David Casson trading as Casson Planning & Development Services v Upper Hunter Shire Council

Facts

1. The Statement of Facts and Contentions filed by the Council on the 14 February 2017 (Exhibit A) sets out the relevant background to the appeal and the contentions. The Applicants accept the Council's summary subject to the supplementary matters outlined in its Statement in Reply dated 6 March 2017. The additional detail includes reference to the 99 year lease and sale of land (to which I have referred earlier) and raises issue with the objectivity of the evidence of the objector on the record, Mr Johnson. As the purchaser of the Site (under the contract for sale) it is contended that Mr Johnson's objection to the subdivision cannot be accepted as being entirely objective.
2. Leaving aside for the moment any further comment about the relevance of the lease and the sale of the land it is appropriate to record some background facts.
3. The Site comprises a rural lot of 185.3 hectares. It has a frontage of approximately 100 meters to Hunter Road in two locations. Hunter Road bisects the top portion of Lot 212. Proposed Lot 1 has been designed to be on one side of Hunter Road with the remainder of the Lot (proposed Lot 2) being on the other side of Hunter road. The northern boundary of lot 212 (now to be proposed Lot 1) adjoins the Hunter River.
4. The proposed development will result in Lot 1 being wholly zoned RU4 with a size of 1.6 hectares and Lot 2 partly zoned RU4 partly zoned RU1 with a lot size of 183.75 hectares.
5. The Lot size map referred to in cl 4.1 identifies the minimum lot size for RU4 zoned land as 40 hectares (ha) and the minimum lot size for RU1 zoned land as 400 ha.
6. The minimum lot size requirements in Clause 4.1 of the LEP are development standards however, it is agreed that a cl 4.6 (6) precludes a variation of the standard in this case.
7. As stated earlier the Site is currently a vacant rural parcel with the area proposed to be Lot 1 having been used for some years as a lucerne crop in conjunction with the adjacent land being in Lot 4 in DP75247 (the 'Carlisle' property). The Applicants have indicated that proposed Lot 1 is intended to be created in order to provide a long term 99 year lease to the owner of Lot 4 so that it can continue to be used for the purpose of lucerne crop.
8. There is an existing easement for transmission wires over Lot 1.
9. On 9 August 2016 a planning assessment report was submitted to the Council's Development and Environmental Services Committee with the recommendation that Council approve the DA subject to the conditions of consent. Despite that recommendation the Committee resolved to refuse the application. On 22 August 2016 there was a formal refusal by the Council.
10. The Site is a short distance from the residential area of Moonan Flat which is located on the other side of the river. Otherwise the Site is adjacent to other rural lots.
11. A marked up copy of the proposed subdivision plan prepared by MM Hyndes Bailey & Co dated 15 February 2016 is reproduced below. It identifies the existing lots and the proposed lots together with the names of the current owners.

Relevant Statutory Controls

1. As noted the Site currently has a split zoning with part of the Lot zoned RU1 Primary Production and part zoned RU4 Primary Production-Small Lots under the LEP.
2. Clause 2.3 (2) of the LEP provides that the consent authority (now the Court) must have regard to the objectives for development in a zone when determining a development application in respect of land within that zone.
3. Part 4 cl 4.1 of the LEP deals with minimum subdivision lot size. It provides: Part 4 Principal development standards 4.1 Minimum subdivision lot size (1) The objectives of this clause are as follows: (a) to ensure that new subdivisions are consistent with the predominant lot sizes and holding patterns of the surrounding locality, (b) to ensure that lot sizes have a practical and efficient layout to meet the intended use of the lot, (c) to prevent the fragmentation of rural lands. (2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan. (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. (3A) If a lot is a battle-axe lot or other lot with an access handle, the area of the access handle is not to be included in calculating the lot size. (4) This clause does not apply in relation to the subdivision of individual lots in a strata plan or community title scheme.
4. Clause 4.1C applies to Lot sizes for certain split zones, including land in zone RU1 Primary Production and RU4 Primary Production - Small Lots. The parties agree that this provision of the LEP in not relevant in this case.
5. Clause 4.2 of the LEP deals with rural subdivision and applies to the rural zones including RU1 and RU4. It provides: Part 4 Clause 4.2 4.2 Rural subdivision (1) The objective of this clause is to provide flexibility in the application of standards for subdivision in rural zones to allow land owners a greater chance to achieve the objectives for development in the relevant zone. (2) This clause applies to the following rural zones: (a) Zone RU1 Primary Production, (b) Zone RU2 Rural Landscape, (c) Zone RU4 Primary Production Small Lots, (d) Zone RU6 Transition. Note. When this Plan was made it did not include all of these zones. (3) Land in a zone to which this clause applies may, with development consent, be subdivided for the purpose of primary production to create a lot of a size that is less than the minimum size shown on the Lot Size Map in relation to that land. (4) However, such a lot cannot be created if an existing dwelling would, as the result of the subdivision, be situated on the lot. (5) A dwelling cannot be erected on such a lot. Note. A dwelling includes a rural workers' dwelling (see definition of that term in the Dictionary).
6. Clause 4.2A deals with the minimum subdivision lot sizes for certain rural subdivisions and applies to the RU1 Primary Production and RU4 Primary Production-Small Lots zones. It provides: 4.2A Exceptions to minimum subdivision lot sizes for certain rural subdivisions (1) The objective of this clause is to enable the subdivision of land in rural areas to create lots of an appropriate size to meet the needs of current permissible uses other than for the purpose of dwelling houses or dual occupancies. (2) This clause applies to the following rural zones: (a) Zone RU1 Primary Production, (b) Zone RU4 Primary Production Small Lots. (3) Land to which this clause applies may, with development consent, be subdivided to create a lot of a size that is less than the minimum size shown on the Lot Size Map in relation to that land, if the consent authority is satisfied that the use of the land after the subdivision will be the same use (other than a dwelling house or a dual occupancy) permitted under the existing development consent for the land. (4) Development consent must not be granted for the subdivision of land to which this clause applies unless the consent authority is satisfied that: (a) the subdivision will not adversely affect the use of the surrounding land for agriculture, and (b) the subdivision is necessary for the ongoing operation of the permissible use, and (c) the subdivision will not cause or increase rural land uses conflict in the locality, and (d) the subdivision is appropriate having regard to the natural and physical constraints affecting the land.
7. Clause 6.10 relates to essential services and requires that development consent must not be granted to the development unless the consent authority is satisfied that certain essential services are available or that adequate arrangements have been made to make them available when required. Those services include suitable vehicle access. As it presently stands the application makes no provision for suitable vehicle access to proposed Lot 1. Despite that the parties agree that this issue can be resolved by the imposition of a condition of consent requiring that vehicle access in accordance with the Council's requirements be provided to Lot 1 prior to the issue of the subdivision certificate.
8. The land is subject to State Environmental Planning Policy (Rural Lands) 2008 (the Rural SEPP). Clause 2 of the Rural SEPP sets out the aims of the policy. Clause 8 sets out the Rural Subdivision Principles that apply and cl 9 deals with rural subdivision for agricultural purposes. Clause 10 sets out the matters to be considered in determining development applications for rural subdivisions.
9. The Upper Hunter Development Control Plan 2015 (The UHDCP) also applies to the Site. Part 3 of the UHDCP deals with subdivision.
10. The Site is located on bushfire-prone land and for that reason the application was referred to the New South Wales Rural Fire Services for comment. The RFS provided a letter on 21 April 2016 which issued general terms of approval to the application.

Expert Evidence

1. The Court received expert evidence from two agricultural experts. Kyle Ropa who appeared on behalf of the Applicants and John Hamilton who provided evidence on behalf of the Council. These experts initially prepared individual statements of evidence before conferring to prepare a joint report (exhibit 6). In the ultimate they agreed that Lot 1 is not a viable agricultural Lot in its own right. They also agreed that if the Court were to approve the subdivision then Lot 1 needs to accommodate easements to allow access to the river for both Lot 2 and the adjoining property "Carlisle" and Mr Johnson's land. These property owners currently rely upon water pumped from the river for their agricultural use of their land. In light of their agreed position the agricultural experts were not required to give oral evidence at Court.
2. The other expert evidence received was from David Casson (a town planner and development adviser) engaged by the Applicants and Peter Fryer a consultant planner engaged by the Council. These experts prepared separate statements of evidence and a joint report. They gave oral evidence concurrently at the Court hearing.

The Council's Position

1. Put simply, the Council submits that there are four avenues under the LEP to enable consent for a subdivision. The first is to seek a variation of cl4.1 under cl6.4. Given the terms of cl4.6 (6) it is agreed that there is no opportunity on the facts of this case to make such a request. The second avenue is through cl 4.1C which deals with minimum subdivision lot sizes for certain split zones. Again, it is agreed that this avenue is not available to the Applicants because the land does not contain a residential, business or industrial zone.
2. The remaining avenues are cl 4.2 and cl 4.2A. That said, if the Applicants want to seek a rural subdivision in the RU1 or RU4 zone that is below the minimum lot size under Clause 4.2 the subdivision must be for the purpose of primary production. They would need to establish that the lot created was agriculturally viable so as to be used for primary production to justify that subdivision. The agreed position of the agricultural experts is that Lot 1 is not a viable agricultural lot in its own right. Therefore, the Council argues that Clause 4.2 of the LEP is not available to the Applicants.
3. The Council contends that Clause 4.2A is a provision which deals with an exception in particular circumstances where a development consent is in existence. Those circumstances do not apply to the present application therefore there is no power for the Court to approve of the minimum lot size proposed in this case under the exception in Clause 4.2A (3). It is agreed that there is no existing development consent issued in respect of the land. Moreover, the current agricultural use does not require development consent. In the present circumstances the Council contends that Clause 4.2A (3) means that the consent authority cannot be satisfied that the use of the land after the subdivision will be the same use permitted under the existing development for the land, as no existing development consent has been granted for the Site (contention 2 (b)).
4. The Council also contends that the application will result in the fragmentation of rural lands. Clause 8 of the Rural SEPP details a number of Rural Subdivision Principles including minimization of rural land fragmentation. This is also one of the objectives of the minimum subdivision lot size clause in cl4.1 of the LEP and one of the relevant objectives of the RU1 zone. As it presently stands the evidence is that Lot 212 is severed by a public road and contains a small area of fertile land with access directly to the river and a larger parcel which is less arable and more appropriately utilized for stock. The subdivision proposed excises the arable part of the land as Lot 2 and removes its current direct access to water entitlements from the river. If approved the owner of Lot 1 would need to facilitate (by way of easement) water to the proposed Lot 2 and also to the "Carlisle" and Johnson properties which currently depend upon water pumped from the river for their agricultural use of their land.
5. Mr Johnson who was represented by his lawyer Kate Mailer has lodged a lengthy objection to the application (Council bundle at folios [42] - [45]. Ms Mailer summarised his position at the commencement of the hearing onsite. As the adjoining proprietor of the land proposed to be subdivided (and the purchaser of Lot 212 under a contract of sale which is yet to be completed, and I am told, is the subject of legal proceedings between Mr Dawson and Mr Hayne) he strenuously opposes the subdivision application for the following reasons;

• Mr Johnson contends that any variation in the existing property boundary would greatly devalue Lot 2 as the current building entitlement would be extinguished (noting that Lot 212 does have a building entitlement and the parties have agreed that there will be no building entitlement to the proposed Lots 1 and 2 if subdivision is approved).
• As the purchaser of Lot 212 Mr Johnson intends to use the proposed Lot 1 for lucerne to sustain cattle production in harsher and dryer weather on the less fertile remaining area of Lot 212 (proposed Lot 2). He contends that if the subdivision were granted it would restrict his access to his water pump and water which is presently situated on the banks of the Hunter River and services his property. This water supply is the only water supply to Lot 212 and whilst there is an easement in place for his water supply this comes with its own restrictions in terms of access. Mr Johnson said that he intends after completing the purchase of Lot 212 to erect fencing for the purpose of preventing public access to his pump which in the past has been vandalised.
• Mr Johnson is also concerned about the impact of subdivision on any existing easement for water supply to the land he owns at Lot 211. He believes that the excising of the land in question from Lot 212 severely impacts the value of that parcel and his future use of that land. Lot 212 was originally formed on its current boundaries for the very purposes of permitting access to the Hunter River if the subdivision is permitted whilst there is an easement for water supply which needs to be clarified that future use and value of Lot 212 will in his assessment be severely compromised.

1. The Council relies upon the matters raised by Mr Johnson and Mr Fryer to support its position that the proposed development will result in the fragmentation of rural land contrary to the provisions of Clause 8 of the Rural SEPP and the objectives of the RU1 zone. It submits that pursuant to Clause 2.3 (2) of the LEP that the Court must have regard to the objectives for the development and the zone when determining a development application. The objectives of the RU1 zone include minimizing the fragmentation and alienation of resource lands and protecting the agricultural value of rural lands. The Council submits that the proposed development seeks to subdivide off 1.6 ha of land that is adjacent to the river and is more fertile than the remaining lands. Clause 8(a) of the Rural SEPP provides for the minimization of rural land fragmentation as one of its rural subdivision principles and this application offends that principle and the relevant objective of the RU1 zone.
2. The Council contends on the evidence of its town planning expert that the proposed subdivision creates potential for land use conflict and that is it inconsistent with the provisions of Clause 8(b) of the Rural SEPP and the objectives of the RU4 zone under the LEP. Clause 8(b) of the Rural SEPP contains the Rural Subdivision Principle for the minimization of rural land use conflicts particularly between residential land uses and other rural land uses.
3. Proposed Lot 1 will be wholly zoned RU4 under the LEP and will be only 1.6 ha in size. One of the objectives of the RU4 zone is to minimize conflict between land uses within the zone and land uses within adjoining zones. The size of Lot 1 if subdivided and sold will create the potential for land use conflict with adjacent land as the size of the lot will provide little opportunity for the creation of buffer zones such as those set out in Part 11 (1) - buffer areas in the Upper Hunter DCP. The subdivision will detract from the agricultural value of the Site and result in the fragmentation and alienation of resource land.
4. The Council submitted that if the Court rejects the expert evidence of Mr Fryer and Mr Hamilton and accepts the Applicants' interpretation of cl 4.2A(3) that development consent must not be granted because the Court cannot be satisfied of the matters listed in Clause 4.2A(4). In short, the evidence of Mr Hamilton, Mr Fryer and Mr Johnson is that the subdivision will adversely affect the use of surrounding land because it will interfere with existing water entitlements for the agricultural use of adjoining land and require existing water entitlements to be renegotiated and applied for and protected by some form of easement/ covenant precluding approval of any other permissible use: cl4.2A (4) (a).
5. Furthermore, the Council contends that the Court could not be satisfied based on the evidence of Mr Fryer that the subdivision is necessary for the ongoing operation of the permissible use. The evidence is that Applicants have clearly states in their DA to the Council that the purpose of the subdivision is to enable a 99 year lease between the owner and the adjoining land owners of land within proposed Lot 1. There is no evidence to suggest that the subdivision is necessary for the ongoing operation of the permissible use: cl4.2 A (4) (b). The Council also submits that the Court cannot be satisfied on the evidence of Mr Fryer and Mr Johnson that subdivision will not cause or increase rural land use conflicts in the locality (as discussed above at [37 ]-[38]).

The Applicants

1. The Applicants have prepared written submissions which mirror to some extent the matters raised in their Statement of Facts in Reply. It is the Applicants case that the Council's construction of 4.2A (3) requiring an existing development consent to be in existence before the subclause can be satisfied is an "irrational and absurd outcome" which should be avoided; Dobrohotoff v Bennic [2013] NSWLEC 61; 194LGERA17 at [34-].
2. The Applicants contend that the term development consent as used in the clause extends to development and uses which are not necessarily the subject of development consent under the EPA Act. It includes a reference to existing permissible uses which do not require consent such as agriculture. Having regard to its context in the LEP, the surrounding text and objectives of cl4.2A the Applicants submit that a proper construction of the subclause (3) is that the consent authority must be satisfied that the use of the land after the subdivision will be the same use as the current permissible use, and as permitted under the existing development consent for the land, if any. They submit that cl42.A is clearly focused on providing flexibility to meet the "needs of current permissible uses" other than for the purposes of dwelling houses or dual-occupancies and is not a subset or class of exceptions to the minimum lot size as suggested by the Council.
3. The Applicants contend that if the Court does not accept that interpretation of cl 4.2A (3) then they can rely on cl 4.2 - the general rural subdivision provision. According to the Applicants a proper interpretation of Clause 4.2(3) allows for a consideration of the use of the created lot in conjunction with other land holdings to satisfy the requirement that the subdivision be for the purpose of primary production. As indicated the Applicants contend that the opportunity to enter into a 99 year lease with the 'Carlisle' property guarantees the primary production purpose of Lot 1 irrespective of the fact that they accept the agricultural experts' assessment that such primary production is not viable on Lot 1 alone. They propose the imposition of a condition of consent for the registration of a positive covenant registered on the title of Lot 1 requiring the land to be used in conjunction with Lot 3 and 4 DP752476 and precluding approval of any other permissible use on the Lot. The purpose being to ensure the proper management of the land and the continued use of the land for the purposes of primary production.
4. The Applicants also suggest that the consent require relevant easements for water to be created from the Hunter River burdening proposed Lot 1 for the benefit of proposed Lot 2 and a restriction as the user to be registered on title prohibiting Lot 1 from the erection of a dwelling on the land or any other permitted use of the land. (Draft conditions 3 Exhibit 7).
5. Assuming the Court has power to approve the application either under cl4.2 or cl 4.2A (based on the Applicants interpretation of those provisions) the Applicant submits that the proposed subdivision will not change the use or intensify the use and will thereby have no adverse impact upon the surrounding land for agriculture: 4.2A(4) (a).
6. The ongoing operation of the permissible use in relation to Lot 1 is the lurcene crop farming undertaken on the land straddling the proposed Lot 1 and 'Carlisle' property and forming one cohesive farming holding. The subdivision is necessary because of the unique and peculiar circumstances of this case where the land owners have entered into contractual relations with each other requiring the granting and registering of a long term lease. The subdivision application is necessary in order for the long term lease to be registered.
7. According to the Applicants there will be no rural land use conflict in the locality generated by this application if approved. The Applicants reject Mr Fryer's expressed opinion that separate land ownership may cause or increase rural land use or potential conflict particularly when Lot 1 will have direct access to the River and water entitlements and without the owner of Lot 1 's permission and action such water entitlements may not necessarily continue to Lot 2 and Lot 211. The Applicants contend that the ownership of Lot 1 is irrelevant because Lot 1 will be subject to a lease to the owners of 'Carlisle' for 99 years. They argue that the Council unduly focuses on a conveyancing perspective of land instead of looking at how the land is actually and physically used.
8. Based on the following paragraph in the decision of Seraglio v Shoalhaven City Council [2017] NSWLEC 45 at [44]: The characterisation of the purpose of a use looks to the use actually, physically and lawfully being carried out on the land and asks what is the end to which that use of the land is seen to serve. The purpose describes the character which is imparted to the land at which the use is pursued: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534; Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 at [27]; Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107 at [51]. That task is to be performed by reference to the unit of land that is being actually, physically and lawfully used for the purpose.
9. the Applicants submitted at [Applicants written submissions 32] that Preston CJ's characterization of the use of two houses situated on one parcel of land supported an argument in this case that the lucerne crop farming straddling two different parcels of land owned by different parties could be considered as one use of the land. The submission at [32] of the AWS is as follows: "Preston CJ's words above would suggest that no matter what the nature and title of the land holding in a conveyancing sense the lucerne farm holding forms one unit of land for planning purposes. Viewing the lucerne farm holding as one unit of land and adopting Preston CJ's pragmatic and practical view of the land use, means that the application would not result in any change of land use at all, let alone cause or increase land use conflict in the locality".
10. The Applicants argue that the subdivision is appropriate having regard to the natural and physical constraints affecting the land because the proposed Lot 1 adjoins the 'Carlisle' property at its western boundary there has never been a fence there and it has always been assumed that it's part of the 'Carlisle' property. It is submitted that proposed Lot 1 shares much more in common with the 'Carlisle' property in terms of natural and physical features than it does with the residue of the lot across the road in Lot 2. The subdivision of the land combined with the registration of the 99 year lease of the proposed lot will have the practical effect of tying this part of the land to 'Carlisle' and ensuring that the existing use of the land is optimised.
11. With respect to fragmentation of the rural land - cl 8 of the Rural Lands SEPP the Applicants contend that from a planning perspective there is not going to be any fragmentation because proposed Lot 1 is going to be incorporated in the 'Carlisle' property via a 99 year lease and form one cohesive planning unit. With respect to its agricultural viability the Applicants contend that Lot 1 is not and will not be a standalone planning unit the combined effect of the subdivision and registration of the 99 year lease will ensure that proposed Lot 1 can continue to be farmed as part of the larger lucerne farming operation on 'Carlisle'. They rely on the comment made by their agricultural expert, Mr Ropa at paragraph 14 of his statement in this regard. All in all the Applicants are of the opinion that there will be no land use conflict caused because there will be no change to the existing land use by the creation of the proposed subdivision of Lot 1 and Lot 2 from Lot 212.

Consideration and Findings

1. As the parties agreed at the outset this case turns on the legal interpretation of the relevant provisions of the LEP.
2. It is an application to divide land into two parcels. The land in Lot 1 is currently used for the growing of lucerne which is a permissible use under the RU1 Primary Production zoning. The use does not require development consent and there is no development consent for the land. Dealing with the general subdivision of rural land provision in the LEP cl 4.2 I note that the objective of the clause is to provide flexibility in the application of standards for subdivision in rural zones to allow land owners a greater chance to achieve the objectives for development in the relevant zones. Rural subdivision under the clause applies to the zone RU1 Primary Production and zone RU4 Primary Production-Small Lot. The clause clearly states that land in a zone in which this clause applies may, with development consent, be subdivided for the purpose of primary production to create a lot of a size that is less than the minimum size on the lot size map in relation to the land. The focus of Clause 4.2 (3) is the lot created. The agreed position must be that the lot under consideration is Lot 1. The evidence is that the lot created (Lot 1) is not a viable agricultural lot in its own right (Exhibit 6 paragraph 2.1).
3. Relevantly, the subclause does not say the lot created "together with any other lot" be subdivided for the purpose of primary production. For that reason I cannot accept the Applicants' submission that in considering the subclause I can have regard to the fact that the land may be used under a 99 year lease for primary production with the 'Carlisle' property. Such an interpretation imports words into the development standard which are missing. Moreover, that interpretation is dependent on the 'Carlisle' property being retained by the Hayne family and the lease not being varied in the future or extinguished or Lot 1 being approved for another permissible use. In my assessment this is an absurd interpretation of the provision. I do not believe that the decision of Seraglio is of any assistance to the Applicants position on the facts of this case in this appeal.
4. In the alternative, the Applicants rely upon cl 4.2A to justify an approval of these undersized Lots. Relevantly the objective of this clause is "…to enable the subdivision of land in rural areas to create lots of an appropriate size to meet the needs of current permissible uses other than for the purpose of dwelling houses or dual occupancies."
5. While the clause applies to the land at issue to enable the creation of a lot of a size that is less than the minimum size shown on the lot size map it is clearly only for certain types of rural subdivisions. It can only be relied upon if I am satisfied that the use of the land after the subdivision will be the same (other than a dwelling or a dual occupancy) permitted under the existing development consent for the land. Again the words are clear the sub clause does not add the words "if any" as submitted by the Applicants.
6. As the Council contends this clause states that it clearly relates to that class of rural subdivisions with existing development consents. I cannot accept the Applicants submission that the Council's construction of cl4.2A (3) is wrong. While it is true that there are many kinds of developments for which consent is not required including a vast array of existing uses which would otherwise be developments requiring consent but for the provisions of Part 4, Division 10 of the EPA Act and also development which does not need consent and development that is prohibited the clause makes no mention of these matters. This clause is directed to the use of land permitted under the existing development consent. The fact is that the use of land at issue in this case is not one that is permitted under development consent. Therefore, it cannot in my opinion fall into that category of land caught by cl 4.2A. The land has no development consent.
7. I am of the opinion the Council is correct. The Applicants must use cl 4.2 to achieve an undersized lot subdivision in the circumstances of this case and they cannot rely on cl4.2A as there is no development consent. There is nothing irrational or absurd about the Council's interpretation and the outcome of such an interpretation.
8. Despite that finding even assuming I am wrong and the Applicants interpretation of cl 4.2A is to be preferred the evidence of Mr Fryer and the Applicants' planner Mr Casson is that without a 99 year lease and the imposition of easements and restrictive covenants on a DA consent an approval of this subdivision will adversely affect the use of the surrounding land. It will cut off Lot 2 from the direct access to the river and existing water entitlements. It will cause fragmentation of rural land. As Mr Fryer said the proposed development seeks to subdivide off 1.6ha of land that is adjacent to the river and is more fertile than the remaining land. I accept Mr Fryer's expert assessment that the subdivision will detract from the agricultural value of the Site and result in the fragmentation and alienation of resource land. The subdivision offends cl 8 of the Rural SEPP. If approved, this application cannot be said to minimise rural land fragmentation. The evidence demonstrates that proposed Lot 1 will not have the carrying capacity to support sustainable and productive agriculture. The subdivision is as Mr Fryer states in his evidence contrary to the zone objectives which I am required to have regard to in my assessment of this DA.
9. Furthermore, by the Applicants own admission this application is not necessary for the ongoing operation of the permissible use (cl 4.2A (4) (b)). The evidence is that the DA was lodged solely to facilitate a lease arrangement with the adjoining owners. The DA form says as much. I cannot be satisfied after a view of the Site and based on my understanding of the evidence that this subdivision will not adversely affect the use of the surrounding land for agriculture. In my opinion, after assessment, it will. I accept Mr Fryer's assessment that if subdivided and sold, there is no guarantee that proposed Lot 1 will be used in conjunction with adjacent land to facilitate viable agricultural production.

Conclusion

1. Accordingly, I find that I do not have power under cl 4.2 or cl 4.2A to permit this subdivision of land. And, even if I did I am not satisfied of the matters in cl 4.2A (a) and (b) and on that basis the application cannot be approved. Accordingly, the Court orders;
2. The Appeal is dismissed.
3. The exhibits are returned. ………………………………. Commissioner Dixon

Amendments 02 June 2017 - Typographical errors 02 June 2017 - Typographical errors 06 June 2017 - Typographical error 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: 06 June 2017