Pialligo Residents Association v ACT Planning and Land Authority (Administrative Review)

Case •

[2024] ACAT 41

•

22 March 2024

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

PIALLIGO RESIDENTS ASSOCIATION v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2024] ACAT 41

AT 15/2023

Catchwords:               ADMINISTRATIVE REVIEW – application for review of development application for retrospective approval – decision under review set aside and substituted by a decision to refuse approval – whether approval exempts decision from third-party review – whether development application is exempt from third-party review under item 10 in schedule 3, part 3.2 of the Planning and Development Act 2007 – application for summary dismissal – whether land was used for ‘broadacre farming’ – definition of ‘broadacre farming’ under the Crown lease

Legislation cited:        Planning and Development Act 2007 (repealed) ss 156, 162, 407, 408A, Sch 1

Planning and Development Regulation 2008 (repealed) s 350, Sch 3
Water Resources Act 2007

Tribunal:Senior Member M Orlov

Date of Orders:  22 March 2024

Date of Reasons for Decision:      22 March 2024

Date of Publication:  6 June 2024

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 15/2023

BETWEEN:

PIALLIGO RESIDENTS ASSOCIATION
Applicant

AND:

PIALLIGO FARMING PTY LTD ACN 152 941 609
Party Joined

AND:

ACT PLANNING AND LAND AUTHORITY
Respondent

TRIBUNAL:Senior Member M Orlov

DATE:22 March 2024

ORDER

The Tribunal orders that:

  1. The decision to grant approval to DA Number 202240167 is set aside and substituted by a decision to refuse approval.

    ……………………….………..

Senior Member M Orlov

REASONS FOR DECISION

Introduction and overview

  1. This is an application for review of a decision by a delegate of the respondent to give retrospective approval, subject to conditions, for the conversion of an existing residential dwelling to a guest house involving internal alterations, on Block 34 Section 2 in Pialligo (block 34), the relevant part of which is zoned NUZ1 – Broadacre Zone.

  2. Block 34 has an area of 5.191 hectares. It is commonly known as 20 Kallaroo Road. It is adjacent to Block 1 Section 2 Pialligo (block 1) known as 18 Kallaroo Road. Collectively, the two blocks were known at relevant times as ‘Pialligo Estate’, a location described in a local food guide as a “true foodie haven for local produce lovers, with a vineyard, a restaurant and café, an olive grove and fruit orchard, a huge kitchen garden and an award-winning smokehouse.”[1] The significance of this will appear later.

    [1] Applicant’s response to submissions by the party joined dated 11 July 2023, Attachment C

  3. There are three class 1 building on block 34. A site plan identifies them respectively as “existing class 1 residence 1” (for which planning approval was given on 10 October 2017), “existing class 1 residence 2” (for which planning approval was given on 28 April 2020), and “existing building proposed class 1B guest house” (for which planning approval was given before 1996). The proposal for development approval relates to the third building, which was the original farmhouse.

  4. Clause 3(a) of the Crown lease permits the land to be used only for “agriculture” and “residential purposes”. Clause 3(b) restricts the permissible number of single unit private dwellings to two.

  5. “Agriculture” is defined in the Crown lease as:

    broadacre farming, crop and pasture production, and horticulture for commercial wholesale production, but does not include animal husbandry or any cultivation or animal farming carried out primarily for the personal enjoyment of, or consumption by, the owner(s) or occupant(s) of the land

  6. “Farm tourism” is permitted as an ancillary use provided the use is secondary to the use of the land for its primary purpose of “agriculture”. “Farm tourism” is defined in the Crown lease as:

    operating a … guest house … for tourists that is secondary to the use of the primary purpose authorised by the lease

  7. The development application was submitted on 16 May 2022. The proposal sought “retrospective approval for existing internal fit out works in order to support the change of building class to Class 1b”.

  8. Under the Building Code of Australia, a class 1b building includes a “boarding house, guest house, hostel or the like”.

  9. The development application was assessed in the merit track. The notice of decision approving the proposal subject to conditions is dated 2 February 2023.

  10. The conditions of approval include:

    ANCILLARY USE – ONGOING CONDITION

    The approved Guest house must not be used as a ‘standalone’ use. At all times, the approved Guest house is to be used only in conjunction with ‘farm tourism’ as an ancillary and secondary use of the land for agriculture.

    Note – Guest house as a “standalone” use is prohibited in the NUZ1 Zone in which the proposed Guest house is located.[2] (Emphasis in original)

    [2] Notice of Decision, Part A – Conditions of Approval, [2]

  11. The reasons for the decision explain:

    During the assessment, the authority requested the applicant to demonstrate how the operation of the guest house is ancillary/related to the primary use i.e. agricultural use.

    The applicant provided a statement stating that the guesthouse is ancillary to the primary agriculture (sic) use as the following activities will be available for the guests.

    Tour of the working farm, picking fresh flowers, fruit and vegetables, farming practice education, education and workshops concerning beehives and honey harvesting, gathering of produce and chef led paddock to plate cooking experiences, spirit experience using farm-harvested botanicals to infuse drinks, connection to land experiences with a demonstration and understanding of Indigenous ways of life, living on the land and connection to the first settlers of the region and flower arrangement classes.

    The information was considered acceptable. Conditions have been imposed regarding the issues identified during assessment to ensure the development satisfies the Territory Plan, addresses assessment issues including relevant entity advice, and follow standard process and practices.[3]

    [3] Notice of Decision, Part B – Reasons for the Decision

  12. The applicant is an entity that made a representation about the development application under section 156 of the Planning and Development Act 2007 (repealed) (PD Act).

  13. The applicant sought review of the decision on the grounds that, as at 16 May 2022 when the development application was lodged, block 34 was not and never had been used for agriculture. The effect of approving the development application was to permit the operation of a guest house as a standalone use, which is contrary to the Crown lease and a prohibited development on land zoned NUZ1.[4] The applicant sought orders that the decision under review be set aside and substituted by a decision to refuse approval.

    [4] NUZI – Broadacre Zone Development Table

  14. The respondent’s initial response to the application, reflected in an application for interim or other orders filed on 27 April 2023, was that the Tribunal should dismiss the application for lack of jurisdiction on the grounds that the decision to approve the development application was exempt from third-party review.

  15. When it became apparent that the respondent’s application for summary dismissal would require the Tribunal to decide substantially the same factual issues as would arise on a final hearing on the merits, the respondent’s application was listed for hearing together with the substantive application for review.

  16. In the lead up to the hearing, after the applicant filed its evidence, the respondent’s position changed. In written submissions filed on 5 June 2023, the respondent submitted that, while it did not concede it made an incorrect decision in approving the development application based on the evidence available to the decision‑maker at the time, considering the evidence made available since then the Tribunal should set aside the decision and substitute a decision that approval be refused.

  17. The Crown lessee (Pialligo Farming) made a belated application to be joined as a party, which was heard on the morning of the scheduled day of the hearing. Pialligo Farming contended that the decision to approve the development application was not reviewable but, if it was, the decision to approve should be confirmed and, as a matter of procedural fairness, the party joined should be given an opportunity to adduce evidence and make submissions to that effect. The Tribunal granted the application and adjourned the hearing to a later date.

  18. The final hearing took place on 13 July 2023.

  19. The applicant tendered witness statements by Graham Fleming, who conducts a small-scale primary production operation, breeding and selling miniature and intermediate sized narcissus on Block 10 Section 2 Pialligo (block 10) and Roy Priest, a director of a family company that formerly grew vegetables commercially and now grows lucerne on Block 32 Section 2 Pialligo (block 32), known as 19 Kallaroo Road.

  20. The respondents did not call any witnesses.

  21. The party joined called Raven Park to give evidence. Mr Park was formerly employed as Special Projects Manager for Pialligo Estate Operations Pty Ltd (Pialligo Operations) which managed the Pialligo Estate at relevant times. Pialligo Farming and Pialligo Operations were controlled by John Russell, who was the sole director and secretary of both companies. A liquidator was appointed to Pialligo Operations on 8 April 2023 and receivers were appointed on 1 May 2023. At the date of the hearing, Pialligo Operations had ceased to operate and, as far as the Tribunal was made aware, no other entity had been appointed in its place to manage Pialligo Estate.

  22. Mr Fleming, Mr Priest and Mr Park were cross-examined.

  23. The Tribunal reserved its decision at the conclusion of the hearing. For the reasons that follow, the Tribunal is satisfied that the decision to approve the development application is reviewable and the correct decision is to refuse development approval.

Is the decision reviewable?

  1. Section 408A of the PD Act provides that an eligible entity for a decision may apply to the Tribunal for review of the decision.

  2. A reviewable decision is defined in section 407 as a decision mentioned in schedule 1 column 2. Item 4 of schedule 1 provides that a decision under section 162 to approve a development application in the merit track is not reviewable if the application is exempted by regulation.

  3. Section 350 of the Planning and Development Regulation 2008 (repealed) (PD Regulation) provides that a development application in relation to a matter mentioned in schedule 3, part 3.2 is exempt from third-party review.

  4. Item 10 in schedule 3, part 3.2 exempts from review a development application on land in a broadacre zone or rural zone if, among other things:

    the development would not have the effect of permitting the use of the land for a purpose other than that for which it is leased at the time of the application or permitted by a licence under the Act that is current at the time of the application.

  5. It bears emphasising that whether a decision to approve a development application in the merit track is open to third-party review depends on whether the application is exempted by regulation. If an application is not exempted by regulation, the availability of third-party review is not affected by the giving of approval on conditions, as occurred in this case. I mention this because Pialligo Farming submitted that the granting of approval on condition that the guest house “be used only in conjunction with ‘farm tourism’ as an ancillary and secondary use of the land for agriculture” meant that item 10(b) in schedule 3, part 3.2 was satisfied, such that the decision was not open to third-party review. The question under item 10(b), according to Pialligo Farming, is whether the development, as approved, would not have the effect of permitting use of the land for a purpose other than the purpose for which it was leased at the time of the application.[5] The submission must be rejected. Section 407 of the PD Act and section 350 of the PD Regulation make it clear that it is the application and not the approval that determines whether a decision is open to third-party review.

    [5] Transcript of proceedings 13 July 2023, page 77, lines 32-35

  6. As mentioned earlier, the development application sought “retrospective approval for existing internal fit out works in order to support the change of building class to Class 1b”. There was some debate at the hearing about what this meant given that internal fit out works do not require development approval. Ultimately, all parties accepted that the development application sought retrospective approval to use block 34 for farm tourism, including operating a guest house and to change the existing use of the farmhouse from residential purposes to a guest house used as part of a farm tourism operation.

  7. As use of the land for farm tourism was permissible at the time of the development application only if it was secondary to the primary use of the land for agriculture, the determinative issue is whether block 34 was being used for agriculture – i.e. broadacre farming, crop and pasture production, or horticulture for commercial wholesale production – at the time of the development application – i.e. as at 16 May 2022.

  8. The statement of findings shows that the decision-maker was satisfied that block 34 was being used for agriculture at the time and approved the application on that basis.

  9. It was common ground that whatever the position may have been at the time of the development application, the appointment of a liquidator to Pialligo Operations meant that block 34 was not being used for agriculture at the time of the hearing.

The evidence of agricultural use at the time of the development application

The applicant’s evidence

  1. Mr Fleming took a series of photographs of block 34 on 11 May 2022, shortly before the date on which the development application was lodged. He explained that these show some of block 34 had been ploughed using a bed forming rotary hoe but that the area had not been planted. Mr Fleming said, based on his own observations, that block 34 had never been cultivated previously. There was some evidence that herbicide may have been used in some areas but grass and weeds were beginning to take over. Other photographs show a large area of land in use as a standalone car park, which Mr Fleming said was the primary use to which the land was being put at the time. Another photograph shows a “small display garden” near Dapu Place facing onto Kallaroo Road – an area that other evidence establishes was known as Front 20 – that, according to Mr Fleming, “had a diverse range of vegetables in it that were mostly left to go to seed”, the main beneficiaries of which were the substantial numbers of rabbits that could be seen feeding there of an evening.[6] There is nothing visible in the photographs to suggest the land was being used for anything that could be described as broadacre farming, crop and pasture production, or horticulture for commercial wholesale production.

    [6] Witness statement of Graham Fleming, Figure 9

  2. A second series of photographs taken on 12 June 2022 showed no change, according to Mr Fleming, other than grass and weeds taking over the ploughed areas.

  3. An ACTMapi aerial photograph taken in July 2022 shows that the previously ploughed area had been ploughed again.

  4. A further series of photographs of Block 34 taken by Mr Fleming on 7 July 2023 shows the previously ploughed areas overgrown with weeds.

  5. Mr Priest described the soils on block 34 as very similar to the soils on his block, being blown sand and sandy alluvial river soil with poor water retention. Unlike his block, block 34 does not have a licence under the Water Resources Act 2007 to extract water from the Molonglo River. It has access to town water only, the cost of which is prohibitive for agricultural use. From his observations, there had been some small scale growing of vegetables but not in quantities that were viable for a commercial operation.

  6. Mr Fleming and Mr Priest were of the view that for various reasons block 34 was not suitable for broadacre farming, crop and pasture production, or horticulture for commercial wholesale production. I have not relied on their views, not because I think they lack substance, but because the question I have to decide is a different one – namely, whether block 34 was being used for agriculture at the relevant time. Whether such use would have been commercially viable does not bear on the question I have to decide.

    The evidence of the party joined

  7. Mr Park said he was employed by Pialligo Operations as the Special Projects Manager from 19 July 2021 to 23 March 2023. Pialligo Operations farmed block 1 and block 34 during his period of employment. Farming activities comprised a vineyard, olive grove, an orchard growing a variety of fruit, and a market garden producing a variety of fruit and vegetables. The farming activities were managed by another employee of Pialligo Operations, Peter Anderson, with whom Mr Park said he interacted on a daily basis.

  8. The vineyard, olive grove, and orchard were on block 1. The market garden was operated over both blocks. Mr Park said there were three areas used for the market garden on block 34 with a perimeter of approximately 570 metres (known as Main 20), 283 metres (known as Upper 20), and 192 metres (known as Front 20) scaled used a computer measuring tool. An area calculation was not provided. Mr Park claimed that a large variety of horticultural crops were grown in the market garden areas that were “provided wholesale to Pialligo Operations”[7] for use in dining spaces and cafés on Pialligo Estate and in the preparation of preserves and chutneys and ready-to-eat meals. Mr Park said Mr Anderson would update the chefs about produce coming into season that would be available for use.[8] Any excess produce was “provided wholesale for sale at the Pialligo Market Grocer”.[9]

    [7] Witness statement of Raven Park dated 30 June 2023, [22]

    [8] Witness statement of Raven Park dated 30 June 2023, [24]

    [9] Witness statement of Raven Park dated 30 June 2023, [23]

  9. On 31 May 2022 – i.e. after the development application was lodged – Mr Anderson prepared a document described as an “initial 3 month plan for newly ploughed paddocks” setting out his “initial thoughts for new plantings of the longer-term upgrades of numbers for production to supply the current requirements”, some of which could be done “down the bottom in the market garden” and others would be better in the newly ploughed paddocks but not without irrigation, “otherwise we just throw money away”.[10] In a covering email addressed to the owner, Mr Russell, Mr Anderson wrote:

    Here is some planning of things I think we should increase production for in long term investments in consultation with Mark. They are all crops which will produce for minimum 15 yrs, but take three yrs minimum to produce usable amounts. At this point I have only included the estimates of what we are currently doing and estimates from Mark to cover that. They are mainly long term things that will ultimately take time to get to usable yields. I don’t know what the new guy will want to utilise of these things. So numbers can be increased. Short term crops are easy to increase in numbers with irrigation and consulting chefs of what they want to produce.[11]

    [10] Witness statement of Raven Park dated 30 June 2023, annexure RP5

    [11] Witness statement of Raven Park dated 30 June 2023, annexure RP5

  10. In about mid-2022, Mr Park became involved in a planning exercise to expand the cropped areas and improve their commercial yields. Mr Anderson was relied upon to give advice about suitable crops and yield opportunities. At Mr Russell’s request, Mr Anderson and Mr Park worked on developing a spreadsheet showing current and proposed future crop plantings for the market garden on block 1 and block 34. A copy of the spreadsheet dated 29 August 2022 is in evidence.[12] Mr Park created the spreadsheet using data provided by Mr Anderson regarding exiting crops and information about targets to be met provided by Mr Russell. The spreadsheet shows that 1,859 m2 out of a total of 8,202 m2 of existing planting is in the areas identified as Upper 20 and Front 20 of block 34 (although Mr Park said that the area identified as Upper 20 was a mistake and should have been Main 20) and the bulk of the existing plantings was in ‘Existing 18’ in block 1. Under ‘New Crops’, the spreadsheet suggests that a proposal was under consideration to increase the area of block 34 under crops to 19,718 m2, of which 14,054 m2 would be in Main 20. Mr Park said he did the data entries but the information came from Mr Anderson and Mr Russell.

    [12] Witness statement of Raven Park dated 30 June 2023, annexure RP4

  1. Mr Park said that between about June and August 2022, Pialligo Operation commenced work on extending existing irrigation infrastructure servicing block 1 to block 34, particularly the area identified as Main 20.[13] Block 1 had a licence to use water from the Molonglo River. However, the project was beset by difficulties, including persistent rain, delays in sourcing materials and labour shortages. The high level of rainfall resulted in reduced yields from the farming operations, loss of soil quality and increased weed growth. Mr Park said that because Pialligo Operations aimed to use only organic pesticides and herbicides and weeding was a manually intensive process affected by labour shortages, weed control in areas planted with crops was prioritised over areas that were ploughed or lying fallow.

    [13] Transcript of proceedings 13 July 2023, page 27, lines 12-27

  2. In cross-examination by the applicant, Mr Park agreed he had no prior experience of working in agriculture and had no day-to-day involvement in farming activities on Pialligo Estate. He had no knowledge of the growing conditions required for the crops listed in the 29 August 2022 spreadsheet, including whether any of the crops were sensitive to frost, and relied on information provided by Mr Anderson in that regard.

  3. Mr Park had no involvement in the financial management of Pialligo Operations. He agreed that Pialligo Operations undertook all of the farming activities and that it was carried out as a single operation on both blocks. Asked “who owned the crops”, Mr Park said “John Russell”.[14] Asked to identify the basis of his evidence that crops were provided wholesale to Pialligo Operations, Mr Park said he was told by “John Russell and the financial controller that this was the plan”.[15] He confirmed that Pialligo Operations operated the restaurant and event venues and, although he was not certain, he understood it also operated the café at 12 Beltana Road. Staff employed by Pialligo Operations prepared the preserves and chutneys. Mr Park was unsure who operated the Pialligo Market Grocer, other than he knew Mr Russell’s wife was involved. He confirmed that Pialligo Operations provided any excess produce from the farming operation to the Pialligo Market Grocer. However, he had no personal knowledge whether Pialligo Operations invoiced for the supply.

    [14] Transcript of proceedings, 13 July 2023, page 34, lines 40-46

    [15] Transcript of proceedings, 13 July 2023, page 35, lines 16-18

  4. In cross-examination by the respondent, Mr Park was unable to say when block 34 commenced to be used as part of the market gardening operations. Asked when block 34 was prepared for planting, he was able to provide only a “vague indication that it would’ve been between April and May” [16] and could “only provide a timeline between May and July 2022” [17] for when planting first happened. He confirmed that Mr Anderson would know and that he understood Mr Anderson was currently working in Canberra.

    [16] Transcript of proceedings, 13 July 2023, page 27, lines 34-35

    [17] Transcript of proceedings, 13 July 2023, page 39, lines 22-30

  5. Mr Park said he observed that on a weekly basis the farm would pack produce into crates and deliver it to different areas of the business but confirmed that he had no knowledge whether invoices were issued.

  6. Asked to clarify the source of his evidence that produce was provided wholesale to the Pialligo Market Grocer, Mr Park said it was something he assumed based on what Mr Russell and the financial controller had told him. Asked whether Mr Russell had told him that Pialligo Operation was selling its produce to the Pialligo Market Grocer, Mr Park said that Mr Russell “did not explicitly make that statement”.[18]

    [18] Transcript of proceedings, 13 July 2023, page 41

  7. Asked to clarify the evidence in his witness statement that Main 20 was prepared for agricultural use “including ploughing and weeding on multiple occasions”, Mr Park said it would have been between April and May 2022, based on what Mr Anderson had told him.

  8. In re-examination, Mr Park said that Front 20 “was already operating as a paddock” – by which I understood him to mean operating as a market garden –when he commenced his employment.

Consideration

  1. While I am satisfied that Mr Park made a genuine effort to give his evidence as truthfully and accurately as possible, it was obvious that he had limited personal knowledge of relevant facts. His witness statement conflated farming activities carried out on block 1 with those carried out on block 34 as part of the overall market garden operation managed by Pialligo Operations. His cross examination exposed that most of his evidence was hearsay, based on things he claimed he was told by Mr Russell, Mr Anderson, and the financial controller of Pialligo Operations, or that he assumed based on what they had told him. It would have been logical for Pialligo Farming to call Mr Russell, Mr Anderson, or the financial controller to give evidence as persons who may be expected to have personal knowledge of relevant facts relating to the use of block 34 for agricultural purposes at the relevant time. However, none gave evidence, and their absence was not explained.

  2. As noted earlier, ‘agriculture’ is defined in the Crown lease as:

    broadacre farming, crop and pasture production, and horticulture for commercial wholesale production, but does not include animal husbandry or any cultivation or animal farming carried out primarily for the personal enjoyment of, or consumption by, the owner(s) or occupant(s) of the land

  3. The evidence satisfies me that at the time of the development application – i.e. as at 16 May 2022 – there was some limited growing of vegetables on Front 20 and there were plans to start using Main 20 to grow crops as part of the existing market garden operation conducted by Pialligo Operations predominantly on block 1 but also on block 34.

  4. A photograph taken by Mr Fleming on 11 May 2022, shows a small vegetable garden on block 34 near Dapu Place and facing onto Kallaroo Road. The area in question can be seen in Annexure R2 to Mr Park’s witness statements and has a perimeter of 192.63 metres. Mr Park identified this area as Front 20.

  5. Other photographs taken by Mr Fleming on the same day show that parts of block 34 had been ploughed but not planted. This is consistent with Mr Park’s “vague indication” that Main 20 was prepared for planting between April and May 2022. Work to extend the irrigation system to Main 20 was commenced between about June and August 2022. The best indication Mr Park could give of when planting happened was between May and July 2022. However, photographs taken by Mr Fleming on 12 June 2022 support his evidence that nothing had changed since he took photos on 11 May 2022, other than grass and weeds taking over the ploughed areas. An aerial photograph taken in July 2022 shows that the previously ploughed area had been ploughed again. This must have happened after the photos were taken on 12 June and presumably was done in preparation for planting of Main 20.

  6. According to the market garden plantings spreadsheet (assuming for present purposes that the reference to Upper 20 was a mistake and should have been Main 20, as Mr Park said in oral evidence) by the end of August 2022 approximately 1,080 m2 of Main 20 had been planted with brown onions, globe artichokes, jap pumpkin, red onions, zucchini, garlic, white onions, and shallots and approximately 779 m2 of Front 20 had been planted with black kale, broad beans, Jerusalem artichokes, Russian red kale, purple and green Brussel sprouts, green and red cabbage, currants, elderberries, gooseberries, yellow raspberries, and green asparagus.

  7. The dictionary definition of ‘broadacre farming’ is “the farming of large tracts of land as a single operation resulting in economies of scale”.[19] Clearly, the scale of vegetable growing in block 34 at the time of the development application does not meet that description. Even if preparations to increase crop production in Main 20 were to be considered, as Pialligo Farming submitted, the August 2022 spreadsheet shows that only 1,859 m2 of an available area of 19,718 m2 was planted with vegetables in Front 20 and Main 20. In my view this also does not amount to broadacre farming.

    [19] Macquarie Dictionary, 8th ed

  8. The evidence shows that at the time of the development application, produce from the market garden was grown by Pialligo Operations predominantly for use by it in the restaurant, event venues, and café it operated as part of Pialligo Estate. While it appears that some produce that was excess to the requirements of the catering operations was supplied to the Pialligo Market Grocer for retail sale to the public, there is no evidence as to the ownership or operation of the business (other than the fact that Mr Russell’s wife was involved in some way), the quantity of produce that was supplied, or the commercial terms, if any, on which that was done. Although Mr Park asserted in his witness statement that produce was supplied wholesale to Pialligo Operations and to the Pialligo Market Grocer, he admitted that he had no personal knowledge of the asserted facts, which were based on hearsay or assumptions he made based on hearsay. In the absence of other evidence to justify Mr Park’s assertions, I am not persuaded that produce grown by Pialligo Operations on block 34 was supplied wholesale to Pialligo Operations or to the Pialligo Market Grocer. For that reason and because of the limited scale of the market gardening operation on block 34, I find that the block 34 was not being used for horticulture for commercial wholesale production at the time of the development application.

  9. Pialligo Farming submitted that the market gardening operation on block 34 amounted to “agriculture” because it involved “crop production” even if it was not broadacre farming. The premise of the argument was that “broadacre” qualifies “farming” but not “crop and pasture production” in the Crown lease definition of ‘agriculture’. In my opinion the definition should not be read that way. However, if I am wrong, in my view it is clear that the words “broadacre farming, crop and pasture production, and horticulture for commercial wholesale production”, considered collectively and individually, are intended to refer to large scale commercial operations as distinct from “cultivation … carried out primarily for the personal enjoyment of, or consumption by, the owner(s) or occupant(s) of the land”. Mr Fleming’s evidence that at the time of the development application, the vegetable garden in Front 20 was a small display garden in which a diverse range of vegetables were grown that were mostly left to go to seed, which I accept, in my view shows that Front 20 was not being used for “crop … production” at a scale that could amount to “agriculture” for the purposes of the Crown lease definition. Moreover, whatever vegetables were being grown on Front 20 at the time of the development application were intended for Pialligo Operation’s own use and therefore fell within the exception in the definition.

Disposition

  1. For these reasons, I find that block 34 was not being used for agriculture at the time of the development application.

  2. I also find that block 34 was not being used for agriculture at the time of the hearing, following the appointment of a liquidator to Pialligo Operations in April 2023.

  3. As the development application sought retrospective approval to use block 34 for farm tourism, including operating a guest house and to change the existing use of the farmhouse from residential purposes to a guest house used as part of a farm tourism operation at a time when the block was not being used for agriculture, the application is not exempt from third-party review under item 10 in schedule 3, part 3.2 of the PD Act. Accordingly, the challenge to the applicant’s standing to seek review of the decision fails.

  4. As block 34 was not being used for agriculture at the date of the hearing, approval of the development application would allow the block to be used contrary to the restrictions on use in the Crown lease.

  5. The correct decision in those circumstances is to set aside the decision under review.

    ………………………………..

Senior Member M Orlov

Date(s) of hearing: 20 June 2023 and 13 July 2023
Applicant:

Ms H Flemming, authorised representative

Mr G Flemming, authorised representative

Mr R Priest, authorised representative
Counsel for the Respondent: Mr J Bird
Solicitors for the Respondent: Ms S Ng
Party Joined

Mr D blencowe, authorised representative

Ms L Hargrave, authorised representative

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