David Casson trading as Casson Planning & Development Services v Upper Hunter Shire Council [2017] NSWLEC 1279

Land and Environment Court New South Wales

Medium Neutral Citation: David Casson trading as Casson Planning & Development Services v Upper Hunter Shire Council [2017] NSWLEC 1279 Hearing dates: 25 May 2017 Date of orders: 31 May 2017 Decision date: 31 May 2017 Jurisdiction: Class 1 Before: Dixon C Decision: 1. Appeal is dismissed. 2. The exhibits are returned. Catchwords: DEVELOPMENT APPLICATION: - Subdivision of rural land into two lots - each lot below the minimum lot size requirements of the Upper Hunter Local Environmental Plan 2013 - exceptions to the minimum allotment size – subdivision is not for the purpose of primary production - fragmentation of rural land Legislation Cited: Environmental Planning and Assessment Act 1979 Upper Hunter Local Environmental Plan 2013 State Environmental Planning Policy (Rural Lands) 2008 The Upper Hunter Development Control Plan 2015 Cases Cited: Dobrohotoff v Bennic [2013] NSWLEC 61; 194 LGERA17 Seraglio v Shoalhaven City Council [2017] NSWLEC 45 Category: Principal judgment Parties: David Casson trading as Casson Planning & Development Services (Applicants) Upper Hunter Shire Council (Respondent) Representation: S. Hill (Applicants) A. Pickup (solicitor) (Respondent) File Number(s): 2017/19208 Publication restriction: No

JUDGMENT 1. COMMISSIONER: This judgment concerns a development application (DA27-2016) for the subdivision of rural land at Lot 212 DP1154848, Hunter Road, Moonan Flat (the Site) into two lots. 2. Each Lot is below the minimum lot size requirements of cl 4.1 of the Upper Hunter Local Environmental Plan 2013 (LEP). 3. The subdivision application was refused by the Upper Hunter Shire Council on 22 August 2016. In summary, the Council has determined that the subdivision is not for the purpose of primary production as required by cl 4.2 or within the exceptions to the minimum lot size requirements under cl 4.2A of the LEP. It is also contended that the development is contrary to relevant zone objectives of the LEP and the Rural Subdivision Principles under State Environmental Planning Policy (Rural Lands) 2008 (the Rural SEPP). 4. The land owners, Mr and Mrs Dawson (the Applicants) have appealed the Council's decision under section 97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) on 19 January 2017. They contend on the evidence that the Court can be satisfied that the rural subdivision falls with the provisions of cl 4.2 and/or the exceptions to the minimum lot size requirements under cl4.2A of the LEP. They also submit, on the particular facts of this case, that an approval of this subdivision is unlikely to set any precedent for future subdivisions. They are referring to a 99 year lease entered into between themselves and the adjoining land owners (Mr and Mrs Hayne) in respect of the land within proposed Lot 1. According to Mr Hayne's affidavit dated 6 March 2017 he and his wife have owned the property adjoining the Site (known as "Carlisle" at Lot 4 DP752476 Hunter Road) since 1990. The land within proposed Lot 1 has for some time been the subject of an unregistered lease to them. Moreover, it has been farmed as part of the "Carlisle" property since 1990 and share farmed by the previous owners for some 40 odd years before that. Until 2008, Mr Hayne was under the mistaken belief that this land in Lot 1 was in fact part of his property. It is submitted that this application simply seeks to enable a continuation of the farming practices associated with the "Carlisle" property for well over 50 years. The lease arrangement is the reason for this subdivision application. To complicate matters further, the Applicants have also purported to enter into an agreement to sell the Site including the land in proposed Lot 1 to Gary Johnson, the objector on the record. That contract for sale, entered into several years ago, is yet to be completed and is dependent upon an approval of this subdivision. 5. While the Applicants accept that the lease and the sale of the land are not the subject of this planning dispute they submit that these unique circumstances support an approval of this subdivision. 6. For the reasons that follow I agree with the Council and have decided to refuse consent to the application and dismiss the appeal.