Clarke v Shoalhaven City Council

[2020] NSWLEC 1085

Land and Environment Court

New South Wales

Medium Neutral Citation:

Clarke v Shoalhaven City Council [2020] NSWLEC 1085

Hearing dates:

13 and 14 November 2019

Date of orders:

28 February 2020

Decision date:

28 February 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Development application DA2018/1318 for the subdivision of one lot into two lots for the commercial purpose of an animal (equine) breeding and training facility at 19 Bong Bong Road, Berry, is determined by refusal.

(3) The exhibits are returned, with the exception of Exhibits E, H and 1.

Catchwords:

DEVELOPMENT APPLICATION – subdivision of land – exception to minimum lot size provisions of Shoalhaven LEP – whether clauses that provide exceptions to minimum lot size provisions can be read independently – whether owner’s intention to retire and succession plans establish that subdivision is necessary for the on-going operation of a permissible use

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Shoalhaven Local Environment Plan 2014
State Environmental Planning Policy (Rural Lands) 2008

Cases Cited:

Davies v Penrith City Council [2013] NSWLEC 1141
Maschewski v Murray Shire Council [2015] NSWLEC 1251

Texts Cited:

Shoalhaven Development Control Plan 2014

Category:

Principal judgment

Parties:

Grant Clarke (Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:
M Mantei (Solicitor) (Applicant)
A Bradbury (Solicitor) (Respondent)

  Solicitors:
Planning Law Solutions (Applicant)
Bradley Allen Love Lawyers (Respondent)

File Number(s):

2019/64486

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Grant Clarke (the Applicant) has appealed the refusal by Shoalhaven City Council (the Respondent) of his development application DA2018/1318 seeking consent for the subdivision of one lot into two lots for the commercial purpose of an animal (equine) breeding and training facility (the Proposed Development) at 19 Bong Bong Road, Berry (the Subject Site).

2. The Applicant’s Proposed Development includes:

1. the subdivision of one lot into two lots that would create:

1. proposed lot 61, that would have an area of 10.55Ha, situated on the western part of the Subject Site, and that would include an existing dwelling;

2. proposed lot 62, that would have an area of 7.71 Ha, situated on the eastern part of the Subject Site, and that would include the area for the proposed animal boarding and training establishment.

3. The appeal comes to the Court pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act), and the appeal is heard under the provisions of s 34C of the Land and Environment Court Act 1979.

4. The appeal commenced on-site with an inspection of the Subject Site, and no objectors sought to make representations in relation to the Applicant’s Proposed Development during the on-site view.

Statutory context

Environmental Planning and Assessment Act 1979

5. Section 4.15(1) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph).

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

Shoalhaven Local Environmental Plan 2014

6. Development on the Subject Site is subject to the provisions of Shoalhaven Local Environmental Plan 2014 (SLEP). The following provisions of SLEP are of particular relevance in this appeal:

1. Clause 2.1, which establishes land use zones within the area covered by the plan as provided in cl 2.2 of SLEP. The Subject Site is zoned RU1 Primary Production, and under the provisions of cl 2.3 of SLEP, the objectives of this zone are to:

• encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

• encourage diversity in primary industry enterprises and systems appropriate for the area.

• minimise the fragmentation and alienation of resource lands.

• minimise conflict between land uses within this zone and land uses within adjoining zones.

• conserve and maintain productive prime crop and pasture land.

• conserve and maintain the economic potential of the land within this zone for extractive industries.

1. The use of land zoned RU1 Primary production for the purpose of an animal boarding or training establishment is permissible under the provisions of cl 2.3. The dictionary within SLEP defines an animal boarding or training establishment as follows:

“a building or place used for the breeding, boarding, training, keeping or caring of animals for commercial purposes (other than for the agistment of horses), and includes any associated riding school or ancillary veterinary hospital”.

2. Clause 4.1 concerns the minimum subdivision lot size and it applies to a subdivision of any land shown on the Lot Size Map within SLEP that requires development consent and that is carried out after the commencement of this Plan. Under clause 4.1, the Subject Site has a minimum subdivision lot size of 40Ha. The clause has the following objectives:

(a) to ensure that subdivision is compatible with, and reinforces the predominant or historic subdivision pattern and character of, an area,

(b) to minimise any likely impact of subdivision and development on the amenity of neighbouring properties,

(c) to ensure that lot sizes and dimensions are able to accommodate development consistent with relevant development controls.

1. Under the provisions of subcl (3), the size of any lot resulting from a subdivision of land to which cl 4.1 applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

3. Clause 4.2 concerns the subdivision of rural land and aims 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. Clause 4.2 applies to land that is zoned RU1 Primary production, and it also provides under subcll 3, 4 and 5 as follows:

(3) Land in a zone to which this clause applies may, with development consent, be subdivided for the purpose of primary production to create a lot of a size that is less than the minimum size shown on the Lot Size Map in relation to that land.

(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.

4. Clause 4.2B, also applies to land zoned RU1 Primary Production, and provides under subcl 4.2B(2) as follows:

(2) Despite clause 4.1, land identified as prime crop and pasture land in a zone to which this clause applies may only be subdivided if the consent authority is satisfied that each lot created by the subdivision will contain at least 10 hectares of prime crop and pasture land.

1. SLEP defines the term “prime crop and pasture land” within its dictionary as being either:

(a) rural land identified by the Secretary of the Department of Trade and Investment, Regional Infrastructure and Services as comprising Classes 1, 2 or 3 of a classification set out in the Rural Land Evaluation Manual (ISBN 0724044868) published by the NSW Government in 1981 and available from the Department of Trade and Investment, Regional Infrastructure and Services, or

(b) other land identified by the Secretary of that Department.

5. Clause 4.2C concerns the subdivision of land fronting a watercourse and also applies to land zoned RU1 Primary Production, and aims to limit the creation of additional entitlements to take water as a result of the subdivision of land fronting a watercourse. Under the provisions of subcl 4.2C(3) before determining a development application in relation to land to which this clause applies the consent authority must consider:

(a) whether the development will create additional lots that front the watercourse; and

(b) whether reticulated water is to be supplied to those lots.

6. Clause 4.2E concerns further exceptions to minimum subdivision lot sizes for certain rural and environment protection zones, and it applies to land zoned RU1 Primary Production. The objective of this clause is to permit the subdivision of land in certain rural and environment protection zones to create lots of an appropriate size to meet the needs of current permissible uses other than for the purpose of dwelling houses or dual occupancies. Relevantly, the clause further provides as follows:

(3) Land to which this clause applies may, with development consent, be subdivided to create a lot of a size that is less than the minimum size shown on the Lot Size Map in relation to that land, if the consent authority is satisfied that-

(a) the land will not be used for the purposes of a dwelling house or a dual occupancy, and

(b) the land will continue to be used for the same purpose for which it was lawfully used immediately before the subdivision.

(4) The lot may include land from more than one zone.

(5) Development consent must not be granted for the subdivision of land to which this clause applies unless the consent authority is satisfied that –

(a) the subdivision will not adversely affect the use of the surrounding land for agriculture, and

(b) the subdivision is necessary for the ongoing operation of the permissible use, and

(c) the subdivision will not cause or increase rural land uses conflict in the locality, and

(d) the subdivision is appropriate having regard to the natural and physical constraints affecting the land.

(6) A lot created under subclause (3) that has a dwelling house or dual occupancy on it may also be less than the minimum size shown on the Lot Size Map in relation to that land.

7. Clause 4.6, which provides more generally for exceptions to development standards contained within SLEP, but which also states under subcl 4.6(8)(bb) that cl 4.6 does not allow development consent to be granted for development that would contravene the provisions of clause 4.2B (see above at [(4)]).

State Environmental Planning Policy (Rural Lands) 2008

7. State Environmental Planning Policy (Rural Lands) 2008 (Rural Lands SEPP), has the following aims:

(a) to facilitate the orderly and economic use and development of rural lands for rural and related purposes,

(b) to identify the Rural Planning Principles and the Rural Subdivision Principles so as to assist in the proper management, development and protection of rural lands for the purpose of promoting the social, economic and environmental welfare of the State,

(c) to implement measures designed to reduce land use conflicts,

(d) to identify State significant agricultural land for the purpose of ensuring the ongoing viability of agriculture on that land, having regard to social, economic and environmental considerations,

(e) to amend provisions of other environmental planning instruments relating to concessional lots in rural subdivisions

1. Clause 9 of Rural Lands SEPP concerns the rural subdivision for agricultural purposes, and provides as follows:

(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) Land in a rural zone may, with consent, be subdivided for the purpose of primary production to create a lot of a size that is less than the minimum size otherwise permitted for that land.

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

(4) A dwelling cannot be erected on such a lot.

Contentions

8. Mr Mantie, for the Applicant, submits that the owner of the Subject Site, Mr Clarke:

1. has owned the Subject Site since 2001;

2. between 2001 and 2010 was a registered primary producer;

3. utilised the property between 2001 and 2008 for a variety of agricultural production purposes including beef cattle grazing, and horse keeping, breeding and training;

4. in 2008 decided to shift the use of the Subject Site to the keeping, breeding, training and sale of show jumping horses;

5. currently uses the Subject Site is for the purposes of an animal (equine) breeding and training facility, which is a permissible use of the Subject Site;

6. seeks the subdivision of the Subject Site in order to place the animal (equine) breeding and training facility business, known as Connollys Equestrian, onto a separate title so as to facilitate the succession of that business to his daughter, Amelia. Subdivision of the Subject Site would also place the current dwelling on the Subject Site onto a separate land title to the lot that would ultimately be used for the business; and

7. intends to lease the proposed lot 62 to his daughter, and to support the training facility business through its “next stage of business development and growth’.

9. As discussed earlier in this judgment (see above at [6(1)]), the Subject Site is zoned R1 Primary Production, and the Applicant’s Proposed Development is a permissible land use within this zone.

10. It was also common ground at the hearing that the Subject Site is “crop and pasture land” for the purposes of cl 4.2B of SLEP, as defined above (see [6(4)(a)]).

11. The Applicant submitted in opening that:

1. it had elected to make the application for subdivision of the Subject Site under the provisions of cl 4.2E of SLEP (see above at [6(6)]);

2. it did not press permissibility of the Proposed Development under cl 9 of the Rural Lands SEPP (see above at [7]), and stated that there would be no utility in the Court considering whether the proposal satisfied the relevant provisions of that clause.

3. the other provisions of SLEP that provide for exceptions to the minimum lot size requirements of cl 4.1 of SLEP, that is cll 4.2, and 4.2A to 4.2H, operate independently of each other, such that having elected to make its application under cl 4.2E of SLEP, the provisions of cll 4.2A through 4.2D and 4.2F through 4.2H, do not apply to the Applicant’s proposed development; and

4. the proposed subdivision of land satisfied the provisions within cl 4.2E(5) of SLEP, including the requirements of subcll (a) to (d) of that clause, which require that:

(a) the subdivision will not adversely affect the use of the surrounding land for agriculture, and

(b) the subdivision is necessary for the ongoing operation of the permissible use, and

(c) the subdivision will not cause or increase rural land uses conflict in the locality, and

(d) the subdivision is appropriate having regard to the natural and physical constraints affecting the land.

12. The Respondent contends that the Applicant’s Proposed Development should not be approved because:

1. the other provisions of SLEP that provide for exceptions to the minimum lot size requirements of cl 4.1 of SLEP, that is cll 4.2, and 4.2A to 4.2H, do not operate independently of each other, and where applicable must each be satisfied in order for the Applicant’s Proposed Development to be granted consent;

2. it is contrary to the provisions of cl 4.2 of SLEP;

3. it is contrary to the provisions of cl 4.2B of SLEP;

4. it fails to satisfy the provisions of subcl 4.2E(5), and in particular fails to satisfy subcll 4.2E(5)(b) and 4.2E(5)(c); and

5. it also does not satisfy the provisions of clause 9 of the Rural Lands SEPP, which in any case the Applicant no longer presses, and in relation to which Mr Mantei, for the Applicant, says there is no utility in the Court considering in the appeal.

13. Consequently, the principal questions for resolution in this appeal are:

1. do provisions of SLEP that provide for exceptions to the minimum lot size requirements of cl 4.1 of SLEP, that is cll 4.2, and 4.2A to 4.2H, operate independently of each other, or must each be satisfied in order for the Applicant’s Proposed Development to be granted consent?

2. does the Applicant’s the proposed subdivision of land satisfy the provisions of cl 4.2E(5) of SLEP, including the requirements of subcll (a) to (d) of that clause?

3. if required, is the Applicant’s Proposed Development consistent with the provisions of cl 4.2B of SLEP?

4. if required, is the Applicant’s Proposed Development consistent with the provisions of other clauses of SLEP that would permit subdivision of the Subject Site, including, for example, cl 4.2?

14. The Court’s consideration of these questions was assisted by the evidence of:

1. the Applicant, Mr Grant Clarke,

2. expert planners:

1. Mr Ian Sinclair, for the Applicant; and

2. Mr Elliott Weston, for the Respondent.

3. expert agronomists:

1. Mr Rob Harbourne, for the Applicant; and

2. Mr Michael Ryan, for the Respondent.

Do provisions of SLEP that provide for exceptions to the minimum lot size requirements of cl 4.1 of SLEP, that is cll 4.2, and 4.2A to 4.2H, operate independently of each other, or must each be satisfied in order for the Applicant’s Proposed Development to be granted consent?

15. The submissions of the parties on this question were summarised above at [8], [11] and [12].

16. Having considered the submissions of the parties on this question, I favour the submission of Mr Bradbury, and agree with him that the provisions of SLEP that provide for exceptions to the minimum lot size requirements of cl 4.1 of SLEP, and which are enunciated within cll 4.2, and cll 4.2A to 4.2H, do not operate such that an Applicant can select one pathway as the basis for securing an exemption to the minimum lot size provisions of cl 4.1, and, as a consequence, the set aside the requirements of the other clauses.

17. Mr Bradbury’s written submissions to the Court on this matter included the following statements, which I embrace:

“30. Clause 4.2B – where land is identified as “prime crop and pasture land”, it may only be subdivided if the consent authority is satisfied that each lot created by the subdivision will contain at least 10 ha of prime crop and pasture land.

31. Clause 4.2B is expressed to operate despite cl 4.1. It is not expressed to be subject to cll 4.2 or 4.2E (or any other provision). Neither is cl. 4.2E expressed to operate notwithstanding clause 4.2B. Each provision must therefore be read together.”

18. In my assessment there is nothing within the provisions of cl 4.2 or cll 4.2A-H that suggests that these provisions could or should be read independent of one another so that, as suggested by Mr Mantei, it would be open to the Applicant to choose a single one of the provisions and on that basis to set aside the provisions of the other clauses that provide exceptions to cl 4.1 of SLEP.

19. Rather it is my reading of these provisions that:

1. they address a variety of differing circumstances that may arise and that may provide the impetus for a landowner to seek consent for subdivision; and

2. each clause clearly states the land to which it applies and the circumstances in which its provisions may seek to be given effect.

20. Consequently, as concluded by Mr Bradbury at the hearing, each of the clauses has work to do, and I embrace that conclusion.

20. As a consequence of my findings above (at ([18] and [19]), and consistent with those findings, I will now address whether the Applicant’s proposed subdivision of land satisfies:

1. the provisions of cl 4.2E of SLEP, which the Applicant has identified as the exemption clause upon which it seeks to rely;

2. the provisions of cl 4.2B of SLEP, which can also provide for the subdivision of cop and pasture land; and

3. other relevant provisions of SLEP and the Rural Lands SEPP.

22. As noted above (see [11(2)]), I embrace the Applicant’s submission that there is no utility in the Court considering whether the proposal satisfies the relevant provisions cl 9 of SEPP Rural Lands.

Does the Applicant’s the proposed subdivision of land satisfied the provisions within cl 4.2E of SLEP, and in particular the jurisdictional prerequisites provided within subcll (5) of that clause?

23. The objective of cl 4.2E is provided above at [6(6)], and the clause applies to land that, inter alia, is zoned RU1, which is the zoning of the Subject Site.

24. In order to secure an approval for subdivision under cl 4.5E in this appeal:

1. the Applicant must satisfy the Court in terms of subcl 4.5E(3) that:

(a) the land will not be used for the purposes of a dwelling house or a dual occupancy; and

(b) the land will continue to be used for the same purpose for which it was lawfully used immediately before the subdivision.

2. the Court must be satisfied in terms of subcl 4.5E(5) that:

(a) the subdivision will not adversely affect the use of the surrounding land for agriculture, and

(b) the subdivision is necessary for the ongoing operation of the permissible use, and

(c) the subdivision will not cause or increase rural land uses conflict in the locality, and

(d) the subdivision is appropriate having regard to the natural and physical constraints affecting the land.

25. Mr Mantei, submits that:

1. the Applicant seeks consent for subdivision of the Subject Site relying on cl 4.2E of SLEP, the provisions of which were identified above at [6(6)];

2. by the operation of subcl 4.5E(6), the existing dwelling house on the Subject Site, does not offend the requirement of subcl 4.2E(3)(a) (see above at [24(1)];

3. consistent with the evidence of the planning experts, Mr Sinclair and Mr Weston, at the hearing, the current use of the Subject Site is best characterised as an animal training establishment, which is permissible use on land with a RU1 zoning, and constitutes a lawful use of the land for the purposes of subcl 4.5E(3)(b) of SLEP;

4. the current lawful use of the Subject Site would continue on both the lots that would result from the proposed subdivision of that land, as required under subcl 4.5E(3)(b) of SLEP;

5. the proposed subdivision of the Subject Site was necessary for the on-going operation of the permissible use, as required under subcl 4.2E(5)(b);

6. the proposed subdivision of the Subject Site would not cause or increase rural land uses conflicts in the locality.

26. Mr Bradbury, on behalf of the Respondent Council, opposes the Applicant’s proposed subdivision of the Subject Site, stating that:

1. while the Respondent agreed with the Applicant that:

1. the current use of the Subject Site was as confirmed by the expert planners and that it was a lawful use for the purposes of subcl 4.5E(3)(b) of SLEP; and

2. by the operation of subcl 4.5E(6), the existing dwelling house on the Subject Site, does not offend the requirement of subcl 4.2E(3)(a);

2. while it did not press that the provisions of subcll 4.2E(5)(a) and (d) were satisfied by the Applicant’s Proposed Development; and

3. the Respondent did not agree with the Applicant that the provisions of cl 4.2E(5)(b) and (c) had been satisfied, and given that, in its submissions, these had not been satisfied, the Court should refuse the Applicant’s Proposed Development.

27. Clauses 4.2E(5)(b) and (c) of SLEP requires that development consent must not be granted for the subdivision of land to which cl 4.2E applies, unless the consent authority is satisfied that:

1. the subdivision is necessary for the ongoing operation of the permissible use (cl 4.2E(5)(b)); and

2. the subdivision will not cause or increase rural land uses conflict in the locality (cl 4.2E(5)(c));.

28. The extent to which the Applicant’s Proposed Development satisfied these two matters was addressed by the expert agronomists and expert planners within their respective joint expert reports, tendered as evidence at the hearing, and during their oral evidence during the hearing. The Applicant Mr Clarke also provided evidence in relation to the necessity of the proposed subdivision for the ongoing operation of the permissible use on the Subject Site.

29. In relation to the question as to whether or not the subdivision is necessary for the ongoing operation of the permissible use:

1. Mr Clarke, in his affidavit to the Court, stated that the subdivision of land was necessary to facilitate succession planning within his family business so that his daughter could continue the family’s equestrian business on the proposed lot 62, initially under lease arrangements and ultimately through transfer of ownership of that lot. Mr Clarke also said that creation of the other lot under the proposed subdivision, referred to as proposed lot 61, and on which the current dwelling would be located, would be released from a need to be held as a security in relation to the family business;

2. Mr Ryan said that, in his opinion, the proposed subdivision was not necessary for the on-going operation of what he termed the “horse enterprise” because the principal reason for the proposed subdivision was to facilitate the succession planning of the business and the facilitation or Mr Clarke’s plans for retirement (see above at [(1)]), the splitting of the existing enterprise would not improve its profitability, and alternative options, including possible leasing of the proposed lot 62 lands, exist to continue the operation of the lawful use;

3. Mr Harborne said that, in his opinion, the proposed subdivision is required for the on-going operation of the “horse enterprise” because without the subdivision, investment in the development of the family business, including investment in infrastructure, would not be viable and nor would it take place;

4. Mr Weston said that, in his opinion, while he acknowledged the reasons for Mr Clarke seeking the proposed subdivision, his personal circumstances did not represent a planning purpose that would support the proposed subdivision;

5. Mr Sinclair said, in response to a question from the Respondent, that, in his opinion, the operation of the current use of the Subject Site could continue if Mr Clarke were not to retire.

6. Mr Bradbury, in closing submissions, for the Respondent said that:

1. the proposed subdivision of the land, while desired by the Applicant for personal reasons of succession and retirement planning, is not necessary for the on-going operation of the permissible use on the land;

2. the current permissible use of the Subject Site can continue, and could grow, on the Subject Site as it is currently configured;

3. the succession and retirement planning reasons offered by the Applicant for the proposed subdivision are not relevant planning reasons that the Court could take into account in reaching its decision in relation to the development application.

30. Having considered the evidence of the experts, and the submissions of the Parties in this matter:

1. I agree with the submission of Mr Bradbury (see above at [29(6)]), supported by the testimony of Mr Ryan (see above at [29(2)]), Mr Weston (see above at [29(4)]), and Mr Sinclair (see above at [29(5)]), that, while the subdivision may be desired by the Applicant for personal reasons of succession and retirement planning, the operation of the business could continue on the Subject Site without the subdivision, in a range of circumstances, and that there are no planning grounds that would prevent this;

2. I note that in making my finding above at [(1)], this is consistent with the interpretation by the Court of the word ‘necessary’ as it has been applied in similar context. In particular, I note:

1. the decision of Moore SC, as he was then in the matter of Davies v Penrith City Council [2013] NSWLEC 1141, in which the Senior Commissioner opined (at [118] to [120]):

“118 Whilst I accept that, in some fundamental terms, some matters may be "necessary" for a development (such as potable water supply and proper sanitation, for example, for a residence), it seems to me that these would, in any event, be taken into account in assessing the reasonableness of any proposal.

119 The present language, in my view, raises the risk - through the separation of necessity from reasonableness - of an anthropocentric interpretation of this element of the planning principle.

120 It is long established law that proper planning decisions are not made on such a basis. Development consents run with the land and proposals for consent are to be assessed in that light rather than by consideration of what might be "necessary" for any present or proposed occupants or the beneficiaries of any consent.”

2. the decision of Commissioner Moore in the matter of Maschewski v Murray Shire Council [2015] NSWLEC 1251, in which the Commissioner adopts a similar approach in stating (at [48]):

“…. The test is not about the personal circumstances of the applicant. It is to consider whether the development is necessary because the nature of the agricultural and rural industry land use lawfully occurring on the land. Having regard to the evidence, I cannot be satisfied that that land use requires the development…..”

31. For the reasons provided above (at [(1)]), I conclude that the proposed subdivision of the Subject Site is not necessary for the on-going operation of the permissible use on the Subject Site.

32. Consequently, I am not satisfied that the provisions of cl 4.2E(5)(b) have been met by the Applicant’s Proposed Development.

33. In relation to the question as to whether or not the subdivision would cause or increase rural land uses conflict in the locality:

1. the expert agronomists, Mr Harborne and Mr Ryan, agreed that the proposed subdivision would not adversely affect the use of surrounding land for agriculture and would not give rise to any conflict in relation to rural land use; and

2. the expert planners, Mr Sinclair and Mr Weston, within the supplementary joint report, agreed with the evidence of the expert agronomists, and noted that any conflict that may arise would only be in relation to rural residential land uses, rather than in relation to rural land uses, of which the latter is the test within cl 4.2E(5)(c) of SLEP.

34. Based on the evidence above at [29] and [33], and the having considered the submissions of the Parties on these points:

1. I am satisfied that the proposed subdivision of the Subject Site would not cause, or increase, rural uses conflicts in the locality;

2. I am not satisfied that the proposed subdivision is necessary for the ongoing operation of the permissible land use, that is as an animal training establishment for the purpose of breeding, keeping and training of horses, for the reasons provided above at [30];

3. Consequently, I am not satisfied that the pre-condition to the grant of consent within subcl 4.2E(5)(b) has been fulfilled.

4. Further, and while secondary to my principal reasons for this finding (see above at [(2)], I also note that Mr Clarke’s one purpose for the subdivision is to place the continuation of the lawful land use ultimately within the bounds of proposed lot 62, so that it need not continue within proposed lot 61. He would also seek to release proposed lot 61 from a need to be held as a security in relation to the family business, and therefore to separate it from the ongoing lawful use. As a consequence, I cannot be satisfied that the Subject Site (that is, both proposed lots 61 and 62) would continue to be used for the same purpose for which those proposed lots were lawfully used immediately before the subdivision, as is required under subcl 4.2E(3)(b).

35. In conclusion, I find that the Applicant’s Proposed Development does not comply with the provisions of both cll 4.5E(3)(b) and 4.5E(5)(b), for reasons provided above at [30] and [34], and so cannot be approved under the Applicant’s preferred assessment pathway under cl 4.2E of SLEP.

Is the Applicant’s Proposed Development consistent with the provisions of cl 4.2B of SLEP?

36. The provisions of cl 4.2B of SLEP were provided above at [12(3)], and the clause applies to land zoned RU1, which is the zoning of the Subject Site.

37. Under the provisions of cl 4.2B(2):

(2) Despite clause 4.1, land identified as prime crop and pasture land in a zone to which this clause applies may only be subdivided if the consent authority is satisfied that each lot created by the subdivision will contain at least 10 hectares of prime crop and pasture land

38. The Subject Site is land identified as prime crop and pasture land (see above at [6(4)(a)]), and it is located in a zone to which cl 4.2B applies.

39. However, proposed lot 62 would have an area of less than 10 ha in total, and so the proposed subdivision of land cannot be approved under the provisions of cl 4.2B of SLEP.

Is the Applicant’s Proposed Development consistent with the provisions of other clauses of SLEP that would permit subdivision of the Subject Site, including, for example, cl 4.2?

40. The objective of cl 4.2 of SLEP is provided above at [6(3)] and the clause applies to land zoned RU1, which is the Zoning of the Subject Site.

41. While the clause is facilitative of the subdivision of land for the purpose of primary production, subcl 4.2(4) states that:

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

42. As the existing dwelling on the Subject Site would be situated on a lot created by the proposed subdivision, that being proposed lot 61, the Applicant’s proposed subdivision of land cannot be approved under the provisions of cl 4.2 of SLEP.

43. Given my previous findings I do not consider that the Applicant’s appeal merits further consideration of other provisions of SLEP that provide exceptions to the minimum lot size development standards in cl 4.1 of SLEP.

Conclusion

44. Based on my consideration above, and the reasons provided above at [18], [30], [33], [39], [42], [43] I find that:

1. there is nothing within the provisions of cl 4.2 or cll 4.2A-H that suggests that these provisions could or should be read independent of one another;

2. each of the clauses above at [(1)] has work to do in the assessment of the Applicant’s Development Proposal;

3. I am not satisfied that the provisions of cl 4.2E(5)(b) have been met by the Applicant’s Proposed Development;

4. I am satisfied that the proposed subdivision of the Subject Site would not cause, or increase, rural uses conflicts in the locality;

5. proposed lot 62 would have an area of less than 10 ha in total, and so the proposed subdivision of land cannot be approved under the provisions of cl 4.2B of SLEP consent must not be granted to the Applicant’s Proposed Development;

6. the Applicant’s proposed subdivision of land cannot be approved under the provisions of cl 4.2 of SLEP; and

7. given my previous findings, I do not consider that the Applicant’s appeal merits further consideration of other provisions of SLEP that provide exceptions to the minimum lot size development standards in cl 4.1 of SLEP.

45. Based on my findings at [44] I conclude that the Applicant’s Proposed Development is not in the public interest, and his appeal should be dismissed.

Orders

46. The orders of the Court are:

1. The appeal is dismissed.

2. Development application DA2018/1318 for the subdivision of one lot into two lots for the commercial purpose of an animal (equine) breeding and training facility at 19 Bong Bong Road, Berry, is determined by refusal.

3. The exhibits are returned, with the exception of Exhibits E, H and 1.

……………………

Michael Chilcott

Commissioner of the Court

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Decision last updated: 28 February 2020