Short v Clarence Valley Council

CASES CITED: Wehbe v Pittwater Council [2007] NSWLEC 827

APPLICANT Mr R. Creighton, agent

LEGAL REPRESENTATIVES: RESPONDENT Mr S. Priestley, solicitor of Pickering Priestley

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10275 of 2008 Samuel Douglas Short v Clarence Valley Council This determination was given extemporaneously and it has been edited prior to publication

JUDGMENT 1 These proceedings commenced on site as a s.34 conciliation conference but no agreement was reached. The parties consented to me determining the matter and the following is my judgment in accordance with s.34(4).

2 The applicant in these proceedings, Mr Short, is seeking to consolidate a number of small lots in an old paper subdivision and create a small parcel of land of some 2.3 hectares with a building entitlement. This land is within the rural property owned by Mr Short. The total size of the property is approximately 52 hectares with 8 hectares adjoining in road reservations. The general locality is known as Lower Southgate.

3 The subject land is approximately 22 km from Grafton and has dual frontage to Lawrence Road and Riverbank Road. The topography in the area is generally low-lying adjoining the Clarence River, however the parcel sought to be created is on higher ground known as Kellsals Hill. 4 At the beginning of the proceedings the issue of existing use rights was discussed. That is whether or not there is still a building entitlement to build on the subject land because of an earlier consent, and secondly, whether or not there is still a building entitlement to build on the land due to the fact a dwelling existed on the land approximately 50 years ago and there are remains of the timber foundations.

5 On the question of existing use rights it is clear to the Court that existing use rights cannot be claimed. Firstly the previous consent was not acted upon and the period of consent has expired. Secondly, the land has not been continuously in use for residential purposes for many many decades (over 50 years) and therefore the use is regarded as being abandoned. As such the application must be assessed on its merits and under State Environmental Planning Policy No. 1 (SEPP 1) to vary the minimum 40 hectare subdivision size.

6 On behalf of the applicant it is submitted that the small parcel of land is physically separated from the main holding by virtue of the fact that it is bounded by two roads resulting in the land being triangular in shape where the roads converge. The long boundary adjoins land previously owned by the applicant but that was subdivided from the large holding in approximately 1970. The applicant claims that the land is not used for growing crops or primary production because of it being physically disconnected from the main part of the farm. 7 The Council submitted that there are many holdings within the local government area where roads cut through properties and that approval of the application before the Court would be a precedent if approved. Council further submits that farm lands in the same ownership are often intersected by roads and this is not an impediment or justification for the subdivision of the subject land from the main holding.

8 The applicant's reason for seeking this subdivision is admirable in that he wishes to provide a parcel of land for his daughter to build a dwelling. as he did for his other daughter. While his intentions are most admirable the Court must assess the development application on its merits in the context of the statutory planning framework. In particular the local environmental plan that contains the minimum subdivision size of 40 hectare. 9 The land is zoned Rural (Agricultural Protection) - 1(b) under the Copmanhurst Local Environmental Plan 1990 (LEP). The objectives of this zone are: (a) to conserve prime crop and pasture land for a range of intensive agricultural pursuits and other agricultural industries and

(b) to ensure that development of land in any part of the zone which is prone to flooding is carried out in a manner that is appropriate to the flood hazard. 10 Development that is permitted without consent includes agriculture, forestry, and home occupation. 11 Cl 19 in the Copmanhurst LEP states that: 1. The Council shall not consent to the subdivision of land within Zone No. 1(b) unless the area of each allotment to be created will be not less than 40 hectares. 2. Where allotments to be created in accordance with this clause will have frontage to an arterial road, that frontage shall not be less than 400 m. 3. The Council shall not consent to the erection of a dwelling house on an allotment of land within Zone No. 1(b) unless the allotment (a) has an area of not less than 40 hectares, or (b) is an existing parcel of land and is consolidated into one allotment; or (c) was created pursuant to sub-clauses 1 and 2. 4. The Council shall not consent to the erection of a dwelling house on land within Zone No. 1(b) unless the allotment has frontage to a Class A road or a Class B road". 12 The concurrence of the Department of Planning was sought, however concurrence was not granted for the following reasons: o The subject 'existing parcel' being split into two by a road in 1972 is not an appropriate planning reason to formally separate 2.3 ha from the existing parcel to permit an additional dwelling; o A lot formed by the consolidation of 14 lots in a former village area to create a 2.3 ha rural residential lot is still well below the minimum area required in the zone; o The proposal for further subdivision is contrary to the Department's policy on rural residential development in that it proposes additional rural residential development in an ad-hoc manner outside of the strategic planning process. It could also set a precedent for similar applications in the area; and o SEPP No. 1 is not intended to be used to pre-empt or circumvent the proper strategic planning processes set out in the local environmental planning (LEP) process. This process is necessary to assess the suitability of the subject land for rural residential development in relation to any environmental constraints in the area. The purpose of assessment through the LEP process is to consider the potential hazards, environmental issues and other constraints. In addition, the process provides for public exhibition of the proposal and the opportunity for public comment. 13 In response to the issues raised by the respondent, the applicant contends as follows: "1. The proposal will not compromise the agricultural productivity of the existing farmland as the subject land was separated from the balance of the farm in 1972 when the route to Lawrence was relocated from Riverbank Road to its present location. For some time, the subject land has not been used for "prime crop" or "pasture land" due to its isolation from the main farm. Generally, the subject land is overgrown with fireweed and occupation will assist agricultural productivity on the main farm and neighbouring properties by controlling the weed. 2. Whilst the subject land is located in the 1(b) [Rural Agricultural Protection Zone] of Copmanhurst LEP 1990, which prevents the erection of a dwelling on land of less than 40 ha, the proposal is consistent with: (a) An existing use as footings from an existing structure remain on the subject land; and (b) The development pattern in the vicinity, known locally as Kellsals Hill. 3. With respect to planning merit, the proposed development is consistent with the existing use and development pattern in the vicinity [see paragraph 2] 4. The proposed development does not create an ad-hoc rural residential allotment. The extremely unusual division of the farm land by the road created unique barriers to agricultural productivity and necessarily limited the lot size. The concerns expressed by Council of setting a precedent are misconceived. Moreover, there will not be any social or economic impacts on agricultural productivity for the reasons outlined above [see paragraph 1]". 14 Today I have the benefit of all the evidence before the Court in assessing the SEPP 1 objection sought to vary the subdivision size to create a parcel of land of 2.3 hectares from some 52 hectares.

15 The judgment of the Chief Judge of this Court in Wehbe v Pittwater Council provides a number of methods for assessing SEPP 1 variations. I am satisfied that the 40 hectare minimum is a development standard and amenable to a variation under SEPP 1. The next step is to assess the application against the underlying objects of the standard. This includes: to provide for sustainable agriculture; and ensure that its fragmentation does not affect the long-term productivity of agricultural land.

16 The subject rural holding is classified as "prime crop and pasture land"; even though it may not be used to its full potential today in the past it has been used for the grazing of dairy cattle. More recently it would appear to be underutilized, as the property is not in full production with the number of cattle grazing on the land today. The fact that the land is not used to its maximum potential does not diminish the quality of the land or its agricultural classification by the Department of Primary Industries. 17 I am not satisfied that the subdivision of this small parcel would satisfy the underlying objectives of the 40 hectare standard as the long term productivity of the land would be diminished. I understand why the applicant is seeking to create this elevated parcel of land which has lovely views over the Clarence River, however, the subdivision should not be allowed as the application fails to meet the tests set out under SEPP 1 to vary the minimum allotment size.

18 Furthermore this proposal if approved, would create an undesirable precedent, and there is no reason as to why other land holders would not seek to invoke this decision and seek similar wide variations to the minimum subdivision size even though the size of the variation is not of itself determinative. But rather whether the underlying objectives or purposes of the zone are satisfied. In my assessment against the objectives of the standard the SEPP1 variation is not justified or well founded to warrant approval. 19 It goes without saying that over generations that if land is incrementally subdivided the size of rural holdings would be significantly decreased to a point where agriculture would no longer be viable because of the multitude of small size holdings with dwellings within the rural zone.

20 I recognise that the economic structure of farming and agriculture has changed over the years and indeed even a 40 hectare parcel may not provide a livelihood for a family on the land who may need to supplement their income or have a larger holding than the 40 hectare minimum. This however does not justify subdivision of the subject land that is of a high quality for agricultural production.

21 It was submitted on behalf of the applicant that the proposal would not impact on the surrounding area or impact on the productivity of the land generally. It was also submitted that the proposal is consistent with the surrounding area with the dwellings on the other side of the river known as 'Brushgrove'. 'Brushgrove', however is zoned for village purposes and therefore there is a clustering of dwelling houses. Once again this does not justify the sub-division of the subject land and a multitude of small parcels with dwellings outside planned urban area would also place demands on the infrastructure. 22 While it could be said that one additional dwelling in itself may not impact on the agricultural production of prime rural land it would create an undesirable precedent and if repeated the cumulative impact would impact on the agricultural productivity of land in the area.

23 Today the Council was required to provide additional information to the proceedings in terms of whether there have been other approvals of a similar nature. It transpires that while there was an approval for a subdivision and the erection of a dwelling on Kellsals Hill this resulted in a dwelling house erected on a parcel of land just under 40 hectares and over 39.

24 Land that is separated from larger holdings by roads should not be given n building entitlements and formally subdivided from the larger holding as this could also create a proliferation of dwellings within the rural 1(b) zone which would be contrary to the objectives of the standard and zone. 25 Accordingly on the basis of my assessment above, I am not satisfied that the SEPP 1 objection to the 40 hectare minimum subdivision size should be allowed. As this is a threshold question the application must be refused.

26 Therefore the formal orders of the Court in this matters are: 1. The appeal in respect of the land being Part Lot 1 DP 113365, Lot 12 DP 658885, Lots 1-9, Section 6 DP 758920, :Lot 10 DP 658883, Lot 11 DP 658884 and Lot 13 DP 658886, on Lawrence Road, Lower Southgate is dismissed. 2. The development application, submitted to Clarence Valley Council for consolidation of certain lots and the creation of a 2.3 hectare parcel of land with a building entitlement, is determined by the refusal of consent. 3. The exhibits are returned.

      J. S. Murrell
      Commissioner of the Court
      kb/ljr

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