Hodgson v The Hills Shire Council

The site and surrounds

1. The site is at the end of Joylyn Road to which it has a frontage at its eastern end of only 15m. The site then fans out with side boundaries of 185.3m on the north side and 247m on the south side and a western boundary along the banks of Cattai Creek in the order of 165m (there is no precise distance available). The area of the site is 2.38 hectares.
2. The site falls significantly from the eastern (street) end to Cattai Creek. The part of the site which accommodates the shed is at the lower western end of the site in an area which is a modest plateau above the river flat adjacent to Cattai Creek. The shed itself is not visible from the road in any material way but probably can be seen in part from a few neighbouring properties. Nothing in the case turns on this.
3. There is significant bushland around the site and some on the site. The locality comprises a mix of residential and rural land uses generally in a bushland setting.

The development application

1. The DA has evolved over time as the Applicants have sought to ensure the proposed use is a permissible use. As set out above the development the subject of the DA is now described as "change of use and upgrade of an existing outbuilding as a sleepout with 2 bedrooms, leisure areas, office, storage and bathrooms (appurtenant structure), garage and terrace entertainment area".
2. The DA involves some work to adapt the shed to what the Applicants say is a permissible use. The work includes removal of an existing kitchen and laundry and some other minor internal alterations. If consent is granted then the Council proposes, and the Applicants accept, conditions of consent requiring work to be carried out to comply with the Building Code of Australia (BCA).
3. The ground floor is proposed to accommodate two bedrooms, a tv/rumpus area, a storage room, a games area and two bathrooms. The first floor is proposed to accommodate an open home office area (with limited partitioning), a television sitting area, hallway, refreshment sitting area, a bathroom and a gaming area (a large poker table presently exists in the room).
4. The internal areas of the shed are 135.82 sqm on the ground floor and 142.7 sqm on the first floor, giving a total internal floor area of 278.52 sqm. The principal dwelling on the site was built in the 1970s and is of relatively modest proportions, having a floor area of about 325 sqm according to the Applicants' Statement of Environmental Effects.
5. In order to fully understand the DA I extract the plans of the shed below:
6. The Applicants also propose conditions which involve the prohibition of cooking and laundry activities and limiting the use of the shed as ancillary to the principal dwelling, and to be used only by the family and friends of the occupiers of the principal dwelling.

The appeal

1. The appeal was initially listed as a matter to which the provisions of s 34AA of the Land and Environment Court Act 1979 (Court Act) applied, which means that conciliation and immediate arbitration are mandatory.
2. The matter was listed before me for conciliation and, if not resolved, for hearing immediately thereafter on 25 November 2020. I inspected the shed and the site in the presence of the parties and a number of experts. Two things became apparent - first that the matter was not going to be resolved, and second, that a hearing could not proceed forthwith in accordance with s 34AA(2)(b)(i) of the Court Act.
3. At that time there were disagreement between experts in four disciplines - town planning, wastewater, bushfire and BCA matters. No joint reports had been filed and there had not been any meaningful discussions between the experts.
4. The Applicants were unrepresented and would have been severely and unfairly prejudiced had there been an attempt to proceed forthwith to a hearing upon the termination of the conciliation phase. Accordingly I terminated the conciliation and made an order pursuant to s 34AA(3) of the Court Act that the proceedings not continue to be dealt with under s 34AA(2) of the Court Act. The effect of that order was that the hearing would not proceed forthwith, and the matter would return to the Registrar's list to be allocated a hearing date in due course.
5. The Applicants amended their plans by leave granted by the Registrar on 18 December 2020 and orders were made for the provision of joint reports in the various disciplines. The matter was then fixed for hearing on 26 March 2021 for one day commencing on site. The parties indicated to the Registrar that they had no objection to me conducting the hearing.
6. The matter was delegated to me by the Chief Judge and I commenced the hearing on site. There was nothing additional to see on the site which had not been observed when I conducted the conciliation. It is perhaps regrettable that the parties did not suggest to the Court when they became aware that the hearing was delegated to me that a site inspection was unnecessary, because the time taken could have been better used in Court.
7. The hearing was then conducted using audio-visual technology but did not finish in the single day allocated. It was supremely optimistic of the parties to ask for the hearing to be allocated for a single day only, including a site inspection, when there was required to be oral evidence from experts in four disciplines.
8. The hearing was concluded on 10 June 2021 with the parties appearing in person, but I allowed the Applicants to file and serve submissions in reply in writing within 7 days of the hearing so they could properly respond to the Council's submissions which included reference to two cases of which they were previously unaware.

Issues

1. At the conclusion of the joint reporting and the oral evidence, the merit issues relating to compliance with the BCA and wastewater disposal were not pressed by the Council. There was agreement between the BCA experts as to the works required in order to bring the shed into compliance. There was agreement between the wastewater experts as to the wastewater generation and the system of disposal including an appropriately sized and located disposal field. Conditions of consent were provided by the Council which adequately reflected the agreements of those experts.
2. The remaining issues were: 1. Whether the proposed shed is a dwelling and is therefore prohibited as a second dwelling is not permissible on a single lot. 2. Whether if not a dwelling the proposed shed is not ancillary to the principal dwelling because of the separation between the principal dwelling and the shed and the size of the shed. 3. Whether the use of the proposed shed is appropriate having regard to the risk from bushfire.

Statutory context

1. The Hills Local Environmental Plan 2012 (THLEP 2012) applies to the site. (THLEP 2012 has now been renamed as Parramatta (former The Hills) Local Environmental Plan.) The DA was lodged but not determined prior to the commencement of The Hills Local Environmental Plan 2019 (2019 LEP) on 6 December 2019, and cl 1.8A of the 2019 LEP provides that the provisions of THLEP 2012 continue to apply.
2. The site is zoned RU6 Transition pursuant to THLEP 2012 (the zoning which applied at the time of the lodgment of the DA still applies). The objectives of the zone are: • To protect and maintain land that provides a transition between rural and other land uses of varying intensities or environmental sensitivities. • To minimise conflict between land uses within this zone and land uses within adjoining zones. • To encourage innovative and sustainable tourist development, sustainable agriculture and the provision of farm produce directly to the public
3. Dwelling houses are permitted with development consent in the zone. Dual occupancies (detached) are prohibited. Secondary dwellings are also permitted but cl 5.4 of THLEP 2012 provides that a secondary dwelling must have a floor area not exceeding the greater of 60 sqm or 20% of the total floor area of the principal dwelling.
4. If the shed is characterised as a dwelling house, then the use of the site would be for a dual occupancy (detached) and therefore prohibited. The shed exceeds the controls for secondary dwelling in cl 5.4 of THLEP 2012 and the Applicants have not provided an objection to that development standard (assuming it to be a development standard) pursuant to cl 4.6 of THLEP 2012. Accordingly, the proposed use is not permissible as a secondary dwelling.
5. The Applicants submit that the proposed use is not a dwelling or dwelling house and that it is ancillary to the principal dwelling house on the site, and therefore permissible.
6. Dwelling and dwelling house are defined in the Dictionary to THLEP 2012: 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. dwelling house means a building containing only one dwelling
7. Whilst reference was made to The Hills Development Control Plan 2012 by the parties, it did not truly assist in the resolution of the issues. Reference was made by the Applicants to 'lifestyle housing' which finds its genesis within the Introduction to Part B Section 1 concerning rural development: "Within the Shire rural character is made up of activities such as 'lifestyle' housing, market gardens, cropping orchards, and mining, horses, animal grazing, houses and outbuildings, vegetation, rolling hills, creeks, gullies, wetlands, rural enterprises and tourism."
8. The NSW Rural Fire Service (RFS) publication "Planning for Bushfire Protection" 2006 (PBP 2006) was relied upon by the bushfire experts but I will set out the relevant extracts when dealing with that evidence.

Consideration

1. I will deal with each of the issues under their respective headings and will include reference to the relevant evidence and submissions in the consideration of the issue.

A dwelling house?

1. The Council submits simply that the shed as proposed to be used is capable of being occupied or used as a separate domicile. The Applicants say that in the absence of kitchen and laundry facilities and with the proposed condition of development consent the shed does not have the necessary facilities to constitute a dwelling and the proposed condition ensures that it will not be used for that purpose.
2. The Applicants' proposed condition is: "The proposed sleepout [shed] is ancillary to the residential use of the premises and is to be used by the permanent residents of the dwelling and their family and friends only. The sleepout [shed] must not incorporate a kitchen or laundry. No approval is given for the use of the sleepout as a self-contained dwelling, detached dual occupancy or secondary dwelling. The sleepout [shed] shall not be separately leased."
3. Whilst the proposed condition could benefit from some refinement, its intention is clear - the shed is not now nor in the future to be used in a manner consistent with the notion of a separate dwelling. The Applicants cited a similar condition imposed by the Court after agreement between the parties pursuant to s 34 of the Court Act in Fitzgerald v Inner West Council [2017] NSWLEC 1283.
4. The Applicants pointed to a number of agreements between the planning experts retained by the parties - Mr M Romic retained by the Applicants and Mr R Buckham employed by the Council. In their joint report they agreed:

• Outbuildings are permissible as ancillary building to a main dwelling house on a single allotment of land;
• There is no maximum size of an outbuilding in Council's guidelines;
• There are no distance separation requirements of an outbuilding to a main dwelling house in Council's guidelines;
• Outbuildings can contain bathroom facilities;
• Outbuildings should neither contain a kitchen and laundry;
• Outbuildings may contain a sink with hot and cold water supply for washing hands and/or cleaning hobby related equipment;
• There is no legal definition of an outbuilding and these are appurtenant buildings to a main dwelling house.

1. In the balance of the joint report the planners engage in submissions about the permissibility and it is not necessary to set that out.
2. The Applicants reminded the Court of the basic principles of characterisation helpfully set out with great clarity by Preston CJ in Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 at [27]-[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"
3. The Applicants summarised the proposed 'land uses' in submissions relevantly as follows: 1. "Slashing and mowing of grass, bushfire hazard reduction burning and re-vegetation activities (planting trees and shrubs). 2. Rising of trail bikes, camping and other recreational sports, namely golf and tennis. 3. The land and the improvements found on the land are for human habitation by my household, and to support my household's main hobby activity which is the restoration and collection of helicopters. 4. The main dwelling house is used for residential habitation on a permanent basis. 5. The outbuilding [shed] provides shelter from the elements and lavatory facilities whilst activities occur on the land holding. 6. The outbuilding [shed] provides much needed storage space and car parking to meet the needs of the household including additional accommodation. 7. The bathrooms in the outbuilding [shed] are to be used by my family whilst we are carrying out our hobby activities and use of the land for rural lifestyle housing. 8. The outbuilding [shed] is also to be used for entertainment purposes when friends and family visit. 9. My family will eat/cook their meals in the main residence on the site. 10. All laundry and clothes drying activities are to occur at the main residence."
4. The Council submits that the ease with which electric cooking facilities, such as a microwave oven, can be used simply by plugging them in, means that the shed is capable of being used as a separate dwelling. The Council referred to two cases by Commissioners of the Court.
5. In Sikma v Hawkesbury City Council [2012] NSWLEC 1200 (Sikma) Brown ASC had to decide whether a 'rural shed' was in fact a dwelling. From [27] the Acting Senior Commissioner said: "28. Second, I am satisfied that the purpose of the building is more appropriately characterised as a "dwelling" thereby not satisfying the second limb of the definition of a "rural shed". Even though the appearance of the building has a domestic or residential character, this in itself is not a reason to characterise the building as a dwelling. The critical consideration is the purpose to which the building is put. 29. In this regard, the evidence clearly establishes that the building is used for the family of the owners on a regular if not frequent basis, including overnight accommodation. The SEE describes the use of the building as being "regularly used (it) of a weekend for family recreational uses". Mr Sikma stated at the hearing that the building is "likely to be used once every two months". Mr Sikma also stated that he stayed overnight on the site and while he preferred to sleep outdoors, he stated that the building was used for sleeping when the weather was inclement. Previous discussions with the council confirm the use of the building for family recreational uses by a reference to the use of the site the applicant's children for the riding of trail bikes. At the time of the inspection, the building and verandah contained chairs, tables, electric lights, children's toys, lounges, a slow combustion wood heater and a satellite dish (although no TV). No beds were observed however photos taken by the council on previous inspections included a number of beds, including double bunks. 30. Given the range of facilities available, it is likely that the use of the building includes overnight accommodation. In my view, the building is clearly satisfies the definition of a dwelling, in that it is "a room ... occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile". 31. I agree with Mr Miles that it is not necessary for the building to be used on a full-time basis for it to be characterised as a dwelling. Similarly, I do not accept that it is necessary for the building to have internal facilities, such as a kitchen and bathroom for it to be characterised as a dwelling. Cooking facilities, in the form of a BBQ, are located on the verandah and toilet and a shower are located in close proximity to the building. The existence and proximity of these facilities to the building clearly facilitate the use of the building as a dwelling. 32. In this case, and adopting a common sense and practical approach, I am satisfied that the purpose of the building is a "dwelling" given the clear evidence on the use of the building. No other conclusion could be reached based on this evidence. The applicant provided no evidence that there may be other uses associated with the building that would challenge the characterisation of the building as a dwelling, as set out in Chamwell. Similarly, no evidence was provided to raise any question of subordinate and dominant purpose, as set out an Abret Pty Ltd."
6. The Council in particular points to the Acting Senior Commissioner's observation that it is not necessary for the building to have internal facilities, such as kitchen and bathroom, for it to be characterised as a dwelling.
7. The Council also referred to Dwyer v Sutherland Shire Council [2018] NSWLEC 1543 (Dwyer), a decision of Commissioner Bish. The Commissioner was considering whether a proposed studio above a garage constituted a dwelling. From [75] the Commissioner said: "75. I agree … that the presence of a bench with sink in the main room does not by itself enable the area to be converted into a kitchen for the purposes of cooking. I disagree, however with Mr Minto, that a microwave or cooktop cannot form part of a cooking facility. 76. Further to this, and to ensure that the studios are used ancillary to the primary dwelling, I agree that the shower should be removed from the studio design and a condition imposed to ensure these facilities (both showering and cooking) are not constructed in the future in the studios. 77. I agree that the studios without the benefit of shower and cooking facilities cannot be considered as a 'separate domicile'. 78. I, therefore, conclude that without the shower or cooking facilities, the proposed studios will reliably function as ancillary to the primary dwellings (i.e. for the purpose of serving a multigenerational family as a teenage retreat and/or home office), which is consistent with a dual occupancy development on the site and cannot therefore be considered as part of a multi-dwelling housing development."
8. Typically, each of Sikma and Dwyer were determinations based on the particular facts of the case. In Sikma, there was no other building on the land and the Acting Senior Commissioner focused on the actual use to which the building was being put - it was used for occasional accommodation by the family when coming to the land. I do not consider that the Acting Senior Commissioner was intending to convey a principle for general application that effectively a building could be characterised as a dwelling even if there were no kitchen or bathroom facilities.
9. In Dwyer, the Commissioner determined on the facts there that in addition to the prohibition on cooking facilities there should be no shower facilities. That decision was in relation to the specific facts of that case and there is no general principle to be taken from it. It can be observed though that the Commissioner considered it appropriate to impose conditions to ensure that the proposed building was a permissible use and lawful.
10. Each case will be determined on its own facts and circumstances. It is enough to say in the words of Duggan J in Platform Architects Pty Ltd v Northern Beaches Council [2020] NSWLEC 185 at [42]: "The concept of a dwelling has been the subject of considerable debate over many years. As a general proposition a dwelling must contain the essential components of a domicile for the exclusive use of the occupant, being: sleeping, bathroom and cooking facilities. Each development will be required to be considered on its own facts to determine whether it meets such requirements."
11. The shed has sleeping and bathroom facilities. It does not have cooking facilities. And, if otherwise appropriate for the grant of development consent, a condition could be imposed prohibiting the introduction of cooking facilities.
12. I accept that the shed will be used in conjunction with the principal dwelling house on the site. The location of the shed is to take advantage of the topography of the site and facilitate the use of the flat part of the site for recreation and other domestic/hobby activities. There is no useable outdoor space in the immediate curtilage of the principal dwelling and so the lower area will be utilised for those normal outdoor and outbuilding/shed activities.
13. Even so, if the shed is capable of being used as a separate dwelling it is not permissible so to do. The absence of cooking facilities means that it cannot be used as a separate dwelling. Theoretically, in the absence of prohibitory conditions, the shed is capable of being used as a dwelling by the introduction of some cooking facilities. But with the imposition of conditions in a similar form to that proffered by the Applicants then that activity cannot lawfully occur to render the shed capable of being used as a separate domicile.
14. It is the fact that virtually any building could be characterised as being capable for use as a dwelling by the carrying out of work, or the introduction of portable facilities. It is only if a building could lawfully be made capable of being occupied as a separate domicile that it will be characterised as a dwelling. In this case it is not so capable by design and conditions proposed.
15. I am satisfied that the shed is not a separate domicile and therefore not characterised as a dwelling provided the conditions are imposed if development consent was granted. It is true that cooking facilities could be added to the shed to render it capable of being occupied as a separate domicile. But to do so contrary to a condition of development consent would be unlawful. If otherwise appropriate to grant consent I would adopt the approach taken by Bish C in Dwyer, thus ensuring the lawfulness of the use of the shed.
16. Whilst the history of the construction of the dwelling within the shed, including all the facilities necessary for a separate domicile, leaves the Council brimming with scepticism about the proposed use, planning law is not about individuals but about the use of land. If it was otherwise appropriate to grant development consent, then the Applicants will be well aware of the consequences of acting unlawfully in breach of the conditions of development consent.

Ancillary to the principal dwelling

1. The notion of ancillary development is no stranger to the law. As noted by Craig J in Hornsby Shire Council v Trives [2014] NSWLEC 171 at [23]: "Development that is "ancillary" to other development is a concept that is well understood in planning law. It identifies a structure or use, the purpose of which is subservient to some other development purpose against which it must be measured and which it must be seen to subserve. That is, it must be subordinate to the purpose against which it is being considered, in this case an existing dwelling house (Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 per Glass JA at 161)."
2. The shed is ancillary to the dwelling house because it serves the occupants of the dwelling house providing additional facilities to enable the more complete use of the site. Those facilities include additional bedrooms for use in conjunction with the dwelling house, in the way an inner city above-garage studio may be utilised as an additional bedroom. It is ancillary also because its use relies upon the main dwelling for the provision of laundry and cooking facilities. The shed cannot be used for residential purposes without reliance upon the main dwelling.
3. The Council submitted that it was too far from the dwelling house to really be ancillary to it. That submission flies in the face of the logical use of the site. There is only steep access from the dwelling house to the lower land which is ideal for recreational, hobby and entertainment activities. There is no requirement that the shed be any closer to the dwelling house; no control or guideline which determines how far the ancillary building can be; and the area of the site, a rural allotment, means that it should not be judged by suburban or inner city measures.
4. It should also not be forgotten that the structure itself is an approved structure - that is, the Council has previously determined that the size and location of the shed are appropriate. The question in this case is just one of the proposed change of use.
5. It may also be apposite to observe that overall, the total floor area of the dwelling house and the shed for the benefit of the occupants is not excessive. That is, there are many dwelling houses in the Hills district and other parts of Sydney which boast a floor area of 600 sqm and more. The Applicants are not to be criticized for choosing to separate the components of the accommodation and facilities on the site rather than seek to extend the existing dwelling house in a much less preferred location on the site which the Applicants would be at liberty otherwise to do. The floor area of the shed does not mean it is not ancillary to the dwelling house.
6. I am satisfied the shed is an ancillary use to the dwelling house and is a permissible use.

Bushfire risk

1. The site is mapped by the RFS as bush fire prone land. Accordingly, the provisions of s 4.14 of the EPA Act apply: 4.14 Consultation and development consent - certain bush fire prone land (1) Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land (being land for the time being recorded as bush fire prone land on a relevant map certified under section 10.3(2)) unless the consent authority - (a) is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development (the relevant specifications and requirements), or (b) has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements. (1A) If the consent authority is satisfied that the development does not conform to the relevant specifications and requirements, the consent authority may, despite subsection (1), grant consent to the carrying out of the development but only if it has consulted with the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bush fire. (1B) …
2. Evidence was given by Mr Matthew Noone retained by the Applicants and Mr L Short retained by the Council. They prepared a joint report and gave oral evidence.
3. In their joint report the experts agreed that:

• PBP 2006 was the document in force when the development application was made and should be used for assessment purposes.
• Planning for Bushfire Protection 2019 (PBP 2019) was gazetted on 1 March 2020 and provides best practice for new development in bushfire prone areas.
• The RFS has not determined a position in relation to the application, although the Council referred the DA to the RFS.
• The shed is in Bushfire Attack Level (BAL) Flame Zone.
• The "existing residence" within the shed does not comply with PBP 2006.

1. The various responses from the RFS should be noted. The initial notification by the Council was of the DA as originally lodged which described the development as a secondary dwelling attached to the shed and the use of the shed as an 'ancillary outbuilding'. The RFS response of 28 February 2019 relevantly was: "1. The Applicant is requested to submit further details demonstrating how the proposed building footprint and appropriate asset protections zones required by [PBP] can be achieved. The assessment set out in the bush fire report submitted with the application was not able to be verified. RFS modelling shows the proposal is within BAL Flame Zone …. 2. The Applicant is requested to submit further details demonstrating how the proposal can compensate for the non-compliant access as stated in the bushfire report submitted with the application. The proposal is approximately 700m from the nearest through road. The proposed access passes directly adjacent to unmanaged vegetation along much of its length. If additional information is not received within 100 days the application will be refused …"
2. On 19 June 2019 the RFS advised the Council that it "cannot support the proposed development" because no additional information was provided.
3. When the Council sought the advice of the RFS in October 2020 the RFS in its letter of 24 November 2020 advised: "As the development application is currently before the Land and Environment Court, and as Council has engaged its own expert bushfire consultant accredited under a scheme recognised by the NSW RFS, it is not necessary for the NSW RFS to provide further comments in relation to the matter. Council may rely on its own expert bushfire advice."
4. In their oral evidence the bushfire experts agreed that, on the assumption that the shed is to be used for residential purposes, then the shed must be upgraded to the BAL Flame Zone as required by the Australian Standard for Construction of Buildings in Bushfire Prone Areas (AS 3959). As observed above, the shed is proposed to be used for residential purposes including by the provision of bedrooms. It follows that it was common ground between the experts that the upgrading was required. The Applicants accepted that such an upgrading was necessary and accepted a proposed condition to that effect.
5. There is a second measure beyond the construction of a building which operates to reduce the risk of life and property in the event of a bushfire and that is the asset protection zone (APZ) around a building which is a buffer zone between a bushfire hazard and a building. The experts agreed that the APZ required by the application of PBP 2006 is: South 24m West 31m North 24m East 19m
6. On the site the APZ can be provided to the west, north and east of the shed, but there is only in the order of 7m which can be provided to the south, because that is the distance from the shed to the boundary of the site in that direction. There is therefore a significant shortfall in the available APZ to the south of the shed. The proposal therefore fails to conform to the specifications and requirements of PBP 2006 in respect of the APZ.

• the erection of or addition to residential building
• which does not require the spatial extension of services and
• and is within an existing allotment.

1. The proposal is tantamount to the erection of a residential building and it is within an existing allotment. The proposal does however require the spatial extension of services. Whilst there are presently services such as electricity and water connected to the shed the definition clearly anticipates that there is not a separate need for services to be connected to the residential building erected or added to. That is not the case here, there is such a need.
2. The services of water and electricity are provided remotely from the existing dwelling and remotely from the provision of services at the subdivision stage which must have then been at the street front of the allotment adjacent to what is now the principal dwelling. Furthermore, sewerage services are to be provided as part of the present proposal, of itself a spatial extension of services.
3. The reliance by the Applicants of the provisions relating to infill development are misplaced.
4. In any event, the proposal fails to meet the principle or requirement that notwithstanding the reduced APZ that other measures, in combination, will meet the relevant radiant heat levels specified in the performance criteria for APZs and will achieve the aim and objectives of PBP. So much is evident from the evidence of the bushfire experts extracted at [71] above - it is the common position of the bushfire experts that the proposal does not meet the objective of PBP 2006 to provide appropriate separation between a hazard and building, which in combination with other measures prevent direct flame contact and material ignition.
5. It follows that even when the provisions of PBP 2016, which are designed to allow for development in the constrained circumstances of infill development, are considered the proposal fails.
6. Whilst that may be sufficient to dispose of the issue, I add the following observations.
7. I do not accept that a bushfire emergency plan and not using the shed as a refuge in the event of fire is a satisfactory solution to the APZ shortfall. First, there was no such plan in evidence and no evidence as to what the contents would be and how it would meet the aims and objectives of PBP 2006. Second, any "solution" which relies upon an assumption that human beings will behave in a particular way in the event of bushfire is inherently unsound. The behaviour of bushfires is unpredictable, and the behaviour of human beings in the face of bushfire is similarly unpredictable. It is not a satisfactory arrangement in the face of a bushfire threat to simply say that the occupiers of a residential building will leave the building before the threat to the building materialises. If that was the case, then much of PBP 2006 (and its successors) would simply be unnecessary. All that would be required is safe egress and not the provision about APZs and the like.
8. There was no evidence of the benefit to the principal dwelling of the APZ to be provided for the shed. Whilst a reduction in the fuel load around the shed will play a role in reducing the intensity of a bushfire, there is no evidence as to how that may benefit the principal dwelling if at all. There will still be vegetation between the shed and the principal dwelling, and any specific benefit has not been articulated by either expert.

Conclusion

1. The application must be refused, and the appeal dismissed.
2. I make the following orders: 1. The appeal is dismissed. 2. Development Application DA 1013/2019/HA for the change of use and upgrade of an existing outbuilding as a sleepout with 2 bedrooms, leisure areas, office, storage and bathrooms (appurtenant structure), garage and terrace entertainment area at Lot 9 Deposited Plan 241639 known as 18 Joylyn Road, Annangrove is determined by refusal. 3. The exhibits, other than A, E, F, H, J and 5, be returned. ……………………….. P Clay Acting Commissioner of the Court 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: 10 August 2021