Mactier v Cabonne Shire Council

Lot D - Appeal No 2016/223430

1. Development Application No. 2016/82 was lodged with the council on 2 December 2015 and seeks approval for a single storey, four bedroom, brick dwelling. The property has an area of 17.35 ha and is Lot D in DP361332, Bulls Lane, Spring Terrace. Consent to the subdivisions to create lot D was granted by council on 9 December 1946 (Shire of Canobolas, Register of Subdivision Plan 358). The lots were created by the registration of a Plan of Subdivision identified originally as File Plan 361332; now DP 361332.
2. Lot D is rectangular in shape and is located to the east of the unformed part of an unnamed Crown Road. It is relatively cleared of native vegetation and may be described as grazing land.
3. Lot D adjoins and is to the north of Lot E. Vehicular access to both lots is to be provided via an unformed part of an unnamed Crown Road that runs off Bulls Lane, Spring Terrace. The dwellings would be serviced by an on-site sewage management system.

Relevant planning controls

1. Lot D and Lot E are currently zoned RU1 Primary Production under Cabonne Local Environmental Plan 2012 (LEP 2012) which commenced on 18 January 2013. Relevantly cl 4.2A states: 4.2A Erection of dual occupancies and dwelling houses on land in certain rural zones (1) The objectives of this clause are as follows: (a) to minimise unplanned rural residential development, (b) to enable the replacement of lawfully erected dual occupancies and dwelling houses in certain rural zones. (2) This clause applies to land in the following zones: (a) Zone RU1 Primary Production, (b) Zone RU2 Rural Landscape. (3) Development consent must not be granted for the erection of a dual occupancy or dwelling house on land to which this clause applies, and on which no dual occupancy or dwelling house has been erected, unless the land: (a) … (b) … (c) is a lot created under an environmental planning instrument before this Plan commenced and on which the erection of a dual occupancy or dwelling house was permissible immediately before that commencement, or (d) …
2. The dispute between the parties is whether Lot E and Lot D were 'created under an environmental planning instrument', in order to satisfy the first part of cl 4.2A(3)(c) of LEP 2012.
3. Cabonne Development Control Plan No. 5 (DCP 5) applies, as does State Environmental Planning Policy (Rural Lands) 2008 (SEPP RL).

The submissions

1. Mr To, for the council, submits that the subject lots were not 'created under an environmental planning instrument' for the reasons that firstly, there is no evidence that the lots were 'created' under an environmental planning instrument, such as the Town and Country Planning (General Interim Development) Ordinance - Ordinance 105 (Interim Development Ordinance) and secondly, there is no evidence that the applications for the subdivisions creating the lots were applications relying on the Interim Development Ordinance.
2. In accepting that council records no longer contain documents relating to the subdivision beyond the Clerk's Certificates, Mr To states that this is decisive because any finding of fact that the subject lots were 'created' under the Interim Development Ordinance would not be based on evidence, and would therefore be erroneous. That is because the 'Clerk's Certificates' do not disclose the genesis for the 'creation' of the subject lots.
3. Despite these reasons for submitting that the subject lots were not 'created under an environmental planning instrument', Mr To submits that a number of further observations can be made to support the council's position. It is not sufficient, for the purposes of engaging cl 4.2A(3)(c), to say that the Interim Development Ordinance presented an opportunity for approving the subdivision applications and thus the creation of the subject lots (via cl 7). That is because cl 4.2A(3)(c) mandates a finding that the lots were "in fact" created under an environmental planning instrument.
4. Mr To submits that there are therefore only two available explanations for the creation of the subject lots. Either they were created under Part XII of the Local Government Act 1919 (LG Act 1919) or they were created in the absence of any applicable planning controls, whether under the LG Act 1919 or the Interim Development Ordinance;
5. On the first possible explanation, Mr To states that the first environmental planning instrument regulating subdivision of the subject land was the Shire of Canobolas Interim Development Order No. 1 (IDO 1) which was gazetted on 24 January 1964. IDO 1 introduced a minimum lot size requirement of 40 ha (or 100 acres) through cl 11.
6. As at November/December 1946, the subdivision of land was regulated under Part XII of the LG Act 1919 (ss 323 - 340). The 'Register of Subdivisions' in respect of the subject lots identifies that they were created by certification under s 327 of the LG Act 1919. Section 327 is in Part XII of the LG Act 1919. Thus the act of 'creating' the subject lots occurred via the issue of the Clerk's Certificate under the LG Act 1919 and not under any environmental planning instrument.
7. Further, s 333 of the LG Act 1919 sets out the matters for consideration when assessing a subdivision application made under that Act. Subsection (j) referred to 'the provisions of any town planning or country planning scheme'. This did not and does not include the LG Act 1919 for a number of reasons. First, cl 7 related to 'special types of applications' (as the heading to the clause indicates). It was a savings provision which captured any proposed development where an application had been made (but not determined) at the time. Div 7 of Part XII of the LG Act 1919, applied to the subject land, and which, as a consequence of the proclamation of the Interim Development Ordinance, the development the subject of the application was no longer permitted. Clause 7 provided that, in those circumstances, the existing application was deemed to be application for permission to carry out such development (being the development referred to in cl 6), and that a separate application was not required to be made in order to seek that permission.
8. As the opening words of cl 7 make clear, any application for a subdivision is an application under the LG Act 1919, or alternatively (as the case may be) an application pursuant to an ordinance made under that Act (except an ordinance under Part XIIA - such as the Interim Development Ordinance). Therefore, the subdivision applications could only have been made under the LG Act 1919 and not under the Interim Development Ordinance or any other 'environmental planning instrument'. For the reasons outlined above, the subject lots were therefore 'created' under the LG Act 1919 and not under an environmental planning instrument. Nothing in cl 7 of the Interim Development Ordinance operates to alter that fact.
9. The second explanation for the creation of the subject lots is that they were created in the absence of any applicable planning controls, whether under the LG Act 1919 or the Interim Development Ordinance. In 1945, the introduction of Part XIIA of the LG Act 1919 was driven by a need to regulate the construction and planning of buildings, particularly in Sydney. Part XIIA did not relate to subdivision because Pt XII already regulated subdivision. In that context, s 333 did not relate to rural land (as the proviso in that section makes clear). Inferentially, it may therefore be observed that at that point in time, the subdivision of rural land (such as the subject lots) was not regulated at all. If that was the case, then the subject lots were not 'created' under an environmental planning instrument for the purposes of cl 4.2A(3)(c) of LEP 2012.
10. Accordingly, the erection of a dwelling on each of the lots is prohibited by dint of cl 4.2A of the LEP.
11. Mr Crennan, for the applicant, comes to the opposite conclusion. He submits that to meet the requirements of cl 4.2A(3)(c), it is necessary to show firstly, that that each lot was created under an environmental planning instrument before the LEP 2012 commenced; and secondly, that a dwelling house was permissible on each lot immediately before the commencement of LEP 2012. He notes that LEP 2012 does not define "environmental planning instrument" however the Definitions in s 4 of the EPA Act defines an "environmental planning instrument" to mean; an environmental planning instrument (including a SEPP or LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force.
12. Mr Crennan also submits that s 11 of the Interpretation Act 1987 is relevant and provides that: Words and expressions that occur in an instrument have the same meanings as they have in the Act, or in the relevant provisions of the Act, under which the instrument is made.
13. The savings and transitional provisions contained in Part 21 of Sch 6 to the EPA Act identify at cl 119 that a "'deemed environmental planning instrument' means "a former environmental planning instrument referred to in cl 2 of Sch 3 to the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 (Miscellaneous Planning Act 1979) and includes an instrument referred to in cl 3(2) of that Schedule ".
14. The Miscellaneous Planning Act 1979 defines a "former planning instrument" to mean "a prescribed scheme, an interim development order or the Interim Development Ordinance (Sch 3 cl 1). "A former planning instrument, as in force immediately before the appointed day, shall, subject to this Act have full force and effect according to its tenor and shall be deemed to be a deemed environmental planning instrument ".(Sch 3 cl 2).
15. The Interim Development Ordinance is a former planning instrument which is a deemed environmental planning instrument, which was in force, remains in force and is therefore an environmental planning instrument for the purposes of LEP 2012.
16. Clause 123 of the savings provisions continues the Interim Development Ordinance in force as a deemed environmental planning instrument. The Town and Country Planning Ordinance came into force upon the proclamation the Local Government (Town and Country Planning) Amendment Act 1945 (LG Amendment Act 1945), on 9 November 1945 which amended the LG Act 1919 to introduce Part XIIA and to amend the subdivision provision contained in s 333.
17. Part XIIA applied to municipalities, shires and to the City of Sydney by way of 342A(1)(a). The powers, authorities, duties and functions conferred and imposed upon a council under Part XIIA apply in respect of each area to the council of the area by way of s 342A(l)(b). Part XIIA provided for the preparation, approval and prescription of town and country planning schemes. Also on 9 November 1945, the Interim Development Ordinance was gazetted pursuant to the provisions of Part XIIA LG Act 1919 (ss 342S-342Z) and cited as the Interim Development Ordinance.
18. The amendment to s 333 LG Act 1919 made by s 4 LG Amendment Act 1945 inserted as a required consideration for an application for subdivision approval "the provisions of any town planning or country planning scheme" s 333(j). While subdivision is not included within the definition of "development" for the purposes of the Interim Development Ordinance, subdivision is introduced into the considerations of the Ordinance as a "Special type of application" under cl 7.
19. As enacted, cl 7 of the Interim Development Ordinance provided: 7. In any case where an application is made in pursuance of the Act (except Part XIIA thereof) or of an Ordinance made under the Act (except the said Part) for approval to erect a building or for approval of building plans, or for approval to open roads or subdivisions, and the council to which such application is made is an interim development authority shall, if such application is accompanied by such particulars, plans and drawings as are required in the case of an application for permission for development under this Part of this Ordinance, be deemed to be an application for such permission and shall be dealt with accordingly without the necessity of the applicant's making a separate application therefor; and any application for such approval which, on the date upon which the provisions of Division 7 of Part XIIA of the Act became applicable to such land, has not been determined by the council, and in respect of which such particulars, plans and drawings as are required in the case of an application for permission of the interim development authority are or have been supplied, shall be determined under and in accordance with the provisions of this Part of this Ordinance if the proposed development is not development which is permitted by this Ordinance.
20. Subject to compliance with the provisions of cl 7 of the Ordinance, a subdivision under the Part XII of the LGA 1919 is a consent under the Interim Development Ordinance and therefore the lots in such a subdivision are created under an environmental planning instrument.
21. Consequently, the subdivisions approved on 9 December 1946 that created Lot D and Lot E meet all the criteria of cl 7 of the Interim Development Ordinance as follows:-

• the application for subdivision was made pursuant to the Act (Part XII);
• The Shire of Canobolas was an interim development authority (defined in cl 3 of the Interim Development Ordinance to mean "the council of the Municipality or Shire in which the land proposed to be developed is situated... ";
• the approval and endorsement of the Clerk's Certificate identifies that the detailed plans for each of the two lots satisfied Council's requirements.
• Council records no longer contain documents relating to the subdivision beyond the Clerk's Certificates.
• on the evidence of the Council approval and the certification of the Shire Clerk under s327(2) LGA 1919, the application would be accepted to have been "accompanied by such particulars, plans and drawings as are required in the case of an application for permission for development... "

1. Accordingly, Lot E in DP 361331 and Lot D in DP 361332 were subdivision applications by way of Part XII of the LGA 1919 and by virtue of cl 7 of the Interim Development Ordinance were created under an environmental planning instrument, being the Interim Development Ordinance.
2. In relation to cl 4.2A(3)(c) of LEP 2012, Mr Crennan submits that prior to the introduction of LEP 2012, the land was subject to the provisions of Cabonne Local Environmental Plan 1991 (LEP 1991). Clause 18(l)(b)(iii) of LEP 1991 permitted a dwelling house on "an allotment created in accordance with a consent granted before the appointed day, being an allotment on which a dwelling could have been erected immediately before the appointed day".
3. LEP 1991 defined "appointed day" to mean the day on which the plan takes effect. Mr Crennan submits that it is uncontroversial that the approval for the subdivision in 1946 occurred prior to 16 August 1991 which was the date of commencement of LEP 1991. It is also evident that cl 18(1)(b)(iii) of LEP 1991 seeks to preserve a dwelling entitlement which existed prior to its enactment.
4. Prior to the commencement of LEP 1991, the subject land was governed by Cabonne Local Environmental Plan No 2 (as amended relevantly by Cabonne Local Environmental Plan No.3 (LEP No.3) and Cabonne Local Environmental Plan No. 8 (LEP No.8).
5. LEP No 2 commenced on 11 November 1983 and, relevantly was amended by LEP No 8 on 3 May 1988 which inserted cl 16(2) as follows:- "A dwelling house may, with the consent of Council, be erected on land to which this clause applies if the land - … (e) Is an allotment within the former Shire of Canobolas or the former Shire of Molong in a subdivision to which the Council consented before the appointed day."
6. The entitlement for a dwelling did not change under the provision as it formerly stood in LEP No 2 but was moved from cl 16(2)(d) to cl 16(2)(e).
7. The lots are located within the former Shire of Canobolas and therefore enjoy the benefit of cl 16(2) of LEP No 2 (as amended by LEP No 3 and LEP No 8 and as preserved by cl 18(1)(b)(iii) of LEP 1991).
8. The erection of a dwelling house on each lot was permissible immediately before the commencement of LEP 2012 so the requirements of cl 4.2A(3)(c) of LEP 2012 are met and the erection of dwellings on both lots is permissible with consent.

Findings - permissibility

1. The question of whether a dwelling house is permissible on Lot D and Lot E requires an understanding of a number of pieces of legislation. These are summarised below with a brief description of their relevance in this case:

• Local Government Act 1919 (LG Act 1919) - gazetted in 1919 - Div 2 New Roads and subdivisions (ss 323 - 328).
• Local Government (Town and Country Planning) Amendment Act 1945 (LG Amendment Act 1945) - gazetted 5 April 1945 - included town planning and country planning requirements into Part XII of LG Act 1919 for planning schemes (ss 342 A - 342AT).
• Town and Country Planning (General Interim Development) Ordinance - Ordinance 105 (Interim Development Ordinance) - gazetted on 9 November 1945 - included Part XIIA (ss 342S - 342Z) into LG Act 1919 and includes s 7 Special Types of Applications.
• Consent to the subdivisions to create lots D and E was granted by council on 9 December 1946.
• Environmental Planning and Assessment Act 1979 (EPA Act) and
• Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 (Miscellaneous Planning Act 1979) - provisions relating to deemed environmental planning instrument and former planning instrument.
• Shire of Canobolas Interim Development Order No. 1 (IDO 1) - gazetted on 24 January 1964.
• Cabonne Local Environmental Plan 1991 (LEP 1991) - gazetted on 16 August 1991.
• Cabonne Local Environmental Plan No.2 (LEP No.2) - gazetted on 11 November 1983.
• Cabonne Local Environmental Plan No.3 (LEP No.3) - gazetted on 24 January 1985.
• Cabonne Local Environmental Plan No.8 (LEP No.8) - gazetted on 3 June 1988.
• Cabonne Local Environmental Plan 2012 (LEP 2012) - gazetted on 18 January 2013.

1. In summary, the LG Act 1919 provided statutory controls until the Interim Development Ordinance came into force upon the proclamation of LG Amendment Act 1945 on 9 November 1945 which amended the LG Act 1919 by including Part XIIA and amending the subdivision provisions contained in s 333. Part XIIA applied to the sites by way of 342A(1)(a) and the powers, authorities, duties and functions conferred and imposed on a council under Part XIIA apply to the council by way of s 342A(1)(b). Part XIIA provided for the preparation, approval and prescription of town and country planning schemes. Also on 9 November 1945, the Interim Development Ordinance was gazetted pursuant to the provisions of Part XIIA LG Act 1919 (ss 342S-342Z) and provided the ability to approve a range of matters defined in the Interim Development Ordinance. IDO 1 was gazetted on 24 January 1964 and provided the planning scheme anticipated by the LG Amendment Act 1945. LEP 1991, LEP No.2, LEP No.3, LEP No.8 and LEP 21012 provided planning controls under the EPA Act
2. To meet the requirements of cl 4.2A(3)(c) of LEP 2012, it is necessary to establish firstly, that each in question lot was created under an environmental planning instrument before the LEP 2012 commenced; and secondly, that a dwelling house was permissible on each lot immediately before the commencement of LEP 2012.
3. In balancing the different submissions I agree with the conclusions reached by Mr Crennan. The significant difference between the submissions is the reference to the provisions in the Miscellaneous Planning Act 1979 relating to a "deemed environmental planning instrument".
4. The savings and transitional provisions contained in Part 21 of Sch 6 to the EPA Act provide, at cl 119, that : Division 2 Provisions consequent on Schedule 1 to amending Act 119 Definitions In this Division: deemed environmental planning instrument means a former environmental planning instrument referred to in clause 2 of Schedule 3 to the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979, and includes an instrument referred to in clause 3 (2) of that Schedule.
5. The Miscellaneous Planning Act 1979 defines former environmental planning instrument at Sch 3, cl 1 as: former planning instrument means a prescribed scheme or an interim development order or The Town and Country Planning (General Interim Development) Ordinance.
6. The Interim Development Ordinance is a former planning instrument which is a deemed environmental planning instrument, which was in force at the time of the approval of Lot D and Lot E. Clause 123(1) of Sch 6 of the EPA Act provides that the Interim Development Ordinance continues in force as a deemed environmental planning instrument where it states. 123 Continuation in force of deemed environmental planning instruments (1) All deemed environmental planning instruments that are in force immediately before the relevant commencement day continue in force and have effect according to their tenor. (2) …
7. Mr To is correct in stating that the Register of Subdivisions identifies that Lot D and Lot E were created under s 327 of the LG Act 1919 although the enactment of the Interim Development Ordinance on 9 November 1945 and not the LG Act 1919 applied to the proposed subdivision at the time of the approval of Lot D and Lot E on 9 December 1946. The absence of any documentation on the subdivisions beyond the Register of Subdivisions is unhelpful but not unexpected given that the approval was granted nearly 60 years ago. Mr Crennan helpfully provided an assessment of the applications under the provisions of cl 7 of the Interim Development Ordinance that led to his conclusion that the subdivisions to create Lot D and Lot E meet all the criteria of cl 7 of the Interim Development Ordinance, although it is not necessary to rely on this assessment to accept his overall conclusions.
8. While Mr Crennan may be correct in his consideration of cl 7 of the Interim Development Ordinance; it would be more appropriate, in my view, to accept that the decision to approve the subdivisions that created Lot D and Lot E have been properly made, particularly in the absence of any compelling reason to the contrary or a finding from a Court that this conclusion is unlawful. The reference to a "Clerks Certificate under Sec. 327of Act No.358" on the Register of Subdivisions cannot reasonably be seen to suggest that an assessment was carried out in accordance with this section in the absence of further evidence to support this proposition, particularly given that this was not the legally applicable planning assessment criteria at the time of consideration. It is a not a sufficient reason to refuse the subject applications. Rather, it would be more appropriate to conclude that the provisions of cl 7 of the Interim Development Ordinance have been properly considered and the approval is lawful.
9. For the reasons in the preceding paragraphs, I am satisfied that a subdivision under the Part XIIA of the LGA 1919 is a consent under the Interim Development Ordinance and therefore the lots in such a subdivision are created under an environmental planning instrument.
10. The requirement of cl 4.2A(3)(c) of LEP 2012 that the erection of a dwelling house on each lot was permissible immediately before the commencement of LEP 2012 was not raised as a contention by the council and given the submissions of Mr Crennan, I accept that there is no issue with this requirement.
11. Consequently, and pursuant to cl 4.2A(3)(c) of LEP 2012 both requirements in the subclause are met and the erection of dwellings on Lot D and Lot E is permissible with consent.

LEP 2012 aims, RU1 zone objectives and SEPP RL Rural Planning Principles and cl 10 Matters for consideration

1. The council maintains that the proposed development is inconsistent with the following aims of LEP 2012: 1.2 Aims of Plan (1) This Plan aims to make local environmental planning provisions for land in Cabonne in accordance with the relevant standard environmental planning instrument under section 33A of the Act. (2) The particular aims of this Plan are as follows: (a)… (b) … (c) to facilitate and encourage sustainable growth and development that achieves the following: (i) contributes to continued economic productivity, including agriculture, business, tourism, industry and other employment opportunities, (ii) allows for the orderly growth of land uses while minimising conflict between land uses within the relevant zone and land uses within adjoining zones, (iii) encourages a range of housing choices and densities in planned urban and rural locations that is compatible with the residential and rural environment and meets the diverse needs of the community, (iv) promotes the integration of land uses and transport to improve access and reduce dependence on private vehicles and travel demand, (v) …
2. The council also maintains that the proposed development is inconsistent with the following objectives of the RU1 zone: • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To encourage diversity in primary industry enterprises and systems appropriate for the area. • To minimise the fragmentation and alienation of resource lands. • To minimise conflict between land uses within this zone and land uses within adjoining zones. • …
3. Clause 2.3(2) provides that: The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
4. The council also maintains that the proposed development is inconsistent with the following Rural Planning Principles in cl 7 of SEPP RL: 7 Rural Planning Principles The Rural Planning Principles are as follows: (a) the promotion and protection of opportunities for current and potential productive and sustainable economic activities in rural areas, (b) … (c) recognition of the significance of rural land uses to the State and rural communities, including the social and economic benefits of rural land use and development, … (d) … (e) … (f) the provision of opportunities for rural lifestyle, settlement and housing that contribute to the social and economic welfare of rural communities, (g) … (h) ensuring consistency with any applicable regional strategy of the Department of Planning or any applicable local strategy endorsed by the Director-General.
5. Clause 10 0f SEPP RL states: 10 Matters to be considered in determining development applications for rural subdivisions or rural dwellings (1) This clause applies to land in a rural zone, a rural residential zone or an environment protection zone. (2) A consent authority must take into account the matters specified in subclause (3) when considering whether to grant consent to development on land to which this clause applies for any of the following purposes: (a) subdivision of land proposed to be used for the purposes of a dwelling, (b) erection of a dwelling. (3) The following matters are to be taken into account: (a) the existing uses and approved uses of land in the vicinity of the development, (b) whether or not the development is likely to have a significant impact on land uses that, in the opinion of the consent authority, are likely to be preferred and the predominant land uses in the vicinity of the development, (c) whether or not the development is likely to be incompatible with a use referred to in paragraph (a) or (b), (d) if the land is not situated within a rural residential zone, whether or not the development is likely to be incompatible with a use on land within an adjoining rural residential zone, (e) any measures proposed by the applicant to avoid or minimise any incompatibility referred to in paragraph (c) or (d).
6. Expert evidence on this contention was provided by Mr Ian Sinclair for the council and Mr Peter Basha for the applicant. Their evidence raises a number of specific issues that relate LEP 2012 aims, RU1 zone objectives and SEPP RL Rural Planning Principles and cl 10 matters. These can be broadly grouped into the following: The importance of primary industry production areas (cl 1.2(2)(i), zone objectives 1,2,3 of LEP 2012, cl 7(a),(c),(h), cl 10(3)(a) of SEPP RL)
7. Mr Basha states that a dwelling on each lot does not necessarily reduce the ability for the land to be used for purposes that contribute to economic productivity via agriculture. The land has certain attributes that enable it to be used for agricultural production. If it was used for livestock grazing for example, Mr Basha accepts that the potential profits are modest if the gross margins from Department of Primary Industry (DPI) Gross Farm Margins are accepted. Greater profits may be achieved, depending on various factors such as the performance of the operator, the enterprise, market conditions and the like. However, a profit indicates that there is no economic loss, therefore the operation must be considered sustainable in that sense, bearing in mind that there is nothing in LEP 2012 which suggests a benchmark or measure for economic sustainability. Furthermore, the proposed developments are considered sustainable because there are no aspects that would deplete natural resources; or cause environmental damage.
8. Mr Sinclair states that the proposed use of the land would be rural residential. The rural residential use of the land, will not contribute to continued economic productivity, including agriculture, business, tourism, industry and other employment opportunities. The owners of the lots may run a few cattle but to be a sustainable cattle breeding operation requires much more land than 17 ha. Based on the DPI Gross Farm Margins the following are likely to be achieved:

• Lot D (17.35 ha less 1 ha for house): $2,734 to $4,600
• Lot E (16.24 ha less 1 ha for house): $2,548 to $4,288

1. It can be seen that any profit would not exist or be minimal (after taking into account other costs) because these would be more than the income. Therefore, the construction of two dwellings on the land will not contribute to the economic productivity of agriculture.
2. Mr Sinclair further states that to be a sustainable operation, that is to be able to provide sufficient income to make a significant contribution to the household income, it would need to be an intensive form of agriculture like vineyards. The establishment and sustainable operation of a vineyard would be marginal because of the small size of the lots. The costs associated with the establishment of a vineyard would be between $40,000 and $70,000 per ha which would be too expensive to make a sufficient profit for it to be a stand-alone business to generate enough income to be a sustainable operation.
3. Further, the rural residential use proposed in each application in a rural landscape with larger holdings will not encourage sustainable primary industry production nor will it encourage diversity in primary industry enterprises because it will lead to fragmentation of the rural land by reducing the amount of grazing land because it is more than likely to be a rural residential use, not a sustainable agricultural one. It will therefore not maintain and enhance the natural resource base.
4. The proposed rural residential use of the land does not encourage a range of housing choices in planned locations which is compatible with the surrounding rural environment as the surrounding rural landscape is made up of mostly larger holdings with some smaller ones scattered throughout in the locality. These lots have not been planned for in a Strategy or LEP.
5. Mr Sinclair relies on the Blayney Cabonne Orange Sub-Regional Rural and Industrial Land Use Strategy (which is a strategy that has been endorsed by the Director General of the Department of Planning and Environment) has identified areas for rural residential (rural fringe category) development or 'lifestyle allotments' to be built around Orange, Blayney and other smaller settlements and not scattered throughout the rural landscape. The fact that rural fringe/lifestyle designations have been identified in a Strategy and large lot residential zones have been identified in a LEP signifies that they have been planned. This needs to be compared to the current unplanned situation. Conflict between land uses (cl 1.2(2)(ii), zone objective 4 of LEP 2012, cl 10(3)(b),(c),(e) of SEPP RL)
6. Mr Basha states that the potential for land use conflict is considered minimal. DCP 5 requires dwellings in grazing areas to have a minimum setback of 20 m from a boundary. The proposed dwelling on Lot D is 90 m and 110 m from the nearest boundaries. The proposed dwelling on Lot E is 60 m from the nearest boundaries. As such, each of the developments more than satisfies the minimum setback requirements of DCP 5.
7. Mr Basha maintains that a dwelling on each of the lots improves housing choice and is compatible with the land use pattern in this area. It is agreed that there are larger properties (with dwellings) in the area and they form only part of the property mix. There are several smaller properties (with dwellings) in the form of concessional lots and hobby farms which are relevant.

Findings

1. In considering the different approaches of Mr Sinclair and Mr Basha, I agree with the conclusions of Mr Basha. A significant factor in coming to this conclusion is the existing status of Lot D and Lot E. Mr Sinclair's conclusion would have greater weight (and potentially determinative weight) if the applications sought approval for the subdivision of the lots rather than the construction of a dwelling on each of the existing lots.
2. It is clear that the lots will not contribute to continued economic productivity, including agriculture, business, tourism, industry and other employment opportunities in the same way as other lots that satisfy the minimum lot size or have a greater area. That is not to say that the lots could not contribute in a lesser way; as agreed by to Mr Sinclair and Mr Basha by way of a small scale cattle breeding operation. I do not accept that it is reasonable to apply the same tests of economic sustainability to smaller lots, such as Lot D and Lot E as would be applied to larger lots. The lots predate LEP 1991 and LEP 2012 and could remain in their current configuration forever, if the owners sought to do so. LEP 2012 also contains no amalgamation provisions.
3. There can be no doubt that areas designed for rural residential allotments must have a strong strategic planning basis however to suggest that two individual lots, created in 1946 should not be able to have a dwelling on each lot because they have not been part of some wider strategic planning process is not realistic, particularly when LEP 2012 and previous planning documents made specific provisions for this to occur. It is not a matter of Lot D and Lot E being unplanned but simply that they predated most planning controls for the area.
4. On the question of potential land use conflict, I agree with Mr Basha that there is a risk but it is a minimal risk. The risk is largely dependent on the future use of the lots. Even if used solely for rural/residential use; it does not necessarily follow that the future occupants will be offended by the rural use of adjoining properties. In my view, the possibility that future occupants of Lot D and lot E may be offended is not a sufficient reason to warrant the refusal of the applications. In any event, it was agreed that Lot D and Lot E can accommodate some rural/agricultural use and according to Mr Basha, each of the developments more than satisfies the minimum setback requirements of DCP 5.
5. Pursuant to 2.3(2) of LEP 2012, and having regard to the RU1 zone objectives, there are no matters that would warrant the refusal or amendment of the application.
6. Pursuant to cl 10(2) of SEPP RL and having considered the matters in this subclause, there are no matters that would warrant the refusal or amendment of the application.

Orders

1. The orders of the Court in relation to Appeal No 2016/223414 are: 1. The appeal is upheld 2. Development Application No. 2016/81 for a single storey one bedroom brick dwelling on Lot E in DP361331, Bulls Lane, Spring Terrace is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 3, 7 and B.
2. The orders of the Court in relation to Appeal No 2016/223430 are: 1. The appeal is upheld 2. Development Application No. 2016/82 for single storey, four bedroom, brick dwelling on Lot D in DP361332, Bulls Lane, Spring Terrace is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 3, 7 and B.

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G Brown Commissioner of the Court 223414.16 (C) gtb (163 KB, pdf) 223430.16 (C) gtb (161 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 January 2017