Maschewski v Murray Shire Council

Land and Environment Court (NSW)|2015-06-18|Before: Ms J

Solicitors: Mr A Brickhill, Kell Moore Lawyers (Respondent) File Number(s): 10240 of 2015

Judgment

Mr Maschewski lodged development application DA 081/15 with Murray Shire Council on 20 October 2014 seeking development consent for the use of an existing building as a rural workers' dwelling. The council refused consent and he is appealing that decision.
The matter is subject to the provisions of s34AA of the Land and Environment Court Act 1979 (LECAct). Conciliation between the parties was unsuccessful and the matter proceeded to hearing.

The site and its context

The site is legally described as Lot 4 in Deposited Plan 562037 and is known as No 1111 Perricoota Road, Moama. It is an irregular shaped allotment with road frontage of 165m and its western boundary fronting the Murray River. Site area is 10.48ha. A gravel driveway provides vehicular access to the site and an existing dwelling house that is constructed in the south western corner of the site in proximity to the river. That dwelling house is contained on an area separated from five fenced paddocks, four of which are to the east of the access driveway and the fifth to its south. The latter is the site of the building the subject of the application. That paddock has an area of approximately 1ha.
The township of Moama is approximately 10.5 kilometres to the east of the site. Neighbouring development is predominantly broad acre agriculture.
At the present time the four northern paddocks are used for the agistment of sheep and cattle. At the site view there were 3 ewes and 6 lambs and 9 cattle (7 mature and 2 weaners). The paddock that contains the subject building is not used for any agricultural purpose at the present time and, according to the evidence is not intended to be used for such purpose.
The owners of the site own a 44ML irrigation licence.

Background and the proposal

The application involves the use of a building that has been erected on the site without development consent. The building comprises a series of demountable structures linked with a roof that forms a verandah. The plans lodged with the application provided limited detail and do not accord with the requirements of Clause 50 of the Environmental Planning and Assessment Regulation 2000.
The applicant did not provide any further details of the building during the hearing other than evidence from its planning expert. According to that evidence, the building comprises three sections and contains one bedroom, a "box room"/laundry and a living/kitchen area.
A septic tank is sited adjacent to the building however no information of how and where waste is irrigated could be provided. The council indicated that no application for the tank had been lodged as required under s68 of the Local Government Act 1993 and the applicant was unable to detail the extent of area required on the land for the disposal of septic waste from either the existing dwelling or the dwelling subject to this application. A shed, carport and garden shed are also located in the vicinity of that dwelling.
The intended use of the building is as a rural worker's dwelling. The existing approved dwelling house would be used by the applicant and owner of the land approximately once per month when he attends the site. His primary residence is in Melbourne.
The statement of environmental effects lodged with the application and included in the council's Bundle of Documents, Exhibit 2, detailed the use of the land in October 2014 and the intended use of the site. This states: In relation to the nature of the livestock currently on the property, I confirm that all 6 cattle currently on the property were purchased by us to fatten up for commercial sale. Michael Wright has ample feed at present therefore agistment is not required at this moment. In relation to any proposal we have for future crops. Approximately 7 years ago we had all the paddocks laser levelled by a local contractor for flood irrigation. The purpose of this being (our 10 year plan) to plant and grow lucerne. Our future proposal, all going well, is to crop 3 out of our 4 paddocks within the next 2 to 3 years and grow the best lucerne in town.
At the time the application was lodged, a permanent employment contract was in place between the applicant and occupant of the dwelling. This has lapsed due to the council issuing Orders in relation to the unauthorised dwelling.
The contract, dated 12 October 2014, provided use of the dwelling as a principal place of residence, rent free with electricity provided in exchange for wages. The duties to be undertaken by the employee involved:

All aspects of agricultural/farming activities;
Attending to owner's livestock, mainly being cattle and horses and involving feeding, watering, working, drenching;
Attending to agisted livestock, mainly being cattle and involving feeding and watering;
Maintenance of 4 paddocks for livestock involving regular fence maintenance/repairs, occasional shelter/stable maintenance, regular spraying of noxious weeks, filling of dams and troughs and occasional slashing;
Regular rotation of livestock;
Maintaining the 1km road/driveway;
Regular mowing and upkeep of lawns;
Operating a tractor, 4 wheel motorbike, chainsaw and various power tools;
All aspects of maintaining our 104,800sqm property in the absence of the owner.

An Agistment Agreement made between the applicant and the owner of land at Womboota also accompanied the application and provides for agistment of stock on the site with no cash exchanged, payment to be in the way of stock (calf or calves) with an expectation that full time care would be provided to stock. The owner of those animals, submitted a Statutory Declaration dated12 May 2014 that states: I…., am the owner of a small herd of cattle ranging from 10-15 head at the one time. I live on a large property which becomes dry throughout the year. Mark has been a family friend for 30 years or more and every year provides agistment for my cattle when needed. Due to his large water right is helping to keep food in his paddocks. When my cattle are on agistment looked after by SN the caretaker who lives on Mark's property. I provide several round bales and in my absence Shane feeds and waters my cattle.

The planning controls

The site is zoned RU1 Primary Production under Murray Local Environmental Plan 2011 (LEP). The aims of the plan are contained in clause 1.2 as follows: (a) to encourage sustainable economic growth and development within Murray, (b) to encourage the retention of productive rural land in agriculture, (c) to identify, protect, conserve and enhance Murray's natural assets, (d) to identify and protect Murray's built and cultural heritage assets for future generations, (e) to allow for the equitable provision of social services and facilities for the community, (f) to encourage and focus growth in the Moama and Mathoura townships, (g) to provide for future tourist and visitor accommodation in a sustainable manner that is compatible with, and will not compromise, the natural resource and heritage values of the surrounding area.
Clause 2.3(2) requires the consent authority to have regard to the objectives of a zone when determining a development application. The objectives of the RU1 zone are:

To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.
To encourage diversity in primary industry enterprises and systems appropriate for the area.
To minimise the fragmentation and alienation of resource lands.
To minimise conflict between land uses within this zone and land uses within adjoining zones.

A rural workers' dwelling is permissible with consent in the RU1 zone and a secondary dwelling is prohibited. The following definitions are relevant to the application: rural worker's dwelling means a building or place that is additional to a dwelling house on the same lot and that is used predominantly as a place of residence by persons employed, whether on a long-term or short-term basis, for the purpose of agriculture or a rural industry on that land. agriculture means any of the following: (a) aquaculture, (b) extensive agriculture, (c) intensive livestock agriculture, (d) intensive plant agriculture. extensive agriculture means any of the following: (a) the production of crops or fodder (including irrigated pasture and fodder crops) for commercial purposes, (b) the grazing of livestock for commercial purposes, (c) bee keeping, (d) a dairy (pasture-based). intensive livestock agriculture means the keeping or breeding, for commercial purposes, of cattle, poultry, pigs, goats, horses or other livestock that are fed wholly or substantially on externally-sourced feed, and includes any of the following: (a) dairies (restricted), (b) feedlots, (c) piggeries, (d) poultry farms, but does not include extensive agriculture, aquaculture or the operation of facilities for drought or similar emergency relief. intensive plant agriculture means any of the following: (a) the cultivation of irrigated crops for commercial purposes (other than irrigated pasture or fodder crops), (b) horticulture, (c) turf farming, (d) viticulture. rural industry means the handling, treating, production, processing, storage or packing of animal or plant agricultural products for commercial purposes, and includes any of the following: (a) agricultural produce industries, (b) livestock processing industries, (c) composting facilities and works (including the production of mushroom substrate), (d) sawmill or log processing works, (e) stock and sale yards, (f) the regular servicing or repairing of plant or equipment used for the purposes of a rural enterprise.
Extensive agriculture and intensive plant agriculture are permitted without consent and aquaculture, dwelling houses, farm buildings, farm stay accommodation, intensive livestock agriculture, rural industries, rural workers' dwellings, secondary dwellings and turf farming are listed amongst the uses that require consent.
Clause 4.2B of the LEP is in the following form: 4.2B Rural workers' dwellings (1) The objective of this clause is to ensure the provision of adequate accommodation for permanent or temporary employees of existing agricultural or rural industries. (2) This clause applies to land in Zone RU1 Primary Production. (3) Development consent must not be granted to development for the purposes of a rural worker's dwelling on land to which this clause applies, unless: (a) the dwelling is or is proposed to be located on the same lot as an existing lawfully erected dwelling house, and (b) the consent authority is satisfied that: (i) the development will not impair the use of the land for agricultural or rural industries, and (ii) the agricultural or rural industry being carried out on the land has a demonstrated capacity to support the ongoing employment of rural workers, and (iii) the development is necessary considering the nature of the agricultural or rural industry land use lawfully occurring on the land or as a result of the remote or isolated location of the land.
That clause uses the term existing agricultural or rural industries. Agricultural industry is not defined in the Dictionary to the LEP. Agriculture and Agricultural produce industries are defined terms, the former detailed above and the latter as: agricultural produce industry means a building or place used for the handling, treating, processing or packing, for commercial purposes, of produce from agriculture (including dairy products, seeds, fruit, vegetables or other plant material), and includes wineries, flour mills, cotton seed oil plants, cotton gins, feed mills, cheese and butter factories, and juicing or canning plants, but does not include a livestock processing industry.
Whilst subdivision of the land is not proposed, the Court notes that a minimum allotment size of 120ha applies in the RU1 zone (Clause 4.1).
Clause 7.1 of the LEP is in the following form: 7.1 Essential services Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the proposed development are available or that adequate arrangements have been made to make them available when required: (a) the supply of water, (b) the supply of electricity, (c) the disposal and management of sewage, (d) stormwater drainage or on-site conservation, (e) suitable road access.
Murray Regional Environmental Plan No 2 - Riverine Land (REP) also applies to the land however, none of the contentions in the case reflect matters relevant to that plan.
Murray Shire Development Control Plan 2012 applies to the site however, according to the council's Statement of Facts and Contentions (Exhibit 1), its provisions are not relevant to the application.

The issues

The contentions in the case are whether the application satisfies the provisions of clause 4.2B(3)(b) of the LEP and is consistent with the aims of the LEP. In addition, in view of the lack of information provided in the application, and the need to demonstrate that the provisions of clause 7.1 of the LEP are satisfied this contention was raised by the Court. In the event that it was found that consent should be granted, it would be appropriate to proceed down the "amber light" approach and provide the applicant with an opportunity to address that issue.

The evidence

The site view involved inspection of the property and observation of the building subject of the application. The partner of the owner provided evidence in relation to the use of the site and the parties agreed that evidence could be taken into account together with the discussions during the conciliation conference.
Expert evidence was heard in relation to agriculture from Mr M Ryan for the council and Mr S Leake for the applicant. Ms K Erdelyi provided town planning evidence for the applicant with no expert engaged by the council in that field.
Ms Erdelyi had prepared a Business Plan in association with the applicant for the purposes of the hearing (Exhibt D). That plan is for the period 2006 to 2016 and, according to her evidence had been prepared on his 10 year plan for the property. It detailed the laser levelling that had been undertaken in the 2007 financial year with lucerne production to commence in 2010. The only market identified in the plan is to sell primary grade lucerne to Melbourne race horse trainers with three crops produced annually, delivering an estimated sale price of $80,000 per annum. No other evidence of income produced from the site has been provided.
That plan estimates a profit of $620 per annum in the first year and $5420 thereafter. It relies on contractors for tillage, planting, harvesting and bailing with the proposed rural work costing $15600 per annum with those costs offset in terms of rent and utilities.
Mr Ryan assessed the plan and amortised the costs and says that the payback period for investment would be around 35 years and therefore outside what a normal commercial farm operator would expect.
Both agricultural experts agree that the estimated income of $80,000 is also optimistic, relies on the production of top quality product each crop and sufficient water being available for full irrigation. This is unlikely given the limited water allocation available despite the licence held.
Ms Erdelyi conceded the figures incorporated into the business plan were "ballpark" and that land acquisition costs, depreciation or other allowances had not been incorporated.
Mr Ryan agreed that the tax free benefit to the rural worker would be more than reasonable recompense to graze 7 cattle.
The experts agree that the current use of the site is the keeping of cattle and sheep and that there is no lucerne crop.
Mr Leake and Mr Ryan agree that the house and site which is the subject of the application occupies approximately 750sqm and the footprint of the house and house yard is insignificant as it is less that 1% of the property. The location of the house and site will not restrict the surrounding agricultural lands from being used for crop production. All experts agree that it the dwelling was not constructed the paddock would otherwise be available for rural use. As stated above, the paddock has an area of approximately 1 ha.
They also agree that neither extensive grazing (sheep or cattle) or irrigated lucerne will provide full-time employment opportunities on a farm of this size but such enterprises would require some form of employment, that agistment of horses would require more labour than cattle grazing and would require improved fencing and rural work can include upkeep of fences, farm roads and stock handling facilities. Part time employment is required to operate the current modest agriculture existing on the site and given the proximity to Moama, some 10km away, this labour could be sourced off the farm and/or provided by the occupants of the original dwelling on the site. Mr Leake estimates that once established, a lucerne crop would require on, average a couple of days per week labour. He says that if the site was used to breed animals, it would need to be inspected daily and to use a contractor would be expensive and only involve part time work. The work is seasonal and could be between hour per day to significantly more, if it required feeding animals, would take up to a half a day on average. He also agreed that if the site was used for lucerne crops, only part time work would be required.
Mr Ryan, in his expert report, Exhibit 3, estimated the livestock carrying capacity of the four paddocks and says it would be 43.5 dry sheep equivalent (DSE). He interpolated that estimate to estimate the likely annual number of steers that could be run on the property in its current state and says that it is 7. That would increase if the pasture area was to be irrigated to an estimated DSE of 127.5. He says that the stock would not require daily supervision. In his opinion, the site is too small to generate the need for a rural worker and that, for extensive livestock grazing, such threshold would not be reached unless the area of production exceeded 350ha.
The experts provided their opinion as to whether the cropping of lucerne would constitute a commercial purpose. Ms Erdelyi says it is and cites the Australian Tax Office Taxation Ruling TR 97/11. That ruling addresses the question "am I carrying on a business of primary production?" She says that because the business plan identifies that there will be a profit, no matter how small, it would be a business.
Mr Leake says that 7ha of lucerne is a commercial purpose and whether it runs at a profit depends on management. Mr Ryan was unsure and considered that it would depend on how it is operated. In the absence of such information, the fact that the tax free benefit proposed to be offered to the rural worker was under the average wage, the price of hay being highly sensitive and requiring good irrigation, risks associated with weather are all matters that need to be taken into account.
Mr Ryan says that there is no need for a rural worker on the site. Mr Leake says that whilst there is no need for a full time worker, it would support part time employment whereas Ms Erdelyi says it depends on the definition to support and would if a caretaker's role applied.

Conclusion and findings

For consent to the granted, the Court must be satisfied the provisions of clause 4.2B of the LEP are met. The objective of the clause is to ensure the provision of adequate accommodation for permanent or temporary employees of existing agricultural or rural industries (emphasis added). The site is used for the grazing of animals. That is therefore the existing activity carried out on the land. As stated above, there is no definition in the LEP of agricultural industries and the parties agree that the term should be interpreted as one that relates to agriculture as defined at [17]. I accept that submission, particularly having regard to the definition of rural industries that includes agricultural produce industries. Any hypothetical or planned future use of the site such as lucerne cropping is not relevant to determination of this issue.
As no development consent has been granted by the council for the use of the land for any purpose, the use must fall within the terms of land use that is permitted without consent. The parties agree that the use of the site as existing would fall within the definition of extensive agriculture provided the grazing of livestock was for commercial purposes. No evidence was provided that suggests the current keeping of cattle and sheep is run on a commercial basis. The Macquarie Dictionary defines commercial as engaged in commerce: capable of returning a profit… preoccupied with profits or immediate gain. Having regard to Mr Ryan's assessment of the current operation on the site suggests that it would not be conducted for commercial purposes. The tax ruling does not assist in determination of this planning question, its purpose is to determine whether a person is carrying on a business of primary production for taxation purposes. It is prepared for an entirely different purpose. Despite this fact, I will consider the provisions of clause 4.2B on the basis that the site is used for extensive agriculture.
It is common ground that the dwelling will be located on the same lot as an existing lawfully erected dwelling house and therefore the provisions of clause 4.2B(3)(a) are satisfied.
Satisfaction of all of the matters in clause 4.2B(3)(b) are required. Firstly, the Court must be satisfied that the development must no impair the use of the land for agricultural or rural industries. The experts agree that if the dwelling was not located in what is described as the fifth paddock, that 1ha could be used for agriculture. It was also agreed that because of the need for part of the paddock to be used for septic disposal it would not be appropriate for crops to be grown in that area. The applicant was unable to detail the precise extent of area that may be available for agriculture and Mr Leake agreed that it would not be appropriate that it was used for cropping however, says it may be possible to graze stock. Mr Ryan says that an area of at least 700sqm would be required and that trees could be grown in the area and agrees it would not be appropriate to crop.
In view of the lack of certainty in relation to the use of 1ha of the site which constitutes around 10% of the holding, I am not satisfied that the development would not impair the use of the land for agriculture. There is no proposition that it would be used for a rural industry. The viability of the current use on a commercial basis, based on the scant details provided by the applicant, is, as stated above questionable. I therefore rely on Mr Ryan's assessment of the carrying capacity of the site. For the use to be conducted on anywhere near a commercial basis, it would require the use of as much of the site as possible and then may not result in a profit.
Secondly, I must be satisfied that the agricultural industry being carried out on the land has a demonstrated capacity to support the ongoing employment of rural workers. Based on the evidence, the existing use of the land would, if Mr Ryan's evidence is correct, not require daily supervision and if Mr Leake is correct, would provide between 1 hour and half a day on a seasonal basis. Given the limited agricultural use that is being conducted on the site, I am satisfied that the use requires someone to work on the site at times. Whether the extent of that work is sufficient to support the ongoing employment of a rural worker is the question at issue. The council argue that the work can be conducted by the occupants of the main dwelling on the site and that additional accommodation is not required. The applicant's position is that because the site is not the primary residence of the owner and the agricultural use is not conducted by the owner/applicant but rather requires arrangements to be made by way of the tendered employment contract whereby accommodation and utility costs are provided in exchange for the works required under that contract, that constitutes ongoing employment. I am satisfied that some form of employment is required for the existing agricultural use as it is conducted by the applicant.
Thirdly, I must be satisfied that the development is necessary considering the nature of the agricultural or rural industry land use lawfully occurring on the land as the parties agree that the site is not in a remote or isolated location, given its proximity to Moama.
It is the applicant's submission that the rural worker's dwelling is necessary because the owner of the land does not reside at the property. I do not accept this proposition. The test is not about the personal circumstances of the applicant. It is to consider whether the development is necessary because the nature of the agricultural and rural industry land use lawfully occurring on the land. Having regard to the evidence, I cannot be satisfied that that land use requires the development. From the evidence it is apparent that the land use only demands a person working on the site for a short period of time and on a seasonal basis. Such work does not demonstrate that it would be necessary to provide any further accommodation on the site than is currently available.
The test is whether the nature of the work carried on the site necessitates a rural worker. The evidence is that it would not, only the circumstances of the absentee owner require that worker. The existing use of the land is being carried out without anyone living on the site. That is an important consideration in determination of the issue and demonstrates that it is not necessary for the development of a rural worker's dwelling considering the nature of the land use lawfully occurring on the land.
For the reasons outlined above, I am not satisfied that the provisions of clause 4.2B of the LEP are met. Consent cannot therefore be granted.
For completeness, I also consider the merits of the application and consider the development would be inconsistent with the zone objectives, particularly having regard to the size of the site and the provisions of clause 7.1 of the LEP are not met. These are further reasons to refuse consent.
The Orders of the Court are: 1. The appeal is dismissed; 2. Development Application DA 081/15 that sought development consent for the use of an existing building as a rural workers' dwelling is refused consent; 3. The exhibits, other than exhibits C and 1, are returned.

Sue Morris 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: 09 July 2015

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