Anderson v Ballina Shire Council

Environmental Planning and Assessment Act 1979

1. Section 1.3 of the EP&A Act provides the objects of the Act which includes the following object at s 1.3(c) which is of relevance in this appeal: (c) to promote the orderly and economic use and development of land.
2. Section 3.43(5) of the EP&A Act concerns the preparation of development controls plans and provides that: (5) A provision of a development control plan (whenever made) has no effect to the extent that - (a) it is the same or substantially the same as a provision of an environmental planning instrument applying to the same land, or (b) it is inconsistent or incompatible with a provision of any such instrument.
3. Section 4.15(1) of the EP&A Act which provides as follows: (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
4. Section 4.15(3A) of the EP&A Act which provides as follows: (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority - (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria.

Ballina Local Environmental Plan 2012

1. The Subject Site is located on land zoned RU2 Rural Landscape under the provisions of cl 2.3 of BLEP. The objectives for the RU2 zone are: To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. To maintain the rural landscape character of the land. To provide for a range of compatible land uses, including extensive agriculture. To minimise the fragmentation and alienation of resource lands. To minimise conflict between land uses within the zone and land uses within adjoining zones. To enable small-scale tourist-orientated development that is compatible with the rural nature of the land. To encourage development that involves restoration or enhancement (or both) of the natural environment if consistent with the production and landscape character of the land. To enable development that does not adversely impact on the natural environment, including habitat and waterways. To ensure that there is not unreasonable or uneconomic demands (or both) for the provision of public infrastructure.
2. The Proposed Development concerns the subdivision of land and is subject to the provisions of cl 4.1 of BLEP, which: 1. includes the following objectives of relevance in this appeal: (1) The objectives of this clause are as follows: (a) to ensure that subdivision is compatible with the character of the locality, …. (c) to ensure that in the case of rural areas: (i) the subdivision pattern reflects and reinforces the agricultural, resource and environmental values of the land, and (ii) the subdivision pattern minimises land use conflict. 1. includes under cl 4.1(3) the provision that: (3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land. 1. provides that the minimum lot size applicable on Subject Site is 40 Ha.
3. The Respondent has contended that the proposed Development is inconsistent with the objectives of cl 4.2A of BLEP which concerns the erection of dwelling houses and dual occupancies (attached) on land in certain rural zones. The clause applies to land zoned RU2 and includes: 1. the following objectives in sub-cl 4.2A(1): (a) to minimise unplanned rural residential development, (b) to enable the replacement of lawfully erected dwelling houses or dual occupancies (attached) in certain rural zones. 1. a provision within cl 4.2A(3) that requires that development consent must not be granted for the erection of a dwelling house or a dual occupancy (attached) on land to which this clause applies unless the land satisfied the conditions contained in sub-cll 4.2A(3)(a) to 4.2A(3)(g).

Ballina Development Control Plan 2012

1. The Proposed Development is subject to the provisions of BDCP, and the following provisions of BDCP are of relevance to this appeal: 1. Chapter 7 Part 3.2 provides guidance to development in relation to rural subdivision, including: 1. Part 3.2.2 which provides the following objectives of relevance in this appeal: 1. Objective (a), which is: a. Preserve existing and potentially productive agricultural land for agricultural production. 1. Objective (e), which is: e. Ensure subdivision does not result in rural residential dwellings not related to agricultural production. 1. Part 3.2.3 which provides the following development controls of relevance in this appeal: i. All subdivision applications must demonstrate that the relevant zone objectives set out in the BLEP will be achieved; ii. Subdivision of land must not result in a significant diminution of the agricultural production potential of the land the subject of the application or land nearby or must result in a significant environmental benefit; … iv. Subdivision design must not create a situation where the relative position of existing or proposed improvements and rural activities on the new lots is likely to result in land use conflict. v. The size and shape of the proposed new allotments and their setting must be suited to their intended use;

Contentions

1. At the commencement of the hearing, the Parties confirmed that, based on the Respondent's amended statement of facts and contentions, the remaining questions requiring resolution in this appeal were as follows: 1. is the Proposed Development consistent with relevant controls and objectives of section 3.2 of Chapter 7 of BDCP? 2. is the Proposed Development compliant with the provisions of cl 4.1 of BLEP which provides development standards in relation to minimum lot size? 3. is the Proposed Development acceptable having regard to the objectives of the RU2 Rural Landscape zoning applicable to the Subject Site, in particular given the configuration of proposed Lot 2? and 4. would the Proposed Development create an expectation for future development that would be inconsistent with the objectives of cl 4.2A of BLEP?
2. The principal focus of each of these questions was the Applicants' unusual configuration of its proposed Lot 2 (see above at [4(2)]), which included parcels of land separated by some 830m by linked by a vinculum.
3. The Court was assisted in its consideration of these questions by the evidence of the Parties' expert planners, Mr Dwayne Roberts, for the Applicants, and Mr Darryl Anderson, for the Respondent.

Is the Proposed Development consistent with the controls and objectives of section 3.2 of Chapter 7 of BDCP?

1. Provisions of section 3.2 in Chapter 7 of BDCP were provide above (at [16(1)(a)]).
2. The Respondent had contended that the Applicants' proposed Lot 2, if approved, would not meet development control 3.2.3(i) of BDCP as the proposal has not demonstrated achievement of the relevant zone objectives applicable to the Subject Site.
3. Mr Hemmings, for the Applicants, submitted that: 1. pursuant to the provisions of s 3.43(5) of the EP&A Act, a provision of a development control plan has no effect to the extent that: 1. it is the same or substantially the same as a provision of an environmental planning instrument (EPI) applying to the same land, or 2. it is inconsistent or incompatible with a provision of any such instrument; 1. because the provisions of control 3.2.3(i) of BDCP required achievement of the objectives of RU2 zone contained in BLEP, whereas the provisions of cl 2.3(2) of BLEP required a consent authority should have regard to those objectives, the control was inconsistent with the provisions of an EPI and so were of no effect. 2. for the reasons provided above (at [(1)] and [(2)]), the Court would not require compliance with control 3.2.3(i) of BDCP.
4. Ms Reid, for the Respondent, in closing, noted that she agreed with Mr Hemmings that a development control plan could not require more than was required by the provisions of an EPI, in this case BLEP. She further submitted that notwithstanding the provisions of s 3.43(5) of the EP&A Act, the requirement for a consent authority, or the Court on appeal, to have regard to the objectives of the zone pursuant to cl 2.3(2) of BLEP should be undertaken in a meaningful way.
5. Having considered the submissions of the Parties, I agree that, given the requirements of cl 2.3(2) of BLEP, the acceptability of the Proposed Development in relation to the objectives of the RU2 zone should be considered by preference in relation to the requirements of cl 2.3(2) of BLEP rather than those required under control 3.2.3(i) of BDCP. That task is undertaken below (at [37]).

Is the Proposed Development compliant with the provisions of cl 4.1 of BLEP which provides development standards in relation to minimum lot size?

1. The provisions of cl 4.1 of BLEP concerning minimum lot size are provided above (at [14]).
2. It was common ground between the Parties that: 1. the term 'lot' is not defined in either BLEP or the EP&A Act; 2. a lot could consist of more than one parcel of land that were non-contiguous or separated, and which were linked by a vinculum; 3. the minimum lot size applicable to subdivision of the Subject Site, being Lots 4 and 61, was 40 Ha; 4. each of the Applicants' proposed lots, including its proposed Lot two consisting of three parcels with two of these separated by some 830m, had a minimum area of 40 Ha; and 5. each of the Applicants' proposed lots met the numeric development standard required under the provisions of cl 4.1(3) of BLEP.
3. Notwithstanding the Parties' agreement that each of the Applicant's proposed lots met the minimum 40 Ha development standard required under the provisions of cl 4.1(3) of BLEP, the Respondent contended that the Court could not be satisfied that the Proposed Development would be in the public interest because it is inconsistent with the objectives expressed in sub-cll 4.1(1)(a) and 4.1(1)(c) of BELP (see above at [14(1)]).
4. The Respondent drew the Court's attention to the judgments of Moore J in Barrak v City of Parramatta Council [2018] NSWLEC 67 (referred to hereafter as Barrak) and Robson J in Wenli Wang v North Sydney Council [2018] NSWLEC 122 (referred to hereafter as Wenli Wang) concerning the consideration of the objectives of development standards in relation to merits assessments.
5. Mr Hemmings for the Applicants disagreed with the Respondent's submission and said that: 1. when a proposed development satisfied the operative provisions of a development standard, such as provided within cl 4.1(3) of BLEP, the objectives of the standard should be considered achieved, and 2. the only circumstance in which the objectives of a standard in a plan, such as BLEP, should require further consideration would be when such a requirement is mandated by a separate provision of the plan, such as in relation to a written request to vary the standard in response to a cl 4.6 written request.
6. Having considered the submissions of the Parties, I agree with the Applicants that, because the Proposed Development is compliant with the operative provisions of cl 4.3 of BLEP, the objectives of the standard should be considered to have been achieved.
7. I note that this interpretation of the provisions of cl 4.1 of BLEP is consistent with the findings of Robson J in Wenli Wang (at [39] to [41]) in which His Honour stated that: "[39] I agree with the position of the parties' representatives in relation to the application of the objectives. Although the maximum set by a development standard is not a right, a development is taken to comply with the objectives of a standard where compliance with the standard is achieved. This is made clear by the chapeau of cl 4.3(1) which provides that what follows are the "objectives of this clause" as opposed to the objectives of the development. The clause is the development standard set by cl 4.3(2). [40] The objectives of the standard have relevance where an applicant seeks to vary the development standard by way of a request pursuant to cl 4.6. The consent authority must then be satisfied that the objectives of the clause are met notwithstanding the breach of the development standard. Such a request is not required in the present case as the proposed development complies with the 8.5 metre building height development standard. [41] Accordingly, I find that the objectives of the development standard are of limited assistance in the present case. In those circumstances it is not necessary to make a finding as to whether the objective of promoting "the retention and, if appropriate, sharing of existing views" is achieved by the proposed development."
8. I have also considered the findings of Moore J in Barrak in relation to the current appeal, but have concluded that the circumstances of that case, and the decision of the Commissioner that was the subject of the appeal addressed within it, are sufficiently different to the current appeal before me that they are of less assistance to me than those I have already drawn from my consideration of the judgment in Wenli Wang.
9. Finally, I note that the Respondent had contended that, should the Court not embrace its submission above (at [27]), then, in the alternative, the Court should not be satisfied that, pursuant to s 4.15(1)(c) of the EP&A Act (see above at [11]), the Subject Site was suitable for the Proposed Development because: 1. it would not be compatible with the character of the locality; and 2. it would not result in in a subdivision pattern that reflected and reinforced the agricultural, resource and environmental values of the land and minimise land use conflict.
10. I reject this submission.
11. As identified above, and consistent with the findings of Robson J at [39] in Wenli Wang, the Proposed Development is taken to comply with the objectives of a development standard in cl 4.1 of BLEP because it achieves compliance with the standard.
12. The basis for the Respondent's submission above (at [33]) was that the Proposed Development did not comply with those objectives. I have found otherwise, and so the Respondent's submission, relying s 4.15(1)(c) of the EP&A Act, that the Subject Site is not suitable for the Proposed Development cannot be sustained.

Is the Proposed Development acceptable having regard to the objectives of the RU2 zoning applicable to the Subject Site, in particular given the configuration of proposed Lot 2?

1. Clause 2.3(2) of BLEP requires that a consent authority, or the Court on appeal, must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
2. The Subject Site is zoned RU2 Rural Landscape and the objectives of that zone are provided above (at [13]).
3. The Respondent contended that the Proposed Development, and in particular the Applicants' proposed Lot 2, should not be determined by the grant of consent having regard to four of the objectives of the RU2 zone because: 1. it would not maintain the existing or intended rural landscape character of the land, in contravention of the second of the zone objectives; 2. it would fragment and alienate resource lands by subdividing proposed Lot 2 into a non-contiguous parcel, in contravention of the fourth of the zone objectives; 3. it would not minimise conflict between land uses within the RU2 zone as it would create additional dwelling entitlements (sensitive receivers) on proposed Lot 2 which, due to its configuration, will not have the benefit of a buffer area of the same quantum from adjoining land uses as it was a contiguous lot, in contravention of the fifth of the zone objectives; and 4. it would not enhance the landscape character of the land as the proposed Lot 2 would generate dwelling entitlements which would necessarily result in greater visual clutter that would not be expected in the RU2 zone if the land were subdivided into contiguous parcels, in contravention of the seventh of the zone objectives.
4. I will address each of these contentions seriatim:

Should the Proposed Development be determined by the grant of consent having regard to the second objective of the RU2 zone?

1. The second objective of the RU2 zone is to maintain the rural landscape character of the land.
2. The Respondent, supported by the evidence of its expert planner, Mr Anderson, submitted that the Proposed Development would not maintain the rural landscape character of the land, either as it exists currently or as it is intended, because: 1. the proposed fragmented character of proposed Lot 2 was not characteristic of the zone; 2. unlike other lots that were more characteristic of the zone it would have an irregular shape with up to 10 neighbouring lots; and 3. any dwelling built on the proposed lot would introduce clutter into the landscape.
3. The Applicants, supported by the evidence of their expert, Mr Roberts, stated that: 1. the landscape character of land in the area is best characterised as eclectic as it includes a variety of surrounding land uses, including: 1. a sub-station; 2. an aquatic centre; 3. a quarry; 4. a large lot residential development; and 5. a caravan park; 1. the subdivision would not impact on the use of the Subject Site which would continue to be agricultural, albeit with the provision for a future dwelling; 2. any future dwelling approved for construction on the Subject Site would be consistent with the anticipated density of dwellings within the landscape given that the Applicant's proposed Lot 2 was compliant with the applicable 40Ha minimum lot size, and the provision of a dwelling onto such a compliant lot was anticipated within the provisions of BLEP.
4. Having considered the submissions of the Parties and the evidence of the expert planners, I have concluded that the Proposed Development is acceptable having regard to the second objective of the RU2 zone for the reasons provided by the Applicants (see above at [43]), which I adopt.

Should the Proposed Development be determined by the grant of consent having regard to the fourth objective of the RU2 zone?

1. The fourth objective of the RU2 zone is to minimise the fragmentation and alienation of resource lands.
2. The Respondent, supported by the evidence of its expert planner, Mr Anderson, submitted that the Proposed Development would not minimise the fragmentation and alienation of resource lands, because: 1. while there was no impediment within either the Conveyancing Act 1919 or the Real Property Act 1900 that would preclude a split lot, such arrangements were unusual, as split lots are more usually created in response to the presence of geographic features in the landscape such as roads, rivers or as a consequence of residual parcels of land following subdivision of land; 2. the separation of a future dwelling on the proposed Lot 2 from a substantial area of the lot that would be used for agricultural production is not contemplated by BLEP; 3. the amount of land that would be available for agriculture would be reduced through the creation of a new lot with a dwelling entitlement and which would therefore alienate resource land; 4. the creation of proposed Lot 2 comprising three parcels of land drawn from parts of two compliant lots (Lots 4 and 61), and with the western and eastern portions of the lot separated by around 830m, would fragment resource land, contrary to the intent of the objective, compared with the current arrangement of the lots which did reflect the intent of the objective; 5. the fourth objective of the RU2 zone invites the consent authority, or the Court on appeal, to look more closely at the configuration of the proposed lots, including proposed Lot 2, in relation to whether that configuration would minimise fragmentation of resource land; and 6. the creation of proposed Lot 2 would provide an undesirable precedent in relation to the arrangement of lots in the RU2 zone, and would not be in the public interest.
3. The Applicants said that the Proposed Development was acceptable, having regard to the fourth objective of the RU2 zone, because: 1. the Applicants' proposed Lots 1 and 3 were of a standard configuration and size and so acceptable having regard to the objective; 2. the fourth zone objective required that fragmentation of resource land should be minimised, but did not require that there should be zero fragmentation, and so fragmentation of resource land was anticipated under the objective; 3. the Applicants' proposed Lot 2 was, in essence, comprised of two portions, with one portion to the west and one to the east; 4. if a lot were to be fragmented, then two portions was the minimum number of portions that might be envisioned in terms of fragmentation, and so this was consistent with the requirement that fragmentation be minimised.
4. I have considered the submissions of the Parties, and the evidence of their experts, and I have concluded as follows: 1. the objective seeks to minimise both the fragmentation and the alienation of resource land; 2. I agree with the submission of the Applicants, unchallenged by the Respondent, that proposed Lots 1 and 3 are of a standard configuration and size and so are acceptable having regard to the fourth objective of the RU2 zone; 3. I am satisfied that the Applicants' proposed Lot 2 minimises the alienation of resource land because: 1. I accept the Applicants' submission, supported by the agricultural assessment of Allen Associates that accompanied its development application, that the physical fragmentation of proposed Lot 2 will not have any negative impact on the economic viability of the lot as a whole or the portions individually; and 2. it would not be capable of further subdivision and so it would continue to be held in a single ownership, even if that ownership were different to current arrangements. 1. I am not satisfied that the Applicants' proposed Lot 2, a fundamental component of the Proposed Development, would minimise fragmentation of resource land because: 1. I agree with the Respondent's submission (see above at [46(5)]) that the fourth objective of the RU2 zone invites the consent authority, or the Court on appeal, to look more closely at the configuration of the proposed lots in establishing whether the proposed subdivision does minimise the fragmentation of resource land; 2. I do not accept Mr Hemmings' characterisation that the fourth objective's requirement to minimise the fragmentation of resource land should only be interpreted numerically (see above at [47(4)]) such that any lot created through subdivision and being comprised of two portions or fragments would be sufficient to satisfy the objective. In my assessment, consistent with the submission of the Respondent, the relationship between the fragments, that is their configuration, is also of relevance, as discussed below. 3. even if the Court were to embrace Mr Hemmings' numerical characterisation of the requirement to minimise fragmentation, it is my assessment, consistent with the Respondent's submissions, that the proposed Lot 2 would fail to satisfy that characterisation because proposed Lot 2, if created, would consist of three disjunct parcels of land, as illustrated in the figure above (at [5]), and: 1. two of those parcels would be located in the west of the Subject Site, having their origin in current lot 61, and they would be separated by a road; and 2. one of the parcels would be located in the east, having its origin in current lot 4, and it would be separated from the two western parcels by some 830m; 1. the fact that the western portion of proposed Lot 2 is configured such that it would be physically separated by some 830m from its eastern portion merits weight in assessing the Proposed Development's responsiveness to the RU2 zone's objective that fragmentation of land should be minimised. In relation to this it is my assessment that: 1. the fragmentation of land can be minimised through both minimising the number of component parcels within a lot, and through the configuration of parcels such that they minimise the fragmentation distance between the parcels within a resulting lot; 2. a subdivision that configures lots consisting of multiple parcels such that they have a sufficient physical connection or a sensible relationship in space should be preferred to one that proposes a lot or lots consisting of disparately separated parcels of land, in which the fragmentation of parcels within the lot cannot be considered to have been minimised; 3. in my assessment, the Applicants' Proposed Development, and in particular the separation of parcels within proposed Lot 2 by some 830m, does not minimise fragmentation of resource lands in this more qualitative sense; 4. the absence of a sufficient physical connection between the east and west portions proposed Lot 2, and their physical separation by 830m, precludes the Court, in my assessment, from concluding, as a finding of fact, that the fragmentation of land arising from the creation of proposed Lot 2 has been minimised; 1. for reasons provided above (at [(a)] to [(d)]), I agree with the Respondent's submission above (at [46(4)]) that the Applicants' proposed Lot 2 would fragment resource land in a manner that is not minimised, and contrary to the intent of the objective.
5. For reasons provided above (at [48] and in particular my finding above (at [48(4)(e)]), I conclude that: 1. the Proposed Development be should not be approved; and 2. the Applicants' development application should not be determined by the grant of consent having regard to the fourth objective of the RU2 zone.
6. For completeness, I will consider the responsiveness of Proposed Development to the final two objectives of the RU2 zone.

Should the Proposed Development be determined by the grant of consent having regard to the fifth objective of the RU2 zone?

1. The fifth objective of the RU2 zone is minimise conflict between land uses within the zone and land uses within adjoining zones.
2. The Respondents, supported by the evidence of its expert planner, Mr Anderson, submitted that the Proposed Development would not minimise conflict between land uses within the zone because the creation of proposed Lot 2 would result in the creation of an additional dwelling entitlement on that lot and: 1. the introduction of an additional dwelling within the RU2 zoned lands around the Subject Site would create visual clutter in the landscape that would be in conflict with the use of the land for agricultural purposes; and 2. a dwelling on proposed Lot 2 would limit the potential use of the adjoining lot to the west, held in a different ownership to proposed Lot 2, because of the need for a buffer between agricultural land uses and a dwelling on the lot.
3. The Applicants submitted that the Proposed Development would minimise conflict between land uses within the zone and land uses within adjoining zones, because: 1. the Applicants' proposed subdivision of Lots 4 and 61 would result in the creation of three lots that were compliant with the minimum lot size, and in circumstances where any new dwelling entitlement is envisaged under the relevant provisions of BLEP; 2. the construction of a dwelling on proposed Lot 2 would not create any visual clutter in the landscape because: 1. any dwelling built on the proposed Lot 2 would be consistent with the dwelling density envisaged under the RU2 zoning of the Subject Site and surrounding lots; 2. the proposed Lot 2, and in particular its eastern portion, is located within an area that includes a diverse range of non-agricultural land uses including an electricity sub-station, an aquatic centre, a quarry, a large lot residential development and a caravan park; and 3. given the diversity of land uses in the area of the Subject Site, a potential future dwelling on the proposed Lot 2 would not add to the visual clutter of the landscape; 1. the introduction of a dwelling onto proposed Lot 2 would not introduce any buffer requirement that would limit agricultural activity on adjoining lands; and 2. the only requirement that would be introduced through the potential construction of a dwelling on proposed Lot 2 would be that the dwelling must be setback from the lot boundary by 150m, and: 1. this would not conflict with agricultural activities on adjoining lands; and 2. agricultural activities on the lot would not be restricted other than within the footprint of the potential dwelling.
4. Having considered the submissions of the Parties, I agree with the Applicants, for the reasons it submits (see above at [53]), which I adopt, that the Proposed Development, including the creation of proposed Lot 2, would not give rise to any additional conflicts between land uses within the zone and land uses within adjoining zones. As a consequence, I am satisfied that the Proposed Development is acceptable having regard to the fifth objective of the RU2 zone.

Should the Proposed Development be determined by the grant of consent having regard to the seventh objective of the RU2 zone?

1. The seventh objective of the RU2 zone is to encourage development that involves restoration or enhancement (or both) of the natural environment if consistent with the production and landscape character of the land.
2. The Respondent had contended that the Proposed Development should not be approved having regard to the seventh objective of the RU2 zone because it would not enhance the landscape character of the land as a consequence of increased visual clutter associated with a potential future dwelling on proposed Lot 2. The Respondent noted that such an outcome would not be anticipated in the RU2 zone if the Subject Site were subdivided into contiguous lots.
3. I have already considered (see above at [54]) the potential for the Proposed Development to introduce visual clutter in the landscape and have adopted the position put by the Applicant that no such visual clutter would result from the Applicant's proposed subdivision of Lots 4 and 61.
4. I also note that the seventh objective concerns the potential for development that proposes restoration or enhancement (or both) of the natural environment, and the circumstances in which would be acceptable. Those circumstances are identified in the objective as "if consistent with the production and landscape character of the land". Noting this, I am satisfied that: 1. the Applicants do not propose the restoration or enhancement (or both) of the natural environment, and so it is my view that the objective is not of relevance to the Proposed Development; and 2. the Respondent's characterisation of the objective as requiring that the Applicant's Proposed Development should enhance the landscape character of the Subject Site is not a correct interpretation of the objective.
5. I conclude that the Applicant's Proposed Development is acceptable having regard to the seventh objective of the RU2 zone.

Final considerations

1. As noted above (at [8(4)] and [17(4)]) the Respondent had contended that the Proposed Development would create an expectation for future development and that this would be inconsistent with the objectives of cl 4.2A of BLEP.
2. The objectives of cl 4.2A were provided above (at [15(1)]), and sub-cl 4.2A(3) sets out the circumstances that must be satisfied in order that the power of the consent authority to grant consent for the erection of a dwelling house, or a dual occupancy (attached), on land to which cl 4.2A applies would be enlivened.
3. It is evident from the provisions of sub-cl 4.2A(3) that the purpose of the clause is to establish the basis upon which an application for a dwelling house or a dual occupancy (attached) might be granted consent.
4. In the current appeal the Applicants do not seek consent for a dwelling house or for a dual occupancy (attached), and so the provisions of cl 4.2A of BLEP have no work to do in the appeal.
5. Consequently, there is no need for me to consider the Respondent's contention concerning the application of the objectives of cl 4.3A in this appeal.

Conclusions

1. As a consequence of my consideration above of the experts' evidence, and the submissions of the Parties, I have concluded that the Applicants' development application for the subdivision of land should not be determined by the grant of consent having regard to the fourth objective of the RU2 zone because it does not minimise fragmentation of resource land for reasons identified above (at [49]).
2. Further, and because I have found that the Applicant's proposed subdivision of land should not be determined by the grant of consent (for reasons provided above at [65]), I also find that the Applicant's Proposed Development: 1. is not a development for which the Subject Site is suitable, contrary to a matter to which a consent authority, or the Court on appeal, should give consideration under s 4.15(1)(c) of the EP&A Act (see above at [11]); 2. would not result in a proper planning outcome; 3. would not promote the orderly and economic use and development of land, and so would not be consistent with the object in s 1.3(c) of the EP&A Act; and 4. would not be in the public interest.
3. Finally, and while I do not rely on it as a reason for refusal of the Applicants' development application, I note for completeness the Respondent's submission in closing that: 1. under s 12D of the Real Property Act 1900, the Registrar-General may publish guidelines concerning, inter alia, the practices and procedures of the Registrar-General in the exercise of titling and registry functions; and 2. the NSW Land and Registry Services has published a Registrar General's Guideline concerning numbering of lots and sheets which states in its second paragraph that: "A lot should only be separated into two (2) or more physical parts where separated by road, river or other physical feature or where it is necessary to define a complex residue following subdivision of part into other lots. Each part must be designated as such (i.e. 'Part Lot 2') together with separate dimensions and areas for each part and a total area for the lot. Alternatively, a vinculum may be used to connect the individual parts."

Orders

1. The Court orders: 1. The appeal is dismissed; 2. The Applicant's development application 2020/49 to subdivide land in two lots into three lots at 38 Newrybar Swamp Road and 447 Ross Land, Lennox Head is determined by refusal; 3. The exhibits are returned, except exhibits B and 1.

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