Thorncraft & Anor v Bathurst Regional Council - [2005] NSWLEC 571

Land and Environment Court

of New South Wales

CITATION:
Thorncraft & Anor v Bathurst Regional Council & Anor [2005] NSWLEC 571

PARTIES:
APPLICANTS:
Garry Francis Thorncraft and Susan Jane Thorncraft
FIRST RESPONDENT:
Bathurst Regional Council
SECOND RESPONDENT:
Director General of the Department of Infrastructure, Planning and Natural Resources

FILE NUMBER(S):
10440 of 2005

CORAM:
Lloyd J

KEY ISSUES:
Development Application :- dwelling house on rural land - minimum allotment area requirement - non-compliance - application of State Environmental Planning Policy No. 1 - Development Standards - undesirable precedent

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 s 5(a), s 97
Bathurst Region (Interim) Local Environmental Plan 2004
State Environmental Planning Policy No. 1 - Development Standards

CASES CITED:
Goldin v Minister for Transport (2002) 121 LGERA 101;
Hooker Corporation Pty Ltd v Hornsby Shire Council, NSWLEC, unreported, Cripps J, 2 June 1986;
Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79

DATES OF HEARING: 14/09/2005

EX TEMPORE JUDGMENT DATE:
09/14/2005

LEGAL REPRESENTATIVES:
APPLICANTS:
A J J Thompson (barrister)
SOLICITORS:
Higgins & Higgins
FIRST RESPONDENT:
P L Crennan (solicitor)
SOLICITORS:
McIntosh McPhillamy & Co
SECOND RESPONDENT:
P R Clay (barrister)
SOLICITOR:
Christine Hanson

JUDGMENT:

- 1 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J
Commissioner Bly

Wednesday, 14 September 2005

LEC No. 10440 of 2005

THORNCRAFT & ANOR v BATHURST REGIONAL COUNCIL & ANOR [2005[ NSWLEC 571

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is an appeal under s 97 of Environmental Planning and Assessment Act1979 (the “EP&A Act”) against the refusal of a development application for the erection of a dwelling house on Lot 77 in Deposited Plan 755799 Whalan’s Lane, Duramana, near Bathurst.

2 The relevant facts may be briefly described. The land is within Zone 1(a) – (Rural A Zone) under Interim Development Order No. 1 - Shire of Evans (as amended by Evans Local Environmental Plan No. 24) (“IDO No. 1”). Clause 16(3) of that instrument prescribes a minimum allotment size of 100 hectares for the erection of a dwelling house within such a zone. The subject property only has an area of about 2.4 hectares. It is therefore apparent that the development application made in this case could only be granted if the consent authority was prepared to exercise the discretion afforded to it under State Environmental Planning Policy No. 1 – Development Standards (SEPP No. 1).

3 An objection under SEPP No. 1 was made. It was referred to the Director-General of the Department of Infrastructure, Planning and Natural Resources as required by cl 7 of SEPP No. 1, for concurrence.

4 In a letter dated 16 April 2003, Planning New South Wales (as that Department now seems to be called) indicated that the Director-General was not prepared to concur for the following reasons:

· Concurrence would undermine the economic viability of rural and agricultural activities in the area, by reason of introducing land - use conflict and…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2005] NSWLEC 571
Decision Date: 09/14/2005

CaseChat Overview and Summary

This case concerns an appeal against the refusal of a development application by Garry Francis Thorncraft and Susan Jane Thorncraft (the "Applicants") to erect a dwelling house on their property located in Duramana, near Bathurst. The property is zoned as rural land under the Bathurst Region (Interim) Local Environmental Plan 2004, which requires a minimum allotment size of 100 hectares for the erection of a dwelling house. The Applicants' property is approximately 2.4 hectares, which is insufficient for purely grazing purposes and is used for horse care and breeding. The primary legal issue before the court was whether the minimum allotment size requirement could be waived under the State Environmental Planning Policy No. 1 - Development Standards ("SEPP No. 1"). The Applicants argued that the minimum allotment size requirement should be waived on the grounds of the economic viability of rural and agricultural activities, the setting of an undesirable precedent, and the lack of unique circumstances surrounding the application. The court found that the minimum allotment size requirement was indeed a development standard, and its underlying purpose was to protect and secure agricultural land for the future and to protect the value of land for agricultural purposes. The court held that compliance with the standard did not hinder the aims of the policy and was not unreasonable or unnecessary in the circumstances. The court further found that the proposed development would contravene the underlying objective of the standard and would set an undesirable precedent for other similar applications in the vicinity. The court dismissed the appeal and refused the development application, stating that the development standard should be observed. The formal orders of the court were to dismiss the appeal and refuse the development application for the erection of a dwelling house on the Applicants' property.

Orders