Consideration
39In Wehbe v Pittwater Council (2007) 156 LGERA 446, Preston CJ held (at [37]-[40]), that the Court must be satisfied of three matters before it can uphold a SEPP 1 objection and grant development consent. Those matters are, first, that the Court is satisfied that the objection is well founded (cl 7 of SEPP 1), which places the onus on the applicant making the objection; secondly, the Court must be of the opinion that granting consent to the development is consistent with the aims of the SEPP1 as set out in cl 3 (cl 7 SEPP 1); and thirdly, the Court must be satisfied that a consideration of the matters in cl 8(a) and (b) of SEPP 1 justifies the upholding of the objection.
40In Winten Property Group v North Sydney Council (2001) 130 LGERA 79 Lloyd J outlined the steps to be taken in considering a SEPP 1 objection:
26. ... 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.
41In Wehbe Preston CJ outlined five ways of establishing that compliance with a development standard is unreasonable or unnecessary. The first, most commonly invoked way, is to establish that compliance is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard: at [42]. While not expressed in those terms, on my reading of the evidence and submissions that is the basis on which the applicant is seeking to have the SEPP 1 objection upheld in these proceedings. The SEPP 1 objection refers to Mrs McMahon's advice that she and her husband were led to believe by the Council that they could have a dwelling ancillary to a suitable enterprise. Wehbe confirms that it is for the applicant to establish that the objection is well founded.
42It was common ground that the 200ha minimum lot size in cl 17 of the 1991 LEP is a development standard. I accept the evidence of Mr Collins that the underlying and primary objective of the standard is that provided in the zone objectives in cl 9 of the 1991 LEP, namely, "to promote the proper management and utilisation of resources by ... protecting, enhancing and conserving ...agricultural land in a manner which sustains its efficient and effective agricultural production potential", and that other relevant objectives include promoting the proper management and utilisation of resources by facilitating farm adjustments, by preventing the unjustified development or prime crop and pasture land for purposes other than agriculture, and by minimising the cost to the community of fragmented and isolated development of rural land.
43It was common ground, and the evidence of Mr Ryan and Mr Collins supports, that a deer farming enterprise is a functional and viable agricultural enterprise on the site, and that infrastructure for the purpose of operating such an enterprise has been erected on the land. Mr Collins accepted, based on the report of Mr Ryan, that deer farming is the highest and best use of the land, and that deer are high value, flighty animals that are prone to theft and need constant handling at key times of the year. It was common ground that there is a substantial difference in terms of viability between the proposed use and an ordinary extensive agricultural land use, because deer farming is a high value land use.
44The issue is whether the erection, and occupation, of a dwelling house on the site, as opposed to management of a deer farming enterprise from Glenmark or some other adjacent or nearby property, or from further away, is required for the viability of a deer farming enterprise. In his letter to the Council dated 15 September 2010 Mr David Davis, Resource Management Officer, NSW Industry and Investment, notes that that department and its predecessors had maintained the position that Inverary and Glenmark are in such proximity that they are deemed to be a single management unit or holding, and opposition to past development applications was taken after consideration of the increased capitalisation and potential for further subdivision if an additional dwelling was approved. Based on the evidence of Mr Ryan and Mr Collins, I am satisfied that the operation of a viable deer farming enterprise on the land requires the supervision that the erection and occupation of a dwelling would permit. That is in contrast to the present operation of the property for grazing and cropping, which, based on Mrs McMahon's evidence, has been managed for some time on a contract basis by a local contractor.
45Mr Ryan acknowledged in his report that the creation of a dwelling entitlement will increase the value of the property, however his evidence was that values in the area are already impacted by external influences form the City of Wagga Wagga. Mrs McMahon's evidence was that the investment in infrastructure has been in excess of $200,000, and based on that evidence, Mr Ryan was of the opinion that the property was capitalised by $200,000 over and above that which would be required to operate a more traditional farming enterprise in the area. If the McMahons can establish a successful high value deer farming enterprise on the land the value of the farm would be expected to increase to reflect the increased value of production the property is capable of. That evidence was not disputed. Based on that evidence, I accept the evidence of Mr Collins that while productive deer farming occurs on the land, the primary objective of the 200 ha minimum lot size standard, being to protect, enhance and conserve agricultural land in a manner that sustains its efficient and effective agricultural production, would be upheld.
46I accept the evidence of Mr Collins, which was not contested on this issue, that if deer farming were to cease it is unlikely that all forms of agriculture would also cease on the land, however for agricultural production to be efficient and effective any alternative agricultural use of the land would have to be established as being functional and viable. I agree that alternative forms of agriculture, whether extensive or intensive, have not been tested in that way.
47Based on the evidence before me as to the viability of the proposed deer farming enterprise and the particular needs for supervision of such an enterprise enabled by the occupation of a dwelling on the site, I am satisfied that strict compliance with the 200 ha minimum lot size standard is unreasonable or unnecessary, and that the granting of consent would, in the circumstances of this case, be consistent with the aims of SEPP 1 as stated in cl 3 of SEPP 1. There was no evidence to indicate that non-compliance would raise any matter of significance for State or regional planning. While approval of the application would depart from the planning controls in the 1991 LEP, which are maintained in the 2010 LEP, in the circumstances of this case the departure has been justified.
48The circumstances of this case include the specific evidence as to provision of infrastructure on the property to enable a deer farming enterprise, and the demonstrated need for a dwelling on the property to ensure the viability of such an enterprise. I agree with the Council that there is a risk, should deer farming not commence or continue, that the site could revert to another form of agriculture that might be unviable, or that could readily be conducted without the need for a dwelling on the site, as is the present agricultural activity on the site. In those circumstances I agree that this would not achieve the underlying objective of the 200 ha standard of sustaining efficient and effective agricultural production potential, or achieve the other objective of the zone in cl 9 of preventing the unjustified development of prime crop and pasture land for purposes other than agriculture.
49Accordingly, I am satisfied that provided a condition is imposed to ensure as far as practicable that deer farming is established and continues on the site, the objection to compliance with the 200 ha minimum lot size development standard in cl 17 of the LEP can, in the circumstances of this case, be upheld.
50In considering whether the development application should be approved, Mr Ryan's evidence was that the proposed development will enhance the agricultural use of the land as referred to in cl 10(1)(a) of the LEP, and would have no detrimental impact on natural resources, as referred to in cl 10(1)(b). Mr Collins accepted that provided deer farming commenced and continued, the proposed development would be consistent with the objectives of the Rural zone in cl 9(a)(i), (b), (d) and (e). The Council is satisfied that provided the proposed dwelling is located on the site so that no part of it protrudes above the ridgeline traversing the land when viewed from the Sturt Highway, the proposed development meets the requirements of the DCP, including part 5.7.9 14.5.18 Preservation of Hillscapes. The Council proposes condition 3 which would require any future dwelling to be sited a sufficient distance from the ridgeline so that this is achieved. On the evidence before me, I am satisfied that provided deer farming is commenced and continues on the site, the proposed erection of a dwelling ancillary to a deer farming enterprise is consistent with the aims of the LEP, the objectives of the Rural zone, the matters referred to in cl 10 of the LEP, and the requirements of the DCP, and can be approved.
51The final issue to consider is whether conditions 4 and 5 should be imposed as sought by the Council. I agree with the Council that condition 4 as proposed would ensure that the underlying objective of the development standard is met on an ongoing basis. Condition 4 would also promote consistency with the objectives (a)(i), (b) and (e) of the Rural zone, and accordingly relates to a matter referred to in s 79C(1)(a)(i) and can be imposed under s 80A(1)(a) of the Act. In considering whether condition 4 should be imposed in the form proposed by the Council, or in the broader form proposed by the applicant, it is relevant that the development application sought consent for the erection of a dwelling "ancillary to deer enterprise", and that the evidence has focussed on the necessity of a dwelling for the viability of such an enterprise. I agree with the Council that while it is possible that other forms of viable extensive agriculture could be undertaken on the land, there is no evidence to establish that a dwelling would be a necessary accompaniment to such activity. The decision to grant the Sackett consent in 1996 without a SEPP 1 objection was acknowledged by Mr Collins to have been incorrect, and to have resulted in a poor planning outcome. In my view the decisions in Baker and Ireland relate to the specific circumstances of those cases, and are distinguishable. Both matters involved intensive agricultural enterprises already established on relatively smaller blocks, whereas the present application concerns extensive agriculture proposed to be conducted on a larger parcel of land. I accept the evidence of Mr Collins that if the use of the land is not restricted as proposed in condition 4, the existence of the dwelling could result in the land becoming unreasonably fragmented and not returned to viable agricultural production as part of a larger holding for other extensive agriculture.
52The applicant submits that condition 4 is unnecessary and unreasonable. In her statement dated 5 April 2012 (exhibit A) Mrs McMahon states that she and the applicant are genuine about deer farming on Inverary and the majority of the property is now ideal for deer and only for deer, however, it is possible to imagine a number of scenarios which might make it necessary to do something other than deer farming. In her statement of 30 April 2012 (exhibit B) Mrs McMahon poses two scenarios: the first in which the applicant dies and she is unable to find suitable labour to replace him so she sells all the deer, where feasible options would include agistment, share-farming or leasing to a neighbour for cropping, grazing or both; the second being something happens to necessitate discontinuation of deer farming and the Council does not agree to a different enterprise that would maintain the effective and efficient agricultural production potential of the land. Mrs McMahon states that agreeing to the conditions would cede power to the Council to make the investment in the house worthless should deer farming become impracticable for any reason. If they wanted to sell Inverary in the future, new owners would have to accept that the Council had the power to force them to vacate the house should deer farming prove impracticable, and such restrictive conditions would effectively render Inverary unsaleable or at least only saleable at bare land prices.
53In my view, the concerns raised by Mrs McMahon are not justified. The proposed condition 4 reflects the basis on which the development application was made, and on which the SEPP 1 objection can be upheld to permit consent to be granted. Condition 4 provides the owner of Inverary with 12 months to resolve the situation if deer farming ceases for any reason. The form of condition 4 as proposed by the applicant would permit use of the property for extensive agriculture, which would not require development consent, or intensive agriculture, which would. The property is presently being used for extensive agriculture which does not require a dwelling, and which is currently being managed by a contractor. I agree with the Council that ensuring the continued efficient and effective agricultural use of the land consistent with the objectives in cl 9(a)(i), (b) and (e) of the LEP requires the restriction imposed by condition 4 to ensure that the property continues as a viable agricultural enterprise. Condition 4 should be imposed in the form proposed by the Council.
54The applicant opposes the imposition of condition 5 as being unnecessary and unreasonable. Condition 5 would serve the function of notification to prospective purchasers of the restriction imposed on the use of the dwelling house and the land by condition 4, and could be imposed for that purpose: Fortunate Investments Pty Ltd v North Sydney Council (2001) 114 LGERA 1. Given the significance of the restriction imposed by condition 4, I am of the view that notification to prospective purchasers is important and should not be left to the diligence of any conveyancer acting for a prospective purchaser. The condition would not attempt to limit the ability to obtain development consent in the future, as was the case in MacDonald v Mosman Council (1999) 105 LGERA 49, or duplicate the law providing for enforcement of the provisions of the Act: PDP (Darlinghurst Apartments) Pty Ltd v City of Sydney Council [2005] NSWLEC 41 at [40]. I am satisfied that a condition requiring registration of a covenant would relate to the matters referred to in s 79C(1)(b) of the Act, and can properly be imposed under s80A(1)(a) of the Act. Condition 5 should be imposed as sought by the Council.