Thorncraft & Anor v Bathurst Regional Council & Anor [2005] NSWLEC 571 | Case summary

EX TEMPORE JUDGMENT 1 HIS HONOUR: This is an appeal under s 97 of Environmental Planning and Assessment Act 1979 (the "EP&A Act") against the refusal of a development application for the erection of a dwelling house on Lot 77 in Deposited Plan 755799 Whalan's Lane, Duramana, near Bathurst. 2 The relevant facts may be briefly described. The land is within Zone 1(a) - (Rural A Zone) under Interim Development Order No. 1 - Shire of Evans (as amended by Evans Local Environmental Plan No. 24) ("IDO No. 1"). Clause 16(3) of that instrument prescribes a minimum allotment size of 100 hectares for the erection of a dwelling house within such a zone. The subject property only has an area of about 2.4 hectares. It is therefore apparent that the development application made in this case could only be granted if the consent authority was prepared to exercise the discretion afforded to it under State Environmental Planning Policy No. 1 - Development Standards (SEPP No. 1). 3 An objection under SEPP No. 1 was made. It was referred to the Director-General of the Department of Infrastructure, Planning and Natural Resources as required by cl 7 of SEPP No. 1, for concurrence. 4 In a letter dated 16 April 2003, Planning New South Wales (as that Department now seems to be called) indicated that the Director-General was not prepared to concur for the following reasons: · Concurrence would undermine the economic viability of rural and agricultural activities in the area, by reason of introducing land - use conflict and fragmentation of agricultural land. · Concurrence would set an undesirable precedent for matters of state and regional significance relating to dwellings on existing portions of agricultural land locally, regionally and across the State. · Concurrence would not be in accordance with State Policy for Sustainable Agriculture or the Department's Rural Lands policy. · A dwelling on the subject land is contrary to the objectives of Evans IDO/ LEP 24 for lands zoned 1(a) Rural land. · The public benefit of maintaining the development standard in order to protect sustainable agriculture and for reasons mentioned above it is considered significant. · There are no unique circumstances surrounding the application that would warrant the Department taking a supportive view. 5 The planning controls, as is not uncommon, are being reviewed. The council has adopted the Bathurst Region (Interim) Local Environmental Plan 2004. As I understand it, the council adopted that draft instrument on 20 April 2005. It is still, of course, only a draft instrument, but it retains the minimum area of 100 hectares for the erection of a dwelling house within the Zone 1(e) (Outer Rural Zone), which is the proposed zone to cover the area within which the subject land is situated. 6 The applicants, Mr and Mrs Thorncraft, bought the subject land in about 2000. They use it for the purpose of looking after horses. Mr Thorncraft said in evidence that he has a job in town as a mail-sorting officer with Australia Post, but he also has a harness racing trainer's licence. He has had 35 years involvement in the trotting industry. He has a number of brood mares on the property and when these are foaling there is a need for them to be checked morning and night. The need to check them twice a day will continue until the foals are about three months old. It is otherwise necessary for him to visit the property every day, as I understand that harness racing horses need to be fed daily. 7 Because of the size of the subject land, namely 2.4 hectares, it is clearly of insufficient size for purely grazing purposes. 8 As I have said an objection has been lodged under SEPP No. 1, and it is necessary for the proposed development to pass a number of tests posed by that policy. 9 The first question is: whether the control here, namely, the minimum lot size of 100 hectares for a dwelling house, is a development standard. The answer to that is clearly, yes. 10 The next question is: what is the underlying object or purpose of the standard? That purpose is not stated in the instrument. However, Mr L M Fletcher, the Court appointed Consultant Town Planner, states in his report: Although the objective of the development standard is not stated, the key objective is to protect and secure agricultural land for the future. 11 It is also an underlying objective of the standard, according to Mr Fletcher, to protect the value of land for agricultural purposes. Clearly, if the land is used for other than purely agricultural purposes, that is, for rural residential purposes, or even for a hobby farm, then it would undermine the underlying objective. The proposed development would contravene the underlying objective of the standard. 12 The next question is: does compliance with the standard tend to hinder the aims of the policy, in particular does it hinder the objects specified in s 5(a)(i) and (ii) of the EP&A Act? Those objects are to encourage the proper management, development and conservation of natural and artificial resources, including agricultural land; and also the promotion and co-ordination of the orderly and economic use and development of land. 13 The subject land clearly is not a viable agricultural holding. Its use for the raising of horses is really, in effect, a hobby farm, and can only be carried on if the owner has some other source of income. The answer to the third question is clearly, no. 14 The fourth question is: is compliance unreasonable or unnecessary in the circumstances? In the present case, the Court agrees with the opinion expressed by Mr Fletcher, the Court appointed expert: the 100 hectare minimum standard for a dwelling house, he says, was to discourage rural residential lifestyle development, it is a standard of long standing, it is accepted by the community, there is no proposal to change it and what is proposed here is in effect tantamount to a re-zoning. SEPP No. 1 is not to be used to effect planning changes: Hooker Corporation Pty Ltd v Hornsby Shire Council, NSWLEC, unreported, Cripps J, 2 June 1986; Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at 89. 15 The fourth question can be answered by posing a further question, would a development which complies with the development standard be unreasonable or unnecessary? Clearly the answer is, no. As Mr Fletcher has pointed out, the proposal represents a massive 97 per cent variation from a long-standing development standard that appears to have no or little prospect of being changed in the foreseeable future. 16 Mr Fletcher also refers to the question of precedent. It is clear that there are many lots within a two-kilometre radius of the site which are considerably less than 100 hectares in area. Those lots in most cases comprise part of a larger holding, but there is no reason why they could not be separately sold and become the subject of similar applications to the present. Under these circumstances the Court is of the view that the precedent effect is another factor which should be taken into account. As was noted in Goldin v Minister for Transport (2002) 121 LGERA 101 at 110, if there is an application for development which is both objectionable in itself, and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration. 17 This stands as a further reason for refusing the present development application. As I have said, what is proposed here is a hobby farm. It could lead to other hobby farms on the other allotments which are less than 100 hectares in area in the immediate vicinity. 18 In short, the Court is of the opinion that the tests posed by SEPP No. 1 have not been satisfied. It therefore follows that the development standard should be observed. It also follows that the appeal must be dismissed and the development application refused. 19 The formal orders of the Court are:

Thorncraft & Anor v Bathurst Regional Council & Anor

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Parties

Cases Cited (2)

Cited By (6)