Wisbey v Queanbeyan-Palerang Regional Council

[2021] NSWLEC 1171

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wisbey v Queanbeyan–Palerang Regional Council [2021] NSWLEC 1171

Hearing dates:

25-26 February 2021

Date of orders:

9 April 2021

Decision date:

09 April 2021

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

1. The appeal is dismissed.

2. Development Application DA/2019/090 for the erection of a new single storey dwelling on Lot 569 DP 755901, Lot 570 DP 755901 and Lot 571 DP 755901 is determined by way of refusal.

3. Exhibits are returned with the exception of Exhibits 1, A and D.

Catchwords:

DEVELOPMENT APPLICATION – existing vacant rural allotments – proposed amalgamation of lots – site fails to meet the minimum lot size development standard for the erection of a dwelling – request to vary the standard – request not upheld – consent refused.

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 8.7

Land and Environment Court Act 1979 s 34AA

Palerang Local Environmental Plan 2014 cll 2.3, 4.1A, 4.2A, 4.6

Cases Cited:

Dem Gillespies v Warringah Council (2002) 124 LGERA 147; [2002] NSWLEC 224

Initial Action Pty v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Mactier v Carbonne Shire Council [2017] NSWLEC 1019

Moskovitch v Waverley City Council [2016] NSWLEC 1015

Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGERA 21

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Palerang Rural Lands Study Report

Rural Lands Strategy 2016-2036, December 2016

Category:

Principal judgment

Parties:

Margaret Wisbey (Applicant)
Queanbeyan–Palerang Regional Council (Respondent)

Representation:

Counsel:
M Cobb-Clark (Applicant)
R O’Gorman-Hughes (Respondent)

Solicitors:
Chamberlains Law Firm (Applicant)
BAL Lawyers (Respondent)

File Number(s):

2020/0273859

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal by the Applicant against the actual refusal of their development application (DA/2019.090) by Queanbeyan-Palerang Council (the Respondent). The Applicant filed a Class 1 Application, appealing the refusal, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The development application seeks consent for the amalgamation of three existing lots (Lot 569, Lot 570 and Lot 571in DP 755901) and the erection of a single storey dwelling house. The works are proposed at 1 Catholic Cemetery Road, Araluen.

2. Once amalgamated the three lots comprising the subject site would create a single lot with an area of 5.66 hectares. The subject site is zoned RU1 Primary Production under the Palerang Local Environmental Plan 2014 (LEP 2014). The minimum lot size for dwellings in the RU1 Primary Production zone is 40ha. Therefore, the development application is accompanied by a written request seeking to vary this minimum lot size standard to allow the development.

3. The appeal was subject to mandatory conciliation under s 34AA of the Land and Environment Court Act 1979 (LEC Act). No agreement was reached at the conciliation conference was terminated pursuant to s 34AA(2)(b) of the LEC Act. The proceedings were dealt with as a hearing.

Issues

4. The Respondent maintains that the development application should be refused for the following reasons:

1. That the Applicant’s written request pursuant to cl 4.6 of LEP 2014, seeking to vary the minimum lot size development standard, at cl 4.2A of LEP 2014, should not be upheld as it does not meet the required states of satisfaction in cl 4.6 of LEP 2014.

2. That the proposed development is contrary to the public interest as it is, firstly contrary to the planned residential density of the area, secondly contrary to the existing and desired future character of the area, and finally would establish an undesirable precedent.

5. The Court, in exercising the functions of the consent authority on appeal, needs to be satisfied that the preconditions in cl 4.6 of LEP 2014 are met in order to enliven jurisdiction to grant consent despite the noncompliance with the minimum lot size development standard in cl 4.2A of LEP 2014.

Outcome of the appeal

6. Following the consideration of the evidence and submissions I have determined that the Applicant’s written request to vary the minimum lot size standard to allow for the erection of a dwelling on the subject site should not be upheld. In brief, I am not satisfied that:

• The written request establishes that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case: cl 4.6(3)(a) of LEP 2014; or

• That the proposed development will be in the public interest because it is consistent with the objectives of cl 4.2A of LEP 2014 (the standard) and the objectives of the RU1 Primary Production zone.

7. My reasons are detailed in the following judgment. Given these findings the Court has no power to grant consent and the appeal is dismissed.

Subject site and its context

8. The subject site is located on the western side of an existing Crown Road Reserve which is an extension of Victoria Street. The land is undulating with a gentle slope and consists of pasture improved vegetation with individual trees in the north eastern corner of the site. Improvements to the land include fencing and gates.

9. The surrounding land is utilised for agricultural purposes. An extract of the submission pattern in proximity to the subject site is extracted at paragraph [35].

10. The historic subdivision pattern in the locality has resulted in some single dwellings existing on lots of 5ha and less, a number which are in proximity to the subject site.

The history of the subject site

11. Ms Wisbey provided an affidavit, which was read in the proceedings, which details the circumstances by which she became the proprietor of the land. That history is summarised below. The Applicant argues that these facts are relevant to the Court’s consideration of the reasonableness and appropriateness of the application of the minimum lot size standard to the subject site. (Applicant’s written submissions 8 March 2021)

12. In or about 1963 Ms Wisbey’s husband, Walter Mundy, and his brother Allan Mundy, arranged for a Mr Peter Harrison to attend a public auction of land on their behalf. The public auction was held by Tallanganda Shire Council who were auctioning land due to unpaid rates. Mr Peter Harrison, on behalf of Walter and Alan Mundy, was successful in purchasing several parcels of land (the land), as follows:

1. Lots 596, 570 and 571 DP 755901 (the subject site);

2. Lots 58 and 59 DP 755901;

3. Lots 4 and 5 Section 10 DP 758026;

4. Lots 145 -147 DP 755901; and

5. Lots 568, 406, 491, 403, 554, and 492 DP 755901.

(Exhibit B)

13. Walter and Alan farmed the land from 1963 to 1977. Walter Mundy passed away in November 1977 after which Ms Wisbey, as administrator of his estate, sought to transfer the land into her name. At that point “Ms Wisbey discovered that the Land had not been transferred into Walter and Alan’s names… it remained in the name of Mr Currie, who was the proprietor in 1917, if not earlier”. (Applicant’s written submissions 8 March 2021, p 2, 12)

14. Mr Cobb-Clark, for the Applicant, submits that the error in the title transfer “significantly interfered with Ms Wisbey’s ability to deal with the land, both at the time and into the future”. In particular, he submits that, Tallaganda Shire Council’s mistake meant that the subject site and the land could not be categorised as an existing holding for the purposes of the LEP 2014 as Mr Currie, the (mistakenly) registered proprietor of the land in 1974 was not the owner of the land, but was the owner of the subject site. (Applicant’s written submissions 8 March 2021, p 2, 13)

15. Further, Mr Cobb-Clark submits that had the land been properly conveyed to Walter and Alan at the time of their purchase, Ms Wisbey would have gained title following his passing. He argues she would have, pursuant to the planning rules that applied at the time and up to 2014, been able to construct a dwelling on the subject site.

16. Mr Cobb-Clark characterised the application as “seeking to reinstate the permissibility for a dwelling that previously existed on the land [the subject site], and would have been able to be utilised by her had Tallaganda Shire Council properly conveyed the land [the subject site]”. (Applicant’s written submissions 8 March 2021, p 4, 26)

Should the minimum lot size standard for a dwelling house be varied?

17. The subject site is zoned RU1 Primary Production by the Palerang Local Environmental Plan 2014 (LEP 2014). The objectives of the zone are a matter for consideration in the determination of the development application: cl 2.3(2) of LEP 2014. The objectives of the RU1 Primary Production zone are:

•  To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

•  To encourage diversity in primary industry enterprises and systems appropriate for the area.

•  To minimise the fragmentation and alienation of resource lands.

•  To minimise conflict between land uses within this zone and land uses within adjoining zones.

•  To minimise the impact of any development on the natural environment.

•  To ensure that development does not unreasonably increase the demand for public services or facilities.

18. Prior to considering the merits of the development application, it is necessary to consider the relevant preconditions that must be satisfied to enable the Court to have power to grant consent if such a merit assessment warranted. As the Applicant seeks a variation to the minimum lot size for dwellings in the RU1 Primary Production zone, one such precondition is the consideration of the Applicant’s requested variation against the states of satisfaction contained in cl 4.6 of LEP 2014 at sub cll (3) and (4).

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless—

(a) the consent authority is satisfied that—

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Planning Secretary has been obtained.

19. The parties agree that cl 4.2A of LEP 2014 requires that the subject site be a minimum of 40ha in order for development consent to be granted for the erection of a dwelling. The relevant clause is:

4.2A Erection of dwelling houses on land in certain rural, residential and environment protection zones

(1) The objectives of this clause are as follows—

(a) to minimise unplanned rural residential development,

(b) to enable the replacement of lawfully erected dwelling houses in rural, residential and environment protection zones.

(2) This clause applies to land in the following zones—

(a) Zone RU1 Primary Production,

….

(3) Development consent must not be granted for the erection of a dwelling house on land to which this clause applies unless the land—

(a) is a lot that is at least the minimum lot size shown on the Lot Size Map in relation to that land, or

(b) is a lot created under clause 4.1, 4.1AA, 4.1A or 4.1B, or

(c) is a lot created before this Plan commenced and on which the erection of a dwelling house was permissible immediately before that commencement, or

(d) is a lot resulting from a subdivision for which development consent (or equivalent) was granted before this Plan commenced and on which the erection of a dwelling house would have been permissible if the plan of subdivision had been registered before that commencement, or

(e) is an existing holding, or

(f) would have been a lot or a holding referred to in paragraph (a), (b), (c), (d) or (e) had it not been affected by—

(i) a minor realignment of its boundaries that did not create an additional lot, or

(ii) a subdivision creating or widening a public road or public reserve or for another public purpose, or

(iii) a consolidation with an adjoining public road or public reserve or for another public purpose.

Note: A dwelling cannot be erected on a lot created under clause 9 of State Environmental Planning Policy (Rural Lands) 2008 or clause 4.2.

(4) Development consent must not be granted under subclause (3) unless—

(a) no dwelling house has been erected on the land, and

(b) if a development application has been made for development for the purpose of a dwelling house on the land—the application has been refused or it was withdrawn before it was determined, and

(c) if development consent has been granted in relation to such an application—the consent has been surrendered or it has lapsed.

(5) Development consent may be granted for the erection of a dwelling house on land to which this clause applies if there is a lawfully erected dwelling house on the land and the dwelling house to be erected is intended only to replace the existing dwelling house.

(6) In this clause—

existing holding means land that—

(a) was a holding on the relevant date, and

(b) is a holding at the time the application for development consent referred to in subclause (3) is lodged,

whether or not there has been a change in the ownership of the holding since the relevant date, and includes any other land adjoining that land acquired by the owner since the relevant date.

holding means all adjoining land, even if separated by a road or railway, held by the same person or persons.

relevant date means—

…

(d) in relation to land to which Tallaganda Local Environmental Plan 1991 applied immediately before the commencement of this Plan—14 June 1974, or

…

Note: The owner in whose ownership all the land is at the time the application is lodged need not be the same person as the owner in whose ownership all the land was on the stated date.

20. The town planning experts, Ms Coe for the Applicant and Ms Francis for the Respondent, agree that none of the exceptions provided in cl 4.2A(3) of LEP 2014 apply to the subject site to permit the erection of a dwelling house despite it not meeting the standard of 40ha.

21. I note that cl 4.2A(3)(e) of LEP 2014 does permit the erection of a dwelling on an ‘existing holding’, as defined by the clause. Relevant to the current application an existing hold must:

• Include all adjoining land, even if separated by road or railway, held by the same person;

• Be held on the relevant date, in this case agreed to be 14 June 1974; and

• Be a holding at the time the application for development consent for the dwelling is lodged.

22. The subject site does not meet the conditions for the existing holding provisions. Relevantly, neither Ms Wisbey (or Walter and Alan) were owners of the Land or the subject site on the relevant date in 1974.

The Variation Request

23. Because the proposed development does not meet the minimum lot size standard to permit a dwelling, the application relies on a written request to vary the standard pursuant to cl 4.6 of LEP 2014.

24. It is clear from a reading of cl 4.6 of LEP 2014 that the onus is on the Applicant to meet the tests of cl 4.6 in seeking flexibility to the minimum lot size standard by demonstrating that the breach of the development standard is justified. If the preconditions are met, cl 4.6 allows a consent authority to grant development consent for development even though that development would contravene a development standard imposed by an environmental planning instrument.

25. As detailed in Initial Action Pty v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (‘Initial Action’) at [14] two opinions of satisfaction are required: The first precondition, in cl 4.6(4)(a), is that the consent authority, or the Court on appeal exercising the functions of the consent authority, must form two positive opinions of satisfaction under cl 4.6(4)(a)(i) and (ii).

26. Firstly, that the Applicant’s written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3). The matters at sub cl (3) are twofold: first, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and, secondly, that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). The written request needs to demonstrate both of these matters: cl 4.6(4)(a)(i) of LEP 2014

27. Secondly that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard that is contravened and the objectives for development for the zone in which the development is proposed to be carried out: cl 4.6(4)(a)(ii) of LEP 2014.

28. Failure to meet any of these tests is sufficient to deprive the Court of the power to grant consent to the development application.

Is compliance with the standard unreasonable or unnecessary?

29. The common ways in which an Applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (‘Wehbe’).

30. Namely, that:

1. the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1);

2. the underlying objective or purpose of the standard is not relevant to the development so that compliance is unnecessary (Wehbe test 2);

3. that the objective would be thwarted if compliance was required, so that compliance is unreasonable (Wehbe test 3);

4. that the development has virtually been abandoned or destroyed by the Council’s actions in departing from the standard (Wehbe test 4); or

5. that the zoning of the land is unreasonable or inappropriate so that the development standard is also unreasonable or unnecessary (Wehbe test 5).

31. In Initial Action, Preston CJ notes that the preceding five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (at [22] of Initial Action).

32. Broadly relying on Wehbe test 1 and 2, the written request argues that compliance with cl 4.1A of LEP 2014 is unreasonable and unnecessary on the following grounds:

1. the proposed development will not affect the existing land uses or amenity of surrounding properties.

2. The subject site has coinciding physical and legal access.

3. The objectives of the zone and the development standard are met by the proposal.

4. The development is similar in nature to surrounding properties in the locality.

5. The RU 1 Primary Production land in the locality is part of the historic village of Araluen and is already held in an ownership pattern that does not meet the minimum lot size requirements for a dwelling.

6. Many existing small lots in proximity to the subject site either have an existing dwelling or are able to access the concession in cl 4.2(3)A of LEP 2014 for ‘existing holdings’.

7. The proposal will not add unreasonable additional demand to existing services. The property is serviced by a public road, the dwelling will be powered by a standalone solar system, domestic water supply will be provided by water collected on site and effluent management and disposal within the bounds of the subject site.

8. The property is not isolated rural land, with postal services, school bus and community facilities available within walking distance of the land.

1. The subject site is consistent, both in character and aesthetic value, to other properties within the locality that have approved dwellings located on them.

(Exhibit 4)

33. Against the objectives of cl 4.2A of LEP 2014 the request makes the following arguments:

• To minimise unplanned rural residential development.

- that the “dwelling will contribute to the small lot agricultural characteristics that are within the locality and will not create precedent for unplanned rural residential development”. (Exhibit 4)

- the request includes a map of the properties within proximity of the site, which is reproduced at [35]. The request argues that this map demonstrates that the proposed new dwelling would sit within an area already characterised as rural residential which historically formed part of Araluen village.

• To enable the replacement of lawfully erected dwelling houses in rural, residential and environmental protection zones.

- the request notes that this objective is not applicable as the application does not rely on the replacement of a previous dwelling.

34. The written request argues that the proposed development is compliant with the objectives of the standard on the preceding grounds. In conclusion the written request argues that

“the objectives [of cl 4.2A of LEP 2014] seek to minimise unplanned rural residential development. As the parcel of land exists and is similar in size, if not larger than many properties in the locality, the approval of a dwelling in this location will not increase unplanned rural residential development within the area, as there is already the potential for many more dwellings in the locality due to being ‘exiting holdings’ under LEP 2014”. (Exhibit 4)

35. The planning joint report includes, as an annexure, a map that documents the structures on land in proximity to the subject site (outlined in red). It is extracted below:

36. Ms Francis addressed the merits of the written request as part of the joint report of the town planning experts, which was filed in the proceedings as Exhibit 2. Her evidence is that:

• the erection of a ”dwelling house cannot and does not minimise unplanned rural residential development, being the key applicable objective of the standard”. (Exhibit 2)

• the fact that there are other dwellings erected on lots in the vicinity of the subject site is reflective of the history of the precinct and is reflected in the form of cl 4.2A(3) of LEP 2014 which details a number of exceptions to the standard. She notes that she and Ms Coe both agree that these exceptions do not apply to the current application.

• the written request fails to demonstrate why compliance with the standard is unreasonable or unnecessary. She concludes that in her opinion the written request fails to establish justification for the variation.

37. In response to Ms Francis’ critique of the written request, Ms Coe argues that the variation requested is warranted on four broad grounds. Firstly, as the land was originally part of the Araluen township the subdivision pattern and many allotments in this subdivision are already well below the minimum allotment size. Secondly, the proposal is not antipathetic to the objectives of cl 4.2A of LEP 2014 as the proposal involves the consolidation of three existing parcels into one lot. Thirdly, the site has an historic right to a building entitlement, it has access to services and the construction of a dwelling will not impact any existing vegetation or agricultural productivity of the land. Finally, the dwelling will contribute to the small lot agricultural characteristics that are within the locality and will not create a precedent for unplanned rural residential dwellings. (Exhibit 2)

Is the development compliant with the zone objectives?

38. The Respondent, in the Statement of Facts and Contentions argues that the proposed development is inconsistent with the objective of the RU1 Primary Production zone ‘to minimise the fragmentation and alienation of resource lands’. (Exhibit 1)

39. Against each of the zone objectives the written request makes the following arguments:

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

- that the provision of a dwelling on the subject site will allow the landowners to better manage the subject site. In particular, ”a dwelling would allow owners to undertake more labour-intensive primary production activities on the land whilst also maintaining the natural features of the land”. (Exhibit 4)

• To encourage diversity in primary industry enterprises and systems appropriate for the area.

- that a dwelling on the subject site would “encourage the owners to investigate” diversification in their primary industry enterprises. The request further argues that the proposed dwelling has been sited to ensure that there is no detrimental impact on the natural environment. (Exhibit 4)

• To minimise the fragmentation and alienation of resource land.

- the request argues that the land was originally part of the village of Araluen and as such the lot pattern in this location is unique with many historical holdings already being well below the minimum lot size for a dwelling. There are also a number of dwellings sited on small lots. ‘Therefore, the proposed development will not further fragment or alienate resource lands due the existing ownership and lot layout pattern in this locality’. (Exhibit 4)

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

- that the proposed variation to permit a dwelling “maintains compatible land uses with the surrounding area and does not pose any conflicts with the land uses in adjoining zones [RU5- Village]”. (Exhibit 4)

• To minimise the impact of any development on the natural environment.

- that there are no environmental constraints on the land and that application will have no negative impacts on the natural environment.

• To ensure that development does not unreasonably increase the demand for public services or facilities.

- given the location of the site close to the village of Araluen, all services and facilities are in proximity.

40. In contrast to Ms Coe, Ms Francis argues that the proposed erection of a dwelling on the undersized lot does not, and in her view cannot, sustain, maintain or enhance primary industry production as sought by the zone objectives. She argues that firstly, the erection of a dwelling house will limit the area for agricultural production. Secondly, that the Rural Lands Strategy 2016-2036, December 2016 (the Strategy) states that ”80 ha is the desired agricultural minimum for economies of scale” and whilst the Strategy considers ‘boutique agriculture’ it suggests a minimum land size of 16ha. (Exhibit 2) Thirdly, the lot has a range of other permissible uses in the zone that do not have the constraint of a minimum lot size. Finally, that, importantly, allowing a reduced lot size for the erection of a dwelling will preclude amalgamation for agriculture and potentially cause conflict of uses. Ms Francis argues this last point arises because an adjoining lot may already have a dwelling.

41. Ms Francis concludes that the erection of a dwelling on the land would result in the fragmentation of resource land which is contrary to the objective of the RU1 Primary Production zone.

42. In response to Ms Francis’ critique, Ms Coe argues that: the proposed development will result in amalgamation and consolidation of land parcels; the site will be functional for the purpose of rural agricultural production despite its size; and that there is a demand for small lot primary production which is met by the proposed development.

Submissions

43. Mr Cobb-Clark, Counsel for the Applicant makes the following submissions in relation to the written request:

• That the use of the word ‘minimise’ in objective (a) of cl 4.2A of LEP 2014 is significant. He emphasises that the objective of the clause is not to “completely prohibit, or eliminate, unplanned rural residential development.” (Applicant’s written submissions 8 March 2021, p 9, 54)

• That as it identifies no further infrastructure is required for the proposed dwelling, except for the extension of a small service road.

• The fact that the subject site is close to a number of other dwellings on small lots (under 40ha) is relevant to the question of whether the proposed development will impact upon unplanned residential development. He states: “The presence of other dwellings, even if permitted as existing holdings, means that the addition of another dwelling of a similar type on a similar lot to the other dwellings is consistent with the ‘plan’ that has developed for that particular locality”. (Applicant’s written submissions 8 March 2021, p10, 61)

• On this point Mr Cobb-Clark further argues that given the subject site is located in an area with a number of existing holding dwellings and small lots, “the purpose of minimising unplanned rural residential development is not relevant to the Land. The area in which the Land is located is already the subject of unplanned, historic, rural residential development.” (Applicant’s written submissions 8 March 2021, p 11, 64)

• That the Court should apply the reasoning outlined by Brown C in Mactier v Carbonne Shire Council [2017] NSWLEC 1019, [72] (‘Mactier v Carbonne Shire Council’) which concludes that the fact that a lot was created before relevant planning controls does not make them unplanned. The relevant extract of the judgment is quoted below:

“[72] There can be no doubt that areas designed for rural residential allotments must have a strong strategic planning basis however to suggest that two individual lots, created in 1946 should not be able to have a dwelling on each lot because they have not been part of some wider strategic planning process is not realistic, particularly when LEP 2012 and previous planning documents made specific provisions for this to occur. It is not a matter of Lot D and Lot E being unplanned but simply that they predated most planning controls for the area.”

• Consistent with the reasoning in Mactier v Carbonne Shire Council, Mr Cobb-Clark argues that the subject site has been in existence for a significant period of time prior to the implementation of the provisions of cl 4.2A of LEP 2014, or preceding instruments. Further, he argues that on Ms Coe’s evidence that by definition, development that occurs under existing holding provisions is unplanned. It is unplanned because these developments have been “grandfathered in” without regard to the provisions of the present development controls. (Applicant’s written submissions 16 March 2021, p 2, 7)

• In conclusion Mr Cobb-Clark submits that the Court can be satisfied that the first test, that it is unreasonable or unnecessary for the development to strictly comply with cl 4.2A of LEP 2014, is met in one of two ways. Either because the development will achieve the objective of development standard to minimise unplanned residential development, or alternatively because the purpose of minimising unplanned rural residential development is not relevant.

44. In regard to the need for the development to be consistent with the zone objectives, Mr Cobb- Clark notes that the word consistent has been interpreted as being less onerous than ‘achievement’: Moskovitch v Waverley City Council [2016] NSWLEC 1015, [53]. Further, ‘consistent’ has been held to be equivalent to ‘compatible’ or ‘capable of existing in harmony’: Dem Gillespies v Warringah Council (2002) 124 LGERA 147; [2002] NSWLEC 224; or ‘not being antipathetic’: Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGERA 21. (Applicant’s written submissions 8 March 2021, p 13, 80)

45. Mr Cobb-Clark argues that the Respondent’s contention that the proposed development is inconsistent with the objective of the zone to ‘minimise the fragmentation and alienation of resource lands’ should not be accepted. He notes that in order for the dwelling to be constructed the development application proposes that the existing three lots are amalgamated. He submits that the approval of the application will result in consolidation, not fragmentation of land, with the resulting parcel being 5.6ha. (Applicant’s written submissions 8 March 2021, p 14, 87)

46. Further he argues that, whilst Ms Francis notes that the Strategy identifies at Principle 6.1 that 80ha is the desired agricultural minimum for economies of scale, it also notes a demand for boutique agriculture. He notes that the Palerang Rural Lands Study Report (Rural Land Report) identifies a median area for a commercial farm is 500ha, a median sized for hobby farms as 24ha and a median rural residential property as having an area of 8ha. Mr Cobb- Clark submits that on this basis the subject site has very little potential utility as resource lands. Further, he argues that even if the subject site was “added to a neighbouring lot, the small lot sizes of nearby lots would restrict the ability of the Land to be used as commercial agriculture”. (Applicant’s written submissions 8 March 2021, p 15, 93)

47. Mr Cobb–Clark concludes that allowing the addition of a dwelling to the land is not antipathetic to the objective of minimising fragmentation and alienation of resource land. As such he submits the Court can be satisfied that the development is in the public interest as required by cl 4.6(4)(a)(ii) of LEP 2014.

48. In the alternative Mr O’Gorman-Hughes, Counsel for the Respondent, argues that the written request fails to adequately establish that compliance with the development standard is unreasonable or unnecessary. In particular, his submissions argue that “none of the ways identified in Wehbe are adequately addressed or satisfied”. Rather Mr O’Gorman-Hughes argues compliance is either asserted, or the written request relies on the presence of existing holdings within proximity whilst acknowledging the subject site is not one. (Respondent’s written submission 10 March 2021, p 5, 16)

49. Further, Mr O’Gorman-Hughes argues that the written request fails to establish the object of the standard will be met. He disagrees with the argument relied on in the written request that a new dwelling on the subject site will contribute to the ‘small lot agricultural characteristics of the locality’. He submits that it is clear from a review of the map extracted at paragraph [34] that:

• Whilst there are dwellings on neighbouring land, they tend to be existing holdings;

• The subject site is not an existing holding as it was split into separate holdings after the relevant date in 1974; and

• The proposed development is the exemplar of unplanned development.

(Respondent’s written submission 10 March 2021, p7, 23 )

50. In conclusion Mr O’Gorman-Hughes argues that the fact that dwellings may have been erected on existing holdings, for which LEP 2014 makes express provision, does not establish that a new dwelling on the subject lot is consistent with the objectives of the standard.

51. Mr O’Gorman-Hughes further argues that the objectives of the zone are not met by the proposed development. He notes that the existing holding, of which the subject site was part, has been fragmented. He submits that the consequence of that fragmentation is that the site does not meet the exception in cl 4.2A (3) for existing holdings which would permit the erection of a dwelling house. He argues that for the Court to ‘permit a breach of the standard to allow the erection of a dwelling on that fragmented holding would not minimise fragmentation of resource lands; rather, it would encourage it.’ (Respondent’s written submission 10 March 2021, p 5, 16)

Findings

52. Clause 4.6(4)(a) of LEP 2014 requires the consent authority to form two states of satisfaction. Firstly, the Court must be satisfied that the written request adequately addresses the matters in cl 4.6(3) of LEP 2014, broadly that compliance with the standard is unreasonable and unnecessary in the circumstances and that there are sufficient environmental planning grounds to justify the contravention. Secondly, the Court must be satisfied that the proposed development is in the public interest because it is consistent with the objectives of the standard and the zone in which the development is proposed to be carried out.

53. For the following reasons I find I am not able to reach either of the states of satisfaction required by cl 4.6 of LEP 2014:

• I do not accept that the request establishes that compliance with the 40ha standard is unreasonable or unnecessary. I am not persuaded on the grounds detailed in the request, summarised at [32], that the proposed development will minimise rural residential development.

• In my view, it is clear from the zoning of the land and the framing of cl 4.2A of LEP 2014 that the intent is for these lots to be focussed to primary production. I accept, and prefer, the evidence of Ms Coe that allowing a rural residential dwelling on the proposed lot is contrary to an objective to ‘minimise’ rural residential development. I note that the Macquarie Dictionary definition of minimise is: ‘to reduce to the smallest possible amount or degree’.

• In my view the effect of the grant of the variation to the development standard, rather than minimising rural residential, would instead be to introduce a residential use, that is otherwise not permitted.

• I note that the proposed development will also result in the amalgamation or consolidation of lots, but in my view, this does not offset the inconsistency with the objectives of the standard that results from the establishment of residential use of the land.

• I am not persuaded by Mr Cobb-Clark’s submission that the presence of other dwellings or existing holdings within proximity of the subject site influence the characterisation of the development as ‘unplanned’. In my view, the structure of the clause provides for a number of historical arrangements to be recognised and accommodated. The subject site is not an existing holding. The reasoning in Mactier v Carbonne Shire Council can be distinguished on these grounds. The subject site does not fall within the exceptions of cl 4.2A of LEP 2014. On the arguments advanced I am not persuaded that the purpose of minimising unplanned rural residential is not relevant to the Land, or the subject site.

• I am not persuaded that compliance with the standard is unreasonable and unnecessary in the circumstances.

• I accept the submission of Mr Cobb-Clark that the relevant test is consistency with the zone objectives, and that consistency can be read as ‘compatible’ or ‘capable of existing in harmony’ or ‘not being antipathetic’, relying on the cases he cites.

• I do not accept that the proposed development is consistent with the zone objectives of the RU1 Primary Production zone. Both experts make reference to the Rural Lands Strategy (Strategy) in their evidence. Both experts note that even for ‘boutique agriculture’, 16ha is required based on the Strategy.

• There is no evidence before the Court, or advanced in the written request, that demonstrates or establishes how the erection of a dwelling house on the subject site is compatible with the encouragement of sustainable primary production. I am not persuaded by the assertion in the written request that a dwelling will allow the land access to better manage the site or undertake more intensive primary production activities. No verification or details is provided to support or detail how these assertions would be realised.

• Further, the written request fails to address how the proposed development minimises conflict between land uses within the RU1 Primary Production zone, part of the fourth zone objective: To minimise conflict between land uses within this zone and land uses in adjoining zones. The only evidence before the Court addresses the potential for conflict between the proposed development and the adjoining RU5 Village zone. There is no analysis or assessment before the Court about how the grant of the variation which would allow a residential dwelling on the subject site, would impact uses on the adjoining RU1 Primary Production zone. The only evidence before the Court indicating the uses of the adjoining land, other than what was observable during the onsite view, demonstrates that there are a number of large, conglomerated agricultural uses on the adjoining land. The written request is silent on how the variation is compatible with the minimisation of any conflict with these existing land uses.

• In the absence of an argument demonstrating that the erection of a dwelling house on a lot less than the 40ha standard would be compatible with an objective to minimise land use conflict between this development and other land uses, I am unable to be satisfied that the development is consistent or compatible with the zone objectives.

54. Following the consideration of the evidence and submissions I have determined that the Applicant’s written request to vary the minimum lot size standard to allow for the erection of a dwelling on the subject site should not be upheld. Given these findings the Court has no power to grant consent and the appeal is dismissed.

Orders:

55. The Court orders that:

1. The appeal is dismissed.

2. Development Application DA/2019/090 for the erection of a new single storey dwelling on Lot 569 DP 755901, Lot 570 DP 755901 and Lot 571 DP 755901 is determined by way of refusal.

3. Exhibits are returned with the exception of Exhibits 1, A and D.

…………………………

D M Dickson

Commissioner of the Court

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Decision last updated: 09 April 2021