Hood Rural Resources Pty Ltd v Bathurst Regional Council

Hood Rural Resources Pty Ltd v Bathurst Regional Council - [2009] NSWLEC 1366 - NSWLEC 2009 case summary — Zoe

[13]

8 The aims of the BRILEP 2005 are: 2 Aims of plan (1) The aims of this plan are as follows: (a) to provide interim or transitional planning controls for the local government area of Bathurst Regional, (b) to facilitate the orderly and economic development of land, (c) to promote the well-being of the community of Bathurst, (d) to promote and strengthen the role of Bathurst as a regional centre, (e) to enhance the environmental qualities of the area, (f) to allow detailed provisions to be made to control development by means of development control plans. 9 Clause 6(3) of the BRILEP 2005 provides: (3) Consent must not be granted to the carrying out of development within a particular zone unless the consent authority has taken the objects of the zone into account and: (a) is satisfied that the proposed development is consistent with one or more of those objects, or (b) if the proposed development is development of the kind that is identified by this plan as usually not consistent with those objects - is satisfied that, in the particular circumstances of the case, it is appropriate that the proposed development be carried out. 10 The objectives of zone 1(e) Outer Rural Zone are: 1 Objectives of zone (1) The objectives of the zone are as follows: (a) to support and maintain the continued viability of agricultural development in rural lands located in the outer rural areas of the local government area of Bathurst Regional, (b) to enable the carrying out of development that is appropriate for broad acre productive land used for grazing and cropping, (c) to protect and conserve the scenic environment by controlling the location of buildings and materials used, particularly in respect of development adjacent to a major road or located within a scenic protection area or within an identified remnant bushland area, (d) to protect and conserve valuable deposits of minerals, coal, petroleum and extractive materials by controlling the location of development to enable the efficient extraction of those deposits. 11 The objectives of zone 1(f) Special Rural Small Holdings Zone are: 1 Objectives of zone (1) The objectives of the zone are as follows: (a) to promote development of the land for rural residential or hobby farm development, (b) to ensure that lots created are of an appropriate area and size that enables the provision of an adequate water supply, enables effective disposal of domestic waste and does not adversely affect water quality, (c) to ensure that development is sensitive to the environmental characteristics of the land, (d) to minimise the cost to the community of providing, extending and maintaining public services and amenities, (e) to ensure that rural small holdings do not adversely impact on agricultural activities in the locality, (f) to permit development for a range of purposes that are compatible with the environmental capabilities of the land and that are unlikely to adversely affect land water quality for other development in the vicinity or create unanticipated demands for service infrastructure. 12 Clause 27 provides: 2 7 Subdivision - rural zones (1) The consent authority must not consent to an application for consent to subdivide, for the purposes of agriculture, land within one of the zones specified in the Table to this subclause unless each of the lots to be created by the proposed subdivision will have at least the minimum area set by the Table for a lot in the zone concerned.

[16]

Standards: + All buildings shall be erected within the designated buildings envelopes as approved by Council at the subdivision stage of the development. + Building sites should be located on higher ground to avoid problems associated with seepage and low bearing capacity soils within drainage lines. + Buildings will not be permitted in waterlogged areas. + All buildings are to be located a minimum of 30 metres from any boundary. + Buildings are to be located where there will be minimal disturbance to the existing native habitat and tree cover. All development applications are to address the number of trees to be removed and the extent of clearing to be undertaken. 15 Part 4 of the DCP addresses Conservation and Landscaping, and provides: Objectives : Development is to be undertaken in a manner that: a. retains as much as possible of the existing habitat and preserves the scenic amenity of the area, b. preserves the existing creek habitat and provides a buffer against possible pollution, c. maintains/creates vegetation corridors to help link native habitats, and d. minimizes erosion. Standards: + Maximum tree cover is to be maintained. Tree cover removal other than for building and road construction purposes or for fire protection and fencing is to be avoided. (Note that a tree preservation order applies to the land) + All buildings and associated structures (e.g. water tanks, tennis courts etc) are to be landscaped to effectively screen the development. A Landscape Plan is to be lodged and approved by Council. + No vegetation, except for exotic species or with the consent of Council, is to be cleared within 50 metres of Eusdale and Diamond Swamp Creeks. + An area of native vegetation, not less than 10 metres wide, is to be maintained or created, with vegetation native to the area, within each dwelling allotment. + All walking, riding and fire trails are to be managed to prevent soil erosion and minimize runoff and sediment flows during and after construction. A soil and water management plan is to be lodged with the development application in accordance with Council's guidelines. 16 Included with the DCP is a map dated 20 April 2005 which shows the land identified as "Special Rural Small Holdings" corresponding with the land zoned 1(f); "Outer Rural" land corresponding with the land zoned 1(e), with cross hatching on the land now Lot 46 in DP 270159, and the notation "Dwelling Prohibited". This map is Annexure B. Previous planning controls 17 Before the coming into effect of BRILEP 2005, the applicable planning controls were those imposed by the Interim Development Order No 1 - Shire of Evans (the Evans IDO). The Evans IDO was amended by Evans Local Environmental Plan No 11 (gazetted 7 June 1996) to permit the Mount Haven Estate community scheme to be developed. The aims of the amendments as set out in cl2 of the Evans LEP No 11 were: (a) to rezone certain land for rural small holdings development; and

[31]

Clause 31 BRILEP 2005 29 The first contention of the Council is that the Court does not have power to grant the application because cl31 of BRILEP 2005 provides that the consent authority must not consent to an application for consent to subdivide unless the subdivision is created under the provisions of the CLD Act, and it is not intended to create the subdivision under the provisions of that Act. The Council's submissions on these issues were: -The land the subject of the development application is Lot 46; Lot 46 includes 1(f) land, and the 1(f) land is therefore included in the subject matter of the development application. As a consequence of the proposed subdivision the 1(f) land is severed from Lot 46, separated from Lot 46, and then forms parts of other lots. The fact that any individual component of 1(f) land is not itself divided is entirely irrelevant. Clause 31 applies to 1(f) land. 1(f) land is part of the land the subject of the subdivision application, being excised from the present Lot 46 and becoming part of another proposed lot. -The reference in cl31(2) to subdivision under the provisions of the Community Land Development Act must be given effect, relying on Commonwealth v Baume (1905) 2 CLR 405. The reference to community title is the manner in which the subdivision is to be carried out; it is not a gloss on the language but an essential element of the nature of subdivision which is permissible pursuant to cl31. That which requires development consent, namely the carrying out of the subdivision involving 1(f) land, must be done in a certain way - pursuant to the Community Land Development Act. The present application is an application for subdivision pursuant to the Real Property Act for an ordinary Torrens title subdivision because the plan itself is intended to be registered in order to create an easement pursuant to s88B of the Conveyancing Act. The Council relies on the decision of Lloyd J in Ben-Menashe v Ku-ring-gai Municipal Council (2001) 115 LGERA 181 to support its argument that a subdivision pursuant to the Real Property Act is the only way in which a division of land can be effected in the circumstances of this application. 30 The Council submits that even if there is power to consent to the application, the proposal does not comply with the provisions of cl31 relating to lot numbers and the farm lot.

[33]

33 In response to the second part of the Council's argument on this issue, the Applicant submits: -Lot 46 is a "community development lot" as defined in s3 of the Community Land Development Act . In substance, it is a lot on which development will take place, and that development may be subdivision. In common with lot 46, any new lots created by subdivision will be lots within the Community Scheme. The relevant community scheme was created when DP 270159 together with the community management statement was registered. The community management statement includes no prohibition on the further subdivision of lot 46. Each new lot created by the registration of a community plan of subdivision in relation to lot 46 will itself be a " community development lot" within the definition in s3 of the Community Land Development Act . -If cl31 applies, registration of a subdivision under the Community Land Development Act will be a second step; the reference in the Statement of Environmental Effects to the Community Land Development Act indicates that it was never the applicant's intention to take this out of the Community Land Development Act process. 34 Both parties relied on the statement by Jagot J in Matic v Mid Western Regional Council [2008] NSWLEC 113 of the relevant principles of construction which apply when considering the provisions of a local environmental plan: 7 The meaning of a provision in an environmental planning instrument must be determined having regard to its context and purpose ( Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 at [37] - [46] and [63]; s 33 of the Interpretation Act 1987). "Context" has a wide scope and may include the "mischief which…one may discern the statute was intended to remedy" so that, by this method, an alternative construction to the literal meaning may be preferred if it is "reasonably open and more closely conforms to the legislative intent" ( CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408).

[36]

9 These requirements have particular significance for the construction of environmental planning instruments. The planning purpose of an environmental planning instrument is to be determined by reference to the language of the instrument considered in context. There is no room for "some preconceived general notion of what constitutes planning" ( Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30 at [56] citing Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 at 500). Further, and as noted in Calleja v Botany Bay City Council (2005) 142 LGERA 104 at [25] "any attempt to always find planning logic in planning instruments is generally a barren exercise". 10 The Council's submissions did not recognise the primacy of the text of the LEP. Instead, the Council called in aid the objectives of the LEP and the zone, and a particular view about the historical function of concessional lots in a rural context, to support its position that the applicant's argument was inconsistent with the planning policy of the instrument. There are numerous difficulties with this approach. 35 Both parties referred to the decision of Bignold J in Sealark Pty Ltd v Shoalhaven City Council (2000) 109 LGERA 263 which was upheld by the Court of Appeal (by majority) on appeal: Sealark Pty Ltd v Shoalhaven City Council [2002] NSWCA 39. Sealark was an appeal from refusal of consent for subdivision of a site of 33.63 ha, some 18ha of which was zoned residential 2(c) and the other 15.63ha was zoned rural 1(d) under the applicable LEP. The subdivision application proposed to create seven lots within that part of the site was zoned Rural 1(d) and one lot in respect of that part of the site zoned Residential 2(c). The relevant provision in the LEP was cl11, subclause (4) of which relevantly provided: (4) Subject to sub clauses (5) and (6), the Council may consent to an application to subdivide land within Zone No. … 1(d) (not being land which forms the whole or part of an existing holding of less than 10 hectares in area) for any one or more of the following purposes: (a)… (b) to create an allotment of not more than 2 hectares but not less than 1 hectare if - … 36 At paragraphs 21 and 22 of his judgement, Bignold J held: In my judgment, it is manifestly clear that the Applicant has not demonstrated that cl 11(4) of the LEP empowers the Council to grant consent to the Applicant's proposed subdivision. There are a number of reasons for so concluding which are essentially founded upon two factors indisputably established in the present case - (i) the fact that the land to be subdivided comprises a single land unit situate partly within the Rural 1(d) zone and partly within the Residential 2C zone, and forming a small part of two existing holdings; and (ii) the fact that the vast majority of the area of land comprising each of the "Wandandian" and "Neale" existing holdings is zoned Residential 2C (having been so zoned since the LEP came into force in 1985). 22. Factor (i) creates, in my judgment, insuperable difficulties for the Applicant's proposed subdivision. Firstly, it means that the Applicant's development application is not the subdivision of land within Zone No 1(d) (as it obviously includes land within the Residential 2C zone). Secondly, it means that it is wholly artificial to say at the present time that the land to be subdivided is part of two existing holdings, even though it is possible by tracing back to the historical date, 28 February 1964, to identify part of the land as forming part of the "Wandandian" existing holding and part of the "Neale" existing holding. 37 On appeal, Meagher JA (in dissent) held: As far as the first reason is concerned, it is of course true that the appellant's land is a single unit with two different zonings affecting it, but why that should matter I cannot see. The power to subdivide conferred by clause 11(4)(b) is a power to subdivide "land".. within a 1(d) zoning, not a power to subdivide land units which are wholly zoned 1(d). In other words, his Honour is reading into clause 11 a requirement which does not exist. The second reason is equally untenable: clause 11 clearly permits the subdivision of each parcel of land which is "wholly or partly" an "existing holding".

[41]

(1) For the purposes of this Act, subdivision of land means the division of land into two or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition. The division may (but need not) be effected: (a) by conveyance, transfer or partition, or (b) by any agreement, dealing, plan or instrument rendering different parts of the land available for separate occupation, use or disposition. (2) Without limiting subsection (1), subdivision of land includes the procuring of the registration in the office of the Registrar-General of: (a) a plan of subdivision within the meaning of section 195 of the Conveyancing Act 1919, or (b) a strata plan or a strata plan of subdivision within the meaning of the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986. Note. The definition of plan of subdivision in section 195 of the Conveyancing Act 1919 extends to plans of subdivision for lease purposes (within the meaning of section 23H of that Act) and to various kinds of plan under the Community Land Development Act 1989. (3) However, subdivision of land does not include: (a) a lease (of any duration) of a building or part of a building, or (b) the opening of a public road, or the dedication of land as a public road, by the Crown, a statutory body representing the Crown or a council, or (c) the acquisition of land, by agreement or compulsory process, under a provision of an Act (including a Commonwealth Act) that authorises the acquisition of land by compulsory process, or (d) a division of land effected by means of a transaction referred to in section 23G of the Conveyancing Act 1919, or (e) the procuring of the registration in the office of the Registrar-General of: (i) a plan of consolidation, a plan of identification or a miscellaneous plan within the meaning of section 195 of the Conveyancing Act 1919, or (ii) a strata plan of consolidation or a building alteration plan within the meaning of the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986. 46 Lot 46 includes what can be regarded as five "islands" of 1(f) land, physically connected to the remainder of the 1(f) land which makes up that part of the community development constituted by the hobby farm lots and community lot, but separated from each other in the "farm lot" which is otherwise constituted by land zoned 1(e). Proposed lots 62 and 64 are wholly within the 1(e) zone. Proposed lot 60 contains two "islands" of 1(f) land; proposed lot 61 also contains two "islands", and proposed lot 63 contains one "island" of 1(f) land.

[42]

47 We agree with the Applicant that Sealark is of limited assistance. Clause 11 in that case applied to land "within" the relevant zoning; and a similar expression is used in cl31 of BRILEP 2005. The circumstances in Sealark were unusual, however: that part of the land the subject of the application that was zoned 2(c) was itself the subject of an approved subdivision creating residential lots that had not been implemented by registration; Foster AJA described (at [38]) the proposal as being "totally artificial", seeking to re-establish the boundary line by calling afresh on the general subdivision provision in cl10 of the planning instrument as a preliminary step to the subdivision of the remaining land zoned 1(d) in purported reliance on cl11. While noting that the proposition that the council had a composite power to approve the application did not appear to have been put to Bignold J, Foster AJA was in agreement with Bignold J that cl11 did not apply where the land the subject of the application was partly rural and partly residential, and concluded (at [39]) that the provisions of cl11 applied "only to lands having the zonings referred to in the clause itself". Sealark did not present the same question as that arising in these proceedings, as the larger parcels of both the 2(c) and 1(d) were each proposed to be divided. 48 Section 4B of the Act requires that there be a "division of land into two or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition". No individual component of 1(f) land within the boundaries of the "farm lot" will be itself divided. The Council submits that the proposal involves the "division" of the 1(f) land by separation of the five "islands" of 1(f) land from each other and incorporation of those "islands" of 1(f) land into five new lots. In our view this is an artificial construction. None of the separate pieces of 1(f) land are to be divided in the sense used in the definition in s4B of the Act. There is no subdivision of "land within Zone No 1(f)", and accordingly, there is no application for consent to subdivide land to which cl31 applies.

[48]

55 The Council's Contentions 3, 4 and 5 relate to the application of cl31, on the assumption that it does not prohibit the development, on the following basis: the proposal does not comply with the prescriptive measures in cl31(2) (relating to the number and description of lots and the requirement that the "farm lot" have an area of not less than 480ha); there is no SEPP No 1 objection to the application of those development standards; and if there were, it would not be well founded. In his Statement of Evidence Mr Denyer considers whether a SEPP No 1 objection to the operation of cl31 would be well founded, and concludes that, based on the history of the provisions relating to the development of the Mount Haven Estate, it would not. In the Joint Report Mr Denyer considers the SEPP No 1 objection to compliance with the 100ha minimum lot area development standard in cl27, and concludes that it is not well founded. Mr Denyer argues that the non-compliance is the result of part of the land being zoned 1(f); the 1(f) zone is subject to different objectives to the 1(e) zone as it is aimed at promoting development for rural residential purposes; and it is therefore inappropriate to include this part of the land to satisfy the objectives of the 1(e) zone. Mr Denyer relies on the history of the development of Mount Haven Estate to support his conclusion that the SEPP No 1 objection is not well founded. 56 In oral evidence Mr Denyer agreed that the residential development potential of the 1(f) land contained within Lot 46 has been fully utilised, except that there was potential under cl31 for one dwelling house. Mr Denyer agreed that a lot of 100ha would be viable for agriculture and would meet the objective of the 1(e) zone; and that a lot with some 1(e) and some 1(f) land, without a dwelling, could fulfil an agricultural purpose. On that basis, Mr Denyer agreed that it would not be inconsistent with the objectives if 1(f) land on which a dwelling could not be built were used for farming, and accepted on that approach that the combination of 1(e) and 1(f) land could satisfy the underlying objectives of both the 1(e) and 1(f) zones.

[49]

57 Upholding the SEPP No 1 objection is a precondition that must be satisfied before the proposed subdivision can be assessed on its merits: Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79; Wehbe v Pittwater Council (2007) 156 LGERA 446. The onus is on the Applicant to satisfy us that the objection is well founded: Wehbe at [38]. The approach to be adopted to consideration of whether the SEPP 1 objection should be upheld is set out by Lloyd J in Winten at [25]-[26]: 25. The judgment of Cripps J in Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported) has been described as a classic statement of the approach to be taken when considering an objection under SEPP 1 (see, for example, the judgment of Talbot J in Memel Holdings Pty Limited v Pittwater Council (2000) 110 LGERA 217 at 220). In the Hooker Corporation case Cripps J said (at 6): It has been established by a series of decisions in this Court that generally in order to maintain an objection that compliance with a standard is unreasonable or unnecessary, it is first necessary to discern the underlying object or purpose of the standard. To found an objection it is then necessary to satisfy the Court that compliance with the standard is unnecessary or unreasonable in the circumstances of the case. Although the court has urged a generous application of SEPP No. 1 and has repeatedly declined to attempt exhaustively to define the limits of the dispensing power and, in particular, what is embraced by the expression "circumstances of the case", it is now established that it is not sufficient merely to point to what is described as an absence of environmental harm to found an objection. Furthermore, the objection is not advanced, in my opinion, by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a purpose. ... Furthermore it is now established that although the discretion conferred by SEPP No. 1 is not to be given a restricted meaning and its application is not to be confined to those limits set by other tribunals in respect of other legislation, it is not to be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan making procedures set out in Part III of the Environmental Planning and Assessment Act. 26. In applying the above-mentioned judgment, it seems to me that SEPP 1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EP&A Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection is well founded? In relation to the fourth question, it seems to me that one must also look to see whether a development which complies with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case .

[51]

59 The aims of SEPP No 1 are stated in cl3, and are to provide flexibility in the application of planning controls operating by means of development standards in circumstances where strict compliance would be unreasonable or unnecessary or tend to hinder the attainment of the objects in s5(a)(i) and (ii) of the Act. Those objects are: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, 60 The Applicant's argument that strict compliance is unreasonable or unnecessary is based on the proposition that the objectives of the 1(e) zone are achieved by including 1(f) land, which has similar agricultural potential to the 1(e) land, so that each proposed lot meets the 100ha minimum area. The rationale of the proposition that the objectives of a development standard can be achieved notwithstanding non-compliance with the standard was described by Preston CJ in Wehbe in the following terms: 43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served). 61 We agree with Mr Denyer that a consideration of whether strict compliance is unreasonable or unnecessary because of the inclusion of 1(f) land in three of the proposed lots has to be made in the context of the development of Mount Haven Estate, and in particular, how part of the land included in the community scheme came to be zoned 1(f), and its relationship to the 1(e) land.

[53]

63 An Application for Rezoning and Proposal for Development prepared by the Applicant in 1991 (Ex 4, p281) proposed the development of the land as a Rural Residential Subdivision, the result of which would be (at p301): -to provide an ideal homespace enabling 48 families to experience rural life -to improve the agricultural production of the land 64 The initial proposal was based on the continuation of the farm aspect of the development, stating that "the current grazing lands will remain intact permanently without threat of re-subdivision" (p303), and stating that very little land suitable for agriculture would be impinged upon (p319). A Local Environmental Study prepared in 1993 noted that NSW Agriculture accepted the concept of creating a Rural Small Holdings estate using some of the less agriculturally productive land while maintaining most of the more productive land in agricultural production, subject to some concerns about measures to avoid conflict between the agricultural and residential activities. Correspondence between the then Evans Shire Council and the Department of Planning during the process of rezoning to create the 1(f) land confirms the intention that the farm lot would not be further subdivided. A letter dated 3 April 1994 from the Department (Ex 4, p 531) notes Mr Hood's intention that all the land that would become the farm lot would remain Rural 1(a), and suggests as an alternative the zoning of this land as 1(c) with hatching to ensure that dwellings are not permitted. A letter dated 20 December 1995 from the Department (Ex 4, p535) notes the need to ensure that a DCP proposed to be in place at the time of gazettal of the Evans LEP No 11 "would need to reflect Clauses 30(3) and (5) of the draft plan regarding no further subdivision of any land, including the farm lot, and that the farm lot does not permit any other dwellings". A letter dated 4 June 1996 (Ex 4, p536) advising of the making of Evans LEP No 11 rezoning what is now the 1(f) land as 1(c) notes: The development potential within the 1(c) zone in this plan is related to the agricultural and environmentally constrained 1(a) land surrounding it being protected. Consequently, it is essential that the 1(a) zone remain part of the whole Community Title development and be covered in the appropriate Management Plan. 65 It is clear from this correspondence that the approval of the small rural residential lots was contingent on the retention of higher value agricultural land as a farm lot, and that this included a restriction on the erection of dwelling houses on the land other than in the rural residential lots. This approach was based on input from the Department of Agriculture, which included detailed consideration of the agricultural productivity of all the land included in the community scheme. This approach aimed at ensuring proper management of resources including agricultural land, and orderly and economic us of the land within the community scheme. We are satisfied that this approach reflects, and promotes, the attainment of the objects in s5(a)(i) and (ii) of the Act.

[58]

71 State Environmental Planning Policy (Rural Lands) 2008 (the Rural Lands Policy) applies to the site. The aims of this Policy are: (a) to facilitate the orderly and economic use and development of rural lands for rural and related purposes, (b) to identify the Rural Planning Principles and the Rural Subdivision Principles so as to assist in the proper management, development and protection of rural lands for the purpose of promoting the social, economic and environmental welfare of the State, (c) to implement measures designed to reduce land use conflicts, (d) to identify State significant agricultural land for the purpose of ensuring the ongoing viability of agriculture on that land, having regard to social, economic and environmental considerations, (e) to amend provisions of other environmental planning instruments relating to concessional lots in rural subdivisions. 72 Clause 10 of the Rural Lands Policy applies to land in a rural zone, a rural residential zone, or an environment protection zone, and identifies matters to be taken into consideration in determining an application for approval for subdivision of land proposed to be used for the purposes 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). 73 The Rural Lands Policy commenced on 10 May 2008, after the development application the subject of these proceedings was lodged. Clause 23 provides: 23 Existing development applications

[62]

77 The provisions of Part 3 as in force before 1 July 2009 continue to apply to the draft Amending LEP: cl12 of the Regulation. There is no transitional provision provided for s79C(1)(a)(ii), and there is no definition of "proposed instrument". The Applicant argues that s79C(1)(a)(ii) in its amended form does not require consideration of the "planning proposal", rather the "proposed instrument"; the "proposed instrument" only exists at the penultimate stage of the new plan making provisions, when the Director-General makes arrangements for the drafting of the LEP; and this is at a much later stage in the preparation of an LEP than was the case with the previous scheme of Part 3 of the Act. The Applicant submits that s79C(1)(a)(ii) requires consideration only of an LEP that has reached an appropriate stage of maturity, and that will be either a "planning proposal" that has gone through the gateway, been subject to community consultation and in relation to which the LEP has been drafted by Parliamentary Counsel, or, where an LEP has been prepared pursuant to the former regime, once it has been made. The Applicant relies both on the wording of s79C(1)(a)(ii), which does not in terms require consideration of a "planning proposal", and on the transitional provisions of cl12(5) of the Regulation, which makes it apparent that a "planning proposal" includes a reference to a "draft Local Environmental Plan". The Applicant relied for support on the transitional provisions in cl12 of the Regulation, and on cl1 of Schedule 4 to the Regulation relating to the content of planning certificates, which requires the inclusion of the name of "each proposed environmental planning instrument that will apply to the carrying out of development on the land and that is or has been the subject of community consultation or on public exhibition under the Act". Subclause (4) provides that a "proposed environmental planning instrument includes a planning proposal for a LEP or a draft environmental planning instrument". The Applicant submits that in the absence of such an expanded definition, the term "proposed environmental planning instrument" would not include a draft environmental planning instrument.

[65]

80 The Applicant's approach does not distinguish between the various forms of draft, or proposed, LEPs. The draft Amending LEP is at one end of the spectrum, being an amending LEP addressing a specific issue and amending only one clause in the existing LEP. A "planning proposal" for a similar amending LEP proposed under the new plan making provisions in Part 3 would be required by s55(2)(a) and (b) of the Act to include a statement of the objectives or intended outcomes of the proposed instrument, and an explanation of the provisions to be included in the proposed instrument, and these would be in relatively certain terms. At the other end of the spectrum would be a proposed principal LEP intended to consolidate a number of existing planning instruments; a draft LEP that has been on public exhibition under the former provisions of Part 3 may still be the subject of significant amendments before it is in final form, and the "planning proposal" for such an instrument would of necessity be in general terms. An interpretation that required consideration of a proposed environmental planning instrument only after the stage of final drafting would be contrary to the purpose of a provision such as s79C(1)(a)(ii) which is intended to ensure that individual applications are considered in the context of both existing and future planning approaches. We agree with the Council that the absence of a transitional provision for s79C(1)(a)(ii) suggests that the drafter accepted that the new provision would have the same operation as the previous provision. Once a proposed instrument has passed the two threshold requirements of s79C(1)(a)(ii), namely, public consultation and notification to the consent authority, whether or not it has reached the penultimate stage of drafting before making if it is an environmental planning instrument for a local area, it is a "proposed instrument", and must be considered in accordance with s79C(1)(a)(ii). The stage which a "proposed instrument" has reached, and the extent to which its approach or likely provisions have been settled, would in our view be relevant factors to consider in determining how much weight to give it.

[66]

81 The weight to be given to a draft planning instrument was summarised by Mason P in Terrace Tower Holdings at [46]: The cases permit a consent authority to give weight to its perception of the likely (or unlikely) imminence of the relevant provisions of the exhibited draft instrument coming into force; or if it has in fact come into force, to treat it (draft though it is in its direct applicability) as if its provisions were "certain and imminent". 82 The principles for considering whether draft provisions are "certain and imminent" were summarised by Pearlman J in Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138: 33. Certainty and imminence of the making of a draft environmental planning instrument have long been applied in this Court as benchmarks for the attribution of weight in the consideration of a development application (see Balgownie Pty Ltd v Shoalhaven City Council (1980) 46 LGRA 198 at 202; Parramatta City Council v Takchi (Stein J, NSWLEC, 17 April 1996, unreported) and Davfast Pty Ltd v Ballina Shire Council and Anor [2000] NSWLEC 128, unreported). As to the certainty and imminence of the making of the Draft LEP, it is relevant to note that, not only was it placed on exhibition twice, but, according to Mr Czeref's evidence, submissions about the Draft LEP following its second exhibition were being considered, and it was intended to forward it in June to the Minister so that it could be made. There is no doubt in my mind that the Draft LEP will eventually be made, and to that extent it is certain and imminent, but its precise final form is not certain at this stage, for that depends upon any amendments made consequent upon submissions and amendments which might be required by the Minister. But those are matters of detail not of substance, and the planning approach which it adopts must in my opinion be regarded as certain to be brought into force within the reasonably foreseeable future. Hence I place significant weight upon its provisions in the assessment of the development application in this case. 83 The draft Amending LEP has been the subject of public exhibition, and meets the threshold requirements of s79C(1)(a)(ii). It has the support of the Department of Environment and Climate Change, on the basis that it is "a means to facilitate the existing settlement opportunities and to retain the original control of settlement intensification on the remainder of the estate" (Ex 4, p854); and the Department of Planning considers it to be of minor significance and consistent with relevant s117 Directions as it is reinstating previous provisions relating to the land (Ex 4, p 651). The Applicant referred to the Department of Planning Circular 30 (issued October 1997), which requires councils to include in information submitted to the Department as part of the LEP making process information on any development application which is under appeal and may be affected by the draft plan. The circular states that "in cases of inappropriate action" the Director General will consider revoking any delegations to council under the former s65 or s69 of the Act, and it does not purport to prohibit a council from responding to an application or an appeal by drafting an amending LEP.

[69]

86 Clause 31(2)(e) of BRILEP 2005 refers to the "farm lot and associated dwelling", and assumes that one dwelling house can be erected on the farm lot. Read in light of the drafting history outlined above, this cannot be read as intended to limit the location of a dwelling house to one of the "islands" of 1(f) land, but as enabling consent to be given for the erection of one dwelling house somewhere on Lot 46, which could equally be within the 1(e) zoned land. Any such dwelling would be permissible with development consent in either the 1(f) or 1(e) zone. Subclauses 31(4) and (5) of BRILEP 2005 deal only with land in the 48 dwelling lots (where a dwelling house is permitted) and the neighbourhood property and community property lots (where a dwelling house is not permitted). To the extent that the DCP purported to prohibit a dwelling on the land included in the "farm lot" entirely, it would be contrary to, and not be in conformity with, the BRILEP 2005: North Sydney Council v Ligon 302 Pty Ltd (No 2) (1996) 93 LGERA 23 at 31. However, to the extent that the restriction shown on the map is consistent with the intention to retain Lot 46 as a working farm lot as part of the development of the community scheme, it should be given some weight. 87 While the DCP incorporates by reference the provisions of BRILEP 2005 in the definitions of "community lot", "dwelling lot", and "neighbourhood lot", and does not refer in terms to the "farm lot", it is defined in section 1.4 to apply to all the land included in the community scheme, which includes the farm lot, and states that it "controls development" in respect of that land. We agree with the Applicant that the provisions in Part 2 relating to "dwellings" would appear to be focussed on the erection of dwellings on the 48 dwelling lots in the community scheme. Part 4 of the DCP deals with more generally with conservation and landscaping, and sets out objectives and standards for "development", in contrast to the more specific provisions relating to "buildings" in Part 2, "dwellings" in Part 3, and "roadworks" in Part 4. Those objectives include the retention of existing habitat, and maintenance and creation of vegetation corridors to help link native habitats. These issues were addressed in the evidence of Mr Mjadwesch, considered below.

[74]

95 Mr Mjadwesch estimated the extent of clearing that would be required, taking into account clearing for residential envelopes, access, and clearing along fencelines permitted as a "routine agricultural management activities" under the Native Vegetation Act 2003, and concluded that total clearing on lots 60 and 61 would be 2%; lot 63 3.4%, and lot 64 2.3%. The only clearing that would be considered statistically significant would be that for lot 62, in the order of 5.7%, in relation to which Mr Mjadwesch stated (in the joint report): These estimates provide that only proposed lot 62 has any potential to have a locally significant loss of vegetation, and most of this would be attributable to establishment of the public road as a major thoroughfare, and creation of a network of fire trails. 96 In his Statement of Evidence Mr Mjadwesch responded to the contention that the proposal had not included an assessment pursuant to s5A of the Act as to whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats. At pages 32-44 of his Statement of Evidence Mr Mjadwesch analyses the available information and concludes: The small size of the development precludes its having any potential to have a significant impact on threatened species/EEC values of the region. The capacity to manage and mitigate impacts which will occur, and to impose conditions via development control instruments, provide that in fact the development could create opportunities for conservation, and even benefit to the receiving environment, such that even locally threatened species and natural values will not be subject to ongoing and significant deleterious impacts. 97 In the joint report Mr Mjadwesch noted: The "No Significant Impact" conclusion of the Statement of Evidence is couched in terms whereby it would be expected that mitigation recommendations would be imposed/implemented, however this is specifically for impacts at a local level. The proposal (5 new lots) does not pose a risk of a significant impact on threatened species at a landscape scale, where many threatened species range widely or are widely distributed. 98 Mr Mjadwesch specifically addressed the issue of how development of proposed lot 64 would contribute to cumulative impacts of fragmentation of habitats, with reference to for example loss of woody debris, and connectivity of the Mt Tarana and Eusdale Nature Reserve. Mr Mjadwesch noted that Lot 64 is an important link between Mt Tarana and Eusdale Nature Reserve, and identified four ways in which proposed development of lot 64 could affect the lot, its habitat value, and connectivity of habitats occurring locally: (1) Constructing roads and building envelopes directly removes vegetation (2) Establishing asset protection zones and hazard reduced areas removes fuels and creates discontinuities in fuel between vegetation strata (3) Risk of predation (4) Fragmentation of habitat (removal of woody debris) 99 Mr Mjadwesch concluded that siting a construction envelope/dwelling "nested" against the northern boundary of lot 64 would minimise fragmentation arising from (1) and (2); creating a residential allotment with the potential for introduction of dogs and cats would expose native animals dispersing along the corridor to increased risk of predation; and widespread removal of woody debris would contribute to contraction of species such as the Brown Treecreeper.

[79]

Without limiting clause 17, a council must take the guidelines into consideration in determining an application for consent to carry out development on land to which this Part applies. 105 The Council submits that the guidelines referred to in cl10 are a mandatory relevant consideration and that there is no power to grant the application unless they have been considered. Mr Denyer referred in his Statement of Evidence to correspondence from the Department of Planning in April 1995 stating that previous fauna surveys in the area of the proposed development were insufficient to enable the Council to make an informed decision under the criteria of SEPP 44. Subsequent to this advice, Council engaged Brian Stone of Charles Sturt University to undertake an assessment of the site as proposed koala habitat. However, the area corresponding to proposed Lot 64 was not inspected on advice from Mr Hood. The report from Charles Sturt University received on 21 April 1995 concluded that the area investigated was "potential koala habitat" within the meaning of SEPP 44. On that advice, the Council commissioned another report from Charles Sturt University to determine if the site was "core koala habitat" as defined in SEPP 44. The advice from Charles Sturt University was that the site was not considered to be "core habitat" but potentially it could be used by migrating koalas. Mr Denyer contends that the report provided by Mr Mjadwesch did not provide any evidence that any further investigation of the site in relation to it being core koala habitat had been carried out, in particular as a significant part of the site had been excluded from the original investigations. He supported this contention by reference to the following passage in the report: Guidelines to application of the SEPP (Information Circular 35 - Dept Planning 1995 and Draft Guidelines DECC 1996) include methodologies to be applied to determine the presence of core habitat with certainty. This includes extensive and systematic (quadrat based) scat surveys, day and night searches and koala call playback. The timeframe for preparation of this advice precluded application of these methodologies to the site, so that while this advice provides us with a high degree of certainty that the site is not core koala habitat, this has not been determined according to standardised koala survey methodologies. 106 The Applicant submits that the guidelines are not binding, and that in any event Mr Mjadwesch had specifically addressed the issue of compliance with the guidelines and the Court should be satisfied, based on his evidence, that the land is not core koala habitat.

[91]

121 The development for which consent is sought is the subdivision of land into five lots, and the Applicant accepted that it needs to show that physical and legal access to the boundary of each proposed lot is possible. We accept that physical access is possible to each of the proposed lots. We accept the Applicant's submission that this application is an application in respect of the subdivision, and not for the construction of access roadways (Lyne v Moree Plains Shire Council (1999) 110 LGERA 120). The Applicant has provided copies of easements granted for services, and for rights of access over the community lot, including the land from the end of the open accessway to the boundary of proposed lot 63 (Ex E, sheet 25). We agree with the Applicant that this would not be a basis for refusal of the application. Existing consent 122 The Council contends that approval of this application would be contrary to a condition of the existing development consent for the subdivision granted 30 May 1997, and thus result in a contravention of the Act. Section 80(2) of the Act states: (2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development. 123 The Council submits that while a later development consent could be granted which is inconsistent with an earlier consent provided a condition is lawfully imposed requiring the modification of the earlier consent, in this case, the modification would not be within the power conferred by s96 of the Act as it would render the development as proposed to be modified substantially different from the development as approved. The Applicant submits that Rutland v Shoalhaven City Council (1997) 94 LGERA 370, on which the Applicant relied (subject to the proviso expressed by the Court of Appeal in Wingecaribee Shire Council v Pancho Properties Pty Ltd (2001) 117 LGERA 104), can be distinguished as there is in this case no condition expressly prohibiting further subdivision. We agree with the Applicant that the development consent granted in 1997 for the approval of Stage 1 of the development, which included the creation of "(d) One Farm Lot" would not preclude a later, otherwise permissible, development application in respect of the same land being considered. The significance of the 1997 development consent arises from its place in the planning approach that resulted in the rezoning to create the 1(f) land and the approval of the community scheme, and this has been considered above in the context of the SEPP No 1 objection and the public interest.

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