Hood Rural Resources Pty Ltd v Bathurst Regional Council - [2009] NSWLEC 1366

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Hood Rural Resources Pty Ltd v Bathurst Regional Council [2009] NSWLEC 1366

PARTIES:
APPLICANT
Hood Rural Resources Pty Ltd
RESPONDENT
Bathurst Regional Council

FILE NUMBER(S): 10123 of 2009

CORAM: Pearson C - Fakes C

KEY ISSUES: DEVELOPMENT APPLICATION :- Subdivision
State Environmental Planning Policy No 1 Development Standards

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Community Land Development Act 1989
Native Vegetation Act 2003
Real Property Act 1900
Conveyancing Act 1919
State Environmental Planning Policy No 1-Development Standards
State Environmental Planning Policy No 44- Koala Habitat Protection
State Environmental Planning Policy (Rural Lands) 2008
Bathurst Regional (Interim) Local Environmental Plan 2005
Interim Development Order No 1 - Shire of Evans
Evans Local Environmental Plan No 11
Bathurst Regional Council Development Control Plan - Mount Haven Estate

CASES CITED: Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138
BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399
Matic v Mid Western Regional Council [2008] NSWLEC 113
Lyne v Moree Plains Shire Council (1999) 110 LGERA 120
North Sydney Council v Ligon 302 Pty Ltd (No 2) (1996) 93 LGERA 23
Rutland v Shoalhaven City Council (1997) 94 LGERA 370
Sealark Pty Ltd v Shoalhaven City Council (2000) 109 LGERA 263
Sealark Pty Ltd v Shoalhaven City Council [2002] NSWCA 39
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195
Wehbe v Pittwater Council (2007) 156 LGERA 446
Wingecaribee Shire Council v Pancho Properties Pty Ltd (2001) 117 LGERA 104
Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79
Zhang v Canterbury City Council (2001) 51 NSWLR 589

DATES OF HEARING: 19, 20, 31 August 2009

DATE OF JUDGMENT:
11 November 2009

LEGAL REPRESENTATIVES: APPLICANT
Mr I Hemmings, barrister
Instructed by Mr T Cork, McPhee Kelshaw
RESPONDENT
Mr P Clay, barrister
Instructed by Mr P Crennan, McIntosh, McPhillamy & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pearson C with Fakes C

11 November 2009

10123 of 2009 Hood Rural Resources Pty Ltd v Bathurst Regional Council
JUDGMENT

1 COMMISSIONERS: This is an appeal against the refusal by the Bathurst Regional Council (the Council) of development application 2008/0211 for the subdivision into five lots of Lot 46 DP 270159, Diamond Swamp Road, Meadow Flat (the site).

2 The issues between the parties are whether the Court has power to grant approval to the proposed subdivision, having regard to cl31 of the Bathurst Regional (Interim) Local Environmental Plan 2005, and s78A of the Environmental Planning and Assessment Act 1979 (the Act); whether an objection under State Environmental Planning Policy No 1 Development Standards is required or would be well founded; whether the proposed subdivision is contrary to Development Control Plan – Mount Haven; whether the proposal complies with the applicable Community Management Statement; assessment of the impact on koalas and threatened species; whether consent should be granted having regard to a draft Local Environmental Plan under preparation; and whether the development if approved would be contrary to the terms of a prior existing development consent.

The site and its locality

3 The site is within the Mount Haven Estate, a rural residential estate established under the provisions of the Community Land Development Act 1989 (the CLD Act), approximately 35 kilometres east of Bathurst. The site has an area of approximately 503.1 ha, and is a mix of clear paddock and native vegetation. The site is bounded to the east by Diamond Swamp Creek, and to the west by Eusdale Creek. To the west of the site are part of Sunny Corner State Forest and Eusdale Nature Reserve. Land to the east and south of the site is a mix of open farming and grazing country interspersed with some forested and open woodland country.

4 The proposed lots are classified as bush fire prone, and an application was made for a bush fire safety authority as required under the Rural Fires Act 1997. On 8 April 2009 the Rural Fire Service advised its general terms of approval, noting that the approval was for the subdivision only and that any further development for class 1, 2 or 3 buildings would need to be subject to a separate application.

The proposal

5 The Mount Haven Estate has been developed since 1997 as a community title rural residential estate comprising 48 rural residential lots, a number of community lots, and a “farm lot” (the community scheme). The application was for the subdivision of the “farm lot” into five lots, with the following areas:

Lot 60 100.7ha

Lot 61 100ha

Lot 62 101.5ha

Lot 63 100ha

Lot 64 100ha

6 The location of the proposed lots is shown on the plan at Annexure A. Access to the proposed lots is to be by way of the private access roads which are community land within the Mount Haven Estate. The application was refused on 27 February 2008 on the basis that it was contrary to cl31(2) of the Bathurst Regional Interim Local Environmental Plan 2005, and contrary to the aims and objectives of the Development Control Plan – Mount Haven.

Planning controls

7 The site is zoned part 1(e) and part 1(f) under the Bathurst Regional (Interim) Local Environmental Plan 2005 (BRILEP 2005) made on 13 April 2006. Proposed lots 60, 61, and 63 include land zoned 1(e) and 1(f); proposed lots 62 and 64 are in the 1(e) zone.

8 The aims of the BRILEP 2005 are:

2 Aims of plan

(1) The aims of this plan are as follows:

(a) to provide interim or transitional planning controls for the local government area of Bathurst Regional,

(b) to facilitate the orderly and economic development of land,

(c) to promote the well-being of the community of Bathurst,

(d) to promote and strengthen the role of Bathurst as a regional centre,

(e) to enhance the environmental qualities of the area,

(f) to allow detailed provisions to be made to control development by means of development control plans.

9 Clause 6(3) of the BRILEP 2005 provides:

(3) Consent must not be granted to the carrying out of development within a particular zone unless the consent authority has taken the objects of the zone into account and:

(a) is satisfied that the proposed development is consistent with one or more of those objects, or

(b) if the proposed development is development of the kind that is identified by this plan as usually not consistent with those objects—is satisfied that, in the particular circumstances of the case, it is appropriate that the proposed development be carried out.

10 The objectives of zone 1(e) Outer Rural Zone are:

1 Objectives of zone

(1) The objectives of the zone are as follows:

(a) to support and maintain the continued viability of agricultural development in rural lands located in the outer rural areas of the local government area of Bathurst

Regional,

(b) to enable the carrying out of development that is appropriate for broad acre productive land used for grazing and cropping,

(c) to protect and conserve the scenic environment by controlling the location of buildings and materials used, particularly in respect of development adjacent to a major road or located within a scenic protection area or within an identified remnant bushland area,

(d) to protect and conserve valuable deposits of minerals, coal, petroleum and extractive materials by controlling the location of development to enable the efficient extraction of those deposits.

11 The objectives of zone 1(f) Special Rural Small Holdings Zone are:

1 Objectives of zone

(1) The objectives of the zone are as follows:

(a) to promote development of the land for rural residential or hobby farm development,

(b) to ensure that lots created are of an appropriate area and size that enables the provision of an adequate water supply, enables effective disposal of domestic waste and does not adversely affect water quality,

(c) to ensure that development is sensitive to the environmental characteristics of the land,

(d) to minimise the cost to the community of providing, extending and maintaining public services and amenities,

(e) to ensure that rural small holdings do not adversely impact on agricultural activities in the locality,

(f) to permit development for a range of purposes that are compatible with the environmental capabilities of the land and that are unlikely to adversely affect land water quality for other development in the vicinity or create unanticipated demands for service infrastructure.

12 Clause 27 provides:

2

7 Subdivision—rural zones

(1) The consent authority must not consent to an application for consent to subdivide, for the purposes of agriculture, land within one of the zones specified in the Table to this subclause unless each of the lots to be created by the proposed subdivision will have at least the minimum area set by the Table for a lot in the zone concerned.

Zone No Minimum area per lot

1 (a) 200 ha

1 (b) 20 ha

1 (c) 1 ha

1 (d) 200 ha

1 (e) 100 ha

13 Clause 31 provides:

31 Subdivision—Zone No 1 (f)

(1) This clause applies to land within Zone No 1 (f) identified as 1 (f) Mount Haven Estate on the land use map.

(2) Despite any other provision of this plan, the consent authority must not consent to an application for consent to subdivide land to which this clause applies unless the subdivision is created under the provisions of the Community Land Development Act 1989 and the land is subdivided so as to create no more than:

(a) 42 dwelling lots having an average area of not more than 4 hectares, a minimum area of not less than 2 hectares, and a maximum area of not more than 6 hectares, and

(b) 6 lots having an area of not less than 1 hectare, and

(c) 5 neighbourhood property lots having an area of not less than 1 hectare, and

(d) a community property lot, and

(e) a farm lot and associated dwelling having an area of not less than 480 hectares.

(3) The consent authority must not consent to a stage of subdivision of land to which this clause applies after the initial stage unless the consent authority is satisfied that at least 60 per cent of lots created in the initial or previous stage under subclause (2) (a) and (b) have been sold and the consent authority is satisfied that the common effluent disposal system for the initial or previous stage is functioning satisfactorily.

(4) Despite any other provision of this plan, the consent authority may grant consent to an application for consent to erect a dwelling-house on a lot created in accordance with subclause (2) (a) or (b).

(5) Despite any other provision of this plan, the consent authority must not consent to an application for consent to erect a dwelling-house on a lot created in accordance with subclause (2) (c) or (d).

14 The Bathurst Regional Council Development Control Plan - Mount Haven Estate (the DCP) applies to all the land included in the community scheme. The DCP was adopted on 20 April 2005 and the effective date was 13 April 2006. Part 2 of the DCP addresses Siting Considerations, and provides:

Objectives:

Buildings are to be sited in such a manner as to:

a. prevent conflict between agricultural and residential activities,

b. ensure that building sites do not impact on existing drainage patterns and water supplies,

c. ensure that a suitable fire break can be established around the dwelling while maintaining/creating a vegetation buffer between allotments, and

d. help preserve the existing native habitat.

Standards:

All buildings shall be erected within the designated buildings envelopes as approved by Council at the subdivision stage of the development.
Building sites should be located on higher ground to avoid problems associated with seepage and low bearing capacity soils within drainage lines.
Buildings will not be permitted in waterlogged areas.
All buildings are to be located a minimum of 30 metres from any boundary.
Buildings are to be located where there will be minimal disturbance to the existing native habitat and tree cover. All development applications are to address the number of trees to be removed and the extent of clearing to be undertaken.

15 Part 4 of the DCP addresses Conservation and Landscaping, and provides:

Objectives

:

Development is to be undertaken in a manner that:

a. retains as much as possible of the existing habitat and preserves the scenic amenity of the area,

b. preserves the existing creek habitat and provides a buffer against possible pollution,

c. maintains/creates vegetation corridors to help link native habitats, and

d. minimizes erosion.

Standards:

Maximum tree cover is to be maintained. Tree cover removal other than for building and road construction purposes or for fire protection and fencing is to be avoided. (Note that a tree preservation order applies to the land)
All buildings and associated structures (e.g. water tanks, tennis courts etc) are to be landscaped to effectively screen the development. A Landscape Plan is to be lodged and approved by Council.
No vegetation, except for exotic species or with the consent of Council, is to be cleared within 50 metres of Eusdale and Diamond Swamp Creeks.
An area of native vegetation, not less than 10 metres wide, is to be maintained or created, with vegetation native to the area, within each dwelling allotment.
All walking, riding and fire trails are to be managed to prevent soil erosion and minimize runoff and sediment flows during and after construction. A soil and water management plan is to be lodged with the development application in accordance with Council’s guidelines.

16 Included with the DCP is a map dated 20 April 2005 which shows the land identified as “Special Rural Small Holdings” corresponding with the land zoned 1(f); “Outer Rural” land corresponding with the land zoned 1(e), with cross hatching on the land now Lot 46 in DP 270159, and the notation “Dwelling Prohibited”. This map is Annexure B.

17 Before the coming into effect of BRILEP 2005, the applicable planning controls were those imposed by the Interim Development Order No 1 – Shire of Evans (the Evans IDO). The Evans IDO was amended by Evans Local Environmental Plan No 11 (gazetted 7 June 1996) to permit the Mount Haven Estate community scheme to be developed. The aims of the amendments as set out in cl2 of the Evans LEP No 11 were:

(a) to rezone certain land for rural small holdings development; and

(b) to provide a uniform rural zone for the remaining land; and

(c) to enable subdivision that will consolidate part of the land so that it can be held in community ownership under the provisions of the Community Land Development Act 1989 and the Community Land Management Act 1989 and to allow the erection of dwellings on lots created by the subdivision.

18 The amendments to the Evans IDO included the addition of zone Rural 1(c), the insertion of cl28 relating to development on land within zone 1(c), and the insertion of cl 29, which relevantly provided:

Development of certain land at Meadow Flat

29. (1) This clause applies to land identified in Schedule 6.

(2) Notwithstanding any other provision of this order, a person may, but only with the consent of the council, subdivide the land to which this clause applies under provisions of the Community Land Development Act 1989 so as to create up to a maximum of:

(a) 42 dwelling lots having an average area of not more than 4 hectares, a minimum area of not less than 2 hectares, and a maximum area of not more than 6 hectares; and

(b) 6 dwelling allotments having an area of not less than 1 hectare; and

(c) 5 neighbourhood property lots having an area of not less than 1 hectare; and

(d) 1 community property lot, and

(e) 1 farm lot and associated dwelling having an area of not less than 480 hectares

(3) Subdivision other than that permitted by subclause (2) is prohibited.

(4) Nothing in this order prevents a person, with the consent of the council, from erecting a dwelling house on each lot created in accordance with subclause 2(a) or (b).

(5) Notwithstanding the other provisions of this order, a dwelling shall not be erected on an allotment created in accordance with subclause 2(c) or (d) or on any land indicated by hatching on the map.

(6) The council may only consent to a staged subdivision of land to which this clause applies.

...

19 The land included in the map in the Evans LEP No 11, and thus identified in Schedule 6 of the Evans IDO, included all the land in the community scheme. That part of the land which is now zoned 1(f) was zoned 1((c) Rural Small Holdings; the remainder was zoned 1(a) Rural. The map shows as hatched the land which became the farm lot after the subdivision and registration of the community scheme.

20 On 16 April 2009 the Council notified the Department of Planning of its decision to prepare a draft Local Environmental Plan for the Mount Haven Estate. The draft Bathurst Regional (Interim) Local Environmental Plan 2005 (Amendment No 2) (the draft Amending LEP) amends clause 31 of BRILEP 2005 by deleting the clause heading, and inserting:

Clause 31 Subdivision - Deposited Plan 270159, Mount Haven Estate

and by deleting clause 31 (1) and inserting:

31(1) This clause applies to land in deposited plan 270159, known as the Mount Haven Estate.

and by inserting cl31(6):

31(6) The provisions of State Environmental Planning Policy No 1 - Development Standards do not apply to land to which this clause applies.

Evidence

21 The hearing commenced with a site view. Expert evidence on planning issues was given by Mr Neil Kennan (for the Applicant) and Mr Richard Denyer (for the Council). Mr Kennan and Mr Denyer prepared a joint report. Expert evidence on flora and fauna issues was given by Mr Ray Mjadwesch (for the Applicant). Mr Mjadwesch and Mr Denyer prepared a joint report on flora and fauna assessment, and Mr Mjadwesch prepared a written response to the Court’s questions concerning cumulative impacts of fragmentation of habitats and connectivity.

22 Mr Robert Hood, director of the Applicant, provided an affidavit setting out the background to the development of Mount Haven Estate and the application. The Applicant acquired the land now known as Mount Haven Estate in the early 1980s. Following the grant of subdivision consent by Evans Shire Council in 1997, the Applicant registered the Community Management Statement with DP 270159. The community development has been undertaken in six stages. Stage 1 involved 13 hobby farm lots (Lots 2-14), 4 development lots (Lots 16-19), 1 community lot (Lot 1) and the farm lot (Lot 15). Stage 2 involved the subdivision of development lot 16, to create new hobby farm lots 20-32. Stage 3 involved the subdivision of development Lot 17 to create hobby farm lots 35-42. Prior to Stage 2 there had been a boundary adjustment between Lot 15 (the farm lot) and Lot 2 (one of the first hobby farm lots), and the enlarged former Lot 2 became new Lot 33; the former farm Lot 15 became Lot 34. After the completion of Stage 3, and after the amalgamation of Evans Shire Council and Bathurst Regional Council, the Council acquired land from the farm lot (then Lot 34) for road widening along Diamond Swamp Road. The farm lot then became known as Lot 46 with numbering consequences for the lots in the remaining stages of the subdivision. Stages 4 and 5 have been carried out contemporaneously and involve the subdivision of development Lots 18 and 19. The lot pattern within the community development is now Lot 1 (community lot), Lots 2-14, 20-32, 35-42, 47-60 (hobby farm lots) and Lot 46 (the farm lot).

23 Mr Hood notes that submissions opposing the proposed subdivision of Lot 46 were made by persons residing on Lots 3, 4, 5 and 13, all located towards the northern end of the community scheme. Lot 13 is located on the western side of Mount Haven Way immediately adjacent to part Lot 46 and separated from the major portion of Lot 46 by Mount Haven Way. Lots 3, 4 and 5 are located on the eastern side of Mount Haven Way, and each adjoins the farm lot.

24 In his affidavit Mr Hood notes that as a consequence of the road widening along Diamond Swamp Creek Road and the consequent re-numbering of lots within the community scheme, the actual numbering of the proposed five new lots will be Lots 61, 62, 63, 64 and 65. To avoid confusion, the evidence and submissions, and these reasons, refer to the numbering as set out in the development application, namely Lots 60, 61, 62, 63 and 64.

The Issues

25 The issues between the parties are, subject to the comments below, those identified in the Statement of Facts and Contentions, and can be summarised as follows:

(a) whether the Court has power to grant the application:

The Council contends that there is no such power, for two reasons:

(i) clause 31 of BRILEP 2005 provides that the consent authority must not consent to an application for consent to subdivide land in the 1(f) zone unless the subdivision is created under the provisions of the Community Land Development Act , and it is not intended to create the subdivision under the provisions of that Act;

Community Land Development Act

(b) whether if there is power to grant the application, it should be refused:

The Council contends that it should be refused, on the grounds that:

(i) the proposal does not comply with the prescriptive measures contained in cl31(2) of the BRILEP 2005, and there is no objection under State Environmental Planning Policy No 1; and any such objection would not be well founded;

(ii) the proposed subdivision is contrary to DCP Mount Haven as the proposed dwelling envelopes are located on land designated as land being “ dwelling prohibited”;

(iii) the proposal is not in the public interest because it fails to comply with the community management statement registered in consequence of the registration of DP 270159 pursuant to the Community Land Development Act ;

(iv) the proposal is contrary to the draft LEP;

26 The Applicant contends that there is power to grant the application. The applicable provision in the BRILEP 2005 is cl27 and not cl31, and accordingly subdivision is not prohibited; and if cl31 does apply, the proposed development will take place under the CLD Act. The consent of the Community Association as owner is not needed because the Community Association has granted rights of access, easements for services and easements for overhead electricity, and by these grants has consented to the performance on community land of any work reasonably necessary for the purpose of exercising these rights; and in any case consent is not needed because access is possible without requiring any further action by the Community Association; and further, the application does not seek approval for construction of internal roads, and the fact that other facilities within the community scheme may be used by the proprietors of the new lots does not make these part of the development application in relation to which an owner’s consent is required.

27 The Applicant contends that the applicable subdivision control is cl27 of BRILEP 2005, and that an objection under State Environmental Planning Policy No 1, required in relation to the minimum area of 1(e) zoned land that will be included in each proposed lot, is well founded. The DCP does not in terms prevent the erection of a dwelling house on the farm lot, and if it did, would not be in conformity with BRILEP 2005. The “theme” of the Mount Haven development as stated in the Community Management Statement is that of small rural lots surrounded by a farm lot; this is a matter of the public interest, and not power; and the small rural lots will continue to be surrounded by a farm. The draft Amending LEP should not be given any weight as it is not a “proposed instrument” for the purposes of s79C(1)(a)(ii) of the Act as in force since 1 July 2009. In relation to the contention based on s80(2) of the Act, the Applicant contends that the existence of an earlier consent does not prevent the grant of a later consent which is inconsistent with it.

28 The Council originally contended that there was insufficient information provided for assessment of the application pursuant to s79C of the Act in relation to impacts of work required to be carried out on Crown roads to provide emergency access including access for bush fire fighting purposes; impact of the proposed development on koalas on proposed lot 64; and impact of the proposal on threatened species. The Council no longer presses that contention having regard to additional material provided, in particular by the evidence of Mr Mjadwesch. The remaining additional issue in dispute is whether there is sufficient evidence to enable a proper consideration of the factors in State Environmental Planning Policy 44: Koala Habitat Protection (SEPP 44).

Clause 31 BRILEP 2005

29 The first contention of the Council is that the Court does not have power to grant the application because cl31 of BRILEP 2005 provides that the consent authority must not consent to an application for consent to subdivide unless the subdivision is created under the provisions of the CLD Act, and it is not intended to create the subdivision under the provisions of that Act. The Council’s submissions on these issues were:

-The land the subject of the development application is Lot 46; Lot 46 includes 1(f) land, and the 1(f) land is therefore included in the subject matter of the development application. As a consequence of the proposed subdivision the 1(f) land is severed from Lot 46, separated from Lot 46, and then forms parts of other lots. The fact that any individual component of 1(f) land is not itself divided is entirely irrelevant. Clause 31 applies to 1(f) land. 1(f) land is part of the land the subject of the subdivision application, being excised from the present Lot 46 and becoming part of another proposed lot.

Commonwealth v Baume

Ben-Menashe v Ku-ring-gai Municipal Council

30 The Council submits that even if there is power to consent to the application, the proposal does not comply with the provisions of cl31 relating to lot numbers and the farm lot.

31 The Applicant contends that clause 31 does not apply, for the following reasons:

-The application of the clause is identified in cl31(1) in the following terms: “ this clause applies to land within Zone No. 1(f) identified as 1(f) Mt Haven Estate on the Land Use Map”. The Land Use Map does not identify any such land: the zones index for rural land found on the Land Use Map identifies the 1(f) rural zone as “ Special Rural Small Holdings” and on a strict construction of cl31(1) the clause has no application to any land within the Bathurst Region that is identified on Land Use Map;

-On its own terms cl31 will only apply to land within the 1(f) zone that falls within cl31(1); the clause has no application to land zoned 1(e) Outer Rural;

-Clause 31(2) relates to an application for consent “to subdivide land to which this clause applies”. Assuming that any land within lot 46 falls within the scope of cl 31(1), cl31(2) will only apply if the Council or the Court is considering an application for consent to subdivide that 1(f) land;

-In accordance with the definition of “subdivision of land” in s4B of the Act, such an application must propose the division of land relevantly zoned 1(f) into two or more parts, and the application proposes no such subdivision. Those parts of lot 46 that are relevantly zoned 1(f) are “ islands” within the 1(e) land which comprises the majority of lot 46; none of those “islands” will be divided as a result of the subdivision proposed, and each of the existing areas of 1(f) land will remain an undivided whole.

32 The Applicant argues that its construction of clause 31 is supported by the Council’s attempts to amend the text of clause 31 by introducing draft LEP (Amendment No 2) to BRILEP 2005.

33 In response to the second part of the Council’s argument on this issue, the Applicant submits:

Community Land Development Act

34 Both parties relied on the statement by Jagot J in Matic v Mid Western Regional Council [2008] NSWLEC 113 of the relevant principles of construction which apply when considering the provisions of a local environmental plan:

7 The meaning of a provision in an environmental planning instrument must be determined having regard to its context and purpose ( Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 at [37] – [46] and [63]; s 33 of the Interpretation Act 1987). “Context” has a wide scope and may include the “mischief which…one may discern the statute was intended to remedy” so that, by this method, an alternative construction to the literal meaning may be preferred if it is “reasonably open and more closely conforms to the legislative intent” ( CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408).

8 Legislative intent, however, is not to be discerned by reference to pre-conceived ideas or vague notions of what might or might not be desirable. Intent is to be objectively determined. It is manifested “by the use of language” in the document to be construed ( Wilson v Anderson and Others (2002) 213 CLR 401 at [8]). Accordingly:

…it is through the meaning of the text, understood in the light of background, purpose and object, and surrounding circumstances, that the legislature expresses its intention, and it is from the text, read in that light, that intention is inferred ( Singh v The Commonwealth and Another (2004) 222 CLR 322 at [19]).

9 These requirements have particular significance for the construction of environmental planning instruments. The planning purpose of an environmental planning instrument is to be determined by reference to the language of the instrument considered in context. There is no room for “some preconceived general notion of what constitutes planning" (

(2004) 221 CLR 30 at [56] citing

(1970) 123 CLR 490 at 500). Further, and as noted in

(2005) 142 LGERA 104 at [25] “any attempt to always find planning logic in planning instruments is generally a barren exercise”.

10 The Council’s submissions did not recognise the primacy of the text of the LEP. Instead, the Council called in aid the objectives of the LEP and the zone, and a particular view about the historical function of concessional lots in a rural context, to support its position that the applicant’s argument was inconsistent with the planning policy of the instrument. There are numerous difficulties with this approach.

35 Both parties referred to the decision of Bignold J in Sealark Pty Ltd v Shoalhaven City Council (2000) 109 LGERA 263 which was upheld by the Court of Appeal (by majority) on appeal: Sealark Pty Ltd v Shoalhaven City Council [2002] NSWCA 39. Sealark was an appeal from refusal of consent for subdivision of a site of 33.63 ha, some 18ha of which was zoned residential 2(c) and the other 15.63ha was zoned rural 1(d) under the applicable LEP. The subdivision application proposed to create seven lots within that part of the site was zoned Rural 1(d) and one lot in respect of that part of the site zoned Residential 2(c). The relevant provision in the LEP was cl11, subclause (4) of which relevantly provided:

(4) Subject to sub clauses (5) and (6), the Council may consent to an application to subdivide land within Zone No. … 1(d) (not being land which forms the whole or part of an existing holding of less than 10 hectares in area) for any one or more of the following purposes:

(a)…

(b) to create an allotment of not more than 2 hectares but not less than 1 hectare if -

…

36 At paragraphs 21 and 22 of his judgement, Bignold J held:

In my judgment, it is manifestly clear that the Applicant has

demonstrated that cl 11(4) of the LEP empowers the Council to grant consent to the Applicant’s proposed subdivision. There are a number of reasons for so concluding which are essentially founded upon two factors indisputably established in the present case— (i) the fact that the land to be subdivided comprises a single land unit situate partly within the Rural 1(d) zone and partly within the Residential 2C zone, and forming a small part of two existing holdings; and (ii) the fact that the vast majority of the area of land comprising each of the “Wandandian” and “Neale” existing holdings is zoned Residential 2C (having been so zoned since the LEP came into force in 1985).

22. Factor (i) creates, in my judgment, insuperable difficulties for the Applicant’s proposed subdivision. Firstly, it means that the Applicant’s development application is not the subdivision of land within Zone No 1(d) (as it obviously includes land within the Residential 2C zone). Secondly, it means that it is wholly artificial to say at the present time that the land to be subdivided is part of two existing holdings, even though it is possible by tracing back to the historical date, 28 February 1964, to identify part of the land as forming part of the “Wandandian” existing holding and part of the “Neale” existing holding.

37 On appeal, Meagher JA (in dissent) held:

As far as the first reason is concerned, it is of course true that the appellant’s land is a single unit with two different zonings affecting it, but why that should matter I cannot see. The power to subdivide conferred by clause 11(4)(b) is a power to subdivide “land”.. within a 1(d) zoning, not a power to subdivide land units which are wholly zoned 1(d). In other words, his Honour is reading into clause 11 a requirement which does not exist. The second reason is equally untenable: clause 11 clearly permits the subdivision of each parcel of land which is “wholly or partly” an “existing holding”.

38 Foster AJA, with whom Ipp AJA agreed, referred (at [36]) to the difficulty involved in the application before the Court which was seeking to subdivide land of different zonings, and held:

37 As I have said, it does not appear that the present argument, namely that the council has a sort of composite power to approve, based upon clauses 10 and 11 of the Plan, was, in fact, put to the trial judge. However, his Honour appears, inferentially, to have dealt with it by his primary holding that clause 11 could not apply in circumstances where the land, the subject of the subdivision application was partly rural and partly residential.

39 The Council submits that the position in these proceedings is analogous and it must follow that the 1(f) land is the subject of the application for subdivision and is being subdivided. The Applicant urged caution in applying the conclusions of Bignold J in Sealark, given the comment of Foster AJA at para 37.

40 The text of cl31 must be understood in the light of its background, purpose and object, and surrounding circumstances. It is clear, both from the terms in which it was expressed and in the accompanying map, that its predecessor, cl29 of the Evans IDO, applied to all the land now included in the community scheme, then zoned part 1(a) Rural and part 1(c) Rural Small Holdings. There was no dispute that the amendment to the Evans IDO by Evans LEP No.11 was made in order to permit the community scheme to proceed. Following the amalgamation of Evans Shire Council and Bathurst City areas, the Council prepared BRILEP 2005 to integrate the planning controls of the two former areas. A document entitled “Explanation of Draft Interim Planning Controls for the Bathurst Regional Local Government Area) (Ex 4, p542) outlines the land use zones proposed, noting that land formerly zoned 1(c) Rural Land Holdings under the Evans IDO would be zoned 1(f) under the new LEP, and states:

Clause 30 of the new LEP saves all subdivision rights pertaining to land zoned 1(f) as originally proposed under the Evans LEP No.11.

41 A letter from the Council to the Department of Planning dated 20 October 2005 forwarding the draft LEP for gazettal identifies alterations to the draft as exhibited, including in relation to draft cl30 (which became cl31) the addition of the words “’identified as 1(f) Mount Haven Estate’ on the land use map”; the reason for this change was “to enable the 1(f) zone to be used in the future in another location if appropriate”.

42 The Council’s Notification Advice under s54(4) of the Act to the Director-General of Planning of its intention to proceed with the draft Amending LEP makes it clear that the purpose of the amendment is to restore the position as it was under the Evans IDO:

The draft LEP does not propose to alter the existing zoning of properties. …

The preparation of the draft LEP aims to correct the application of clause 31 Subdivision – Zone 1(f) of the Local Environmental Plan so that it applies to all land to which clause 29 of the Interim Development Order No 1 – Evans, as amended, originally applied.

43 In discussion of the Justification for the LEP, the s54(4) Notification Advice states:

It is necessary to proceed with this draft LEP at this time because currently there is potential for subdivision of the “farm lot” into 100 hectare allotments. The draft LEP will reinstate the intent of the original clause 29 of the Interim Development Order No 1 – Evans, as amended. This is contrary to the intent of clause 29 of the Interim Development Order No 1 – Evans as originally made.

44 While accepting that the present drafting of cl31 of BRILEP 2005 may not refect the intention as expressed in cl29 of the Evans IDO, and that this provides the context, we must give meaning to the words as they now appear in cl31. Clause 31(1) states that the clause applies to “land within Zone No 1(f) identified as 1(f) Mount Haven Estate on the land use map”. While we agree with the Applicant that the land zoned 1(f) is identified on the land use map as “Special Small Rural Holdings”, it is clear from the heading “Mount Haven Estate” on the map which is the land to which it applies: and that is the land within the 1(f) zone.

45 The issue is whether this is an application “to subdivide land to which [cl31] applies”, namely “land within Zone 1(f)…”. Section 4B of the Act defines “subdivision of land”:

4B Subdivision of land
(1) For the purposes of this Act, subdivision of land means the division of land into two or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition. The division may (but need not) be effected:

(a) by conveyance, transfer or partition, or
(b) by any agreement, dealing, plan or instrument rendering different parts of the land available for separate occupation, use or disposition.

(2) Without limiting subsection (1), subdivision of land includes the procuring of the registration in the office of the Registrar-General of:

(a) a plan of subdivision within the meaning of section 195 of the Conveyancing Act 1919, or
(b) a strata plan or a strata plan of subdivision within the meaning of the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986.

Note. The definition of plan of subdivision in section 195 of the Conveyancing Act 1919 extends to plans of subdivision for lease purposes (within the meaning of section 23H of that Act) and to various kinds of plan under the Community Land Development Act 1989.

(3) However, subdivision of land does not include:

(a) a lease (of any duration) of a building or part of a building, or
(b) the opening of a public road, or the dedication of land as a public road, by the Crown, a statutory body representing the Crown or a council, or
(c) the acquisition of land, by agreement or compulsory process, under a provision of an Act (including a Commonwealth Act) that authorises the acquisition of land by compulsory process, or
(d) a division of land effected by means of a transaction referred to in section 23G of the Conveyancing Act 1919, or
(e) the procuring of the registration in the office of the Registrar-General of:
(i) a plan of consolidation, a plan of identification or a miscellaneous plan within the meaning of section 195 of the Conveyancing Act 1919, or
(ii) a strata plan of consolidation or a building alteration plan within the meaning of the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986.

46 Lot 46 includes what can be regarded as five “islands” of 1(f) land, physically connected to the remainder of the 1(f) land which makes up that part of the community development constituted by the hobby farm lots and community lot, but separated from each other in the “farm lot” which is otherwise constituted by land zoned 1(e). Proposed lots 62 and 64 are wholly within the 1(e) zone. Proposed lot 60 contains two “islands” of 1(f) land; proposed lot 61 also contains two “islands”, and proposed lot 63 contains one “island” of 1(f) land.

47 We agree with the Applicant that Sealark is of limited assistance. Clause 11 in that case applied to land “within” the relevant zoning; and a similar expression is used in cl31 of BRILEP 2005. The circumstances in Sealark were unusual, however: that part of the land the subject of the application that was zoned 2(c) was itself the subject of an approved subdivision creating residential lots that had not been implemented by registration; Foster AJA described (at [38]) the proposal as being “totally artificial”, seeking to re-establish the boundary line by calling afresh on the general subdivision provision in cl10 of the planning instrument as a preliminary step to the subdivision of the remaining land zoned 1(d) in purported reliance on cl11. While noting that the proposition that the council had a composite power to approve the application did not appear to have been put to Bignold J, Foster AJA was in agreement with Bignold J that cl11 did not apply where the land the subject of the application was partly rural and partly residential, and concluded (at [39]) that the provisions of cl11 applied “only to lands having the zonings referred to in the clause itself”. Sealark did not present the same question as that arising in these proceedings, as the larger parcels of both the 2(c) and 1(d) were each proposed to be divided.

48 Section 4B of the Act requires that there be a “division of land into two or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition”. No individual component of 1(f) land within the boundaries of the “farm lot” will be itself divided. The Council submits that the proposal involves the “division” of the 1(f) land by separation of the five “islands” of 1(f) land from each other and incorporation of those “islands” of 1(f) land into five new lots. In our view this is an artificial construction. None of the separate pieces of 1(f) land are to be divided in the sense used in the definition in s4B of the Act. There is no subdivision of “land within Zone No 1(f)”, and accordingly, there is no application for consent to subdivide land to which cl31 applies.

49 We are of the view that cl31 of BRILEP 2005 does not apply, and that the application must be considered under cl27 of BRILEP 2005.

50 This conclusion makes it unnecessary to decide whether if cl31 did apply, it would prohibit the granting of consent, however since the point was fully argued we make the following comments. Clause 31(2) prohibits the consent authority from granting consent “unless the subdivision is created under the provisions of the Community Land Development Act 1989”. It is common ground that Lot 46 is a “community development lot” as defined in s3 of the CLD Act:

means a lot in a community plan that is not community property, a public reserve or a drainage reserve and is not land that has become subject to a subsidiary scheme or a lot that has been severed from the community scheme.

51 Section 8 of the CLD Act enables the subdivision of a community development lot into two or more community development lots by “a community plan of subdivision registered as a deposited plan”. Such a community plan of subdivision is a “plan of subdivision” for the purposes of Part 23 Div 3 of the Conveyancing Act 1919 (s195(2)); and is one of the ways in which the “subdivision of land” can occur under the definition in s4B of the Act. There is no community plan of subdivision that meets the requirements of s8(3) of the CLD Act.

52 We agree with the Council that the present application is an application to subdivide Lot 46 pursuant to the Real Property Act 1900. The Applicant has provided copies of the plan proposed to be registered including the creation of easements pursuant to s88B of the Conveyancing Act 1919. The requirements for a community plan of subdivision under the CLD Act are set out in s8 of that Act. By virtue of s4B of the Act, registration of such a plan, as one form of a plan of subdivision within the meaning of section 195 of the Conveyancing Act 1919, would be the “subdivision of land”. Clause 31(2) of the BRILEP 2005 makes it clear that this is the only way in which subdivision of the land to which it applies can be approved. On the reasoning of Lloyd J in Ben-Menashe v Ku-ring-gai Municipal Council (2001) 115 LGERA 181, attention must be paid to the form of subdivision proposed, in that instance in determining whether there had actually been a consent to the application as made, and in the present case, in considering whether there is power to consent to the application.

Clause 27 BRILEP 2005

53 The Applicant argues that the relevant provision in BRILEP 2005 conferring power to approve the subdivision of Lot 46 is cl27. Having concluded that cl31 does not apply to this application, we agree that cl27 provides the applicable subdivision control. Clause 27 specifies that the consent authority cannot consent to an application to subdivide, for the purposes of agriculture, land within the 1(e) zone unless each of the lots to be created has a minimum area of 100ha. Proposed lots 62 and 64 are respectively 101.5ha and 100ha, and meet the requirements of cl27. Lots 60, 61 and 63 meet the 100ha minimum requirement in cl27 only by the inclusion of the islands of 1(f) land.

54 The Applicant accepts that an objection under State Environmental Planning Policy No 1 – Development Standards (SEPP No 1) is required in relation to the minimum area of 1(e) zoned land that will be included in each of proposed lots 60, 61 and 63. The Applicant provided an objection under SEPP No 1 in the Statement of Evidence of Mr Kennan. Mr Kennan states that the combination of 1(e) and 1(f) land results in all five lots being 100ha or more, and that the agricultural potential of both the 1(e) and 1(f) land is similar such that the combination into lots of minimum 100ha would satisfy the underlying objective of the 100ha minimum lot area development standard which is to support and maintain the continued viability of agricultural development in rural lands and enable the carrying out of development appropriate for broad acre land used for grazing and cropping. Strict compliance with the 100ha minimum lot area is both unreasonable and unnecessary, and would hinder the attainment of the objects in s5(a)(i) and (ii) of the Act.

55 The Council’s Contentions 3, 4 and 5 relate to the application of cl31, on the assumption that it does not prohibit the development, on the following basis: the proposal does not comply with the prescriptive measures in cl31(2) (relating to the number and description of lots and the requirement that the “farm lot” have an area of not less than 480ha); there is no SEPP No 1 objection to the application of those development standards; and if there were, it would not be well founded. In his Statement of Evidence Mr Denyer considers whether a SEPP No 1 objection to the operation of cl31 would be well founded, and concludes that, based on the history of the provisions relating to the development of the Mount Haven Estate, it would not. In the Joint Report Mr Denyer considers the SEPP No 1 objection to compliance with the 100ha minimum lot area development standard in cl27, and concludes that it is not well founded. Mr Denyer argues that the non-compliance is the result of part of the land being zoned 1(f); the 1(f) zone is subject to different objectives to the 1(e) zone as it is aimed at promoting development for rural residential purposes; and it is therefore inappropriate to include this part of the land to satisfy the objectives of the 1(e) zone. Mr Denyer relies on the history of the development of Mount Haven Estate to support his conclusion that the SEPP No 1 objection is not well founded.

56 In oral evidence Mr Denyer agreed that the residential development potential of the 1(f) land contained within Lot 46 has been fully utilised, except that there was potential under cl31 for one dwelling house. Mr Denyer agreed that a lot of 100ha would be viable for agriculture and would meet the objective of the 1(e) zone; and that a lot with some 1(e) and some 1(f) land, without a dwelling, could fulfil an agricultural purpose. On that basis, Mr Denyer agreed that it would not be inconsistent with the objectives if 1(f) land on which a dwelling could not be built were used for farming, and accepted on that approach that the combination of 1(e) and 1(f) land could satisfy the underlying objectives of both the 1(e) and 1(f) zones.

57 Upholding the SEPP No 1 objection is a precondition that must be satisfied before the proposed subdivision can be assessed on its merits: Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79; Wehbe v Pittwater Council (2007) 156 LGERA 446. The onus is on the Applicant to satisfy us that the objection is well founded: Wehbe at [38]. The approach to be adopted to consideration of whether the SEPP 1 objection should be upheld is set out by Lloyd J in Winten at [25]-[26]:

25. The judgment of Cripps J in

(NSWLEC, 2 June 1986, unreported) has been described as a classic statement of the approach to be taken when considering an objection under SEPP 1 (see, for example, the judgment of Talbot J in

(2000) 110 LGERA 217 at 220). In the

Cripps J said (at 6):

It has been established by a series of decisions in this Court that generally in order to maintain an objection that compliance with a standard is unreasonable or unnecessary, it is first necessary to discern the underlying object or purpose of the standard. To found an objection it is then necessary to satisfy the Court that compliance with the standard is unnecessary or unreasonable in the circumstances of the case. Although the court has urged a generous application of SEPP No. 1 and has repeatedly declined to attempt exhaustively to define the limits of the dispensing power and, in particular, what is embraced by the expression “circumstances of the case”, it is now established that it is not sufficient merely to point to what is described as an absence of environmental harm to found an objection. Furthermore, the objection is not advanced, in my opinion, by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a purpose. ... Furthermore it is now established that although the discretion conferred by SEPP No. 1 is not to be given a restricted meaning and its application is not to be confined to those limits set by other tribunals in respect of other legislation, it is not to be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan making procedures set out in Part III of the Environmental Planning and Assessment Act.

26. In applying the above-mentioned judgment, it seems to me that SEPP 1 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 EP&A Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection is well founded? In relation to the fourth question, it seems to me that one must also look to see whether a development which complies with the development standard is unreasonable or unnecessary, as noted by Cripps J in the

.

58 The parties accept that the minimum lot size of 100ha in cl27 is a development standard. Mr Kennan and Mr Denyer agreed that the underlying objective of the development standard was that stated in objectives (a) and (b) of the 1(e) zone, namely:

(a) to support and maintain the continued viability of agricultural development in rural lands located in the outer rural areas of the local government area of Bathurst Regional,

(b) to enable the carrying out of development that is appropriate for broad acre productive land used for grazing and cropping,

59 The aims of SEPP No 1 are stated in cl3, and are to provide flexibility in the application of planning controls operating by means of development standards in circumstances where strict compliance would be unreasonable or unnecessary or tend to hinder the attainment of the objects in s5(a)(i) and (ii) of the Act. Those objects are:

(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,

(ii) the promotion and co-ordination of the orderly and economic use and development of land,

60 The Applicant’s argument that strict compliance is unreasonable or unnecessary is based on the proposition that the objectives of the 1(e) zone are achieved by including 1(f) land, which has similar agricultural potential to the 1(e) land, so that each proposed lot meets the 100ha minimum area. The rationale of the proposition that the objectives of a development standard can be achieved notwithstanding non-compliance with the standard was described by Preston CJ in Wehbe in the following terms:

43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).

61 We agree with Mr Denyer that a consideration of whether strict compliance is unreasonable or unnecessary because of the inclusion of 1(f) land in three of the proposed lots has to be made in the context of the development of Mount Haven Estate, and in particular, how part of the land included in the community scheme came to be zoned 1(f), and its relationship to the 1(e) land.

62 In his affidavit Mr Hood states that Applicant acquired the land now known as Mount Haven Estate when acquiring five working farms in the early 1980s; the land was used for grazing until the price of wool collapsed and the Applicant considered opportunities to enhance the development potential of the farm. The land could at that time have been subdivided into 100ha lots. The Applicant began its consideration of a possible hobby farm subdivision before the introduction of community titles legislation, and continued to pursue that through preparation of various studies, which ultimately led to the rezoning by Evans LEP No.11 of part of the land as Rural 1(c), under which the proposed hobby farm lot development was permissible.

63 An Application for Rezoning and Proposal for Development prepared by the Applicant in 1991 (Ex 4, p281) proposed the development of the land as a Rural Residential Subdivision, the result of which would be (at p301):

-to provide an ideal homespace enabling 48 families to experience rural life

-to improve the agricultural production of the land

64 The initial proposal was based on the continuation of the farm aspect of the development, stating that “the current grazing lands will remain intact permanently without threat of re-subdivision” (p303), and stating that very little land suitable for agriculture would be impinged upon (p319). A Local Environmental Study prepared in 1993 noted that NSW Agriculture accepted the concept of creating a Rural Small Holdings estate using some of the less agriculturally productive land while maintaining most of the more productive land in agricultural production, subject to some concerns about measures to avoid conflict between the agricultural and residential activities. Correspondence between the then Evans Shire Council and the Department of Planning during the process of rezoning to create the 1(f) land confirms the intention that the farm lot would not be further subdivided. A letter dated 3 April 1994 from the Department (Ex 4, p 531) notes Mr Hood’s intention that all the land that would become the farm lot would remain Rural 1(a), and suggests as an alternative the zoning of this land as 1(c) with hatching to ensure that dwellings are not permitted. A letter dated 20 December 1995 from the Department (Ex 4, p535) notes the need to ensure that a DCP proposed to be in place at the time of gazettal of the Evans LEP No 11 “would need to reflect Clauses 30(3) and (5) of the draft plan regarding no further subdivision of any land, including the farm lot, and that the farm lot does not permit any other dwellings”. A letter dated 4 June 1996 (Ex 4, p536) advising of the making of Evans LEP No 11 rezoning what is now the 1(f) land as 1(c) notes:

The development potential within the 1(c) zone in this plan is related to the agricultural and environmentally constrained 1(a) land surrounding it being protected. Consequently, it is essential that the 1(a) zone remain part of the whole Community Title development and be covered in the appropriate Management Plan.

65 It is clear from this correspondence that the approval of the small rural residential lots was contingent on the retention of higher value agricultural land as a farm lot, and that this included a restriction on the erection of dwelling houses on the land other than in the rural residential lots. This approach was based on input from the Department of Agriculture, which included detailed consideration of the agricultural productivity of all the land included in the community scheme. This approach aimed at ensuring proper management of resources including agricultural land, and orderly and economic us of the land within the community scheme. We are satisfied that this approach reflects, and promotes, the attainment of the objects in s5(a)(i) and (ii) of the Act.

66 The issue is not whether a combination of 1(f) and 1(e) land into lots of 100ha could satisfy the underlying objectives of the 1(e) land. The five approaches identified by Preston CJ in Wehbe, of which that is one, are only examples of how an objection under SEPP No 1 might be well founded and consistent with the aims of cl3 of the Policy. Clause 7 of SEPP No 1 requires that we be satisfied that the granting of consent is consistent with the aims of SEPP No 1, and as noted by Preston CJ in Wehbe (at [52]), that “makes it relevant ‘to consider whether consent to the particular development application encourages what may be summarised as considered and planned development’ or conversely encourages what may hinder a strategic approach to planning and development” (referring to Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94). In our view, the granting of consent would overturn the approach that underpinned the rezoning which led to the creation of the 1(f) and 1(e) zoning. Compliance with the development standard would promote, rather than hinder, the attainment of the objects in s5(a)(i) and (ii) of the Act. Even if the inclusion of 1(f) land could satisfy the underlying objectives of the 1(e) land, to grant consent would be in effect to use the dispensing power in SEPP No 1 to effect a change to the existing planning provisions, which is beyond the proper application of SEPP No 1: Wehbe at [51]. We are not satisfied that compliance with the development standard is unreasonable or unnecessary. We are not persuaded that the SEPP No 1 objection is well founded, and it should not be upheld. The consequence is that the subdivision of the 1(e) land so as to create the five lots proposed in the application before us cannot be approved.

67 If we are wrong in our conclusion as to the application of cl27 of BRILEP 2005 and the SEPP No 1 objection, and there is power to consent to the application, the next issue is whether it should be approved on the merits.

Should the application be approved on the merits?

68 Section 79C of the Act sets out the considerations that must be taken into account in determining whether a development application should be approved. At the time of application, s79C provided:

(1) Matters for consideration—general

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 draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the draft 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.

69 Section 79C(1)(a)(ii) has been amended with effect from 1 July 2009, and now reads:

(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 Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

70 The relevant environmental planning instrument for the purposes of s79C(1)(a)(i) is BRILEP 2005. Development for the purpose of agriculture is permissible without consent in both zone 1(e) and 1(f). While that is a neutral factor, there is an assumption that in some form development consistent with the zoning will be permitted: BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399. Clause 6(3) of BRILEP 2005 requires us to take into account the objects of the 1(f) and 1(e) zones, and requires us to be satisfied that the proposed development is consistent with one or more of those objects. Considering first the two proposed lots containing only 1(e) zoned land, Mr Denyer accepted in evidence that a 100ha lot could be viable for agriculture. Mr Mjadwesch in oral evidence stated that the proposed 100ha lots could be suitable for agricultural activities such as beekeeping, or sheep grazing, although in the latter instance he qualified this by stating that the site would not sustain grazing over a prolonged period. We are satisfied that the proposed development is consistent with objectives (a) and (b) of the 1(e) zone. In considering the three proposed lots that also include 1(f) land, we note that the objectives of the 1(f) zone, in particular objective (a), appear to run counter to those of the 1(e) zone. However, cl6(3) requires only that we be satisfied that the proposed development is consistent with one or more of the objects, and we are satisfied, based on the evidence of Mr Denyer and Mr Mjadwesch, that in relation to those three lots the proposed development is consistent with objective (b) of the 1(e) land and objective (e) of the 1(f) land.

71 State Environmental Planning Policy (Rural Lands) 2008 (the Rural Lands Policy) applies to the site. The aims of this Policy are:

(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.

72 Clause 10 of the Rural Lands Policy applies to land in a rural zone, a rural residential zone, or an environment protection zone, and identifies matters to be taken into consideration in determining an application for approval for subdivision of land proposed to be used for the purposes of a dwelling:

(3) The following matters are to be taken into account:

(a) the existing uses and approved uses of land in the vicinity of the development,

(b) whether or not the development is likely to have a significant impact on land uses that, in the opinion of the consent authority, are likely to be preferred and the predominant land uses in the vicinity of the development,

(c) whether or not the development is likely to be incompatible with a use referred to in paragraph (a) or (b),

(d) if the land is not situated within a rural residential zone, whether or not the development is likely to be incompatible with a use on land within an adjoining rural residential zone,

(e) any measures proposed by the applicant to avoid or minimise any incompatibility referred to in paragraph (c) or (d).

73 The Rural Lands Policy commenced on 10 May 2008, after the development application the subject of these proceedings was lodged. Clause 23 provides:

23 Existing development applications

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

74 The parties were in agreement that the Rural Lands Policy should be regarded as having the status of a draft Policy. The Applicant contrasted cl23 with the form of transitional provision considered in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 (at [35]), where certain planning instruments were to apply to the development application made but not finally determined before their commencement “as if this plan had been exhibited but had not been made”. The evidence before us does not establish that subdivision for is likely to have a significant impact on, or be incompatible with, the rural residential uses in the vicinity of the site.

75 The parties disagreed as to the weight to be given to the draft Amending LEP. The terms of the draft Amending LEP are set out in para 20 above. Based on the Council records and the evidence of Mr Denyer, the draft Amending LEP was placed on public exhibition from 16 May 2009 to 15 June 2009, and is now with the Office of Parliamentary Counsel prior to preparation of a report under s69 of the Act. The Department of Planning, in a letter dated 8 May 2009, has noted a question as to whether the proposed provision removing the application of SEPP No 1 is appropriate.

76 The amendment to s79C(1)(a)(ii) reflects the amendments to Part 3 of the Act which commenced on 1 July 2009, which included significant changes to the process for preparation and making of local environmental plans, and the deletion of provisions relating to regional environmental plans. In summary, the new provisions in Part 3 for the making of environmental planning instruments for local areas (which may be called a “local environmental plan”: s53(2)) require first the preparation of a “planning proposal”, which is a document that “explains the intended effect of the proposed instrument and sets out the justification for making the proposed instrument” (s55); consideration by the Minister to determine whether the matter should proceed, referred to as the “gateway determination” (s56); community consultation in relation to the proposed instrument, as part of which the “planning proposal” is to be publicly available (s57); submissions and variations to the planning proposal (s58); and then “drafting of any required local environmental plan to give effect to the final proposals” (s59) before the making of the plan by the Minister.

77 The provisions of Part 3 as in force before 1 July 2009 continue to apply to the draft Amending LEP: cl12 of the Regulation. There is no transitional provision provided for s79C(1)(a)(ii), and there is no definition of “proposed instrument”. The Applicant argues that s79C(1)(a)(ii) in its amended form does not require consideration of the “planning proposal”, rather the “proposed instrument”; the “proposed instrument” only exists at the penultimate stage of the new plan making provisions, when the Director-General makes arrangements for the drafting of the LEP; and this is at a much later stage in the preparation of an LEP than was the case with the previous scheme of Part 3 of the Act. The Applicant submits that s79C(1)(a)(ii) requires consideration only of an LEP that has reached an appropriate stage of maturity, and that will be either a “planning proposal” that has gone through the gateway, been subject to community consultation and in relation to which the LEP has been drafted by Parliamentary Counsel, or, where an LEP has been prepared pursuant to the former regime, once it has been made. The Applicant relies both on the wording of s79C(1)(a)(ii), which does not in terms require consideration of a “planning proposal”, and on the transitional provisions of cl12(5) of the Regulation, which makes it apparent that a “planning proposal” includes a reference to a “draft Local Environmental Plan”. The Applicant relied for support on the transitional provisions in cl12 of the Regulation, and on cl1 of Schedule 4 to the Regulation relating to the content of planning certificates, which requires the inclusion of the name of “each proposed environmental planning instrument that will apply to the carrying out of development on the land and that is or has been the subject of community consultation or on public exhibition under the Act”. Subclause (4) provides that a “proposed environmental planning instrument includes a planning proposal for a LEP or a draft environmental planning instrument”. The Applicant submits that in the absence of such an expanded definition, the term “proposed environmental planning instrument” would not include a draft environmental planning instrument.

78 The Council submits that the word “proposed” has its ordinary meaning, and on that basis the draft Amending LEP is an instrument that has been put forward and intended to become operational in the future, and is thus a “proposed instrument”. The draft Amending LEP has been on public exhibition and therefore has “been the subject of public consultation” under the Act. The Council submits that the absence of a specific savings provision for s79C(1)(a)(ii) suggests that the drafter accepted that the new provision would have the same operation as the previous provision, and accordingly the draft Amending LEP is a relevant consideration.

79 We accept the construction of s79C(1)(a)(ii) argued by the Council. The term “proposed instrument” is not defined in the Act. Applying the ordinary meaning of the word “proposed” to mean “to put forward (a matter, subject, case, etc.) for consideration, acceptance, or action; to put forward or suggest as something to be done” (Macquarie Dictionary), we are of the view that the term refers, in its context, to a proposal for an environmental planning instrument that would, once in force, be required to be considered under s79C(1)(a)(i). That could be either a proposed local environmental plan or a proposed State Environmental Planning Policy. While cl1 of Schedule 4 to the Regulation refers to a “proposed environmental planning instrument”, rather than a “proposed instrument”, the omission of the words “environmental planning” in s79C(1)(a)(ii) should not, in our view, lead to an interpretation contrary to the ordinary meaning of the expression used in its context. The reference to “public consultation” in s79C(1)(a)(ii) is sufficiently broad to include the community consultation required by s57 in respect of a planning proposal for a local environmental plan, the public exhibition required by the former s66 in respect of a draft local environmental plan where preparation is continued under the transitional provisions in cl12 of the Regulation, and the publicising of a proposed State Environmental Planning Policy permitted by s38 of the Act. Clause 12(5)(b) of the regulation confirms that interpretation in relation to a draft local environmental plan.

80 The Applicant’s approach does not distinguish between the various forms of draft, or proposed, LEPs. The draft Amending LEP is at one end of the spectrum, being an amending LEP addressing a specific issue and amending only one clause in the existing LEP. A “planning proposal” for a similar amending LEP proposed under the new plan making provisions in Part 3 would be required by s55(2)(a) and (b) of the Act to include a statement of the objectives or intended outcomes of the proposed instrument, and an explanation of the provisions to be included in the proposed instrument, and these would be in relatively certain terms. At the other end of the spectrum would be a proposed principal LEP intended to consolidate a number of existing planning instruments; a draft LEP that has been on public exhibition under the former provisions of Part 3 may still be the subject of significant amendments before it is in final form, and the “planning proposal” for such an instrument would of necessity be in general terms. An interpretation that required consideration of a proposed environmental planning instrument only after the stage of final drafting would be contrary to the purpose of a provision such as s79C(1)(a)(ii) which is intended to ensure that individual applications are considered in the context of both existing and future planning approaches. We agree with the Council that the absence of a transitional provision for s79C(1)(a)(ii) suggests that the drafter accepted that the new provision would have the same operation as the previous provision. Once a proposed instrument has passed the two threshold requirements of s79C(1)(a)(ii), namely, public consultation and notification to the consent authority, whether or not it has reached the penultimate stage of drafting before making if it is an environmental planning instrument for a local area, it is a “proposed instrument”, and must be considered in accordance with s79C(1)(a)(ii). The stage which a “proposed instrument” has reached, and the extent to which its approach or likely provisions have been settled, would in our view be relevant factors to consider in determining how much weight to give it.

81 The weight to be given to a draft planning instrument was summarised by Mason P in Terrace Tower Holdings at [46]:

The cases permit a consent authority to give weight to its perception of the likely (or unlikely) imminence of the relevant provisions of the exhibited draft instrument coming into force; or if it has in fact come into force, to treat it (draft though it is in its direct applicability) as if its provisions were “certain and imminent”.

82 The principles for considering whether draft provisions are “certain and imminent” were summarised by Pearlman J in Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138:

33. Certainty and imminence of the making of a draft environmental planning instrument have long been applied in this Court as benchmarks for the attribution of weight in the consideration of a development application (see

(1980) 46 LGRA 198 at 202;

(Stein J, NSWLEC, 17 April 1996, unreported) and

[2000] NSWLEC 128, unreported). As to the certainty and imminence of the making of the Draft LEP, it is relevant to note that, not only was it placed on exhibition twice, but, according to Mr Czeref’s evidence, submissions about the Draft LEP following its second exhibition were being considered, and it was intended to forward it in June to the Minister so that it could be made. There is no doubt in my mind that the Draft LEP will eventually be made, and to that extent it is certain and imminent, but its precise final form is not certain at this stage, for that depends upon any amendments made consequent upon submissions and amendments which might be required by the Minister. But those are matters of detail not of substance, and the planning approach which it adopts must in my opinion be regarded as certain to be brought into force within the reasonably foreseeable future. Hence I place significant weight upon its provisions in the assessment of the development application in this case.

83 The draft Amending LEP has been the subject of public exhibition, and meets the threshold requirements of s79C(1)(a)(ii). It has the support of the Department of Environment and Climate Change, on the basis that it is “a means to facilitate the existing settlement opportunities and to retain the original control of settlement intensification on the remainder of the estate” (Ex 4, p854); and the Department of Planning considers it to be of minor significance and consistent with relevant s117 Directions as it is reinstating previous provisions relating to the land (Ex 4, p 651). The Applicant referred to the Department of Planning Circular 30 (issued October 1997), which requires councils to include in information submitted to the Department as part of the LEP making process information on any development application which is under appeal and may be affected by the draft plan. The circular states that “in cases of inappropriate action” the Director General will consider revoking any delegations to council under the former s65 or s69 of the Act, and it does not purport to prohibit a council from responding to an application or an appeal by drafting an amending LEP.

84 The form of the draft Amending LEP has been settled since it was first proposed, and the only issue that has arisen in the correspondence between the Council and the Department of Planning is whether proposed cl31(6) should be included. Whether or not the exclusion of SEPP No 1 by draft cl31(6) is approved in the final form, we are satisfied that the draft Amending LEP will eventually be made, including the change of substance made by amending cl31(1). We are satisfied that the planning approach adopted, namely restoring the position to that under the Evans IDO, must be regarded as being certain. On the evidence before us the draft Amending LEP has reached the penultimate stage of the former Part 3 process and must be regarded as imminent. Accordingly, we place significant weight on the provisions of the draft Amending LEP in our assessment of the development application. The proposal is inconsistent with the planning approach adopted in the draft Amending LEP: Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 at [36].

85 The general approach to the consideration of any applicable DCP as required by s79C(1)(a)(iii) of the Act is that it must be regarded as a “fundamental element” or a “focal point” of the decision-making process, but is not “determinative”: Zhang v Canterbury City Council (2001) 51 NSWLR 589 at [75]. The parties disagreed as to how the DCP applies to the site. The Council contends that the proposed dwelling house envelopes for each of the five lots are located on land designated as being “dwelling prohibited”, based on a plan attached to the DCP which shows the 1(e) land hatched, to indicate “dwelling prohibited”. Mr Denyer conceded in evidence that the DCP does not contain any text that provides controls for the erection of a dwelling on the farm lot. The Applicant contends that the DCP is focussed on the 1(f) land, and that the relevant control for the erection of a dwelling house on the 1(e) land is the control in cl31 of the BRILEP 2005 that there be one dwelling on the farm lot.

86 Clause 31(2)(e) of BRILEP 2005 refers to the “farm lot and associated dwelling”, and assumes that one dwelling house can be erected on the farm lot. Read in light of the drafting history outlined above, this cannot be read as intended to limit the location of a dwelling house to one of the “islands” of 1(f) land, but as enabling consent to be given for the erection of one dwelling house somewhere on Lot 46, which could equally be within the 1(e) zoned land. Any such dwelling would be permissible with development consent in either the 1(f) or 1(e) zone. Subclauses 31(4) and (5) of BRILEP 2005 deal only with land in the 48 dwelling lots (where a dwelling house is permitted) and the neighbourhood property and community property lots (where a dwelling house is not permitted). To the extent that the DCP purported to prohibit a dwelling on the land included in the “farm lot” entirely, it would be contrary to, and not be in conformity with, the BRILEP 2005: North Sydney Council v Ligon 302 Pty Ltd (No 2) (1996) 93 LGERA 23 at 31. However, to the extent that the restriction shown on the map is consistent with the intention to retain Lot 46 as a working farm lot as part of the development of the community scheme, it should be given some weight.

87 While the DCP incorporates by reference the provisions of BRILEP 2005 in the definitions of “community lot”, “dwelling lot”, and “neighbourhood lot”, and does not refer in terms to the “farm lot”, it is defined in section 1.4 to apply to all the land included in the community scheme, which includes the farm lot, and states that it “controls development” in respect of that land. We agree with the Applicant that the provisions in Part 2 relating to “dwellings” would appear to be focussed on the erection of dwellings on the 48 dwelling lots in the community scheme. Part 4 of the DCP deals with more generally with conservation and landscaping, and sets out objectives and standards for “development”, in contrast to the more specific provisions relating to “buildings” in Part 2, “dwellings” in Part 3, and “roadworks” in Part 4. Those objectives include the retention of existing habitat, and maintenance and creation of vegetation corridors to help link native habitats. These issues were addressed in the evidence of Mr Mjadwesch, considered below.

88 The parties were in agreement that the need to upgrade roads and create fire trails as required by the bush fire safety authority provided by the Rural Fire Service, and the envisaged future erection of a dwelling house on each of the proposed five new lots, were relevant to the assessment of potential environmental impact for this proposed development. Appendix 3 to the Statement of Environmental Effects is a plan showing preferred locations for building sites on each of the proposed new lots. The Application for a Bushfire Safety Authority was made on the basis that the development “is for a rural residential subdivision and each lot will eventually be the location of a single residence”; Appendix 4 to the Application shows preferred and alternative proposed building areas.

89 The evidence as to the likely impacts of the development for the purposes of s79C(1)(b), and the suitability of the site for the development for the purposes of s79C(1)(c), focussed on three issues: impact on flora and fauna (including koala habitat); impact of clearing for bushfire protection; and to a lesser extent, impact on the agricultural capacity of the site.

90 Mr Mjadwesch’s Statement of Evidence was based on a site inspection, and a comprehensive review of documentation provided since 1993, including reports and studies provided on behalf of the Applicant in support of the initial rezoning, the local environmental study, and reports provided in support of the development application. Mr Mjadwesch described the site assessment in the following terms:

The site assessment referred to in this report occurred in winter (sub-optimal for detecting threatened plants or reptiles, for example) and was of very limited duration (many of the threatened fauna which occur in the region are difficult to detect, even by comprehensive or extensive survey, or are seasonal visitors). The site description herein is therefore based on limited taking of observational notes while inspecting the site intuitively (investigation of features such as woodlands, forest peaks and creeklines, for example).

91 Notwithstanding that qualification, Mr Mjadwesch was satisfied that the site assessment, review of previous studies and consideration of threatened species occurring locally and in the region, provided adequately for consideration of threatened species issues. Mr Mjadwesch and Mr Denyer agreed that the GIS Services Pty Ltd report provided in support of the application for a bushfire safety authority, and the Statement of Environmental Effects, had not adequately addressed the site conditions nor assessed the impact of the proposed development.

92 Mr Mjadwesch framed his Statement of Evidence to consider impacts on two bases: “P1”, the paper subdivision being creation of five rural allotments serviced and accessed largely by pre-existing infrastructure, and “P2”, secondary or indirect impacts of the subdivision that would come with subsequent development. Mr Mjadwesch’s Statement of Evidence did not include consideration of the terms of the bushfire safety authority, and the impacts of the clearing and other work required were considered in the Joint Report and in oral evidence.

93 Mr Mjadwesch identified four threatened plant species as having real potential to occur at or around the proposed development site: Robertsons Peppermint (Eucalyptus robertsonii hemisphaerica), Captertree Stringybark (Eucalyptus cannonii), Persoonia marginata (a prostrate shrub), and Derwentia blakelyi (a low herbaceaous shrub); and the endangered Box-Gum Grassy Woodland ecological community occurs across much of the site. Mr Mjadwesch was of the opinion that the impact of P1, which would require some clearing for access to proposed lot 64, would be minimal, and that the more significant potential impact was in P2 with removal of plants during earthworks and construction of dwellings and ancillary development, and later through competition or modification by introduced plants, and inappropriate fire regimes. Mr Mjadwesch identified 23 species of fauna occurring within or near the site which have extensive ranges and high capacity for mobility, and in Mr Mjadwesch’s view (Ex A, p37) impacts of P1 would not have potential to affect these fauna; subsequent development (P2) would have potential to affect these threatened fauna principally through removal of habitat during earthworks and construction of buildings and ancillary development and later through predation by domestic animals and incidental fatalities, and loss of woody debris. Mr Mjadwesch identified four threatened fauna with moderate or high potential to occur in that area that are tied to particular habitats: Booroolong Frogs, Rosenbergs Goanna, Squirrel Glider, and the Purple Copper Butterfly (Paralucia spinifera). Impacts of P1 would be minimal.

94 In oral evidence Mr Mjadwesch identified inappropriate fencing, in particular the use of barbed wire, as the most significant issue of concern for the impact of the proposed development (P1).

95 Mr Mjadwesch estimated the extent of clearing that would be required, taking into account clearing for residential envelopes, access, and clearing along fencelines permitted as a “routine agricultural management activities” under the Native Vegetation Act 2003, and concluded that total clearing on lots 60 and 61 would be 2%; lot 63 3.4%, and lot 64 2.3%. The only clearing that would be considered statistically significant would be that for lot 62, in the order of 5.7%, in relation to which Mr Mjadwesch stated (in the joint report):

These estimates provide that only proposed lot 62 has any potential to have a locally significant loss of vegetation, and most of this would be attributable to establishment of the public road as a major thoroughfare, and creation of a network of fire trails.

96 In his Statement of Evidence Mr Mjadwesch responded to the contention that the proposal had not included an assessment pursuant to s5A of the Act as to whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats. At pages 32-44 of his Statement of Evidence Mr Mjadwesch analyses the available information and concludes:

The small size of the development precludes its having any potential to have a significant impact on threatened species/EEC values of the region. The capacity to manage and mitigate impacts which will occur, and to impose conditions via development control instruments, provide that in fact the development could create opportunities for conservation, and even benefit to the receiving environment, such that even locally threatened species and natural values will not be subject to ongoing and significant deleterious impacts.

97 In the joint report Mr Mjadwesch noted:

The “No Significant Impact” conclusion of the Statement of Evidence is couched in terms whereby it would be expected that mitigation recommendations would be imposed/implemented, however this is specifically for impacts at a local level. The proposal (5 new lots) does not pose a risk of a significant impact on threatened species at a landscape scale, where many threatened species range widely or are widely distributed.

98 Mr Mjadwesch specifically addressed the issue of how development of proposed lot 64 would contribute to cumulative impacts of fragmentation of habitats, with reference to for example loss of woody debris, and connectivity of the Mt Tarana and Eusdale Nature Reserve. Mr Mjadwesch noted that Lot 64 is an important link between Mt Tarana and Eusdale Nature Reserve, and identified four ways in which proposed development of lot 64 could affect the lot, its habitat value, and connectivity of habitats occurring locally:

(1) Constructing roads and building envelopes directly removes vegetation

(2) Establishing asset protection zones and hazard reduced areas removes fuels and creates discontinuities in fuel between vegetation strata

(3) Risk of predation

(4) Fragmentation of habitat (removal of woody debris)

99 Mr Mjadwesch concluded that siting a construction envelope/dwelling “nested” against the northern boundary of lot 64 would minimise fragmentation arising from (1) and (2); creating a residential allotment with the potential for introduction of dogs and cats would expose native animals dispersing along the corridor to increased risk of predation; and widespread removal of woody debris would contribute to contraction of species such as the Brown Treecreeper.

100 We accept the evidence of Mr Mjadwesch, which was based on relevant qualifications, expertise and extensive experience in the region. To the extent that his evidence differed from that of Mr Denyer, we prefer that of Mr Mjadwesch, as Mr Denyer’s evidence on these issues was given on the basis of his experience in assessing development applications on behalf of Council. The application currently before the Court is for approval of the subdivision, and the erection of a dwelling house on any of the five proposed lots would require a development application, and be subject to assessment. Clearing for “routine agricultural management activities” is permissible without approval under the Native Vegetation Act 2003, and as outlined in Mr Mjadwesch’s evidence, could include clearing for fences and roads, for bushfire safety purposes, and collection of firewood. We accept that the likely impacts on threatened species and the EEC are potentially more significant with any subsequent development for dwelling houses than for this application. However, we are satisfied that the proposal does have some impacts on threatened species and the EEC, and in particular through possible fragmentation of habitats and connectivity of Mt Tarana and the Eusdale Nature Reserve, and through inappropriate fencing. That is relevant both to a consideration of the likely impacts of the proposed development as required by s79C(1)(b), and in considering whether the proposed development is consistent with the objectives of Part 4 of the DCP.

101 The Council raised as a separate issue whether there has been proper assessment of the impact of the proposed development on koalas on proposed lot 64 as required by SEPP 44. The Applicant submits that if it is appropriate to raise this issue, consent can be granted by virtue of cl8 of SEPP 44.

102 There is no dispute between the parties that SEPP 44 applies to the land subject to this development application. There is no dispute that part of the land, including the proposed Lot 64, is ‘potential koala habitat’, defined in SEPP 44 as areas of native vegetation where the trees of types listed in Schedule 2 constitute at least 15% of the total number of trees in the upper or lower strata of the tree component. Mr Mjadwesch has identified several species of Eucalypt on the land that are known to be feed trees for koalas, including Eucalyptus viminalis (Ribbon or Manna Gum) which is listed in Schedule 2 of SEPP 44. Mr Mjadwesch gave evidence that most of the eucalypts found on the land, whilst not listed in Schedule 2, are known to be used by koalas in the Bathurst region. The issue is whether part of the land is ‘core koala habitat’ defined in SEPP 44 as an area of land with a resident population of koalas, evidenced by attributes such as breeding females (that is, females with young) and recent sightings of and historical records of a population.

103 Clause 8 of SEPP 44 provides:

(1) Before a council may grant consent to an application for consent to carry out development on land to which this Part applies that it is satisfied is a potential koala habitat, it must satisfy itself whether or not the land is a core koala habitat.

(2) A council may satisfy itself as to whether or not land is a core koala habitat only on information obtained by it, or by the applicant, from a person with appropriate qualifications and experience in biological science and fauna survey and management.

(3) If the council is satisfied:

(a) that the land is not a core koala habitat, it is not prevented, because of this Policy, from granting consent to the development application, or

(b) that the land is a core koala habitat, it must comply with clause 9.

104 Clause 10 of SEPP 44 provides:

10 Guidelines—matters for consideration

Without limiting clause 17, a council must take the guidelines into consideration in determining an application for consent to carry out development on land to which this Part applies.

105 The Council submits that the guidelines referred to in cl10 are a mandatory relevant consideration and that there is no power to grant the application unless they have been considered. Mr Denyer referred in his Statement of Evidence to correspondence from the Department of Planning in April 1995 stating that previous fauna surveys in the area of the proposed development were insufficient to enable the Council to make an informed decision under the criteria of SEPP 44. Subsequent to this advice, Council engaged Brian Stone of Charles Sturt University to undertake an assessment of the site as proposed koala habitat. However, the area corresponding to proposed Lot 64 was not inspected on advice from Mr Hood. The report from Charles Sturt University received on 21 April 1995 concluded that the area investigated was “potential koala habitat” within the meaning of SEPP 44. On that advice, the Council commissioned another report from Charles Sturt University to determine if the site was “core koala habitat” as defined in SEPP 44. The advice from Charles Sturt University was that the site was not considered to be “core habitat” but potentially it could be used by migrating koalas. Mr Denyer contends that the report provided by Mr Mjadwesch did not provide any evidence that any further investigation of the site in relation to it being core koala habitat had been carried out, in particular as a significant part of the site had been excluded from the original investigations. He supported this contention by reference to the following passage in the report:

Guidelines to application of the SEPP (Information Circular 35 – Dept Planning 1995 and Draft Guidelines DECC 1996) include methodologies to be applied to determine the presence of core habitat with certainty. This includes extensive and systematic (quadrat based) scat surveys, day and night searches and koala call playback. The timeframe for preparation of this advice precluded application of these methodologies to the site, so that while this advice provides us with a high degree of certainty that the site is not core koala habitat, this has not been determined according to standardised koala survey methodologies.

106 The Applicant submits that the guidelines are not binding, and that in any event Mr Mjadwesch had specifically addressed the issue of compliance with the guidelines and the Court should be satisfied, based on his evidence, that the land is not core koala habitat.

107 We are satisfied that Mr Mjadwesch is “a person with appropriate qualifications and experience in biological science and fauna survey and management”. Mr Mjadwesch gave evidence that he was engaged by Bathurst Regional Council to undertake a regional survey of koalas, which included the nearby Eusdale Nature Reserve. Mr Mjadwesch’s curriculum vitae lists many flora and fauna surveys conducted in the local district and further afield.

108 Mr Mjadwesch was of the opinion that the site is not core koala habitat. In providing this evidence Mr Mjadwesch explained that the guidelines currently in force for the purposes of SEPP 44 are vague; there is a draft of more detailed guidelines which require an extremely rigorous assessment. Mr Mjadwesch stated in the joint report that his opinion that the site is not core koala habitat was based on the following:

I have relied upon my experience in koala distribution in the region, based on my compilation of the Threatened Species data base for Bathurst Regional Council, numerous spotlight sessions in Eusdale and other local remnants, and Goldney’s failure to locate koalas in his study area.

109 Mr Mjadwesch qualified this statement in the following terms:

It should be noted that it is easier to conclude that a site

core habitat than it is to conclude a site is

core habitat. Core habitat can be determined by observation of a single koala, however determining a site is otherwise requires application of a methodology which provides a reasonable degree of statistical certainty. Of necessity this requires a high degree of rigour, which is time consuming. Time constraints in preparing the Statement of Evidence for the Court precluded the application of such a methodology.

110 The Council did not provide any authority for the submission that the Court, as consent authority, is itself required to consider the guidelines and cannot rely on those guidelines having been considered by the suitably qualified person providing information for the purposes of cl8 of SEPP 44. If it is open to us to accept a conclusion that the site is not core koala habitat based on information provided by a suitably qualified person who has considered the guidelines, we would accept the evidence of Mr Mjadwesch and his conclusion, based on the material set out in paragraph 106, that the site is not core koala habitat. We note that even if the evidence established that the site is a core koala habitat, consent could still be granted subject to compliance with cl9 of SEPP 44, and we would not regard this issue as a basis for refusal of the application.

111 Section 79C(1)(e) requires consideration of the public interest. In this regard while we note that objections were made to the proposed subdivision by persons residing on four of the existing residential lots, the terms of those objections are not before us.

112 The objects of the Act are relevant in considering the public interest. We are satisfied, for the reasons outlined above, that the planning approach adopted for development and approval of the community scheme that created Lot 46 DP 270159 reflects and promotes the objects in s5(1)(a)(i) and (ii) of the Act, and that approval of this proposed development would be counter to those objects.

113 If we are wrong in our interpretation of the amended s79C(1)(a)(ii), the provisions of the draft Amending LEP would also be a matter to be considered as an aspect of the public interest: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195. The proposal is inconsistent with the planning approach adopted by the draft Amending LEP.

114 The Council contends that the proposal is inconsistent with the Community Management Statement for Mount Haven Estate, and that this is also a matter to be considered as an aspect of the public interest: Terrace Tower Holdings, at [81]. Clause 1 of the Community Management Statement contains the following statement of the theme of the Mount Haven development:

Mount Haven will offer secluded residential living in a rural setting surrounded by a working farm. Buildings should not dominate but rather blend into the farm and bush landscape.

115 The Applicant submits that the proposal is consistent with the theme, on the basis that the small rural lots will continue to be surrounded by a farm: it will simply not be one farm only. While we accept, based on the evidence of Mr Kennan and Mr Denyer, that the five proposed lots would be of sufficient size to support some agricultural activity, we consider that in the context of the background to the development of the community scheme and thus its implementation as expressed in the Community Management Statement, there is a difference between one working farm of 480ha, and five smaller farms, each potentially with a dwelling house and associated buildings. We agree with the Council that the proposal is not consistent with the Community Management Statement.

116 We are satisfied that the proposal is not consistent with the planning approach adopted by the draft Amending LEP, is not consistent with the objectives of the DCP, and that approval would be contrary to the public interest. Development consent should be refused.

117 The two remaining issues in dispute concern whether consent of the Community Association as owner of access roads and other infrastructure was required in accordance with s78A of the Act and cl49 of the Environmental Planning and Assessment Regulation 2000, and whether the granting of consent would result in contravention of the Act, because of breach of a previous consent, contrary to s80(2) of the Act.

Owner’s consent

118 The Council contended that the Court does not have power to consent to the application as the consent of the Community Association, as owner of access roads and other infrastructure, is required in accordance with s78A of the Act and cl49 of the Environmental Planning and Assessment Regulation 2000, and has not been obtained. The Council contends that the application involves the use of facilities provided within the community scheme, and the construction of works on community land, including use of existing private access roads, construction of access over part of the community land for access to lots 62 and 64, and creation of rights of carriageway over community land to service lots 62 and 64. The Applicant submits that the Community Association has granted rights of access and easements for services, and that in any event access is possible to each of the proposed lots by direct public road access (lot 60), access from Mt Haven open accessway (lots 60, 61, 63), an open accessway between lots 58 and 59 and then across the Crown road between the end of the open accessway and the boundary of lot 62 (lot 62). Access to lot 64 could be obtained via an open accessway and then via an easement over lot 63, or through the Crown reserve road nominated by the Rural Fire Service as an alternate access through lot 63 to the junction of the open accessway and the Crown road that provides access to lot 62.

119 The development application described the proposed development as “Five (5) lot rural subdivision”. The parties disagreed as to the extent to which the Court should consider construction work needed for any proposed access roads, in relation to the issue of owner’s consent. The Statement of Environmental Effects states (at 13):

Each allotment is accessed from the existing external bitumen access road over the existing community Lot 1. The internal road connects each of the existing and proposed allotments with Diamond Swamp Road to the east.

120 The Statement of Environment Effects subsequently states (at 15):

Physical works will be limited to the provision of access from the existing internal road and individual services to each of the allotments.

121 The development for which consent is sought is the subdivision of land into five lots, and the Applicant accepted that it needs to show that physical and legal access to the boundary of each proposed lot is possible. We accept that physical access is possible to each of the proposed lots. We accept the Applicant’s submission that this application is an application in respect of the subdivision, and not for the construction of access roadways (Lyne v Moree Plains Shire Council (1999) 110 LGERA 120). The Applicant has provided copies of easements granted for services, and for rights of access over the community lot, including the land from the end of the open accessway to the boundary of proposed lot 63 (Ex E, sheet 25). We agree with the Applicant that this would not be a basis for refusal of the application.

Existing consent

122 The Council contends that approval of this application would be contrary to a condition of the existing development consent for the subdivision granted 30 May 1997, and thus result in a contravention of the Act. Section 80(2) of the Act states:

(2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.

123 The Council submits that while a later development consent could be granted which is inconsistent with an earlier consent provided a condition is lawfully imposed requiring the modification of the earlier consent, in this case, the modification would not be within the power conferred by s96 of the Act as it would render the development as proposed to be modified substantially different from the development as approved. The Applicant submits that Rutland v Shoalhaven City Council (1997) 94 LGERA 370, on which the Applicant relied (subject to the proviso expressed by the Court of Appeal in Wingecaribee Shire Council v Pancho Properties Pty Ltd (2001) 117 LGERA 104), can be distinguished as there is in this case no condition expressly prohibiting further subdivision. We agree with the Applicant that the development consent granted in 1997 for the approval of Stage 1 of the development, which included the creation of “(d) One Farm Lot” would not preclude a later, otherwise permissible, development application in respect of the same land being considered. The significance of the 1997 development consent arises from its place in the planning approach that resulted in the rezoning to create the 1(f) land and the approval of the community scheme, and this has been considered above in the context of the SEPP No 1 objection and the public interest.

124 The Orders of the Court are:

1. The appeal is dismissed.

2. Development Application 2008/0211 for the subdivision into five lots of Lot 46 DP 270159, Diamond Swamp Road, Meadow Flat, is refused.

3. The exhibits are returned.

Linda Pearson
Commissioner of the Court

J Fakes
Commissioner of the Court

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Citations

Hood Rural Resources Pty Ltd v Bathurst Regional Council [2009] NSWLEC 1366

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CITATION:	Hood Rural Resources Pty Ltd v Bathurst Regional Council [2009] NSWLEC 1366
PARTIES:	APPLICANT Hood Rural Resources Pty Ltd RESPONDENT Bathurst Regional Council
FILE NUMBER(S):	10123 of 2009
CORAM:	Pearson C - Fakes C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Subdivision State Environmental Planning Policy No 1 Development Standards
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Community Land Development Act 1989 Native Vegetation Act 2003 Real Property Act 1900 Conveyancing Act 1919 State Environmental Planning Policy No 1-Development Standards State Environmental Planning Policy No 44- Koala Habitat Protection State Environmental Planning Policy (Rural Lands) 2008 Bathurst Regional (Interim) Local Environmental Plan 2005 Interim Development Order No 1 - Shire of Evans Evans Local Environmental Plan No 11 Bathurst Regional Council Development Control Plan - Mount Haven Estate
CASES CITED:	Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 Matic v Mid Western Regional Council [2008] NSWLEC 113 Lyne v Moree Plains Shire Council (1999) 110 LGERA 120 North Sydney Council v Ligon 302 Pty Ltd (No 2) (1996) 93 LGERA 23 Rutland v Shoalhaven City Council (1997) 94 LGERA 370 Sealark Pty Ltd v Shoalhaven City Council (2000) 109 LGERA 263 Sealark Pty Ltd v Shoalhaven City Council [2002] NSWCA 39 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 Wehbe v Pittwater Council (2007) 156 LGERA 446 Wingecaribee Shire Council v Pancho Properties Pty Ltd (2001) 117 LGERA 104 Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 Zhang v Canterbury City Council (2001) 51 NSWLR 589
DATES OF HEARING:	19, 20, 31 August 2009
DATE OF JUDGMENT:	11 November 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr I Hemmings, barrister Instructed by Mr T Cork, McPhee Kelshaw RESPONDENT Mr P Clay, barrister Instructed by Mr P Crennan, McIntosh, McPhillamy & Co