Thorpe v Development Assessment Commission [2005] SAERDC 19 (4 April 2005)

Last Updated: 6 April 2005

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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THORPE v DEVELOPMENT ASSESSMENT COMMISSION

Judgment of Commissioner Hodgson

4 April 2005

LOCAL GOVERNMENT - TOWN PLANNING

Development Act 1993 - application to realign boundaries of two existing allotments - refused by Development Assessment Commission - appeal - whether proposal would improve management of the land for primary production - whether proposal would remove productive land from agriculture - whether proposal would increase the risk of water pollution - whether proposal would lead to conflict between agricultural and rural living uses - proposal in conflict with purpose, intent and desired character of zone - appeal dismissed and decision of Commission confirmed.
Development Act 1993, referred to.
City of Mitcham v Freckmann and Ors [1999] SASC 234; (1999) 74 SASR 56; Soraghan v City of Charles Sturt [2001] SAERDC 85; Croser Brothers Pty Ltd v Yankalilla District Council [2001] SAERDC 86; Nadebaum v City of Mitcham [1995] EDLR 587; Toyias v Alan Sheppard Homes Pty Ltd and Corporation of the City of Burnside [1997] SASC 6160; (1997) 69 SASR 42, considered.

THORPE v DEVELOPMENT ASSESSMENT COMMISSION
[2005] SAERDC 19

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1	This is an appeal against the decision of the Development Assessment Commission, made under the Development Act 1993, to refuse an application by the Appellants to realign the boundaries of two existing allotments.

Some relevant facts are set out below:

Applicant: N. & O. Thorpe
Date of application: 22 October 2003
Development Application No: 580/D607/03
Date of decision: 22 April 2004
Subject land: Lot 2 in DP 32384, Hundred of Kuitpo
and Lot 230 in FP 5287, Hundred of

Kuitpo, Meadows –

Kangarilla Road, Meadows.
Certificate of Title reference: Volume 5370 Folios 822 and 897
Existing use: Grazing
Relevant Development Plan: Mt Barker (DC) 30 January 2003
Relevant Zone: Rural Watershed Protection Zone

The Proposal

2

The proposal entails the rearrangement of the boundaries of two existing allotments, and the demolition of an existing dwelling on one of these. Existing Lot 2 has an area of 74.24ha and Lot 230, 37.94ha. It is proposed that an existing dwelling on Lot 230 be demolished. The proposed allotments would have areas of some 115ha (Lot 20) and 2.82ha (Lot 21). The proposal also entails the establishment of a small earth berm or embankment on the eastern side of an existing watercourse to ensure there is no direct runoff from the land into the creek, and the alignment of the boundary between the proposed new allotments to avoid interference with stands of existing trees. Although it does not form part of the subject proposal, the evidence was that the Appellants also own a 47.55ha allotment abutting the northern boundary of existing Lot 2.

3

The evidence of Mr D Batge, a qualified and experienced town planner called by the Appellant, was that proposed Lot 21 was of a size suitable for hobby farm use, and was likely to be developed with a dwelling and outbuildings.

Development Plan

4	The subject land is located within the Rural Watershed Protection Zone in the Development Plan for the District Council of Mt Barker dated 30 January 2003. The general objectives for that zone are in the following terms:

"Objective 1: A zone primarily for low-intensity farming on large holdings which does not pollute surface or underground water resources.

Objective 2: The maintenance of a pleasant, attractive rural landscape characterized by verdant undulating pasture lands, dotted with clumps of large majestic gum trees with the occasional cluster of farm buildings."

5	Zone principles of particular relevance are:

General

"Principle 1: Development within the Mount Lofty Ranges region should be compatible with its use as a water catchment and storage area, and with its values as an area of agricultural production and scenic quality.

Principle 2: Development should primarily be limited to that which is essential for the maintenance of sustainable grazing, commercial forestry and mixed agricultural activities.

General (Watershed)

Principle 7: Land should not be divided, nor allotment boundaries re-arranged in such a way that development of the resulting allotments in accordance with the objectives and principles of development control would result in a greater risk of pollution of surface or underground waters than would development of the existing allotments.

Principle 8: Land division may be undertaken in the Mount Lofty Ranges Watershed where no additional allotment or allotments are created and the purpose of the plan is to:

(a) provide for a minor re-adjustment of allotment boundaries in order to correct an anomaly in the placement of those boundaries with respect to the location of existing buildings and structures; and

(b) provide for a minor re-adjustment of allotment boundaries in order to improve the management of the land for the purpose of primary production and/or the conservation of its natural features.

Principle 9: Development should primarily be limited to that which is essential for the maintenance of sustainable grazing, commercial forestry and mixed low intensity agricultural activities compatible with the water catchment function of the zone."

6	Also relevant is Zone Principle 140, which designates all forms of development within the zone as non-complying, save for a range of listed exceptions, which includes the following:

"Land division where no additional allotments are created, either partly or wholly, within the Mount Lofty Ranges watershed, and where the development of the proposed allotments does not result in a greater risk of pollution of surface or underground waters than would the development of the existing allotments, and provided a suitable site for a detailed dwelling is available which complies with the following criteria:

(a) Is not located in areas subject to inundation by a 100-year return period flood event or sited on land fill which would interfere with the flow of such flood waters.

(b) Is connected to an approved sewerage or common effluent disposal scheme or has an on-site waste water treatment and disposal method which complies with the Standard for the Installation and Operation of Septic Tank Systems in South Australia (including supplements A & B) as prepared by the South Australian Health Commission.

(c) Not have any part of a septic tank effluent drainage field or any other waste water disposal area (eg irrigation area) located within 50 metres of a watercourse identified on a current series 1:50 000 Department of Environment and Natural Resources topographic map.

(d) Not have a waste water disposal area located on any land with a slope greater than 20 percent (1-in-5), or depth to bedrock or seasonal or permanent watertable less than 1.2 metres.

(e) Not have a septic tank or any other waste water treatment facility located on land likely to be inundated by a ten-year return period flood event."

7	Council Wide provisions of the Development Plan place considerable emphasis on the retention of productive agricultural land and the attractive open rural character of the district, for example:

"Objective 59: Conservation and preservation of the attractive open rural character of the district.

Objective 60: Productive agricultural land protected from conversion to non-productive or non-compatible uses.

Objective 61: The retention of rural areas primarily for agricultural, pastoral and forestry purposes, and the maintenance of the natural character and beauty of such areas."

8	Similar provisions include Council Wide Objectives 9, 43, 59, 60 and 61 and Principle 4, and Zone Principles 9, 10, 111, 112, 113, 114 and 115.

Assessment

Land Use

9	An assessment of the proposed development against the relevant provisions of the Development Plan requires the identification of the purpose, intent and desired character of the zone within which the subject land is located and an assessment against these as well as against any other relevant planning considerations: City of Mitcham v Freckmann and Ors [1999] SASC 234; (1999) 74 SASR 56.
10	The Development Plan provisions for the Rural Watershed Protection Zone are very clear. While they do not preclude entirely the possibility of other land uses within the zone, they are clearly directed towards encouraging the maintenance of primary production within the zone. The commentary which follows the Council Wide Rural Areas Objectives 59, 60 and 61 states:

"Pressures for the division of rural land are likely to accelerate because of the commuting possibilities that the Mount Lofty Ranges and other near-metropolitan areas offer to people who work in the metropolitan area. The removal of primary production from rural areas places greater dependence upon the deminishing [sic] fertile areas. It is in the community interest that as much agricultural land as possible be retained in primary production. The region contains some of the best agricultural land in the State and is ideally situated to serve the food requirements of the metropolitan area.

The protection of the natural beauty, agricultural land and water resources, should remain the over-riding consideration governing decisions relating to development of rural land in the outer metropolitan area."

11	Mr Manos, for the Appellant, submitted that, if proposed Lot 21 was created and sold, his client would be able to use the proceeds of that sale to reduce his current level of debt, thereby rendering it possible to continue to operate the remainder of the property for grazing, despite the current low returns from that activity. Were approval not to be granted for the subject proposal, it was the Appellant’s present intention to sell existing Lot 230, rasing the possibility of that land no longer being used for primary production, or being poorly managed.
12	This submission was supported by the evidence of Mr Batge, whose view was that the creation of a small rural living allotment would be consistent with the existing character of the locality and the objectives for the zone. Within the locality there were a number of dwellings with associated outbuildings or farm buildings within 20m – 100m of the road. The configuration of proposed Lot 21 would allow for siting of a dwelling in a manner consistent with others in the locality, and the size of proposed Lot 20 would be such as to render unlikely its use for purposes other than primary production, and to reduce its dollar value/ha to a level more affordable and financially viable for rural production.
13	Mr C Drew, a qualified and experienced agricultural economist and business consultant, who gave evidence in the Appellant’s case, was of the opinion that the subject proposal was justified for the following reasons:

(a) it would enable improved agricultural and environmental management and increase the viability of the property;

(b) it would preclude possible conflict, including environmental nuisance complaints, should one of the existing allotments be sold; and

(c) the proposed rural living allotment was unlikely to cause environmental problems and was likely to retain or improve the rural and natural character of the locality.

14	Mr Drew was of the opinion that it would be unwise for the Appellant to sell Lot 230, as certain scale diseconomies would result, assuming the Appellant wished to continue the current use of the remaining land for grazing. However, he was also of the view that sale of Lot 230 would not inevitably result in a loss of rural productivity or poor management. Even were that land sold to someone who wished to occupy primarily it for amenity reasons, there was no reason to assume that it would not be maintained and used productively, albeit that could sometimes be the case. If Lot 230 were sold, some potential for conflict existed because the dwelling on that allotment was very close to the dwelling on Lot 2.
15	Mr B Hughes, an experienced land management consultant who gave evidence in the Respondent’s case, was of the view that there was a very high likelihood that, if Lot 230 were sold, both that allotment and Lot 2 were likely to be put to some primary production use, and that this was likely to be a semi-commercial grazing enterprise.
16	The Appellant, in evidence, was of the opinion that Lot 230, if sold, would be used for running cattle, albeit this would not, of itself, constitute a viable enterprise in its own right.
17	Having regard to all the evidence, it would seem that there is no reason to assume that rejection of the subject proposal would result in the loss of Lot 230 (or any other part of the Appellant’s land) from primary production, albeit there was a possibility that Lot 230 might be purchased primarily for amenity reasons. Conversely, creation of proposed Lot 21 would, on the evidence, inevitably result in the loss of that land to primary production, it being of a size consistent with rural living use. Mr K Gerner, a qualified and experienced planner who gave evidence in the Respondent’s case, summarised the position in his statement of evidence:

"The proposed land division is a form of development which cannot be considered as an initiative primarily for low-density farming. Conversely it proposes the creation of a rural living size allotment which has the potential to impact the rural landscape, to some degree, by increasing the intensity of land use in an area where the policies envisage development of a less intense nature. Such intensification would come in the form of a new dwelling, other structures and hobby farm activity on a holding which is relatively small in size, when compared to most others in the local area.

Creation of rural living allotments in this zone is not envisaged and other more suitable locations exist within the Council area. In particular the policies in Policy Areas 5 and 6 of the Rural Living Zone in the District Council Mount Barker Development Plan specifically encourage creation of lots in the vicinity of 2 hectares."

18	Mr Batge, in evidence, suggested that the use of the term "primarily" in Zone Principle 9 "should not rule out other positive development or development that does not detract from the primary function for the land. To take a different approach would rule out positive but not necessary development in a process in which the benefits and disbenefits are properly weighed".
19	This Court, on a number of previous occasions, has given consideration to the way in which objectives and principles incorporating the word "primarily" should be interpreted, and has consistently taken the view that its use in a Development Plan context does not relieve planning authorities or this Court of the obligation to take into account the overall intent and purpose and desired character of the relevant zone: see, for example, Soraghan v City of Charles Sturt [2001] SAERDC 85, at paras 38-39, and Croser Brothers Pty Ltd v Yankalilla District Council [2001] SAERDC 86 at para 28.
20	The overall intent, purpose and desired character of the Rural Watershed Protection Zone are clear, as are the Council Wide provisions of the Development Plan for the District Council of Mount Barker, their general thrust being encapsulated in Zone Principle 115:

"115. Development which would remove productive land from agriculture or diminish its overall productivity for primary production, should not be undertaken unless the land is required for essential public purposes."

21	(Use of agricultural land for "essential public purposes" may be one of the exceptions contemplated by the use of the word "primarily" in Zone Principle 9.)
22	Zone Principle 8 contemplates the possibility of land division in the nature of minor boundary adjustments to correct anomalies or to improve the management of land for primary production purposes. While it was the Appellant’s evidence that existing fencing on his land followed existing title boundaries, it was also his evidence that stock was moved from one part of his total land holding to another, and both Mr Drew and Mr Hughes were of the view that the proposed land division, resulting as it would in the consolidation of existing Lots 2 and 230 into a single allotment of some 115ha, would not result in any improvement to the management of primary production activities undertaken on the subject land.
23	On the basis of the evidence in this matter, I am unable to conclude that the proposed land division is of a kind contemplated by Zone Principle 8. Furthermore, the proposal is in conflict with one of the overall thrusts of the Development Plan for the District Council area, that being the protection and maintenance of primary production in the zone, and the prevention of the loss of productive agricultural land. In that respect the proposal conflicts with a number of relevant Development Plan provisions, including Zone Objectives 1 and 5 and Principles 1, 2, 4, 8, 9, 111, 112, 114 and 115, and Council Wide Objectives 59, 60 and Principle 4. The proposal would remove land from primary production and while the area of proposed Lot 21 is relatively small, the potential exists for a considerable amount of productive agricultural land to be lost should the progressive realignment of existing title boundaries to create high value small rural living allotments be allowed to continue on the basis that proceeds from the sale of those small allotments has the potential to render more viable the remaining, larger allotments. It is established law that, while each development application falls to be considered on its merits, it is open to planning authorities (and this Court) to have regard to the possibility that planning policies may be compromised or defeated if approval of a development creates an undesirable precedent: Nadebaum v City of Mitcham [1995] EDLR 587 at 591 and 593; Toyias v Alan Sheppard Homes Pty Ltd and Corporation of the City of Burnside [1997] SASC 6160; (1997) 69 SASR 42. I do not accept that that the kind of boundary adjustment proposed is of the kind contemplated by Zone Principle 8, and, in any event, the scale of boundary adjustment contemplated in this proposal could scarcely be described as minor.
24	On the basis of my conclusions above, I have further concluded that the extent to which the subject proposal conflicts with the provisions of the Development Plan referred to is such that it should not be approved.
25	Having so concluded, it is, perhaps, unnecessary to address other grounds raised by the Respondent Commission as justifying refusal of the subject proposal, these being its potential to create both water pollution and conflict between genuine agricultural activities and rural living.
26	However, for the sake of completeness I will touch briefly on these grounds.

Water Pollution

27	Ms Ward, for the Respondent Commission, submitted that the proposal was inconsistent with those provisions of the Development Plan relating to protection of water resources, in particular Zone Objectives 1 and 3 and Principles 9 and 108. In support of that submission she referred to the evidence of Mr G Thompson, an Environment Protection Officer employed by the Environment Protection Authority, who gave evidence in the Respondent Commission’s case. Mr Thompson’s evidence was that proposed Lot 21, being in close proximity to a watercourse, had the potential, given its likely use for rural living purposes, to pollute that watercourse, as a consequence of run-off from irrigated fertilised gardens and vegetable crops. The soil in the vicinity of proposed Lot 21 had a shallow restricting layer which restricted deep penetration by water, meaning that water or rainfall would quickly saturate the layer near the surface, resulting eventually in the movement of surface water to the nearby watercourse. Mr Thompson also held concerns regarding the capacity of the soil on proposed Lot 21 to effectively absorb and contain domestic wastewater from a dwelling on that allotment.
28	No other expert evidence on water pollution was provided to the Court. In cross-examination, Mr Thompson acknowledged that an aerobic wastewater treatment system, if established on Lot 21, would probably be effective in preventing wastewater pollution, but, on balance, was of the view that the risk of pollution would be lower if a dwelling was constructed on the site of the existing, run-down dwelling on Lot 230.
29	On balance, I found the evidence on potential water pollution somewhat inconclusive, given evidence that the watercourse was presently polluted by cattle, which had unrestricted access to it. Were the refusal of the subject proposal to have been founded solely on this ground, I would not consider the evidence of Mr Thompson a sufficient basis for that decision.

Land Use Conflict

30

Ms Ward submitted that the creation of an additional residential allotment in a rural zone had the potential to add to cumulative pressures on genuine agricultural activities in the locality, those pressures arising from the introduction into the locality of residents seeking a peaceful, Arcadian rural lifestyle, raising the likelihood of complaints about noise, dust, spray drift, odour or traffic created by nearby primary production activities.

31

In that respect, Ms Ward submitted, the subject proposal conflicted with Zone Principles 11 and 112, which provide:

"11. Development should take place in a manner which will not interfere with the effective and proper use of other land in the vicinity and which will not prevent the attainment of the objectives for that other land."

"112. Development should ensure that genuine agricultural activities are not prejudiced."

32	While none of the expert witnesses anticipated problems of the kind described by Ms Ward were the Appellant to continue with his current grazing activities, Mr Thompson was of the view that the introduction of annual horticulture on the land adjoining proposed Lot 21 was likely to result in nuisance-causing levels of spray drift and noise. Mr Hughes considered the land well suited to summer annual horticulture crops.
33	Mr Batge’s opinion was that, were the subject proposal not approved, there was as much likelihood of nuisance complaints from occupants of a dwelling on Lot 230 as there would be from one on proposed Lot 21, and there was therefore no greater likelihood of nuisance complaints created by the subject proposal.
34	On the evidence, I would find it difficult to conclude that a dwelling on proposed Lot 21 would create a higher risk of nuisance complaints than a dwelling on Lot 230. However, there is, in my experience, a greater likelihood of the former, rather than the latter, being purchased for lifestyle reasons, and I am mindful of Mr Batge’s evidence (again, consistent with my own experience) that a person who has purchased rural land for lifestyle reasons has a lower tolerance of agricultural activities than a person involved in primary production. The size of Lot 230 would suggest that any purchaser would, of necessity, be involved, in some measure, in primary production.
35	While the likelihood of nuisance complaints arising from the creation of proposed Lot 21 would not, in the absence of other material conflicts with the Development Plan, be conclusive, I am of the view that the proposal conflicts with Zone Principles 11 and 112.

Conclusion

36	Having regard to all the above, I have concluded that the subject proposal conflicts, to a substantial degree, with those Development Plan provisions directed towards the maintenance of primary production in the Rural Watershed Protection Zone, including Zone Objectives 1 and 5 and Principles 1, 2, 4, 8, 9, 11, 111, 112, 114 and 115 and Council Wide Objectives 59, 60, and Principle 4.
37	The Development Plan does not preclude absolutely division of land in the manner proposed. Zone Principle 140 exempts from the range of non-complying developments, land division which creates no additional allotments, and which can provide a site for a detached dwelling which is not flood prone and which meets a range of criteria regarding effluent disposal. However, that provision serves merely to define those land uses which can be granted consent. It remains to assess those uses against the other relevant provisions of the Development Plan. When the subject proposal is assessed against those provisions, it is in clear conflict with them. There is nothing in the circumstances of this proposal to suggest that, notwithstanding that conflict, consent is warranted.
38	In the light of my conclusion above, I have further concluded that the decision of the Respondent Commission to refuse the subject proposal was correct, and should be confirmed.
39	There will be an order to that effect.