Pancho Properties Pty Limited v Wingecarribee Shire Council - [2004] NSWLEC 174 - NSWLEC 2004 case summary — Zoe

NSWNSWLEC

Pancho Properties Pty Limited v Wingecarribee Shire Council

[2004] NSWLEC 174

Land and Environment Court (NSW)|2004-04-22|Before: Talbot J

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2004-04-22

Before

Talbot J

Source

Original judgment source is linked above.

Judgment (28 paragraphs)

[1]

Introduction 1 These three matters have a long history. 2 Matter No. 10072 of 1998 is effectively an appeal against the imposition of condition 3 on the grant of development consent DA 13/97 for a second dwelling on land comprising 8.0235 hectares in Sheepwash Road, Avoca near Moss Vale. The consent was granted pursuant to cl 23 of the Wingecarribee Local Environmental Plan 1989 ("the LEP"). Condition 3 of the consent provides as follows:- This consent is issued in accordance with clause 23 of Wingecarribee Local Environmental Plan 1989, and Council advises that upon completion of the replacement dwelling, the original dwelling must be removed from the site. 3 The second dwelling has been constructed while the original dwelling referred to in the condition remains and is currently occupied by a person described by the applicant as a manager. 4 Matter No. 10071C of 1998 is an appeal against a refusal of development application DA 476/97 which was an application for development consent for structural alterations and additions to the original dwelling and its use for the purpose of a manager's residence pursuant to cl 13(4) of the LEP. 5 In matter No. 10138 of 1999 the applicant has appealed against the deemed refusal of development application DA 29/99 for consent to use the original dwelling on the allotment for the purpose of a rural worker's dwelling. The development application DA 29/99 was an application for consent to a changed use only and expressly stated that it was not made pursuant to cl 13(4) of the LEP. 6 Matter No. 10071C of 1998 was originally heard by Assessor Roseth, as he then was. The development application was refused. The applicant successfully appealed against the Assessor's determination. These proceedings are, in effect, the final determination of that appeal. 7 There has been no determination on the merits in matter No. 10072 of 1998 or matter No. 10138 of 1999. 8 The hearing of all appeals was deferred pending the resolution of preliminary questions of law raised by various notices of motion. I provided answers to the questions of law in a judgment delivered on 29 October 1999 (reported at (1999) 110 LGERA 352). 9 Although the Court of Appeal allowed an appeal from my judgment in part, Giles JA, with whom Heydon JA and Young CJ in Equity agreed, confirmed my answers to the questions in a judgment delivered on 8 November 2001 (reported at (2001) 117 LGERA 104). 10 The issues now raised by Wingecarribee Shire Council ("the council") firstly relate to whether development consent DA 13/97 should be granted with the amendment of condition 3 proposed by the applicant to read as follows:- 3. This consent is issued in accordance with Clause 23 of Wingecarribee Local Environmental Plan 1989, and…that upon completion of the replacement dwelling, the original dwelling must not be used for the purposes of a dwelling-house or a rural workers dwelling without consent. 11 It must be remembered that the appeal against the imposition of condition 3 in its original form has the effect provided by s 83(2) of the Environmental Planning and Assessment Act 1979 ("EP&A Act"), namely that the consent ceases to be effective. 12 Questions arise as to the effect of cl 23 and cl 13(4)(a) of the LEP in the circumstances where those clauses apply. 13 Furthermore, the council contends that Pancho Properties Pty Limited, as the owner of the land, is not using it for the purpose of agriculture and that, accordingly, the use of the original house as a dwelling by the present occupant will not satisfy the requirement to cl 13(4) of the LEP or the use for a rural worker's dwelling as defined in the Environmental Planning and Assessment Model Provisions 1980 ("the Model Provisions"). 14 The land is situated within zone 7(b) Environmental Protection (Landscape Conservation) of the LEP. 15 The objectives of the zone are set out in the Table to cl 9 of the LEP as follows:- (a) to identify and protect areas of particular scenic value and to ensure the preservation of their cultural, heritage, aesthetic and environmental significance;

[7]

(b) will be located on the same allotment of land as the main dwelling-house. 18 At the time of lodgement of the respective development applications development for the purpose of a rural worker's dwellings was permissible in the 7(b) zone but only with development consent. By Amendment No. 104 published in Government Gazette No. 109 on 25 August 2000 rural worker's dwellings became prohibited in the zone, subject to Savings Clause 13A as follows:- 13A Savings This plan applies to a development application made before the commencement of Wingecarribee Local Environmental Plan 1989 (Amendment No. 104) (which relates to the prohibition of development for the purpose of rural workers' dwellings on land to which clause 13 applies) as if that plan had not been made. 19 The following passages from the judgment of Giles JA in the Court of Appeal are useful in the context of the issues maintained by the council in the current hearing:- 27 The position in principle is affected by s 83(2) and (3) of the Act, whereby on the bringing of an appeal under s 97 the consent "ceases to be, or does not become effective" until determination of the appeal and, depending on the result, either "becomes effective and operates" from the date of determination or "is void and is taken never to have been granted". The consent continues to exist pending the determination of the appeal, but in a state of suspension such that carrying out the development to which it relates is not authorised ( Swadling v Sutherland Shire Council (1994) 82 LGERA 431). Until the appeal is brought, however, carrying out the development is authorised, and until that time the person abovementioned may still act on the consent while objecting to the condition. If the appeal is successful and the condition is removed, then it is not necessary to do what the condition had required. If the condition remains, then the person must either remove the works or comply with the condition. The court addresses the matter afresh as the consent authority (eg Naylor v Bankstown City Council [1980] 2 NSWLR 629), and there is, of course, a possibility that consent will be wholly denied, in which case the works must be removed. …

[9]

47 In my opinion, however, condition 3 does not preclude consent to a use of the existing dwelling whereby it does not have to be removed from the land. Condition 3 is, of course, a very relevant matter in considering whether or not one or other of the applications should be granted, but it would be possible for consent to use the existing dwelling as a manager's residence or as a rural worker's dwelling to be granted on condition that the consent to the erection of the new dwelling be modified or surrendered (s 80A(1)(b) of the Act) or on condition that the new dwelling be removed (s 80A(1)(c)). That is sufficient to determine the separate question. However unlikely the grant of consent may be, it can not be said that the applications must fail. In the language of the question, they are competent. 20 I will deal with succinct issues in respect of the respective development applications in the chronological order of the dates of lodgement of the applications with the council. Matter No. 10072 of 1998 - The Condition Proceedings (DA 13/97) 21 The council's argument in relation to the Condition Proceedings is that by operation of s 83(2) of the EP&A Act development consent DA 13/97 ceased to be effective when the appeal was lodged pursuant to s 97. Accordingly, the Court, exercising the functions of the consent authority, has no power to grant development consent retrospectively to authorise the carrying out of development that already exists (Tynan v Meharg and Newcastle City Council (No 2) (1998) 102 LGERA 119 at 121; Ireland v Cessnock City Council (1999) 103 LGERA 285 at [77]; Signorelli Investments Pty Ltd v Sutherland Shire Council (2001) 114 LGERA 27 at [18] - [21] and Noble v Cowra Shire Council [2003] NSWLEC 178, unreported at [43]). Furthermore, the council contends that a grant of development consent is precluded where the applicant does not intend that the new dwelling house wholly replace the existing dwelling house as required by cl 23 of the LEP. Moreover, it is alleged the proposed development is inconsistent with the objectives of the 7(b) zone and will cause a detrimental effect in the locality that will not be offset by any community benefit. 22 In the Court of Appeal judgment Giles JA made it clear, at [37] and [47] quoted above, that he was firmly of the opinion the consent granted pursuant to cl 23 authorised the construction of the new dwelling house only on the basis that it "wholly replace" the existing dwelling house as a dwelling. He recognised nevertheless that the structure of the existing dwelling could remain although it cannot be used as a dwelling. Furthermore, removal of the existing dwelling would not have been a necessary consequence of the consent in the absence of condition 3. I do not propose to waiver from this opinion as I am bound by what the Court of Appeal decides. Given the identical facts there is no prospect of distinguishing the Court of Appeal decision. 23 Relying on the principles applied by the Court of Appeal, arguably, it would be sufficient to simply delete condition 3 and let the applicant take such steps as might be lawfully available to it in relation to obtaining an approval to an authorised future use of the original dwelling house building. In my view, that course may cause more problems than it solves in a practical sense. I therefore propose to exercise the Court's discretion to impose a new condition 3 as follows:- (3) The original dwelling house erected on the land shall not be used for the purpose of a dwelling house except with consent first granted by the council or used otherwise for any other purpose except in accordance with the provisions of the Environmental Planning and Assessment Act 1979.

[13]

(4) Subject to a successful objection made pursuant to State Environmental Planning Policy No. 1 - Development Standards ("SEPP 1") the area of the land must be not less than 40 hectares. 29 The plans accompanying the development application show that some internal walls will be removed, an office will be extended and a lounge room will be added to the original cottage. Otherwise, the existing structure will remain and form part of the building after the work is complete. What is to be erected, therefore, is only part of the building ultimately to be comprised within the proposed house. There will be no additional building as such. At the present time, there are already two buildings on the land, one of which, pursuant to the original condition 3 to development consent DA 13/97, either has to be demolished or removed from the site by some other means or, pursuant to condition 3 to be imposed by the Court, cannot be used as a dwelling without consent. The grant of DA 13/97 has taken away the status of the use of the latter structure as a dwelling house. Therefore, the proposed additions and alterations do not comprise additions and alterations to a lawful dwelling house. 30 Alternatively, the proposed additions and alterations do not amount to the erection of an additional dwelling. They are merely additions and alterations to an existing structure which has the form of a dwelling house. Notwithstanding the applicant's reliance upon the definitions of "building" and "erection of a building" in s 4 of the EP&A Act that encompass part of a building, cl 13(4) specifies that the building in question is to be an additional dwelling house. 31 The proposed works do not answer that description. The definition of building and erection of a building cannot, as a matter of practicality, be transposed to the concept of an additional dwelling house referred to in cl 13(4). Accordingly, what the applicant proposes is to carry out alterations and additions as part of an existing dwelling house as distinct from the erection of an additional dwelling house. The application, therefore, does not fall within the ambit of cl 13(4). 32 The applicant contends that the council is estopped from raising an issue that the proposed works do not relevantly constitute the erection of a dwelling house within the meaning of cl 13(4). The Court nevertheless must be satisfied that the jurisdictional facts to support the determination of the development application have been established. The Court does not have the power pursuant to cl 13(4) to grant consent to the erection of a building other than a dwelling house that is an additional dwelling house. What the applicant proposes does not fall into that category for the reasons I have explained. The applicant does not propose to modify or surrender development consent DA 13/97 as contemplated by Giles JA at [47].

[15]

36 A rural worker's dwelling is defined by the incorporated provisions of the Model Provisions as follows: "rural worker's dwelling" means a dwelling which is on land upon which there is already erected a dwelling and which is occupied by persons engaged in rural occupation on that land; 37 Development application DA 29/99 was made before 25 August 2000. Clause 13A, therefore, has the effect of preserving the rights of the applicant in respect of the development application as if the amendment, which resulted in development for the purpose of a rural worker's dwelling being prohibited, has not come into force. Nevertheless, in my view, the draft amendment did exist. The final making of the plan by the Minister is all that is outstanding. For the purposes of s 79C of the EP&A Act, therefore, the consent authority, in this case including the Court, in determining the development application is to take into consideration the provision of Amendment 104 as a draft environmental planning instrument that has been placed on public exhibition, the making of which is imminent. All that cl 13A does is preserve the application against the absolute prohibition that otherwise resulted when the amending LEP was made. 38 It is the applicant's case that whereas the original dwelling was, and still is, occupied by a person engaged in rural occupation of the subject land, that same person will continue to occupy the building if consent to use it for the purpose of a rural worker's dwelling is granted. 39 The scheme of the LEP is that dwelling houses are permissible on the land but only with development consent, except as otherwise provided in the LEP (see cl 9(2)). There is no reference to a rural worker's dwelling in the Table applicable to the 7(b) zone prior to Amendment 104. Clause 23 makes no distinction between a rural worker's dwelling house and any other dwelling house that is intended to wholly replace an existing dwelling house. Clause 13(3) allows that a dwelling house may, with the consent of the council, be erected on land within the 7(b) zone subject to conditions (a) to (h) referred to in the clause. Although cl 13(4) contemplates that not more than two additional dwelling houses may be erected on the land if the conditions of the clause are satisfied, the applicant has not pursued this option. Condition 3 of development consent DA 13/97 is not authority for the continued use of the original dwelling as a dwelling house either before or after the appeal to this Court in matter No. 10072 of 1998. 40 The applicant, having chosen to engage cl 23 to obtain consent for the new dwelling, cannot subsequently resile from that position and seek to obtain development consent to a change of use of the original dwelling building that is inconsistent with the prohibition resulting from the application of cl 23. The use of the existing building will remain the same. In that context it cannot be said that the new dwelling house is intended to wholly replace the original house. Either the development application was originally in respect of prohibited development and, therefore, is not saved by cl 13A or, even if it is to be treated as if the amendment was never made, it nevertheless remains as an application in respect of prohibited development. 41 Once again, there is no proposal by the applicant to seek modification or surrender of another development consent or to accept that the new dwelling be removed as contemplated by Giles JA at [47]. Nor is the applicant seeking consent to a use of the original dwelling structure (other than as a dwelling house) whereby it does not have to be removed from the land. Moreover, this is not a case where it is open for the Court to grant development consent in respect of prohibited development. 42 Although a rural worker's dwelling is by definition a dwelling which is on land upon which there is already erected a dwelling, that does not, in my opinion, overcome the prohibition arising out of the application of cl 23.