Scheele v Cooma-Monaro Shire Council [2013] NSWLEC 1053

Scheele v Cooma-Monaro Shire Council [2013] NSWLEC 1053

The application failed under clause 14(2)(a) because the land after subdivision was not to be used primarily for the purpose of agriculture. The evidence showed the majority of lots were not capable of genuine agricultural use, and there was not a reasonable probability of such use in the future. Furthermore, the application also failed to include the whole of the 1997 holding as required by the planning instrument. Both failures were fatal to the application.

Jurisdiction
Australia
Judgment Date
03 April 2013
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application' 'subdivision' 'agriculture Zoning' 'bushfire Risk' 'provision of Public Goods and Services']
['environmental Law' 'planning Law'] ['development Application' 'subdivision' 'agriculture Zoning' 'bushfire Risk' 'provision of Public Goods and Services']

Case Brief

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ["Whether the proposed subdivision of land is 'to be used primarily for the purpose of agriculture' under clause 14(2)(a) of the LEP 1999" 'Whether the subdivision comprises the whole of the 1997 holding as required by clause 14(2)(a)(i)' 'Potential entitlement to dwelling-house approval on the subdivided lots' 'Whether the proposal is consistent with the aims and objectives of the planning instrument']

Ratio Decidendi

The application failed under clause 14(2)(a) because the land after subdivision was not to be used primarily for the purpose of agriculture. The evidence showed the majority of lots were not capable of genuine agricultural use, and there was not a reasonable probability of such use in the future. Furthermore, the application also failed to include the whole of the 1997 holding as required by the planning instrument. Both failures were fatal to the application.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'Development Application 24/10 for the subdivision of Lot 41 in DP 257114 and Lot 44 in DP 39926 into 16 lots is refused.' 'The exhibits are returned with the exception of exhibits 1, A and B.']