Land and Environment Court of New South Wales CITATION : Roberts v Gloucester Shire Council [2007] NSWLEC 407 APPLICANT Colin Spencer Roberts PARTIES : RESPONDENT Gloucester Shire Council FILE NUMBER(S) : 10281 of 2007 CORAM: Brown C KEY ISSUES: Development Application :- condition imposed on the approval for the subdivision of land - removal of concessional lot - whether concessional lot provisions apply - acess/safety - agricultural viability LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Gloucester Local Environmental Plan 2000 CASES CITED: Ku Ring Gai Municipal Council v Kuttner [1980] 41 LGRA 1 DATES OF HEARING: 2/07/07 DATE OF JUDGMENT: 6 July 2007 APPLICANT Mr B Barlow, solicitor SOLICITORS Bowen-Thomas & Barlow LEGAL REPRESENTATIVES: RESPONDENT Mrs L Finn, solicitor SOLICITORS Home Wilkinson Lowry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 6 July 2007 10281 of 2007 Colin Spencer Roberts v Gloucester Shire Council JUDGMENT 1 COMMISSIONER: This is an appeal against a condition imposed on the approval of DA 2006/1379 by Gloucester Shire Council (the council) for the subdivision of land at 1330 Thunderbolts Way Gloucester (the site). 2 The proceedings were heard as a S34 Conference on 2 July 2007. The parties consented to the proceedings being disposed without a further hearing in accordance with s 34(3)(b)(ii) of the Land and Environment Court Act 1979. The site 3 The site is Lot 50 in DP 1072553. It has an area of 221.9 ha with frontages to both Thunderbolts Way and Bowman Farm Road. The site contains an existing dwelling and out buildings and is used predominantly for the grazing of animals. The condition in dispute 4 DA 2006/1379 sought the subdivision of the site into 3 lots. Lot 52 has an area of 117.2 ha, Lot 53 was has an area of 5.3 ha (the concessional lot) and Lot 54 has an area of 100.2 ha (see Attachment 1). Council approved the subdivision on 17 January 2007 subject to 8 conditions. The condition in dispute is condition 2. This condition deletes Lot 53 and states: 2. The proposed concessional lot indicated, as Lot 53 on the submitted plans was not approved by council has per resolution 11/07 which states: That council refuse the proposed concessional lot submitted as part of DA 2006/1379, as it is not permitted under clause 28(2)(g)(i) of the Gloucester Local Environmental Plan 2000 as the parcel is not as existed on 6 February 1976. 5 The council reconsidered the imposition of condition 2 on 21 March 2007 and resolved to adhere to its previous decision. Relevant planning controls 6 The site is within zone Rural 1(a) under Gloucester Local Environmental Plan 2000 (LEP 2000). The subdivision of land within this zone is permissible with consent. Clause 9 provides objectives for the zone. The relevant objectives are: ( a) to encourage continued growth in the area's rural economic base, (b) to protect and conserve agricultural land and to encourage continuing, viable and sustainable agriculture, . (h) to recognise and encourage agriculture as a significant contributor to the area, 7 For the Rural 1(a) zone, cl 27(2)(a) provides that consent shall not be granted to the subdivision of land unless each lot created has an area of no less than 100 ha. 8 Clause 28 provides exceptions for the subdivision of land below 100 ha. Relevantly, cl 28(2)(g)(i) states: (2) The Council shall not consent to a subdivision creating an allotment under subclause (1)(c) unless it is satisfied that: . (g) the subdivision will not result in the creation of more than: . (i) 1 allotment of less than 100 hectares in area from a parcel land of up to 500 hectares in area as it existed on the 6th February 1976, or 9 Clause 5 provides "parcel", in relation to land, means any area of adjoining or adjacent land held in the same ownership. The issues 10 The issues in the proceedings are: 1) whether the provisions of cl 28(2)(g)(i) are available to the subdivision, 2) whether Lot 53 provides safe ingress and egress to Thunderbolts Way, and 3) whether the creation of Lot 53 will result in the fragmentation of agricultural land. Clause 28(2)(g)(i) 11 The issue of the applicability of cl 28(2)(2)(i) requires an understanding of the background to the creation of Lot 50. At 6th February 1976, Lot 50 did not exist. Lot 5 in DP 24616 occupied the majority of the area now known as Lot 50. It is shown on Attachment 2 as the "Original Parcel". Additional land was acquired in 2001 (DA 2001/250) and is shown as "Additional Land Acquired" on Attachment 2. At this time, the additional land acquired included Lot 51 in DP 1072553. The combined area of Lot 50 and the additional land acquired in 2001 was Lot 122. Lot 51 was subdivided from Lot 122 as a concessional lot on 1 October 2003 (DA 2003/694). 12 Mrs Finn, for the council, submitted that cl 28(2)(g)(i) did not apply. The word "parcel" does not have the same meaning as the word "allotment". Allotment is not defined in LEP 2000 but is usually construed to mean a lot in a Deposited Plan that has a Real Property Title description. Clause 28(2)(g)(i) specifically uses the word "parcel" of land, not "allotment" of land. It follows that it is the area of the parcel of land, as it existed on the 6 February 1976 not the Real Property Title description of land as it existed at that date. There was no disagreement that the area of the parcel of land as it existed on the 6 February 1976 has been changed through subdivision after that date. Mrs Finn relies on the Court of Appeal decision in Ku Ring Gai Municipal Council v Kuttner [1980] 41 LGRA 1 to support her submissions where the words "parcel" and "allotment" were given different meanings 13 Mr Bowen, for the applicant, accepts that Lot 5 has changed since 6 February 1976 but this is not a relevant consideration under cl 28. The question is whether the proposed concessional allotment is to be created out of a parcel of land of up to 500 hectares in area, as it existed on 6 February 1976. The application seeks to create only one concessional lot of less than 1 hectare out of an area of land "as it existed on 6 February 1976". 14 Mr Bowen submits cl 28 requires two steps. Firstly, to consider the lot that existed on 6 February 1976 of which the concessional lot forms part of and secondly, to ascertain if there have been any concessional lots created after 6 February 1976 out of the area of land, as it existed on 6 February 1976. In this case, the concessional lot created on 1 October 2003 was not on land that is proposed to contain the proposed concessional lot. 15 Mr Bowen submits that the facts in Kuttner can be distinguished from the facts in this case. 16 In considering the competing submissions I accept the submissions of Mrs Finn. In the absence of a definition in LEP 200 I accept that "allotment" means a lot in a Deposited Plan that has a Real Property Title description. I am satisfied that the findings in Kuttner support the submission that the word "parcel" does not have the same meaning as the word "allotment". Hope JA (at 3 par 2) states: It is difficult to imagine that the draughtsman, in using the word "parcel" in sub-cl 5 did not intend to use a word having a different meaning from the word "allotment" which he otherwise used repeatedly in the clause. I should have thought the word "parcel" in cl 43(5) means an identified area of land, as in the timeworn expression "all that piece or parcel of land". 17 Hutley JA agrees and states (at 5 par 2): In my opinion, "any existence as a separate parcel" points to the physical state of the land which is the parcel. 18 Adopting the words of Hutley JA and if the term "physical state of the land" is substituted for "parcel of land" in cl 28(2)(2)(i) then there can be no doubt that the physical state of the land at present is not as it existed on the 6th February 1976 because of the subdivisions that took place over this time (see par 9). 19 In my view, the physical state of the land means it's physical properties such as dimensions and/or area. There only needs to be a change to the physical state of the land when compared to the physical state of the land at 6th February 1976 for cl 28(2)(2)(i) to be unavailable. A change can be an increase or decrease in dimensions and/or area. 20 Consequently, the appeal should dismissed as Lot 52 is in breach of cl 27(2)(a) that provides that consent shall not be granted to the subdivision of land unless each lot created has an area of no less than 100 ha. 21 Even though examples of the approval of concessional lots were presented to the Court that did not adopt the approach advocated by Mrs Finn in her submissions, I see no reason to give any weight to these previous decisions in light of the findings in the previous paragraphs. For completeness I will address the other issues in the proceedings. Ingress/ egress 22 Mr Gil Gendron, the council's Director of Technical Services provided evidence on this issue. He states that Thunderbolts Way is a Regional Road and is the main link between the Tablelands and the areas of Gloucester, Taree and Great Lakes. It is also the shortest route to Newcastle and is used intensively by heavy vehicles. Thunderbolts Way has a posted speed limit of 100 kph. From data available to the council Mr Gendron stated that the 85 th percentile speed measured near the site is 93 kph. Traffic counts had indicated 500 vehicles per day (vpd) on Thunderbolts Way in non-peak periods and 1100 vpd in peak periods. Of these vehicles, trucks over 4 tonnes make up 15% of the vehicles counted. 23 The proposed access point to Lot 53 has a sight distance of 200 m plus for vehicles travelling from the north on a slight incline and a sight distance of 185 m for vehicles travelling from the south on a slight decline. The applicant's surveyor, Mr Phillip Bowden measures the sight distance for vehicles travelling from the south at around 200 m. 24 Based on the Austroads publication Rural Road Design – A Guide to the Geometric Design of Rural Roads (the Guide), Mr Gendron accepted that adequate sight distances were available for cars and trucks except for trucks travelling from the south. In this regard the Guide requires a sight distance of 241 m (including an additional distance for the slight decline of the road). This is substantially more than the sight distance of 185 m determined by Mr Gendron and even the sight distance of 200 m determined by Mr Bowden. 25 Considering the amount of trucks that use Thunderbolts Way (75 trucks per day based on 15% of the non peak flow) and the substantial difference in the available and acceptable sight distances I am satisfied that egress from the site is unacceptable and would warrant the refusal of the application for this reason alone. Fragmentation of agricultural land 26 Mr Glenn Wilcox, the council's Director Planning and Environment stated that the concessional lot would result in the fragmentation of the parcel of land and have an unacceptable impact on agricultural viability. For this reason, the subdivision is inconsistent with zone objectives (a), (b) and (h). 27 In considering LEP 2000 as a whole, I am not satisfied that this issue would warrant the removal of condition 2. Clause 28 specifically makes provision for lots below the minimum lot size determined by cl 27. In the absence of any specific evidence to show that the agricultural viability of Lot 50 will be adversely affected by the creation of Lot 52 the issue cannot be supported. Orders 28 The Orders of the Court are: 1) The appeal is dismissed. 2) Condition 2 imposed on the approval of DA 2006/1379 for the subdivision of land at 1330 Thunderbolts Way Gloucester is to remain. 3) The exhibits are returned. ____________ G T Brown Commissioner of the Court 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.