Baker and Ors v Wagga Wagga City Council [2010] NSWLEC 1293

Land and Environment Court of New South Wales

CITATION : Baker and Ors v Wagga Wagga City Council [2010] NSWLEC 1293

APPLICANTS Richard Rowe Baker PARTIES : Michelle Maree Baker

RESPONDENT Wagga Wagga City Council

FILE NUMBER(S) : 10308 of 2010

CORAM: Murrell C

KEY ISSUES: DEVELOPMENT APPLICATION :- erection of dwelling; 200 ha minimum; objection under SEPP1; rural character of area; prime crop; precedent.

Land and Environment Court Act 1979 LEGISLATION CITED: Wagga Wagga Rural Local Environmental Plan 1991 State Environmental Planning Policy No.1

Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167 Wehbe v Pittwater Council [2007] NSWLEC 827

DATES OF HEARING: 29 July 2010, 17 & 31 August 2010

EX TEMPORE JUDGMENT DATE : 31 August 2010

APPLICANTS Ms M Hawley SOLICITOR Lindsay Taylor Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr T Abbott SOLICITORS Walsh & Blair Lawyers

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Murrell C

31 August 201

10308 of 2010 Baker & Ors v Wagga Wagga City Council This determination was given extemporaneously and has been edited prior to publication JUDGMENT 1 The applicant in these proceedings is seeking to erect a dwelling house on the property known as 290 Old Narrandera Road from O'Sheas Lane, Euberta, about 12 km from the Wagga Wagga CBD. The subject site is lot 177 in DP 750863 and is some 66 ha with 4 ha currently being used for grape production, viticulture with expansion planned. 2 The Court had the opportunity on the day of the proceedings in Wagga to carry out a site inspection of the subject property and the intensive agriculture being carried out. The Court also had the opportunity of viewing adjoining properties and activities on same. As well as visiting or inspecting a fish farm on 12 ha which was subdivided recently from a parcel of land. 3 During the proceedings there was evidence given to the Court on behalf of the council by Mr Sam Robins, council's assessment planner. Mr Peter McInerney, also gave evidence on behalf of the respondent as an agricultural scientist. Mr Michael Ryan, also an agricultural scientist, gave evidence on behalf of the applicant. Mr Baker himself also provided an affidavit and gave evidence. 4 By way of background the land was purchased in 1994. The subject development application has a very long history as it was submitted originally in 2002. The application has been assessed by council on several occasions, however, no determination was given earlier. Some years ago there were moves to prepare a draft LEP where if intensive agriculture could be established, then a dwelling house could be erected. And there were also discussions with the Department of Planning about the possibility of site specific LEP however, this did not progress. The Department of Planning did not concur with the SEPP 1 objection to vary the minimum lot size. 5 The subject site is zoned under the Wagga Wagga LEP and a 200 ha minimum allotment size applies for the erection of a dwelling house. This has recently been confirmed in the new LEP for Wagga Wagga of 2010 whereby the subject site is zoned AE and this contains provisions in accordance with the standard template for zonings. This LEP has a savings at cl 1.8A relating to pending development approvals, as follows: If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had been exhibited but had not commenced. The new LEP also contains a self-contained provision with respect to a SEPP 1 objection, as opposed to the old instrument whereby the concurrence of the Department was required. 6 The Department of Agriculture granted concurrence and supported the application and there is a letter in evidence to that effect. The Department of Planning has not granted concurrence and this is required because the savings provision requires the application to be determined under the previous instrument and the council cannot assume the Department's concurrence in this matter. Statutory Planning Framework 7 The Wagga Wagga Rural Local Environmental Plan 1991 contains a number of provisions relevant to the assessment of this application. At clause 2 there is a general aim as follows: (a) to encourage the proper management, development and conservation of natural and man-made resources within the area to which this plan applies by protecting, enhancing or conserving: (i) prime crop and pasture land. 8 Clause 9 states: (3) Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.