TIGER PLAINS PASTORAL COMPANY P/L v MID MURRAY COUNCIL [2009] SAERDC 5 (28 January 2009)

Last Updated: 30 January 2009

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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TIGER PLAINS PASTORAL COMPANY P/L v MID MURRAY COUNCIL

[2009] SAERDC 5

Judgment of Her Honour Judge Cole, Commissioner Mosel and Commissioner Botting

28 January 2009

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Appeal against refusal by Council of an application for development plan consent to resubdivide a parcel of land comprising 39 allotments to create 35 allotments for use for lifestyle purposes - native vegetation and conservation of the land considered - the relevant provisions of the Development Plan considered - standard of roads considered - proposed land division found to be inconsistent with the relevant provisions of the Development Plan - decision of the Council is confirmed.

Development Act 1993; Native Vegetation Regulations 2003, referred to.

TIGER PLAINS PASTORAL COMPANY P/L v MID MURRAY COUNCIL
[2009] SAERDC 5

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. Tiger Plains Pastoral Company Pty Ltd (“Tiger Plains”) is the registered proprietor of Sections 17-20, 37-45, 220-239, 269 and 270 in the Hundred of Beatty, and Sections 250-253 in the Hundred of Eba in the area of Mt Mary (“the land”). The land is presently held in 39 allotments. Tiger Plains applied to the Mid Murray Council (“the Council”) for development plan consent to resubdivide the land. The Council refused the application, and Tiger Plains appealed to this Court from that refusal.
2. Upon the hearing of the appeal, evidence was given in the appellant’s case by Mr Thomas, an agricultural scientist, Dr Taggart, a research scientist and expert in Australian native wildlife, Mr Lay, an expert in dryland ecology, Mr Lang, the sole director and shareholder of Tiger Plains, and Mr Burns, a town planner. In the respondent’s case, evidence was given by Mr Fry, the Council’s Works Manager, Ms Blaylock, a scientific officer in the Department of Water, Land and Biodiversity Conservation and Ms Henderson, Council’s planning officer. The Court took a view of the land and some of the locality with the parties.

The Land

3. The land is a large irregularly shaped parcel of 2,911 hectares with public roads running through it both north/south and east/west. Sections 220-239 are at the western end of the land, nearest to the small settlement of Mt Mary. They range from 2 to 5 hectares each in area. In evidence, they were frequently referred to as the “township allotments”. The balance of the land consists of parcels ranging from 31.8 hectares to almost 200 hectares in area, with the majority in the 130 – 190 hectare range.
4. The land has a perimeter fence, which is in quite a good condition on the northern boundary, but requires some repair at other points. The fencing is presently not adequate for stock containment. There are several dry dams and stock troughs on the land. The ruin of an old stone homestead is present on the land.
5. The land has most recently been used for the grazing of sheep. It was the evidence of Ms Henderson that the land once formed part of a larger commercial farming property. There are two mains water connections to the land, one of which runs from Kleinig Road into Section 38, and the other of which comes from the public road south of Section 39 to the boundary of Sections 197 and 250 in the north eastern corner of the land. Mr Lang gave evidence that he discovered in 2007, when the land was last used for grazing, that the second of the two pipes was severely damaged so that a very large quantity of water leaked from it when it was used. No water is available to the land for irrigation purposes. The land is in a low rainfall area.
6. Thiele Highway, a sealed arterial road, is to the north of the land, and the land is separated from it by an unused railway reserve (the abandoned Morgan – Eudunda railway line). There are two access points to Thiele Highway from unsealed public road reserves within the land. Kleinig Road abuts much of the southern boundary of the land. Other unnamed and unsealed public roads of varying standards run through the land. Tiger Plains Road runs from Thiele Highway to Kleinig Road through the land in a north/south direction.
7. Much of the land is covered in native vegetation. The township allotments have less native vegetation upon them than other areas of the land.

The Locality

8. The town planning witnesses were substantially in agreement as to the extent of the locality of the proposed development. The locality extends along Promnitz Road west to Krichauff Road, south to Stock Route Road, which runs east into Daffs Gully Road and Government Road to Pat Hydes Road running north into Eba Road which joins Promnitz Road.
9. The locality is predominantly rural land, much of it vacant with native scrub and some of it grazed. The very small settlement of Mt Mary (one Hotel, one General Store/Residence, and four houses with outbuildings) is within the locality immediately to the west of the land.

The Proposed Development

10. The proposed development involves the realignment of the boundaries of the existing allotments which comprise the land and the creation of 35 allotments out of the existing 39 allotments. The new allotments would range in size from 57.8 hectares to 133 hectares. The stated purpose of the proposed development is to create allotments which, in the opinion of the proponent, would be suitable for use by individual owners for the conservation and enjoyment of the flora and fauna on the land. The proposed allotments were called, in the appellant’s case, “lifestyle allotments”. This is not a term used in the Development Plan or the Development Act 1993. It is really a marketing term. It seemed to us that the term “lifestyle allotment” was adopted at least partly to distance the appellant from any suggestion that the purchasers of the proposed allotments would seek to use them for rural living purposes, which implies the construction of a dwelling on the property.
11. It is clear from Mr Lang’s evidence that he does not wish to use the land for grazing.

The Development Plan

12. The applicable Development Plan is the Mid Murray Council Development Plan consolidated on 24 March 2005. The land is situated in the Rural Zone and in Policy Area Number 15 – Pastoral Policy Area.

Assessment
Land Use

13. Mr Thomas gave evidence in Tiger Plains’ case concerning the attributes of the land and its suitability for farming. Mr Thomas said that the rainfall in the locality of the land is approximately 230mm per annum, and is unreliable. The native vegetation on the land is generally in quite good condition, indicating that it has only been lightly grazed in recent years. There are two mains water connections to the property, but one is in such a state of disrepair as to be effectively useless. Fencing in some parts of the property is not in a sufficiently good condition to contain sheep. Mr Thomas said that the combination of shallow soils and low and unreliable rainfall mean that the land is not suitable for cropping or horticulture. Mr Thomas said that the land was only suitable for grazing sheep, and possibly cattle, probably at low stocking rates. He said that the property was not viable economically as a stand alone grazing operation. Mr Thomas said that a 4000 head ewe flock was required for an economically viable grazing operation in the area. An environmentally sustainable stocking rate for the locality would be 25 ewes per square kilometre, so that about 16,000 ha (160km²) would be required for a viable property. Mr Thomas said that his calculation assumed the existence of suitable fencing and watering points, which do not exist on the land, and would further compromise the economic viability of a grazing operation involving the land. In cross examination, Mr Thomas said that he was aware of large pastoral operations in the area which involve the use of numerous allotments.
14. Mr Thomas said that, in his opinion, the land is suited to “lifestyle” use. He said that he foresaw three types of purchasers for the proposed allotments; investors who do nothing with the property, those who enjoy the property at weekends and those who build a dwelling on the property.
15. Dr Taggart is an expert on Australian native ecology. Dr Taggart had inspected the land. He said, in his statement:

I would suggest that the predominant environmental features of this property include; its Mallee remnants, areas of thick blue/salt bush and relatively weed free native grasslands. The combination of these three ecosystems suggests that the diversity of bird species at this site will be significant. Unlike much of the Murraylands, no wards weed, thread iris or introduced South African snails were observed at this site. Removal of hard hoofed stock has already resulted in the reappearance of the native Mitchell grass, (an important food source for herbivorous marsupials and seed eating birds) and an abundance of lichens important for fixing nitrogen in the soil. Young seedlings of several species were also observed.
...
Based on studies/surveys in the surrounding area there are most probably 13 native marsupial, monotreme and rodent species and 10 micro-bat species at Tiger Plains, Mt Mary. I am able to confirm from my visit to the site that southern hairy-nosed wombats and western grey kangaroos are indeed present at the site....
I would proffer that the conservation value of this site is high considering the diversity of the plant and animal species likely to be present, and the general widespread clearing/disturbance of much of this region, associated with grazing and other forms of agriculture.

16. Dr Taggart thought that the proposed land division would reduce the potential number of owners and users of the site because of the overall reduction in the number of allotments. He thought that the size of the allotments would attract potential purchasers who are interested in the preservation of the existing natural environment. He was aware of a subdivision near Swan Reach which had created allotments in the 80 to 160 hectare range and had attracted purchasers interested in the natural environment who chose not to fence their allotments, and to minimise the disturbance of native flora and fauna. Dr Taggart was keen to see the removal of the potential for the grazing of the land by hard hoofed stock in the future, as he believed that the preservation of the exiting native vegetation and fauna was important.
17. Mr Lay is also an expert in Australian native ecology. He also assessed the native vegetation on the land as worthy of preservation. He said, in his statement:

There is no doubt that some disturbance to the existing native vegetation will occur once the proposed allotments are sold individually if the new owners seek to provide an access track to their properties, to fence same and to prepare an area for their base, whether that is a shed or a future dwelling site. However, the extent of such clearance is likely to be minimal given that I have assumed that the only practical use for such ex-grazing land would be for “lifestyle purposes.

18. In Mr Lay’s opinion, the use of the land for “lifestyle purposes” was likely to result in less disturbance to the native flora than grazing would. Mr Lay is the owner of an allotment in the Eastern Mt Lofty Ranges, which he uses to preserve native vegetation, and which is the subject of a heritage agreement. Mr Lay is in touch with other owners of allotments used in a similar manner.
19. Mr Lang, the sole director and shareholder of Tiger Plains, gave evidence. Mr Lang is a land agent. Mr Lang said that Tiger Plains purchased the land on 5 October 2005. In June 2006, approximately 800 wethers were put on the land to graze. Six months later, the number of ewes was halved. The land was entirely de-stocked in June 2007, the enterprise having failed and resulted in substantial financial losses. The state of the water supply and the inadequate fencing were among the causes of the failure of the enterprise.
20. Mr Lang said that he would expect the price of the land to be approximately $60 per acre ($24 per hectare) if it were sold as a whole. Were the land to be divided into the proposed allotments, in Mr Lang’s opinion, the price would be likely to be in the order of $180 per acre ($73 per hectare). Mr Lang pointed out that this would increase the amount of the Council rates on the land.
21. Mr Lang said that he had preliminary approval for his application to the Department of Environment and Heritage for a grant of $117,540 for the enhancement of the native vegetation on the land by dry seed planting. That portion of the land which is the subject of the grant application is near to Mt Mary, and comprises 16 of the “township” allotments. Under the proposal, those 16 allotments would become one allotment. Mr Lang said that it would be too difficult to undertake the revegetation of 16 separate allotments in separate ownership. Those allotments are not now in separate ownership.
22. Mr Lang did not believe that the potential purchasers of the proposed allotments would expect to be able to build a dwelling on the allotments. He thought that the allotments would be attractive to people who wish to enjoy the environment and to camp or bring a caravan onto the land. He did not think that the potential purchasers would wish to fence the land.
23. Mr Burns, the town planner who gave evidence in Tiger Plains’ case, accepted that it was implicit in the proposed development that the proposed allotments would be sold to individual owners. He compared that scenario with the sale of the existing allotments, and concluded that the proposal would lead to a more orderly fragmentation of the land. He thought that the proposed allotments were more likely to be devoted to an acceptable, conservation type use by virtue of their size compared to the existing “township” allotments.
24. Ms Henderson, the Council planner, gave evidence in the Council’s case. Ms Henderson has been employed by the Council for two and a half years. Ms Henderson said that she receives ten to twenty-five enquiries per day about the possibility of building a dwelling in a rural area within the Council area. Generally, she finds that there is an expectation that if there is an allotment, it will be permissible to build a dwelling on it. Ms Henderson said that she does not get many enquiries about using land for conservation purposes, but this may be because people do not perceive that such purposes are development and may require approval. Ms Henderson did not believe that people necessarily saw recreational pursuits on rural land as being at odds with conservation. She mentioned trail bike riding, caravanning and camping as activities that people wish to pursue in the Council area. Ms Henderson said that very few properties in the Rural Zone amounted to 900 hectares, but that grazing operations tended to use a number of parcels together to achieve economic viability.
25. In Ms Henderson’s opinion, prospective purchasers are likely to wish to use the land for “rural living” purposes. Ms Henderson thought that the increased value of the land after the proposed division would make it less likely that any of the allotments would be purchased by a grazier for use in conjunction with other grazing land. Ms Henderson thought that the land division would create greater potential for vegetation clearance for tracks and recreational activities (camp sites, for example) and increase the risk of inappropriate weed and feral species control.
26. Ms Henderson acknowledged the existing potential for the 20 “township” allotments to be sold, but thought that individual ownership of those allotments, which are not as ecologically significant as the balance of the land, was a less undesirable outcome than the division of the land in accordance with the proposal, and the sale of the resultant allotments.
27. The Development Act 1993 (“the Act”) in s 33(1)(a) provides for a relevant authority to assess a development against the provisions of the relevant Development Plan. If the development is sufficiently in compliance with the relevant provisions of the Development Plan, then development plan consent may be granted. Principally, our task is to assess the proposed development against the relevant provisions of the Development Plan. It is not, principally, an exercise in comparing what is proposed to what exists, although that may be a relevant factor where the assessment is finely balanced.
28. Council wide Objective 32 seeks:

Retention of rural areas for agricultural and pastoral purposes.

29. Council wide Objective 33 seeks:

Maintenance of the character of rural areas.

30. The text under Objective 33 says:

Rural areas should be retained primarily for agricultural and pastoral purposes and horticultural use where natural resources such as groundwater supplies and surface catchments are not adversely affected. Conservation of bushland and wildlife are also important considerations. The design and siting of buildings in rural areas should be compatible with the object of conserving rural character.
The use of rural land for residential use should be discouraged because it diminishes rural character, makes the provision of public services uneconomic; increases land values with consequential upward pressure on rates and taxes; and contributes to land use conflicts which has the affect of limiting the right to farm.
The removal of primary production from rural areas also places greater dependence upon the diminishing fertile areas. It is in the community interest therefore as much agricultural land as possible be retained in primary production and without residential incursions other than where residential use is required to manage land.

31. Council wide Objective 34 seeks:

Rural living development in defined areas.

32. The text under Objective 34 says, in part:

Development of rural land as small holdings primarily for residential purposes should be undertaken only in defined zones or policy areas assessed in accordance with strict design and siting conditions.

33. Council wide Principle of Development Control 137 provides that a caravan should not be located on an allotment and used for habitation unless it is ancillary to an existing dwelling, or the land is a caravan park, or as a temporary measure whilst a dwelling is built. Council wide PDC 138 says that the erection of a shed for human occupation should not be undertaken. Council wide PDC 139 says that an outbuilding on an allotment in rural areas should only be erected when it is associated with residential development or it is essential for primary production or an approved use of the land.
34. The text of the Rural Zone provides (in part) as follows:

Background
..
Dryland primary production is the dominant land use throughout the Zone. In the south this comprises cropping and grazing, but in response to lower rainfall to the north cropping is less prevalent and there are considerable areas of remnant mallee and saltbush, particularly in the pastoral lands where rangeland grazing is predominant. ...
Desired Future Character
The zone is the location of the majority of dryland agricultural production within the Council area but it also includes irrigated orchards, vegetables, vineyards and pasture where there is access to water supplies for irrigation. The processing of agricultural product is envisaged which, subject to compliance with environmental criteria, could include value-adding enterprises such as packing and processing works and wineries. Other forms of small-scale industry may be appropriate in association with existing residential development, on allotments which are not suited to primary production, or as an adjunct to an existing primary production operation.
...
The zone’s rural and natural character lends itself to tourism activities, such as the interpretation of the natural environment, the sale or sampling of produce and on-farm tourism which will enhance the value of local production and add to the quality and range of experiences available to the visitor in the region. The value-added activities however should not be undertaken in a way which would prejudice the long-term operation of primary production.
Scenic vehicular routes transverse and define the zone. Land adjoining a defined scenic route or which can be viewed from the routes, should only be developed to enhance their function.
Other than where qualified by the provisions for the Policy Areas, the following uses are acceptable in the Rural Zone:

• farming and farm buildings;
• horticulture particularly viticulture, vegetable and fruit production and associated storage and processing buildings;
• irrigated pasture;
• residential use providing it is associated with farming, horticulture, viticulture;
• infrastructure to support acceptable uses;
• tourist accommodation associated with existing farm dwellings;
• tourism development associated with the natural environment;
• uses which aid interpretation of natural areas and the region’s natural heritage;
• intensive animal keeping providing specified separation distances can be achieved;
• land-based aquaculture providing specified separation distance can be achieved; and
• land extensive uses to support urban areas such as waste disposal or waste treatment.
  

The following uses are unacceptable in the Rural Zone.

• retail apart from the sale of farm produce;
• urban residential;
• industry and commercial not associated with farming, horticulture, or viticulture excluding small scale home industry on an allotment of which its size, existing use and land capability do not support economic primary production;
• outdoor advertising other than information signage, or relative to the sale of produce from the land on which the sign is sited; and
• olive plantation within 1km of the River Murray Zone (apart from the Primary Production Policy) and Conservation Zone.
  

35. Objective 1 for the Rural Zone is:

Long-term operation and sustainability of rural production and primary industries.

36. Objective 23 for the Rural Zone is:

Allotments suited to their proposed use.

37. The provisions of Policy Area Number 15 are as follows:

Introduction
The principles of development control that follow apply to the Pastoral Policy Area 15 shown on Maps MiMu/64 to 74 and 80. The policies are additional to those for the Rural Zone and the Council Wide provisions.
Desired Future Character
The majority of the Pastoral Area is used for extensive grazing on property sizes of an average size of 900ha. Land Management practices should improve the marginal quality of the land, and not result in further land degradation or land fragmentation.

PRINCIPLES OF DEVELOPMENT CONTROL

1. Development should not be undertaken unless it is consistent with the Desired Future Character for the Rural Zone and Pastoral Policy Area.
2. The minimum allotment size for a dwelling is 900ha.
38. All of these provisions, taken together, give a clear indication of what the Development Plan seeks for the land in land use terms. Quite simply, it is to remain in use for primary production. Rural living is to be undertaken only in areas set aside for that purpose by the Development Plan. The land is not within such an area. The Development Plan goes so far as to contemplate specifically a desire to place a caravan on rural land for habitation purposes, and seeks to prevent that from occurring.
39. The witnesses in the appellant’s case have predicted that the purchasers for the allotments proposed will wish to use them for ecologically sensitive recreational purposes. However, Ms Henderson’s experience suggests that there will be a broader range of potential uses in the minds of prospective purchasers. We accept her evidence that many members of the community expect to be able to build a dwelling on an allotment (see PDC 47, where land division in the Rural Zone is not non-complying only where no additional allotments are created and provided a suitable site for a dwelling is available). We think that it is likely that there would be prospective purchasers who would see the allotments proposed as suitable for trail bike riding, shooting and other uses inconsistent with both pastoral uses and conservation. We note that Tiger Plains is not proposing, by means of land management agreements or heritage agreements, to ensure that any future use of the land is a conservation use. On Tiger Plains’ own case, the division of the land proposed would make the land more expensive and more attractive to purchasers who do not intend to use the land for grazing. It is contemplated, by Tiger Plains’ case, that the grazing use of the land would not be resumed after the division of the land. In all of the circumstances, having regard to the extensive relevant provisions of the Development Plan regarding land use, we consider that the proposed development is inconsistent with the provisions of the Development Plan in relation to the use of land. The Development Plan seeks to have the land remain in agricultural production. We accept the evidence that the only practical agricultural use of the land is for grazing.

Conservation

40. The Council-wide section of the Development Plan contains the following Objectives regarding conservation:

Objective 35: Conservation, preservation or enhancement of scenically attractive areas, including land adjoining water or scenic routes.
Objective 37: Preservation of natural vegetation of historic, local or particular visual significance.
Objective 39: Retention of environmentally-significant areas of native vegetation.
...
Fragmentation of homogenous areas of native vegetation through use of land or establishment of buildings should not occur.
PDC 11 The size, shape and layout of allotments should be determined with regard to physical characteristics and the intended use of the land.
PDC 13 Allotment boundaries should be located where interference with native vegetation and drainage lines will be minimal and in locations which enhance the management of the natural features and so that the allotments can accommodate the proposed or likely development without the need for clearance of native vegetation.
Rural Zone
Objective 4 Retention and maintenance of wetlands and existing native vegetation for its conservation, biodiversity, and habitat value and environmental management function.
Objective 5 Maintenance and enhancement of the landscape character.
Objective 24 Protection of environmental values of conservation areas.
PDC 4 Development should be designed and sited to respect and maintain the landscape character of an area which is of:
(a) historical (including archaeological) significance;
(b) scientific interest;
(c) scenic value or natural beauty;
(d) other heritage significance; or
(e) conservation significance.

41. Dr Taggart, Mr Lay and Ms Blaylock met prior to the hearing of the appeal. They prepared a note of points upon which they agreed, which became exhibit A9. Those points included the following:
    • Continued exclusion of agricultural stock from the subject land will provide environmental benefits. These will result from reduced grazing pressure and the removal of hard hoofed stock from the said land and include: continued regeneration of palatable species; improved soil structure; reduced vegetation degradation; improved habitat quality for biodiversity.
    • Human activity associated with dirt bike riding, fire wood collection and 4-wheel driving have negative impacts on the environment.
    • In general the distribution of invasive weed species on the subject land was negligible, except around old water points. In addition the only places native, woody increaser species, such as Dillon Bush, was observed around old water points and yards.
    • Conservation value of the subject land is high, with the potential to provide habitat for many species of conservation significance. Subject land does provide habitat for an extensive array of birds, mammals and reptiles.
    • Plant species diversity on the subject land is considered good when taking into account dry conditions and past impacts of grazing with the potential loss of palatable species.
    • Majority of site contains good cover of native vegetation, this includes a diversity of plant communities such as mallee, woodland, open shrub lands and grassland.
    • Regeneration in disturbed areas will occur naturally over time, with absence of stock.
42. Fundamentally, the difference of opinion among the scientific witnesses related to the difference in their predictions as to what was likely to occur if the land were divided. Dr Taggart and Mr Lay foresaw the sale of the new allotments to ecologically sophisticated people who would promote conservation. Ms Blaylock pointed to Reg 5 of the Native Vegetation Regulations 2003, which provides for exemption from the requirement to obtain approval for the clearance of native vegetation in specified circumstances. In her statement, Ms Blaylock referred specifically to the following exemptions:
    • Clearance for dwellings and associated structures (Regulation 5(1)(a))
    • Clearance for fire protection around dwellings (Regulation 5(1)(k)) - up to 20 metres around a dwelling
    • Clearance for fire protection around buildings other than dwellings (Regulation 5(1)(ka))
    • Clearance for provision of infrastructure such as power and water (Regulation 5(1)(d))
    • More extensive clearance for fire protection (Regulation 5(1)(n)) - beyond 20 metres and up to 50m around a dwelling.
43. Ms Blaylock was also concerned about Reg 5(1)(s) of the Native Regulation Regulations 2003 which provides for an exemption:

(s) if the clearance is for the purpose of providing a strip of cleared land of not more than 5 metres in width on either side or both sides of an existing fence or of a fence in the course of construction to provide access for the purpose of maintaining or establishing the fence and -
(i) the fence is reasonably required to control access by people or the movement of animals; and
(ii) the clearance is required to give reasonable access to the fence and is limited to the extent reasonably required to achieve that access; and
(iii) there is no other practicable alternative (including, in the case of a new fence, to the position of the fence) that would involve no clearance or the clearance of less vegetation or the clearance of vegetation that is less significant or (if relevant) the clearance of vegetation that has been degraded to a greater extent than the vegetation proposed to be cleared,
(and the operation of this paragraph extends to vegetation on land that is subject to a heritage agreement but does not apply to vegetation on a road reserve).

44. Ms Blaylock pointed out that the land division proposed would redistribute the allotments by removing the concentration of smaller sections at the western end of the land and creating more evenly sized allotments. Most of the existing “township allotments” contain very little native vegetation. Most of the native vegetation is on the existing larger allotments. The division of those allotments into smaller allotments would create the potential for more exempt clearance to take place, particularly for boundary fencing, but also for tracks and for purposes associated with dwellings and outbuildings.
45. There is nothing inherent in the proposed land division which would make it more attractive to ecologically sophisticated purchasers than the present sections would be. If, as Mr Lang believes, the proposed division would make the land more attractive to potential purchasers of individual allotments, then it seems to us that a greater potential for the exempt clearance of native vegetation, and consequent disruption to habitat, would be created.
46. By the same reasoning, we consider that the division would create greater potential for interference with scenic views, though this is not a critical issue in this matter.
47. There is a tension in this matter between the purpose intended for the land by the Development Plan, which is primary production, and the conservation of the native vegetation and the fauna it supports upon the land. Dr Taggart and Mr Lay, in supporting the proposal partly on the basis that it would make the future grazing of the land by sheep unlikely, have both relied on their personal experience of land elsewhere being managed for conservation purposes by ecologically-minded people. It is well known, however, that not all rural allotments are acquired and managed by such people, and their emergence as the purchasers of the proposed allotments is far from assured. We are required to assess this proposal against the relevant provisions of the Development Plan. It seems to us that the land use objectives and the conservation objectives can only be achieved if the land is used for the very light grazing of sheep. We understand that this is not economically viable for Mr Lang, in his specific circumstances. However, what Mr Lang is seeking is the creation of what could traditionally be called very large rural living allotments for a purpose not contemplated by the Development Plan in this Council area.
48. It may be that a new style of rural land use has emerged or is emerging along the lines outlined in Tiger Plains’ case. If so, this is a matter for the policy makers to investigate with a view to the possible amendment of the Development Plan. It is likely that an extensive body of data would be collected in that exercise; a great deal more than could be adduced in an appeal. The effect of the changes in policy in respect of this land upon other land in the Council area would be considered. It is not appropriate for us to pre-empt that process in an individual planning decision.
49. The proposed development is not contemplated by the Development Plan and is contrary to significant provisions of it.

Roads

50. Council wide PDC 10(f) and (g) say:

When land is divided:
...
(f) roads or thoroughfares should be provided, where necessary, for safe and convenient access to the carriageway of an existing or proposed road or thoroughfare;
(g) proposed roads should be of a gradient to connect safely and conveniently with an existing road or thoroughfare.

51. The proposed land division would retain the existing public road reserves. However, the existing road reserves do not all exist as roads on the ground. Some contain meandering tracks. Many would not be passable in wet weather. Some may only be passable by four wheel drive vehicle. Tiger Plains’ proposal in relation to providing access to the proposed allotments was set out in Mr Burns’ statement. Mr Burns provided a plan showing that access points for each of the proposed allotments could be made from the existing public road reserves. Mr Burns said that the upgrading of those portions of the public roads needed for the gaining of access to each allotment would be undertaken by Tiger Plains “to the standard of an unformed non-built up road”. In his evidence, Mr Lang indicated that it was his intention to provide roads to the standard known as unformed non-built up (“UFNBU”) roads of about 4 to 6m in width. Basically, roads are made to this standard simply by means of the grading of the existing surface. Mr Lang said in evidence that Tiger Plains would fund the grading of those sections of the road reserves required to provide access to each allotment to UFNBU standard, but he expected the Council to maintain those roads thereafter. Mr Lang pointed to the increase in rate revenue to the Council that he expected to result from the division of the land because of its increased capital value and indicated that he thought the undertaking of the maintenance of the roads was “a fair offset”.
52. Mr Fry provided us with a Council document which contains information about road standards within the Council areas. Mr Fry said, in his statement:

Mid Murray Council has a road classification system which is based on the same system used by the Grants Commission to share funding from the Federal Government to Local Government. There are two types of road in the classification that are relevant to this area. Both have unsealed (non-bituminized) surfaces.

• Unformed (known as Unformed Non Built Up UFNBU)
• Formed (known as Formed Non Built Up FNBU)

The main difference between these two roads is that Formed roads are designed to shed water off the road into side drains and eventually into a water course away from the road. Unformed roads have no such design so in periods of wet weather will lie on the road often making the road impassable.
The majority of the roads in the Tiger Plains area are Unformed, with a few key roads Formed for improved access.
While land in the Tiger Plains area was used for grazing, the requirements of the day were to have key roads Formed and in periods of wet weather the Unformed roads were avoided.
Expectations from people purchasing individual small sections (such as those proposed to be created in the land division) tend to be a lot different. Particularly if it rains and they are unable to get in or worse unable to get out.
In my experience, not long after purchasing such properties they become intolerant of pot holes, dust, corrugations, bull dust and lack of access in wet weather, which issues are far more characteristic of an Unformed road than a Formed road.

53. In Mr Fry’s opinion, the appropriate standard for the roads should the proposed development proceed would be FNBU to the following minimum specifications:
    • Crossfall of 4 – 6%
    • Pavement width 8m
    • Pavement depth 0.1m
    • 4:1 batters.
      
54. We accept Mr Fry’s evidence that roads to these specifications would be necessary to provide all weather access to the proposed allotments. The applicant’s case seemed to be that the purchasers of the allotments for “lifestyle purposes” would be unlikely to wish to gain access to their allotments when UFNBU roads were impassable. We find this unconvincing. The appellant also sought to compare the present road situation, bearing in mind that the existing sections could be sold individually, with the proposed allotments. Again, we remind ourselves that we are required in the assessment of this proposal to apply to it the relevant provisions of the Development Plan. The requirement for safe and convenient access in Council wide PDC 10(f) implies the provision of all weather access. As we have determined that the proposed development should be refused, it is unnecessary to decide, but we indicate that were the land division to proceed, roads to the standard specified by Mr Fry should be required.

Summary and Conclusion:

55. The proposed land division is fundamentally inconsistent with the relevant provisions of the Development Plan. The Development Plan seeks to retain the land in primary production at an intensity which is not inconsistent with the conservation of the native vegetation and fauna on the land. One of the purposes of the proposed development is to bring an end to primary production on the land.
56. The decision of the Council is confirmed.