Baulkham Hills Shire Council v ODonnell

2. The subject land is subject to the Warringah Local Environmental Plan 1985 and is within the 1(e) Non-Urban E - Rural Residential zone thereunder. Development for the purpose of dwelling houses permitted by clause 53AE is expressly permissible without development consent in such zones (clause 53AC and the table to that clause). The respondent has granted building approval for the erection of a dwelling house on the land. I assume that in granting the building approval the respondent was satisfied that it was permitted by clause 53AE.

3. Clause 10 of the Warringah Local Environment Plan relevantly provides:

10. A person shall not, without the consent of the Council, carry out any of the following development:

(d) development for the purpose of an aircraft landing field, helipad, heliport or any other facility for the landing or taking off of aircraft or helicopters.

4. Clause 5 of the Warringah Local Environmental Plan defines helipad as follows:

helipad means an area or place not open to public use which is authorised by the Department of Transport and which is set apart for the taking off and landing of helicopters;

This definition is to be contrasted with the definition of heliport, which is as follows:

Heliport means an area or place open to public use which is licensed by the Department of Transport for use by helicopters and includes terminal buildings and facilities for the parking, servicing and repair of helicopters.

5.` The applicant and his wife are the registered proprietors of and reside at the subject property, 301 McCarrs Creek Road, Terrey Hills. The applicant intends to use a small two-seater helicopter for personal private transportation between his dwelling house on the subject land and various places at which he carries on business. These, I understand, are at such places as Canberra, Tumut, Port Macquarie, Wauchope, Putty and Ourimbah. The helicopter will only be used as a private means of transport for the applicant and his wife to and from work and occasionally on private social occasions. For the purpose of determining the preliminary question of law I am prepared to assume these facts as being the intended use of the helicopter. Mr J A Ayling, who appears for the respondent, however, wishes to reserve the right to dispute these facts at the hearing, but is nevertheless content to have the preliminary question determined on an assumption that the stated intention of the applicant is the use to which the helicopter and its associated landing site is to be put. It follows that I am prepared to assume, for the purpose of determining the preliminary question, that the intended use is for a Ahelipad and not as a Aheliport as defined in clause 5 of the Warringah Local Environmental Plan .

Mr Ayling submits that a helipad is a prohibited use in the relevant zone. It is not identified in the zoning table in either the list of developments which may be carried out without development consent, or in the list of development which may be carried out with development consent. The helipad is thus, in his submission, prohibited development.

Mr Ayling further submits that clause 10 is intended to have effect where either the relevant development would be permissible without consent by the operation of the zoning table to clause 53AC or otherwise permissible without consent as a matter of law. Clause 10 does not have the effect of rendering permissible that which is otherwise prohibited.

Finally, Mr Ayling submits that the proposed use of the land for a helipad is an independent use. The fact that a use may be ancillary to another use (in this case a dwelling house) does not preclude it from being an independent use. In the present case the nature and extent of the use is not deprived of its independent quality merely because it is ancillary to, related to, or interdependent with, the use of the land as a dwelling house. Mr Ayling relies for this submission on the judgment of Meagher JA in Baulkham Hills Shire Council v ODonnell (1990) 69 LGRA 404.

Mr P W Larkin, who appears for the applicant, submits that clause 10 of the Warringah Local Environmental Plan is a substantive clause which operates independently of clause 53AC and the zoning table referred to therein. He refers to the opening words of clause 53AC: Except as otherwise provided by this plan. Thus, he submits, development consent may be granted for any of the uses described in clause 10 notwithstanding the provisions of the zoning table referred to in clause 53AC.

Mr Larkin alternatively submits that the proposed helipad in this case is ancillary to the residential use of the subject land. He relies for this submission on the judgment of Waddell J in Warringah Shire Council v Raffles (1978) 38 LGRA 306. The proposed use is, he submits, not an independent use. He also relies on the relevant Macquarie Dictionary meaning of independent viz: Anot dependent; not depending or contingent on something else for existence, operation etc. The proposed use relies upon the existence of the applicants dwelling on the subject land and upon the fact that it is the applicants home.

In my view it is sufficient to resolve the preliminary question by determining whether the proposed use is ancillary to the use of the land as a dwelling house or whether it is an independent use. That is to say, it is not necessary to resolve the submissions described in paragraph 7 and 9 above. The distinction between an ancillary use and an independent use is best explained by reference to the well-known discussion by Glass JA in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161:

It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts. But the trial judge specifically found that sales by retail were not ancillary to other purposes of the defendants and no attempt has been made to subvert that conclusion. Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged.

In Baulkham Hills Shire Council v ODonnell , Meagher JA delivered what Mr Ayling describes as a modern version of the approach to the problem of determining whether a use is ancillary to another use or is an independent use:

ANotwithstanding the principles laid down in Foodbarn , it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is question of fact and degree in all the circumstances of the case whether such a result ensues or not. When a resident uses his land to park his motor car at his house, he is no doubt not conducting an independent use of car parking; when an employer installs at his factory a canteen for his workers, no doubt he is not conducting an independent use of running a restaurant; when the Clarks grew vegetables for their table they were not conducting an independent use of vegetable growing. But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is >ancillary to, or related to, or interdependent with, another use. If a book publisher opens a sales room at his publishing house to sell his products, the selling of books is an independent use although ancillary to the use of publishing. The series of cases dealing with dual uses (of which the decision of this Court in Warringah Shire Council v Caltex Oil (Australia) Pty Ltd (1989) 68 LGRA 206 is an example) illustrate the point: they show that a >convenience store and a petrol station are two independent uses, although the former is clearly ancillary to the latter. This is a fortiori the case where the ancillary use has pre-dated the use to which it is said to become ancillary and when it has done so in circumstances where it was initially not >ancillary to any other use. (at 409-410)

It seems to me that the facts described in paragraph 5 hereof are indistinguishable from those considered by Waddell J in Warringah Shire Council v Raffles . In that case Dr Raffles used a helicopter to get from his home to his medical practices at Bankstown, Liverpool and Richmond. He also used it for social purposes and in particular to visit friends in the country and on trout fishing expeditions. He also used it to travel to a medical conference at Camden. The helicopter accommodated two persons other than the pilot. Dr Raffles used it to carry passengers from time to time on social occasions.

After referring to the judgment of Glass JA in the Foodbarn case which I have quoted in paragraph 11 above, Waddell J said:

In my opinion it does not depend upon any question of whether the use made is novel or upon its town planning consequences. Where land is used for the purpose of a dwelling house the use of some part of that land for some means of private transport seems to me necessarily to be use of the land for the purpose of a dwelling house. The very idea of a dwelling house presupposes that the occupants may have some means of private transport kept at hand to travel from the dwelling house to their places of work, shops, social occasions, and other places. In the present case I do not see any reason to treat the use by Dr Raffles of a helicopter as being, for the purpose of the application of the planning scheme ordinance, different in principle to the use by him of a motor car to travel to his various places of practice and to social occasions. It should be regarded as a use of the land for the purpose of the dwelling house on the land. (at 310)

As I have said, I see nothing to distinguish the facts and findings of Waddell J in Raffles from the present case. There is nothing in the later explanation of the relevant principles by Meagher JA in ODonnell which suggests that the judgment of Waddell J is no longer sound. I adopt without qualification the passage from Waddell Js judgment in Raffles which I have quoted above. In my view the proposed use of the helipad in the present case is not an independent use but is wholly ancillary to the use of the land for the purpose of a dwelling house. I am reinforced in this view by the dictionary definition to which I was referred by Mr Larkin, quoted in paragraph 10 above.

It follows that the proposed use is one which is permissible without development consent under the zoning table to clause 53AC. The effect of clause 10, however, is to require development consent for the use which would otherwise not require consent. As I have said, I do not need to decide whether clause 10 operates independently of clause 53AC in the manner for which Mr Larkin contends.

The preliminary question, namely, whether the proposed development is permissible with consent in the 1(e) Non-Urban E - Rural Residential zone, is answered in the affirmative. I certify that this and the 7 preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

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