Scheele v Cooma-Monaro Shire Council
[2013] NSWLEC 1053
•03 April 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Scheele v Cooma-Monaro Shire Council [2013] NSWLEC 1053 Hearing dates: 18,19 March 2013 Decision date: 03 April 2013 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is dismissed.
2. Development Application 24/10 for the subdivision of Lot 41 in DP 257114 and Lot 44 in DP 39926 into 16 lots is refused.
3.The exhibits are returned with the exception of exhibits 1, A and B.
Catchwords: DEVELOPMENT APPLICATION: subdivision of land into 16 lots - whether land "used primarily for the purpose of agriculture" - potential use of lots for a dwelling - bushfire risk - impact on flora and fauna - access - provision of public goods and services Legislation Cited: Conveyancing Act 1919
Cooma-Monaro Development Control Plan No 1- Development and Subdivision of Land (Urban and Rural)
Cooma-Monaro Local Environmental Plan 1999 (Rural)
Draft Cooma-Monaro Local Environmental Plan 2012
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008Cases Cited: BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399
Carr v Goulburn City Council (Land and Environment Court of New South Wales (Unreported), 21 June 1983, 20518 of 1982, Cripps J
Glover v Yarrowlumla Council (Unreported, Appeal No 10398 of 1998, Bignold J
Macdonald v Mosman Municipal Council 105 LGERA 49)Category: Principal judgment Parties: Lawrence Dennis Scheele (Applicant)
Cooma-Monaro Shire Council (Respondent)Representation: Counsel
Litigant in person (Applicant)
Mr A Bradbury, solicitor (Respondent)
Solicitors
- (Applicant)
Bradley Allen Love Lawyers (Respondent)
File Number(s): 11148 of 2012
Judgment
COMMISSIONER: This appeal relates to the refusal by Cooma-Monaro Shire Council of Development Application 24/10 for the subdivision of land, east of Bredbo, into 16 lots. The application describes the nature of the proposal as ""Non dwelling agriculture". Mr Scheele proposes that dwellings be prohibited on the proposed lots by way of a condition of consent or a s 88B Instrument under the Conveyancing Act 1919.
The applicant owns the following properties (the Holding):
- Lots 29, 30 and 33 in DP 750521,
- Lot 41 in DP 257114,
- Lot 44 in DP 39926, and
- Lot 40 in DP 750526.
The Holding has an area of approximately 4693 ha.
The proposed subdivision involves only Lots 41 and 44 (the subject site). Lot 41 is to be subdivided to create:
- Lot 1 - 149 ha approximately,
- Lot 2 - 113 ha approximately,
- Lot 13 - 131 ha approximately,
- Lot 14 - 213 ha approximately,
- Lot 15 - 177 ha approximately, and
- Lot 16 - 383 ha approximately.
Lot 44 is to be subdivided to create:
- Lot 3 - 113 ha approximately,
- Lot 4 - 113 ha approximately,
- Lot 5 - 172 ha approximately,
- Lot 6 - 180 ha approximately,
- Lot 7 - 108 ha approximately,
- Lot 8 - 46 ha approximately,
- Lot 9 - 120 ha approximately,
- Lot 10 - 117 ha approximately,
- Lot 11 - 186 ha approximately, and
- Lot 12 - 182 ha approximately.
Lots 41 and 44 have a total area of approximately 2503 ha.
Access to the site is from Jerangle Road, across the Bredbo River via a low level crossing, to Cappawidgee Road to the western boundary of the subject site. Jerangle Road and Cappawidgee Road are council roads. The road that continues across the subject site is a Crown road although the road formation does not follow the identified Crown road in all locations. The Bredbo River generally forms the northern boundary of the subject site. A dwelling is located on proposed Lot 16 and according to Mr Scheele is not used permanently but sporadically by himself and his family. The subject site also contains some farm sheds and yards and dams.
Mr Scheele states that 8 lots are to be transferred to each of his children so that each child can operate their own independent agricultural operation and the remaining 8 lots are to be sold to cover costs and provide for a form of superannuation for himself and his wife.
Relevant planning controls
The site is within Zone 1(a)(Rural Zone) under Cooma-Monaro Local Environmental Plan 1999 (Rural) (LEP 1999). Agriculture is allowable without development consent in this zone. The Dictionary to LEP 1999 defines agriculture as:
Agriculture means the use of land for:
(a) the production of crops or fodder, or
(b) the keeping or breeding of livestock, bees, poultry or other birds, or
(c) horticultural purposes, including fruit, vegetable and flower crop production, and wholesale plant nurseries, or
(d) the grazing of livestock,
but (in the development control table) does not include any land use elsewhere defined in this Dictionary.
Clause 8(3) provides that:
(3) The Council must not grant consent for development on land within a zone unless it has taken into consideration the aims and objectives of this plan and is satisfied that the development is consistent with the objectives of the zone.
The relevant aims of the plan are:
(b) to maintain and encourage diverse agriculture,
(c) to ensure that development occurs in a manner which minimises risks due to environmental hazards, and minimises risks to important elements of the physical and natural environment, including water quality,
.
(f) to provide a range of housing opportunities, including rural residential development in the vicinity of Cooma and villages,
(g) to promote and co-ordinate the orderly and economic use and development of land in the Cooma-Monaro area.
The zone objectives are:
The objective of the zone is to restrict development to those uses which are unlikely to:
(a) prejudice in a significant manner the agricultural production potential of land within the zone, or
(b) generate significant additional traffic, or create or increase a condition of ribbon development on any road, relative to the capacity and safety of the road, or
(c) have an adverse impact on the area's water resources, or
(d) create unreasonable or uneconomic demands for the provision or extension of public amenities or services.
Clause 14 provides requirements for subdivision and relevantly cl 14(2) provides:
Land within Zone No 1 (a) or 7 (d)
(2) Development consent may be granted for the subdivision of land within Zone No 1 (a) or 7 (d):
(a) if the land is to be used primarily for the purpose of agriculture and:
(i) the land is a 1997 holding or, if the land has been the subject of a development consent for subdivision in accordance with this clause, the land has been nominated as the residue lot in the last subdivision of the land, and
(ii) the average area of the lots will be at least 80 hectares, and
(iii) each lot will have an area of at least 5 hectares, and
(iv) the consent authority has taken into consideration the matters indicated in Schedule 2 (to the extent that they are relevant), and
(v) the consent authority has considered the objectives of clause 21, or
There was no dispute that the proposed lots satisfy the numerical standards in cl 14(2)(ii) and (iii) and that the relevant matters in cl 14(2)(iv) and (v) are addressed by other council contentions. The dispute centres on cl 14(2)(a) and to a lesser extent cl 14(2)(a)(i).
Clause 15 provides requirements for residential development and relevantly cl 15(1) provides:
Dwelling-houses in Zones Nos 1 (a), 1 (c) and 7 (d)
(1) Development for the purpose of a dwelling-house must not be carried out on an allotment of land within Zone No 1 (a) or 7 (d) unless the allotment comprises:
(a) a 1997 holding, or
(b) a lot created in accordance with clause 14 (2) (a), or
(c) an allotment previously consented to by the Council in accordance with a previous environmental planning instrument, being an allotment on which a dwelling could have been erected with the consent of Council, or
(d) an existing holding as defined in clause 27 (2) of the Monaro Planning Scheme Ordinance, or
(e) a lot created in accordance with clause 14 (2) (d) and the consent authority is satisfied that a dwelling is necessary for the ongoing management of the property for horticultural purposes.
Clause 19 provides requirements for bushfire prone areas and provides:
Objective of provision
To control development within bushfire prone areas.
Land subject to bushfire hazards
Consent must not be granted to the subdivision of land or to the erection of a building on land which is subject to bushfire hazards because of the nature and vegetation on the land or on any adjacent land unless, in the opinion of the consent authority:
(a) adequate provision will be made for access for firefighting vehicles, and
(b) adequate safeguards are adopted in the form of firebreaks, reserves and fire radiation zones, and
(c) adequate water supplies are available for firefighting purposes.
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 is relevant according to the council.
Cooma-Monaro Development Control Plan No 1- Development and Subdivision of Land (Urban and Rural) (DCP 1) applies in relation to road construction and design.
Draft Cooma-Monaro Local Environmental Plan 2012 (the draft plan) is a relevant consideration having been publicly exhibited. The subject site is within Zone RU1 Primary Production where agriculture is permissible with consent. The draft plan, at the time of the hearing, was having the submissions assessed by council staff after the public exhibition with the view of having a report to the council by the end of March 2013. I do not accept that it could be regarded as imminent or certain in these circumstances. In any event, the draft plan has savings provisions at cl 1.8A, that would likely make LEP 1999 the principal planning document for the assessment of the application, even if the draft plan was gazetted.
The dispute
The council maintains that the application must be refused as the subdivided land is not to be used primarily for the purpose of agriculture (cl 14(2)(a)) and the subdivision does not comprise the whole of the 1997 holding (cl 14(2)(a)(i)).
If the Court finds that the subdivided land is used primarily for the purpose of agriculture and the subdivision comprises the whole of the 1997 holding, then the application ought be refused because it is likely that some, if not most new lots will ultimately seek approval for a dwelling and in this event, bushfire risk, impact on flora and fauna ,access for dwellings and the unacceptable impact on public goods and services has not been addressed. Consequently, the application is inconsistent with the zone objectives (cl 8(3)).
The evidence
The council provided expert evidence from Mr Mark Adams, a town planner employed by the council, Mr Lew Short, a bushfire expert, Mr Patrick Booker, a civil engineer employed by the council and Mr Michael Keys, an agronomist. The applicant provided no expert evidence but cross-examined the council experts.
Mr Adams states that the council has consistently been of the opinion that all land comprising a 1997 holding must be included in a proposed subdivision. It is not sufficient to name lots that are not included in the proposed subdivision plan or to simply use a 1997 holding to calculate the number of potential lots. As currently submitted, the subdivision cannot be regarded as a 1997 holding although Mr Adams accepts that amendments could be made to address this deficiency however no amendments were made during the proceedings to overcome the fundamental problem.
Mr Adams also states that, in his opinion, it is likely that the proposed lots will attract potential buyers on the basis that a dwelling can be erected on the lots, particularly given the poor agricultural land. In this regard, there will be an unreasonable demand on amenities and services given the isolated nature of the subject site. He notes that no s 94 contributions are levied for community facilities in the area.
On the question of access, Mr Adams notes that Mr Scheele proposes to use the Crown road as the sole means of access to the proposed lots and recent correspondence from the Land and Property Management Authority indicates that council approval of the subdivision would result in the transfer of the road to the council. This course of action is opposed by the council based on the unwillingness of Mr Scheele to upgrade the access road and even if upgraded, the additional maintenance costs.
Mr Brooker provides further evidence on the question of access and particularly the standard of the existing access road and the crossings and the need to upgrade the existing Crown road. He provides cost estimates for the Bredbo River crossing, Birchams Creek Bridge, Crown road improvements and also necessary improvements to council infrastructure outside the subject site, based on the potential traffic generated by dwellings constructed on each of the 16 lots. Mr Brooker accepts that the existing Crown road and the council infrastructure outside the subject site are acceptable, if the subject site is used only for agriculture.
Mr Short also provides his evidence based on the potential dwelling entitlements for each lot and states that the inherent bushfire risk posed by the proposed subdivision will be significant. The potential difficulties for both residents and emergency services personnel in an area with such risk are so great that, in his opinion, the application ought not be supported. The response from the Rural Fire Services should be disregarded as it was based only on the lots being used for agriculture.
The evidence of Mr Keys is addressed in the following paragraphs.
Is the land to be used primarily for the purpose of agriculture?
Clause 14(2)(a) of LEP 1999 imposes a precondition to the Court in exercising the power to grant consent to the proposed development. The precondition requires that the land be used primarily for the purpose of agriculture. A reference to the words "the land" in cl 14(2)(a) must be a reference to the land, after subdivision. A negative finding must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.
Agriculture is defined in LEP 1999 however the phrase "used primarily for the purpose of agriculture" is not defined so it can be given its ordinary meaning. The Macquarie Dictionary (Second Edition) defines "primarily" as:
1. in the first place; chiefly; principally. 2. in the first instance; at first; originally.
In Carr v Goulburn City Council (Land and Environment Court of New South Wales (Unreported), 21 June 1983, 20518 of 1982) Cripps J found in similar circumstances that to satisfy a similar requirement to cl 14(2)(a), it was necessary that firstly, each lot created is to be capable of being used for agriculture although not necessarily in a economically viable sense and secondly, it is probable that each lot will be used for agriculture in the future.
Put simply, in this case the Court must be satisfied that each of the proposed 16 lots created must be capable of chiefly or principally being used for agriculture and will probably be used for agriculture in the future.
Mr Keys describes the land on the subject site as " quite rough and principally tree covered" and "marginal land from an agricultural perspective". The majority of soils are shallow, stoney, acid and hardsetting with low fertility and a high erosion potential. When assessing land for sustainable agricultural use, Mr Keys adopts the Agricultural Suitability Classes ranking where land is ranked according to its productivity thus helping to identify land worthy of being retained for agriculture. Using this 5 class system, Mr Keys finds some of land is Class 4 (unsuitable for cultivation but may be improved using direct drill techniques; suitable for grazing) however the majority is Class 5 (generally unsuitable for agriculture but may provide light but often only seasonal grazing).
Mr Keys conducted an inspection of each of the proposed 16 lots and concludes that the subject site has a low agricultural production potential in that it would appear to pose significant problems in terms of land being used primarily for agriculture, if subdivided. Apart from the quality of the land, the biggest drawback, according to Mr Keys, is a lack of infrastructure including a place to stay and facilities to handle and manage livestock. A large number of proposed lots have no stock proof fences and there would be considerable cost in erecting these fences, and also facilities to shear sheep. The majority of the Holding is best suited to grazing of fine wool Merino sheep, however given the stocking rate of one half a dry sheep/ha for the majority of each new lot, the overhead costs would be likely to be greater then returns (except possibly Lot 16). Only small parts of some blocks (Lot 8) would be suitable for growing the types of highly productive pastures necessary to run ewes for meat production. Cattle breeding or fattening would be similarly constrained. Other agricultural activities such as goats, honey production and poultry are also seen by Mr Keys as being unsuitable for a number of reasons.
Overall, and from a practical viewpoint, Mr Keys states that the proposed lots are not capable of being used for agriculture in a real and genuine sense. From his assessment, Mr Keys concludes that any agricultural activities would not cover the costs of the agricultural activity and as such the proposed lots are not capable of being used primarily for agriculture.
The evidence of Mr Keys was conclusive, in my view. While Mr Scheele stated that he had grazed sheep satisfactorily on the Holding for many years without on site management and the need for the regular attention suggested by Mr Keys, I am not satisfied that the more laissez-faire approach successfully used by Mr Scheele should necessarily be the test for determining whether the lots subdivided lots can be used primarily for the purpose of agriculture, for a number of reasons.
First, I do not accept that all lots in the proposed subdivision can be "used primarily for the purpose of agriculture". For example, Mr Keys describes Lot 7 in the following manner:
Sub lot 7 (photo 10): virtually 100% tree covered this steep, rocky 108 ha block on the eastern boundary has no agricultural value in my opinion. A soil sample was taken from a tea tree dominated flowline at the northern end of the block where the land is less steep and rocky in the vicinity of WP 521 as shown on Appendix 3. The soil sample confirms what I saw, namely a dispersible soil that will be very prone to erosion if these flowline areas were ever cleared.
Some other lots have some cleared areas however overall, Mr Keys considers most of the lots cannot be used primarily for the purpose of agriculture.
Second, and even if the 8 lots proposed for Mr Scheele's children are operated in the same way as current grazing practices, the other 8 lots are to be sold to unknown buyers who may have a different view on the agricultural use of the lots, given their comparatively small size and the largely rough and tree covered nature of the lots.
Third, even if the 8 lots proposed for Mr Scheele's children are used for some form of agriculture (and there was no evidence to support this claim) the lots may be legally sold, at any time, once created.
Fourth, it was generally accepted that Mr Scheele runs around 1250 sheep. According to Mr Scheele, the sheep are attended to around twice a year. While Mr Keys stated that a similar stocking rate could be obtained after the subdivision of the site I do not accept this conclusion. If subdivided, a new lot may be fenced that could deny access to some of the more arable parts of the Holding. Potential owners may have no interest in pursuing agriculture on the site and it is unlikely that grazing could take place in the way it does at present where sheep may graze over most parts of the site. In my view, it is more likely that the proposed subdivision will reduce the carrying capacity or agricultural capacity of the site, although not necessarily in a significant way, given the already low stocking rates.
Fifth, and while I accept that the phrase "used primarily for the purpose of agriculture" does not mean that any agriculture is to be financially viable; it must mean that that there is a genuine and serious attempt at using each lot for agriculture. The words used in Carr are that "the subdivided block be capable of that use [i.e., agriculture] but there must be a probability that it will be so used in future". I am not satisfied that there is a reasonable probability of the new lots being used for agriculture now and in the future given the comparatively small size and the largely rough and tree covered nature of the lots.
I also agree with Mr Keys that the absence of infrastructure, such as accommodation, sheds, dams and yards supports the proposition that there is a reasonable probability of the new lots not being used for agriculture.
Sixth, I agree with the submission of Mr Bradbury that the letter from Mr Chris Hillmam, an agronomist, dated 21 March 2011 that states that "the lots are suitable for low intensity grazing by sheep for wool production" should be given no weight as firstly, the letter was not prepared in accordance with the Expert Code of Conduct, secondly, did not address the question posed by cl 14(2)(a), thirdly, contained a disclaimer on the opinions contained in the letter and fourthly, Mr Hillman was not available for cross examination.
In accordance with cl 14(2)(a), I find that the subdivided land is not to be used primarily for the purpose of agriculture and as such the development application must be refused and the appeal dismissed.
For completeness, I will briefly deal with the other issues in dispute.
The 1997 Holding
Clause 14(2)(a)(i) of LEP 1999 imposes a precondition to the Court in exercising the power to grant consent to the proposed development. The precondition requires that the land be a 1997 holding. A negative finding must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.
A 1997 Holding is defined in the Dictionary as:
1997 holding means:
(a) except as provided by paragraph (b), an allotment, portion or parcel of land in existence at 3 March 1997 as a separate allotment, portion or parcel and having direct vehicular access to a public road vested in the Council or to a classified road, or
(b) where, as at 3 March 1997, a person owned 2 or more adjoining or adjacent allotments, portions or parcels of land having direct vehicular access to a public road vested in the Council or to a classified road, the land comprised of the aggregation of the areas of those allotments, portions or parcels.
Mr Bradbury submits that the definition has two elements. First, a person must have owned 2 or more adjoining or adjacent allotments, portions or parcels of land as a 3 March 1997 and second, those allotments, portions or parcels of land must have direct vehicular access to a public road vested in the council.
The council accepts that the 1997 holding, taken as a whole, has direct access to a public road vested in the council, even though individual portions within the 1997 holding, do not. Where the applicant fails is that cl 14(2) applies only where the land, the subject of the application comprises the whole of the 1997 holding (Glover v Yarrowlumla Council (Unreported, Appeal No 10398 of 1998, Bignold J). As the application does not contain all the land within the 1997 holding, the provisions of cl 14(2) are not available to the applicant.
In the absence of any evidence to contradict the submissions of Mr Bradbury, I accept that the provisions of cl 14(2) are not available notwithstanding that the problem could have been remedied during the proceedings.
The erection of dwelling houses on the lots
The dispute over the erection of dwelling houses on the proposed lots centres on the likelihood of development applications being submitted for dwellings on the new lots. Mr Scheele maintains that the subdivision application does not propose the erection of dwellings and that the proposal seeks only the subdivision for agricultural purposes. The council maintains that the approval of the subdivision will likely see development applications lodged for dwelling houses, given the unsuitability of the sites for agriculture. This would likely result in the rejection of all development applications as the relevant considerations relating to bushfire, flora and fauna and access for dwellings had not been addressed as part of this application. The council's position is that all relevant considerations for the erection of dwellings on the new lots should be considered as part of the subdivision of subject site rather than individual development applications for each lot.
In considering the different approaches to the question of the erection of dwelling houses, I prefer the approach adopted by the Council for a number of reasons. First, there is the opportunity for a dwelling to be erected on each of the 16 lots by way of cl 15(1)(b). I do not accept that this opportunity should be extinguished simply because it is convenient to avoid the proper assessment of the bushfire, flora and fauna and access issues associated with the construction of a dwelling.
In BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399, McClelland CJ addresses the assumption that a permissible use, in some form, will be generally be allowed. His Honour relevantly states (at par 117):
117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.
Second, where there is no barrier to the erection of a dwelling (beyond the normal assessment required by s79C of the EPA Act) and there is a strong possibility that development applications will be made for a dwelling given the rough and tree covered nature of the site and its general unsuitability for agriculture, then any suggestion that the sites should be restricted to only agriculture could not be said to be " the promotion and co-ordination of the orderly and economic use and development of land" (s 5(a)(ii) the EPA Act) or "promote and co-ordinate the orderly and economic use and development of land in the Cooma-Monaro area" (LEP 1999 aim (g)). If the application proceeds as suggested by Mr Scheele and a lot is purchased and a development application made for a dwelling, as permitted by cl 15(1)(b), then given the evidence of Mr Booker that substantial works are required to the access road (both within the subject site and the roads leading to the subject site) to provide appropriate access then the development application would likely be refused. The need to transfer the Crown road to the council and the standard of the road also remains unresolved, as does the potential impact on endangered flora and fauna. The undisputed evidence of Mr Short left no doubt that bushfire risk was unacceptable.
Third, I do not accept that it is appropriate that dwellings be prohibited on the proposed lots by way of a condition of consent or a s 88B Instrument under the Conveyancing Act 1919 given that a dwelling is permissible by cl 15(1)(b). It has been regularly accepted by the Court that the Conveyancing Act 1919 should not be used to supplement or reinforce restrictions made through conditions on a development consent (Macdonald v Mosman Municipal Council 105 LGERA 49) so it would, in my view, be even more inappropriate for a s88B Instrument to have the effect of prohibiting a use that is permissible under the relevant planning instrument.
Fourth, a dwelling may possibly be erected through the Rural Housing Code under the provisions of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 although the opportunity is limited by the provisions in cl 3A.37 relating to development standards in bush fire prone land. I note that all 16 lots, except parts of Lots 1 and 16 are shown on the council's Bush Fire Prone Land Map.
Aims of the plan and zone objectives
Clause 8(3) provides that consent must not be granted unless consideration has been made of the aims and objectives of the plan and the Court is satisfied that the development is consistent with the objectives of the zone.
Clause 8(3) also imposes a precondition to the Court in exercising the power to grant consent to the proposed development although it is a moot point given my findings on cl 14(2). The precondition requires consideration of the aims of the plan and the development to be consistent with the objectives of the zone.
For the reasons set out earlier in the judgment, I find that the proposed development is in conflict with aim (g) in that the proposal did not "promote and co-ordinate the orderly and economic use and development of land in the Cooma-Monaro area".
Having considered this aim, I am satisfied that the conflict with this aim would be sufficient to warrant the refusal of the application.
In relation to the zone objectives, and notwithstanding the submissions of Mr Bradbury, I am not satisfied that the proposed subdivision will "prejudice in a significant manner the agricultural potential of the land" (objective (a)). Mr Keys describes the agricultural capability of the subject site as "marginal" and I have accepted this conclusion. In my understanding, the grazing of sheep by Mr Scheele has more to do with his historic association with the subject site rather than a desire to run a profitable sheep grazing business and the evidence of Mr Keys supports such a position.
Given the poor agricultural production potential of the subject site and its current low stocking rate, I do not accept that the proposed subdivision would significantly prejudice the already low potential of the land.
While Mr Booker and Mr Adams raised concern over the potential maintenance costs for the council created by the subdivision, I am not convinced that this would necessarily be a reason to refuse the application. I agree that the council can legitimately require the upgrade of the existing Crown road to the standards required in DCP 1. I am not so convinced that the subdivision of the subject site necessarily generates the need for the upgrading of the council road infrastructure, external to the subject site. It was not a matter addressed in any detail, nor was Mr Booker cross-examined in any depth. Similarly, the impact on other council infrastructure was not fully ventilated at the hearing although it would be difficult to argue that 16 additional dwellings would be a reason to refuse the application. In any event, these are not matters that ultimately go to the issue of whether the development application should be approved or refused.
Orders
The orders of the Court are:
1. The appeal is dismissed.
2. Development Application 24/10 for the subdivision of Lot 41 in DP 257114 and Lot 44 in DP 39926 into 16 lots is refused.
3.The exhibits are returned with the exception of exhibits 1, A and B.
____________
G T Brown
Commissioner of the Court
Decision last updated: 03 April 2013
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