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[1992] NSWLEC 129
Land and Environment Court (NSW)
1992-12-23
Original judgment source is linked above.
The applicant's response was that exhibit C was not a map prepared in accordance with the Department's rural land evaluation manual (exhibit G), but even if it were, it does not amount to evidence of what the expression ".... prime agriculture land ...." means in its plain and ordinary meaning. In other words, it was contended that exhibit C does not classify the subject land as class 2 within the Department's manual, and, accordingly, the subject land has not been so classified. Even if it had been classified, it would be class 2 land, but that classification does not provide the meaning of "prime agricultural land" which still requires interpretation. What was needed, therefore, was to have regard to the factors which, in the opinion of experts, would apply in order to determine that the subject land is not prime agricultural land, either as contemplated by that manual or generally.
In support of its contention that the subject land was not prime agricultural land the applicant called several expert witnesses - Mr Luke, Mr Leedham, Mr Hudson and Mr Hooper. They each testified as to the factors which they would take into account in order to determine if land was prime agricultural land, being matters such as economic viability, availability of water or soil conditions. They each considered that the subject land was not prime agricultural land because it failed, for one reason or another, to meet the relevant factors.
There was some difference of opinion amongst the various witnesses as to whether exhibit C amounted to an agricultural land classification map within the guidelines set out in the Department's manual. Mr Wilson, an environmental officer from the Department, thought that the subject land was classified class 2 (transcript 20/10 p 70), with which Mr Leedham seemed to agree (transcript 20/10 p 124). Mr Hudson, on the other hand, disagreed (transcript 6/11 pp 27 and 29), as did Mr Hooper (transcript 6/11 p 14).
If it were necessary for me to decide the point, I would take the view that the subject land is not classified as class 2 within the manual. This is chiefly because, first, exhibit C is called an "agricultural suitability map" and not "an agricultural land classification map" in the manual's terminology; secondly, the manual prescribes, in chapter nine, a series of steps to be followed, which do not appear to have been followed.
Even if it were so classified, however, I am of the opinion that the expression "prime agricultural land" within cl 11(1)(g) must be accorded its plain meaning and cannot be either ignored or assumed to be a short description of class 1 or class 2 land. In other words, regard must be had to determine whether or not, in addition to classification as class 1 and 2, the subject land had the characteristics of "prime agricultural land" as that term, in the view of experts in the field, would connote. The weight of evidence was against the subject land being prime agricultural land, and I would have been content, if it had been required, to accept that evidence.
Although some evidence was given as to other matters specified in cl 11(4), I do not express an opinion about them. They do not require an interpretation of cl 11(4), and are matters of merit which can be considered in the usual way in connection with an appropriate application.
The applicant's grounds for appealing against the first two of the three conditions the subject of the second appeal are the same grounds as appear in the decision which I have given today in class 4 proceedings between the parties No 40117 of 1992. The applicant claimed, in that case, that there was no sufficient nexus between the development itself and an increase in demand for public amenities and public services, nor between the development itself and the works provided to meet any increased demand. The facts and authorities are dealt with in my reasons for judgment in that case, and I do not need to repeat them here. Suffice it to say that I concluded there, and the same conclusion pertains here, that no nexus was established sufficient for imposing the open space contribution, but that the nexus in respect of bushfire fighting facilities had been established. It follows that I am prepared to set aside the first but not the second condition.
The third condition relates to the provision of a bus bay. During the course of giving evidence for the council, the shire planner, Mr Kleindeist, stated that the council did not require the construction of a bus bay (transcript 20/10 p 76). I am prepared, in the light of that, to set aside the third condition.
For all the reasons I have stated I make orders as follows:
1. I dismiss the first appeal, proceedings No 10131 of 1991.
2. In the second appeal, No 10247 of 1992, I confirm
development approval No 58 of 1991 with the omission of conditions numbered 1 and 3.
I HEREBY CERTIFY THAT THIS AND THE PRECEDING 12 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM.
This judgment has been amended on p 13 by substituting "1992" for "1991" where this first appears in the order numbered 2 pursuant to Part X Rule 7 of the Land and Environment Court Rules 1980.