68 Taking each question posed by his Honour Lloyd J and answering it:
· First, there was no dispute between the parties that the 40-hectare minimum allotment standard in cl 31(3)(a) of the KLEP is a development standard.
· Second, the underlying object or purpose of the standard is as set out above in para 44, derived from the evidence of Mr Layman, [Note: Exhibit 5, p 12, para 3.1.10], which both parties accepted, including:
o to prevent the fragmentation of holdings of land suitable for agriculture, in this case prime crop and pasture land; Despite the applicant being willing to amalgamate the five existing allotments, into one, the erection of a dwelling house on 7.6207 hectares of land I am satisfied, would undermine this underlying objective. The erection of a dwelling house for other than purely agricultural purposes, would ensure that the value of the land would increase and render its use for purely farming activities more difficult and down grade its usefulness for this purpose. This would in turn fragment the land by creating an economic disincentive to use the land for farming in association with other farming land nearby. I am satisfied on the evidence of Mr Yeates for the applicant and Ms Goodburn and Mr Meaker for the respondent that leasing a dwelling in close proximity to the land, while not ideal from the point of view of the applicant, would be an option and would allow for agricultural use of the full area of the land for the undoubtedly valuable Wagyu stud, [Note: Exhibit 12, para 6.2]. Electronic monitoring might also be an option and would allow the manager to reside off-site nearby. There are likely to be nearby properties available for lease or purchase within the residential area of Gerringong and I am satisfied that the prime crop and pasture land would be better protected by not building a dwelling on the land as proposed.
o maintain a dispersed settlement pattern that protects the scenic quality of the landscape and minimises potential for land-use conflicts; If no dwelling were erected on the land the grassy slopes of the subject land would remain and provide a separation between the southern edge of the Gerringong township and Gerroa to the south. The next property to the south on the eastern side of the Princes Highway is that owned by the Weirs. Their homestead would not be within the visual catchment of the town, unlike the proposal that would be clearly visible on the hillside, despite there being proposed screening vegetation.
o protect the agricultural potential of the land suitable for rural use; This is important as the land is identified as prime crop and pasture land. Its agricultural potential would be diminished were it to be covered in part by a dwelling. The parties agreed that the dwelling house and associated buildings and calf yards and cattle race would be 1.6 hectares in area and these uses would reduce the productive capacity of the land for purely rural use significantly.
o protect vegetation and promote revegetation on land of significant scenic or aesthetic value and preserve dominant landforms which contribute to significant landscapes; The erection of a dwelling with screening vegetation, as proposed, would significantly affect the scenic and aesthetic value of the land. The grassy slopes of the land leading to the ocean provide its scenic and aesthetic value. This would be lost if the proposal were to go ahead.
· Third, compliance with the development standard would be consistent with the aims of the Policy, and in particular, compliance with the development standard not tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979. The objects are "…to encourage the proper management, development and conservation of natural and artificial resources, including agricultural land; and the promotion and co-ordination of the orderly and economic use and development of land," [Note: Thorncraft v Bathurst Regional Council & Anor [2005] NSWLEC 571]. The proposal would not be a stand-alone agricultural holding as it is proposed to be used in conjunction with a larger cattle property, Goolloinboin Station, near Mudgee. The Wagyu Stud at Gerringong would not be sizable enough as a commercial operation in its own right, unless operated as an intensive cattle feedlot, and that intensive agriculture use is not permissible in the 7(d) zone under the KLEP. The connection between the land and Goolloinboin Station is tenuous and might be severed at some time in the future. However, the legal connection between the land and the proposed dwelling/dwelling entitlement would be enduring and 'travels with the land' as submitted by Mr Moggach in his submissions. The proposed dwelling/dwelling entitlement and the land are within the same development application and have been considered together. Whereas the Goolloinboin Station is not part of this application. The subject development application would immediately change its character were the connection with Goolloinboin Station severed, and I am satisfied that this is a highly likely at some time in the future. Then the proposal would be of a character more like a rural residential use or a hobby farm situated close to the services of Gerringong. I am satisfied that in order to ensure the objectives of the zone are met, it would be more appropriate for the land to be used for agistment, with no dwelling/dwelling entitlement, in association with a larger parcel of rural land nearby or to the south. Mr Towers was of the opinion that by granting a dwelling entitlement to the land would "…impact on the ability to consolidate" it with other parcels nearby. I accept the thrust of that evidence. Should the connection between the land and Goolloinboin Station be severed, either upon approval or some time in the future, the proposal would be contrary to the aims of the Policy and the intention of the Act and the answer to this question is no and the application must fail.
· Fourth, compliance with the development standard would not be unreasonable or unnecessary in the circumstances of the case.
· Fifth, the objection is not well founded and the application must fail.
69 Mr Layman also agreed that "…the LEP process is the appropriate method for consideration of zoning change and SEPP1 should not be used as a 'de facto' rezoning mechanism," [Note: Exhibit 5, p 14]. SEPP1 is not to be used to effect planning changes: Hooker Corporation Pty Limited v Hornsby Shire Council, Winten Property Group Limited v North Sydney Council at 89 and Thorncraft & Anor v Bathurst Regional Council at para 14.
70 The council is presently reviewing the shire-wide local environmental plan and this would be the appropriate vehicle to consider and perhaps to effect a change to the 40-hectare minimum allotment size for dwellings in rural areas especially those within prime crop and pasture land.
71 The tests posed by SEPP1 have not been met and the development standard of 40-hectares should be observed and the development application is refused.
Visual impact of the proposed dwelling, shed and planting on the prominent grassy ridgeline
72 However, were I not correct in concluding the SEPP1 objection is not well founded, I have considered the merits of the proposal to site the dwelling, shed and planting on the prominent grassy ridgeline.
73 The council contends that the application would be contrary to the aims and objectives of the KDCP and would be of inappropriate design and siting for a rural dwelling.
74 However, Mr Layman was satisfied that were the proposed dwelling well-screened by landscaping it would be acceptable in the landscape. He said, [Note: Exhibit 5, p 13]
I consider that the scenic quality of the landscape has the potential to be protected from the north, south and west by 'landscape regeneration screen' plantings. Views from the central park in the Gerringong Township and from the main street would be protected by northern boundary landscaping that would need to be in the order of 5-6m high at maturity. The proposed tree and screen/barrier shrubs landscaping in 'shelterbelt planting Type 3' should appropriately screen the proposal at maturity.
75 Putting aside the question as to whether trees to 6m high would grow in this exposed location, Mr Layman seemed to place little weight on the fact that the existing character of the land that has few trees and is a cleared, grassed headland sloping down to the sea. I consider that this has led him into error in this respect.
76 Mr Towers stated, [Note: Exhibit 2, p 6]:
The Illawarra REP No 1 has mapped the lands as having landscape or environmental attributes.
The land is visible from a number of public vantage points around Gerringong. It is proposed to construct the dwelling house, stud and sheds on a cut and fill bench towards the top of a hill slope ridgeline with associated backdrop and screen landscaping. The dwelling will be visible from the east near the cemetery. This will diminish the scenic amenity. Whilst the dwelling is single storey, its sprawling design (presumably to gain maximum benefit from the extensive coastal views) results in a greater visual impact than if the dwelling had a compact built form.
The coastal lands between Gerringong and Gerroa are well known for their typical character of cleared, grassed headlands used for agriculture and open space with pockets of coastal vegetation and scattered rural dwellings and outbuildings. The lots immediately to the south of this proposed development have been mapped for protection under the coastal protection scheme in recognition of their visual attributes. Although this site does not have direct coastal frontage it includes the hill slopes, which complete the coastal headland landscape.