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[2009] NSWLEC 34
Land and Environment Court (NSW)
2009-03-12
Biscoe J, Mr P
Original judgment source is linked above.
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Agonic Holdings Pty Ltd
Lithgow City Council
CITATION : Agonic Holdings Pty Ltd v Lithgow City Council [2009] NSWLEC 34
Agonic Holdings Pty Ltd v Lithgow City Council [2008] NSWLEC 1347 Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103, (2008) 158 LGERA 224 Grant v Kiama Municipal Council [2006] NSWLEC 70 CASES CITED: Hunter Development Brokerage Pty Ltd v Cessnock City Council (No 2) [2006] NSWCA 292, (2006) 151 LGERA 46 Lennard v Jessica Estates Pty Ltd [2008] NSWCA 121, (2008) 159 LGERA 420 Port Stephens Council v Sansom [2007] NSWCA 299, (2007) 156 LGERA 125 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, (2004) 136 LGERA 254 Wehbe v Pittwater Council [2007] NSWLEC 827, (2007) 156 LGERA 446
4 The Land and Environment Court Rules 2007 commenced in January 2008 and replaced the Land and Environment Court Rules 1979. Rule 3.7(2) of the new rules replaced Pt 16 r 4(2) of the old rules which provided that: "No order for the payment of costs will be made in proceedings to which this Rule applies unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable". The essential difference between those two provisions is the absence of the words "in the circumstances of the particular case" in the new rule. In relation to the old provision, Bryson JA in Hunter Development Brokerage Pty Ltd v Cessnock City Council (No 2) [2006] NSWCA 292, (2006) 151 LGERA 46 at [4] said that those words excluded "generalised approaches". By reason of the omission of those words in the new rule, it may be that generalised approaches are permissible, although a specific generalised approach may be insufficient to enliven the discretion or may be displaced by the circumstances of the particular case. The non-exhaustive list of circumstances in rule 3.7(3) directs attention to the circumstances of the particular case. The list is similar to the indicative guidelines formulated under the old rule in Grant v Kiama Municipal Council [2006] NSWLEC 70 at [15] by Preston J and approved by the Court of Appeal in Port Stephens Council v Sansom [2007] NSWCA 299 (2007), 156 LGERA 125 at [56]. 5 The effect of the costs rule is that, in the ordinary case, costs will lie where they fall. This presumptive rule is not displaced unless the Court considers that the making of a costs order is fair and reasonable in the circumstances. The rationale of the presumptive rule was addressed in Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103, (2008) 158 LGERA 224 at [9] - [10] by me as follows:
63 The commissioner referred to those other approvals for subdivision of rural land in her judgment at [62], [72] - [82], and at [105] said: "105 In my assessment of the proposal there are no distinguishing features of this land compared to adjoining properties that have enjoyed subdivision approval. The difference is this property is the result of several amalgamations/aggregations. However this should not prejudice its potential for subdivision and there is no reason as to why I should not follow council's previous decisions and assessments in allowing subdivisions to create lots of 40 ha. The development standard and planning framework or adopted public policies have not changed to require new factors to be considered." 64 The applicant refers to Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, (2004) 136 LGERA 254 at [87] per McClellan J: "Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property." 65 The commissioner's judgment records that (a) council and the DPI had carried out strategic work which indicated a need to increase the minimum lot size in order to achieve policy outcomes and protect agricultural land resource; (b) at the time council commissioned an independent land use analysis report by a consultant who said that if the remaining genuine agricultural production areas were to be preserved, it would be necessary to limit further subdivisions to those holdings that were already less than 400 hectares; Ms. Kovac could not assist in relation to what the minimum lot size should be; (d) Mr Sinclair, a town planner engaged by council, thought that the minimum size for rural subdivision should be 400 hectares; and (e) council had no plan, policy or code to say the minimum size should be larger than 40 hectares. The commissioner concluded that the council and the DPI may consider it is now timely to review the 40 ha minimum lot size in the Rural 1(a) zone; that in the interim the council could choose to adopt a development control plan, policy or code that was available in the public domain, but had not done so; that it would appear that the council was seeking to establish a policy position through the proceedings for a greater minimum lot size in the Rural 1(a) zone than 40 ha; and that this was inappropriate as the development application had to be assessed against the statutory planning framework and other adopted policies available to the public. 66 The gravamen of Contention 2 is that in refusing the applicant's development application and seeking the comments of the DPI, the council acted inconsistently because it had previously approved the subdivision of rural lots into 40 hectare plus panels without, generally, seeking the comments of the DPI.
(g) Council's approval of other subdivision applications indicated that it consistently applied a policy that if the lot size was 40 ha or more then council accepted it would be capable of use for agriculture (Judgment [74] and [80]). 81 When cross-examined about his expertise, Mr Sinclair said he had experience in farming and had been a rural planner for 20 years, an answer which was not challenged. I therefore do not accept the applicant's present challenge to Mr Sinclair's expertise. His opposition expert planner, Mr George Smith, could not claim any direct farming expertise. 82 The applicant's suggestion that no change of use was proposed relies on the proposition that once a lot is sold, the purchaser is entitled to use the lot for agriculture, a use permitted without consent. Mr Sinclair's thesis was that the resultant subdivided lots would probably be used primarily for rural-residential lots and not as efficient farms. He gave examples of other small lots and their use for residential purposes. The commissioner did not hold that Mr Sinclair's thesis was wrong. The commissioner merely said that the proposed development does not prevent the land being used for purposes other than agriculture: at [104]. The matter that persuaded the commissioner to approve the application was its consistency with the planning controls and objectives of the zone. Subdivision itself does not involve any use of land and consent for subdivision alone does not import any approval for subsequent use for any purpose: Wehbe v Pittwater Council [2007] NSWLEC 827, (2007) 156 LGERA 446 at 28. However, that has to be understood in light of the conclusion of the Court of Appeal - with which Mr Sinclair's thesis was consistent - in Lennard v Jessica Estates Pty Ltd [2008] NSWCA 121, (2008) 159 LGERA 420 at [61] that a subdivision is generally in order to use land for a particular purpose, and should not be treated as a colourless or neutral act. Tobias JA (McColl and Bell JJA agreeing) held at [61]: "…The issue is whether 'a land use allowed by' the LEP includes the subdivision of land for a particular purpose of use. It is true that in some contexts the cases have drawn a distinction between the subdivision of land on the one hand and the use of land as subdivided on the other. That distinction has been covered in the definition of subdivision of land in s 4B(1) of the EPA Act which contemplates the division of land into two or more parts anterior to the actual use or occupation of those parts. However, in my opinion the expression 'a land use' in cl 6(1) of the LEP is capable of including the subdivision of land for the purpose of a use permitted by the LEP. Generally speaking, in the context of planning, land is not subdivided except for a particular purpose. Thus the Estate was subdivided for the purpose of creating residential lots i.e. lots intended to be used for residential purposes."
(2008) 158 LGERA 224
(2006) 151 LGERA 46
(2008) 159 LGERA 420
(2007) 156 LGERA 125
(2004) 136 LGERA 254
(2007) 156 LGERA 446
(2007) 156 LGERA 150
(2003) 131 LGERA 325