Land and Environment Court New South Wales Medium Neutral Citation: Damilabe Pty Ltd v Gunnedah Shire Council [2018] NSWLEC 1295 Hearing dates: 24 May 2018 Date of orders: 19 June 2018 Decision date: 19 June 2018 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: (1) Leave is granted to rely on amended Clause 4.6 written request of 4 May 2018. (2) The appeal is upheld. (3) Development Application 2016/134 for Lot 222 DP 849115, also known as Damilabe, Kamilaroi Highway, Gunnedah is approved subject to Annexure A. (4) The Exhibits, except Exhibits 1 and B are returned. Catchwords: APPEAL: development application: refused by council; historical subdivision; clause 4.6 variation; minimum lot size; zone objectives; agricultural purpose; precedence. Legislation Cited: Environmental Planning and Assessment Act 1979 No. 203 Gunnedah Local Environment Plan 1986 Gunnedah Local Environment Plan 2012 Protection of the Environment Administration Act 1991 No 60 Cases Cited: Emmott v Ku-ring-gai Municipal Council [1954] 3 LGRA 177 MB Investments Pty Ltd v Hawkesbury City Council [2015] NSWLEC 1361 Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 Texts Cited: Macquarie Dictionary New England West Regional Plan 2036. Department of Planning and Environment Category: Principal judgment Parties: Damilabe Pty Ltd (Applicant) Gunnedah Shire Council (Respondent) Representation: Counsel: Dr J Smith (Applicant) Solicitors: Kemp Strang Lawyers (Applicant) A Seton, Marsden Law Group (Respondent) File Number(s): 18/16441 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) 2016/134, pursuant to s79C(1)(a)(i) of the Environmental Protection Planning and Assessment Act 1979 (EP&A Act) by Gunnedah Shire Council (the Council) to construct a dwelling on Lot 222 DP 849115, also known as 'Damilabe', Kamilaroi Highway, Gunnedah (hereafter the site). Background 1. The site was formerly part of a larger lot that was subdivided into four lots on 16 March 1995, consistent with the provisions established in the Gunnedah Local Environmental Plan 1986. The result of the subdivision is (as shown in Exhibits 2 and 3): three lots (Lots 221, 222 and 223) each of 40 Hectares (Ha) with no existing dwellings; and one lot (Lot 220) of the remaining 20 Ha with an existing dwelling. 2. All subdivided lots are currently in separate ownership, and have frontage to the Namoi River (Eastern boundary) and Kamilaroi Highway (Western boundary). 3. DA 2016/134 was lodged with Council on 23 December 2016. 4. The site was previously identified as a 'dwelling opportunity' (DO) lot, pursuant to cl 4.2A(3)(d) of the Gunnedah Local Environmental Plan 2012 (GLEP 2012). This provision however was subsequently amended, whereby effective 5 May 2016, the site, among others, was removed from the DO classification. 5. The DA was referred to the Department of Planning and Environment (DoP) for concurrence with regards to consideration of the cl 4.6 written request for variation of the cl 4.2A(3)(a) standard in GLEP 2012. Concurrence for the proposed development from DoP was given on 28 February 2017, pursuant to Section 79B(8) of the Environmental Planning and Assessment Act 1979 (EP&A Act) based on DoP's understanding that: * the development would not result in inappropriate fragmentation of rural land; and * there is 'no public benefit in maintaining the 200 Hectares (Ha) lot size development standard in this instance'. The use of the land for a dwelling was considered appropriate based on the previous permissibility for a dwelling on the site, the approved rural residential land uses on nearby lots, the size of the lot and its lack of viability as a commercial broad acre agricultural holding. 1. Concurrence from DoP was however subject to the following provisos for Council to assess and determine prior to issuing an approval of the DA: * any precedent established by the variation of the standard; * implications on the operation of the GLEP 2012; and * likelihood of similar development applications being lodged. 1. Council refused DA 2016/134 on 8 March 2017, pursuant to s 79C of the EP&A Act, and following a request by the Applicant for a review of determination, again refused the DA on 19 July 2017, although with a reduced number of issues based on additional information provided by the Applicant. 2. As a result of the provision of information prior to the hearing, contention 4, 'Safety', in the Statement of Facts and Contentions (SoF, Exhibit 1) was resolved by condition on consent. In addition, refusal reasons 2 and 3 that relate to protection of Koala habitat and the Development Control Plan 2012 (DCP), detailed in the Notice of Refusal, are resolved. 3. The Council's contentions that remain under the appeal relate to: * the lot size does not comply with the minimum lot size standard in cl 4.2A(3)(a) of the GLEP 2012; * there is inconsistency with zone objectives and the future character of the area; and * there will be adverse precedence established for other similar sized lots in the zone, which is not in the public interest. 1. The Council further contends that the cl 4.6 written request for variation of cl 4.2A(3)(a) standard is not sufficient. 2. The Applicant however considers that pursuant to cl 4.2A(3)(c) of GLEP 2012, the proposed dwelling is permissible on the site. 3. The Applicant also contends that should the Court not find in favour of approval pursuant to cl 4.2A(3)(c), the cl 4.6 written request (for the minimum lot size standard) satisfies a variation to cl 4.2A(3)(a) of the GLEP 2012. 4. There were no resident objections to the DA. 5. Leave was granted to rely on the amended joint expert report for planning of 23 May 2018. 6. Leave was granted to rely on amended Clause 4.6 written request of 4 May 2018. The Site 1. The site is located approximately 19 Kilometres (Km) from Gunnedah with a frontage of 504.5 metres (m) along the Kamilaroi Highway and to the Namoi River. 2. The site has an area of 40 Ha, on relatively flat land with a minimal fall towards the River. The site is flood-prone and covered by sparse grass. An established bore with licensed entitlement is located in the central portion of the site. 3. The site is currently vacant. The proposed dwelling is to be located in the southwest portion of the site, towards the road. 4. The site is surrounded to the north and south by established (and approved) dwellings on neighbouring lots that were part of initial subdivision, with grazing being undertaken/or left vacant. Also part of the lot subdivision, is Lot 220, located to the south of the site, which had an established house and is under irrigation of an unknown crop. 5. To the east (across the River) and west (across the road), are larger agricultural holdings that are under livestock grazing and irrigation for crops. Relevant Planning Controls 1. The rural planning principles established in the State Environmental Planning Policy (Rural Lands) 2008 (SEPP 2008) apply to this site, and specifically cl 7 as follows: 7 Rural Planning Principles The Rural Planning Principles are as follows: (a) the promotion and protection of opportunities for current and potential productive and sustainable economic activities in rural areas, (b) recognition of the importance of rural lands and agriculture and the changing nature of agriculture and of trends, demands and issues in agriculture in the area, region or State, (c) recognition of the significance of rural land uses to the State and rural communities, including the social and economic benefits of rural land use and development, (d) in planning for rural lands, to balance the social, economic and environmental interests of the community, (e) the identification and protection of natural resources, having regard to maintaining biodiversity, the protection of native vegetation, the importance of water resources and avoiding constrained land, (f) the provision of opportunities for rural lifestyle, settlement and housing that contribute to the social and economic welfare of rural communities, (g) the consideration of impacts on services and infrastructure and appropriate location when providing for rural housing, (h) ensuring consistency with any applicable regional strategy of the Department of Planning or any applicable local strategy endorsed by the Director-General. Note. Under section 9.1 of the Act, the Minister has directed that councils exercise their functions relating to local environmental plans in accordance with the Rural Planning Principles. 1. In assessing a development application for a subdivision, s10 of the SEPP 2008 must be considered. 10 Matters to be considered in determining development applications for rural subdivisions or rural dwellings (1) This clause applies to land in a rural zone, a rural residential zone or an environment protection zone. (2) A consent authority must take into account the matters specified in subclause (3) when considering whether to grant consent to development on land to which this clause applies for any of the following purposes: (a) subdivision of land proposed to be used for the purposes of a dwelling, (b) erection of a dwelling. (3) The following matters are to be taken into account: (a) the existing uses and approved uses of land in the vicinity of the development, (b) whether or not the development is likely to have a significant impact on land uses that, in the opinion of the consent authority, are likely to be preferred and the predominant land uses in the vicinity of the development, (c) whether or not the development is likely to be incompatible with a use referred to in paragraph (a) or (b), (d) if the land is not situated within a rural residential zone, whether or not the development is likely to be incompatible with a use on land within an adjoining rural residential zone, (e) any measures proposed by the applicant to avoid or minimise any incompatibility referred to in paragraph (c) or (d). 1. The site is zoned RU1 Primary Production pursuant to the GLEP 2012. The objectives of this zone are: Zone RU1 Primary Production 1 Objectives of zone • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To encourage diversity in primary industry enterprises and systems appropriate for the area. • To minimise the fragmentation and alienation of resource lands. • To minimise conflict between land uses within this zone and land uses within adjoining zones. • To provide for a range of ecologically sustainable agricultural and rural land uses and development on broad acre rural lands. • To protect significant agricultural resources (soil, water and vegetation) in recognition of their value to Gunnedah's longer term economic sustainability. • To conserve and enhance the quality of valuable environmental assets, including waterways, riparian land, wetlands and other surface and groundwater resources, remnant native vegetation and fauna movement corridors as part of all new development and land use. 1. Cl 4.2A of the GLEP 2012 relates to the construction of a dwelling on rural land, including within a RU1 zone, and requires the following to be considered for consent: 4.2A Erection of dwelling houses on land in certain rural and environment protection zones (1) The objectives of this clause are as follows: (a) to minimise unplanned rural residential development, (b) to enable the replacement of lawfully erected dwelling houses in rural and environment protection zones. (2) This clause applies to land in the following zones: (a) Zone RU1 Primary Production, (b) Zone RU4 Primary Production Small Lots, (c) Zone RU6 Transition, (d) Zone E3 Environmental Management. (3) Development consent must not be granted for the erection of a dwelling house on land to which this clause applies, and on which no dwelling house has been erected, unless the land is: (a) a lot that is at least the minimum lot size specified for that land on the Lot Size Map, or (b) a lot that was created before the commencement of this Plan, in accordance with the Gunnedah Local Environmental Plan 1998, or (c) a lot resulting from a subdivision for which development consent (or equivalent) was granted before this Plan commenced and on which the erection of a dwelling house would have been permissible if the plan of subdivision had been registered before that commencement, or (d) a lot identified as "Dwelling opportunity" on the Dwelling Opportunity Map. Note. A dwelling cannot be erected on a lot created under clause 9 of State Environmental Planning Policy (Rural Lands) 2008 or clause 4.2. (4) (Repealed) (5) Despite subclause (3), development consent may be granted for the erection of a dwelling house on land to which this clause applies if: (a) there is a lawfully erected dwelling house on the land and the dwelling house to be erected is intended only to replace the existing dwelling house, or (b) the land would have been a lot referred to in subclause (3) had it not been affected by: (i) a minor realignment of its boundaries that did not create an additional lot, or (ii) a subdivision creating or widening a public road or public reserve or for another public purpose, or (iii) a consolidation with an adjoining lot, or (c) the dwelling house will replace a lawfully erected dwelling house that was either: (i) removed from the site, or (ii) partially or completely destroyed, not more than 2 years before the lodgement of the development application for the erection of the dwelling house. 1. Where a development does not comply with development standards, cl 4.6 of the GLEP 2012 provides the consent authority an opportunity to consider exemption of a standard, provided the following is satisfactorily addressed: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence. (6) Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone E4 Environmental Living if: (a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or (b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard. Note. When this Plan was made it did not include Zone RU2 Rural Landscape, Zone E2 Environmental Conservation or Zone E4 Environmental Living. (7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant's written request referred to in subclause (3). (8) This clause does not allow development consent to be granted for development that would contravene any of the following: (a) a development standard for complying development, (b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated, (c) clause 5.4, (ca) clause 6.1 or 6.2. Evidence 1. The Applicant has relied on Mr Ian Murray and Mr James Lovell for expert evidence in agriculture and planning, respectively. 2. The Respondent has relied on Mr Michael Ryan and Mr Andrew Johns for expert evidence in agriculture and planning, respectively. Does the proposed development satisfy cl 4.2A(3)(c) of the GLEP 2012? 1. The planning experts agree that the subdivision that created the site (Lot 222) was registered in May 1995, pursuant to GLEP 1986. Also, agreed is that the site of 40 Ha and therefore the proposed development under DA 2016/134 submitted pursuant to GLEP 2012 is not compliant with the current minimum lot size requirement of 200 Ha, as established in the Lot Size Map, pursuant to cl 4.2A(3)(a). For further consideration of the DA pursuant to this provision, requires a cl 4.6 written request for variation. 2. The planning experts agree that the site was previously identified as a Development Opportunity (DO) pursuant to cl 4.2A(3)(d) of the GLEP 2012, and that the relevant map ceased to be effective from 5 May 2016. The experts agree that the DA cannot be considered pursuant to cl 4.2A(3)(d) or cl 4.2A(4) of the GLEP 2012. The repeal of cl 4.2A(4), removed a 'sunset clause' for consideration of dwellings on the smaller (DO) approved lots. This DA was not submitted before the repeal or expiry date of the DO map. 3. The planning experts agree that GLEP 1986 was effective at the time of subdivision creation and registration in 1995, which did permit a dwelling on a 40 Ha lot. The experts also agree that the site (Lot 222) is the only lot of that subdivision that does not currently have a dwelling approved/constructed. 4. The experts agree that cl 4.2A(3)(b) of GLEP 2012 is not relevant to this appeal as the subdivision was not created under the GLEP 1998. 5. Mr Johns contends that the Applicant had full understanding of the relevance and applicability of the 'sunset' provisions for the site to be considered as a DO and did not take this opportunity. Therefore, the development must rely on a variation of the standard in cl 4.2A(3)(a) of the GLEP 2012. 6. Mr Johns considers that the agricultural requirements and character of the zone have changed since subdivision in 1995, and that the proposed development is now inconsistent with the objectives of the zone as provided in GLEP 2012. 7. The experts did not directly address compliance with cl 4.2A(3)(c) of the GLEP 2012. According to Mr Seton this issue was resolved to Council's satisfaction in its response to the Applicant, provided in Exhibit G. 8. Dr Smith contends that the proposed development satisfies cl 4.2A(3)(c) of the GLEP 2012 due to the date of subdivision approval and registration, pursuant to the GLEP 1986. His submission therefore does not rely solely on consideration of a cl 4.6 written request to vary cl 4.2A(3)(a). Findings 1. To determine whether cl 4.2A(3)(c) of GLEP 2012 is satisfied by the proposed development, I must consider the applicability of each of the elements that define the provision of cl 4.2A. 2. I concur with the experts that cl 4.2A(3)(b), and cl 4.2A(5) of the GLEP 2012 are not relevant to this DA. I also agree with the experts that with the repeal of cl 4.2A(4), the site is no longer identified as a DO lot, and cl 4.2A(3)(d) is not applicable to considered for the proposed development. 3. Consideration of cl 4.2A(3)(c) is necessary before, and if required, assessing whether cl 4.2(3)(a) can be varied through the cl 4.6 written request. 4. Therefore, the relevant provision for consideration first is whether compliance with cl 4.2A(3)(c) of the GLEP 2012 can be achieved. The provision is as follows: (3) Development consent must not be granted for the erection of a dwelling house on land to which this clause applies, and on which no dwelling house has been erected, unless the land is: (c) a lot resulting from a subdivision for which development consent (or equivalent) was granted before this Plan commenced and on which the erection of a dwelling house would have been permissible if the plan of subdivision had been registered before that commencement, or 1. I understand the intent of this provision is to satisfy the objectives established in cl 4.2A(1) of the GLEP 2012, and specifically relevant to the site within the RU1 zone is (a) 'to minimise unplanned rural residential development'. Objective 4.2(1)(b) is not relevant to the site. 2. In their expert reports and in evidence, the planning experts are mute on the issue of applicability of cl 4.2A(3)(c) of the GLEP 2012. I therefore rely on Exhibit G, which is a letter exchange between the parties assessing relevance of cl 4.2A(3)(c) to the DA, and Exhibit 2, which is the registered plan for the subdivision including the site, dated 23 March 1995. 3. I concur that the site, identified as Lot 222, was created in March 1995 and registered on title on 10 May 1995. It was subdivided pursuant to the provisions of GLEP 1986, and under which a dwelling was permissible on a lot size of 40 Ha. Therefore, the proposed DA for a dwelling on the site is consistent with the first component of cl 4.2A(3)(c) of GLEP 2012, as it is on 'a lot resulting from a subdivision for which development consent (or equivalent) was granted before this Plan commenced'. GLEP 2012 is the reference to 'this Plan'. 4. My attention now moves to consideration of the second part of cl 4.2A(3)(c) of GLEP 2012, 'on which the erection of a dwelling house would have been permissible if the plan of subdivision had been registered before that commencement', which is adjoined to the first part by 'and', and therefore both components of this clause must be satisfied for compliance. 5. In Exhibit G, Council's response in consideration of cl 4.2A(3)(c) with respect to the proposed DA, relies on the term 'had been registered' as opposed to 'was registered', which they seek to infer indicates that cl 4.2A(3)(c) is not valid for this development. 6. The definitions of 'had' and 'was' provided in the Macquarie Dictionary, are as follows: Had verb 1. past tense and past participle of have (which is a verb to possess; own) Was verb first and third person singular past tense indicative of be (which is to be suitable for or characteristic of) 1. I understand from the definitions in Exhibit G and provided above that both terms are past tense, and in this case relate to the provisions of the GLEP 1986. 2. I consider that cl 4.2A(3)(c) requires ensuring that the plan of subdivision is both created and registered prior to GLEP 2012 (being 'this Plan'), and that when the subdivision was created, a dwelling house was permissible under the relevant plan, which in this case is GLEP 1986. The fundamental point on which this clause turns is the timing of the registration of the subdivision plan. I find the relevant subdivision plan 'has been' registered prior to 'this Plan' and that at the time of registration 'the erection of a dwelling house would have been permissible'. 3. Therefore, I find that the proposed DA satisfies the requirements of cl 4.2A(3)(c) of the GLEP 2012, and therefore a dwelling on the site is permissible. 4. I recognise that the provisions in LEP's change over time, and in this case the change has resulted in an increase in the minimum lot size for rural residential development in the zone. This however does not negate the fact that the subdivision plan was assessed and approved under the provisions of the time, pursuant to GLEP 1986, which permitted a dwelling on a 40 Ha lot. 5. Further to this, the proposed development on the site is not inconsistent with the objectives of cl 4.2A(1), specifically cl 4.2A(1)(a) to 'minimise unplanned rural residential development'. To not recognise previously registered subdivision plans and the provisions under which they were granted would undermine the intent of rural residential planning. 6. In considering the issue of consistency with the zone objectives, I adopt the approach expressed in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 by Pearlman CJ in [27]: The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible. 1. By the planning experts own admission, the proposed DA with a dwelling house on the site does not offend any other provisions of the GLEP 2012 nor Gunnedah Development Control Plan 2012 (GDCP 2012), and no evidence has been presented to suggest that it does not satisfy the relevant provisions that were effective for the GLEP 1986. I consider that the approval of this development pursuant to cl 4.2A(3)(c) will not impede the operation of the GLEP 2012, and therefore satisfies the requirements for consideration of DoP on this issue. 2. Based on my considered opinion regarding compliance with cl 4.2A(3)(c) of the GLEP 2012, I am not therefore required to further assess the cl 4.6 written request seeking to vary the standard in cl 4.2A(3)(a), for the 200 Ha minimum lot size requirement in this zone. 3. In addition, as I find that the proposed development satisfies the objectives of cl 4.2A(1) of the GLEP 2012, I am not required to further consider the agricultural viability of the site with a dwelling house in relation to consistency with the zone objectives and character, as contended by the Council. 4. However, with regards to public interest and precedence, I will address this issue as it is raised as a contention by Council in its refusal of the DA and is an issue for consideration by DoP that is contingent on its concurrence with the DA. Does a dwelling on the site establish an undesirable precedence and not in the public interest? 1. Mr Johns identifies 15 other lots within the RU1 zone that were created in a similar manner as the site and are 'historical subdivisions'. Therefore, he considers that some of these lots would be favourably supported if the proposed development was approved. 2. Further to this, he contends that there are 5000 other lots within the zone that are less than the minimum lot size, pursuant to cl 4.2A(3)(a) of the GLEP 2012, which could be positively supported by approval of this DA. 3. Mr Lovell however, considers that each application must be assessed on its merits and he has no means to assess whether the approval of the proposed development would in any way support other similar developments on similar sized lots in the zone. 4. On the issue of precedence and public interest he relies on Exhibit B, the cl 4.6 written request. 5. Mr Johns is of the opinion that the addition of a dwelling on the site would result in rural land use conflict because too many houses in the zone would impinge on agricultural activity such as spraying. 6. He considers that the siting of a dwelling on the site is 'unplanned' development and that the minimum lot size requirement is recognition of previous mistakes allowing subdivisions of insufficient size to achieve the rural(agricultural) character of the zone. 7. Mr Lovell acknowledges that too many 'small' lots in the zone could result in fragmentation of agricultural land, however the provisions at the time of subdivision creation were satisfied and this development does not impinge on agriculture in the zone. He considers that the site is part of a 'planned development' and fragmentation will not occur due to development on the site. 8. Mr Lovell considers that the proposed development is consistent with the development on the other subdivided lots (Lots 220, 221 and 223) which are located in close proximity to the site, and that the siting of a dwelling on the site (Lot 222) would not constrain its agricultural purpose nor of surrounding lots. 9. Mr Johns raised the issue of complaints about neighbouring agriculture practice which causes conflict in the community, and that pursuant to the Protection of the Environment Administration Act 1991 No 60, Council are compelled to restrict agricultural activity to protect the health of residents, such as from spraying. 10. Mr Lovell was in agreement with Mr Johns that intensive agriculture could pose a conflict with dwelling residents, however as the neighbouring lots to the site already have a dwelling, this issue would not be constrained to the site (Lot 222), nor likely to be a significant issue for the site. 11. The agriculture experts observed during the site inspection a variety of agricultural practice being undertaken on (small) lots neighbouring the site, in addition to that undertaken by the larger agricultural developments in the surrounding area. In particular, the growing of crops was observed on Lot 220, the smallest lot of the subdivision at 20 Ha, and grazing on Lot 221, a recently developed site of 40 Ha with a dwelling immediately south of the site. Findings 1. I am unable to rely on the cl 4.6 written request (Exhibit B) on the issue of precedence and public interest, as suggested by Mr Lovell. The cl 4.6 written request is particularly absent from discussion of this issue. 2. I previously determined that a dwelling on the site is not inconsistent with the objectives of the zone, pursuant to cl 4.2A(1) of the GLEP 2012. I also concur that other similar sized lots in the surrounding area are able to actively undertake agricultural practice that is not inconsistent with the zone objectives, nor incompatible with the New England West Regional Plan 2036, prepared by DoP. 3. I therefore consider that the proposed development is not inconsistent with the Principles established under cl 7 of the SEPP 2008. The site will likely be able to function for the purpose of rural agricultural production in a manner similar to surrounding lots of similar or smaller size. There is no constraint with the siting of the dwelling on the site to undertaking either grazing or crop irrigation, albeit at a scale smaller than properties to the west and east, particularly as the site has access to water from both the bore and River. 4. For reasons given above, I consider that the proposed development is also not inconsistent with cl 10 of the SEPP 2008. I consider that a dwelling on the site would not impede agricultural activity on either the site or neighbouring properties. 5. I find that the public interest is best served by ensuring that development is undertaken consistent with the provisions of the GLEP 2012 and principles of the other relevant regulatory tools such as the SEPP 2008. The development complies with all relevant standards of the GLEP 2012 and GDCP 2012. Agricultural practice observed on similar and smaller sized lots suggests that agriculture consistent with the rural land use is possible on the site. Therefore, I find that the proposed development is in the public interest. 6. Commissioner O'Neill in MB Investments Pty Ltd v Hawkesbury City Council [2015] NSWLEC 1361 [53] addresses the issue of whether the approval of a development itself will set a precedent or whether it is established by the provisions of the relevant regulatory tools, a similar situation as before the Court. [53] It is not the granting of consent to this proposal that will set a planning precedent for the subdivision of land, within the Grose Wold area, below the minimum lot size shown on the Lot Size Map; but instead the provisions of cl 4.1E of LEP 2012 that provide for the subdivision of land in the Grose Wold area using an alternative qualitative method, that may result in subdivisions below the minimum subdivision lot size shown on the Lot Size Map. 1. Consistently, I find that it is not the approval of a dwelling on the site that will establish precedence in the zone, however it is the provisions of the GLEP 2012 that will guide how future development occurs in a 'planned' manner. 2. The GLEP 2012 makes provision (through cl 4.2A(3)(c)) for lots that were subdivided with a compliant dwelling provision under a previous LEP. I have already found that this development can be approved pursuant to this clause. The proposed development is consistent with the other relevant provisions of the GLEP 2012 and the standards of the GDCP 2012. 3. The GLEP 2012 establishes the basis for planned development. I find that the proposed development is consistent with the GLEP 2012 and is therefore 'planned'. 4. The existence of other similar sized lots with dwelling houses located in close proximity to the site, supports the proposed development, and will not result in an undesirable precedent. The possibility that there are many other small lots in the zone that could be similarly developed will require individual merit assessment based on the regulatory provisions that operate at the time of application. 5. The approval of this development would unlikely result in a cascade of applications seeking development that would result in cumulative impact in the zone and impede the function of the GLEP 2012. The Council has provided no evidence that this will occur, only that there are 15 other lots from subdivisions, and there are 5000 lots in the zone that are of a smaller size than the GLEP 2012 requires for a dwelling. Development on each of these lots must be merit assessed, based on its particular circumstance. 6. This understanding is consistent with the view on cumulative impact and the issue of precedence taken by Sugarman J in Emmott v Ku-ring-gai Municipal Council [1954] 3 LGRA 177 at [182]: It is sometimes contended that a proposed development, in itself unobjectionable, should not be allowed because it is likely to lead to others of a similar character and the totality would prove objectionable. That depends, inter alia, upon the existence of a sufficient probability that there will be further applications for a number of undistinguishable developments of the same class sufficient in their totality to bring about the objectionable condition of affairs. Here it seems, as I have said, unlikely that all the hypothetical subdivisions shown on the plan tendered by the council would be sought. Applications must be considered on their own merits and it would appear to be unduly onerous to refuse an application, unobjectionable on its individual merits, on the mere chance of probability that there may be later applications sufficient, if approved, to produce in their totality some undesirable condition. In such a case as the present, if what originally appeared to be a mere possibility or chance turned out later to become a distinct possibility, there would be no reason why the council should not at that stage call a halt, if it should then appear proper to do so. Justice is not offended in these circumstances by the refusal of further applications calculated to lead to objectionable conditions after the granting of one or more earlier applications unobjectionable in themselves. 1. Consistently, I consider that the proposed dwelling on the site will not establish an undesirable precedent in the zone and there is no established conflict with public benefit, particularly with agricultural activity in the surrounding area. 2. For the reasons detailed above, I am satisfied that the Applicant has provided sufficient justification to approve the DA pursuant to cl 4.2A(3)(c) of the GLEP 2012 and that there is no adverse precedent in approving this development. There is public benefit in approving this development. 3. In approving this DA, development must be in accordance with the plans in Exhibit F and conditions of consent, provided in Exhibit 10. Orders 1. Consequently, the orders of the Court are as follows: 1. Leave is granted to rely on amended Clause 4.6 written request of 4 May 2018. 2. The appeal is upheld. 3. Development Application 2016/134 for Lot 222 DP 849115, known as Damilabe, Kamilaroi Highway, Gunnedah is approved subject to Annexure A. 4. The Exhibits, except Exhibits 1 and B are returned. ……………………. Sarah Bish Commissioner of the Court Annexure A (59.3 KB, pdf) ********** 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. Decision last updated: 19 June 2018