Farmer v Council of the Shire of Maroochydore [1993] QPEC 11

>.Tit State Reporting Bureau ··------------------------------------ .I . ); I ! ) TRANSCRIPT OF PROCEEDINGS (Cop)Tight in this transcript is nsted in the Crown. Copies thereof must not be made or sold '\\ithout the \'tTit1en authority of the Director, State Reporting Bureau.) • PLANNING AND ENVIRONMENT COURT JUDGE ROW LGA No 16 of 1992 tIONEL THOMAS FARMER and COUNCIL OF THE SHIRE OF MAROOCHYDORE MAROOCHYDORE .. DATE 18/01/93 JUDGMENT 1 REVISED COPIES ISSUED St2!e Reporting Burtau Date iS-1 ~ / 3 Appellant Respondent 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telcp1ione: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 8 -- 180193 HIS HONOUR: By application dated 2 April 1992 the appellant applied to the respondent for permission to subdivide Lot 12 on RP812048, Parish of Mooloolah in accordance with a proposal plan, A3.9001139.P. The proposal plan provided for the proposed subdivision of the subject land to create an ·o additional lot under what may loosely be referred to as the family transfer provisions of the relevant subdivisional by-law·namely Lot 14, and another lot, Lot 13, for a rural home site. Lot 14, which was proposed in relation to the family transfer, was finally approved ( subject to conditions) by the respondent. 20 Lot 13 having ~n area of 3000 square metres which related to ~ the rural home site was refused by the respondent on 23 June 1992. The decision of the respondent was communicated to the agent for the appellant by letter dated 30 June 1992. The grounds for refusal are as set out therein being numbered 1 to 5. On the hearing of the appeal, the disputed issues arising in the appeal refer to grounds 1 to 5 of the letter of refusal (Exhibit 6). The subject land is zoned Rural B. The history of earlier dealings with the subject land, which is identified on Exhibit 14, shows a series of dealings in relation to the original parcel of land with the excision of family transfer lots or rural home site lots as is there indicated. The last of any such rural home site approval was on 18 2 JUDGMENT ( -- 2 of 8 -- 180193 September 1990. By-law 10( 9) of Chapter 36 ( subdivision of land) of the by-laws of the respondent provides that notwithstanding the provisions of this by-law, the Council may in its discretion •o permit a rural home site subdivision in accordance with certain guidelines. The guideline provides: "(a) The land: (b) subdivided home site created by ( 5) years: metres." applicant must actively farm or graze the One rural home site allotment may be from the parent block. No additional rural may be subdivided from the balance area the initial subdivision for a period of five and (g) Minimum area shall be 4,000 square In addition to the by-law the respondent has adopted a Policy for subdivision in Rural Zones. In dealing with family transfers/retirement subdivision and rural home site applications lodged together, the respondent on 20 August 1991 resolved that where both a family transfer/retirement subdivision application and a rural home site application are lodged at the same time or within two years of each other, then only one of the applications will be dealt with and any approval of the other application will be withheld for a period of two years. It was further resolved that the above resolution should take effect on and from August 6 1991. The evidence of the earlier dealings with the subdivision of the original holding is indicative that there have been earlier applications and approvals which had been made for rural home site subdivision. In September 1990 the 3 JUDGMENT 20 30 -•.; -- 3 of 8 -- 180193 respondent last approved the excision of a rural home site lot. Proposed Lot 13 is shown on the proposed plan of subdivision as having an area of 3,000 square metres. The evidence on behalf of the appellant identified reasons for the area of proposed Lot 13 having regard to the constraints of the existing access to the dwelling on proposed Lot 14 and the existing dam. It was further stated in the letter accompanying the application by the consultant on behalf of the applicant (appellant) that a separate submission by the applicant (appellant) application. will detail the circumstances behind the By an undated letter, Exhibit 15, which was lodged with the application, the applicant (appellant) stated: "Lot 1°2 is not being worked at present ... the present break is due to a matrimonial dispute with my former wife as a-joint owner. Pending settlement it is not a sound financial policy she sought legal advice which indicated that she was entitled to half the income from the joint property. I could see no point in working the property to support her and her new partner and the present non productive state is due entirely to this fact ... " I am satisfied on the evidence that the proposal in relation to the rural home site does not comply with the provisions of the subdivision of land by-law, namely clause 9(a), (b) and ( g). The area of the land is of no particular significance in that the intent is clear that the area relates to a useable site area for the construction of a 4 JUDGMENT ·o 20 JC, •·,.· -- 4 of 8 -- 180193 dwelling house. The area of 3000 square metres would provide an adequate building site. Any significant increas_e in the site area could prejudice the use of the dam in that the catchment for the dam could be adversely affected if Lot 13 had an area of 4000 square metres. Effectively the owner •o of Lot 13 could adversely prejudice the utility of the dam as the major water source for the balance of the subject land. Under By-law 10(5) of Chapter 35, the respondent may modify 20 the subdivisional requirements if it considers that modification is necessitated by the exceptional circumstances of the proposed subdivision. The subdivision of land by-law relates to the use of land. In my opinion the exceptional circumstances to which the respondent may give attention similarly is to be related to the use of the · land. The fact that there has been a matrimonial dispute between the appellant and his former wife is not such a matter as comes within exceptional circumstances within the provisions of By-law 10(5) of Chapter 35. Undoubtedly the exercise of the discretion by the respondent and on appeal by the Court refers to those circumstances where a person may be permitted to dispose of an allotment for sale where that person has experienced hardship in respect to a rural activity which has been carried out or is being carried out on the original parcel of land. The planning principle behind such. a policy is to permit the active use of land for rural activity to continue which is 5 JUDGMENT -- 5 of 8 -- 180193 seen as being in the public or community interest in relation to land which is zoned within the rural zones under the relevant planning scheme. The fact that no rural activity is at present being carried •o out on the subject land nor has been carried out since at least about July 1990 is indicative that the exceptional hardship that is alleged to exist on behalf of the appellant does not relate to the use of land but to a financial obligation or commitment which has arisen because of a matrimonial dispute between himself and his former wife. I am satisfied on the material that the proposed excision of the rural home site conflicts with the provisions of clause 10(9)(a) and (b) of Chapter 36 and that no exceptional circumstances have been shown. In addition to the conflict with the provisions of Chapter 36, the proposed subdivision is contrary to the provisions of the policy. Whilst the policy would have the effect only of delaying the dealing with the application for a rural home site, it is undesirable that that course should be adopted, having regard to the fact that the application for the rural home site (Lot 13) is in conflict with the provisions of Chapter 36. Evidence was given by Mr Deane, the shire planner, on the hearing of the appeal. His evidence sets out the town planning philosophy which ought properly to be applied to 6 JUDGMENT 20 30 .'... •.; r -- 6 of 8 -- 180193 the provisions of the exercise of a discretion in relation to subdivison by way of family transfers or rural home sites. I am satisfied that that approach properly identifies the planning philosophy which is behind the granting or refusal of such an application. The approval of •o a number of ad hoe applications for family subdivisons and/or rural home sites could jeopardise, in the long term, the implementation of proper town planning principles in relation to closer urban development of an area which may be said to be comparable to rural residential subdivision. The 20 question of infrastructure problems or issues is a matter of some significance to a responsible local authority in dealing with family transfer and/or rural home site subdivision. His view that such approval should be approached with some degree of control reflects a town planning approach which could result in unsatisfactory development and may in some instances cause further difficulties associated with the provision of infrastructure to such proposed lots without a proper town planning assessment of the application. In those circumstances, it is appropriate that there should be no further delay in dealing with the rural home site application when the application in itself conflicts with the particular provisions of the by-law. On all the evidence the appellant has not established that there are exceptional circumstances whereby the Court should exercise a favourable discretion in relation to the rural 7 JUOGMENT -- 7 of 8 -- 180193 ,.. For, .the_ reasons above :the appeal is dismissed.· I direct that Exhibit'B be returnedto·the·appellEint~ 20' 30 ,) _1~ :~. "I :)·. t: ·.~ ~ t .. _,; . ... ·,,/,.,;.f .... \;.1~~ ... .~~ \ ! ~.: ,, r~ t .r, Y: i .~! );, t;1:: .r··t: LiSi,;1.1-::; , --; f ~-· .. JUD.GMENT -- 8 of 8 --