Jones v Shoalhaven City Council - [2009] NSWLEC 1081

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Jones v Shoalhaven City Council [2009] NSWLEC 1081

PARTIES:
APPLICANT
Jones, R A & M S
RESPONDENT
Shoalhaven City Council

FILE NUMBER(S): 11018 of 2008

CORAM: Hoffman C

KEY ISSUES: APPEAL - SUBDIVISION :- SEPP1 objection; variation of minimum area lot size by 97% underlying purpose of standard, does lack of environmental impact justify variation

LEGISLATION CITED: Shoalhaven Local Environmental Plan 1985
Environmental Planning and Assessment Act 1979
Rural Fires Act
State Environmental Planning Policy No. 1 - Development Standards
South Coast Regional Strategy 2006
Rural Lands State Environmental Planning Policy (2008)
Department of Planning Circular No.B1
lIIawarra Regional Environmental Plan No. 1

CASES CITED: Wehbe v Pittwater Council (156 LGERA 446-465 at 457)
Winten Property Group v North Sydney[2001]130LGERA79
Stoertz Vs Kiama Council 10920 and 10753 of 1995

DATES OF HEARING: 27 January 2009

DATE OF JUDGMENT:
17 March 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr R A Jones, Litigant in person
RESPONDENT
Mr G Gleeson, Solicitor of Morton & Harris,
with RMB Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

17 March 2009

11018 of 2008 Jones R. A & M. S. v Shoalhaven City Council
JUDGMENT

1 Commissioner: This is a Class 1 Appeal No. 11018 of 2008 between Mr R A & Mrs M S Jones and Shoalhaven city Council in regard to the refusal of a two lot subdivision proposal of Lot 20 DP 1034024 known as No.663B Little Forest Road, Little Forest, NSW near the town of Milton.

2 The proposal of Rygate & West plan No. U13589 dated 20/04/07, is to cut off a 1.1 hectare (ha) lot from the existing 5.124 ha Lot 20. The new lot would take the entire frontage of Lot 20 (121m) to Coral Tree Lane. The residual 4.024 ha lot, on which the existing house remains, has access to Little Forest Road via a Right of Way through Lot 5 DP709716.

The Locality

3 The land is on the shoulder of a high ridge leading up to the escarpment of the coastal range of mountains. Little Forest Road runs up this ridge until it stops at a property just past Lot 5 DP709716. That property is at the base of the escarpment. The rock cliffs prevent access beyond, and to get to the plateau above, the closest access is via Pointer’s Gap Road just to the north.

4 As one leaves the Prince’s Highway on Little Forest Road, there are rural farms around, then a hobby farm lot subdivision on the rolling foothills. Then the road goes through a national/state forest before it climbs onto the ridge mentioned above.

5 Above the forest there are rural properties both sides of the ridge with their houses built up near the road. They are built in that position probably because of the steepness of the slope once off the shoulder of the ridge. In the last kilometre of the road there are about 15 houses. The subject property is more or less in the centre of this cluster adjacent Lot 5 DP709716 that has a holiday ranch/health resort containing tennis court, swim pool, conference facilities, gym and about 20 bedrooms. In the hearing this development was referred to as “Ranch H”.

6 On the south side of Ranch H is a 2.5ha lot that was once part of Mr Jones land, it has a house on it. He obtained that subdivision via approval of a SEPP No.1 objection by Council around 1993. He had asked in that application to include the 1.1ha lot now sought, but that component was refused.

7 The subject land is generally pasture up on the shoulder of the ridge and there is part of the land downhill on the steeper slope that is treed.

8 There is a history related during the Hearing of how the 15 houses and Ranch H, and some other lots (not yet built upon) came into existence. I shall refer to the history later.

The Site

9 The site is known as Lot 20 DP1034024 Little Forest Road, Little Forest.

10 The site has an area of 5.124 hectares and is of irregular shape.

11 There is an existing dwelling located centrally on the site. This existing dwelling would be located on proposed Lot 11 and the new dwelling would be located on proposed Lot 10.

12 The site slopes generally in a south-easterly and easterly direction, with panoramic views to the east.

13 The vegetation on the site of the proposed lot 10 is generally disturbed, with little vegetation, other than adjacent to Coral Tree Lane. This land has been used for cattle grazing.

14 There is access to the site via frontage to Coral Tree Lane, or via a right of carriageway (Lyrebird Lane) to Little Forest Road. Access to the proposed Lot 10 would be directly from Coral Tree Lane.

15 The site is mapped as Scenic Preservation Area and part Bushfire Prone Land. under the SLEP

Zonings of land

16 The subject property is zoned Rural 1(d) - General Rural under the Shoalhaven Local Environmental Plan 1985 (SLEP).

17 Section 91 of the Environmental Planning & Assessment Act 1979 applies to the application as the site is mapped as part bushfire prone land under the SLEP and a bush fire safety authority must be issued from the Rural Fire Service in accordance with section 100B of the Rural Fires Act 1997.

18 The State Environmental Planning Policy No. 1 - Development Standards (SEPP1) applies in relation to the 40 hectare development standard in Clauses 11 (2) and 14(2) of the SLEP.

19 The Department of Planning Circular No.B1 sets out information about SEPP1 including Guidelines, Notification of Assumed Concurrence, Monitoring, and Information to be provided to the Department. In accordance with this Circular, Council could not assume the role of the Director-General in granting concurrence.

20 The Rural Lands State Environmental Planning Policy (2008) (Rural Lands SEPP) applies indirectly to the site.

21 The lIIawarra Regional Environmental Plan No. 1 (IREP) applies to the site. The relevant provisions are as follows:

22 The Shoalhaven Local Environmental Plan 1985 (as amended) (SLEP) applies to the site. The relevant provisions are as follows:

a)

to provide opportunities for

range of rural land uses and other development, including those which by virtue of their character require siting away from urban areas;

b)

to recognise the potential for high intensity bush fire over wide areas of the zone and to ensure that development does not lead to significant risks to life or property from bush fire or to the implementation of bush fire mitigation measures which will have

significant environmental impact; and

c)

to ensure that wherever possible the location, design and management

development is consistent with:

i. the protection

important natural and cultural environments;

ii. the conservation

renewable natural resources such

forests and prime crop and pasture land;

iii. the maintenance

opportunities for economic development

important extractive resources;

iv. minimising conflict between land uses; and

v. any plans for public infrastructure provision or management

23 The following Development Control Plans apply to the site:

24 The South Coast Regional Strategy 2006 - (January 2007, NSW Department of Planning) applies to the site. The aims of the Strategy include the limitation of development in places constrained by important primary industry resources and significant scenic landscapes. The Strategy indicates that additional rural residential areas must be located on cleared land unsuitable for urban or agricultural uses. No new rural residential zones will be supported unless as part of an agreed structure plan or settlement strategy. Council does not have an endorsed growth management strategy or structure plan in place for the Little Forest area.

1 Contrary to Development Standard

Particulars

2 SEPP I Objection Not Supported

Particulars

3

Sequential Subdivision

Particulars

4 Strategic Planning Implications

Particulars

Plan

State Environmental Planning Policy (Rural Lands) 2008

Particulars:

Public Interest & Cumulative Impacts

The proposal is not in the public interest having regard to the possible cumulative impact for subdivision of small rural lot holdings in Council's local government area.

Particulars

The Evidence

Ms E Downing subdivision planner for the council
Mr N Mc Gaffin regional director NSW Department of Planning

Mr R A Jones litigant in person, assisted by
Mrs M S Jones litigant in person.

Mr D Pym subdivisions manager at the council
Mr M Parker local planning manager NSW Department of Planning
Ms L Kennedy town planner
Mr G Blucharz, local resident.

28 The parties agreed that the applicant should describe the proposal and relevant history in opening and tender documents, and that the respondent would then open and tender documents. After that evidence was heard.

Around 1989 there was a new LEP effecting adjoining land that allowed subdivision, and he would have sought to be part of it and subdivide. But council did not advise him of the exhibition.
In 1992 he asked council for a rezoning to subdivide into 3 lots (being 2 new lots and the existing one), but that was not done. Instead the council upheld a SEPP 1 (State Environmental Planning Policy No.1) objection and allowed him to cut off one allotment that is Lot 1 DP832404 of 2.63 ha on the west side of his existing allotment of 5.124 ha. Mr Jones had given a ROW across his land to a neighbour and Lot 1 is west of the ROW and therefore separated from his existing lot.
The subject proposal would create the third lot sought in that original application by cutting off 1.1 ha fronting Coral Tree Lane and leaving Mr Jones with his house on the residue 4.04 ha. Mr Jones access would be via the ROW (Lyrebird Lane) to Little Forest Rd.
Mr Jones said the approval for the holiday Ranch H included subdivision for 20 or so community lots and 120 cabins and it seems inequitable to refuse his proposal when all the land nearby is similar.
In addition, there had been earlier subdivisions of “concessional lots” and approval of houses on them and on “existing holdings” such that within an area of about 40 ha around his allotment there are 15 houses. His lot is in the middle of them, so it cannot create a precedent as alleged by the respondent.
The most recent subdivision in 2003 was again in former Ranch H land where just uphill of his property 3 lots of between 1.3 ha and 3.3 ha were allowed. These are at the end of Little Forest Rd adjacent the escarpment cliffs up to the plateau. He alleged that it seemed to be the subdivision was allowed to fund Ranch H that appeared to be in financial difficulty at the time.
The Statement of Environmental Effects in his application carried out by Planscapes Town Planning Consultancy in Exhibit G, shows that all the Contentions by the respondent are answered and show either no impact or insignificant impact in the event of approval of the subdivision.
Mr Jones tendered Exhibits A to L.

1964 – there was an Interim Development Order that zoned the land as Rural, but it has little relevance to this appeal, except that it permitted 3 small concessional lots on any “existing holding” of 40 ha or more. An “existing holding” was a parcel of adjoining lots in the same ownership at a date in February 1964.
On an existing holding of less than 40 h, one dwelling house could be erected. A dwelling house could be erected on each small concessional lot and the residual lot. Usually the residual lot was a larger lot.
1974 - The 40 ha minimum area for subdivision of a rural lot established.
1985 – Shoalhaven Local Environmental Plan 1985 carried over the concessional lot and existing holding provisions.
During these years some owners got the 3 concessional lots and then sold “residual lots” that no longer had any eligibility for the concession. There were instances of split ownership of existing holdings where one part-owner got the benefit and the other part-owner(s) did not. This obviously made for arguments between part-owners, and feelings of inequity, but that was nothing to do with the legislation or the planning objectives. Some people who bought ineligible residual lots had the impression they should be able to subdivide, but could not.

The Jones property had no eligibility for concessional lots.
This period is responsible for most of the 15 or so houses around the subject property, and is the result of subdivision permissible under the legislation at the time. The reason they are clustered up near Little Forest Rd is due to the steep topography away from the road, and the council policy to “cluster” the rural houses for efficiency of providing road access and services and hazard protection.
1999 – Shoalhaven Local Environmental Plan Amended No. 127 - Rural Land has a series of provisions that do not allow a further subdivision or another house on the subject land. There is a further draft LEP awaiting exhibition, but it retains similar provisions with a 40 ha minimum for subdivision. The standard of 40 ha has been set for reasons contained in Ms Downings evidence.
Subdivision by a SEPP 1 objection involves an application passing through some “gateway” tests before one even assesses any merit issues such as those in the Planscapes report. The main “gateway” is whether or not the 40 ha minimum area standard is reasonable or not. Using SEPP 1 to bypass established legislation to get a de facto rezoning is not acceptable. If approved on the subject land to get “just one more lot”, it would prompt all the other landowners in Little Forest Rd and elsewhere to expect a similar “new concessional lot” if they have lots of 5 ha or more in area.
The Ranch H was originally approved in 1977. The first subdivision was a rezoning under LEP No.9 as an amendment of the IDO to allow the homestead to have one lot of about 5 ha and 4 other lots of about 1 ha and 120 cabins and 25 community lots. It was a “spot rezoning” for the purpose of the holiday ranch, and it went through a legitimate planning study, exhibition, council recommendation and acceptance by the Department of Planning and the Minister of the day. There were five development applications on Ranch H dealt with by Council between 1977 and 1990.
A later rezone in 2002 of the Ranch H holding occurred in Shoalhaven LEP 1985 amendment No.176. It too went through a legitimate rezoning process, and is now zoned differently to the Jones land. It is part Rural 1(c) - Rural Lifestyle, and part Environmental Protection 7(e) – Escarpment. The most recent subdivision in 2003 in fact only approved the 3 lot subdivision on condition of the surrender of the development consent for the 120 cabins and 25 community lots on the same land. That had the advantage of greatly reducing the intensity of development of the property and ensuring the scenic protection of the escarpment and bushland at its base. The only intense use remaining is the holiday ranch homestead on Lot 5 DP709716.
Mr Gleeson tendered Exhibits 1 to 4.

31 Ms Downing said the underlying purpose of the 40 ha minimum area is to prevent fragmentation of rural agriculture land. The area of the existing lot is already far below the 40 ha minimum, but it has more potential to have some rural industry or intensive farming at 5 ha, than it would as two lots. The proposed new 1 ha lot is too small for agriculture, and evidence from the Department of Natural Resources and Department of Primary industries shows that such lots are really only good for rural dwellings. In fact because rural dwellings are often large, with multiple vehicles and outbuildings such as corrals, stables, water tanks, garden pavilions and access driveways and recreation facilities like swim pools and tennis courts, even 1 ha can be too small to enable desirable boundary setbacks.

32 She observed that the most useable and best oriented land on the property is up on the ridge where the existing pasture and the proposed new lot are located. Having a new 1 ha lot cut out of it creates the problem of a house next to a potential rural industry or intensive farming activity.

33 Experience has shown that proximity of neighbouring houses on rural lots restricts agriculture because crop or pasture sprays, and rural machinery create nuisances or even health risks. People in rural residential areas usually want peace and quiet, and that is interrupted by active agriculture, rural industries and/or intensive farming.

34 The Department of Primary Industry has required substantial setbacks for say, crop or pasture spraying, from any house and its curtilege. As a result that sort of agriculture may be prevented on either lot of the subdivision.

35 When cross examined on the Ranch H history, Ms Downing said she had researched the history and agreed that at one stage the owners, the Hancocks, needed funds to complete the ranch homestead component. The council and the Department of Planning would not allow subdivision without a reduction of the intensity of development. So there was a trade-off to delete the 120 cabins and the 25 community lot approvals, in return for consolidating down to the 3 small lots for rural residential in the Zone 1(c) area and scenic protection in the Zone 7(e) area.

36 Mr Jones said he had not been able to obtain any records of the surrender of the cabins and community lots approvals. Ms Downing said it is in the council files and could have been obtained by FOI application.

37 It was put to her the council had supported the first SEPP 1 objection for Mr Jones subdivision, so why not this one. She deferred to Mr McGaffin.

38 She did agree with Mr Jones that in the context of the 15 houses surrounding his property, one more house would make little difference to the rural scenery. In regard to the draft LEP and the new Zone RU2 that would apply to the property, Ms Downing said the rural dwelling and subdivision provisions would be the same as the current ones.

39 She was asked the basis for her evidence that allowing this subdivision would force up the price of agricultural land. Ms Downing said when zoned agricultural land was bought by people wanting just “rural residential”, that is people who did not need to earn a living from the land, they usually paid inflated prices and that pushed up the cost of farmland. Shoalhaven is currently experiencing this with farmland around Berry and Coolangatta, she said.

40 Mr Jones put that 1.1 ha is more than sufficient for a rural house and its outbuildings. A normal suburban house can fit onto a 500 sq m lot, and 1.1 ha is 11,000 sq m or 22 times that size. It must be more than enough for a rural house and extra facilities. Ms Downing said she was going by the Department of Agriculture and Primary Industries.

41 She was asked how many cattle would 1.1 ha graze. Ms Downing did not know, but said the stock carrying capacity is not the only farm use, and with a house on it there is much less than 1.1 ha available.

42 It was put to her, the surrounding small lots of 1 to 3 ha are not viable farmland if his proposed 1.1 ha lot is not viable. She said the other small lots, when approved as concessional lots and when houses were approved on existing holding lots, they were not subject to a test of potential rural agricultural use. That test does apply to Mr Jones proposal.

43 In reply Ms Downing was asked to comment on Mr Jones evidence that the Ranch H small lot subdivision is a precedent for his proposal. She said that Ranch H done by LEP amendment No.176 was a rezoning after a proper legislative process. It does not form a precedent for a SEPP 1 objection.

44 If the SEPP 1 is upheld it is a misuse of its purpose in her opinion because it would create a de facto rezoning. She noted Mr Jones also said that an approval of his SEPP 1 would not create a precedent, but it would create a precedent in her opinion, as there are many lots nearby and elsewhere in Zone 1(d) that would want to use Mr Jones approval as a precedent for their getting 1 ha lots. See the following map of the precinct.

46 Mr Jones put that the draft LEP referred to earlier would prevent any more 1 ha lots in Zone 1(d). Ms Downing said that SEPP 1 would still exist with the potential to overturn the draft LEP.

47 He added that the new RU2 zone would prevent tree clearing as well, so it would only be cleared land similar to his that could go for SEPP 1. Ms Downing said there are plenty of Zone 1(d) lots with more than 1 ha cleared. In any case she said it is unprecedented in her memory for the same allotment to have SEPP 1 used twice to get a subdivision. Mr Jones commented at Ranch H there were “all sorts of shenanigans”. Ms Downing reminded him that the 120 cabins and 25 community lots were stopped and that was a good outcome.

48 Mr Mc Gaffin said the existing 5.5 ha lot of the Jones does have agricultural potential, and that would be drastically reduced or lost if 1.1 ha is cut out of it. The small lot of 1.1 ha is some of the best agricultural land on the property, and due to its size and its panoramic views and north-east orientation would almost certainly be used as rural residential only. As a result it too would be lost to agriculture for the reasons that Ms Downing gave. So the objectives of the Zone 1(d) would be defeated.

49 Mr Jones put to him that a house can go on a ¼ acre lot and even the 1.1 ha would be close to 3 acres. Mr McGaffin said that rural homes spread out on their land and are usually larger than suburban houses and have driveways, garages, sheds, gardens and other facilities that leave little room for agriculture.

50 In cross examination of Mr Jones it was put to him that the subject land is rated as having prime crop and pasture potential under the Illawarra Regional Environmental Plan, and also it is scenic quality IV (with V being the highest quality) under the Illawarra Landscape and Environment Study. The cluster of 15 homes around the site is in a pocket between the Morton National Park escarpment and State Forest. It is elevated and therefore visible as part of the total high value rural scenery of the area.

51 Mr Jones said his expert report by Planscapes says the land is only Grade 3 or 4 agricultural land and therefore is not high value. In addition it is already so small and surrounded by other rural houses that it can make no significant contribution to the rural economy.

given its cleared nature and the surrounding cleared properties the bushfire hazard is minimal. The part of the land mapped as bushfire prone is down in the gully not on the ridge.
The site and the surrounds are not heritage items.
The previous larger farms in the locality have been fragmented by the previous “concessional lots” and the “existing holding” dwelling entitlements, and the Ranch H subdivisions.
As a result his proposal is consistent with the existing pattern of development.
There is no conflict with existing or proposed infrastructure.
The land is not subject to a flood plane, or significant overland flows.
There are no engineering access problems.
It cannot be seen from the highway, and has limited visibility from Little Forest Road.
Even if it could be seen from those vantage points, Ms Downing agreed that it would fit in visually with the other 15 houses around the site.
It is cleared pasture land and therefore has no flora and fauna issues.
There are no technical hazards such as land slip.
There are no conflicts with DCP 100.
On site sewage treatment for both lots is achievable.
Electricity and telephone are available from the road.
The high local rainfall makes ample water supply possible with appropriate tanks.

53 Mr Jones agreed that when he put in his original application for 3 lots in 1992, one of the reasons for refusal was that the Department of Agriculture would not support the SEPP 1 objection for more than 1 extra lot. Nevertheless since 1992, he has seen most of the lots around him either subdivided and built on, or just built on. He produced an aerial photo of his property and surroundings circa 1992 and his is one of only two houses in sight. The second house in that photo is the original H homestead on the next ridge. Now as Mr Jones says there are houses all around him and he produced a photo to show that.

Conclusion
54 The basic argument the respondent put forward is that SEPP 1 is not an acceptable way to achieve a subdivision in this case. The respondent did not challenge the applicant’s evidence in the Planscapes report, except to say that one cannot get to consider the merits unless the question of the 40ha standard being reasonable is answered in the negative.

55 Although it was not said, it seems a little obvious from the zoning map resulting from Shoalhaven LEP Amendment No.176 that the new Zone 1(c) – Rural Lifestyle, in which the Ranch H new small lots are located, ends against similar land that extends down towards the Jones’ and other properties where the 15 existing houses are located. This ties in with Ms Downing and Mr McGaffin’s statements that the Ranch H zonings resulted from a legitimate planning process, and the “short-cut” of a SEPP 1 is not the proper approach to achieve the same outcome. In Mr Jones submission and Planscape report it shows the Zone 1(d) is inappropriate in this precinct.

56 Rezoning is not within the power of the Court. That is a matter for legislative bodies such as Local Government and State Government.

Wehbe v Pittwater Council

60 A range of other provisions apply to subdivision in Zone 1(d) but the parties say these are the relevant ones.

61 I note that even if the subject land were Zone 1(c) - Rural Lifestyle, the subdivision provisions are such that it still could not be subdivided. It is required that where prime crop or pasture land is to have a 1 ha lot cut off, the remaining part of the original lot has to have 10 ha of prime crop or pasture land. The subject land is mapped by the Dept of Agriculture as Class 3 agricultural land (Planscapes bushfire report and Ms Downings evidence). The SLEP1985 definitions say that “prime crop and pasture land” is Class 1, 2 or 3. So given the existing subject lot is 5.124 ha, it could not comply. It would have to be 11 ha minimum and part of the Class 3 land needed to form the 10 ha is the same land proposed for the 1.1 ha lot.

62 In regard to the Ranch H rezoning, I have no evidence whether it is Class 1, 2 or 3 agricultural land. Of course the applicable clause for Ranch H is cl 12A of SLEP1985 and it was approved on the basis that cl 12A(2) requires the large residual 4th lot, and cl 12A(3) requires surrender of the consent for the 120 cabins and the 25 community lots, in order to provide for sufficient compliance with Zone 1(c) and 7(e) objectives.

11

64 I note the lot areas vary to a minor extent compared to the surveyor proposed plan of lot sizes.

Is the 40 ha standard a reasonable standard for Zone 1(d) agricultural land.
The purpose of the standard is to achieve the objectives of the zone, and Ms Downing summarised them as being to preserve agriculture land for agriculture and rural industries and to prevent subdivisions of the kind proposed. Another feature of preserving the land for agriculture is to avoid the escalation of rural land prices that make farming uneconomic, such as is occurring around Berry and Coolangatta.

S 8(a) and (b) of SEPP 1 require consideration of whether non-compliance with the 40 ha raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the planning controls.
As put in Wehbe v Pittwater and Winten Property Group v North Sydney[2001]130LGERA79, showing there are no environmental impacts as in the Planscape report is not sufficient to justify an exception.

66 This latter point is cogent to both Ms Downing and Mr McGaffin’s evidence that there are many lots below 40ha in area in Zone 1(d) throughout Shoalhaven that could demonstrate no environmental impact from the subdivision of “just one more 1ha lot”. A few of such lots are amongst the 15 houses near the subject land.

67 Given the powers of SEPP1, an approval of the Jones’ subdivision could easily prompt other owners to expect the same exception to be extended to them. This is the cumulative effect Mssrs Downing and McGaffin are concerned about that would lead to the undermining of the purposes of Zone 1(d) in the Little Forest locality and perhaps elsewhere in Shoalhaven. Those kinds of outcomes are to be avoided under s 8 (a) and (b) of SEPP1.

68 Even if the purposes of the Zone 1(d) in the Little Forest area have already been defeated by the actions of the local and state government in allowing concessional lots and existing holdings and houses upon them, an approval would lead to a de facto rezoning and that is not within the intentions of SEPP1.

69 In Stoertz Vs Kiama Council 10920 and 10753 of 1995 Jensen Snr Commissioner that the underlying purpose of the 40ha standard is to “arrest the gradual loss of agricultural land, particularly that which lies close to urban settlement, through conversion to non-agricultural uses such as purely rural/residential accommodation”.

70 Also he observed that when the use of the land is no longer agricultural then it can be permanently lost to that purpose. In the subject case the Planscapes report and the applicant state the 1.1ha lot is most likely to be used for rural residential, even though the applicant says there will be enough land outside the homestead for agricultural uses.

71 The council’s evidence is that in gazetting its 1999 Rural Plan Amendment to the SLEP it adopted the current zoning in the Little Forest precinct, and in carrying out its studies for the new draft LEP 2009, it has decided not to vary the applicable clauses on minimum area for subdivision and dwellings in the SLEP. The draft says it will rename the precinct RU2-Rural Landscape and this reinforces the applicable standards.

72 The South Coast Regional Strategy adopted in 2007 says: ”No new rural residential zones will be supported unless as part of an agreed plan or settlement strategy”.

73 These policy directions indicate a firm intention that small lot subdivision in the Zone 1(d) areas will continue to be discouraged. The underlying purpose is that stated above to preserve Classes 1 to 3 agricultural land for the use of future generations in primary industries.

74 The existing lot at 5.124 ha is more likely to have an agricultural use than are two lots of 1.1 ha and 4.024 ha. The non-compliance with the standard would be between 90% and 97%. It is a major variation from the standard and any approval could bring into question the ability to achieve the objectives of the zone within Little Forest precinct and the wider areas of Zone 1(d) in Shoalhaven local government area.

75 The State government in combination with local government are intent on this objective in the greater public interest that includes future generations.

76 The SEPP1 objection lodged by the applicant fails to identify and deal with this underlying purpose of the preservation of valuable agricultural lands. I have formed the opinion that it is not “well founded” as described in s 7 of SEPP1, and that concurrence to the objection under s 8 of SEPP1 should not be granted as it does raise matters of significance for State and regional planning, and there is public benefit in maintaining the applicable statutory standards.

K G Hoffman

Commissioner of the Court

Actions

Download as PDF Download as Word Document

Citations

Jones v Shoalhaven City Council [2009] NSWLEC 1081

Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

8

CITATION:	Jones v Shoalhaven City Council [2009] NSWLEC 1081
PARTIES:	APPLICANT Jones, R A & M S RESPONDENT Shoalhaven City Council
FILE NUMBER(S):	11018 of 2008
CORAM:	Hoffman C
KEY ISSUES:	APPEAL - SUBDIVISION :- SEPP1 objection; variation of minimum area lot size by 97% underlying purpose of standard, does lack of environmental impact justify variation
LEGISLATION CITED:	Shoalhaven Local Environmental Plan 1985 Environmental Planning and Assessment Act 1979 Rural Fires Act State Environmental Planning Policy No. 1 - Development Standards South Coast Regional Strategy 2006 Rural Lands State Environmental Planning Policy (2008) Department of Planning Circular No.B1 lIIawarra Regional Environmental Plan No. 1
CASES CITED:	Wehbe v Pittwater Council (156 LGERA 446-465 at 457) Winten Property Group v North Sydney[2001]130LGERA79 Stoertz Vs Kiama Council 10920 and 10753 of 1995
DATES OF HEARING:	27 January 2009
DATE OF JUDGMENT:	17 March 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr R A Jones, Litigant in person RESPONDENT Mr G Gleeson, Solicitor of Morton & Harris, with RMB Lawyers