Hood Rural Resources Pty Ltd v Bathurst Regional Council [2009] NSWLEC 1366

Hood Rural Resources Pty Ltd v Bathurst Regional Council [2009] NSWLEC 1366

BRILEP 2005 clause 31 does not apply to the application; clause 27 does apply, requiring lots of minimum 100ha in 1(e) zone. As inclusion of 1(f) land to achieve this minimum is inconsistent with the planning intent underpinning the community scheme and agricultural viability, and the SEPP No 1 objection was not well founded, development consent cannot be granted. The proposal is inconsistent with the draft Amending LEP, DCP objectives and community management statement, and its approval would be contrary to the public interest.

Jurisdiction
Australia
Judgment Date
11 November 2009
Procedural Posture
Appeal Against Refusal of Development Application / Judgment
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application' 'subdivision' 'community Title' 'rural Land Rezoning' 'environmental Planning Instruments']
['planning and Environment Law'] ['development Application' 'subdivision' 'community Title' 'rural Land Rezoning' 'environmental Planning Instruments']

Case Brief

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Procedural Posture

Appeal Against Refusal of Development Application / Judgment

Legal Issues

  1. 1 ['Whether the Court has power to grant approval to the proposed subdivision under the applicable zoning and planning controls' 'Whether an objection under State Environmental Planning Policy No 1 Development Standards is required and well founded' 'Whether the proposed subdivision is contrary to Development Control Plan - Mount Haven Estate' 'Assessment of impact on koalas and threatened species under SEPP 44' 'Whether consent should be granted having regard to a draft Local Environmental Plan' 'Whether the development would be contrary to prior existing development consent']

Ratio Decidendi

BRILEP 2005 clause 31 does not apply to the application; clause 27 does apply, requiring lots of minimum 100ha in 1(e) zone. As inclusion of 1(f) land to achieve this minimum is inconsistent with the planning intent underpinning the community scheme and agricultural viability, and the SEPP No 1 objection was not well founded, development consent cannot be granted. The proposal is inconsistent with the draft Amending LEP, DCP objectives and community management statement, and its approval would be contrary to the public interest.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'Development Application 2008/0211 for subdivision into five lots is refused.' 'The exhibits are returned.']