Matic v Mid-Western Regional Council - [2008] NSWLEC 1419

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Matic v Mid-Western Regional Council [2008] NSWLEC 1419

PARTIES:
APPLICANT
Branaslav Matic

RESPONDENT
Mid-Western Regional Council

FILE NUMBER(S):
11269 of 2007

CATCHWORDS:
Development Application :- subdivision of rural land into 5 small 4 ha lots and 5 x 40 ha plus 1 x 82 ha lot.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Rural Lands) 2008
Rylstone Local Environmental Plan 1996
Rylstone Local Environmental Plan 1996 as amended by SEPP

CASES CITED:
Matic v Mid-Western Regional Council [2008] NSWLEC 113

CORAM:
Murrell C

DATES OF HEARING:
20/05/2008 and 13/06/2008

JUDGMENT DATE:
21 October 2008

LEGAL REPRESENTATIVES

APPLICANT
Ms T. Spiegal, solicitor
of Spiegal and Associates

RESPONDENT
Mr P. Crennan, solicitor
of McIntosh McPhillamy & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Murrell C
21 October 2008
11269 of 2007 Branaslav Matic v Mid-Western Regional Council

JUDGMENT

The applicant in these proceedings is seeking to subdivide rural land known as 277 White Rock Road, Pinnacle Swamp into 11 lots. Refer to Figure 1.

The Council and the applicant have agreed to enter into consent orders and there was subsequent agreement as to the conditions of consent that should be attached to the approval.

These proceedings commenced as an on-site hearing and the Court met with the parties and heard from a number of resident objectors to the proposed development.

Mr and Mrs Schild of No. 578 White Rock Road who have lived on their property for some 14 years said that it was incorrect to say that the was not prime, crop and pasture land and that two thirds of it is viable for grazing. They object to 21 dwellings on the subject subdivision which will in their opinion be a housing estate in a rural environment and these are recreational blocks with no real opportunity for agriculture leading to conflict and friction with adjoining properties. They are also concerned about the increased traffic on the road and the fact that for emergency vehicles a two lane road would be necessary. They said the area had a good community spirit and the character of the area would be undermined by the proposal.

Mrs and Mrs Van der Walt have a hazelnut and orchard producing property in their opinion the proposed development is contrary to the objectives of the zone that is to enhance and protect farmland and crime, crop and pasture land. They also expressed concern about fire protection and fuel loading and that the local fire captain had not been consulted. They share a common western boundary with the subject property. They expressed concern about the character of the area and questioned the need for the subdivision as small hobby farms as they are not large enough for an agricultural unit. The issue of precedent was also raised and the impact on residents of the street.

Mrs Hunt of White Rock Farm expressed concern to the Court about the destruction of grazing land…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWLEC 1419
Decision Date: 21 October 2008

CaseChat Overview and Summary

Branaslav Matic, the applicant, is seeking to subdivide rural land into 11 lots, which is contested by the Mid-Western Regional Council, the respondent. The Council and the applicant have reached an agreement on consent orders and the conditions attached to the approval. The proceedings were initiated as an on-site hearing, where the Court met with the parties and heard objections from local residents. The key legal issues involved the interpretation of clause 13 of the Rylstone Local Environmental Plan 1996, specifically whether the subdivision of land into lots smaller than the minimum required area was permissible. The Court found that the applicant's argument was consistent with the natural and ordinary meaning of the clause, allowing for one concessional allotment for each 40 hectare lot created by a grant of consent.

The Court ruled that the subdivision was permissible pursuant to clause 13 of the Rylstone Local Environmental Plan 1996. The Court considered the evidence presented, including the statutory planning framework and the residents' concerns. The Court concluded that the proposed development was consistent with the objectives of the plan and the rural lands SEPP. The Court proposed amendments to the conditions of consent, including relocating one of the lots to minimize conflicts with adjoining agricultural land and adding a requirement for a section 88 instrument. The Court directed the parties to provide an amended set of conditions, upon receipt of which the Court would issue orders for the appeal to be upheld by consent subject to the proposed conditions.

Orders