Endo Techik-Nord Pty Ltd v Kiama Municipal Council [2012] NSWLEC 1096 | Case summary

Land and Environment Court (NSW)|2012-02-27|Before: Mr P

The applicant's submission on characterisation 27Mt To, for the applicant, submits that both town planning experts agree that the proposed development is appropriately defined a cottage industry. He agrees that the town planning experts correctly characterise the use as a cottage industry in that it is small scale in nature, and is carried on within, and on land adjoining the dwelling; does not offend any of the exclusionary elements of the definition in paragraph (b); and meets the additional criteria in paragraphs (c)-(i). 28Mr To rejects any suggestion that the proposed development is characterised as a recreation establishment as the definition is exclusive of any other defined use. As the proposed development is characterised as a cottage industry, by definition, it cannot be a recreation establishment. Also, Mr To notes that the individual uses mentioned in the definition are then followed by the term "and the like". It is clear that the uses are intended to share a common characteristic or, in other words, be part of a genus. In this case, the common characteristics of the individual uses is that they involve accommodation, and further, that the use is of such a scale, as denoted by " farm ", "house", " home" and "camp", that an entire building or place is functionally dedicated to the use. 29Mr To also rejects any suggestion that the proposed development is characterised as a recreation establishment because it is neither a "health farm" or "religious retreat house". The approach of Mr Biondich is incorrect as it focuses on only one activity of the proposed use and fails to consider other activities, in attempting to characterise the use. These characterisations are incorrect because the proposed development:

provides no accommodation,
is not of a the scale contemplated by the definition,
is not concerned with religion, as spirituality is only one aspect of the proposal, and
involves the production of goods. 30Similarly, the proposed use cannot be categorised as an educational establishment because Mr Biondich again relies on only one aspect of the proposed development, that is, the education of participants about the local history and culture. This approach ignores other parts of the proposed use such as, mediation and spirituality. 31In conclusion, Mr To submits that even the if it is found that the proposed development can be categorised as one or more of recreational establishment, tourist facility or educational establishment, the proposed development is not prohibited. The zoning table in cl 9(2) of LEP 1996 is subject to the words "as otherwise provided by this plan". In this case, the part of the site that is zoned 7(e) is also mapped as AHCV. The combined effect of cl 9(2) and cl 37(2) is that the zoning table, including the list of prohibited uses, is inapplicable and it is cl 37(2) that specifically identifies the permissible uses. All other innominate uses are prohibited. Properly considered, the search for a prohibited innominate use does not arise under LEP 1996. On the basis that the proposed use is a cottage industry, the use may be carried out subject to the additional requirement that it be "carried out in association with a dwelling".

The approach to categorisation 32The general approach to characterisation for planning purposes is best set out by Preston CJ in Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 114, for a supermarket, where His Honour includes the relevant cases and relevantly states (at 27 and 28): 27 In planning law, use must be for a purpose: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535 and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGRA 173 at 188. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534. 28 In determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary: Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 at 499-500. The use of land involves no more than the "physical acts by which the land is made to serve some purpose": at 508. 33His Honour further relevantly states (at 33 to 36 and 45): 33 The fact that the nature of the uses of different components or parts of the development may vary is not necessarily of importance. Obviously, the only part of the proposed development that will have a use of the specific nature of supermarket is that part of the building which incorporates the supermarket. The nature of the uses of other parts of the building, such as the car park, driveways, access ways, and landscaped forecourt, is different. 34 However, the nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose: see Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534, 535 and Warringah Shire Council v Raffles (1978) 38 LGRA 306 at 308. 35 In this case, the use of the car park, driveways, access ways and landscaped forecourt are each designed to serve the end of enabling the supermarket to be carried on. That is their purpose and that purpose imparts to the land on which those uses are pursued the character of shop, including the supermarket. The end to which the parts of the land in Lot D is to serve is not roads. 36 The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310. . 45 The characterisation of the purpose of development must also be done in a common sense and practical way... 34The general thrust of the findings in Chamwell is that the characterisation must focus on the purpose of the land. This must be done at a level of generality and in a commonsense and practical way that is sufficient to include the individual uses that make up the purpose. While there may be a number of different uses, these different uses may still serve the same purpose. 35In Abret Pty Ltd v Wingecarribee Shire Council [2011] 180 LGERA 343 (at 54), it relevantly states: ...where part of the premises is used for a purpose which is subordinate to the purpose of 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.... Where premises are used for two or more purposes, none of which subserves the others, if any one purpose which is independent and is not incidental to the other purposes prohibited, the planning ordinance is being disobeyed. 36In Egan v Hawkesbury City Council [1993] 79 LGERA 321, it was found that if an activity falls within the definition of an activity which is prohibited, it remains prohibited even if it also falls within the definition or class of activity which is permitted.

Is the proposed development a cottage industry? The proposal 37As set out in the SEE and the affidavit of Ms Badan, the proposed development could be summarised as involving:

a focus on nature, meditation, well-being and spirituality, that includes experiencing the natural attributes of the site from various outdoor locations such as the stair and viewing platform, as well as other features,
developing skills in relaxation, meditation, spirituality and well-being and providing the opportunity for participants to express themselves creatively in the form of art, poetry, story-telling etc through the inspiration provided by the natural beauty of the site,
facilitators who will guide and direct participants and produce and make available for sale, instructive material relative to their expertise, such as sketching, photography and painting, including aboriginal art of weaving and painting, and
items produced by the facilitators and participants, such as woven items, paintings and sketches will be made available for sale from the site. The elements of the definition in dispute 38The definition of cottage industry requires satisfaction with a number of different elements of the definition. Those elements in dispute are whether:
the activity is carried out within the curtilage of a dwelling occupied by the person carrying on the activity or on land adjoining the land owned by that person (part (a)),
the activity involves the employment of more than two persons (whether as apprentices, employees, students of arts and crafts activities, or trainees) other than residents of the dwelling (part (b)(iv)), and
the activity involves any goods offered for sale have been produced on the site of the activity (part (d)). Findings 39In considering the competing submissions, I am satisfied that the submissions of Mr Moggach that the proposed use is not a cottage industry should be accepted for a number of reasons. 40First, I do proposed to rely on the evidence of the town planners for the characterisation of the proposed development as greater weight should be given to the legal submissions from the parties given the legal nature of the task of characterisation. As pointed out in the cross examination of Mr Biondich, characterisation needs to be undertaken at a level of generality and in a commonsense and practical way that is sufficient to include the individual uses that make up the purpose. As set out in Chamwell (at 34), the nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose. The exercise of characterisation carried out by Mr Biondich did not reflect this approach and as such his evidence, on characterisation should be disregarded. 41Second, I agree that a cottage industry must be an industry. There can be no other conclusion, given that the definition of industry specifically excludes only one form of industry from the definition of industry, that being an extractive industry. It follows that as a cottage industry is not excluded from the definition of industry then it must also satisfy the definition of industry, particularly the definition of "manufacturing process". While it was stated in the Baden affidavit that some products may be produced and may be sold as part of the process of developing skills in relaxation, meditation, spirituality and well-being, no specific details were provided on the type or number of goods likely to be sold. This submission of Mr Moggach that this part of the development application appeared to be afterthought as it was not included in the original SEE should not be ignored. 42Third, I do not accept that the proposed development satisfies part (a) of the definition in that 'the activity is carried out within.... the curtilage of a dwelling" for that part of the application relating to the stairs and viewing platform 43Mr Biondich and Ms Sheppard identified the areas they considered to be the curtilage of the dwelling. The area identified Mr Biondich included the area around the dwelling whereas Ms Sheppard identified a larger area around of the dwelling but also included an extension in an easterly direction to include the 200 m walkway and the stair and viewing platform structure. In a planning context, the term curtilage can have different meanings. For example, similar heritage buildings may require different curtilages depending on their relative significance or relationship with other buildings. In this case, I am satisfied that the term curtilage should be given a more restrictive meaning. If a cottage industry is to be carried out within a dwelling, it could reasonably inferred that if the activity was to be conducted outside the dwelling then it should be within a reasonable distance from the dwelling, in much the same way as the landscaped labyrinth is located near the dwelling. Considering the different areas identified by Mr Biondich and Ms Sheppard, I agree with Mr Biondich as the start of the stairs is some 200 m from the dwelling on the site. This area also generally accords with the Macquarie Dictionary definition relied on by Mr Moggach. 44As I understand there was no dispute that the proposed development satisfied the requirements in part (a), with the exception of the existing stairs and viewing platform. 45While there was some discussion on that section of part (a) relating to "on land adjoining the land owned by that person", I would agree that its meaning is not overly clear however as the stairs and viewing platform are located on the same allotment of land as the dwelling, it has limited, if any relevance in this case. 46Fourth, I do not accept that the proposed development satisfies part (b)(iv) of the definition in that it involves the employment of more than two persons (whether as apprentices, employees, students of arts and crafts activities, or trainees) other than residents of the dwelling. I agree with Mr Moggach that the word "employment" within part (b)(iv) of the definition must be given a broader meaning than simply the engagement of a person for payment in a working environment, given that part (b)(iv) includes students and trainees within the meaning of employed persons. In this context, it is difficult to disagree with the submission of Mr Moggach that the proposed 10 - 15 participants are appropriately included as "students or trainees" for the purposes of the definition. I accept that the definition envisages no more than two additional persons (other than residents of the dwelling) being involved in the cottage industry. 47While DCP 11 cannot be used to interpret the meaning of the definition, it nonetheless provides some helpful guidance to its meaning. Clause 2.4 largely repeats part (b)(iv) of the definition but importantly, under the heading that states "Number of Persons Allowed on the Site". The clear distinction between "employees" in the definition and the broader requirement of "Number of Persons Allowed on the Site" in DCP 11 cannot be ignored particularly given the similar requirements in the definition and DCP 11. In my view, cl 2.4 of DCP 11 supports the council's interpretation of part (b)(iv) of the definition. 48Further support for this interpretation, in a general planning context, is that given that a cottage industry can be conducted within a dwelling or its curtilage and is a permissible use in areas where the vast majority of other potential land uses prohibited (that is, the AHSV) it would be a sound and valid planning approach to limit the number of persons associated with a cottage industry because of the potential to adversely impact on the environment and amenity of the area. 49In Appeal 10516 of 2011, and as the appeal is to be dismissed, it is necessary that the s 121B Order be modified to provide a revised date for the demolition of the timber stairs and viewing platform. Given the agreed lack of any impact, a 12 month period is appropriate.

Orders 50In Appeal No 10953 of 2011, the orders of the Court are:

The appeal is dismissed.
The development application for a cottage industry at 96 Rose Valley Road, Rose Valley is refused.
The exhibits are returned with the exception of exhibit 2. 51In Appeal No 10516 of 2011, the orders of the Court are:
The appeal is dismissed,
Modified Order No. 2 under Part 6 Division 2A of the Environmental Planning and Assessment Act 1979, issued by Kiama Municipal Council on 16 May 2011 for premises Lot 103, DP 561082,H/N 96 Rose Valley Road, Rose Valley is modified in accordance with s 121ZK(4)(b) of the Environmental Planning and Assessment Act 1979 by the deletion of the following paragraph: As the owner you are hereby ORDERED to comply with the following requirements within 60 (sixty) days of the date of this Order. and its replacement with the following paragraph: As the owner you are hereby ORDERED to comply with the following requirements within 12 months of the date of this Order.
The exhibits are returned with the exception of exhibit 2. 52In Appeal No 11138 of 2011, the orders of the Court are:
1. The appeal is dismissed,
Notice of Determination for a Building Certificate No 40.2011.19.1 under Section 149B 1of the Environmental Planning and Assessment Act 1979 Application, issued by Kiama Municipal Council on 1 November 2011 for premises Lot 103 and 102, DP 561082 and 1117926, 96 Rose Valley Road, Rose Valley is confirmed but altered in accordance with s 149(3)(b) of the Environmental Planning and Assessment Act 1979 by deleting the Reasons for Refusal and replacing paragraphs 1 and 2 with the following:
No development consent has not been granted for the stairs and viewing platform. .
The exhibits are returned with the exception of exhibit 2. G T Brown Acting Senior Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 April 2012

Relevant planning controls 8The site is currently zoned RU2 Rural Landscape and E2 Environmental Conservation under Kiama Local Environmental Plan 2011 (LEP 2011). The RU2 zone objectives are: · To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. · To maintain the rural landscape character of the land. · To provide for a range of compatible land uses, including extensive agriculture. · To protect agricultural land for long term agricultural production. · To provide opportunities for employment-generating development that adds value to local agricultural production through food and beverage processing and integrates with tourism. 9The E2 zone objectives are: · To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values. · To prevent development that could destroy, damage or otherwise have an adverse effect on those values. · To ensure adequate environmental buffers are provided, maintained or rehabilitated in the vicinity of high ecological value areas and waterways. 10A cottage industry is not a permissible land use within the RU2 or E2 zones under LEP 2011 but as LEP 2011 was gazetted on 16 December 2011 and the proposed development was lodged on 9 March 2011, the savings provisions in cl 1.8A of LEP 2011 are relevant and state: 1.8A Savings provision relating to development applications If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. 11The savings provisions in cl 1.8A require the development application to be "determined as if this Plan had not commenced" or in other words, as if LEP 2011 was still a draft LEP. On this basis, I have referred to LEP 2011 as the draft LEP even though it has been gazetted. Given that the draft LEP has been gazetted it must be treated as being "imminent and certain". The parties agreed that this does not mean that the draft LEP should automatically be given significant or determinative weight in considering the application as it is necessary to consider the objectives of the relevant zones in the draft LEP and determine where the proposed development is consistent with those objectives (see Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279). As I understand, there was agreement that the proposed development was consistent with the objectives of the relevant zones in the draft LEP as the expert evidence concluded that the proposed stairs and viewing platform were structurally sound, were not visible, did not create any ecological or bushfire issues and overall, will have no adverse environmental impacts. 12The hearing was conducted largely on the planning controls that pre-dated LEP 2011. Prior to the gazettal of LEP 2011, the site was zoned Rural 1(a) and Hinterland 7(e) under Kiama Local Environmental Plan 1996 (LEP 1996). The site also contains areas identified as Areas of High Conservation Value (AHCV). The relevant AHCV contains the existing stairs and viewing platform but not the existing dwelling to be used as part of the cottage industry. Clause 37 provides specific requirements for development within AHCV with cl 37(2) stating: (2) Development in an area of high conservation value is prohibited other than for the purposes of a public road, care-giving services, cottage industries carried out in association with the dwelling, the regeneration of native forests, removal of noxious weeds, removal of nominated exotic plants and development allowed by clause 38. 13Clause 6 of LEP 1996 provides the following relevant definitions: cottage industry means an activity carried out under the following circumstances: (a) the activity is carried out within a dwelling or the curtilage of a dwelling occupied by the person carrying on the activity or on land adjoining the land owned by that person, (b) the activity does not: (i) interfere with the amenity of the locality by reason of the emission of noise, traffic, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil or otherwise, or (ii) involve exposure to view from any public place of any unsightly matter, or (iii) require the provision of any essential service main of a greater capacity than that available in the locality, or (iv) involve the employment of more than two persons (whether as apprentices, employees, students of arts and crafts activities, or trainees) other than residents of the dwelling, or (v) involve the exhibition of any notice, advertisement or sign (other than a notice or sign not exceeding 1 metre by 0.6 metre exhibited on that dwelling to indicate the name and occupation of the resident thereof), (c) the activity is in character with the scale and ambience of other activities within the immediate area, (d) any goods offered for sale have been produced on the site of the activity, (e) adequate provision has been made on site for the collection, storage and disposal of waste resulting from the activity, (f) provisions have been made, on site, for the safe and convenient parking, turning and manoeuvring of vehicles associated with the activity, (g) satisfactory provision has been made to ensure the safe and convenient ingress to and egress from the site, for all vehicles using the site, (h) the building to be used in conjunction with the activity does not cause adverse visual impact, and (i) the activity does not involve the use of the premises for the purposes of prostitution or a brothel. industry means: (a) any manufacturing process within the meaning of the Factories, Shops and Industries Act 1962, or (b) the breaking up or dismantling of any goods or any article for trade or sale or gain or as ancillary to any business, but does not include an extractive industry. 14The Factories, Shops and Industries Act 1962 defines the term "manufacturing process" as: any handicraft or process in or incidental to the making, assembling, altering, repairing, renovating, preparing, ornamenting, finishing, cleaning, washing, breaking up, or adapting of any goods or any articles or any part of an article for trade or sale or gain, or as ancillary to any business.... 15LEP 1996 also adopts definitions from the Model Provisions with the relevant definitions being: "recreation establishment" means health farms, religious retreat houses, rest homes, youth camps and the like but does not include a building or place elsewhere specifically defined in this clause or a building or place used or intended for use for a purpose elsewhere specifically defined in this clause. "tourist facilities" means an establishment providing for holiday accommodation or recreation and may include a boat shed, boat landing facilities, camping ground, caravan park, holiday cabins, hotel, house boat, marina, motel, playground, refreshment room, water sport facilities or a club used in conjunction with any such activities. "educational establishment" means a building used as a school, college, technical college, academy, lecture hall, gallery or museum, but does not include a building used wholly or principally as an institution or child care centre. 16Kiama Development Control Plan No. 11 - Cottage Industry (DCP 11) applies and supplements the requirements in LEP 1996 for cottage industries. Relevantly cl 2.4 states: 2.4 Number of Persons Allowed on the Site The activity must not involve the employment of more than two persons (whether as employees, students or trainees) who are not normally residents of the dwelling being on the site at any one time.

(2007) 151 LGERA 114

Endo Techik-Nord Pty Ltd v Kiama Municipal Council

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