Abata Pty Limited v Kiama Municipal Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 1.4, 4.55, 8.18, 9.34, Pt 1, Sch 5
Land and Environment Court Act 1979 (NSW), ss 17, 39
Protection of the Environment Operations Act 1997 (NSW)
Kiama Local Environmental Plan 2011, cl 5.4
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, s 2.44

Cases Cited: Chehade v Canterbury-Bankstown Council [2022] NSWLEC 1473
Doyle v Newcastle City Council (1990) 71 LGRA 55
Royal Motor Yacht Club (Broken Bay) Pty ltd v Northern Beaches Council [2017] NSWLEC 56
Stevens v Gourley (1859) 7 CBNS 99; 141 ER 752
Tweed Shire Council v Litonia Pty Ltd and Ors (31 August 1993 unreported)
Warringah Council v Carl Vlachos [1998] NSWLEC 118

Category: Principal judgment

Parties: Abata Pty Limited (Applicant)
Kiama Municipal Council (Respondent)

Representation: Counsel:
T Ward (Solicitor) (Applicant)
A Hannam (Respondent)
Solicitors:
Pikes & Verekers Lawyers (Applicant)
RMB Lawyers (Respondent)

File Number(s): 2024/279260

Publication restriction: Nil

Judgment

COMMISSIONER:

1. This is a Class 1 Development Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the Development Control Order issued by the respondent under s 9.34 and Pt 1 of Sch 5 of the EPA Act to the applicant on 4 July 2024 (Order), relating to Lot 7 in Deposited Plan 259153, known as 295 Cloonty Road, Carrington Falls NSW 2577 (Premises), requiring the applicant to:

2. stop using, and to demolish and remove from the Premises, the buildings used as dog kennels; and

3. stop conducting an activity on the Premises, namely the boarding/caring of dogs.

4. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

Background

3. The Premises is 31.01 hectares and zoned part C2 Environmental Conservation and part C3 Environmental Management under the Kiama Local Environmental Plan 2011 (KLEP). The parties agree that the relevant purported use and kennels were located on that part of the Premises zoned C3 Environmental Management and that it is therefore only this zoning that is relevant to these proceedings.

4. The applicant is the registered proprietor of the Premises, however, Ms Claire Williams is the occupier of the Premises and the owner of the relevant dog minding business and kennels the subject of the Order.

5. It is the respondent’s contention that the Premises was being used for “an animal boarding or training establishment” (referred to in this judgment as the Dog Minding Business Use) at the time the Order was issued, being a prohibited use in the C3 zone under the KLEP. The respondent contends that the Dog Minding Business Use was and is having unacceptable amenity impacts on the surrounding area. The respondent further submits that 10 kennels located on the Premises should also be required to be removed for reasons that have evolved throughout this matter.

6. It is the applicant’s position that the Dog Minding Business Use being carried out on the Premises is appropriately characterised as a “home occupation” or “home business” for the purposes of the KLEP or State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) and is therefore exempt development. The applicant therefore submits that the Order has no legal basis and should be revoked.

7. The respondent gave the applicant a Notice of Intention to Give an Order (Notice) on 28 February 2024. No representations were received in response to the Notice.

8. On 4 July 2024, the respondent issued the order to the applicant pursuant to s 9.34 and Item 1 “Stop use order” in Pt 1 of Sch 5 of the EPA Act.

9. The applicant commenced Class 1 proceedings on 30 July 2024 in respect of the Order, being within the time period specified in s 8.18(3) of the EPA Act.

10. The matter was listed for a conciliation conference. This conciliation was unsuccessful and terminated on 19 February 2024.

11. The matter was subsequently listed for hearing on 28 and 29 July 2025.

12. The Court attended a site view on the first day of the hearing accompanied by the parties. This involved inspecting the Premises and walking part of Cloonty Road, Carrington Falls.

Issues

13. Based on the way the case was pleaded by the parties at hearing, the issues that require determination in this case are:

14. What was the use of the Premises as of the date of the Order (and at the time of hearing)?

15. If the use is prohibited, should the Order be upheld in relation to the purported use of the Premises?

16. Are the kennels buildings for the purposes of the EPA Act such that they require development consent?

17. If the kennels are buildings, should the kennels be ordered to be demolished?

18. For the reasons that follow, I consider it appropriate to modify the Order to:

19. extend the timeframe for compliance with the stop use order insofar as it relates to the Dog Minding Business Use until 31 July 2026; and

20. remove the requirement to demolish or remove the kennels.

The role of the Court on appeal

15. In hearing the appeal, the Court re-exercises the functions of the Council in determining whether the order should be issued. Section 39 of the LEC Act provides as follows:

39 Powers of Court on appeals

…

(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

16. Section 8.18(4) of the EPA Act gives the Court broad powers on an appeal against a development control order, as follows:

(4) On hearing an appeal, the Court may:

(a) revoke the development control order; or

(b) modify the development control order; or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.

Evidence

17. The applicant relies on the following evidence:

18. Affidavits of Claire Williams filed 11 April 2025 (Ex D) and 9 July 2025 (Ex E); and

19. Expert Report of Stephen Gauld entitled “Acoustic Report” filed 2 July 2025 (Acoustic Report) (Ex C).

20. The respondent relies on the following evidence:

21. Affidavit of Angela Leslie Farrar filed 11 April 2025 (Ex 1);

22. Affidavit of Darren Charles Hewitt filed 11 April 2025 (Ex 2) (with the exception of [8] which is struck out on the basis of hearsay);

23. Affidavit of Gregory James Stonier filed 11 April 2025 (Ex 3);

24. Affidavit of Marion Bourke filed 11 April 2025 (Ex 4);

25. Affidavit of Peter Charles Denis Horn filed 11 April 2025 (Ex 5) (with the exception of the first sentence in [13] which is struck out on the basis of hearsay);

26. Affidavit of Russell James Mourney filed 11 April 2025 (Ex 6) (with the exception of [6], the last sentence in [7] and [12] which were not read); and

27. Affidavit of Tanya Louise Emmett filed 17 July 2025 (Ex 7).

Legislative and planning framework

19. Section 9.34 of the EPA Act relevantly provides that development control orders may be given in accordance with the table in Pt 1 of Sch 5 of the EPA Act.

20. Relevant to this matter area items 1 and 3, extracted as follows:

| | Column 1 | Column 2 | Column 3 | | | To do what? | When? | To whom? | | 1 | Stop Use Order To stop using premises or a building Not to conduct or to stop conducting an activity on the premises | Premises are being used— • for a prohibited purpose, or • for a purpose for which a planning approval is required but has not been obtained, or • in contravention of a planning approval. Building is being used— • inconsistently with its classification under this Act or the Local Government Act 1993, and • in a manner that constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety, and • in a manner that is not regulated or controlled under any other Act by a public authority. Premises are being used for an activity (that would or would be likely to require planning approval) that— • constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety, and • is not regulated or controlled under any other Act by a public authority. | • The owner of premises or building • The person using the premises or building | | 3 | Demolish Works Order To demolish or remove a building | A building— • requiring a planning approval is erected without approval, or • requiring approval under the Local Government Act 1993 is erected without approval, or • is or is likely to become a danger to the public, or • is so dilapidated that it is prejudicial to persons or property in the neighbourhood, or • is erected in contravention of this Act. | Owner of building or, if the building is situated wholly or partly in a public place, the person who erected the building |

21. The definition of “building” as set out in s 1.4 of the EPA Act is set out below:

“building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993.”

22. Although the term “structure” is not defined, “temporary structure” is defined as follows:

“temporary structure includes a booth, tent or other temporary enclosure (whether or not part of the booth, tent or enclosure is permanent), and also includes a mobile structure.”

23. As set out at [3], the Premises is relevantly zoned C3 Environmental Management under the KLEP. The land use table for the C3 zone is extracted below:

Zone C3 Environmental Management

1 Objectives of zone

• To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

• To provide for a limited range of development that does not have an adverse effect on those values.

• To allow limited types of agriculture subject to effective environmental safeguards and sound land management practices.

2 Permitted without consent

Environmental protection works; Home occupations

3 Permitted with consent

Bed and breakfast accommodation; Building identification signs; Business identification signs; Cellar door premises; Dwelling houses; Eco-tourist facilities; Environmental facilities; Extensive agriculture; Farm buildings; Farm stay accommodation; Home-based child care; Home businesses; Home industries; Home occupations (sex services); Information and education facilities; Kiosks; Oyster aquaculture; Pond-based aquaculture; Recreation areas; Roads; Roadside stalls; Secondary dwellings; Tank-based aquaculture; Viticulture

4 Prohibited

Industries; Local distribution premises; Multi dwelling housing; Residential flat buildings; Retail premises; Seniors housing; Service stations; Warehouse or distribution centres; Any other development not specified in item 2 or 3

24. Relevant definitions in the KLEP are extracted below:

home occupation means an occupation that is carried on in a dwelling, or in a building ancillary to a dwelling, by one or more permanent residents of the dwelling and that does not involve—

(a) the employment of persons other than those residents, or

(b) interference with the amenity of the neighbourhood by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, traffic generation or otherwise, or

(c) the display of goods, whether in a window or otherwise, or

(d) the exhibition of any signage (other than a business identification sign), or

(e) the sale of items (whether goods or materials), or the exposure or offer for sale of items, by retail,

but does not include bed and breakfast accommodation, home occupation (sex services) or sex services premises.

animal boarding or training establishment means a building or place used for the breeding, boarding, training, keeping or caring of animals for commercial purposes (other than for the agistment of horses), and includes any associated riding school or ancillary veterinary hospital.

25. As set out above, the C3 zone prescribes that any development not specified as being permitted without consent or permitted with consent is prohibited in the zone. Notably:

26. “home occupations” are permissible without consent; and

27. “animal boarding or training establishments” are not listed as being permissible with or without consent in the C3 zone and are therefore prohibited in the C3 zone.

28. Also of relevance, are provisions in the Codes SEPP which relevantly provide that a “home business, a home industry or a home occupation” are exempt development under the Codes SEPP. Notably, Note 1 of s 2.44 of the Codes SEPP provides that “the elements that must comprise this development are specified in the definition of home business, home industry or home occupation in the Standard Instrument’.

29. The definition of “home occupation” in the Standard Instrument is the same as set out in the KLEP (extracted at [24] above). The definition of “home business” is relevantly extracted below:

home business means a business, whether or not involving the sale of items online, carried on in a dwelling, or in a building ancillary to a dwelling, by 1 or more permanent residents of the dwelling and not involving the following—

(a) the employment of more than 2 persons other than the residents,

(b) interference with the amenity of the neighbourhood because of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, traffic generation or otherwise,

(c) the exposure to view, from adjacent premises or from a public place, of unsightly matter,

(d) the exhibition of signage, other than a business identification sign,

(e) the retail sale of, or the exposure or offer for retail sale of, items, whether goods or materials, not produced at the dwelling or building, other than by online retailing,

but does not include bed and breakfast accommodation, home occupation (sex services) or sex services premises.

Note—

See clause 5.4 for controls relating to the floor area used for a home business.

28. Clause 5.4 of the Standard Instrument (and KLEP) relevantly provides:

5.4 Controls relating to miscellaneous permissible uses

…

(2) Home businesses If development for the purposes of a home business is permitted under this Plan, the carrying on of the business must not involve the use of more than 30 square metres of floor area.

29. Finally, “dwelling” is relevantly defined in the KLEP and Codes SEPP (through the Standard Instrument) as:

dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.

What was the use of the Premises as at the date of the Order**?**

30. Relevantly in this case, pursuant to column 3 of Item 1 in Pt 1 of Sch 5 of the EPA Act, in order for the Order to have been validly issued, the Premises must have been used for a “prohibited purpose” or “a purpose for which a planning approval is required but has not been obtained”.

31. The undisputed facts in this case include:

32. Ms Williams runs a dog minding business from the Premises on a paid basis (Affidavit of Ms Willliams filed 11 April 2025 at [20]).

33. The business includes two types of dogs who attend the Premises (Affidavit of Ms Willliams filed 11 April 2025 at [22]):

(a) “Day play” dogs, who are cared for between approximately 12pm-3.30pm on weekdays and are, weather dependant, kept in the large paddock with Ms Williams’ pet dogs; and (b) “Overnight”dogs, who will stay with Ms Williams on a temporary basis and sleep in crates on the balcony of the dwelling. During the day they play in the paddock with the day play dogs and Ms Williams’ pet dogs.

3. Overnight dogs can stay anywhere from one night up to about a month (although month long durations are less common) (Transcript 29 July 2025 p 49 37-46).

4. Ms Williams conducts all business administration from her dining room table (Affidavit of Ms Willliams filed 11 April 2025 at [25]).

5. If any of the dogs being minded as part of the business need a “time out”, they might be put in one of the kennel yards, however the kennel yards are predominantly used for Ms Williams’ personal pets (Affidavit of Ms Willliams filed 11 April 2025 at [26]).

6. Ms Williams has no employees other than herself (Affidavit of Ms Willliams filed 11 April 2025 at [32]).

7. The respondent submits that the use of the Premises does not require specific characterisation, other than to find that it was a prohibited use. However, the respondent submits that if characterisation is required, the use of the Premises at the time the Order was issued could most appropriately be characterised as an “animal boarding or training establishment”, being a prohibited use in the C3 zone. This means that the Order was validly issued, and the appeal should be dismissed.

8. Conversely, the applicant submits that the Premises was and is being used as home occupation or home business, both of which are permissible without consent either under the KLEP (in the case of a home occupation) or Codes SEPP (in the case of both a home occupation and home business). The applicant therefore argues that the Order should be revoked and the appeal upheld.

9. Relevantly, during the hearing both parties agreed that the kennels were not materially used as part of the Dog Minding Business Use and were ancillary to Ms William’s residential use of the Premises (T 28 July 2025 p 15 11-13). I will therefore consider the kennels separately to the question of “use”.

10. I will start first with the “home occupation” use as it contains many common elements to the “home business” use.

11. The parties agreed that the Dog Minding Business Use meets all of the elements of a “home occupation” use, with the exception of whether:

12. the home occupation could be said to be “carried on in a dwelling, or in a building ancillary to a dwelling”; and

13. the home occupation involved interference with the amenity of the neighbourhood by reason of the emission of noise.

14. I will address these issues in turn.

Respondent’s position

38. The respondent submits that although parts of the Dog Minding Business Use are carried on in the dwelling, namely the business administration from Ms Williams’ dining table and on the balcony to the dwelling where the overnight dogs are kept in crates, the core of the Dog Minding Use Business is carried out outside in the paddock. The respondent submits that “neither the paddock nor the kennel yards could be reasonably described as being “in a dwelling” under the definitions… Both locations are also not buildings ancillary to a dwelling, not being buildings, structures or temporary structures, or part thereof” (Respondent’s Written Submissions (RWS) at par 57).

39. The respondent further submits that the core of the Dog Minding Business Use cannot be said to be caried out within the curtilage of the dwelling house for the purposes of Doyle v Newcastle City Council (1990) 71 LGRA 55 at (60) (Doyle) and relies on the findings of Pearlman J in Tweed Shire Council v Litonia Pty Ltd and Ors (31 August 1993 unreported) (Litonia). In that case, Pearlman J relevantly held that the concept of “in a dwelling house” requires some degree of confinement and the concept of curtilage does not extend “beyond the immediate surrounds of the dwelling house”. The respondent submits (RWS at par 67-68):

“During the site visit on day 1 of the hearing, the Court observed the physical distance between Ms Williams’ dwelling and the Paddock… The respondent submits that to find, as the Applicant invites the Court to find, that the Paddock forms part of the “curtilage” or “immediate surroundings” of the dwelling house, as per the authorities set out above, would be to severely strain both of those concepts.

Instead the Court would find that the substantial degree of physical separation between the dwelling and the Paddock is such that the dog minding business could not be considered to be carried on in the Applicant’s dwelling.”

Applicant’s position

40. The applicant submits that, contrary to the respondent’s submissions, the core of the business isn’t undertaken outside and is in fact, the crating of dogs overnight on a balcony which forms part of the dwelling house. The applicant states (T 29 July 2025 p 68, 10-16):

41. “When one looks at the day dog component they are limited based on Ms Williams’ evidence both in terms of only being on the weekdays and secondly, they are limited in terms of the times in the middle of the day that they occur. The applicant would ultimately submit, as I’ve indicated, that when looking at the definition under the Exempt and Complying Development Code of home occupation or home business, that it is principally carried on within the dwelling house.”

42. Further, the applicant submits that the Courts have long recognised that there are elements of a home occupation or business which fall beyond the four walls of a dwelling house and include the curtilage of a dwelling (including Warringah Council v Carl Vlachos [1998] NSWLEC 118 and Chehade v Canterbury-Bankstown Council [2022] NSWLEC 1473). The applicant submits that the elements of the Dog Minding Use Business carried out in the paddock are undertaken within the immediate surrounds of the dwelling, particularly having regard to the context of the Premises being a large rural property.

43. Further to this argument, the applicant submits that the Premises itself is significant in size, however, Ms Williams only uses a discrete part of the Premises for the Dog Minding Use Business, thus representing a true “curtilage” rather than trying to classify the entire site as curtilage as was the case in Litonia.

Consideration

44. I accept the respondent’s submission that the concepts of “in a dwelling or building ancillary to a dwelling” are not unconstrainted terms. As Pearlman J states in Litonia, the term “in a dwelling” requires some degree of confinement and the concept of curtilage does not extend “beyond the immediate surrounds of the dwelling house”. Having regard to the site inspection and facts of this case, I accept the respondent’s submission that the paddock is located beyond the immediate surrounds of the house and cannot be said to form the curtilage to the dwelling. This is because of the distance from, and physical separation between, the dwelling and the paddock. For example, the paddock is located beyond the not insubstantial gated yard which surrounds the dwelling. On the facts of this case, those aspects of the Dog Minding Business Use carried out in the paddock and beyond are not “in a dwelling” or its curtilage, and therefore fall outside of the definition of “home occupation” (and therefore also “home business” which similarly requires the use to be carried out in a dwelling or building ancillary to a dwelling).

45. In respect of the overnight dogs and their crating on the balcony to the dwelling, I note the evidence that the overnight dogs spend the day time outside in the paddock with the day play dogs and further, that overnight dogs can be taken for any period between one night up to a month. There is no evidence in this case that an overnight dog has been, is, or would be, confined purely to the dwelling or its curtilage if the paddock could not be utilised. I therefore accept the respondent’s argument that the core part of the Dog Minding Business Use involves utilising the paddock for both day play dogs and overnight dogs to run and play.

46. This means that the Dog Minding Business Use cannot fall within the definition of home occupation or home business.

Should the Order be upheld in relation to the purported use of the Premises**?**

47. I have determined that the Dog Minding Business Use is a use that does not fall within an exemption under the KLEP or Codes SEPP. I also do not consider the applicant’s use of the Premises falls within a category of use permitted with consent under the C3 zone in the KLEP. The use is therefore prohibited and the Order requiring the cessation of the Dog Minding Business Use was validly issued. It is therefore not necessary to consider the amenity issues argued in this case in respect of determining use.

48. However, the Court still has a discretion as to whether the Order should be upheld or whether it should be modified in some way.

49. I accept the respondent’s argument that in circumstances where the dog minding business is a prohibited use in the C3 zone and so is incapable of being regularised, it is appropriate to uphold this aspect of the Order.

50. However, I do consider it appropriate to exercise the Court’s discretion to allow additional time for compliance with the Order. The applicant requested a timeframe of 12 months if the Court was against it on the argument of use. The respondent argued that an extension until 31 December 2025 would be appropriate.

51. I have placed significant weight on the fact that:

52. the Dog Minding Business Use is Ms Williams’ primary source of income;

53. Ms Williams gave undisputed oral and affidavit evidence of her personal circumstances which make it difficult for her to earn an income outside of this business; and

54. the undisputed evidence of Mr Gauld is that the acoustic impacts of the Dog Minding Business Use do not constitute “offensive noise” for the purposes of the P**rotection of the Environment Operations Act 1997 (NSW). Although I have not had to consider the correct test for determining amenity impacts in the context of a “home occupation” use in the determination of this appeal, I still find the lack of offensive noise to be a relevant factor in the consideration of my discretion to extend the timeframe for compliance with the Order.

55. On balance, I consider it appropriate to allow significant time for Ms Williams to wind down her business and seek alternative income and personal arrangements if required.

56. Given that the hearing concluded on 29 July 2025, I consider it fair and reasonable to provide the applicant until 31 July 2026 to comply with the modified Order, being approximately 12 months since the date of hearing.

Are the kennels buildings within the meaning of the EPA Act?

54. Before considering this question, it is necessary to understand the nature of the relevant kennels. The undisputed evidence of Ms Williams is that there are 10 individual kennels located on the Premises, spread across 14 separate yards for personal use (Affidavit of Ms Williams filed 11 April 2025 at par 11). As was clear from both Ms Williams’ affidavit and oral evidence, each kennel is intended to house one of Ms Williams (or her son’s) dogs – i.e. one dog per kennel. Photographs depicting the individual kennels are annexed to the same affidavit of Ms Williams at Annexure C (extracted below):

An aerial depicting the kennels in the separate yards is extracted from the SOFAC at p 3 below (see middle of image):

Respondent’s position

55. Although the respondent accepts that the kennels do not form part of the Dog Minding Business Use and relate solely to Ms William’s personal residential use of the Premises, the respondent submits that the kennels should still be ordered to be removed. This is because, on the respondent’s case, the kennels are “buildings” for the purposes of the EPA Act and require, but do not have, the benefit of development consent.

56. The respondent submits that (RWS at [93]):

“As observed by Preston CJ in Royal Motor Yacht Club (Broken Bay) Pty ltd v Northern Beaches Council [2017] NSWLEC 56 (Broken Bay) at [153], courts have construed the concepts of buildings and structure for local government and planning purposes as involving, first, a structure of considerable size or substance, and second, a structure intended to be permanent or at least endure for a considerable time, The 10 dog kennels in question exhibit both of those characteristics.”

57. The respondent submits that on Ms William’s own evidence, the kennels have remained in situ since they were delivered and the Court should find that there is a significant degree of affixation to the land and permanence of the kennels despite the fact that they are not affixed on any footings or hard surface and are instead resting on “sleds” on the grass/soil.

58. Alternatively, the respondent submits that the kennels could be characterised as “temporary structures” as that term is defined in the EPA Act, forming a sub-category of the term “building”. The respondent submits that (RWS at [99]):

“…the contention made by the applicant that the kennels are not permanently affixed to the ground or placed on a permanent foundation, and are mobile and temporary in nature, and on that basis fall outside the definition of building, ought to be rejected. The statutory definition of building specifically provides that a structure may be both temporary and mobile.”

Applicant’s position

59. Conversely, the applicant submits that the kennels are not buildings or structures, temporary or otherwise. The applicant argued in oral submissions that when one looks at the characteristics of the kennels, namely their size, lack of affixation to the ground, clear intention to be moveable, and construction offsite and delivery to the site via Ute, the kennels are clearly not buildings or structures under the EPA Act. The applicant further submits that as the kennels are not structures, they are necessarily incapable of being temporary structures.

Consideration

60. The respondent specifically referred the Court to [153] of the Broken Bay decision. I have extracted [153] in its entirety below:

“First, I find that a swing mooring was not a building, including a structure, to which cl 59 of WSPO 1963 applied. It is true that in a wide sense a structure can refer to a “Framework of material parts put together” or “something… built up of component parts”: R v Lowe (1954) 19 LGR (NSW) 348 at 351. However, courts have constructed the concepts of “building” and “structure”, for local government and planning purposes, as involving, first, a structure of considerable size or substance, and second, a structure intended to be permanent or at least endure for a considerable time. In an early English case involving the Metropolitan Building Act 1955 (UK), Byles J in Stevens v Gourley (1859) 7 CBNS 99 at 112-113; 141 ER 752 at 757-758 said that:

“by a ‘building’ is usually understood a structure of considerable size, and intended to be permanent or at least endure for a considerable time. A church, whether constructed of iron or wood, undoubtedly is a building. So a ‘cowhouse’ or ‘stable’ has been held to be a building… On the other hand it is equally clear that a bird-cage is not a building: neither is a wig-box, or a dog-kennel or a hen coup – the very value of these things being their portability” (emphasis added).

61. I do not accept that the kennels constitute a “building” for the purposes of the EPA Act. This is because, having regard to the facts and evidence in this case, and applying the principles and guidance in Broken Bay, I consider the kennels to be:

62. Not of a sufficient size or substance to constitute a “building” or “structure”.

63. Insufficiently affixed to the land to constitute a “building” or “structure”. I accept the undisputed evidence that the kennels were placed on the Premises by “dragging them from the back of a Ute”, are “placed on the grass and are not affixed or placed on any footings or hard surface”, and were meant to be, and are, capable of being moved if Ms Williams “wanted to relocate them” (Affidavit of Ms Williams filed 11 April 2025 at [12]). Although Ms Williams gave evidence that the kennels had not been moved since they were delivered to the Premises and she didn’t have an intention to move them, it is clear that the kennels are capable of being moved if required or desired at some time in the future. I consider that the personal intention of Ms Williams to retain the kennels in situ for the time being does not in and of itself transform the kennels into permanent or otherwise affixed buildings or structures.

64. “Dog-kennels” for the purposes of Stevens v Gourley (1859) 7 CBNS 99 at 112-113; 141 ER 752*,* being a thing expressly considered not to be a building in that judgment, the extract of which was referenced in Broken Bay to assist in the interpretation of the terms “building” and “structure”. I accept the applicant’s argument (albeit in relation to discretion) that on the respondent’s case, all dog kennels placed on land which have no present intention of being moved, would constitute buildings for which development consent is required (AWS at para 2.11). This would seem a nonsensical result.

65. As I have determined that the kennels are not “buildings” or “structures” for the purposes of the definition of “building” in the EPA Act, it is not necessary to consider whether they fall within the definition of “temporary structure”.

Should the kennels be ordered to be demolished?

63. As I have determined that the kennels do not fall within the definition of “building” in the EPA Act, there is no head of power to require their removal. On this basis, the Order should be modified pursuant to s 8.18(4)(b) of the EPA Act to remove the requirement to demolish or remove the kennels.

64. However, in the event that I am wrong, and the kennels are “buildings” under the EPA Act, I have considered whether the kennels should still be ordered to be demolished/removed.

Respondent’s position

65. The respondent submits that although it may be accepted that the kennels are ancillary to Ms William’s residential use of the Premises, this does not of itself make the kennels lawful, only permissible with consent. The respondent submits that development consent has not been sought or obtained for the kennels and it is therefore appropriate to require their demolition or removal pursuant to a demolition order under the EPA Act.

66. The respondent therefore invites the Court to either accept that the Order, despite its express terms, was intended to be a combined Order 1 and 3 and may be upheld on this basis, or else modify or substitute the Order to make it clear that the kennels must be demolished under Item 3 of Pt 1 of Sch 5 of the EPA Act.

Applicant’s position

67. The applicant submits that as the Court can be satisfied that the use of the kennels by Ms Williams is ancillary to the residential use of the Premises, the prospective use of the kennels does not require Ms Williams to obtain development consent under the EPA Act (AWS at 2.1]). Further, there is no suggestion from the respondent that the residential occupation of the property lacks development consent under the EPA Act.

68. Finally, the applicant submits that (at AWS [2.11]]):

“Thirdly, given the prevalence of domestic pet ownership in NSW, it is difficult to envisage that any local government authority would be seeking that a development application for the construction of a dwelling house would include details of (and expressly seek consent for) the use of any animal kennels for housing domestic pets. Or alternatively that a property owner would need to submit a modification application pursuant to s 4.55 of the EPA Act, were they to own a dog in the future and wish to house it in a kennel.”

Consideration

69. The Order expressly states that it is an “Order 1” and the reasons provided in the Order specifically go to the purported unlawful use of the Premises as the basis for the Order, including the requirement to remove or demolish the kennels. It is helpful to set out the reasons provided in the Order here:

“Reasons for issuing Order

The use of dog runs/kennels on a property is considered to be development for the purposes of an animal boarding or training establishment, meaning a building or place used for the breeding, boarding, training, keeping or caring of animals for commercial purposes (other than for the agistment of horses), and includes any associated riding school or ancillary veterinary hospital. Development for the purposes of an animal boarding or training establishment is prohibited in the C3 Environmental Management Zone under Kiama Local Environmental Plan 2011” (original emphasis).

70. I do not accept that the Order as drafted can require the removal of the kennels in circumstances where the facts have established, and the parties agree, that the kennels are not associated with the Dog Minding Business Use. Therefore, I am of the view that the Order cannot stand as presently drafted in respect of the kennels.

71. The question therefore becomes whether it is appropriate for the Court to modify the Order to comprise a combined order 1 stop use and order 3 demolish works, or substitute the Order for two separate orders, one being a order 1 stop use and one being an order 3 demolish works.

72. In the circumstances of this case where:

73. the Order is clearly expressed to be an “Order 1”;

74. the reasons set out in the Order were directed to the use of the Premises as a Dog Minding Business Use;

75. it has been accepted that the kennels are not used for the Dog Minding Business Use;

76. there is no evidence of unacceptable impacts from the private use of the kennels; and

77. I accept that the use of the kennels is ancillary to the permissible residential use of the Premises and no issues have been raised regarding that use,

78. I decline to exercise my discretion to modify or substitute the Order to require the demolition or removal of the kennels.

79. Instead, I consider that it is appropriate to exercise my discretion to modify the Order to remove the requirement for the demolition or removal of the kennels.

80. Therefore, regardless of whether the kennels are determined to be “buildings” under the EPA Act, I am still of the view that the Order should be modified to delete the requirement for the removal or demolition of the kennels.

Orders

75. The Court orders that:

76. The appeal is upheld, in part.

77. The Development Control Order issued by the respondent under s 9.34 and Part 1 of Schedule 5 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) to the applicant on 4 July 2024, reference Parcel Number – 7687, is modified pursuant to s 8.18(4)(b) of the EPA Act so that:

(a) The “Period of Compliance of Order” is modified to delete “From the date of this letter, you will have 28 days to comply” and replaced with “You must comply with this Order by 31 July 2026.” (b) The “Terms of Order” are modified to delete Order 1, being “Stop using the buildings (Dog Kennels), demolish and remove from the land.”

3. The appeal is otherwise dismissed.
4. The exhibits are returned except for Exhibits C, D and 8.

N Targett

Commissioner of the Court

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