Land and Environment Court of New South Wales CITATION : Pideski v Wagga City Council & anor [2010] NSWLEC 1006 APPLICANTS J & B Pideski FIRST RESPONDENT PARTIES : Wagga City Council SECOND RESPONDENT Director-General Department of Planning FILE NUMBER(S) : 10634 of 2009 CORAM: Moore SC KEY ISSUES: DEVELOPMENT APPLICATION - DEVELOPMENT CONTROL PLAN :- LEGISLATION CITED: Wagga Wagga Rural Local Environmental Plan 1991 CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 DATES OF HEARING: 15 December 2009 DATE OF JUDGMENT: 13 January 2010 APPLICANTS Mr P McEwen SC INSTRUCTED BY Williams Love & Nicol FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr S Simington Lindsay Taylor Lawyers SECOND RESPONDENT Mr P Clay, barrister INSTRUCTED BY Department of Planning JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE SC 13 January 2010 10634 of 2009 Pideski v Wagga City Council & anor JUDGMENT 1 SENIOR COMMISSIONER: Brucedale is a locality on the northern side of the city of Wagga Wagga located approximately 15 km from the city's centre along the Olympic Highway (the highway). Brucedale Road runs from this highway, in a generally westerly direction, to a rural residential subdivision located on the upper slopes of a hill some half a kilometre or so from the highway. Although this rural residential subdivision was inspected during the course of the site view, nothing concerning its circumstances warrants recital given the conclusions discussed below. 2 Mr and Mrs Pideski own a rural property (currently on two titles) with its primary frontage to Brucedale Road and with a secondary frontage, without present road access, to the highway. The total area of this landholding is some 14 ha. In 2007, Mr and Mrs Pideski lodged an application with Wagga Wagga City Council (the council) for consent to subdivide this landholding into five rural residential allotments – retaining the existing dwelling on one of the allotments proposed to be created. 3 On one construction of the provisions of cl 15 of the Wagga Wagga Rural Local Environmental Plan 1991 (the LEP), as it then applied, an objection pursuant to State Environmental Planning Policy 1 (the SEPP) was required to permit the application to be approved. These circumstances arose if the provisions of cl 15(4) applied to the application. If the provisions of cl 15(5) applied to the application, no objection pursuant to the SEPP was required. 4 The council and the advisers to Mr and Mrs Pideski concluded that the provisions of cl 15(4) applied and thus an objection pursuant to the SEPP was required. 5 In assessing the substantive merits of the application, the council considered that there was no reason why the application should be refused or that the SEPP objection should not be sustained. However, the Director-General of the Department of Planning (the Director-General), through the relevant departmental delegate, declined to uphold the SEPP objection to the development standard – considering it not to be well founded. 6 As a consequence, an appeal was commenced in the Court – an appeal to which the active parties were Mr and Mrs Pideski and the Director-General [with the council appearing, through its legal representative, to provide assistance to the Court and to deal with supporting the council's proposed without prejudice conditions of consent (should any of them have been contested in the proceedings)]. 7 The position of the Director-General was that, in response to a provision in cl 15(4) of the LEP requiring the council to have consulted with and taken into account the views of the Director-General of the Department of Agriculture and Fisheries, on the merits of the case, the SEPP objection should not be sustained in light of the views so expressed. 8 However, this requirement, to consult and take into account the views of the Director-General of the Department of Agriculture and Fisheries, is also triggered if the alternative provision of the LEP applies. 9 In addition, the provisions of Part B to the Wagga Wagga Development Control Plan 2005 (Part B of the DCP) – the Rural Living Area – also apply to the proposal. Due to a mistake in numbering in the document, the "Right to Farm" provisions contained in Part B of the DCP appear as 7.5.33 rather than 14.5.33 – an error that is of no consequence in these proceedings. 10 In addition to taking into account the views of the Director-General of the Department of Agriculture and Fisheries, of which expert evidence was given by Mr Davis (an officer of the Department of Industry and Investment into which the former Department of Agriculture and Fisheries has been folded) and responded to by expert evidence given by Mr Truelove, an agricultural consultant, on behalf of Mr and Mrs Pideski, Mr Graham, Mr and Mrs Pideski's expert planner, gave evidence in the proceedings. 11 Inter alia, Mr Graham, gave evidence concerning what he considered to be the relevant interpretation of the "Right to Farm" provisions contained in Part B of the DCP. Mr Graham expressly raised the issue of compliance or otherwise with the provisions of cl 7.5.33 of Part B of the DCP (even though it had not been raised by either of the respondents in the proceedings). The raising of this provision by Mr Graham, as discussed below, requires me to address the merits of the proposal when assessed against the provisions of Part B of the DCP. 12 This requirement arises as a consequence of the decision of the Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373. Zhang deals, inter alia, with the issue of consideration of relevant provisions of a DCP in determining whether to grant development consent. From what was said in Zhang by Spigelman CJ at para 75, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process. The approach to cl 15 of the LEP 13 If the application were to fail on the merits after consideration of the views of the Director-General of the Department of Agriculture and Fisheries or were to fail on the basis of a proper consideration of the provisions of cl 7.5.33 of Part B of the DCP, it would not be necessary for me to determine whether the provisions of cl 15(4) or the provisions of cl 15(5) were applicable. 14 As I have concluded that the application should fail after consideration of the views expressed on behalf of the Director-General of the Department of Agriculture and Fisheries and, separately, that the application should also fail on the basis of a proper consideration of the terms of cl 7.5.33 of Part B of the DCP, it is unnecessary for me to express any view about which element of cl 15 of the LEP is applicable as the application must fail, on merit grounds, whichever one of the provisions of cl 15 applies. The views of the Director-General of the Department of Agriculture and Fisheries 15 Mr Truelove gave a statement of evidence in which he concluded, for reasons of climate, soils, paddock arrangement and the like that there was no viable agricultural use for Mr and Mrs Pideski's property. 16 On the other hand, Mr Davis, who is a resource management officer in the Department of Industry and Investment, gave a brief written statement in which he concluded that: The argument that they had not been used for the purposes of agriculture is irrelevant. They have the potential and indeed are suitable for the purposes of agriculture. Subdivision of these lands is deemed fragmentation and as such is prohibited according to the provisions within the LEP. 17 The conclusion in the second sentence is a matter for my consideration rather than for Mr Davis but, for reasons that follow, does not need to be dealt with. 18 However, during the course of the oral evidence of these two witnesses, it became clear that Mr Truelove had not undertaken any assessment of the possible availability of bore water for agricultural use, including possible vineyard use (such a use being consistent with at least one other property in the vicinity). On the other hand, Mr Davis gave evidence that he had accessed information about water bores in the vicinity and was of the opinion that there was potential for access to water for stock and domestic purposes. Whether or not there was also some potential access for water for irrigation of crop purposes was not matter that had been considered in detail by Mr Davis and about which Mr Truelove had made no enquiries. 19 On the basis of a comparison of the evidence of these two witnesses, particularly the omission by Mr Truelove to make any enquiry about possible availability of bore water (a matter of fundamental importance to any possibly potential agricultural activity which might be carried out on Mr and Mrs Pideski's land), I am not persuaded that there is no viable agricultural use for the land. As a consequence, I am not satisfied that the applicant has justified development of prime crop and pastureland for purposes other than agriculture as required by zone objective (b) of the zone objectives for the Rural 1 zone in the LEP. 20 In the absence of such justification, the application is not consistent with the zone objectives and therefore is contrary to the provisions of cl 9(3) of the LEP – this requires that no consent shall be granted to the carrying out of development unless the carrying out of that development is consistent with the objectives of the zone within which the development is proposed to be carried out. 21 The application therefore requires refusal, as I cannot be so satisfied, in the absence of better evidence on behalf of Mr and Mrs Pideski dealing with the full range of possible agricultural or horticultural activities that might be undertaken on the property. Protection of the "Right to Farm" 22 Part B of the DCP contains a number of provisions that are relevant in these proceedings. The first of these are contained in cl 14.1 Objectives of the DCP. This recites the objectives of the Rural 1 zone from the LEP but does so in a dot point form rather than in an enumerated form. There is, however, no functional distinction involved. 23 In addition, the DCP contains a number of other matters described as being other planning objectives which should be taken into consideration in the development of rural areas. These provisions are not part of the relevant zone objectives in the LEP. 24 Although somewhat lengthy, it is appropriate to set out these objectives in full to provide a contextual framework within which the following discussion can be understood. The objectives of this zone are to promote the proper management and utilisation of resources by: o Protecting, enhancing and conserving: - agricultural land in a manner which sustains its efficient and effective agricultural production potential. - soil stability by controlling and locating development in accordance with soil capability. - forests of existing and potential commercial value for timber production. - valuable deposits of minerals, coals, petroleum and extractive materials by controlling the location of development for other purposes in order to ensure the efficient extraction of those deposits. - trees and other vegetation in environmentally sensitive areas where the conservation of the vegetation is significant to scenic amenity or natural wildlife habitat or is likely to control land degradation. - water resources for use in the public interest. - areas of significance for nature conservation including areas with rare plants, wetlands and significant habitat. - places and buildings of archaeological or heritage significance, including the protection of Aboriginal relics and places. o preventing the unjustified development of prime crop and pasture land for purposes other than agriculture. o ensuring that any allotment created for intensive agricultural pursuits is potentially and physically capable, on its own, of sustaining a range of such pursuits or other agricultural purposes as a commercial agricultural operation suitable to the locality. o facilitating farm adjustments o minimising the cost of the community of: - fragmented and isolated development of rural land. - providing, extending and maintaining public amenities and services. o providing land for future urban development, for rural residential development and for development for other non agricultural purposes, in accordance with the need for that development. o providing for a range of rural living styles in appropriate locations within the area to which the plan applies. o encouraging the establishment of rural industries within the area to which the plan applies. Other planning objectives which should be taken into consideration in the development of rural areas are to: o provide for a wider range of Rural Residential living choices. o provide for part time farming or farming activities as a leisure pursuit. o ensure that development does not create or worsen soil erosion. o minimise the creation of vehicular access points to major roads and, where no alternative access is available, the location and treatment of the access points should minimise potential traffic hazards. o ensure that allotments created in small holdings subdivision provide potential building sites with minimal risk of damage by bushfires or flooding. 25 It is clear from the structure of these provisions that the primary elements, being the objectives of the Rural 1 zone from the LEP, are contained in the first 8 dot points and that those in the second 5 dot points are of a subsidiary nature. In particular, in my view, it is clear that the second of the dot points of the primary objectives places an onus on an applicant to justify development of prime crop and pasture land for purposes other than agriculture. 26 Although it is unnecessary to repeat the terms of the definition, prime crop and pasture land is a defined term in the LEP. It is not contested that, in the context of these proceedings, Mr and Mrs Pideski's land falls within that category of agricultural land. 27 The DCP contains a provision that is described as being "Protection of the Right to Farm". It is in the following terms: 7.5.33 Protection of the Right to Farm Council will take into consideration land uses adjacent to the curtilage of a proposed dwelling to ensure that the creation of the dwelling at that location will not interfere with the right to farm adjoining or adjacent land. In order to assist Council in formulating an opinion that a dwelling can be erected without interfering with the right to farm on adjacent or adjoining farmed properties, the proposed developments will need to establish that the erection of a dwelling will not impede upon existing traditional or proposed farming practices in the area. In order to safeguard the "right to farm" Council will impose a standard setback on the curtilage of the dwelling (a rectangle 20 x 50m around the external walls of the proposed dwelling) will be 150 metres clear of an adjoining or adjacent holding which is used for agricultural purposes. Any new dwelling in a rural zone is deemed to have satisfied the requirement and fulfilled the right to farm intent if its curtilage is set back 150m from any adjoining or adjacent land lot used for agricultural purposes. Any variation to that standard will need justification that is acceptable to Council. 28 Mr Graham, provided a diagram, reproduced below, in which he drew a number of circles that he considered reflected the outcome of the third and fourth paragraphs reproduced above. These circles show a 150 m diameter area around each of the existing dwellings in the vicinity of or on Mr and Mrs Pideski's land. 29 Mr Graham used this diagram in an endeavour to persuade me that, as there were a number of existing dwellings in the immediate vicinity, 150 m exclusion zones would need to be established around each of them, as they affected Mr and Mrs Pideski's property, within which exclusion zones agricultural activities would not be permitted. These exclusion zones, Mr Graham asserted, meant that agricultural activities could not be continued or be undertaken on Mr and Mrs Pideski's property without offending these provisions of the DCP. 30 This evidence and this diagram, in my view, fundamentally misinterpret the terms of these provisions. The misinterpretation is such that it either reflects poorly on Mr Graham's professional competence in understanding the terms of the DCP or reflects poorly on his understanding of his duties to the Court. Although this is harsh criticism, I consider that his purported interpretation of the provisions of this clause in the DCP is so at variance with the plain English meaning of the document as to warrant this comment. I have reached this conclusion about his evidence for the following reasons. 31 The provision the development control plan is clearly headed "Protection of the Right to Farm". That descriptor, in itself, is plain and unambiguous. It is not, as Mr Graham has endeavoured to persuade me through his evidence, a provision designed to restrict the right to farm within a designated buffer zone from existing residential dwellings. 32 The plain English meaning of the provision is to prevent, absent justification acceptable to the council, the erection of new dwellings within what the DCP contemplates is an appropriate buffer zone. It is clear that the provision was inserted in order to prevent construction of residential dwellings leading to restrictions on agricultural activities on agricultural land. Interpretation of the provision, as Mr Graham has endeavoured to do by his diagram, as imposing a 150 m diameter exclusion zone on agricultural activities in the vicinity of existing dwellings, is quite clearly contrary to the express plain English meaning of the provision. 33 There can be absolutely no doubt that a proper construction of these provisions makes it clear that no new dwelling should be permitted under such circumstances unless proper justification, acceptable to the council, is provided where such proposed dwelling (within the defined curtilage derived from the third paragraph in 7.5.33) would be closer than 150 m to any adjoining or adjacent land lot used for agricultural purposes. 34 Mr Graham's own diagram shows that at least two of the allotments within the proposed subdivision, proposed Lots 1 and 5, would not be capable of designating any building envelope for a dwelling on either of those allotments that satisfied this provision. In addition, a significant portion of each of Lots 2 and 4 is also potentially affected in such a fashion. 35 The consequence of this is that, unless justification of some variation to this buffer requirement is demonstrated, or some reason to set aside these provisions of the DCP (consistent with the decision of the Court of Appeal in Zhang) is provided, at least two of the five allotments in the proposed subdivision would be ones upon which no dwelling could be erected. 36 Mr Graham gave no evidence that would cause me not to reach such a conclusion. Indeed, to the contrary, it was his evidence that I should rely on the terms of this provision (or at least his interpretation of it) to grant approval for the subdivision. He provided no reason why the terms of the provision should be set aside. 37 As a consequence, there is no evidentiary basis, on a proper consideration of the provisions of this clause, upon which I could set it aside. The necessary further consequence of that, it follows, is that, Mr Graham having engaged the provisions of cl 7.5.33 by his evidence, his clients' application must fail as it would be contrary to the objectives of the zone and the provisions of this clause to permit such a subdivision as, prima facie, dwelling locations for at least two allotments cannot be established consistent with the relevant planning provisions and no basis for departure has been established. Conclusion 38 As the consequent of all that has been set out above, I am satisfied that: o having considered the opinions expressed on behalf of the Director-General of the Department of Agriculture and Fisheries, Mr and Mrs Pideski have not persuaded me that I should set aside those views and, as a consequence, I could not conclude that productive agricultural use of the land is not possible. Having reached that conclusion, I am satisfied that the relevant objectives of the zone would be infringed if the application were to be approved; and o on the basis of the applicant's own expert evidence given by Mr Graham, no basis for setting aside the provisions of cl 7.5.33 of the DCP has been provided and, as a consequence, on this separate basis, the application also requires refusal. 39 Although the first of these bases might be able to be overcome by the provision of better researched and prepared evidence by Mr Truelove, the same cannot be said about the evidence given by Mr Graham and the position adopted by him to the provisions of cl 7.5.33 of the DCP. 40 Consideration of this fundamental issue of the existence of acceptable building footprints was solely triggered by him raising the provisions of cl 7.5.33 of the DCP. This provision of the DCP then necessarily squarely raises the question of compliance with the zone objectives in the LEP. 41 Mr Graham's raising of the provisions of cl 7.5.33 mandated my consideration of the underlying issue of compliance with the zone objectives and of this provision of the DCP. The application, when considered against the zone objectives and these provisions of the DCP, cannot be approved unless some proper justification is provided for so doing. No such justification has been provided. The application must therefore fail on the basis that it is inappropriate to create residential allotments upon which there is a presumption no dwelling might be erected. 42 By raising the provisions of cl 7.5.33 in the fashion that he did, Mr Graham not merely drew it to my attention but did so in a fashion that was clearly contrary to the interests of his clients. 43 As a consequence of my forming the opinion that the application must fail on two entirely separate merit grounds unrelated to any interpretation of cl 15 of the LEP, it is unnecessary for me to express any opinion as to which of the provisions of cl 15 of the LEP is applicable. Orders 44 The orders of the Court are, therefore, that: 1. The appeal is dismissed; 2. Development Application DA07/0383 to subdivide an existing land holding comprising two existing allotments at 15 Brucedale Road, Brucedale, into five rural residential allotments is determined by the refusal of development consent; and 3. The exhibits, other than Exhibit 3, are returned. Tim Moore Senior Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.