Blakemore & Anor v Maroochy Shire Council [2006] QPEC 12

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Blakemore & Anor v Maroochy Shire Council [2006] QPEC 012 PARTIES: KENNETH LESLIE BLAKEMORE and JOAN GAIL BLAKEMORE Appellants MAROOCHY SHIRE COUNCIL Respondent FILE NO/S: No BD 2969/04 DIVISION: Planning and Environment PROCEEDING: APPEAL ORIGINATING COURT: Brisbane DELIVERED ON: 28 February 2006 DELIVERED AT: Southport HEARING DATE: 1 and 2 September 2005 Written submissions received up to 27 September 2005 JUDGE: Rackemann DCJ ORDER: CATCHWORDS: Cases cited: Luke & Ors v Maroochy Shire Council & Anor [2003] QPELR 447 COUNSEL: Mr Hinson SC, for the appellants Mr Hughes SC, for the respondent SOLICITORS: Sykes, Pearson and Miller for the appellants Legal Services, Maroochy Shire Council, for the respondent -- 1 of 22 -- 2 INTRODUCTION [1] This appeal is against the refusal of an application for a development permit for reconfiguring a lot (minor rural subdivision) and a development permit for operational work (engineering works) in respect of land situated at 145 Chevallum Road, Palmwoods. [2] The subject site has an area of 3.97 hectares and contains two dwellings, with associated outbuildings and a dam. It is located approximately 1.6 kilometres south-east of the Palmwoods township and fronts Chevallum Road between its intersections with Old Chevallum Road to the west and Cheviot Road to the east. [3] The proposal is to subdivide the site into four lots. Proposed Lot 1, which would comprise 6,014 m2, would provide a separate allotment for one of the existing residences. Proposed Lot 2, which would contain the other residence and the dam, would comprise 1.43 hectares. Proposed Lot 3 would comprise 5,440 m2 and facilitate the construction of an additional dwelling fronting Chevallum Road. Proposed Lot 4, which would comprise 1.391 hectares, would be a hatchet lot, with a 10 metre wide access strip leading from Chevallum Road to the north-western portion of the site, where a further dwelling could then be developed. [4] The application attracted three adverse submissions, two of which took issue with the size of the lots in the proposed sub-division. -- 2 of 22 -- 3 THE ISSUES [5] The Council refused the application on the following grounds: (1) The proposed development conflicts with the broad intent of Maroochy Plan 2000; (2) The proposed development does not comply with the intent of Precinct No. 8 (Woombye Palmwoods East) of Planning Area No. 21 (Eudlo Creek Valley); (3) The proposed development does not comply with the code for reconfiguring of lots for rural purposes; (4) There are insufficient planning grounds to justify approval of the proposed development. [6] Under Maroochy Plan 2000 (“MP 2000”) the land lies within an area in a “General Rural Lands” precinct. It was contended, on behalf of the Council, that subdivision of the land to create lots of the sizes proposed would be inappropriate, given its designation, and that MP 2000 directs rural residential development elsewhere. It was contended for the appellants that MP 2000 neither encouraged nor discouraged rural residential development in the precinct in which the land is located and that the subject proposal was appropriate having regard, amongst other things, to what was said to be the rural residential character of the surrounding area, notwithstanding its General Rural Lands designation. The argument in the appeal focused upon those contentions. The court was informed that more specific issues, such as the treatment of on-site sewerage effluent, could be left for the conditions stage, in the event that the court was otherwise minded to approve the application. [7] It may be noted that development of the kind proposed would now, in effect, be prevented by reason of the South-East Queensland Regional Plan. The regulatory provisions of that plan, however, do not apply to the subject application, which was lodged on 26 March 2004. -- 3 of 22 -- 4 [8] The consideration of the competing contentions requires an examination of the provisions of MP 2000 and an assessment of the site in its context. THE PLANNING SCHEME (i) Introduction [9] As with many other planning schemes adopted since the commencement of the IPA, the Maroochy Plan 2000 is voluminous. Its provisions, which are not without complexity, deal with issues at the strategic planning level, as well as at the more detailed level within individual planning areas and precincts. There are also a number of codes including, relevantly for present purposes, the Code for Reconfiguring Lots. The proper method of construction for planning schemes in general and MP 2000 in particular, was discussed in Luke & Ors v Maroochy Shire Council & Anor [2003] QPELR 447. It involves identification of those parts of the scheme which are germane to the issues in the case, and their consideration to discern the tenor of the scheme, as a whole. (ii) The Code for Reconfiguring Lots [10] The Code for Reconfiguring Lots deals separately with reconfiguration for residential purposes (s 8.2) and for rural purposes (s 8.3). Residential lot reconfiguration is defined, in Vol 1, to mean any one or more of certain specified lot types “created in a Residential or Master Planned Community precinct”. One of those specified lot types is a rural residential lot. Such lots are described as “intended to have a minimum lot size of 6,000 m2 and an average lot size of approximately 8,000 m2 or greater over a site”. Further, it is said that “this type of lot will usually be restricted to the Sustainable Rural Residential Precincts and the steeper areas within the other Residential Precincts where the provision of sewerage -- 4 of 22 -- 5 is not reasonable to construct or economical to maintain”. Similar statements are found in Table 8.2.5 of the Code for Reconfiguring Lots which, in turn, is referenced in the acceptable measures to performance criteria P1 of the code in dealing with reconfigurations for residential purposes. [11] The proposed development would be a form of reconfiguration for residential purposes and, in particular, rural residential lots (albeit with one proposed lot of less than the stated minimum) were it in a “Residential or Master Planned Community precinct”. As has already been noted however, the land is not in such a precinct and it was not submitted that s 8.2 of the Code for Reconfiguring Lots was applicable. [12] Reconfiguring lots for rural purposes is dealt with in s 8.3 of the Code. The expression “rural lot reconfiguration” is defined, in Vol 1, to mean one of three specified lot types “created in a Rural precinct”. The three lots are the “Traditional Rural lot”, the “Farm Restructuring lot” and the “Rural Industry lot”. A Traditional Rural lot is defined to mean any lot created or situated in a rural precinct (other than a farm restructuring lot or rural industry lot as defined) that is used for grazing, agriculture, rural living or any other use consistent with a rural area. Table 8.3.5 of the Code for Reconfiguring Lots provides that, within the General Rural Lands precinct, the minimum lot size for Traditional Rural lots is 10 hectares, with an average of 20 hectares. That table is referenced in the acceptable measures to the first performance criteria of element 5.1 of the Code, as it relates to reconfiguration for rural purposes. [13] That a proposed subdivision does not meet the minimum lot size set out in Table 8.3.5 does not necessarily mean that it conflicts with the Planning Scheme. The Code is performance based and the acceptable measures are presented as the preferred, but not only, means of achieving the relevant performance criteria. They -- 5 of 22 -- 6 do not preclude other ways of meeting the criteria1. Where it is proposed to create additional lots in a rural precinct with areas less than that specified in Table 8.3.5, the application is subject to impact assessment2. It was common ground that the subject application required impact assessment for that reason. [14] It was contended on behalf of the Council, that the proposal could not meet aspects of the performance criteria which relate to amenity and character. In particular, the performance criteria require that lots have an area, dimension and shape that clearly demonstrates, amongst other things: • Protection of the rural character and amenity of the area; • No adverse impact on the preferred rural character of an area by: (i) separating home sites as far apart as practicable along road frontages; (ii) not allowing the encroachment of residential type lots into rural precincts; (iii) preventing the further fragmentation of rural land. [15] The concern of the Planning Scheme to ensure that lot reconfiguration is consistent with the desired character of an area is reflected in sub-paragraph (a) of the stated purpose for the Code for Reconfiguring Lots. The introduction to that part of the Code dealing with reconfiguring for rural purposes states that the Planning Scheme, including the Strategic Plan, is to be regarded as the “context setting” for all rural lot reconfiguration designs3. Clause 6.3.3 of the Strategic Plan provides that: “It is important that consideration be given to the effect that proposals may have on the character of the Shire’s rural areas. This is an issue which should be taken into account with all applications.” 1 See Volume 4, p 4. 2 Table 6.3 of ch 1. 3 See Volume 4, s 8.3 at p 383. -- 6 of 22 -- 7 [16] Reference to the provisions relating to the Strategic Plan, planning areas and precinct designations for the subject site do not provide obvious support for the proposed development. (iii) The Strategic Plan Designations [17] Pursuant to the Strategic Plan, the northern part of the site is included in the “Rural or Valued Habitat” designation, while the southern part of the site is within the “Agricultural Protection” designation. [18] In relation to the “Rural or Valued Habitat” designation, clause 10.4.2 of the Strategic Plan states, in part, as follows: “The emphasis of this allocation is generally on the retention of the land in its present situation … this includes land being used for rural purposes which may not have been identified as good quality agricultural land; land with limited rural capability; land identified as good quality agricultural land which contains vegetation worthy of preservation and significant vegetation; and land which, at this time, has a preferred non-urban function. While it is intended that rural and non-urban uses and the retention of valued habitat should be the dominant activities occurring in the rural or valued habitat areas, the allocation provides for a range of other uses suited to establishing in rural areas. … These uses may include but are not limited to rural industries, tourist and accommodation facilities appropriate to a rural area and animal husbandry and rural residential in the Permissible Area for Rural Residential.” [19] The subject site is not in the Permissible Area for Rural Residential. [20] Clause 6.4.1 of the Strategic Plan provides that the Agricultural Protection areas identify good quality agricultural land and that “the principal intention of this identification is to retain the land for agricultural purposes and consequently protect the future viability of agriculture in this shire”. It is recognised however, that “the boundaries of the Rural Agricultural Protection areas are based on defining good -- 7 of 22 -- 8 quality agricultural land and consequently the location may vary to that shown in line with more detailed assessments…”. A more detailed assessment, in this case, was provided by Mr Napier. It establishes that there is good quality agricultural land within the subject site, some of which would be lost as a result of the subject development, although the constraints are such that the land is unlikely to support an independent and economically viable agricultural business. (iv) Planning Areas and Precincts [21] The Strategic Plan designations are applied at a relatively broad scale. The MP 2000 states that it is intended to recognise and be responsive to the individual character and needs of the many different localities which exist across the Shire4. Accordingly, more detailed planning has been carried out pursuant to which the Shire has been divided geographically into Planning Areas, each of which is further divided into precincts. The provisions for Planning Areas and precincts in Vol 3 are based on the Strategic Plan in Vol 2 and represent the Council’s specific planning intent for particular localities. Clause 2.3(4) of Volume 1 of MP 2000 states that: “Proposals for impact assessable development will be assessed against the statements of desired local character … for the Planning Area and the Statement of Desired Precinct Character for the individual precinct in which the development site is situated”. [22] The subject site is included within Planning Area 21 (Eudlo Creek Valley) and within Precinct 8 (Woombye-Palmwoods East), being one of the General Rural Lands precincts. [23] In the description of the “location and role” of planning area number 215, it is stated that the Planning Area is intended to provide for, amongst other things: 4 See Volume 1, clause 2.3 at p 12. 5 See clause 3.21.1 at p 289. -- 8 of 22 -- 9 • on-going ecologically sustainable rural residential development and use at appropriate locations; • appropriately located, sited, designed and operated tourist and extractive industry uses; and • general rural activities elsewhere in the area. It may be noted that the provision distinguishes between “ecologically sustainable rural residential” development and “general rural activities.” [24] The “vision statement” for the Planning Area is that: “The valley maintain a predominantly rural landscape, accommodating a range of rural activities, rural residential development, conservation parks, extractive industry, the small country township of Eudlo, low-key tourist facilities, and a business and industry node at Forest Glen.” [25] It is stated that the vision will be achieved by, amongst other things: (a) The continued use of land for rural activities, with no encroachment by urban residential development; (g) Providing for further sustainable rural residential development on suitable lands to the east of the highway at Mons and Rosemount. [26] The discussion of “Key Character Elements”6 expressly contemplates further rural residential development east of the highway. The subject site is not in that area. [27] Within the Planning Area there is provision for three Sustainable Rural Residential precincts. Such precincts are said to provide for areas suitable for residential use at densities of less than two dwellings per hectare in rural settings7 and “reflect those areas of existing rural residential development and those identified by the Strategic Plan … as ‘Permissible Areas for Rural Residential’”8. They are a form of residential precinct. The subject land is not within one of those precincts. 6 See clause 3.21.3 at pp 289-290. 7 Vol 1, clause 5.3 p 50. 8 See clause 2.2 of Volume 3 at p 9. -- 9 of 22 -- 10 [28] As already noted, the subject land falls within a General Rural Lands precinct, which is one of the five rural precincts which, in general terms, are intended to be developed and used predominantly for sustainable rural purposes in keeping with the land’s suitability and capability9. The General Rural Lands are the balance rural areas outside those identified as Sustainable Cane Lands, Sustainable Horticultural Lands, Sustainable Pastoral Lands or Water Resource Catchment areas. The intention for the General Rural Lands precinct is to provide “for lands intended to remain mostly in rural use but on which commercial rural production is made difficult by the quality of the land resources, the existing land use pattern, topography and other factors”10. The plan provides that “development and use of these lands should maintain or enhance any significant environmental values …, maintain a rural/non-urban landscape and provide for buffering between urban areas and incompatible rural activities”11. [29] It may be noted that, in determining the rural precincts, the draftsperson of the plan was not ignorant of past land fragmentation. Vol 1 the Scheme records that: “As part of the refinement process, the determination of rural precincts… • identified that past land fragmentation had severely reduced the value of the land resource for commercial rural production and consolidation of landholdings should be encouraged; … • identified a small number of instances where the community would be better served by use of pockets of rural land for other purposes (e.g. for rural residential use where surrounded or almost surrounded by such use).” [30] The description of the Woombye-Palmwoods East precinct states, in part, that: “This precinct comprises a complex mosaic of residual farms (mainly growing pineapples and smaller tree crops), small hobby 9 Clause 5.2(1)(a) of Vol 1. 10 Clause 5.2(3) of Vol 1. 11 See Vol 3 page 6. -- 10 of 22 -- 11 farm lots, areas of remnant native plant communities, and regional tourist attractions … and supporting uses. … Fragmentation of landholdings has occurred throughout the precinct.” [31] The statement of intent for this precinct provides, in part, as follows: “The landholdings within the precinct are probably too extensively fragmented to allow for commercial rural production of any significance. It is intended to allow for a wide range of rural activities within this precinct, while favourable consideration could be given to other `broad hectare’ activities that are compatible with a rural setting and do not require urban services and infrastructure. The precinct adjoins urban areas and there is the potential for land use conflicts to arise. It is intended that such conflict potential be addressed through use of best land management practices and through buffering measures incorporated in any new urban development in the adjoining precincts …” [32] The statement of “preferred and acceptable uses” refers to the Table of Development Assessment for the General Rural Lands precinct class and admits of the prospect of extractive industry use and, subject to some qualifications, bed and breakfast, caravan park and outdoor recreation. [33] Neither the above provisions, nor any others to which I was taken, give much comfort to the appellants. The subject site is not in one of the precincts intended for rural residential development. Although the Planning Scheme acknowledges that fragmentation of landholdings has occurred throughout the precinct in which the subject site is located, it is nevertheless included within a General Rural Lands designation, the intent for which speaks of maintaining a rural/non urban landscape and, in this particular precinct, allowing a wide range of “rural activities” with consideration being given to other “broad hectare” activities that are compatible with a “rural setting”. The only reference to a “rural/rural residential setting” in the -- 11 of 22 -- 12 subject precinct appears in the context of discussing opportunities to consolidate tourist attractions at the north-eastern part of the precinct. [34] The appellants rely, to a significant degree, on what is not said in the provisions concerning Precinct 8. Attention was drawn, on their behalf, to the other General Rural Lands precincts within Planning Area 21, some of which contain an express statement that “neither urban nor rural residential uses are considered consistent with the intent and desired character of this precinct”. It was submitted that, in the absence of an express discouragement, rural residential development was neither encouraged nor discouraged within the Woombye-Palmwoods East precinct. Reference was also made to the stated intent for General Rural Land to remain “mostly” in rural use as a further indication that rural residential development is not excluded. It was submitted, for the respondent, that when read broadly and as a whole, the Planning Scheme discouraged rural residential development within the rural areas. (v) Rural Residential Development [35] Rural residential development is a particular focus of MP 2000. The implementation provisions to the second DEO, for example, speak of “rural residential settlements being contained and managed so as to avoid expansion beyond defined boundaries”. In Vol 1 it is said that “for development and use for rural residential purposes, the Strategic Plan has identified areas in which such development may be accepted provided such specific considerations are addressed.12” Reference to the Strategic Plan Map shows a “Permissible Area for Rural Residential” which is one of the “Urban Development” Preferred Dominant Land Uses. It is said to provide for “the opportunity of rural residential living 12 p 95 -- 12 of 22 -- 13 where it is considered such use of the land is appropriate, given the locations of substantial urban areas, the existing rural residential development and the topographical characteristics of the land.13” [36] In clause 3.5.1, the Strategic Plan records that: “Considerable emphasis has been given to consolidation and containment of the existing urban form and structure as shown on the Strategic Plan Map. Particular weight has been placed upon the containment of the creation of rural residential lots. This emphasis allows greater efficiencies in the delivery of social and physical infrastructure and provides greater protection for good quality agricultural and rural land and the considerable natural resources of the Shire.” [37] The implementation provisions to that objective contemplate the development of a benchmark development sequence “which will be used by Council to guide urban development and rural residential development in an orderly, cost-efficient and socially effective manner”. [38] Clause 3.5.8 of the Strategic Plan seeks “to provide for rural residential development within the Permissible Area with regard to the protection of good quality agricultural land and valued habitat”. The provision states that the permissible area for rural residential “identifies locations within which rural residential may be supported”. The implementation provision provides, in part, that: “Applications for rural residential development shall be confined to the Permissible Areas for Rural Residential … this planning intent is reflected in the planning area and precinct provisions (in Vol 3 of the Planning Scheme).” [39] A perusal of the Strategic Plan’s provisions with respect to rural activities does not lead to an expectation of further rural residential development in the rural areas. The Strategic Plan aims to maintain and preserve the amenity and character of rural 13 p 11 Volume 2. -- 13 of 22 -- 14 areas. The Strategic Plan recognises the value of these areas to the tourist image of the Shire and the visual amenity of the area even though “some areas may never be used for more intensive rural activity nor are likely to be available for closer settlement.” This is consistent with the first DEO, the implementation provisions to which speak of limiting uses in rural, scenic and natural areas to low intensity, generally non-urban activities. While recognising that some good quality agricultural land will be lost to urban activities, clause 6.2 speaks of the need to identify potential urban areas and to limit development and lot fragmentation in the shorter term. The general statements of intent for precinct classes do not give rise to an expectation of further rural residential development within the rural precincts. [40] Despite that general approach, an examination of the specific precinct provisions for Planning Area 21 and other planning areas suggests that not all forms of rural residential development are entirely ruled out, in all circumstances, in the rural areas. [41] It has already been noted that, within Planning Area 21, some of the General Rural Lands precincts expressly discourage rural residential use while others do not. If all such development was otherwise excluded from the rural areas, then the express discouragement of urban and rural residential uses in those precincts would be mere surplusage. Reference to General Rural Lands precincts in other planning areas reveals other examples where similar express discouragement is given to urban or rural residential uses in some precincts but not in others. Express discouragement is also to be found in the provisions relating to various Sustainable Cane Lands precincts, Sustainable Horticultural Lands precincts, Sustainable Pastoral Lands precincts and one of the Water Resource Catchment Area precincts. At least two of the Sustainable Horticultural Land precincts, in Planning Area 19, deal with what -- 14 of 22 -- 15 would have to be demonstrated before land, in that precinct, could be considered for development for rural residential purposes, and go on to deal with the circumstance “if any rural residential development were to be approved in the precinct” without encouraging such development. [42] When regard is had to MP 2000 as a whole, it appears that there is a general strategy of containing rural residential development and directing it to the areas identified for such development, while preserving the character of the rural areas but, at the detailed planning level, MP 2000 stops short of ruling out all forms of rural residential development in all rural precincts. That the draftsperson has stopped short of expressly discouraging rural residential development in a particular precinct however, does not warrant the conclusion that the precinct is intended to become a de facto Sustainable Rural Residential precinct, or that any or all forms of rural residential development would necessarily be appropriate within the precinct, or that the statements of intent in relation to desired character can be put to one side14. The Character of the Locality [43] The Woombye-Palmwoods East precinct adjoins, on its western side, the Palmwoods Planning Area at the intersection between Chevallum Road and Diedrichs Court. As the precinct description acknowledges, the Woombye- Palmwoods East precinct has been subject to fragmentation throughout. That is particularly true of that part of Chevallum Road, generally between Diedrichs Court and Cheviot Road, within which the subject site lies and which is shown on Exhibit 7. Indeed, there is no allotment, along Chevallum Road in the area covered by Exhibit 7, which achieves the 10 hectare minimum lot size for new Traditional Lots in the General Rural Land areas. Lot sizes in the section of Chevallum Road -- 15 of 22 -- 16 between Diedrichs Court and Cheviot Road are 4 hectares or less. The only lots in the locality, shown on Exhibit 7, which exceed the 10 hectares minimum are those to the north and east of Carlyle Road, which would be largely if not entirely out of view from Chevallum Road. [44] The locality is evidently one which has undergone significant fragmentation and its character, in the vicinity of the subject site, is derived from allotments which are a fraction of the current minimum lot size in the General Rural Lands. It would not be sensible to suggest that subdivision in this area was inappropriate, by reason of its impact on character, simply because it would result in lot sizes less than 10 hectares. That does not however, necessarily mean that the subject proposal is acceptable. [45] Despite the extent of fragmentation, lot sizes in the locality are generally significantly greater than minimum lot sizes for rural residential development in the residential areas. There are some much smaller lots ranging from about 4000m2 down to 1,382 m2. It is not uncommon to find small lots scattered in rural areas, often as a result of “rural excision” subdivision provisions, which were a feature of older planning schemes but which were open to abuse. While these small lots are a component of the character of the area, they do not make a positive contribution to the intended overall character described in the precinct intent and they do not explain why the locality was included in a rural, rather than a residential precinct. [46] Leaving these small allotments to one side, travelling outward from the township, in the section of Chevallum Road between Diedrichs Court and Old Chevallum Road, there are two allotments exceeding 2 hectares on the southern side of the road and 14 I note that the appellants’ town planning consultant was not prepared to support an earlier suggestion by her clients that application be made for a 7-lot subdivision. -- 16 of 22 -- 17 three allotments ranging between 0.75 hectares and 1 hectare on the northern side. Lots in the section of Chevallum Road between Old Chevallum Road and Cheviot Road, comprise four lots (including the subject) of between 3.5 hectares and 4 hectares, one allotment at approximately 1.5 hectares and another at just less than 1 hectare. Allotments further to the north and the south vary but, again, are generally greatly in excess of the minimum applicable in the rural residential areas and feature a number of allotments of the order of 4 hectares. As one travels further eastwards along Chevallum Road east of Cheviot Road, allotment sizes become generally larger, although there is a cluster of small lots just east of the Cheviot Road intersection. [47] While the character of the area in the locality of the subject site is affected by the subdivision pattern, there remains some rural non-urban character, which is reinforced by some farm uses which are to be found in the locality, including on an allotment adjoining the subject site. The subject site is of a size which allows it to make a positive contribution to that character and has the capacity to play an even greater contribution if it is again actively used for some rural production (as it has in the past) albeit on a hobby farming basis. Mr Napier conceded that would be possible, at least, in terms of the physical limitations of the site. [48] The character of the General Rural Lands may be contrasted with that of Palmwoods Rural Residential precinct on the edge of the township to the immediate west. The southern part of that precinct is accessed from Diedrichs Court and Old Chevallum Road. The allotments in Diedrichs Court, are between approximately 4,000 m2 and 6,000 m2, with a number being at or about 5,000 m2. The allotments which access from Old Chevallum Road are more variable in size, but most are less than 6,800 m2 in area. -- 17 of 22 -- 18 [49] As the Council’s planner, Ms Edwards, pointed out, one can see a very clear change in the pattern of land holdings between the Palmwoods Rural Residential precinct and the General Rural Lands precinct, notwithstanding the level of fragmentation evident in the latter. As she also pointed out, this is reflected in both character and land usage. Ms Edwards could not recall any of the allotments in that rural residential precinct being used for rural purposes. She did not find that surprising, given their size and the need to accommodate not only a house, but also on-site sewerage disposal areas. The character of that area was described by Ms Edwards as “mostly just garden house allotments”. I do not accept Ms Evenhuis’ description of the subject locality as an “overspill almost” of the Sustainable Rural Residential precinct15. It is certainly not treated in that way by MP 2000. [50] Given the differences in character between the Palmwoods Rural Residential area and the locality of the subject site, it is understandable that the draftsperson of the scheme chose not to extend the Sustainable Rural Residential precinct through to Cheviot Road, but rather to include those lands in the General Rural Lands precinct. It is difficult to divine an intention for the land in the vicinity of the subject site be further developed for rural residential purposes at densities approaching the minimum areas for such development in the residential areas. [51] The proposal, in this case, is to subdivide a site of just less than 4 hectares into four allotments with a minimum area of 5,440m2 and an average density of just less than 1 hectare. That is comparable to the 6,000m2 minimum with an average of 8,000m2, which is applicable in the rural residential areas. While it is proposed that there be two allotments of about 1.4 hectares, that is achieved by creating two allotments along the Chevallum Road frontage about or below the minimum lot size which 15 T 44 -- 18 of 22 -- 19 applies in the rural residential areas. One of those would accommodate an existing house, and so not lead to additional built form along Chevallum Road. The smallest of the allotments however, at 5,440m2, would facilitate the development of an additional house in the gap which presently exists between the western most house on the subject site and the house on the adjoining property to the west. That section of Chevallum Road would also feature the access to the proposed hatchet lot. [52] I am satisfied that the proposal would have an adverse affect on the character of the locality described above and detract from the qualities which underpin its General Rural Lands designation. The impact could not be said to be dramatic but that does not make it acceptable, given the respondent’s planning strategies. [53] I find that the proposal, by reason of its design and likely impact, would conflict with the tenor of MP 2000 read as a whole, including at the strategic level, the planning area/precinct level and at the level of the purpose and performance criteria of the code for reconfiguring lots for rural purposes. REASONS TO APPROVE [54] In the course of the appellant’s case reference was made to some particular matters, which may be dealt with briefly as follows: ƒ The extent of fragmentation and the proximity to the Palmwood township These matters are dealt with earlier. The character of the area is affected by past fragmentation and it would not be sensible to assert that a subdivision was unacceptable in its impact on character or amenity simply because it would result in lot sizes of less than the current 10 hectare minimum under the scheme. The extent of fragmentation however, is acknowledged in MP 2000. Unlike the Palmwoods Rural Residential precinct on the edge of the township, the land in the subject locality was included in a General Rural -- 19 of 22 -- 20 Lands precinct and has a different subdivision and land use pattern from the nearby Rural Residential precinct, notwithstanding the extent of fragmentation. It was not suggested that the scheme provisions have been overtaken by events subsequent to its designation and the proposal would, I am satisfied, have an adverse impact on the qualities of the character of this locality which underlie its designation, even though the extent of that impact would not be dramatic. ƒ There are physical and economic limitations and potential land use conflicts which constrain the use of the site for rural purposes The planning intent for the precinct is not dependent upon continuing rural production on a commercial basis or the absence of potential amenity conflicts from rural production. The land is not within areas designated as Sustainable Cane Lands, Sustainable Horticultural Lands or Sustainable Pastoral Lands. The General Rural Lands designation covers land “on which commercial rural production is made difficult by the quality of the land resources, the existing land use pattern, topography and other factors.” The subject locality meets that description. The particular precinct in which the subject land falls expressly acknowledges that “landholdings are probably too extensively fragmented to allow for commercial rural production of any significance,” the mosaic of uses including “small hobby farm lots” and the potential for amenity conflicts but the planning intent is for the locality to form part of the General Rural Lands. There is obvious potential, in a general sense, for some rural uses to conflict with rural residential uses. The draftsperson of the scheme was not ignorant of that. Statements discouraging intensive rural use are to be found in a number of the Sustainable Rural Residential precincts. Obviously the subject precinct does not discourage rural use. As previously noted, Vol 1 of the scheme records that in the determination of rural precincts a small number of instances were identified where the community would be better served by use of pockets of rural land for Rural Residential use. The subject locality was not so identified and there is nothing which has subsequently occurred which has caused the scheme provisions to be overtaken by events. As counsel for the respondent pointed out, the creation of additional lots of the -- 20 of 22 -- 21 size proposed on the subject site might, if anything, give rise to potential amenity conflicts with other rural uses. In any event, I do not consider that any community interest in the avoidance of amenity conflicts, by reason of the potential use of the site in its current form, for rural activities, warrants approval of the application in this case. ƒ Non-farming uses are acceptable and the stated preferred and acceptable uses could have greater impact than the proposal The intention for General Rural Lands is that they remain mostly in rural use. While non-farm uses might be acceptable, the intent for the Woombye- Palmwood east precinct is expressed by reference to “rural activities” and “other broad hectare activities” that are compatible with a rural setting. While the statement of preferred and acceptable uses refers to bed and breakfast, caravan park and outdoor recreation, that does not mean that each of those uses would be appropriate on any particular parcel of land within the precinct. The acceptability of the subject proposal is not established by saying that a caravan park, for example, could be worse if developed on the subject site. ƒ The proposal would regularise the two existing dwellings on the subject site The appellants purchased the property as one with two houses side by side. This suited their particular needs, for reasons which need not be described in these reasons but which are set out in Mr Blakemore’s statement (Exhibit 5). There are however, difficulties with the lawfulness of the two houses on the site. This led to the appellants receiving a “show cause” notice from the Council which led to them obtaining town planning advice prior to bringing the subject application. The subdivision of the land into four lots is not necessary however, in order to address the needs of the appellants or to resolve the continuing illegality issue. That could be solved by an approval in part of the application, or approval of the application in a modified form. The Council has indicated that it would not oppose such a course. I do not consider that the particular matters raised on the appellants’ case, considered individually or collectively, warrant approval of the application. -- 21 of 22 -- 22 CONCLUSION [55] For the above reasons I consider that the four lot subdivision currently proposed ought not be approved. The appellants indicated that, in that event, they would like the opportunity to apply to change the application, if necessary, or to argue in favour of a partial approval and partial refusal, of their application. The Council has no objection to that course and I will adjourn the further hearing of the appeal to allow that to be considered. -- 22 of 22 --