Australia: Court allows the reconfiguring of rural land to further fragment good quality agricultural land

Last Updated: 1 June 2018
Article by Ian Wright, Nadia Czachor and Nina Crew

In brief

The case of Wason v Gympie Regional Council [2017] QPEC 34 concerned an appeal by an Applicant against a decision of the Gympie Regional Council to refuse a development application for a development permit to reconfigure one lot into two lots for land at 58 Cullinane Road, Mothar Mountain.

The Court ultimately allowed the appeal on the basis that the reconfiguring of the land did not result in the alienation or fragmentation of the good quality agricultural land or a loss of land for primary production.

Council refused the application for a development permit to reconfigure the land as the reconfiguring did not preserve the land as productive agricultural land

The Applicant sought to reconfigure the land into two lots comprising a northern portion, being 10.8 hectares, and a southern portion, being 37.66 hectares, both of which contain a dwelling house, outbuildings, stockyards and a number of dams. The northern portion and southern portion of the land are separated by Cullinane Road.

The Council refused the development application on the basis that the proposed reconfiguration conflicted with provisions of the Gympie Regional Council Planning Scheme 2013 (Planning Scheme), in particular the provisions of the Strategic Framework, Rural Zone Code and Reconfiguring a Lot Code.

Court held that the reconfiguring of the land did not result in a loss of good quality agricultural land

The Council contended that the proposed reconfiguring of a lot did not preserve the good quality agricultural land in the area.

The Court heard evidence in relation to the viability of the good quality agricultural land after the proposed reconfiguration of the land from Mr Thompson, for the Applicant, and Dr Matthew, for the Council. Both experts agreed that 33.09 hectares of the land was good quality agricultural land if irrigation was available.

The Court accepted the evidence from Dr Matthew that there was sufficient water available from the sources on the land to irrigate both the northern portion and the southern portion of the land and retain the Class A and Class B good quality agricultural land.

Further, whilst the experts agreed that the land was already of insufficient size to be commercially viable for grazing, Mr Thompson expressed the view that regardless of whether the land was reconfigured, the land was of insufficient size to be a viable commercial cropping enterprise. On the other hand, Dr Matthew was of the view that even after the proposed reconfiguration, both the northern portion and the southern portion of the land could be used for a small-scale commercial cropping enterprise such as growing tomatoes.

The Court, having regard to the expert evidence, held that the proposed reconfiguration would not result in any loss of good quality agricultural land on the basis that the proposed reconfiguration did not affect the capacity to irrigate the good quality agricultural land on both portions of the land, or further reduce the already limited capacity to grow commercially viable crops on the land.

Court held that the land in the region was already fragmented and did not compromise the use of the land for primary production

The Court considered whether the proposed reconfiguration would result in a loss of good quality agricultural land through the alienation or fragmentation of the land.

Whilst the town planner for the Council conceded that the land was already one of a number of fragmented sites in the area, it was submitted that the proposed reconfiguration would result in "unnecessary fragmentation of the land" and the possible change of ownership in the land would result in a reduction of production capacity and affect the ability of the land to be used for a productive rural purpose.

The Court ultimately held that the proposed reconfiguration did not alienate the good quality agricultural land as there was sufficient irrigation available on the land and commercial cropping was viable on either portion of the land.

Further, the Court held that the land was already fragmented by the presence of Cullinane Road bisecting the northern portion and the southern portion of the land. The proposed reconfiguration did not of itself result in further fragmentation of the good quality agricultural land.

Court held that the proposed reconfiguration was consistent in size and dimension with other lots in the vicinity of the land

The Council submitted that the Gympie Regional Council Planning Scheme 2013 relevantly prescribes a requirement for new lots in a rural zone to be a minimum of 100 hectares in size which represents the intended development pattern for the area (see Table 9.4 (Minimum lot dimensions) of the Planning Scheme).

The Court rejected this submission on the basis that there is no provision in the planning scheme which mandates the minimum lot size of 100 hectares in a rural zone. The Court took into account that the proposed reconfiguration created an additional rural lot on land which is consistent in size and dimension with the surrounding lots.

The Court found that a requirement to impose a minimum lot size of 100 hectares represented a planning control that was inconsistent with the pattern of development in the vicinity of the land.

Conflicts with the planning scheme were only minor in nature and there were sufficient grounds to justify the approval of the reconfiguring of the land

The Court found that the conflicts with the Planning Scheme were minor in nature for the following reasons:

  • the land in the locality of the proposed reconfiguration was already fragmented with similar sized lots;
  • the land was already fragmented by Cullinane Road;
  • the land was insufficient in size to support a commercially viable grazing enterprise;
  • the proposed reconfiguration did not affect the capacity for the land to support a small cropping enterprise.

In any event, the Court held that the conflicts could be justified on the grounds that the proposed reconfiguration would provide an opportunity to improve the safety for motorists on Cullinane Road as a result of the separation of the rural uses occurring on either side of the road.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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