S J Connelly CPP Pty Ltd v Byron Shire Council [2012] NSWLEC 1237

Land and Environment Court New South Wales

Medium Neutral Citation: S J Connelly CPP Pty Ltd v Byron Shire Council [2012] NSWLEC 1237 Hearing dates: 12, 13 July 2012 Decision date: 28 August 2012 Jurisdiction: Class 1 Before: Hussey C Decision: (1)The appeal is dismissed. (2)The development application No 10.2011.368.1 for a 2 - lot subdivision of Lot 930 DP 858909, 335 Federal Road, Federal is refused. (3)The exhibits may be returned except 1, 4 (Tab 22), 6, 7, B and C. Catchwords: DEVELOPMENT APPLICATION - Small lot rural subdivision, minimum lot size under SEPP RL, fragmentation of rural land, land - use conflict Legislation Cited: Byron Local Environmental Plan 1988 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Rural Lands) 2008 State Environmental Planning Policy 1 (Development Standards) Cases Cited: Abret Pty Limited v Wingecarribbee Shire Council [2001] NSWCA 107 Hastings Point Progress Association Inc v Tweed Shire Council [2009] NSWCA 285 Category: Principal judgment Parties: S J Connelly CPP Pty Ltd (Applicant)

Byron Shire Council (Respondent) Representation: Counsel Mr N Eastman (Applicant)

Mr A Seton (Respondent) Solicitors McCartney Young Lawyers (Applicant)

Mardens Law Group (Respondent) File Number(s): 10112 of 2012

Judgment

Background 1This appeal is against council's refusal of a development application for a 2 - lot rural subdivision at 335 Federal Road, Federal. The property has an area of 9.18ha and is situated in a rural area approximately 1 km to the south of the village of Federal. Immediately surrounding the site are variable sized grazing properties, macadamia nut farms and some smaller grazing, cropping and rural-residential properties. 2The proposed 2 - lot subdivision is to create: * Lot 1; a rural/residential lot with an area of 1.21 ha, and * Lot 2; a 'primary production' lot with an area of 7.98ha, to be created under the provisions of State Environmental Planning Policy (Rural Lands) 2008 (SEPP RL). 3The contentions are summarised as follows: * Non-compliance with the minimum lot size standard * Subdivision not necessary * Fragmentation of rural land * Land use conflict * Creation of an effective 'concessional allotment'. * Public interest 4The threshold issue in this matter is whether the approval of the subdivision under the provisions of SEPP RL gives the landowner a greater chance of achieving the zone objectives under the Byron Local Environmental Plan 1988 (LEP). 5The circumstances initially stated in this case involve the subject land being situated opposite a larger allotment comprising approximately 29 ha, which contains Coffee Union's coffee plantation with 54,000 coffee trees and processing hub. Because of the favourable climatic conditions in this area, the business plan is for significant expansion of the plantation, which includes the use of the proposed Lot 2. 6Both Mr Connelly and Mr Allen refer to the use of Lot 2 as part of the coffee plantation, but it was clarified during the hearing that there is no formal arrangement to effect this. Although in this regard, I understand the owner of the subject property is also involved in the management of the plantation. However, the applicant tended to back away from its evidence "linking" the proposed Lot 2 with the coffee plantation.