Ireland V Cessnock City Council [1999] NSWLEC 250

Land and Environment Court (NSW)|1999-11-12|Before: Bignold J, Mr J, Sheahan J, And P

Land and Environment Court of New South Wales CITATION: Ireland V Cessnock City Council [1999] NSWLEC 250

PARTIES APPLICANTS: Ireland

RESPONDENT: Cessnock City Council

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 149F, s 97

DATE OF JUDGMENT DELIVERY: 11/12/1999

APPLICANTS: Mr G. Newport, Barrister SOLICITORS: Lorton Duke

LEGAL REPRESENTATIVES: RESPONDENT: Mr J.B. Blackman, Barrister SOLICITORS: Cleaves Mallik & Gibbs

A. INTRODUCTION 1-8 B. DESCRIPTION OF THE SUBJECT BUILDING AND ITS PHYSICAL AND PLANNING CONTEXTS 9-28 C. SHOULD A BUILDING CERTIFICATE BE ISSUED? 29-41 D. SHOULD DEVELOPMENT CONSENT BE GRANTED? 42-47 E. CONCLUSIONS AND ORDERS 48 IN THE LAND AND Matter No . 10170 and 2003 of 1999 ENVIRONMENT COURT OF Coram : Bignold J. NEW SOUTH WALES 12 November 1999

These are two related proceedings (which by consent were heard together) relating to a building erected on a 15 ha parcel of rural land situate at Pokolbin, having been so erected either without the necessary development consent and building approval having been obtained therefor, or (more probably) contrary to the terms of the necessary development consent and building approval. That unlawful status of the building is founded upon declarations made by this Court in class 4 enforcement proceedings (matter No 40073 of 1998) brought by the Council against the present Applicants. The relevant declarations and consequential orders are set forth in the reasons for judgment of Sheahan J published on 9 October 1998.

In the present proceedings, the Applicants appeal to this Court against the decisions of the Council made in respect of two related applications under the Environmental Planning and Assessment Act 1979 made to the Council by the Applicants following his Honour's judgment.

Those applications were made in an obvious attempt by the Applicants to "regularise" what Sheahan J had described as the "planning law position in relation to the building to their (ie the parties') mutual satisfaction": vide par 55 of his Honour's judgment. His Honour stayed the mandatory order for demolition of the building to provide an opportunity for the planning law position to be so regularised: vide Order 5. By consent of the parties that stay has been extended until judgment is delivered in the present appeals.

The two related proceedings involve: (i.) an appeal pursuant to the EP&A Act s 149F against the Council's refusal to issue a building certificate in respect of the building; and (ii.) an appeal pursuant to the EP&A Act s 97 against the Council's deemed refusal of a development application for the use of the building as a farm shed for motor vehicles, farm and winery equipment.

Following the commencement of the current proceedings, the Council raised a number of questions of law relevant to each appeal and the parties joined in an application that the Court determine those questions by way of preliminary hearing in advance of embarking upon the merits of each case.

On 30 June 1999, I delivered my reasons for judgment providing answers to each of the questions of law that had been raised. That judgment is now reported in 103 LGERA 285. Those answers determined, inter alia, that it was legally open to the Council (and on appeal, this Court) to grant each application as a matter of planning discretion.

Following that judgment, the parties have asked the Court to proceed to determine the appeals on their merits. In this respect, the proceedings are to be treated as part heard and accordingly, the present judgment should be understood in the light of my earlier judgment, the reasons for which I simply adopt without repetition, where they are relevant to the merits of the case raised by each appeal.

I proceed with my adjudication on the merits of each appeal by first determining the appeal pursuant to s 149F and thereafter considering the appeal pursuant to s 97, noting the concession earlier made in the proceedings by the Applicants that unless the former appeal be upheld, the latter appeal should fail. However, first I must give some more detail of the subject building and its physical and planning contexts.

B. DESCRIPTION OF THE SUBJECT BUILDING AND ITS PHYSICAL AND PLANNING CONTEXTS

The subject building was erected by the Applicants over a period of time from about December 1997 to May/June 1998.

The building, which has dimensions of 15 m by 20 m and a height of 5.5 m, comprises a concrete slab floor, stone and timber walls and metal pitched roof.

In appearance and building materials, it is similar to a number of existing buildings erected on the Applicants' property where buildings are located in clusters. They comprise the Applicants' residence, manager's residence, tourist accommodation, winery, retail shop and café. The Applicants conduct on their property a winery and antique business known as "Peppers Creek".

It is likewise similar to the proposed wine storage building approved by the Council on 23 February 1999 (Exhibit K) to be erected immediately adjacent to the subject building.

The subject building is set back some 45 metres from Ekerts Road.

The Applicants' property comprising some 15 ha is situate in the "Rural (Vineyards) Zone" created by the Cessnock Local Environmental Plan 1989 (the LEP). That zoning was created by amendment No 41 to the LEP which came into force on 4 June 1999.

The express objectives of the Rural (Vineyards) zone as set forth in cl 9 of the LEP include the following: (a) to maintain prime viticultural land and enhance the economic and ecological sustainability of the Vineyards District; and (b) to encourage appropriate tourist development consistent with the rural and viticultural character of the Vineyards District; and (c) to minimise conflict between viticultural and non-viticultural land uses by ensuring sympathetic location and design of those uses; and

Within the Zone "agriculture (other than animal boarding, breeding or training establishments, pig keeping, feed lots or poultry farming establishments)" is a permissible purpose of development that may be carried out without development consent. However, the definition of "agriculture" contained in the LEP cl 5(1) expressly excludes from its ambit:

the use of the land for the purposes of a commercial vineyard …

" Commercial Vineyard " is defined by the same clause as " a plantation of grape vines, commercially grown for grape or wine production purposes"

By dint of these provisions, the Applicants' proposed use of the subject building would be for the purpose of a "commercial vineyard" and accordingly, would fall within the defined purpose of "commercial vineyards" which is a permitted purpose of development within the Zone, subject to development consent.

Alternatively, the Applicants' proposed use of the subject building would be for the purpose of "shed" which is another purpose of permitted development within the Zone, subject to development consent.

Prior to June 1999 (including during the aforesaid period when the subject building was being erected), the subject land had been included in the Rural (Tourist) Zone under the LEP.

In addition to the controls on development operating by terms of the LEP, development of the Vineyards Districts is the subject of "Cessnock Development Control Plan No 28 : Vineyards District" (the DCP) which came into force on 16 June 1999.

Clause 13 of the DCP which deals with the subject of "Building Siting and Design" requires, inter alia, developments "to be sited and designed in accordance with the Vineyards District Landscape and Design Guidelines" (Appendix 3 to the DCP).

Section 5 of the Guidelines states "standard principles" and "standard design requirements". The standard principles include the following: · The most appropriate language for new architecture in the Vineyards District is one that will sit unobtrusively and comfortably within the landscape. · Building materials should blend as much as possible with the landscape, ie. timber, sandstone, corrugated iron roofing, gravel ground surfaces. Materials of a recessive colour such as earthy browns and natural timber colours are appropriate. · Design should be responsive to the rural environment and to the character of any significant existing buildings. · Large expanses of glazing should be avoided.

The "design requirements" stipulate a "front setback from the road boundary for all new built development of 75 metres unless otherwise appropriate and approved by Council".

Section 5.3 of the Guidelines deals specifically with "sheds". The text identifies the following potential problem:

the large size of sheds and requirements for uninterrupted expanses of internal areas can often mean that where little attention is given to design and siting, the structures jar with the gentle undulating landscapes and vineyards. "

The text then stipulates a number of specific considerations for the siting and design of sheds " to avoid " the identified problems.

There is no need to recite these requirements because it is apparent that the text describes a non-descript style of farm shed, which bears little or no relation to the form and style of the subject building, which as I have earlier noted, is indistinguishable in style and materials from the many buildings clustered on the Applicants' property.

Moreover, those clustered buildings on the Applicants' property appear in illustrated form in the "Building Site and Design" Principles of the DCP under the caption "This Property on Broke Rd demonstrates effective siting of a group of buildings using appropriate materials and style" - a matter also noted by Sheahan J in par 31 of his judgment (when the DCP was in draft form only).

C. SHOULD A BUILDING CERTIFICATE BE ISSUED? 29. The evidence adduced by the Applicants entirely satisfies me that the subject building has been well constructed and is structurally sound. In particular, I accept entirely the opinions of Mr T S Thomas that (i) the floor slab is structurally adequate for the super-structure; and (ii) the timber frame and roof framework were structurally adequate, leading to his ultimate opinion:

the building is structurally adequate and capable of sustaining all relevant design dead, live and wind loads appropriate to its location : Exhibit G

I should note that the Council did not call any evidence in rebuttal to the expert evidence adduced in the Applicants' case. Cross examination of the Applicants' experts did not lead them to change or modify their expert testimony, which I entirely accept.

Having regard to the whole of the evidence (including the agreed facts stated in my earlier judgment) I am of the opinion that had the Applicants sought the relevant development consent and building approval for the construction of the subject building (instead of erecting the building without the requisite approvals or with disregard to the terms of any approvals) those approvals would probably have been granted. That finding is applicable to the period immediately prior to the commencement of the erection in December 1997.

I would make the same finding if the hypothetical question were posed whether the requisite consent would have been granted had the subject building been built at the present time.

As noted, there are relevant differences between the relevant planning laws that prevailed at the earlier time and at the present time. However, I do not think that the differences would have changed the probable result. The changed zoning (Rural Tourist to Rural/Vineyards) if anything renders the result the more probable. The fact that the DCP now applies (rather than merely existing in draft form) does not in my judgment, materially affect the probable result because the subject building satisfies the design requirements, and although located closer to the road than the 75 m setback, the 45 m setback would be considered appropriate, particularly given the existence of the cluster of nearby buildings of similar style and materials on the Applicants' land and the Council's recently granted development consent to the additional wine storage building (Exhibit K) to be located immediately adjacent to the subject building.

The other material change in the relevant law is the repeal on 1 July 1998 of the requirements of the Local Government Act 1993 for approval to be obtained for the erection of a building. This change in the legal position means that considering the hypothetical question as at the present time, approval under the Local Government Act 1993 is not required for the erection of the subject building.

When these findings are combined with my findings on the structural adequacy of the subject building, the Applicants' case for the issue of the building certificate becomes almost overwhelming.

The Council's case against the issue of the building certificate is essentially concerned with the fact that the building was erected unlawfully, and that in so proceeding, especially after being warned in December 1997 to stop building work, the Applicants acted deliberately "flouting both the law and the legitimate requirements of the consent authority" as found by Sheahan J at par 51 of his judgment, although it is also to be noted that his Honour immediately notes in par 53 a "mitigating" factor.

In my judgment, the Council's argument should not prevail in view of my findings entirely favourable to the Applicants concerning (i) the structural adequacy of the subject building and (ii) the probability of the requisite consent and/or approval being granted for the erection of the building had such consent and/or approval been sought either before the building was erected or at the present time (assuming that the building had not already been erected but was proposed to be erected at the present time).

I am fortified in my conclusion to reject the Council's argument by three other considerations all of which are relevant to the question presently under consideration - (i.) As I have held in my earlier judgment, the provisions of the EP&A Act s 149A-G expressly enable a building certificate to be issued in a case such as the present so as to regularise a breach of the planning law. (ii.) The proper approach to be taken to the available discretion will generally be that outlined in the judgment of King CJ of the South Australian Supreme Court in Kouflidis v City of Salisbury (1982) 29 SASR 321, namely to leave to the criminal law, the punishment of the unlawful conduct involved in the erection of the building and to determine the present application on the merits, but taking care not to allow the wrongdoer to benefit from his wrongdoing; and (iii.) The Applicants have in fact already been punished for their wrongdoing, Mr Ireland, having been convicted in the Local Court and fined $300 for his breach of the law. Allied to this fact is the Applicants' responsibility for the costs of the proceedings before Sheahan J where his Honour ordered the Applicants to pay the Council's costs.

In the light of the foregoing factors, allied with the fact of the effort and expense incurred by the Applicants in seeking to regularise the planning law position during the stay of the mandatory injunction granted by Sheahan J, it cannot seriously be contended that the Applicants have benefited from their original wrongdoing.

Obviously the reverse is the case, and although the Applicants must be regarded as the authors of their own troubles, they have doubtless learned a very hard and costly lesson.

For all the foregoing reasons, I would allow the appeal and accordingly direct the Council to issue a building certificate in respect of the subject building without imposing any terms or conditions.

Much of the reasoning that led me to conclude that the building certificate should be issued in respect of the subject building is relevant to my consideration of the present question whether development consent should be granted for the prospective use of the subject building as a farm shed etc.

If anything, my conclusion that development consent should be granted is more emphatic in view of my decision to direct the issue of the building certificate, since the present question requiring planning evaluation pursuant to the EP&A Act s 79C is confined to the proposed use of the subject building, rather than the question whether consent should be granted to the erection of the subject building and its use.

The proposed use of the subject building is entirely harmonious with the commercial vineyards use of the Applicants' property and that use is to be conducted in a building that is entirely harmonious with the built environment existing on the Applicants' property, being an environment that is obviously aesthetically pleasing.
In so concluding, I accept the town planning opinions of Mr Ian Grant (Exhibit B) an expert witness called by the Applicants, concerning (i) the acceptable setting of the proposed development (ii) the complementarity of the built form in which the proposed development is to be carried on, with the other built forms on the Applicants' property; and (iv) the low (or minimal) environmental impact of the proposal.

I have previously expressed the conclusion that the subject buildings' 45 m setback from the road frontage (instead of the standard of 75 m) is acceptable.

For all these reasons, development consent should be granted upon the conditions recommended by the Council and agreed to by the Applicants.

For all the foregoing reasons, I make the following orders:
In proceeding No 20033 of 1999, the appeal be upheld.
Pursuant to the Environmental Planning and Assessment Act 1979 s 149F(3) the Council is directed to issue a building certificate without imposing any terms or conditions.
In proceedings No 10170 of 1999, the appeal be allowed.
Development consent be granted, subject to the following conditions:
1. The proposed development shall be carried out strictly in accordance with the details set out in the unnumbered plans and on the application form except as modified by the conditions of this consent.
2. The existing building is, under no circumstances, to be used for habitable occupation.
3. The use of the building as a farm shed shall remain ancillary to the overall operation of the site at all times.
4. A separate development application shall be made in respect of any proposed change of use of the existing building including alterations and/or additions to effect that change.
5. No hazardous or offensive chemicals or materials shall be stored within the building.
6. Prior to the operation of this consent, Development Consent No. 118/697/130 for the construction and use of two antique/collectable shops on the subject land shall be surrendered.
Exhibits be returned.
No order as to costs.

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.

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