Cottle, B v Goulburn Mulwaree Council and the Director-General of the Department of Planning

[2007] NSWLEC 9

Land and Environment Court

of New South Wales

CITATION:	Cottle, B v Goulburn Mulwaree Council and the Director-General of the Department of Planning [2007] NSWLEC 9
PARTIES:	APPLICANT: Ben Cottle FIRST RESPONDENT: Goulburn Mulwaree Council SECOND RESPONDENT: Director-General of the Department of Planning
FILE NUMBER(S):	10645 of 2006
CORAM:	Watts C at 1
KEY ISSUES:	Development Application - Subdivision :- Whether the land may be economically serviced by a reticulated electricity supply and if so whether a State Environmental Planning Policy No 1 objection to cl 12 of the MLEP should be upheld.
LEGISLATION CITED:	Mulwaree Local Environmental Plan 1995, (MLEP) Development Control Plan No 6 - Rural Subdivision for Dwelling Houses, (DCP6) State Environmental Planning Policy No 1 - Development Standards, (SEPP1) State Environmental Planning Policy No 58 - Protecting Sydney's Water Supply, (SEPP58) Environmental Planning and Assessment Act 1979, ss79C and 97
CASES CITED:	Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported; Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001
DATES OF HEARING:	27 November 2006
DATE OF JUDGMENT:	10 January 2007
LEGAL REPRESENTATIVES:	APPLICANT: Ms H Irish, barrister FIRST RESPONDENT: Mr A Bradbury, solicitor SOLICITORS: Minter Ellison Lawyers SECOND RESPONDENT Ms C Hanson, General Counsel, Legal Services Branch, Department of Planning

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

10 January 2007

10645 of 2006 - Ben Cottle v Goulburn Mulwaree Council and the Director-General of the Department of Planning

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Goulburn Mulwaree Council (the council) to refuse an integrated development application to originally subdivide into nine (9) lots, varying in area from 10 ha to 44 ha land at Lots 157, 172, 176, 191 and 240, DP750053, Parish of Uringalla, Inverary and Canyonleigh Roads, Paddys River, Marulan.

2 At the hearing the applicant amended the proposal and now seeks to subdivide the land into six (6) lots under cl 12(6) of the MLEP after making an objection against the standards.

3 Apparently, at the request of the parties the Court undertook no site inspection.

4 I have concluded that the consent orders now sought by the applicant and respondents cannot be supported.

The land

5 The land is situated between Inverary and Canyonleigh Roads about 4 km north of the Hume highway near the town of Wingello.

6 The partially cleared, predominantly grazing land, with a single residence has an area of 214ha. The eastern boundary of the land abuts Paddys River, and nearby there is similar grazing land.

Relevant planning controls

Mulwaree Local Environmental Plan 1995, (MLEP)

7 Under the provisions of the MLEP the land is zoned Rural 1(a). The land is not identified as prime crop and pastureland and the subdivision of land within Zone 1(a) is controlled by cll 12 and 13 of the MLEP, and the proposal would be permissible with consent if the standards in cl 12 of the planning instrument are successfully addressed. The aims of the MLEP are found in cl 2:

(a) to encourage the proper management, development and conservation of natural and man-made resources within the Mulwaree area by protecting, enhancing, and conserving:
(i) prime crop and pasture land,
(ii) timber, mineral, soil, water and other natural resources,
(iii) places of significance for nature conservation,
(iv) features and places of high scenic or recreational value, and
(v) places and buildings of archaeological or heritage significance, including aboriginal relics and places, and
(b) the replace the existing planning controls with a single local environmental plan to help facilitate growth and development of the Mulwaree area in a manner which is consistent with the objectives specified in paragraph (a) and which:
(i) minimises the cost to the community of fragmented and isolated development of rural land,
(ii) facilitates the efficient and effective delivery of services and facilities,
(iii) facilitates a range of residential and employment opportunities in accordance with demand,
(iv) facilitates farm adjustments,
(v) ensures that the efficiency of arterial roads is not adversely affected by development on adjacent land,
(vi) identifies suitable localities and standards for the development of rural small holdings,
(vii) provides for the protection and enhancement of heritage items within the towns, villages and other localities within the Mulwaree area, and
(viii) facilitates the protection of the Warragamba and Shoalhaven Catchment
(c) to afford protection to the environmental heritage within the Mulwaree area by:
(i) conservation of the environmental heritage,
(ii) integration of heritage conservation into the planning and development control processes,
(iii) providing for public involvement in matters relating to the conservation of the environmental heritage, and
(iv) ensuring that development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage items and their settings.

8 In addition, cl 9 of the MLEP provides the 1(a) zone objectives:

(a) promoting, enhancing and conserving:
(i) agricultural land, particularly prime crop and pasture land, in a manner which sustains its efficient and effective agricultural production potential,
(ii) soil stability by controlling and locating development in accordance with soil capability, as identified by the Department of Conservation and Land Management,
(iii) forests of existing and potential commercial value for timber production,
(iv) valuable deposits of minerals, coal, petroleum, and extractive materials by controlling the location of development for other purposes in order to ensure the efficient extraction of those deposits,
(v) trees and other vegetation in sensitive areas and in any place where the conservation of the vegetation is significant to the protection of scenic amenity or natural wildlife habitat or is likely to control or contribute to the control of land degradation,
(vi) water resources and water catchment areas for use in the public interest,
(vii) localities of significance for nature conservation, including localities with rare plants, wetlands, permanent watercourses and significant wildlife habitat, and
(viii) places and buildings of archaeological or heritage significance, including aboriginal relics and places,
(b) minimising the costs to the community of:
(i) fragmented and isolated development of rural land, and
(ii) providing, extending and maintaining public amenities and services, and
(c) providing land for future urban development, for rural residential development and for development for other non-agricultural purposes, in accordance with the need for that development, and subject to the capability of the land and its importance in terms of the other objectives of this zone.

9 Clause 10 provides general considerations for development.

10 Clause 12 of the MLEP relates to subdivision of land for the purposes of dwelling houses within Zone No 1(a) and states:

(a) where the area of the existing holding is less than 80ha but not less than 50ha - 1,
(b) where the area of the existing holding is not less than 80ha but not greater than 120ha - 2, or
(c) where the area of the existing holding is not less than 120ha - 3, and each allotment created must have an area of not less than 10ha.

(5) The total number of allotments referred to in subclause (4) includes any allotments lawfully created or approved by the Council before this plan took effect under clause 22(5) of the Mulwaree Planning Scheme Ordinance.
(6) Notwithstanding subclause (2), (3) and (4), the Council shall not consent to the creation of an allotment for the purpose of a dwelling-house if the allotment has an area of less than 100ha and is within an area identified on Sheet 6 of the map as land that cannot be economically serviced by a reticulated electricity supply.
(7) …

11 The existing holding is 214ha in area and the applicant would be entitled under cl 12(4)(c) of the MLEP to three concessional lots. These concessional lots could not have an area of less than 10ha under that clause. The land is identified on Sheet 6 of the MLEP as “…land that cannot be economically serviced by a reticulated electricity supply”.

Other planning controls

12 Other planning controls that are also relevant are:

(a) Development Control Plan No 6 - Rural Subdivision for Dwelling Houses, (DCP6);

(b) State Environmental Planning Policy No 1 - Development Standards, (SEPP1); and

(c) State Environmental Planning Policy No 58 - Protecting Sydney's Water Supply, (SEPP58).

13 The proposed development is integrated development under s 91 of the Environmental Planning and Assessment Act 1979, as it required, authorisation under s 100B of the Rural Fires Act 1997, (RF Act); and permit under Part 3A of the Rivers and Foreshores Improvement Act 1948, (RFI Act).

14 The NSW Rural Fire Services provided an authority as required under s 100B of the RF Act and the Department of Natural Resources provided its General Terms of Approval for work under Part 3A of the RFI Act.

15 In accordance with cl 11 of SEPP58, the concurrence of the Chief Executive of the Sydney Catchment Authority was also required.

16 The Sydney Catchment Authority did not provide this concurrence as the Council advised it that the Department of Planning had not provided concurrence for the SEPP1 variation to the standard of the MLEP.

The proposal and its history

17 Integrated development application No 454/0405 was lodged with the respondent council on 16 February 2005 to subdivide the land into nine (9) lots.

18 The application was accompanied by:

· Statement of Environmental Effects;

· Bushfire Risk Assessment and Protection Measures;

· Cultural Heritage Study and Archaeological Assessment; and

· Environmental Assessment (Flora and Fauna).

19 On 15 April 2005 the applicant requested a concessional lot search be made over Portion 240 and Lot 2 DP750053 relying upon cl 12(3) and (4) of the MLEP.

20 On 15 June 2005, the council received subdivision plans from the applicant for a proposed seven (7)-lot subdivision on the same property. This subdivision application proposed that the lots have areas of Lot 1: 10ha; Lot 2: 47.8ha; Lot 3: 19.5ha; Lot 4: 42.5ha; Lot 5: 11.5ha; Lot 6: 44.4ha and Lot 7: 40ha. This subdivision application followed clarification of the applicant's concessional lot entitlement by the council. The plans describing this proposal were prepared by Campbell and Anderson, Consulting Surveyors Pty Limited, Drawing No 16769-1, Issue B, ‘2 concessional lots deleted’ and dated 31 May 2005.

21 On 17 January 2006, the applicant lodged an SEPP1 objection to the provisions of cl 12(6) of the MLEP on the basis that:

(a) the provisions of cl 12(6) relating to the minimum lot area for subdivision of land identified on Sheet 6 of the map as land that cannot be economically serviced by a reticulated electricity supply is a development standard within the meaning of State Environmental Planning Policy No 1;
(b) the underlying objective or purpose of the development standard is to allow the subdivision of land for the purpose of dwelling-houses to occur into lots less than 100ha, but not less than 1ha (see cl 12(4) of the MLEP) only where those lots can be economically serviced by reticulated electricity supply;
(c) the proposed subdivision is consistent with the aims of SEPP1 because:
(i) the proposed lots can be economically serviced by a reticulated electricity supply;
(ii) strict compliance with the 100ha development standard in circumstances where there is an ability to economically provide a reticulated electricity supply would be unreasonable or unnecessary in the circumstances;
(iii) requiring strict compliance with the 100ha development standard in circumstances where there is an ability to economically provide a reticulated electricity supply to the proposed lots would hinder the attainment of the objects of the Act.

22 The integrated development application has been modified a number of times, and most recently on 7 November 2006. The applicant now seeks a 6-lot subdivision with lots of the following sizes:

(a) lot 1- 10ha;

(b) lot 2 - 48ha;

(c) lot 3 - 40ha;

(d) lot 4 - 42.5ha;

(e) lot 5 - 11.5ha; and

(f) lot 6 - 65ha.

23 This further amended subdivision layout plan prepared by CPC of Goulburn dated 7 November 2006, Edition 1, Plan No 15155-A-061107/IM [Note: Exhibit B]. An SEPP1 objection prepared by Mr B Goldsmith, BT Goldsmith Planning Services [Note: Exhibit H] was filed in respect of the latest amendment on 22 December 2006.

Notification

24 On 21 February 2005, the original application was notified to nearby owners and occupants and the council received one submission from an adjoining property owner on 1 March 2005.

25 On 23 February 2005, the council referred the application to the Rural Fire Service requesting authorisation under s 100B of the RF Act, and Sydney Catchment Authority (SCA) requesting the concurrence of the Chief Executive.

26 On 2 March 2005, the SCA requested further information from the council including a copy of the application and owners details/consent details. This information was provided on 4 March 2006.

27 On 11 March 2005, the SCA sought further information from the council including a water cycle management study to address the matters in cl 11(4) of SEPP58. This request was forwarded to the applicant on 14 March 2005 and the applicant provided a water cycle management plan and a copy forwarded to SCA on 27 May 2005.

28 On 17 March 2005, the council forwarded a copy of the subdivision plan and associated documentation to Wingecarribee Council for comments on particular road requirements as access to proposed Lot 9 was through Inverary Road, located within that council's local government area.

29 The Rural Fire Service provided its authority for the proposal in a letter dated 18 March 2005. Between 22 March 2005 and 27 May 2005, the council and applicant exchanged correspondence in relation to the applicant’s entitlement to concessional lots.

30 On 15 June 2005, the council received the amended application from the applicant for a seven (7)-lot subdivision.

31 On 24 June 2005, the SCA wrote to the council requesting additional information in relation to the integrated development application. This request was forwarded to the applicant on 27 June 2005 and a response was received on 28 July 2005 and forwarded to the SCA on 3 August 2005.

32 On 3 August 2005, the council also provided copies of the amended application to the SCA, NSW Rural Fire Service and Wingecarribee Council. On the same day, the adjacent landholder who objected to the application was provided with a copy of the amended application.

33 On 9 August 2005, the SCA requested further information in relation to the amended application. The council forwarded the requested information to the SCA on 15 August 2005.

34 On 15 August 2005, the council referred the amended application to the Department of Infrastructure, Planning and Natural Resources.

35 On 18 August 2005, the NSW Rural Fire Service indicated it would grant a Bush Fire Safety Authority subject to a number of conditions and that the response was deemed to be the Bush Fire Safety Authority as required under s 100B of the RF Act.

36 On 30 August 2005, the council requested that the applicant provide a Preliminary Aboriginal Archaeological Investigation.

37 On 22 September 2005, the council received a letter from the Department of Natural Resources, which attached a copy of the Department's General Terms of Approval.

38 On 21 November 2005, the council received additional information from the applicant in partial response to the SCA request for further information of 18 November 2005. This information was provided to the SCA on 13 December 2005. Council also provided further information to the SCA on 15 December 2005 in response to its request for further information.

39 On 21 December 2005, the council advised the applicant that an objection under SEPP1 was required to cl 12(6) of the WLEP, because the proposed lots are identified as being within an area that cannot be economically serviced by reticulated electricity supply.

40 Also the proposed lots would not comply with the 100ha minimum lot size development standard contained in cl 12(6) of the WLEP.

41 The applicant later provided the council with a SEPP1 objection. The council forwarded the variation application to the Department of Planning on 7 February 2006.

42 On 24 March 2006, the council received correspondence from the applicant together with amended plans (Drawing 16769 - P 1 Issue B and 16769 - T 1 Issue B) relating to the access arrangement to the proposed subdivision.

43 On 30 March 2006, the council referred these amended plans to the SCA, NSW Rural Fire Services, Department of Lands, Department of Planning, Department of Natural Resources and the Hawkesbury Nepean Catchment Management Authority.

44 On 7 April 2006, the applicant lodged further amended plans (drawing 16769 -1 Issue C) with the council to address cl 19(5) of the MLEP regarding access arrangements to individual lots. These amendments were minimal and were not referred to any external agencies for comment.

45 On 26 April 2006, the council received correspondence from the Department of Natural Resources confirming that the changes did not affect the original General Terms of Approval issued on 22 September 2005.

46 On 11 May 2006, the NSW Rural Fire Service confirmed that based on the amended plans it was prepared to grant a Bush Fire Safety Authority subject to a number of conditions.

47 On 29 May 2006, the council received correspondence from the Department of Planning refusing to grant concurrence to the SEPP1 variation sought by the applicant.

48 The council did not immediately receive a response from the SCA or the Hawkesbury Nepean Catchment Management Authority.

The council’s decision

49 By notice dated 29 May 2006 the Director General of the Department of Planning refused concurrence to a SEPP1 objection in respect of the subdivision application to the minimum lot size for the creation of an allotment for the purposes of a dwelling, cl 12(6) of the MLEP for the following reasons:

· The applicant has not adequately demonstrated that the development standard is unreasonable or unnecessary in the circumstances.

· The use of SEPP1 is not considered to be appropriate for this proposal as the proposed sites are substantially below the minimum area development standard.

· That the application would set an undesirable precedent for the creation of undersized allotment for the purpose of a dwelling-house in a 1(a) General Rural zone.

· In order for planning to be effective, it is necessary to apply consistent and transparent processes. Decisions which allow development that is inconsistent with the development standard can lead to cumulative impacts that undermine those standards and objectives of the zone.

50 By notice dated 21 June 2006 the council refused the application for the following reason:

That Development Consent be refused under delegation for Development Application No 454/0405/DA for a rural subdivision at Inverary and Canyonleigh Road, Marulan on the basis that concurrence has not been received from the Department of Planning for the SEPP1 variation to Mulwaree LEP 1995 .

51 However, by undated and unsigned letter from the Department of Planning Mr G Towers, Senior Planner on behalf of the Director General purported to grant concurrence to the amended subdivision proposal for six lots referenced in Drawing No 15155-A-061107/1M. This letter refers to correspondence dated 22 November 2006, and the amended SEPP1 objection [Note Exhibit H], filed 22 December 2006, so presumably must have been written after 22 December 2006.

The hearing

52 The appeal was filed on 22 July 2006.

53 At the hearing the Court received a joint statement by Messrs G Towers and B Goldsmith that came to the Court, [Note: Exhibit D]. Mr B R Cottle, gave evidence as to the state of repair of what was described by a neighbour as an ‘active’ airstrip.

54 Mrs G Richards objected to the subdivision proposal by letters dated 24 November 2006 in Exhibit 4 and 11 December 2006 (faxed to the Court by the council's solicitors on 18 December 2006. She was concerned that the proposal would be likely to interfere with the ‘active’ airstrip on her property.

55 Mr C Berry, Director, Planning and Community Services, Goulburn Mulwaree Council prepared the statement of basic facts on the seven-lot proposal.

The issues

56 On 1 November 2006 the legal counsel for the second respondent filed a statement of issues.

Cumulative impact

Particulars

Public benefit in planning controls

Particulars

Non-compliance with draft Local Environmental Plan

Particulars

(i) the Second Respondent has prepared a draft LEP in the Standard LEP Template form (the draft LEP). The subject land is identified within a RU2 Rural Landscape Zone which has a minimum lot size of 100 hectares;
(ii) the draft LEP adopts the standard LEP template clause 23 which generally limits variations of the standard to 10% within the RU2 Zone;
(iii) the proposed development seeks to vary the development standard by creating a number of allotments that have an area less than 90% of the minimum lot size specified for that zone; and
(iv) the Second Respondent will shortly be seeking a section 65 certificate from the Department to exhibit this draft LEP.

57 The salient issue is whether the land might be economically serviced by a reticulated electricity supply and if so whether the State Environmental Planning Policy No 1 objection to the 100ha development standard may be upheld.

The evidence and findings

58 Although there were many reasons given by the council for refusing the original application, and the issues are extensive, by the time the matter came to Court the parties had satisfied themselves that the application should be approved and sought consent orders. As it is integrated development it is not a matter that is amenable to a s 82A review. The only evidence before the Court was that provided by Messrs Goldsmith and Towers, and both were satisfied the application was worthy of approval.

Clause 12 of the MLEP and whether the land might be economically serviced by a reticulated electricity supply

59 There was no dispute between the parties that four of the five existing lots could be economically serviced by a reticulated electricity supply. Also, there was no dispute that the proposed six-lot subdivision of the land could be also serviced by reticulated electricity. This evidence was based on Integral Energy’s letter dated 9 January 2006 [Note: Tab 1.36 of Exhibit 1] that high voltage supply is currently available to four of the five existing lots, and it does not foresee any problems in power being available to the new lots proposed to be subdivided.

60 Whether it would be economically provided is a matter for the applicant. Presumably, it must be assumed, that as the applicant is pursuing the appeal that the reticulation would be economic. I am satisfied that the specific requirements of cl 12(6) of the MLEP for an economic supply of reticulated electricity have been met. That would enable the applicant to apply for a two-lot subdivision as the minimum allotment size is 100ha under cl 12(6) of the MLEP and unless a SEPP1 objection was upheld that would be the maximum number of allotments permissible under that clause.

State Environmental Planning Policy No 1 objection

61 A SEPP1 objection would need to be upheld, in order for the proposal to be approved, as it would contravene the minimum 100ha allotment development standard in cl 12 of the MLEP. In order to achieve this, the objection would be required to address the totality of the restricting planning regime under cl 12 not just subclause 6.

62 I have considered the SEPP1 objection filed by the applicant on 22 December 2006 [Note: Exhibit H] under cl 12 of the MLEP in the light of the decision of his Honour Justice Lloyd in Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001 paras 22 – 26. His Honour at para 26 stated that in applying the principles of Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported):

…it seems to me that SEPP1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection well founded? In relation to the fourth question, it seems to me that one must look to see whether a development, which complies, with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case.

63 Firstly, the parties agree that the minimum allotment requirements of cl 12 are a development standard.

64 Secondly, in the revised SEPP1 objection the applicant identified the underlying objective of the standard as being to allow the subdivision of land for the purpose of dwelling houses where the land is less than 100ha, but not less than 10ha, but only where those lots can be economically serviced by a reticulated electricity supply. However, I am satisfied that the aims in cl 2 and the zone objectives in cl 9 of the MLEP must also be taken into account in determining the underlying objective of the restricting planning regime. These are set out above in paras 7 and 8 above. Also, it seems that the applicant has confused the concessional allotments regime in cl 12(3), (4) and (5) with the general development standard of 40ha under cl 12(2) and 100ha under cl 12(6).

65 The applicant maintained that the proposed subdivision would be consistent with the objects of the Act, in particular encouraging the promotion and co-ordination of the orderly and economic development and use of land, for the following reasons:

“I wish to advise the high voltage supply is currently available to four of the existing five lots and I do not foresee any problems in power to being available to the new lots”.
It is apparent from the above correspondence that the proposed lots can be economically serviced by a reticulated electricity supply and thereby not offend the underlying purpose or object of the development standard.

66 The applicant’s SEPP1 objection does not address the underlying purpose of the 100ha development standard. The fact that the land might be economically provided with a reticulated electricity supply only allows for consideration under subclause 6. The present objection is insufficient to determine whether the 100ha standard is unreasonable or unnecessary in the circumstances of the case.

67 The objection under SEPP1 to the development standard in cl 12 of the MLEP is not well founded as it does not address the failure of the subdivision application to comply with the 100ha development standard under cl 12(6) of the MLEP and it does not address the 40ha development standard under cl12(2), which is the development standard which applies to other land within the Rural 1(a) zone. The proposal would subdivide land into allotments ranging in size from 10ha in the case of Lot 1, up to 65ha in the case of Lot 6, in a zone that requires a minimum allotment size of 100ha or at least 40ha. The existing holding has a river frontage and despite being not noted as prime crop and pastureland has some value for agricultural purposes. I understand that it is presently being used for grazing.

68 I am satisfied that the subdivision of land into lots that are non-complying would be contrary to the general objectives of the MLEP as set out in cl 2 of the MLEP and inconsistent with the underlying objectives of the 1(a) zone.

69 The proposal would not be located in the vicinity of an existing village or is it zoned to permit rural small holding development and as such would be likely to result in the isolated and fragmented development of existing agricultural land.

70 The proposal would not be located within the vicinity of an existing village and would not encourage the efficient and effective delivery of public services, amenities and facilities.

71 The proposal would be likely to fragment existing rural land for dwelling purposes, does not facilitate farm adjustments and is not in an area identified for the development of rural smallholdings.

72 Approval of the proposed subdivision application would create an undesirable precedent or expectation for the approval of subdivisions on undersized allotments planning controls adopted by cl 12 of the in the Wingello locality and within the Rural 1(a) zones under the MLEP.

73 Thirdly, compliance with the development standards of 40ha or 100ha would be consistent with the aims of SEPP1. Compliance with these development standards would not tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979. There are no exceptional circumstances applying to the proposed development that would justify non-compliance with the development standards.

74 Fourthly, compliance with the development standard is not unreasonable or unnecessary in the circumstances of the case. If the land were to comply with the development standard of 100ha only two allotments would be created out of the existing holding and this presumably would be likely to better maintain the land for agricultural purposes.

75 Fifthly, I am satisfied that the objection is not well founded.

76 I refuse the application for reason that the SEPP1 objection is not well founded.

Nearby airstrip

77 Ms Irish for the applicant submitted that the Court would not decline to make the consent orders sought by the applicant and the council and not opposed by the Director-General by reason of the objections of Mrs G Richards.

78 Mr Cottle, the applicant, gave evidence regarding recent photographs taken by him of the airstrip. It was his evidence that the airstrip was not in a reasonable state of repair to receive aircraft. His photos of the airstrip became Exhibit G.

79 Mr Irish submitted that having regard to Mrs Richards’ second letter, dated 11 December 2006, Mr Cottle’s evidence and photographs, and the absence of any evidence from the council that the airstrip is even lawful, the Court would not be satisfied that the airstrip is lawful, or that it is being used, or that its existence or any use of it would prevent consent being granted to the proposed subdivision.

80 The council did not give any evidence as to the use of the airstrip and in the absence of that evidence, I must conclude that it would be inappropriate to refuse the application for reason of the presence of the airstrip or to impose conditions on the consent to limit to 10m, the mature height of trees on the subject land. On the evidence before me, I would not refuse the application for reason of there being an airstrip nearby.

81 However, for reason that the SEPP1 objection to the restricting planning regime has not be successfully made out, the appeal is dismissed.

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

2. The State Environmental Planning Policy No 1 objection to the development standards in cl 12 of the Mulwaree Local Environmental Plan 1995 is not upheld.

3. Integrated development application No 454/0405 lodged with the respondent council on 16 February 2005 to subdivide the land into nine lots (now amended to six) at Lots 157, 172, 176, 191 and 240, DP750053, Parish of Uringalla (Inverary and Canyonleigh Road, Paddys River), Marulan, is refused consent.

4. The exhibits except for Exhibits A, B, C and 2 are returned.

S J Watts

Commissioner of the Court

sw