Griffis and anor v Tweed Shire Council

Griffis and anor v Tweed Shire Council - [2011] NSWLEC 1126 - NSWLEC 2010 case summary — Zoe

Introduction 1Mr and Mrs Griffis live on a five acre allotment (the site) some 4 km or so from the town of Murwillumbah. The site is within the river valley flats and has highly fertile soils. Mr and Mrs Griffis live in a substantial dwelling toward the northern end of their property with gently sloping lawns to their road frontage. To the south, in the vicinity of the south-eastern corner of their allotment (perhaps 200 m or so from the principal dwelling) is a large Colorbond-clad shed. Tweed Shire Council (the council) gave consent for the erection of this shed to act as an agricultural machinery and equipment shed in support of the market gardening activities conducted on the site. 2Approximately six months or so after the completion of the shed (built to the footprint for which consent was given), Mr and Mrs Griffis had a number of un-authorised alterations made to the interior fit out and external permitted apertures of this shed. In its original approved form, the shed was to have a small kitchen in its south-western corner and a small bathroom facility at approximately the mid point of its eastern face. Although the shed, as now constructed, has bathroom and kitchen facilities at these locations, they are considerably bigger than those envisaged in the original approval. 3In addition, although the shed application had envisaged the inclusion of a laundry, this did not form part of the consent granted but, nonetheless, a laundry has, in fact, being constructed. The kitchen as constructed is of significantly greater scale than that which was envisaged - this being as a modest kitchenette in the development for which approval was given. 4Further, internal partitioning and additional windows and an entrance door have been installed. These "extras" have the total effect of turning approximately 70% of the floor area that had been approved for the shed into a three bedroom dwelling. 5These proceedings arise from the fact that Mr and Mrs Griffis seek to regularise the existence of this additional dwelling on their property. They have done so by making two applications to the council. The first of those applications to be dealt with in the merit assessment process that I need to undertake (although not the first application in time) is an application for a building certificate to regularise the works as they will be when completed. 6The second application to be dealt with is the one seeking consent to the use of part of the shed as a rural worker's dwelling This requires my consideration as to whether or not the use of the shed as a dwelling should be permitted after consideration of relevant planning controls. Although the application for the use pre-dated the application for the building certificate, the sequence of consideration I have outlined is that required in following the decision of Bignold J in Ireland v Cessnock City Council [1999] NSWLEC 153; (1999) 103 LGERA 285. 7Following Ireland, I have treated these as entirely separate questions (with different matters for consideration arising for each.

[3]

The building certificate application 8The appeal concerning the application for a building certificate, Matter No 763 of 2010, arises because of the deemed refusal by the council to issue such a certificate. Although the council proposed some without prejudice orders with respect to the building certificate application, the first of them, requiring that proof of development consent to use the structure as a dwelling is required, is misconceived as it would reverse the sequence of assessment required by Ireland . 9I indicated to Ms Simmons, solicitor for the council, and Ms Duggan SC, counsel for the applicants, what I understood to be the proper sequence of assessment of the two appeals as required by Ireland . To follow the proper assessment sequence, it is first necessary for me to consider the remaining matters raised by the council concerning the application for a building certificate. 10These, essentially, arise from what the council says is inadequate documentation to satisfy the first step in Ireland , namely whether the premises are fit and properly constructed to enable the use as a dwelling, if determined to be appropriate in the second step, to be carried on within the shed. 11A wide range of certificates relating to matters such as waterproofing of wet areas; compliance of glazing with the relevant Australian Standard and the like are required by the council in the without prejudice conditions for this matter. The applicants do not, as I understood the position, dispute the need for such certification. These certificates, in my opinion, are ancillary to my consideration of the merits and are capable of being dealt with by way of deferring the issuing of a building certificate until these certificates have been provided to the council. 12Similarly, a number of minor works such as completing the external cladding of the building (to render it vermin proof - with such cladding being required in the vicinity of the doorway entrance to the constructed dwelling) and some internal lining in the bathroom are also necessary to be completed prior to issuing of a building certificate. A requirement deferring the issuing of a building certificate until after the completion of such works to the satisfaction of the council is, therefore, also the appropriate approach to ensure that these works are carried out. 13The final element of certification that is necessary before a building certificate could be issued is provision of a structural engineer's certificate certifying that the shed is structurally adequate. This is not a minor requirement - as compared to the other outstanding matters earlier noted. 14Although its intended use presently is, principally, as a dwelling (but with a subsidiary use - at its residual northern end - as an agricultural machinery and produce packaging area), the internal arrangement of spaces - even if such a domestic use were not to be approved (as is the case for the reasons below) - could, perhaps, be utilised functionally for permissible purposes. That is a matter for the applicants' consideration in light of my determination that use as a dwelling cannot be permitted. 15Ms Duggan was confident that such a structural engineer's certificate could be obtained and I indicated that, as I would be prepared to provide a reasonable period of time within which such a certificate could be obtained and provided to the Court, the absence of such a certificate (because of non-finalisation of the building certificate application) did not act to prevent me considering the merits of the second application to be considered consistent with the sequence in Ireland , namely the application to use the structure as a dwelling. 16Although, given the conclusion that I have reached with respect to the use of the shed may effectively render my conclusion concerning the building certificate futile, nonetheless directions can be given the building certificate application appeal so that, if: the outstanding certificates are provided; the outstanding works are completed to the council's satisfaction; and a structural engineer's certificate for the whole of the shed structure is, in fact, provided to the Court, that appeal can be upheld and the council would be ordered to issue a building certificate for the shed structure. 17Therefore, in this matter, at the conclusion of this judgement, I have made appropriate directions to permit a building certificate to be issued (if so desired by Mr and Mrs Griffis) if these requirements are met. However, if the applicants do not wish to obtain a building certificate for the shed structure in light of my decision concerning the proposed use as a dwelling, I have provided for a self-executing process to refuse the building certificate appeal if the required further steps are not carried out as directed.

[5]

The past farming activities 20The main market garden area lies between the shed and the principal residence on the property). In addition, there is a further small produce planting area to the south of the shed between the shed and the southern boundary of the property. This is also to be available for production by the shed's occupant. 21Mr and Mrs Griffis have approval to run a roadside stall and have a mobile stall that is, I infer from observing it during the site inspection, kept overnight in the vicinity of the shed. 22Mr and Mrs Griffis have had a person who was the former partner of their son, living in the shed, until two months or so prior to the hearing of these matters. This person had been undertaking farming operations generally in the fashion outlined above. Tragically, that person died in September 2010 and the shed is currently unoccupied. Mr and Mrs Griffis have given an undertaking that occupation will not recommence unless and until use of the shed as a dwelling is approved by the Court. 23The farming activity that is involved for the shed's occupant comprises planting, watering and weeding a variety of food plants and harvesting and packaging sufficient of them, each morning, to stock the roadside stall and harvesting and packaging additional supplies, as required during the day, in order to replenish the stock of the stall. 24Mr Griffis gave evidence that, although he and his wife owned the property, the farming activities were undertaken under the aegis of a company that they owned. He further gave evidence that the former person who had undertaken the farming activities had done so on a share farm basis and that person was entirely responsible for their own taxation recording (and, if necessary, tax payment arrangements with respect to) the totality of the benefits that they received (both in cash and in kind) - total benefits he estimated were of the order of $45,000 all found. He expressly disavowed any notion that of the person undertaking these activities would be an employee of the farm operations company but insisted that they were to be a share farmer only. Mr Griffis indicated that he provided such equipment and other farm supplies as were necessary for carrying out the operation and would do so for any future occupant of the shed. 25Mr Griffis' evidence was also that, for some time in the past (prior to the commencement of the roadside stall selling of the produce), produce from the market gardening activities had been sold into the Sydney market but this trading had proved to be unprofitable.

[7]

The relevant planning controls 28The presently applicable local environmental plan is the Tweed Local Environmental Plan 2000 (the 2000 LEP). 29Although there is a draft of the Tweed Local Environmental Plan 2010 (the 2010 LEP) available, a new LEP prepared in conformity with the state-wide template (the Standard Instrument) and although the relevant terms of the 2010 LEP that would be applicable in the present circumstances may be regarded as certain, there is no basis upon which I could conclude that the 2010 LEP is, in any way, imminent. As a consequence, I consider that I should give no weight to this draft planning instrument. 30This idea is zoned 1(a) Rural under the 2000 LEP. The objectives for this zone are as follows: Primary objectives to enable the ecologically sustainable development of land that is suitable primarily for agricultural or natural resource utilisation purposes and associated development. to protect rural character and amenity. Secondary objectives to enable other types of development that rely on the rural or natural values of the land such as agri- and eco-tourism. to provide for development that is not suitable in or near urban areas. to prevent the unnecessary fragmentation or development of land which may be needed for long-term urban expansion. to provide non-urban breaks between settlements to give a physical and community identity to each settlement. 31The land use table for this zone shows, relevantly, the following uses are permitted with development consent: Item 2 allowed only with consent: bed and breakfast dwelling houses if each is on an allotment of at least 40 hectares or on an allotment referred to in clause 57 multi-dwelling housing if: (a) not more than two dwellings are involved, and (b) they are attached, and (c) they are on an allotment of at least 40 hectares or an allotment referred to in clause 57 any other buildings, works, places or land uses not included in Item 1, 3 or 4 32The dictionary to the 2000 LEP provides that multi-dwelling housing means more than one dwelling on an allotment, but does not include a rural worker's dwelling. 33The dictionary to the 2000 LEP also provides that rural workers' dwelling means a dwelling which is on land on which there is already erected a dwelling or dwellings and which is occupied by persons engaged in rural occupation on that land . 34In addition, there is a specific provision in the 2000 LEP that deals with the question of rural workers' dwellings and the circumstances under which one can be approved on a landholding in addition to the principal residence on that landholding. 35The clause providing for rural workers' dwellings, cl 18, is in the following terms: 18 Rural workers' dwellings (1) Objective to enable the provision of on-farm accommodation for rural workers only where there is a genuine need for them to live on-site and there is a demonstrated capacity of the existing farm to support their employment. (2) Consent may be granted to the erection of a rural worker's dwelling only if the consent authority is satisfied that: (a) its erection will not impair the use of the land for agriculture, and (b) the existing agricultural operation genuinely necessitates that rural workers reside on the farm and the operation has the economic capacity to support them, and (c) the resident of the rural worker's dwelling is to be employed on that farm, and (d) the erection of a rural worker's dwelling would not result in there being any more than one rural worker's dwelling on the farm, and (e) the dwelling will not be built on land classified as Class 1 or 2 agricultural land by the Department of Agriculture. (3) Consent must not be granted to the erection of a rural worker's dwelling on an allotment of land having an area of less than 40 hectares in Zone 1 (a), 1 (b2) or 7 (d) or an allotment of less than 10 hectares in Zone 1 (b2). (4) For the purposes of subclause (3), land is taken to be in Zone 1 (b2) if it is shown on the zone map by the marking "1 (b2)". 36As the site does not satisfy the minimum allotment size contained in cl 18(3), an objection pursuant to State Environmental Planning Policy No 1 - Development Standards (SEPP 1) has been made to compliance with the development standard requiring this minimum allotment area.

[9]

Is what is proposed erection of a rural worker's dwelling ? 38Ms Simmons raised an initial objection to this application as one capable of utilising cl 18 of the LEP as a gateway to permissibility of future use of the shed as a dwelling. Ms Simmons' objection finds its foundation in the introductory words to cl 18(2), consent may be granted to the erection [emphasis added] of a rural worker's dw elling. 39The proposition advanced by Ms Simmons was that, because the shed had already been adapted to the extent already described for use as a dwelling and, on Mr Griffis' evidence, had already been so used, that which was sought by this application was not for erection but was for permission to use something that was already erected where the erection had not been subject to development consent in the form actually carried out. 40Ms Simmons relied on the decision of Talbot J in Pancho Properties Pty Ltd v Wingecarribee Shire Council [1999] NSWLEC 245 at para 130 where His Honour said, with respect to the provisions of the local environmental plan there under consideration: For the reasons already given, the subclauses only apply where the rural worker's dwelling is a dwelling house. Furthermore, they only apply where erection of a rural worker's dwelling is proposed. They have no direct application to a change of use that does not necessitate erection of a building. 41I do not consider that this necessarily raises a fatal bar to the proposal, as there is no reasoned analysis to support this element of His Honour's decision. 42It seems to me that cl 18 is, like other elements of the planning framework such as s 96 of the Environmental Planning and Assessment Act 1979, to be regarded as being of a beneficial and facultative nature. In addition, the approach taken by Bignold J in Ireland is clearly one that, as His Honour expressly observes, is not morally judgmental and sets aside entirely all questions of culpability and proceeds to consideration of the proposed use on a conventional planning assessment against the relevant planning instruments. 43However, given my other conclusions as to why the applicants cannot rely upon cl 18 to regularise the proposed arrangement with a future occupant of the shed, it is unnecessary for me to venture into considering His Honour's conclusion on this point - being a consideration where questions of Sir Humphrey-like courage might arise!

[11]

Is an employer/employee relationship required? 46During the course of the hearing, I raised with Ms Duggan the question of the status of the person who would occupy the proposed rural worker's accommodation. I raised this in light of Mr Griffis' evidence that the person was to be a share farmer rather than an employee and his express disavowal of any employer/employee relationship proposed to be created with the occupant of the shed. I put the proposition to Ms Duggan that the use of the word employment in the objective to cl 18 and the use of the word employed in cl 18(2)(c) meant that such a rural worker needed to be the subject of an employment contract and be employed on that farm . 47Ms Duggan responded that, in this context, I should read employment as being, effectively, engagement and the word employed is to be treated in an analogous fashion. It was her submission that the use of these words did not require the existence of an employer/employee relationship between the applicants and the share farmer and that a relationship of the type envisaged was sufficient to meet the requirements of the clause and enable the applicants to have the benefit of it. This was necessary to take purposive approach to the clause. 48I am unable to accept this proposition. It seems to me that, in the context of this clause, specifically in the use of the two words to which I have earlier referred (but also, more generally, the use of language relating to the economic viability of the agricultural enterprise to support such a person) necessarily require, in a contextual reading of the totality of the clause (as well as the use of the two specific words cited), that there must be an employer/employee relationship between the farming enterprise and the rural worker who is to reside in a rural worker's dwelling. As a consequence, the applicants are not able to invoke this clause in support of their application in the absence of such a relationship being created with the future occupant.

[12]

Compliance with the objective to cl 18 49However, if I am wrong in reaching this conclusion, I turned to consider a number of other aspects of the inter-relationship between this application and cl 18. 50The first is whether or not the application complies with the objective of the clause. There are two separate matters required to be satisfied for this application to be consistent with the objectives of the clause. The first is that there be a genuine need for the rural worker to live on site. Taking the applicants' case at its highest, as I propose to do in the merit assessment against cl 18 (on the assumption that my earlier conclusion that the provision is not available to the applicants may be found to be wrong), I am prepared to treat the nature of the farming and on site marketing operations - including the early morning harvesting of produce for loading the roadside stall and its manoeuvring to the front of the property to commence the daily marketing - as engaging and satisfying this element of the objective. This is the sole area in consideration of cl 18 where Mr Griffis' personal circumstances might be engaged but engagement of them is unnecessary, in the first instance, for this conclusion. 51In doing so, I take, perhaps, in this interpretation, an overly facultative meaning for the word need as it being a synonym for is highly desirable in the context rather than the more restrictive view that would apply if I were to regard the word requires , that is implying strict necessity, as the appropriate synonym for need . I note that, in my adoption of this interpretation (thus taking the applicants' case on this point at its highest), I may, in fact, be taking too permissive and interpretation of this objective if it is not permissible to have regard to Mr Griffis' personal circumstances on this restricted point. 52The second limb of the objective requires that there be a demonstrated capacity of the existing farm to support the employment of the rural worker. On Mr Griffis's own evidence, I cannot be satisfied that this limb of the objective is met. It is quite clear that the provision of rent-free accommodation and the provision of utility services of gas, electricity and telephone without charge (as part of a total package of benefits of approximately $45,000 [including retaining the sales receipts for the produce of the farming activities] - thus making the arrangement, as described by Mr Griffis, an attractive one to a future occupant of the shed), in my view, demonstrates that this element of the objective cannot be met. On the evidence of several witnesses, accommodation of the standard proposed to be provided by Mr and Mrs Griffis evidences an effective and significant in-kind subsidy to any person entering into the proposed arrangement. This in-kind accommodation subsidy is in addition to the utility provision subsidy and the further in-kind agricultural materials and equipment provision noted earlier. 53As a consequence, even if, contrary to my earlier finding, the applicants are able to engage the provisions of cl 18, this application does not satisfy the second element of the objectives of the clause. As a consequence, on this, second, general basis, the applicants are unable to utilises cl 18 to seek consent for this proposed arrangement.

[23]

The third Winten question 71I have dealt, earlier, with an analysis of the proposal in the context of the objectives of cl 18 and concluded that the proposal does not satisfy them. In the context of the SEPP 1 objection and the material put in support of it, it is necessary to make some further observations about the SEPP 1 objection document and the inconsistencies contained in it with the evidence given by Mr Griffis during the course of the hearing. It also necessary to comment, in the context of the SEPP 1 objection, on the aspects of the objection that rely on the incapacity of Mr Griffis to carry out agricultural activities that he had undertaken in the past. 72I have earlier set out the evidence of Mr Griffis in which he expressly made it clear that the person who the applicants propose reside in this dwelling and enter into the farming arrangement earlier described is, expressly and explicitly, not to be a person who has an employer/employee relationship with the company that undertakes the farming enterprise on the Griffis' property. 73On the other hand, the language employed by the SEPP 1 objection is, in my view, one that expressly envisages the arrangement will be an employer/employee one. As an example, the SEPP 1 objection specifically talks about the concept of annual leave and nominates a preferred time of the year when such leave would be taken. 74In addition, as was clear from Mr Griffin's evidence, the reason that a person is required to be available to undertake the cropping related activities it is because Mr Griffis is no longer physically able to do so because of a combination of back and upper torso medical limitations now experienced by him. This disability, it is also clear from the concluding remarks of the SEPP 1 objection, forms one (by no means the only - but nonetheless a necessary and critical) element of the SEPP 1 objection. 75The statement of accounts for 2006/2007 for the company that undertakes the farming activities [these accounts forming part of appendix C to the SEPP 1 objection], clearly show, in my view, that the farming activity is certainly not capable of supporting Mr and Mrs Griffis and another, separate occupant of the site (however the arrangement with that person might be described). Indeed, although Mr Griffis, in his evidence, expressed the intention that the occupant of the proposed dwelling would retain all of the profits from the cropping arrangements, that is not the basis shown in the SEPP 1 objection in supporting documents as these appeared to envisage that Mr Griffis would receive 25% of the proceeds as a supplement to his pension. 76It is clear, in addition to the reasoning discussed earlier relating to the objectives of cl 18, that there is a significant subjective element arising from Mr Griffis' personal circumstances in seeking to regularise the use of the structure and permitting the farming related arrangement to be entered into for the future. 77I indicated to Ms Duggan during the course of the hearing, an initial reading of the objective of cl 18 might lead to an initial inference that some subjective circumstances might be appropriate to be considered (and I have done so for the limited purposes earlier discussed). On further consideration, I have concluded that that can only be appropriate for those limited purposes earlier discussed. I reached this conclusion because the whole of the planning system is based on the concept that consents are given to run with the land rather than with a particular person or people (unless otherwise provided - as earlier specifically considered). 78In this instance, although Mr and Mrs Griffis agreed to accept a condition of consent that would require the reconversion, prior to do any disposal of the property by them, of the structure to its originally approved form so that it was no longer a dwelling, this, in my view, merely reinforces the fact that what is intended here is a response to the personal circumstances of the present owners of the land rather than any of the objective and enterprise related elements of the objective of cl 18. 79Whilst I may have, indeed do have, sympathy for Mr and Mrs Griffis and the circumstances in which they now find themselves, taking that into account in making a planning decision within the statutory framework is not permissible. As a consequence, I cannot be satisfied that the third of the Winten question s is adequately addressed and able to be answered favourably to Mr and Mrs Griffis.

[28]

Application to use the structure as a rural worker's dwelling 85First, I have concluded that I do not need to determine if the use of the word erection in the preambular element of cl 18(2) of the Tweed Local Environmental Plan 2000 acts as a bar to approving the use of the structure that is the subject of these proceedings as a combination of a dwelling and agricultural activities space. 86I have proceeded direct to consideration of the compliance or otherwise of the application with the various matters in cl 18 requiring satisfaction. I have concluded, taking the applicants' case at it highest on other contentions raised by the council, that the use of the shed as a dwelling is incapable of approval, as it cannot satisfy several of the provisions of cl 18. 87In my assessment of the proposed use against cl 18, I have concluded that the application must fail, on a number of separate and stand-alone bases each of which requires rejection of the application. These are: (a) The proposal is inconsistent with the second element of the objective in cl 18(1) which, for the reasons set out, I am satisfied requires that there be an employer/employee relationship between the farming entity and the person who is the proposed occupant of the dwelling for that dwelling to be able to be characterised as a rural worker's dwelling; (b) The proposal fails the second element in cl 18(2)(b) and thus must be refused; (c) The proposal fails cl 18(2)(c) and thus must be refused; and (d) The objection to compliance with the minimum allotment size (set by cl 18(3) as necessary for a property in the zone within which the site is located not be permitted a rural worker's dwelling in addition to the principal dwelling on the site) is not a well founded and cannot be sustained. 88Each of these four failures to satisfy an element of cl 18 is, separately, fatal in its own right to this application. 89As a consequence, although there is an acceptable basis upon which a building certificate could be granted, there is no basis upon which the use of the structure could be approved for the purposes of a rural worker's dwelling.

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