Matic v Mid-Western Regional Council
[2008] NSWLEC 1419
•21 October 2008
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 WALESMurrell 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 and the negative impact that the proposal would have on the area and she sees this as an unwanted housing estate. She expressed concern about the impact of the proposal on the environment and the social impact and the effect on water. She has some 600 hazelnut trees on her property and considers that with 21 neighbours there would be a conflict with the agricultural production of her land because smaller properties are different to primary producers. She also expressed concern about the fact that the road is unsuitable for the additional traffic and the safety of children and that the surface should be tared.
At this stage Mr Bruce, Council’s planner was requested to advise on the reclassification of agricultural land and the process. The subject land has been reclassified to Class 4 and 5 when previously some 10 - 15% was classified as Class 3 and for the reclassification an expert report was submitted to the council.
Mrs Helen Johnston of Pinnacle Swamp Road has lived in the area for some 38 years she has land on either side of the road and therefore stock often cross the road and she can see with a greater density of development the conflicts that would occur. She also expressed concern about the misuse of concessional lots.
Mr and Mrs Johnston of No. 94 White Rock Road, expressed concern about concessional lots increasing the price of agricultural land when there are genuine primary producers in the district. They said that multiple 4 ha lots with to small and that the subdivision and density would create conflict with existing primary producers. The upgrading of the road was also considered to be a necessity with a tar seal.
Mr Smith spoke on behalf of Mrs Morris who has a beef cattle property of some 15,000 ha and is concerned about the impact of the proposal on being able to carry out strain and also the noise that would be generated from their property with a hay shed close to the house. He questioned the viability of being able to run a rural property next to rural residential.
Ms Iris Patterson of Darley Oak No. 278 White Rock Road has a goat farm and is concerned about the need for the upgrade of the road before any subdivision work is carried out.
Expert evidence was given to the Court by Mr Bruce, Council’s Planning Assessment Officer.
Statutory planning framework
The subject land is zoned 1(a) under the Rylstone Local Environmental Plan 1996.
The objectives of this zone are to promote the proper management and utilisation of resources by:
(a) protecting, enhancing and conserving:(i) agricultural land in a manner which sustains its efficient and effective agricultural production potential,
(ii) soil stability by controlling and locating development in accordance with soil capability,
(iii)forests of existing and potential commercial value for timber production,
(iv)valuable deposits of minerals, coal, petroleum and extractive materials by controlling the location of development for other purposes in order to ensure efficient extraction of those deposits,
(v) trees and other vegetation in environmentally sensitive areas where the conservation of the vegetation is significant to scenic amenity, recreation or natural wildlife habitat or is likely to control land degradation,
(vi) water resources for use in the public interest,
(vii) places and buildings of archaeological or heritage significance, including Aboriginal relics and places,
(viii) the rural character and amenity of the zone,
(b)preventing the unjustified development of prime crop and pasture land for purposes other than agriculture, and
(c) facilitating farm adjustments, and
(d) minimising the cost to the community of:
(i) fragmented and isolated development of rural land, and
(ii) providing, extending and maintaining public amenities and services, and
(e)providing land for future urban development, for future rural residential development and for future development for other non-agricultural purposes, in accordance with the need for that development, and
(f) encouraging the establishment of rural and rural-related industries.
The general aims and objective of the LEP are:
(a)to facilitate the economic and social development of the area of Rylstone by encouraging commercial, industrial, agricultural, tourist and residential development, and
(b)to encourage the proper management, development and conservation of natural and cultural resources within the Shire of Rylstone by protecting, enhancing and conserving:
(i)prime crop and pasture land, and
(ii) timber, minerals, soil, water and other natural resources, and
(iii) areas of significance for nature conservation, and
(iv) areas of high scenic or recreational value, and
(v) the environmental heritage of the land to which this plan applies, and
(c) to replace the existing planning controls with a single local environmental plan to help facilitate the growth and development of the area of Rylstone in a manner which is consistent with the aims specified in paragraphs (a) and (b) and which:
(i) minimises the cost to the community of fragmented and isolated development of rural land, and
(ii) facilitates the efficient and effective provision of amenities and services, and
(iii) facilitates a range of residential and employment opportunities in accordance with demand, and
(iv) facilitates farm adjustments, and
(v) ensures that the efficiency of arterial roads is not adversely affected by development on adjacent land,
(d) to maintain and enhance the unique character and amenity of the area of Rylstone by:
(i)identifying and protecting the areas natural and cultural heritage, and the distinctive character and amenity of the local community, and
(ii) recognising and maintaining the positive qualities of the traditional lifestyle enjoyed by the residents of the area, and
(e) to ensure the assessment of the physical capability of the land affected by this plan is considered, so that land degradation and impact on water quality are minimised.
The definition of prime, crop or pasture land in the LEP means:
Land within an area identified on a map dated May 1982, prepared by on behalf of the Department of Agriculture, and which is deposited in the Office of the Council, as Class 1, Class 2, or Class 3, but does not include land which the council has from time to time determined by resolution as not being prime, crop or pasture land for the purposes of this plan (after consideration of the guidelines within the rural land evaluation manual prepared by the Department of Urban Affairs and Planning).
The following clauses are also relevant
10 General considerations for development within rural zones
(1) The Council shall not consent to an application to carry out development on land within Zone No 1 (a), 1 (c), 1 (cl), 7 (a) or 7 (c), unless it has taken into account the effect of the carrying out of that development on:
(a) the present use of the land, the potential use of the land for the purposes of agriculture and the potential of any land which is prime crop and pasture land for sustained agricultural production,
(b) vegetation, timber production, land capability (including soil resources and soil stability) and water resources (including the quality and stability of water courses and ground water storage, riparian rights and springs),
(c) the future extraction of known valuable deposits of minerals, coal, petroleum, sand, gravel or other extractive materials and localities considered to be prospective for those materials,
(d) the protection of localities of significance for nature conservation or of high scenic or recreational value, and places and buildings of archaeological or heritage significance, including Aboriginal relics and places,
(e) the cost of providing, extending and maintaining public amenities and services to the development,
(f) the impact on endangered flora or fauna, specified in Schedule 2 as being present in the location in which the development is proposed to be carried out, and
(g) future expansion of settlements in the local ity.
(2)Before granting consent for any such development in the locality referred to in Schedule 2. the consent authority must notify the Director-General of National Parks and Wildlife of the proposed development and take into consideration any comments received from the National Parks and Wildlife Service within 28 days after the notice is sent about the likely effect of the development on endangered flora, fauna or Aboriginal heritage.
(3) As well as the matters referred to in subclause (l), the Council shall take into consideration the relationship of the proposed development to existing development on adjoining land or on other land in the locality.
(4) Subclause (l) and (2) do not apply to the consideration of an application to can)' out development consisting of:
(a) an addition to a building or work,
(b) development ancillal)' to a purpose for which development may be carried out with the consent of the Council under this plan, or
(c) the erection of a dwelling-house on an allotment of land created in accordance with this plan for the purpose of a dwelling-house.
11 Subdivision of land generally
(1) A person shall not subdivide land to which this plan applies except with the consent of the Council.
(2) The Council shall not consent to a subdivision of land within Zone No I (a), 1 (c), 1 (cl) or 7 (c) unless it has obtained all relevant information in relation to, and made an assessment of:
(a) the primary purpose for which each of the proposed allotments is intended to be used, and
(b) whether any such allotment is intended to be used primarily for the purpose of agriculture, and
(c) whether a dwelling-house is intended to be erected on any such allotment and the suitability of the allotment for the erection of a dwelling-house.
12 Subdivision for the purposes of agriculture within Zone No 1 (a)
The Council may consent to the subdivision of land within Zone No 1(a) so as to create an allotment of any area if the Council is satisfied that the allotment is intended to be used for the purposes of agriculture.
Clause 13 of the LEP states:
Subdivision for the purposes of dwellings within Zone No I (a)
(1)The Council may consent to the subdivision of land within Zone No I (a) if the Council is satisfied that each of the allotments to be created by the subdivision is intended to be used for the purpose of a dwelling, but only if each allotment:
(a) has an area of not less than 40 hectares, provided that one concessional allotment of less than 4 hectares but not less than 0.4 hectares may be created for a relative of the owner or for the owner,
(b) is unlikely adversely to affect the existing and potential capability of the land and adjacent land to produce food or fibre or to be used for other agricultural purposes, and
(c) does not comprise prime crop and pasture land.
(2) Notwithstanding any other provision of this plan, the Council may consent to the subdivision of land within Zone No I (a) resulting in the creation of one but not more than one allotment on which a dwelling stands from an existing holding if that dwelling was lawfully erected on that land on or before the appointed day.
The State Environmental Planning Policy (Rural Lands) 2008 was gazetted 9 May 2008. Clause 23 is a savings provision that for development applications submitted prior to its commencement “the application must be determined as if this Policy had not been commenced”.
The 1996 Rylestone LEP has been amended by the Rural Lands SEPP and clause 13 has been amended as follows:
(1) The Council may consent to the subdivision of land with Zone No 1 (a) if the council is satisfied that each of the allotments to be created by the subdivision is intended to be used for the purpose of a dwelling, but only if each allotment:
(a) as an area of not less than 40 ha and
(b) is unlikely to adversely affect the existing and potential capability of the land and adjacent land to produce food or fibre or to be used for other agricultural purposes and
(c) does not comprise prime crop and pasture land.
(2) (repealed)
The SEPP contains rural subdivision principles as follows:
the minimisation of rural land fragmentation,
The minimisation of rural land-use conflicts, particularly between residential land uses and other rural land uses,
The consideration of the nature of existing agricultural holdings and the existing and planned future supply of rural residential land when considering lot sizes for rural lands
The consideration of the natural and physical constraints and opportunities of land
Ensuring that planning for dwelling opportunities takes account of those constraintsClause 9 of the SEPP provides flexibility for subdivision in rural zones by allowing subdivisions for the purpose of primary production to create a lot less than the minimum size however such a lot can not be created if an existing dwelling would be situated on the lot and a dwelling can not be erected on a lot created by such a subdivision. The SEPP also removes provisions for concessional lots in LEPs.
By way of background to this merits appeal a question of law was heard by her Honour Justice Jagot on the construction and interpretation of clause 13 of the LEP. The citation for the judgment is Matic v Mid-Western Regional Council [2008] NSWLEC 113. The question framed was:
Is the subdivision, insofar is it proposes the creation of Lots 1, 3, 5, 9 and 11 permissible pursuant to clause 13 of the Rylstone Local Environmental Plan 1996?
The following is an extract from her judgment:
4The applicant proposes to subdivide land, being part lot 2 in deposited plan 730813 and part lot 102 in deposited plan 755450, into 11 lots, each for the purpose of a dwelling for a relative of the owner or the owner of the land. The land is within zone 1(a) and has an area of some 302 hectares. Five of the proposed lots have an area of 40 hectares each (lots 2, 4, 6, 8, and 10). One proposed lot has an area of 82 hectares (lot 7). Five proposed lots, being the lots in dispute, have an area of 4 hectares each (lots 1, 3, 5, 9, and 11).
5The Council accepts that each of the lots to be created by the subdivision is intended to be used for the purpose of a dwelling and satisfies the requirements of cl 13(1)(b) and (c). The dispute relates to the proviso in cl 13(1)(a). Although the Council accepts that each of lots 1, 3, 5, 9, and 11 is intended to be for a relative of the owner or the owner of the land, the Council maintains that the proviso in cl 13(1)(a) is inapplicable and does not authorise the creation of those lots. The applicant submits to the contrary. The competing submissions of the parties disclosed three possible meanings of cl 13(1)(a) as follows:
(1)The Council’s first argument: - the Council said that as it had granted a development consent in 2006 for a subdivision of the land to which the present development application relates creating a concessional allotment of less than 4 hectares but not less than 0.4 hectares for a relative of the owner or for the owner within the meaning of the proviso in cl 13(1)(a), the proviso is exhausted and does not apply so as to permit the creation of any further such concessional allotments from the land.
(2)The Council’s second argument: - the Council said that it could not grant development consent to five concessional allotments as proposed because the proviso in cl 13(1)(a) permits the creation of only one such allotment when granting consent to a subdivision of land.
(3)The applicant’s argument: - the applicant said that the proviso in cl 13(1)(a) permits the creation of one concessional allotment as defined for each lot of not less than 40 hectares created by the grant of consent to a subdivision of land. As five lots of not less than 40 hectares would be created by the grant of consent to the present application, proposed lots 1, 3, 5, 9, and 11 satisfy the proviso in cl 13(1)(a).
6I accept the applicant’s argument for the following reasons.
7The 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).
8Legislative 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]).
9These 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" (Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30 at [56] citing Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 at 500). Further, and as noted in Calleja v Botany Bay City Council (2005) 142 LGERA 104 at [25] “any attempt to always find planning logic in planning instruments is generally a barren exercise”.
10The 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.
11First, the objectives of the LEP and the 1(a) zone do not disclose a coherent planning policy of the kind articulated by the Council. The objectives are broadly stated and involve contestable facts. They do not form a hierarchy so it is not possible to know if one objective takes precedence over another in the event of conflict. There is also substantial scope for conflict between the objectives.
12Secondly, “concessional allotment” (as used in cl 13(1)(a) and, I note, cl 20(1)(a)) is not a defined term. Contrary to the Council’s apparent assumption, it is not possible to vest that term with some meaning derived from general (and possibly or probably incomplete and inaccurate) suppositions about how environmental planning instruments have dealt with rural land in the past. A “concessional allotment”, in the context of this LEP, is simply a lot that may be created in accordance with the proviso that creates the exception from the minimum area requirement of 40 hectares in cl 13(1)(a).
13In other words, there is nothing in the LEP, objectively assessed, founding the imputation of any intention or planning policy that the Council’s arguments better fulfill than those of the applicant. Accordingly, the competing constructions fall for resolution by reference to the language of cl 13(1)(a), construed in the context of the LEP as a whole.
...19Although both cl 13(2) and the proviso in cl 13(1)(a) create an exception from the requirement that lots to be used for dwelling houses have a minimum area of 40 hectares, there is an obvious distinction between the two. Clause 13(2) authorises the creation of one but not more than one lot from an existing holding in the circumstances specified. The proviso in cl 13(1)(a) does not operate by reference to an existing holding. It operates by reference to the subdivision of any land within the 1(a) zone. Once this is recognised it is apparent that nothing in cl 13(1)(a), construed in context, supports the Council’s first argument that the proviso in cl 13(1)(a) is available to either an owner or any particular parcel of land on one occasion only. The clause simply does not work in that way. The proviso in cl 13(1)(a) is available whenever the Council grants consent to the subdivision of land (meaning any land) within the 1(a) zone in accordance with the requirements of that clause. That is the consequence of cl 13(1)(a) operating by reference to the grant of consent to a subdivision of land rather than the creation of a lot from a permanently defined parcel of land such as an existing holding. The reference to “one concessional allotment” also cannot effect the result for which the Council contends in these circumstances. The natural and ordinary meaning of the proviso is to enable one concessional allotment to be created whenever the Council consents to the creation of another lot of at least 40 hectares in accordance with the clause.
20The consequence is that the Council’s first argument finds no support in the language of cl 13(1)(a) or the context of that clause. To the contrary, the Council’s first argument is inconsistent with the natural and ordinary meaning of cl 13(1)(a) and fails to recognise the distinction between the operation of that clause and cl 13(2).
21The Council’s second argument also cannot withstand scrutiny. The second argument, when analysed, collapses into nothing more than a formalistic version of the applicant’s argument. The applicant’s submissions persuasively exposed this problem. In short, if one concessional allotment only may be created by reference to each grant of consent under cl 13(1)(a), then a person in the applicant’s position can achieve precisely the same result as the present applicant by making five separate development applications either at the same time or sequentially. The same result as the present application could be achieved because (on the Council’s second argument) the power to create one concessional allotment only would be available for each and every exercise of power to grant consent. Consistent with the applicant’s submissions, this result suggests that a different reading of cl 13(1)(a) is required.
22The applicant’s approach to cl 13(1)(a) accords with the natural and ordinary meaning of the clause and avoids this problem of form defeating substance. It gives a sensible meaning to all of the words of the clause. It recognises that: - (i) the clause is concerned with the subdivision of any land within the 1(a) zone (and not a permanently defined parcel of land such as an existing holding), (ii) the clause enables any land (provided it is of sufficient area) to be subdivided into lots each of 40 hectares, and (iii) the proviso is located in and is an exception to the capacity for land to be subdivided into lots each of 40 hectares. In other words, the structure and language of cl 13(1)(a) supports the conclusion that for each 40 hectare lot created by a grant of consent there may be one concessional allotment also created provided that lot is less than 4 hectares and not less than 0.4 hectares and is for a relative of the owner of the land or the owner and otherwise satisfies the requirements of the clause.
23Insofar as the issue was raised at all, the Council appeared to accept that “less than 4 hectares” in the proviso to cl 13(1)(a) should be construed as meaning “4 hectares or less”. In any event, the proposed concessional allotments (lots 1, 3, 5, 9, and 11) can readily be reduced in area by some minor amount. The Council, as noted, otherwise accepted that all of the conditions in cl 13(1) were satisfied (including that the proposed concessional allotments were for a relative of the owner or the owner of the land). On this basis, and for the reasons given above, the separate question should be answered as follows:
Q.Is the subdivision, insofar as it proposes the creation of lots 1, 3, 5, 9 and 11, permissible pursuant to clause 13 of the Rylstone Local Environmental Plan 1996?
A.Yes.
The proposal is for the subdivision of 302 ha into five lots of 40 ha, and five lots of 4 ha and a larger lot of 82 ha that contains the existing dwelling church and cemetery on the land. The northern six lots proposed in the subdivision have frontage to White Rock Road and the remaining five lots are to be accessed by a road reserve yet to be constructed.
The applicant proposes to undertake the subdivision in two stages as provided for in section 109J(3) of the Environmental Planning and Assessment Act. Lots 1 to 6 inclusive are in stage one and lots 7 to 11 inclusive are in stage two. This latter stage requires the construction of a road to the south of White Rock Road and the council is to use its best endeavours for the road reservation to be relocated to adjoin the western boundary of the subject sites to avoid isolating a portion of the adjoining property known as the ‘River Station’.
The applicant has agreed to White Rock Road being upgraded and this is contained in a condition of consent whereby the applicant is to construct White Rock Road for the full frontage of the lots gaining access to it and extending to the intersection of Tong Bong Road in accordance with minimum standards. This includes a 9 m minimum width with a 7 m sheeted thickness will all weather access. The applicant has agreed to these roadworks being carried out prior to the subdivision certificate being issued.
Following the on-site hearing of the consent orders resident objectors made further submissions and in the interests of procedural fairness the applicant was given the opportunity to respond to same. The residents concerns include bushfire risk. I note in the council officers report that the New South Wales Rural Fire Service issued the authority with conditions and these have been incorporated into the conditions of consent. I accept the Bushfire Service’s advice.
The residents, in particular those with common boundaries to the subject land, expressed concern about conflicts with existing agricultural land uses and production in the vicinity of the subject lots. For the property at the western end of White Rock Road to the west of the subject site it is proposed that there be 3 x 40 ha parcels of land created and near White Rock Road there is a 4 ha parcel that juts out into the adjoining property.
In my assessment it is more appropriate that the 4 ha parcel of land be relocated to abut/adjoin with the other 4 ha parcel lot known as proposed Lot 3. This will reduce conflicts for the owner to the west and it is only appropriate and consistent with the planning provisions that the impacts be internalised as far as possible. The lot as proposed has two boundaries to the adjoining landowner who carries out an agricultural activity. Conflicts with non-agricultural parcels of land should be minimised, and as such I propose a deferred commencement condition for the subdivision plan to be amended to reflect this reconfiguration..
I note that the council does not support the relocation of this lot as it is of the opinion that the effect of placing too small lots next to each other has the potential for altering the character of the localities more significantly than in the present design. However I do not accept this submission especially having regard to the fact that there are two lots, 9 and 11, in the second stage that virtually adjoin each other and in my assessment relocating lot 1 to adjoin lot three minimises conflict with the adjoining agricultural land use.
All other small lots proposed in the subdivision are separated to other land holders by larger 40 hectare lots on the subject land or a road reservation. Although the Crown road that serves the property of Mrs Morris does not run along the boundary and isolates a portion of her property next to the subject land. To avoid this situation of isolating a corner of her property the parties have agreed on a condition of consent that requires best endeavours to be used for the road to be relocated to adjoin the property boundary of proposed lot 6.
On the question of the reclassification of the land from prime agricultural land this occurred in 2006 and this is not a matter for my enquiry in this appeal. The Rylestone LEP of 1996 contains in the definition of prime crop and pasture land quoted above the procedure for the reclassification of agricultural land.
The residents questioned whether the five smaller lots of 4 ha would be for the purpose of use by a relative of the owner or the owner. In the applicant's response to the Statement of Facts and Contentions it is stated that “each concessional allotment is for either the owner of the lot or for a relative of the owner”. The council accepts this, however, given clause 13 (1)(a) of the 1996 LEP I consider that it would be appropriate that a section 88 Instrument be placed over relevant titles of the land prior to the issuing of the subdivision certificate. This would also reflect the applicant's stated position.
The s88 Instrument should be created at the applicant's expense and registered with the Land Titles Office prior to the release of the subdivision certificate. The drafting of such an instrument is to be the subject of a deferred commencement condition.
In my determination of the application I must have regard to the judgment of Her Honour Justice Jagot and it is clear that the subdivision is permissible pursuant to clause 13 of the Rylstone LEP 1996.
In my assessment I have considered all the evidence to the Court including that of the objectors and the relevant statutory planning framework. The provisions of the LEP quoted above including the general aims of the plan and the objectives of the zone as required by clause 9(3) have been considered and I am satisfied that the proposed development is not inconsistent. I have also had regard to the rural lands SEPP that has a ‘savings provision’ but nonetheless under the transitional arrangements I have considered the ‘rural subdivision principles’ outlined above and I am satisfied that the application, subject to amendment, is not inconsistent with these principles.
I have concluded, with the amendments, there is no other reason not to grant the consent orders entered into by the council. The amendments I propose to the conditions of consent require a deferred commencement consent to relocate lot 1 to adjoin lot 3 and to add the requirement for a section 88 instrument.
The parties are directed to provide an amended set of conditions in accordance with my findings above and on the receipt of same I will then issue orders for the appeal to be upheld by consent subject to the above conditions.
[<img src="/lecjudgments/2008nswlec.nsf/files/11269_of_2007_figure1.jpg/$file/11269_of_2007_figure1.jpg" alt="Figure 1">]
[<img src="/lecjudgments/2008nswlec.nsf/files/11269_of_2007_fig2.jpg/$file/11269_of_2007_fig2.jpg" alt="FIGURE 2">]
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J S Murrell
Commissioner of the Court
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