Conclusion
35Having considered the evidence, the submissions and undertaken a view, I do not consider this subdivision application merits consent for the following reasons.
36In my assessment, the subject land is a relatively small 'rural/residential' type lot with an area of 9.18 ha, which is currently used for limited grazing. Based on the agronomist's assessment, I accept that this is not the optimum agricultural use of the land, because the proposed Lot 2 contains approximately 7 ha Specialist Class land, which potentially has a higher agricultural use. But, the overall utility of this area would be reduced because of the need to provide an appropriate buffer from potential agricultural uses.
37Nevertheless, I accept that SEPP RL applies to this land and that that it permits, subject to merit, a subdivision of the existing lot to create the new primary production Lot 2 and the residue 'rural residential' Lot 1 containing the existing dwelling.
38Obviously both these lots are below the minimum 20 ha development standard. In other circumstances a SEPP 1 Objection could have been lodged to support such variations to the development standard. But cl 9(5) of SEPP RL states that SEPP 1 does not apply to the development standard under this clause.
39In light of the apparent ambiguity in cl 9 (5) of SEPP RL and SEPP 1, Mr Eastman refers to the matter of Hastings Point Progress Association Inc v Tweed Shire Council [2009] NSWCA 285, which contains the following authority:
85 Thirdly, it is conceded that the provisions in the SEPP do not override the need to comply with s 79C of the EP & A Act. However, Mr McEwen SC for the second respondent made it clear that a consent authority's statutory obligation to take into consideration the provisions of any environmental planning instrument picks up only applicable environmental planning instruments. Thus, it will only pick up an LEP if it is applicable despite the SEPP...
94 However, I do not need to answer that question because it seems to me that Mr McEwen, in his submissions, put an unanswerable proposition. Clause 8(1)(c) of the TLEP says that the consent authority may grant consent to development only if it is satisfied that the development would not have an unacceptable cumulative impact on the locality etc [the italics are mine]. Cases such as Currey v Sutherland Shire Council (1998) 100 LGERA 365 and Franklins Ltd v Penrith City Council [1999] NSWCA 134 (especially at [23]) point out the significance of the sort of phraseology used in 8(1) and that is to deprive the consenting authority of any power to issue a consent unless the precondition is satisfied.
95 Accordingly, here, we have the situation where the SEPP contains an aim in cl 2 to encourage the provision of housing that will increase the supply and diversity of residences that meet the needs of seniors and make efficient use of existing infrastructure and services. There are detailed considerations to be given, for instance, in Part 3 of Chapter 3 of SEPP-SL recite analysis, there are provisions with respect to site area, height, landscaping etc, all of which can be set at nought if a council has no power to approve the development because an assessment of cumulative impact of existing and similar proposals to the one in the application has been carried out and the result found to be acceptable.
40Other submissions were made regarding the decision in Abret Pty Limited v Wingecarribbee Shire Council [2001] NSWCA 107, which states:
41The Council also relied upon LEP, cl 2(2)(a) which provides that one of the particular aims of the LEP is to achieve the objectives specified for land in the table to cl 9. The Council also referred to the aim in cl 2(2)(d), pointing out that the proposed development was on land which had prime crop and pasture potential. The Council submitted that having regard to the particular aims of cl 2 and the specific objectives of land zoned 1(a), the trial judge was correct in not being satisfied that the proposed development could not be subject of a grant of consent because it was inconsistent with various objectives that were prohibitory of development. ...
45It follows from what I have said that I reject the argument advanced by the Council on the first and second issue. Having said that, I am not to be taken as saying that the objectives are not relevant to the construction of other provisions in the LEP. A provision is to be construed within the statutory instrument as a whole: see Project Blue Sky (discussed further below). Thus a construction of a provision which was more conducive to the achievement of the objectives of the LEP is to be preferred to a construction that does not achieve those aims. That said, however, the difficulty to which I have referred about conflicting aims remains.
41Consequently, having considered the disparate opinions expressed by the planners regarding the ambiguity in the application of this cl 9(5) in light of these authorities, I am satisfied firstly that a smaller 'primary production lot' such as Lot 2 in the current matter is permissible under SEPP RL.
42However, I am not inclined to accept Mr Dawson's opinion that SEPP 1 applies to the residue lot. Instead it seems that the SEPP RL allows the excision of a smaller prime agricultural land lot, with a remaining residual lot being allowed, even if it is less than 20 ha. If it contains a dwelling as in the subject application, then a new smaller 'rural/residential' lot is created without any need of consideration of a SEPP 1 Objection.
43If the smaller residue lot is vacant, then I do not think that cl 9 (5) requires consideration of a SEPP 1 Objection to creation of the smaller residual lot. Any questions about future development of this vacant lot would be considered under the prevailing LEP provisions concerning minimum areas on which a dwelling could be erected in the rural/agricultural protection zones. That then may involve separate SEPP 1 considerations. Consequently, in some cases this may result in the residual lot being incapable of further development and remaining as an isolated lot.
44The next question in this case is whether the approval of the proposed subdivision under SEPP RL would provide the landowners a greater chance of achieving the zone objectives. In my assessment, the evidence is muddled because of the applicant's initial evidence 'connecting' the proposed Lot 2 to the coffee plantation use. I have some difficulty with this premise for the subdivision when no details were presented to the Court that effectively linked this suggested arrangement. As I have noted, the applicant backed away from this proposition during the hearing.
45Consequently, it seems the opinions of Mr Dawson and Mr Ryan have merit. They say that because persons that apparently have an interest in the coffee plantation own the subject land, then satisfactory arrangements should be possible for optimal use of the primary agricultural portion without the necessity for subdivision of lots with less than the minimum size. Such arrangements could involve the common practices of share-farming or leasing a portion of the land. Considering these circumstances, I am not convinced that the subdivision gives these landowners a greater chance to achieve the zone objectives.
46The relevant zone objectives are:
(b) to prevent fragmentation of rural holdings and to encourage consolidation of lot sizes for the purposes of agricultural and horticultural production,
...
(d) to permit subdivision only where it is considered by the council to be necessary to maintain or increase agricultural production or to allow the conduct of any use permitted in this zone other than residential buildings, or where proven demand for legitimate agricultural or horticultural holdings of a smaller size is established,...
47Objective (b) clearly seeks to prevent fragmentation of rural holdings and this is consistent with the Rural Subdivision Principles. I do not consider the overall subdivision proposal to create an additional small lot is consistent with this objective and consequently I am unable to accept Mr Connelly's opinion that the approval of the subdivision will "repair" the past fragmentation, putting the existing dwelling house onto a parcel of appropriate rural residential size and setting aside the residual agricultural land for purposeful agricultural production.
48In this regard, I note Mr Dawson's reference to the Department of Agriculture's comments in 1994 that: "The severance of the 8 ha lot is not significant as it contains barely 2.5 ha of Class 3 land. However its inclusion within the 8 ha lot could make it attractive for part-time horticultural pursuits."
49Accordingly, it seems to me that when considering the relatively small lot rural subdivision as proposed, then some substantive evidence is required from the applicant to demonstrate how the subdivision will maintain or increase agricultural production. Insofar as there was some inferences that the subdivision would enable a higher and more efficient use of the better 'special' class land, no substantive details were provided and I consider it a negative aspect.
50But in any case, the controls do not seem to be specifically directed at optimal use of the agricultural land. At present the land is used for grazing, which is common in the area and which can continue. The aims of SEPP RL include the facilitation of the orderly and economic use and development of rural lands for rural purposes, but the applicant provided no substantive evidence in this regard. I therefore conclude there is a real likelihood the approval of the subdivision will fragment the land without any economic benefit.
51I note that Mr Connelly provided some speculative evidence about the relative prices of rural/residential lots and how this made agricultural pursuits more difficult. But no valuation or other substantive evidence was presented which supports the application and demonstrates that the approval of this subdivision would satisfy Aim (a) of SEPP RL.
52In summary then, I am not satisfied the applicant has demonstrated that the approval of the proposed small lot rural subdivision will satisfy the aims and objectives of the relevant controls to merit consent. Instead, it appears that there is a real likelihood the approval would result in a smaller rural/residential lot with potentially compromised amenity because the use of the 'primary production' lot is unknown, therefore limiting the determination of appropriate buffers and determination of the remaining area of good agricultural land. This lack of evidence on the future use of the relatively small rural Lot 2 causes me concern as to whether the subdivision is necessary in the subject circumstances.
53In conjunction with this, the evidence confirmed to me considerable difficulties in addressing the provisions of cl 9(1) of the SEPP RL as to how much flexibility is to be allowed and what criteria applies to 'allowing land owners a greater chance to achieve the development objectives for the zone', so as to allow smaller, non-complying lot sizes. I note that CWRLRP stated that such flexibility could be based on exceptional circumstances that may include changes in technology, farming practices or family circumstances. But the applicant has not addressed any of these exceptional circumstances or produced substantive evidence showing that the subdivision approval would increase the probability of achieving the zone objectives.
54It seems to me from the evidence that the subject application is the type that falls into the category of coastal development, which the CWRLP indicated may not be suitable for resolution under SEPP RL. This finding is due to the existence of a majority of smaller rural lots in an area where the subdivision/excision of the better quality agricultural portions of smaller rural lots could result in considerable fragmentation and creation of smaller isolated, residue lots that do not constitute orderly development or a positive public interest outcome.
55For these reasons, my conclusion is that the application does not merit consent primarily because it does not satisfy the provisions of SEPP RL, particularly cl 9.