Peel v Wagga Wagga City Council
[2011] NSWLEC 1002
•18 January 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Peel v Wagga Wagga City Council [2011] NSWLEC 1002 Hearing dates: 7 December 2010 and 15 December 2010, Decision date: 18 January 2011 Jurisdiction: Class 1 Before: Morris C Decision: 1.The appeal is dismissed.
2.Development application DA 89/2008 to subdivide part of two existing holdings, being Lots 79 and 81 DP 757262 and Lot 22 DP 622994 Yabtree Road Borambola, into four allotments for the purposes of dwelling houses is determined by the refusal of development consent; and
3.The exhibits, other than exhibit D, are returned.
Catchwords: Rural subdivision; whether development complies with zone objectives; prime crop and pasture land; existing holding; Legislation Cited: Wagga Wagga Rural Local Environmental Plan 1991
Land and Environment Court Act 1979
State Environmental Planning Policy (Rural Lands) 2008
State Environmental Planning Policy (Repeal of Concurrence and Referral Provisions) 2008
Wagga Wagga Development Control Plan 2005
Wagga Wagga Local Environmental Plan 2010Cases Cited: Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192
NRS Group Pty Ltd v Cowra Shire Council [2008] NSWLEC
Hub Action Group Incorporated v Minister for Planning and Orange City Council [2008] NSWLEC 116
D'Arcy v Bega Valley Shire Council [2002] NSWLEC 88Texts Cited: Wagga Wagga Spatial Plan 2008
AgfactsCategory: Principal judgment Parties: Timothy John Peel (Applicant)
Julie Anne Peel (Applicant)
Wagga Wagga City Council ( Respondent)Representation: Mr H Robilliard (Applicant)
Mr A Bradbury (Respondent)
Robilliard Lawyers (Applicant)
Williams Love & Nicol (Respondent)
File Number(s): 10610 of 2010
Commissioner : This is an appeal against the refusal by Wagga Wagga City Council (the council) of Development Application 89/2008 (the application) which proposed a four lot subdivision of rural land.
The site and its context
The land to which the application relates comprises three allotments, Lots 79 and 81 DP 757262 and Lot 22 DP 622994 (the site) at Borambola. The site is accessible via Windamarra and Yabtree Roads, unsealed roads that run off the Sturt Highway, and is part of a larger rural property owned by the applicants, known as No. 950 Sturt Highway, Borambola. The intersection of Windamarra Road and the highway is approximately 33 kilometres east of Wagga and the site is approximately 9 kilometres from that intersection. Tarcutta is further to the east and estimated to be a 10-15 minute drive from the intersection.
The site is located in a rural area comprising hills interspersed with creek crossings. It is used for agricultural purposes, essentially cropping and grazing.
Background and the proposal
The application was lodged with the council on 7 February 2008.
The council refused the development application on 6 August 2009. The reasons for refusal were:
(1) The proposal is not consistent with the objectives of the rural Zone of the Wagga Wagga Rural Local Environmental Plan 1991, and
(2) The proposal is not consistent with the provision of the Wagga Wagga Rural Local Environmental Plan 1991, specifically Clause 15.
The proceedings commenced as a conciliation conference pursuant to the provisions of s34 of the Land and Environment Court Act 1979 (the LEC Act) however, no agreement was reached and the conference was terminated. The parties have agreed, pursuant to the provisions of s 34(12), that the evidence and documents provided in that conference can be admitted in these proceedings and, in accordance with s 34(13) that I determine the matter.
The conciliation conference was held on 6 October 2010 and included an inspection of the site in the company of the parties, their legal representatives and council officers.
Objectors to the application had been notified of the conference however did not attend or provide any further evidence.
The plans before the Court are identical to that refused by the council however, an alternate location of proposed Lot 1 was tendered as Exhibit C in the proceedings. The plan indicates the lot being located to the west of the original location so as to provide a more level building envelope so as to avoid the local creek system. That plan also showed alternate boundaries for proposed Lots 3 and 4. This was not pursued during the hearing however, was mentioned as an option available to the Court in submissions.
Proposed Lot 1 is a rectangular shaped lot which has an area of 5.0ha, frontage of 185m to Yabtree Road and depth of 270m and is on the northern side of this road. A non-perennial creek intersects the lot and the land falls away from the roadway.
Lot 2 is an irregular battle-axe allotment with an area of 4.62ha and has access to an unformed Crown Road which is a continuation of Yabtree Road (eastern end on it northern side).
Lots 3 and 4 are proposed on the southern side of Yabtree Road and have areas of 4.0ha and 4.89ha respectively. Lot 3 is a regular shaped allotment and falls from the rear to the roadway. Part of the land within the lot is categorised as Class 3 agricultural land and the remainder of the land to be subdivided is Class 4. Lot 4 adjoins the eastern boundary of proposed lot 3 and also falls towards the roadway.
All lots contain a few trees and an area available for siting a dwelling however, lot 1 is constrained by the intermittent creeks that cross the site. At the time of the site inspection, lots 3 and 4 were used for growing grain.
The purpose of the subdivision, according to the letter from one of the applicants which accompanied the development application, is to create rural small holdings to facilitate the construction of a dwelling house on each of the lots. The correspondence advises that two of the proposed lots would be sold to the present owners' son and the other two lots would provide for the owners' retirement.
The planning controls
At the time the application was lodged with the council and subsequently determined, the site was zoned Rural Zone No 1 pursuant to the provisions of Wagga Wagga Rural Local Environmental Plan 1991 (the LEP) .
The relevant aims and objectives of the plan are:
(a)to encourage the proper management, development and conservation of natural and man-made resources within the area to which this plan applies by protecting, enhancing or conserving:
(i)prime crop and pasture land,
(b)to replace the existing planning controls with a single local environmental plan to help facilitate growth and development of the land to which this plan applies in a manner which is consistent with the aims specified in paragraph (a) and which:
(i)minimises the costs to the community of fragmented and isolated development of rural land,
(ii)facilitates the efficient and effective provision of amenities and services,
(iii)facilitates a range of residential and employment opportunities in accordance with demand,
(iv)facilitates farm adjustments,
Clause 9 of the LEP requires a development to be consistent with the objectives of the zone for consent to be granted. The objective of the Rural zone is to promote the proper management and utilisation of resources by any one or more of the following (relevant subclauses) :
(a) protecting, enhancing and conserving:
(i) agricultural land in a manner which sustains its efficient and effective agricultural production potential,
(b) preventing the unjustified development of prime crop and pasture land for purposes other than agriculture,
(d) facilitating farm adjustments,
(e) 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
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,
(g) providing for a range of rural living styles in appropriate locations within the area to which the plan applies, and
Clause 10 of the LEP requires particular consideration of matters where development is proposed in the Rural zone. These are:
(1) The Council shall not consent to an application to carry out development on land within Zone No 1 unless it has taken into consideration, if relevant, 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), water resources (including the quality and stability of water courses and ground water storage and riparian rights),
(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, and
(f) future expansion of settlements in the locality.
(2) As well as the matters referred to in subclause (1), the Council shall take into consideration the relationship of the development to development on adjoining land or on other land in the locality.
Clause 11 specifies consent is required to subdivide land and lists specific requirements where subdivision of land within Zone No 1 is proposed. The application has been submitted in accordance with those requirements.
Clause 12 applies to subdivision of land for agriculture. That clause states:
(1) A person may, with the consent of the Council, subdivide an allotment of any area if every allotment to be created by the subdivision is intended to be used for the purposes of agriculture.
(2) The Council shall not consent to the creation of an allotment intended to be used for the purposes of agriculture if the allotment has an area of less than 200 hectares and there is a dwelling on the allotment unless the Council is satisfied that the allotment is to be used in conjunction with an existing holding used for the purposes of agriculture and the combined area will exceed 200 hectares.
(3) Notwithstanding subclause (2), the Council may consent to the creation of one (but not more than one) allotment intended to be used for the purposes of agriculture from an existing holding on which a dwelling stands if that dwelling was lawfully erected on that land on or before the appointed day.
Clause 13 specifies the criteria that apply where subdivision for the purposes of dwellings in Zone No 1 is proposed. These are:
The Council may consent to a development application to subdivide an existing holding within Zone No 1 if not more than 2 of the allotments to be created by the subdivision are intended to be used for the purpose of a dwelling-house, but only if each new allotment to be created:
(a)has an area of not less than 0.6 hectares and not more than 5 hectares,
(b)forms part of an existing holding which has an area of not less than 200 hectares,
(c)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
(d)does not comprise prime crop and pasture land.
An existing holding is defined in the LEP as being:
(a)except as provided by paragraph (b)-the area of a lot, portion or parcel of land as it was as at 1 November 1986, or
(b)where, as at 1 November 1986, a person owned 2 or more adjoining or adjacent lots, portions or parcels of land, the combined area of these lots, portions or parcels as they were as at 1 November 1986.
The parties agree that the site comprises part of two existing holdings , both of which have an area in excess of 200ha .
Prime crop and pasture land
means land within an area identified, on a map prepared by or on behalf of the Director-General of the Department of Agriculture and Fisheries and deposited in an office of the Department of Agriculture and Fisheries (and a copy of which is deposited in the office of the Council), as Class 1, Class 2 or Class 3 or as land of merit for special agricultural uses, but does not include land which the Director-General of the Department of Agriculture and Fisheries has notified the Council in writing is not prime crop and pasture land for the purposes of this plan.
Clause 15 specifies the requirements for the subdivision of land within Zone No 1 to create a rural small holding. These are:
(1) The Council shall not consent to a development application to subdivide land within Zone No 1 to create a rural small holding if the land the subject of the application:
(a)comprises the whole or part of an existing holding having an area of less than 200 hectares, or
(b)is an allotment created in accordance with this plan for the purpose of agriculture.
(2) Before determining the number, size and arrangement of rural small holdings that may be created, the Council shall, in addition to matters referred to in any other provisions of this plan, take into account:
(a)the quality of the land and the effect of subdivision on the existing and potential agricultural productivity of the land the subject of the application,
(b)the impact on existing and potential agricultural productivity in the locality,
(c)the supply of, and demand for, rural small holdings of the type proposed,
(d)the physical characteristics of the land including drainage patterns, erosion, geological hazards and landscape features,
(e)whether approval of the subdivision and any subsequent development will create demands for the provision or extension of services provided by the Council or other public authorities,
(f)hazards such as bushfires and flooding,
(g)whether subdivision will prejudice the orderly expansion of urban areas,
(h)the prevailing subdivision and holding pattern in the locality, and
(i)whether the land contains recoverable minerals or extractive materials.
(3) In determining the quality of the land for the purposes of subclause (2) (a), the Council shall have regard to the map prepared by or on behalf of the Director-General of the Department of Agriculture and Fisheries and marked "Agricultural Land Classification Map-City of Wagga Wagga" deposited in an office of the Department of Agriculture and Fisheries (and a copy of which is deposited in the office of the Council).
(4) Where a person proposes to subdivide land to create a rural small holding and the land the subject of the application is identified on the maps referred to in subclause (3) as comprising a combination of classes 1, 2, 3, 4 and 5, the Council shall not consent to the subdivision of that part of the land identified as class 1, 2 or 3 unless:
(a)it is satisfied, having regard to the matters listed in subclause (2), that the class 4 or 5 land is unsuitable for the purposes of rural small holdings,
(b)it has consulted, and taken into account the views of, the Director-General of the Department of Agriculture and Fisheries, and
(c)the class 1, 2 or 3 land does not comprise more than 5 per cent of the land to be subdivided for rural small holdings.
(5) Notwithstanding the provisions of subclauses (1) (a) and (4), the Council may consent to an application to subdivide the whole or part of an existing holding having an area of less than 200 hectares if:
(a)the Council considers that the land is suitable for the purposes of rural small holdings having regard to the matters listed in subclause (2), and
(b)the Council has consulted, and taken into account the views of, the Director-General of the Department of Agriculture and Fisheries.
Rural small holding :
means an allotment of land having an area of less than 200 hectares and not less than 0.6 hectares on which it is intended to erect a dwelling-house or dual occupancy building or on which a dwelling-house or dual occupancy building is erected.
It is noted that clause 13 of the LEP was repealed on 9 May 2008, being after the application was lodged but prior to its determination by the council. The repeal of clause 13 was a consequence of the making of State Environmental Planning Policy (Rural Lands) 2008 (SEPP Rural).
Clause 11 of SEPP Rural had the effect of repealing clause 13 of the LEP. A note to that clause states:
Note. The amendments made by the Schedule do not affect any existing entitlement in any environmental planning instrument to erect a dwelling on land within a rural zone or an environment protection zone.
Clause 23 of SEPP Rural contains a savings provision that protects a development application and states:
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.
State Environmental Planning Policy (Repeal of Concurrence and Referral Provisions) 2008 (SEPP Concurrence) commenced on 15 December 2008, which is also after the application was lodged. The affect of SEPP Concurrence as it relates to the application is to omit clause 15(4)(b) (a clause that requires consultation and consideration of the views of the Director General of the Department of Agriculture and Fisheries) from the LEP however, as the plan also contains savings provisions, the application is to be determined as though SEPP Concurrence had not been made. It is of interest to these proceeding that the council did not seek the views of the relevant department prior to its determination of the application. Those views have now been obtained and are addressed later in this judgment.
The Wagga Wagga Development Control Plan 2005 (the DCP) also applies to the application. The site is within zone Rural 1a General (Rural Living Area) and zone environmental Protection 7b Hillscape (Rural Living Area) for the purposes of the DCP.
Section 14 of the DCP applies to the Rural zone and adopts identical objectives to those included in the LEP. In addition, it requires consideration of the following planning objectives in the development of rural areas:
·Provide for a wider range of Rural Residential living choices.
·Provide for part time farming or farming activities as a leisure pursuit.
·Ensure that development does not create or worsen soil erosion.
·Minimise the creation of vehicular access points to major roads and, where no alternative access is available, the location and treatment of the access points should minimise potential traffic hazards.
·Ensure that allotments created in small holdings subdivision provide potential building sites with minimal risk of damage by bushfires or flooding.
The DCP divides the rural zone into six subzones and the site is within the 1a subzone. That zone primarily applies to the broad acres rural areas, whilst the 1b and 1c subzones delineate rural residential and small holding areas within close proximity of the City (of Wagga Wagga). The 1e subzone designates land set aside for future urban areas, the 1f subzone land within 400m of major arterial roads for the purpose of controlling traffic generating developments in the vicinity of such roads and the 1g subzone identifies land suitable for the establishment of rural industries.
The DCP also details purposes for each subzone. The purpose of the 1a zone is to protect and conserve prime crop and pasture land, and to set aside land for general farming purposes.
Since the time the application was lodged and determined, Wagga Wagga Local Environmental Plan 2010 (the 2010 LEP) was made. That plan took effect on 16 July 2010 and would prohibit the subdivision of the land as proposed. Clause 1.8A of the 2010 LEP incorporates a savings provision which reads as follows:
If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.
The supporting Wagga Wagga Development Control Plan 2010 (DCP2010) commenced on 16 July 2010 and repealed the DCP however, similar savings provisions apply.
The issues
The contentions in the case are:
(1) whether the development is permissible under the provisions of the LEP due to previous subdivision approvals.
(2) Whether the development is consistent with the provisions of the 2010 LEP and the extent to which weight should be given to the provisions of that plan.
(3) Whether the development is consistent with the objectives of Zone 1 Rural (LEP) and the 1a Rural living subzone (DCP).
(4) Whether the development will create a demand for the provision of public amenities and services.
(5) Whether there is an identified need for the provision of rural small holding allotments.
(6) Whether the development will cause an adverse impact on prime crop and pasture land and agricultural productivity.
(7) Whether the development will result in adverse environmental impacts.
Mr Robilliard, for the applicant, advised that all proposed lots should be considered pursuant to the provisions of clause 13 of the LEP, however, in his written submissions, stated that all lots may be approved pursuant to the provisions of clause 15. The relevant provisions are considered further in this judgment. In addition the issue of weight that should be applied to the 2010 LEP is disputed. Mr Robilliard says that no weight should be given to that plan, as the savings clause requires determination of the application as if the plan had not commenced. Mr Bradbury, for the council, takes the opposing view and argues, that as the 2010 LEP is now made, it is imminent and certain and accordingly should be given significant weight.
The savings clauses relevant to the application are in accordance with the wording contained in both LEP 2010 and SEPP Rural. The wording for those clauses differs from that in earlier planning instruments. Similar wording was considered by Craig J in Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192 at [97] he found:
Clause 1.8A of LEP 2009 has the effect that if Presrod's development application was now to be considered as if it had not been finally determined, the development proposed would not be prohibited. However, when applying the provisions of s 79C(1) of the EPA Act, the terms of cl 1.8A would not exclude consideration of the fact that development of that kind is now prohibited under LEP 2009. It may well be considered that the prohibition that would otherwise apply is a factor weighing against the grant of development consent ( Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195).
Subdivision history
Exhibit D provides details of ownership of land as at 1 November 1986. That date is the appointed day for the purpose of determining whether the site is within an existing holding as defined within the LEP.
The plans included in the exhibit were prepared on behalf of the applicant and indicate the site falls within three existing holdings. There is no dispute between the parties that the land identified as "Existing holding No. 1" is an existing holding for the purpose of the LEP. For the purposes of this judgment, this holding will be referred to as EHA.
The applicant shows boundaries of a further two groupings of land and delineates these as Existing holding Nos. 2 and 3. All of the lots that form these two parcels, with the exception of Lots 24 and 65 in DP 757250 were owned by Landkey Pty Ltd on the appointed day.
The council argues that the two holdings do not constitute separate holdings but are in fact one existing holding. I agree that the land defined as Existing Holdings 2 and 3 in Exhibit D, excluding Lots 24 and 65 in DP 757250 comprises only one existing holding and accordingly, the site falls within two existing holdings. That second holding will be referred to as EHB.
Proposed lots 1, 3 and 4 are within EHB and proposed lot 2 is within EHA.
EHA was subdivided in 2008 involving the subdivision of Lot 81 DP 757262 into two lots, now known as Lots 1 and 2 in DP 1131715. The council's development consent No. DA07/0382 authorised this subdivision. The evidence provided in Exhibit 1 and in particular the development application form, accompanying correspondence from one of the owners of Lot 81(and one of the applicants in these proceedings) and the council report show that the subdivision was approved pursuant to the provisions of clause 12(3) of the LEP.
The only other source of power available to approve the subdivision would be clause 15 of the LEP however, the information required to be assessed pursuant to that clause was not provided with the development application, nor did the council carry out an assessment of those provisions. The applicant described the proposal as creating 2 proposed lots. One to have house and farm shed and 2 nd lot be agricultural. Lot 1 in DP 1131715 contains the house and Lot 2 is used for agriculture. Proposed lot 2 would be located adjacent to Lot 2, with the access handle running along the eastern boundary and the main building area to the north of the existing allotment.
EHB was subdivided in 2007 by the subdivision of Lot 79 DP 757262 into Lots 791 and 792 DP 1111516. Development consent DA06/0026 authorised that development and it was approved pursuant to the provisions of clause 13 of the LEP. Accordingly, one of the two lots that can be subdivided from EHB pursuant to clause 13 has already been created and therefore only one further lot can be created applying the provisions of that clause.
The evidence
Expert evidence was heard from Mr Newland (town planner) for the applicant and Mr Moar (town planner) and Mr Fenwick (engineer) for the respondent.
Mr Moar considers that the proposed subdivision would not be compatible with the current agricultural use of the land as it would potentially limit normal farming practice (due to the siting of dwellings in close proximity to agricultural uses and the incompatible impacts such as spray drift and dust), fragments a larger agricultural holding and is therefore inconsistent with the objectives of the rural zone. He considers that even if the site is not prime crop and pasture land, this is a factor that weighs against the application as the more marginal the land is the larger the holding need to be to be viable. He considers the development would prejudice the agricultural production potential of the adjoining lands.
He also considers that the creation of the four lots in proximity to the dwelling on Lot 1 in DP 1131715 would create a small settlement, which would be out of character with the rural area.
Mr Newland considers that the subdivision of the land as proposed to create four dwelling sites is consistent with the objectives of the zone and in particular is to facilitate farm adjustment and to allow for what he describes as 'succession planning' where the sons/daughters of farmers get part ownership of a larger farm. He is of the view that the subdivision would be a farm adjustment. Mr Moar disagrees and maintains that a farm adjustment would facilitate the increase in area available to adjoining farms to improve the viability so as to make the farmland more productive. I prefer the evidence of Mr Moar in this regard and accordingly, do not consider the application involves farm adjustment.
Mr Newland concedes the site is relatively isolated but argues this should not be construed in a negative context. He states that any person buying the land would be aware of what they are buying and would accept the access arrangements, lack of facilities and services. He limits the extent of isolation to an urban rather than rural context. Mr Moar considers the site to be isolated and inappropriate for small scale residential development due to the 9k distance to the highway, via an unsealed road, and further 33k distance from Wagga Wagga.
Mr Moar was concerned at the possible conflicts between residents and the agricultural activity and considered the subdivision to be inappropriate as it was not within an area identified by the council for rural small holdings. In those identified areas, he says, conflicts between rural and residential uses did not occur and services including sealed roads, sewer, water and garbage collection are available. This would not be the case as none of these services are currently available to the site. He considered that it was likely that future residents would demand these services and that to provide them would be an unreasonable expectation of the council.
Mr Moar made reference to the strategic planning document prepared by the council entitled Wagga Wagga Spatial Plan 2008 and included in the bundle of documents which form Exhibit A. He advises that this document identifies the availability of appropriately located rural residential allotments and that when the plan was prepared, there was capacity for in excess of 450 lots. He agrees that these lots are all close to the Wagga Wagga city area and are a different form of development to that proposed however considers that these are a more appropriate form of development, have been planned by the council so as to avoid rural/residential conflicts and are not isolated and are what is contemplated in the council's DCP for rural small holdings. Mr Newland says they are different and therefore not comparable as the majority are serviced with sewer, water, sealed roads and waste collection so, in his opinion, cater for a different need.
With regard to the agricultural land classification of the site, the applicant has relied on the council's maps in accordance with the provisions of clause 15 of the LEP and the definition of prime crop and pasture land. The plans show that part of proposed lot 3 is Class 3 land and the remainder of the site would be class 4.
Evidence was provided as Exhibit 3 in the proceedings, being an expert report prepared by David Davis, Resource Management Officer, NSW Department of Industry and Investment (the Department) (formerly Dept of Agriculture and Fisheries and NSW Agriculture). That report concluded, following a site inspection by Mr Davis in the company of Mr Moar, that the land which comprises proposed Lots 3 and 4 was incorrectly classified in the council's map. Mr Davis states that he observed "the majority of proposed Lot 3 was sown to winter crop (cereal) while much of Lot 4 was part of the same cropping operation . The crops were well advanced and representative of the good season being experienced in the Riverina". He then explains the methodology involved in preparing the council's land classification map and that occasional discrepancies have been detected due to the map scale variances with the land classification shown on the map and the classification of particular parcels of land subjected to field inspection. He states "This is in fact the situation for proposed Lots 3 and 4. The map held by Council incorrectly identifies the area as class IV land and thus their classification is 'non-prime agricultural land'. Following my site inspection I am satisfied that the majority (estimated at least 75%) of Lot 3 and a significant amount of Lot 4 (estimated at least 40%) are in fact Class III lands and are therefore 'prime agricultural land'. His report concludes "The Department views the conversion of 'prime agricultural lands' into rural small holdings (such as this application) as 'detrimental to the existing and future agricultural productivity' within the Council area." Further, "While the department was not originally consulted on the 4 lot subdivision it does hold a view that creation of such a number of small holdings in the rural zone constitutes fragmentation of rural lands. As such, it again appears outside the aims and objectives of the Wagga Wagga Local Environmental Plan. Industry and Investment NSW would not have supported the application, then or now."
The applicant had not required Mr Davis for cross-examination and he was not in Court. Mr Moar was asked to advise how Mr Davis had assessed the site and advised that the inspection was based on Mr Moar's recollection of the boundaries as observed during the conciliation site inspection and the DA plan lodged with the application. He confirmed that the assessment was undertaken from the road and that neither he nor Mr Davis entered the site, dug holes or examined the soil profile.
Mr Robilliard objected to the evidence provided by Mr Davis due to the manner in which the assessment of land was undertaken and argued that I should give no weight to his report. I agree that the assessment undertaken was cursory however, the observation made that those portions of the site being proposed Lots 3 and 4 were cropped reflects what I observed during the site inspection. For that reason, I don not rely on Mr Davis' report to determine whether the land is prime crop and pasture land.
In an attempt to further clarify whether the site was prime crop and pasture land, the council tendered a document as Exhibit 9 published in October 2002 by NSW Agriculture entitled "Agricultural Land Classification". That document is part of an information series under the title " Agfacts " prepared by the Department. It provides a description of the Department's agricultural land classification system. Of particular relevance is section 2.2 which states:
This five class system used by NSW Agriculture classifies
land in terms of its suitability for general agricultural
use. This system was developed specifically to meet the
objectives of the Environmental Planning and Assessment
Act 1979, in particular 5(a) (i) 'to encourage the proper
management, development and conservation of natural
and man-made resources, including agricultural land...for
the purpose of promoting social and economic welfare of
the community and a better environment'.
Agricultural land is classified by evaluating biophysical,
social and economic factors that may constrain the
use of land for agriculture. In general terms, the fewer
the constraints on the land, the greater its value for
agriculture. Each type of agricultural enterprise has a
particular set of constraints affecting production. A
comprehensive list of all the constraints affecting each
form of agriculture would be expensive to compile
and unwieldy to use. Consequently, agricultural land
classification is based on a set of constraining factors
common to most agricultural industries. Section 6.3iii
'Factors that influence agricultural suitability' lists these
factors.
Section 3 defines the classes of land and two are relevant to my consideration of the application. These are as follows:
Class 3: Grazing land or land well suited to pasture
improvement. It may be cultivated or cropped in
rotation with sown pasture. The overall production
level is moderate because of edaphic or environmental
constraints. Erosion hazard, soil structural breakdown or
other factors, including climate, may limit the capacity for
cultivation and soil conservation or drainage works may
be required.
Class 4: Land suitable for grazing but not for cultivation.
Agriculture is based on native pastures or improved
pastures established using minimum tillage techniques.
Production may be seasonally high but the overall
production level is low as a result of major environmental
constraints.
Section 4 speaks of the difficulties associated with mapping at the scale utilised by the Department to produce the maps which delineate the classification of lands. This states:
When using agricultural land classification maps it is
important to understand the limitations of the scale at
which the maps were produced. In addition, it is essential
that the map only be used within the limitations of the
scale of mapping reliability.
Map scale is the relationship between a unit of length
on a map and the actual length it represents on the
ground. This scale is usually expressed as a ratio. A scale
of 1:100,000 means that one unit on a map corresponds
to 100,000 units on the ground. For example, 1 cm
on the map corresponds to 100,000 cm (1 km) on the
ground. One square centimetre corresponds to one square
kilometre; one square millimetre represents one hectare.
The minimum area that can be legibly delineated on a map
is usually about 40 square millimetres (a circle of about 7
mm in diameter). At a scale of 1:100,000, this represents
an area on the ground of approximately 40 hectares.
Biophysical features usually have transitional zones
between unique groups or classes. In the field, there are
few instances where a sharp boundary line divides classes.
In the maps, the boundary line represents the best-fit
position or a halfway point between the two classes. The
accuracy for locating the class boundary lines is expressed
as a confidence limit. For a 1:100,000 map this limit is 1.5
mm, representing a confidence limit of 150m in the field
(Riddler 1987).
However, given the requirements of the LEP's definition of prime crop and pasture land being in accordance with the information contained within the council's maps, allowing for minor adjustments due to scale and the fact that the correspondence from the Department does not affect that definition, by advising that certain land is not prime crop and pasture land, I conclude that, whilst the land was being cropped, it would not constitute prime crop and pasture land for the purposes of the LEP. To be that, it would require the council to amend its maps and that has not occurred. A similar determination was required when assessing classification of land in an LEP containing a similar however, not identical definition of land in NRS Group Pty Ltd v Cowra Shire Council [2008] NSWLEC where at [130], Sheahan J states:
The LEP's definition of " prime agricultural land " (par [48] above) is quite clear. In assessing particular land for development consent purposes one must examine how it is mapped to see if it meets that definition. As Mr Hemmings, Counsel for the Council, put it: "... if it is on the map, it is, unless the Director General tells you that it's not " (Day 1 T22 LL12-13).
Hub Action Group Incorporated v Minister for Planning and Orange City Council [2008] NSWLEC 116 also considers the issue of mapping and the definition, in this case, an even more similar definition applied, where in [41], Preston CJ states:
41 Although parts of the site are agreed by the relevant experts for the Action Group and the Council to be class 4 land, they also agreed that the portion of the site which will be disturbed by the operational landfill and ancillary works will be class 3 land. However, for the purposes of the LEP, this is irrelevant as the whole of the site is mapped as being class 3 and thus the whole site falls with in the definition of "prime crop and pasture land" for the purposes of the LEP.
Whilst the site does not fall within the definition of prime crop and pasture land I consider that it still does have agricultural potential and this is evident from it use for cropping when the site inspection was undertaken.
Mr Fenwick, in his expert report, Exhibit 5 in the proceedings describes the access roads to the site, provides details of the council's road hierarchy and service delivery plan for maintenance of unsealed rural road infrastructure. The following is an extract from his report
Yabtree Road is an unsealed road approximately 4.64km long which runs from approximately Windamarra Road to the Land.
It is currently classified as an 'access road' under Council's road hierarchy plan. The road is maintained for the primary purpose of providing all weather access to adjoining properties.
It is relatively narrow (5-6m wide), windy and steep in parts, especially for the final 1km travelling toward end of the road to the Land.
Yabtree Road currently services 3 residences.
Windamarra Road is an unsealed road providing access from the Sturt Highway to Yabtree Road. The turn off from Windamarra Road onto Yabtree Road is approximately 4.74km along Windamarra Road.
It is currently classified as a 'multi access road' under Council's road hierarchy plan.
Windamarra Road currently services 5 residences (in addition to the 3 residences on Yabtree Road). The road is maintained for the primary purpose of providing all weather access to adjoining properties.
Mr Fenwick was concerned that the additional 4 households on Yabtree Road, which would result from approval of the application, would have a number of impacts on Yabtree and Windamarra Roads. Most seriously, in his opinion, would be that the increased use of the roads would lead to more rapid deterioration of the condition of those roads, in turn causing risks to public safety. In addition, he was concerned that there would be an increase in vehicular interactions on the roads, which would increase the risk to users of those roads. He estimates there would be a five-fold increase in vehicular interaction.
He states that with the increased risk, the roads may need to be widened in some places and some additional infrastructure, such as guardrails and signs, may need to be installed. The cost to the council for such work, he says, would be significant. In addition, he was concerned about the cost of maintenance associated with increased use of the road, primarily as a result of use by persons who may move into the site and are not accustomed with rural road standards, demanding better access.
When asked to compare the impact of the five-fold increase in car traffic to that of a heavy vehicle, Mr Fenwick confirmed that the heavy vehicle would have 6-10,000 times the impact to that of a car. When it was put to him by Mr Robilliard that the impact was in fact over 41,000 times that of a car, Mr Fenwick said that this level exceeded his understanding of impact but also advised that his assessment of costs was based on road hierarchy and standard rather than vehicle numbers which is consistent with the council's maintenance practice.
Findings and conclusion
I have concluded that the site is not prime crop and pasture land for the reasons outlined above. This does not remove the requirements to consider the objectives of the zone and in particular 1(a)(i) which is to protect, enhance and conserve agricultural land in a manner which sustains its efficient and effective agricultural production potential, (e) minimising the cost to the community of fragmented and isolated development of rural land and providing extending and maintaining public amenities and services, and (g) providing for a range of rural living styles in appropriate locations.
In accordance with Hub Action Group
Clause 10(1) of the LEP imposes two preconditions to a consent authority exercising the power to grant consent to development on land to which the clause applies:
(a) the consent authority has made an assessment of the effect of carrying out the development on the matters specified in paragraphs (a) to (f), the first of which is "the present and potential use of the land for the purposes of agriculture"; and (b) the consent authority is satisfied that the development will not have an adverse effect on the long term use, for sustained agricultural production, of any prime crop and pasture land.
The first precondition prescribes a process that must be undertaken: the making of an assessment of the kind specified. The second precondition requires the consent authority to form the requisite opinion of satisfaction. Both preconditions must be satisfied before the weighing of the merit considerations under s 79C(1) of the Act. Making the requisite assessment and forming the requisite opinion of satisfaction enlivens the power to grant consent to the development: see, in relation to the first type of precondition.
From the evidence available to me, I conclude that the proposed subdivision would not be consistent with these aims and objectives. The subdivision of the site as proposed would not protect, enhance and conserve agricultural land in a manner which sustains its efficient and effective agricultural production potential. I agree with Mr Moar that it would fragment viable agricultural land. Whilst the council has not demonstrated that the subdivision of the site would result in major costs to the community, there will be some costs and demands placed on the community as a result of the development. That alone would not be sufficient reason to refuse consent to the application. The council's strategic planning documents have identified areas that are considered suitable for rural living styles of development and this is articulated through its DCP and the subzones that apply. I therefore conclude that the site is not an appropriate location for rural living.
Accordingly, subdivision of the site in the manner proposed is contrary to the provisions of clause 9(3) of the LEP which requires that no consent hall be granted to the carrying out of development unless the carrying out of that development is consistent with the objectives of the zone within which the development is proposed to be carried out. The application therefore requires refusal.
It is agreed between the parties, and I have concluded, that the site is located within two existing holdings. The application of clause 13 allows the creation of not more than 2 allotments for the purpose of a dwelling-house, but only if each new allotment to be created 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 does not comprise prime crop and pasture land. It is clear that clause 13 has been applied to EHB and, for the reasons stated in paragraph 45 of this judgment, only one additional allotment could be allowed. The application proposed three lots from this existing holding and therefore, consent cannot be granted.
EHA currently comprises three allotments. The parties disagreed on the terms of power under which two of those lots were created. I have concluded from the evidence available that Lot 2 in DP 1131715 was created, pursuant to the provisions of clause 12(3) for the purposes of agriculture. I was referred to D'Arcy v Bega Valley Shire Council [2002] NSWLEC 88 however, I do not consider this decision has application to the site. The circumstances vary, particularly as there is no "residue" allotment in this case.
The subdivision excised the existing dwelling from the existing holding and created one allotment which contains the dwelling house and one lot for the purpose of agriculture. This is not an issue in the application of clause 13 which enables the subdivision of EHA for the purpose of an additional allotment for the purpose of a dwelling house. There is no evidence to show that any of EHA is prime crop or pasture land and accordingly, the subdivision to create proposed lot 2 could proceed in the absence of non-compliance with the zone objectives.
The only other option that would allow subdivision of the land would be the application of clause 15 of the LEP. A rural small holding could be created provided the land the subject of the application in not an allotment created in accordance with the LEP for agriculture. EHA was created for this purpose and accordingly, would prohibit the creation of proposed lot 2.
Clause 15 introduces additional matters that must be taken into account when determining applications for subdivisions that create rural small holdings. Those requirements are detailed in para 24 of this judgment. For those reasons that have led to my conclusion that the zone objectives are not satisfied, and the evidence of the council, the site view and current use of the land for cropping and the opinion of the Department that the application should not be supported as it results in fragmentation of rural lands, I also find that the application does not satisfy the matters referred to in clause 15.
As the application proposes the subdivision of four lots, approval for all of those lots cannot be given applying either clause 13 or 15 in part or as a whole, regardless of the need to comply with the zone objectives. Similarly, approval to only part of the application cannot be given. Accordingly, the application must fail.
The final matter to be considered is whether I attach any weight to the 2010 LEP. In this regard, the council's strategic planning documents and the DCP that were in place at the time the application was lodged and therefore, are the documents which I must consider, are, in my opinion, sufficient guidance as to where the council sees rural subdivision for dwellings should occur. For this reason, I do not need to give any weight to the 2010 LEP. If I did however, it would be further reason to refuse the application.
Orders
The orders of the Court are:
(1) The appeal is dismissed.
(2) Development application DA 89/2008 to subdivide part of two existing holdings, being Lots 79 and 81 DP 757262 and Lot 22 DP 622994 Yabtree Road Borambola, into four allotments for the purposes of dwelling houses is determined by the refusal of development consent; and
(3) The exhibits, other than exhibit D, are returned.
Decision last updated: 31 January 2011
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