insufficient information was overcome in terms of further details being provided to the Court and the council on the day of the hearing. As such the Court has has the benefit of additional material. The Court also has the benefit of concurrent evidence from the experts and in that regard Mr Peter McInerney considers that while one could say that a house is desirable, he does not consider that it is essential to the current vineyard or in terms of the proposed expansion of the vine yard.

23 The threshold question for the Court is whether the SEPP 1 objection is well-founded in the circumstances of this case and this is also the pivotal issue for the court to determine.

Assessment of Evidence and Findings

24 The applicant proposes to double the amount of land that is under grape, currently 4 ha under grape. However, Mr McInerney considers that whilst viticulture is an intensive form of agriculture at the same time for the periods of high demand for labour the applicant could employ casuals.

25 Mr Michael Ryan, on behalf of the applicant, however, said that the applicant's intensive agriculture is one that requires attention to detail because the desire is or the market is for maximum quality as opposed to maximum yield. As such initial factors include the watering of the grapes, the moisture content of the soil are matters demand careful attention. Also spraying of the grapes at various times so the vines gain maximum effect is important and this is labour intensive.

26 Whilst the personal circumstances of the owner are not something that I can give weight to, I note that as for the applicant off farm income is not uncommon for farmers these days and this is well documented. This fact is also identified in the Rural Land Study as a common practice to rely on off farm income. The applicant has resided on the subject site in the converted storage barn area and it is proposed in this application that the dwelling house be clustered with this and other buildings on the property.

27 The Court must be satisfied about the threshold question of the SEPP 1 objection to vary the 200 ha minimum. The council contends that the size of the subject site is not unique in the area and the applicant states that within the vicinity of the subject site of some 33 properties, there are 31 properties with dwelling permits many where the 200 minimum ha size is not complied with.

28 The applicant also submits that the character of the area here sees a clustering of dwellings as opposed to the open rural pasture land. It is important to also note that the subject site has the benefit of bore water and this allows for intensive use whether that be for grapes, cereal or cropping on the subject property. There is also has a creek on one boundary, like many properties.

29 The experts, during the proceedings, were asked to comment on the underlying objectives of the 200 ha standard. Mr Robins considers that the proposal is contrary to the 200 ha standard because of the character of the area and the precedential effect of pressure for fragmentation and a roll-on effect that increases the cost and limits farm adjustments. He is of the opinion that It would also impact on the agricultural potential of the prime crop and pasture land making the land more attractive for rural residential.

30 Mr Ryan, on the other hand, considers that the scale is important in terms of the intensiveness of the operation as to whether it is a sustainable size, as opposed to the number of hectares. He considers that agriculture is changing, that intensive agriculture requires secure access to water, which the subject property does have, and that this is a distinguishing factor for the circumstances of why this SEPP 1 objection should be upheld. In terms of protecting and enhancing agricultural land, he is of the opinion that it is not contrary to this objective.

31 In my assessment of the SEPP 1 objection I must first turn to the objectives of the standard. In the circumstances of this case, and as agreed to between the experts, this is informed by the zone objectives, although the zone objectives do not generally double as an underlying objective or purpose of the standard.

32 On behalf of the respondent I was referred to the judgment of the Chief Judge of this Court in the matter of Wehbe v Pittwater Council [2007] NSWLEC 827 wherein his Honour sets out methods of approach, or the questions that need to be looked at in a SEPP 1 assessment.

33 The State Policy contains aims and objectives that provide for flexibility in the application of planning controls and where a standard, in a particular case, would be unreasonable or unnecessary or tend to hinder the attainment of the objects of the Act. The objects of the Act include orderly and economic development and sustainable development. The Policy also refers to where there is the need for the Director General's concurrence under s 8.

34 The matters that I must also take into account include whether non-compliance with the development standard raises any matters of significance for State or regional planning. And the public benefit of maintaining the planning controls adopted by the instrument.

35 In my assessment of the SEPP 1 objection in the circumstances of this case I am satisfied it is well-founded and warrants approval. I say this having regard to the regime of the statutory planning framework and the purpose of the standard.

36 Clearly, council is desirous to protect the agricultural viability of areas in terms of the objective to protect and enhance. And I must address the question of whether the SEPP 1 objection is justified in allowing a site of 66 ha to have a dwelling right. And in considering this I have looked at the unique circumstances of this case and whether the objectives, or the underlying purpose, is maintained.

37 In my assessment I am also informed by conditions of consent that would attach to any development consent. In this regard the intensity of the agriculture has been addressed and the applicant has agreed to conditions whereby the use of the dwelling must be tied to the intense agricultural purpose. As such a s 88E instrument is to be attached, such as it is clear for any future potential landowners the dwelling must only be used in association with intensive agricultural production of the subject site.

38 The circumstances of this case are that intensive agriculture has been established with a significant investment and the applicant is prepared to further invest. In this regard a ‘deferred commencement’ condition has been agreed to that will nearly double the area under grape.

39 I am satisfied that on the evidence of the agricultural experts that it is not only more convenient for the land owner to farm the land, as opposed to having to employ casual labour, but more practical given the timing of various tasks to control the quality of grapes. In this regard I accept Mr Ryan's evidence.

40 Development consents run with the land as do the conditions requiring the dwelling to be only used in association with the intensive agriculture. Together with the existing established intensive agriculture of this land and the deferred commencement requirement I am satisfied that the circumstances of this case justify a variation to the 200ha minimum. In my assessment the SEPP 1 objection is well-founded and should be upheld.

41 I am also conscious of the need to have regard to the cl 8 of the SEPP where concurrence of the Director General of the Department is required. There is no argument between the parties that the Court has power, under the Land and Environment Court Act, to grant such concurrence. In this regard I am satisfied that the variation will not contravene the public benefit of maintaining the planning controls because of the circumstances of this case. In my assessment matters of significance for State or regional environmental planning are not compromised because of the individual merits of this case.

42 In many respects the merit assessment overlaps or coincides with the SEPP 1 assessment. On the issue of placement/location of the dwelling on the land this must be assessed against the development control plan and its guidelines. The Court has the benefit of the site inspection to understand the character of the area surrounding the subject site where a number of dwelling houses were observed. I am further satisfied that the proposed development of a dwelling house on this site less than 200 ha would not undermine the character of the area. In this regard I am persuaded by the evidence of the applicant.

43 For the issue of precedent this in itself at times may be reason enough to refuse a development application and the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 is authority for this and it sets out how precedent can of itself be a reason for refusal. But I am satisfied that the circumstances of this case and the facts distinguish this matter such that it cannot be used or invoked by future applicants seeking to erect dwelling houses on allotments less than 200 ha. In the circumstances of this case intensive agriculture has been established, and given the deferred commencement condition the applicant must provide for a greater area of land to be intensively farmed. Furthermore, the s 88E instrument would prevent future applicants seeking a dwelling and living on undersized lots because the carrying out of intensive agriculture must be established and maintained as a prerequisite for the dwelling.

44 The question of the DCP requirements in the conditions that require the dwelling house location to be further approved in compliance with the DCP provisions I have considered. The numeric standards are important and should be given central focus and consideration as instructed by Zhang v Canterbury City Council [2001] NSWCA 167, at the same time the DCP is not mandatory.

45 Given the extensive ventilating of issues during these proceedings, and my merits determine the location to be confirmed at this point in time. I accept the submission, on behalf of the applicant, that the dwelling house should be located as proposed on the plan because this provides for a clustering of buildings on the subject property and this is a desirable characteristic under the development control plan and the separation to other properties is satisfactory. As such the conditions are to be amended such that the location of the dwelling is as shown in the plans before the Court. And, similarly, the condition proposed by Ms Hawley in terms of the 88E instrument is adopted for the purposes of the conditions to be attached to this development consent.

46 In my overall assessment where there are regional planning and State planning matters at issue in the case of minimum lot sizes for agricultural properties I am most conscious to very carefully consider the issue of precedent. I am also guided by the fact that the Department of Agriculture has expressed support for the application and I have given significant weight to this in my determination. Furthermore, the individual merits of this case mean that it should not be used as a precedent.

47 Accordingly on the basis of my assessment above, the formal orders of the Court are:

_______________________

J S Murrell

Commissioner of the Court

Annexure ‘A’

Baker and Anor v Wagga Wagga City Council

CONDITIONS OF CONSENT

Property : Lot 177 DP 750863

Proposed Development: Erection of Dwelling House

PART A

Deferred Commencement Condition

1. In accordance with section 80(3) of the Environmental Planning and Assessment Act 1979 this consent is not to operate until the applicant/owner satisfies the Council that the area of land that has been planted with grapes for the purpose of viticulture on the property at Lot 177 DP 750863, is a minimum of 10 ha in size.

On the above condition being satisfied the consent becomes operational subject to the general conditions in Part B.

PART B

General

2. A further Development Application is required to be submitted to detail the design, and size of the proposed dwelling which is to be located in accordance with the area identified as ‘Future House’ and ‘Future Garage’ on the plan marked ‘A’ attached to these conditions.

REASON: To ensure the design of the proposed work can be assessed in detail, before construction commences, and because it is in the public interest that the development complies with the appropriate construction standards. Section 79C(1)(e) of the Environmental Planning and Assessment Act 1979 , as amended.

3. The subject land is covered by Council's Tree Preservation Order. Trees impacting on the development shall not be removed from the site without first obtaining approval. Enquiries are to be made to Council's Tree Management Office by telephoning 1300 292442.

REASON: To ensure that any trees, on or near to the subject land, are not damaged or removed unnecessarily. Section 79C(b) and (c) of the Environmental Planning and Assessment Act 1979, as amended.

4. The applicant/owner must furnish documentary evidence that arrangements, satisfactory to Country Energy and the relevant telecommunications authority, for both the provision of underground electrical power and telephone lines respectively, to fully service the development, have been made, prior to a development application being lodged for the erection of the proposed dwelling.

Environmental Planning and Assessment Act 1979

5. Prior to the release of an occupation certificate for the dwelling, a restrictive covenant must be registered on the title of the land pursuant to s88E of the Conveyancing Act 1919 to the effect that any dwelling constructed on the land can only be occupied by persons carrying out intensive plant agriculture or intensive livestock agriculture (as defined in the Wagga Wagga Local Environmental Plan 2010) on the land. If no intensive plant agriculture or intensive livestock agriculture is carried out on the land for a continuous period of 12 months, then any occupation of the dwelling must cease, and can only recommence if evidence satisfactory to the Council is provided to demonstrate that the intensive plant or livestock agriculture has recommenced on the land.

________________________

ajl

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Citations

Baker v Wagga Wagga City Council [2010] NSWLEC 1293

Most Recent Citation

McMahon v Wagga Wagga City Council [2012] NSWLEC 1135

Cases Citing This Decision

1

McMahon v Wagga Wagga City Council [2012] NSWLEC 1135

Cases Cited

3

Statutory Material Cited

3

Wehbe v Pittwater Council [2007] NSWLEC 827

Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46

Zhang v Canterbury City Council [2001] NSWCA 167

CITATION:	Baker and Ors v Wagga Wagga City Council [2010] NSWLEC 1293
PARTIES:	APPLICANTS Richard Rowe Baker Michelle Maree Baker RESPONDENT Wagga Wagga City Council
FILE NUMBER(S):	10308 of 2010
CORAM:	Murrell C
KEY ISSUES:	DEVELOPMENT APPLICATION :- erection of dwelling; 200 ha minimum; objection under SEPP1; rural character of area; prime crop; precedent.
LEGISLATION CITED:	Land and Environment Court Act 1979 Wagga Wagga Rural Local Environmental Plan 1991 State Environmental Planning Policy No.1
CASES CITED:	Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 Zhang v Canterbury City Council [2001] NSWCA 167 Wehbe v Pittwater Council [2007] NSWLEC 827
DATES OF HEARING:	29 July 2010, 17 & 31 August 2010
EX TEMPORE JUDGMENT DATE:	31 August 2010
LEGAL REPRESENTATIVES:	APPLICANTS Ms M Hawley SOLICITOR Lindsay Taylor Lawyers RESPONDENT Mr T Abbott SOLICITORS Walsh & Blair Lawyers