Ireland v Wagga Wagga City Council [2011] NSWLEC 1047

Land and Environment Court New South Wales

Medium Neutral Citation: Ireland v Wagga Wagga City Council [2011] NSWLEC 1047 Hearing dates: 17 December 2010, 27 January 2011 Decision date: 27 January 2011 Before: Pearson C Decision: Parties to file copy of plan 08127P1A (being the site plan as amended) to identify the location of the building envelope, and an electronic version of the conditions, by close of business Friday 28 January 2011, following which final orders will be made in chambers Catchwords: Development application - dwelling house - minimum allotment size Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1 - Development Standards State Environmental Planning Policy (Rural Lands) 2008 Wagga Wagga Rural Local Environmental Plan 1991 Wagga Wagga Local Environmental Plan 2010 Category: Principal judgment Parties: John A Ireland and Heather I Ireland (Applicants) Wagga Wagga City Council (Respondent) Representation: Counsel: J Webster SC (Applicants) JP Merlino, Lindsay Taylor Lawyers (Respondent) Solicitors: G Burmeister, Denniston & Day (Applicants) File Number(s): 10447 of 2010

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the determination of the Council to refuse consent to a development application DA 090067 for a proposed staged development involving the construction of a dwelling on lot 2 DP 813412 (the site). 2The site is located approximately 15 kilometres north-east of the Wagga Wagga CBD, and is located on the northern side of Sutherlands Road approximately 2.5 kilometres east of its intersection with Coolamon Road. The site is approximately 30.3 hectares in area and an established olive grove of approximately 6 ha, with 1,500 trees, is located in the north-western corner of the property. 3Stage 1 of the proposed development, which is the subject of these proceedings, is for the approval of a dwelling within a general building envelope. Stage 2, for which a further development application would be required, is for the construction of the dwelling and associated earthworks. The issue between the parties is whether an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) to the application of the development standard in cl 17 of the Wagga Wagga Rural Environmental Plan 1991 (the Rural LEP), which requires a minimum allotment size of 200 ha for the construction of a dwelling, should be upheld. 4The site is zoned 1 (Rural) under the Rural LEP. The zone objectives are specified in cl 9. Clause 10 provides general considerations for development within the rural zone. Clause 17 provides that the Council shall not consent to an application to erect a dwelling on vacant land in the rural zone unless the land has an area of 200 ha or more, unless one of the exceptions in cl 17(1)(b) applies. It was common ground that none of those exceptions apply. 5State Environmental Planning Policy (Rural Lands) 2008 applies to the site. Clause 10 provides matters to be considered in determining development applications for rural subdivisions or rural dwellings. 6The Wagga Wagga Local Environmental Plan 2010 (the 2010 LEP) commenced on 15 July 2010. The site is in the RU1 Primary Production zone. Clause 4.2A of the 2010 LEP provides that consent must not be granted for the erection of a dwelling house on a lot in the RU1 zone unless the lot is at least the minimum lot size, being 200 ha. Clause 4.6 enables consent to be granted to development that would contravene a development standard, however by application of cl 4.6(8)(c1) of the 2010 LEP, this does not apply to the minimum lot size specified in cl 4.2A. Clause 1.8A of the 2010 LEP is a savings provision. The development application was lodged before the commencement of the 2010 LEP, and this application is to be determined as if the 2010 LEP had not commenced. 7The Council contended that the objection to the application of cl 17 of the 1991 LEP to the proposal under SEPP 1 is not well founded, and that application of the development standard is not unreasonable or unnecessary because it prevents the fragmentation of rural land used for agricultural purposes; that the development would be inconsistent with the aims and objectives of the rural zone and is inconsistent with cl 10(1)(a) of the Rural LEP; and that the applicant has not established that the dwelling can be justified as being necessary or otherwise ancillary to the olive grove operation. The Council contended that the proposal is inconsistent with the provisions of the 2010 LEP and would set an inappropriate precedent encouraging multiple similar developments in the locality. 8The applicants' position is expressed in submissions made to the Council in relation to the meeting of the Planning Panel that first considered the application (letter dated 3 June 2009), the submission made in support of an application for review of the Council's determination under s 82A of the Act (being a letter received by the Council on 16 June 2010), and the objection under SEPP 1 prepared on behalf of the applicant by Mr Salvestro and submitted in support of the development application. Their position is essentially that the objectives of the development standard are met, in particular that the land is and is to remain in production as an intensive agricultural pursuit, and the proposed dwelling would complement and facilitate the future operation of the farming activity, and that compliance with the development standard is accordingly unreasonable and unnecessary in the circumstances of the case. Support for the applicants' position that the existing olive grove production is a viable agricultural enterprise was provided in the form of letters of support from Mr David Davis, Resource Management officer with the New South Wales Department of Primary Industries, now New South Wales Industry and Investment, most recently being a letter dated 3 December 2010 in which Mr Davis states his satisfaction that the development is a legitimate agricultural activity. 9After hearing evidence on the planning issues, the parties have now reached agreement that subject to appropriate conditions being imposed it would be appropriate to uphold the SEPP 1 objection and grant development consent subject to conditions, and they are seeking consent orders from the Court. 10Two proposed conditions that are of note are first, a deferred commencement condition that the development consent is not to operate until the applicants can satisfy the Council that a minimum of 1,600 olive trees are planted on the site. The second is proposed condition 6 in part B of the proposed conditions, which states: Prior to the release of a construction certificate for the dwelling a restrictive covenant must be registered on the title of the land pursuant to s 88E of the Conveyancing Act 1919 to the effect that any dwelling constructed on the land can only be occupied by persons carrying out intensive plant agriculture or intensive livestock agriculture as defined in the Wagga Wagga Local Environmental Plan 2010 on the land. If no intensive plant agriculture or intensive livestock agriculture is carried out on the land for a continuous period of 12 months then any occupation of the dwelling must cease and can only recommence if evidence satisfactory to the council is provided to demonstrate that the intensive plant or livestock agriculture has recommenced on the land. 11In a statement of evidence filed in court today, Mr Adam Moar, the Council's planning officer, expresses the opinion that the imposition of these proposed conditions would ensure that the development is consistent with the objectives of the rural zone under the Rural LEP and also the objectives of the 2010 LEP. In Mr Moar's opinion the imposition of a condition relating to the continued development of the olive grove through additional plantings would demonstrate that the olive grove would not be abandoned when the dwelling is constructed on the site and that the land would be used for the purpose of agriculture. Mr Moar was of the opinion that in providing Condition 6 to link the dwelling on the site to the continued use of the land for an intensive plant agriculture enterprise, the development would not be unjustified on the site, and it was his conclusion that those proposed conditions together would ensure that compliance with the 200 ha minimum lot size is not necessary in the circumstances. 12The evidence before me supports the conclusion that compliance with the development standard in cl 17 of the Rural LEP is unreasonable or unnecessary in the circumstances of this case because the objectives of the development standard are achieved. The Council agrees that the aims and objectives of SEPP 1 are met by granting the consent subject to the conditions that are proposed to be imposed. The Council has not pressed the contention relating to precedent, and given the making of the 2010 LEP including the provisions of cl 4.2A and cl 4.6, I agree that it is unlikely that any precedent could be set by approval of this application. 13I am satisfied that it is appropriate to make the consent orders sought to uphold the objection made under SEPP 1 to compliance with the development standard in cl 17 of the Rural LEP, and to grant consent to the development application subject to the conditions that are proposed by the parties. 14The parties are to file with the Court a copy of the plan 08127P1A (being the site plan as amended) to identify the location of the building envelope, and an electronic version of the conditions, by close of business Friday 28 January, following which final orders will be made in chambers. Linda Pearson Commissioner of the Court