Land and Environment Court of New South Wales CITATION : Collins v Wagga Wagga City Council and Anor [2008] NSWLEC 16 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Trevor Collins PARTIES : FIRST RESPONDENT Wagga Wagga City Council SECOND RESPONDENT Director General of the Department of Planning FILE NUMBER(S) : 10516 of 2007 CORAM: Brown C KEY ISSUES: Development Application :- subdivision - whether SEPP 1 objection well founded Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Wagga Wagga Rural Local Environmental Plan 1991 State Environmental Planning Policy No 1 CASES CITED: Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46 DATES OF HEARING: 3, 4/12/07 DATE OF JUDGMENT: 17 January 2008 APPLICANT Mr P Tomasetti SC SOLICITORS Storey and Gough FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr S Simmington, solicitor SOLICITORS Lindsay Taylor Lawyers SECOND RESPONDENT Mr P Clay, barrister SOLICITORS Department of Planning JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 17 January 2008 10516 of 2007 Trevor Collins v Wagga Wagga City Council (First Respondent) and the Director General of the Department of Planning (Second Respondent) JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Wagga Wagga City Council (the council) of Development Application 990776 to subdivide Lot 19 Willow Tree Place, Wagga Wagga (the site). The Director General of the Department of Planning (the Department) was made a party to the proceedings on 20 July 2007. The site 2 The site is Lot 19 in DP 1004525. It has an area of 21.74 ha and forms part of a 19 lot rural small holdings subdivision approved by the council in November 1998 (DA 42/98). Each lot has a dwelling entitlement although the dwelling entitlement for Lot 19 was subject to an amendment to the approval that initially denied the opportunity for the construction of a dwelling on this lot. Lots 1 to 18 have areas ranging from 8559 sq m to 36575 sq m and all currently have dwelling houses erected on the lots. Access to the lots is from Dunns Road, Lilli Pilli Place and Willow Tree Place. 3 Lot 19 is vacant and contains only rural fencing and two farm dams. The site appears to have been used for grazing. The proposal 4 The proposal was lodged with the council on 5 October 1999 and provides for the subdivision of Lot 19 into 10 lots ranging from 10711 sq m (Lot 1) to 35872 sq m (Lot 5). Access to the lots is gained from an extension of Willow Tree Place. A building envelope is designated for each lot that provides for a 40 m buffer to the eastern boundary and a 100 m buffer to the southern boundary (see Attachment 1). Relevant planning controls 5 The site is within Zone No 1 (Rural) of Wagga Wagga Rural Local Environmental Plan 1991 (LEP 1991). Subdivision is permissible with consent within this zone as a rural small holding. Clause 5 provides: "rural small holding" means an allotment of land having an area of less than 200 hectares and not less than 0.6 hectares on which it is intended to erect a dwelling-house or dual occupancy building or on which a dwelling-house or dual occupancy building is erected; 6 Clause 9(3) provides that consent must not be granted unless the development is consistent with the objectives of the zone. The zone objectives are: 1. Objectives of zone The objective of this zone is to promote the proper management and utilisation of resources by any one or more of the following: (a) protecting, enhancing and conserving - (i) agricultural land in a manner which sustains its efficient and effective agricultural production potential; (ii) soil stability by controlling and locating development in accordance with soil capability; (iii) forests of existing and potential commercial value for timber production; (iv) valuable deposits of minerals and extractive materials by controlling the location of development for other purposes in order to ensure the efficient extraction of those deposits; (v) trees and other vegetation in environmentally sensitive localities where the conservation of the vegetation is significant to scenic amenity or natural wildlife habitat or is likely to control land degradation; (vi) water resources for use in the public interest; (vii) localities of significance for nature conservation, including localities with rare plants, wetlands and significant wildlife habitat; and (viii) places and buildings of archaeological or heritage significance, including Aboriginal relics and places; (b) preventing the unjustified development of prime crop and pasture land for purposes other than agriculture; (c) 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; (d) facilitating farm adjustments; (e) minimising the cost to the community of - (i) fragmented and isolated development of rural land; and (ii) providing, extending and maintaining public amenities and services; and (f) providing land for future urban development, for future rural residential development and for future development for other non-agricultural purposes, in accordance with the need for that development; (g) providing for a range of rural living styles in appropriate locations within the area to which the plan applies; and (h) encouraging the establishment of rural industries within the area to which the plan applies. 7 Clause 10 provides general considerations for development within the Rural zone, cl 11 provides requirements for the subdivision of land generally and cl 15 provides subdivision requirements for the creation of rural small holdings. Clause 15 states: Subdivision for the purposes of the creation of rural small holdings 15. (1) The Council shall not consent to a development application to subdivide land within Zone No. 1 to create a rural small holding if the land the subject of the application - (a) comprises the whole or part of an existing holding having an area of less than 200 hectares; or (b) is an allotment created in accordance with this plan for the purpose of agriculture. (2) Before determining the number, size and arrangement of rural small holdings that may be created, the Council shall, in addition to matters referred to in any other provisions of this plan, take into account - (a) the quality of the land and the effect of subdivision on the existing and potential agricultural productivity of the land the subject of the application; (b) the impact on existing and potential agricultural productivity in the locality; (c) the supply of, and demand for, rural small holdings of the type proposed; (d) the physical characteristics of the land including drainage patterns, erosion, geological hazards and landscape features; (e) whether approval of the subdivision and any subsequent development will create demands for the provision or extension of services provided by the Council or other public authorities; (f) hazards such as bushfires and flooding; (g) whether subdivision will prejudice the orderly expansion of urban areas; (h) the prevailing subdivision and holding pattern in the locality; and (i) whether the land contains recoverable minerals or extractive materials. (3) In determining the quality of the land for the purposes of subclause (2)(a), the Council shall have regard to the map prepared by or on behalf of the Director-General of the Department of Agriculture and Fisheries and marked "Agricultural Land Classification Map - City of Wagga Wagga" deposited in an office of the Department of Agriculture and Fisheries (and a copy of which is deposited in the office of the Council). ( 4) Where a person proposes to subdivide land to create a rural small holding and the land the subject of the application is identified on the maps referred to in subclause (3) as comprising a combination of classes 1, 2, 3, 4 and 5, the Council shall not consent to the subdivision of that part of the land identified as class 1, 2 or 3 unless (a) it is satisfied, having regard to the matters listed in subclause (2), that the class 4 or 5 land is unsuitable for the purposes of rural small holdings; (b) it has consulted, and taken into account the views of, the Director-General of the Department of Agriculture and Fisheries; and (c) the class 1, 2 or 3 land does not comprise more than 5 per cent of the land to be subdivided for rural small holdings. (5) Notwithstanding the provisions of subclauses (1)(a) and (4), the Council may consent to an application to subdivide the whole or part of an existing holding having an area of less than 200 hectares if - (a) the Council considers that the land is suitable for the purposes of rural small holdings having regard to the matters listed in subclause (2); and (b) the Council has consulted, and taken into account the views of, the Director-General of the Department of Agriculture and Fisheries. 8 Wagga Wagga Development Control Plan 2005 (DCP 2005) applies. Clause 6.2.5 reiterates the Zone No 1 (Rural) objectives from LEP 1991. Clause 6.2.6 provides sub-zones and identifies specific objectives for each sub-zone. These site is located within sub-zone 1a General (Urban Living Area). The objective is: To protect and conserve prime crop and pasture land, and to set aside land for general farming purposes. 9 DCP 2005 also identifies sub-zone 1b Small Holding (Urban Living Area). The objective is: To protect viable rural small holdings, while providing the opportunity for hobby farm development in order to meet the increasing demand for this form of development (Minimum area of 2 hectares). 10 Clause 14.5.9 addresses subdivision for dwellings on rural small holdings. The clause reiterates many of the requirements in cl 15(4) of LEP 1991, specifically: When an application is made to subdivide rural small holdings on land which is a combination of agricultural land classes, Council will only permit the land which is prime crop and pasture land to be subdivided if: o the class 4 and 5 land is unsuitable having regard to the matters listed above. o no objection is raised by NSW Agriculture. o the prime crop and pasture land is not more than 5 percent of the land to be subdivided for rural small holdings. 11 Figure 14.10 provides the extent of the Lloyd Road 1b Small Holdings sub-zone and shows Lots 1 to 18 within this sub-zone but Lot 19 outside the sub-zone. The issues 12 The issue in the proceedings was whether the State Environmental Planning Policy No 1 - Development Standards (SEPP 1) objection was well founded. The proposed subdivision does not satisfy cl 15(4)(c) of LEP 1991 in that Lot 19 comprises more than 5% Class 1, 2 and 3 land. The generally agreed figure was that Lot 19 comprised 2% Class 2 land and 98% Class 3 land. An objection under SEPP 1 was provided by Mr Ian Graham to show that strict compliance with the 5% development standard in cl 15(4)(c) is unreasonable and unnecessary in this instance. Mr Graham also provided further planning evidence. 13 The council at its meeting of 27 March 2006 supported the SEPP 1 objection to the Department (and an amendment to DCP 2005 to reflect the proposed subdivision) however by correspondence dated 2 June 2006 the Department refused concurrence. On the basis of the Departments response, the council refused the development application on 26 March 2006. The council raised no issue with the proposed subdivision at the hearing and supported the application through the evidence of Mr Cameron Collins. 14 The Department, through Mr Graham Judge, raised the following issues: o the SEPP 1 objection is not well founded, o the cumulative impact through an undesirable precedent, o there is no justification for the non-compliance, o the proposal is tantamount to a rezoning, o inconsistency with the zone objectives, o contrary to the relevant DCP 2005 objectives, o inconsistent with the Policy for Protection of Agricultural Land 2004. Preliminary issues 15 Mt Tomasetti SC, for the applicant, raised two preliminary issues. Firstly, he submitted that cl 15(4) did not apply as the map identified in cl 15(3) (and referred to in cl 15(4)) could not be produced. Despite a call for the map by Mr Tomasetti, neither Mr Simmington, for the council, or Mr Clay, for the Department could produce the map. 16 In some circumstances the absence of the map may be problematic, however in this case Mr Graham and Mr Judge accepted the advice of Mr Collins that the City of Wagga Wagga - Environmental Study Agricultural Suitability Map was a reproduction of the map identified in cl 15(3). This map was available and was tendered as part of the proceedings. 17 Secondly, Mt Tomasetti submitted that cl 15(4) did not apply, as the site does not consist of a combination of classes 1, 2, 3, 4 and 5 but only class 2 and 3 land. While a strict interpretation of the construction would probably support Mt Tomasetti's submission, this would be inconsistent with a practical and sensible interpretation of the intent of cl 15. For any reasonable meaning to be given to cl 15(4) a combination of classes 1, 2, 3, 4 and 5 should be read as meaning a combination of classes 1, 2, 3, 4 or 5 particularly as no Class 1 land exists within the Wagga Wagga local government area. The hearing was conducted on the basis of this interpretation. The SEPP 1 objection The basis for assessment 18 The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are asked. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state: 3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act. 19 This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979 (EPA Act). These objects state: 5. The objects of this Act are: (a) to encourage – (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment; (ii) the promotion and coordination of the orderly and economic use and development of land. 20 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded. The planning evidence 21 The SEPP 1 objection of Mr Graham adopts the format in Winten. As LEP 1991 does not contain specific objectives for the development standard, he states that the underlying object or purpose of the standard is "to prevent the loss or minimise the loss of prime crop and pasture land". This can be drawn from a reading of cl 2(a)(i) and cl 15 of LEP 1991. I did not understand Mr Judge to disagree with his interpretation of the underlying object or purpose of the standard. 22 Mr Graham states that Lot 19 was part of a subdivision (DA 42/98) that involved an environmental study and consultation with the Department of Primary Industry. The approval created 19 lots with Lot 19 as a small residue lot in a rural small holding subdivision. The approval of the application effectively put paid to any agricultural use of the original site and consequently Lot 19. In his opinion, there is no relevant purpose served in denying the use of Lot 19 for rural residential development when it was obvious Lot 19 was intended to be a residue lot to be further subdivided into smaller lot sizes for rural residential purposes in the future. 23 Mr Graham states that Lot 19 is too small in size to support viable agricultural land use. The site could not sustain a family or supplement an existing farm use. It would better serve the needs of the community socially, economically and environmentally if the site is used for rural residential purposes. 24 For these reasons strict compliance with the development standard is unreasonable and unnecessary in this instance. 25 Mr Judge comes to the opposite conclusion. He states there is a planning benefit in maintaining the development standard because of the proposal will create an undesirable precedent expectation for approval of ad hoc subdivision of Class 1, 2 or 3 lands for the purposes of creating rural small holdings. There are no exceptional circumstances applying to the proposed development to differentiate the site from other time of and pasture land that would justify non-compliance with the development standard. 26 The variation to the development standard by approximately 2000% would be tantamount to a rezoning because the site has not been specifically identified for rural small holding developments under DCP 2005 and there is no compelling evidence that there is a need for the proposal or that the site cannot be used for agriculture. The agricultural evidence 27 Mr David Davis provided evidence for the Department and Mr Nick Truelove provided evidence for the applicant. They produced individual reports and a joint report. The joint report identified the following areas of agreement: o Lot 19 is not viable as a stand alone farm in its current form, o current land prices would make it unlikely that anyone would buy the land for its traditional use i.e., crops or grazing, o the location of the site raises potential conflicts between agricultural and urban land uses, o the loss of Lot 19 to traditional extensive regional agricultural production is not significant, o land classification maps should not be the only tool used to assess the agricultural suitability of land, and o it is important to ground verify individual lots for agricultural suitability - the smaller lots the more important it is to ground verify. 28 The significant difference between the evidence of Mr Davies and Mr Truelove was that Mr Davies maintained that, subject to further investigation, it is possible that the site could be used for more innovative and intensive operations such as squab raising, herb, flower, fragrant oil or other forms of horticultural production. Also in his opinion, the issue of quantity and appropriately sited small holdings is best dealt with on a strategic basis if fragmentation and alienation of prime crop and pasture land is to be avoided. 29 Mr Truelove states that there are no examples of the more innovative and intensive operations identified by Mr Davies in the fringe areas around Wagga Wagga and while this form of horticultural production is possible, it is also highly unlikely taking into consideration the lack of water, the cost of land, the proximity to adjoining rural residential development and the only available access through the existing rural residential development. Findings 30 In considering the different conclusions reached by Mr Davies and Mr Truelove and the agreed underlying object or purpose of the standard "to prevent the loss or minimise the loss of prime crop and pasture land" I prefer the conclusions of Mr Truelove for a number of reasons. 31 Firstly, Mr Truelove provided a comprehensive assessment of the carrying capacity of the site. He found that the potential carrying capacity, after pasture development, is no more than 21 breeding cows. A viable beef farming property in the district able to provide a living for a farm operator and family is in the order of 600-700 breeding cows. Mr Davies and Mr Truelove agreed that the site is not viable as a stand alone farm. Further, there was no evidence to suggest that the site was suitable for amalgamation with an adjoining site to create a viable holding that could be used for crops or grazing. 32 Secondly, and while the site falls within Class 2 and Class 3 agricultural land classification on the City of Wagga Wagga - Environmental Study Agricultural Suitability Map, it is predominantly Class 3 land (98%). The term "prime crop and pasture land " is defined in LEP 1991, in part, as being Class 1, Class 2 or Class 3 land (with Class 1 land being the most valuable in agricultural terms). I agree with Mr Truelove that there would be a little practical value in considering the site as Class 2 land given the small area within this classification and the small scale mapping used to generate the classifications. 33 Thirdly, the strict reliance on the land classification on the City of Wagga Wagga - Environmental Study Agricultural Suitability Map by Mr Judge is not supported by the NSW Agriculture document Agricultural Land Classification Agfact AC 2.5 where it states that the agricultural land classification maps are useful for strategic planning however they are inappropriate for making decisions relating to individual development applications. These types of applications involve decision-making at the property level and require information that has scale of greater details than is available from the agricultural land classification maps. 34 Fourthly, and accepting that the agricultural viability of the site can extend beyond its use as prime crop and pasture land, I am not satisfied that the evidence of Mr Davies that the site has potential for more innovative and intensive operations can be relied upon in the absence of more specific evidence. While there is always the potential for the uses identified by Mr Davies to use the site, I am more inclined to accept the evidence of Mr Truelove that the access and the proximity to adjoining rural residential development will significantly limit the opportunity for more innovative and intensive agricultural operations on the site. 35 Fifthly, I do not accept Mr Judge's evidence that the proposal is an ad hoc approach to a rural small holdings subdivision or is tantamount to a rezoning and would be a precedent for similar applications. It was not clear from the evidence whether the subdivision approved by the council in November 1998 was in essence the first stage in the subdivision of the original lot, although, in my view, Mr Graham's evidence that Lot 19 was intended to be a residue lot to be further subdivided into smaller lot sizes for rural residential purposes in the future is not without merit. In any event, I agree with Mr Graham that the earlier subdivision approval fatally impacts on the agricultural viability of the site thereby making consistency with the underlying object or purpose of the standard largely impossible. 36 I am satisfied that the site displays enough individual characteristics so that it can likely be distinguished from other potential applications. The subdivision history is particularly important, but also other factors such as the proximity of the site to similar rural small holdings development and the unsuitability for prime crop and pasture agricultural uses support the argument that the proposal is not a precedent for other applications. Even if I am incorrect in accepting Mr Graham's evidence on the intent of the earlier subdivision, I am satisfied that precedent would not be a reason to find that the SEPP 1 objection is not well founded given the need to consider the individual merits of any new application. 37 Sixthly, the extent of the departure from a development standard is not necessarily a valid reason to reject a SEPP 1 objection. SEPP 1 does not raise the matter of the size of the departure from the development standard but only whether strict compliance with the development standard is unreasonable and unnecessary. The purpose of SEPP 1 is to provide flexibility in the application of planning controls to give effect to the objects specified in s 5(a)(i) and (ii) of the EPA Act irrespective of the size of the departure. 38 If the variation to the development standard is tested against the underlying objective, I accept that compliance with the development standard would be inconsistent with the aims of SEPP 1 and would tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. Consequently, strict compliance with the development standard is unreasonable and unnecessary in this instance and it follows and that the SEPP 1 objection is well founded. 39 In terms of cl 9(3) provides I find that the development is consistent with the objectives of Zone No 1 (Rural). Orders 40 The orders of the Court are: 1) The appeal is upheld. 2) Development Application 990776 to subdivide Lot 19 Willow Tree Place, Wagga Wagga is approved subject to the conditions in Annexure A. 3) The exhibits are returned. _____________ G T Brown Commissioner of the Court 16/03/2009 - replacement of or to Anor - Paragraph(s) Citation 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.