Rouse v Palerang Council

Judgment 1Mr Rouse is a town planner who has lodged an application with Palerang Council (the council), on behalf of the owners of a residentially zoned property, in the 2V village zone on the northern outskirts of the village of Bungendore. 2The allotment is one of substantial size compared to the existing residential allotment pattern throughout the majority of Precinct 2, that being the residential precinct pursuant to the Palerang Development Control Plan 2009 that applies to the land. The zone objectives for the relevant zone contained in the Yarralumla Local Environmental Plan 2002 are not transgressed, it is conceded by the council in these proceedings. Similarly, the objectives of the 2V village zone set out in the Local Environmental Plan, are also not transgressed. 3The sole matters that arise for my consideration in this proposal, a proposal that I will describe in more physical detail shortly, are the questions of whether or not the proposal satisfies the first and third of the objectives for Precinct 2, the residential precinct, contained in the Development Control Plan. Those objectives are: (a)To preserve and enhance the residential amenity and character of the precinct and; (c)To permit uses other than residential uses, only where such uses are compatible with and incidental to the residential use. 4It is in the context of those objectives that it is now appropriate to describe the physical nature of the existing development on the site and that which is proposed by the application in these proceedings. It is clear from the documentation that has been tendered, that prior to about mid 2007, a substantial dwelling in landscaped gardens was then already erected on the site. In early 2007, one of the owners submitted an application to the council for approval to carry out alterations and additions to the existing dwelling. That application, by necessary inference from material in evidence, comprised provisions relating to effluent disposal, addition of a new carport shelter to the existing dwelling, the addition of three bedrooms with ensuites, and the conversion of an existing room in the dwelling to an office. 5In correspondence from the council to the applicant for that proposal, dated 30 April 2007, comments are made concerning the possible characterisation of the nature of the development. The letter says, "The permitted plans show what are potentially motel type units that would have the potential for a range of accommodation type uses all being commercial in nature." The letter then went on to raise questions as to how the resulting building should be classified pursuant to the Building Code of Australia, a matter that does not need to detain me in these proceedings. However, attached to and in response to that correspondence, is a reply from the applicant in that case, indicating that it was not intended that those extensions be used for bed and breakfast purposes or any other form of commercial occupation. 6Subsequently, the owners of the premises applied to the council to use those three additional bedrooms (then constructed) for bed and breakfast purposes, together with three additional cabins to be erected in the grounds. The council agreed to give consent to the use of the three bedrooms attached to the dwelling, but declined to approve the bed and breakfast additions in the three cabins. 7The council ultimately granted a consent to the use of the three units attached to the dwelling, and a fresh application, now the subject of these proceedings, was made seeking approval for the addition of three cabins. 8The three bedrooms and ensuites that were approved by the council for erection as extensions to the dwelling, and subsequently for use as bed and breakfast accommodation, comprise a separate wing to the existing dwelling. Each has a separate access from the car park, and each is separated from the other by a brick wall. They have, as noted in the original correspondence to which I have referred, a visual consistency with what might be regarded as motel units. 9I offer no comment, as it is neither appropriate or necessary for me to do so, concerning either the approval of the extensions to the existing dwelling, or the approval of their use as bed and breakfast accommodation. Those approvals having been given by the council, they are matters of legal effect and can contain no element that impacts on my present consideration. What I am obliged to consider in these proceedings, relates entirely to the three additional proposed cabins, rather than anything of either a physical nature, or a use of the structures, that is presently on the site. 10It is long settled since the decision of the Court of Appeal in Zhang v Canterbury City Council [2001] NSW CA 167 that a Development Control Plan is to be the focal point and starting point of consideration of the merits of a development proposal. However, it is not a straitjacket from which it is not possible to depart, as the Court of Appeal also has made it clear that if there are good and cogent reasons for doing so, after a proper consideration of those matters called into play by the terms of s 79C of the Environmental Planning and Assessment Act 1979, after a proper consideration of those matters, departure from a Development Control Plan may be appropriate. 11I earlier referred to the fact that Mr Rouse was the nominal applicant on behalf of the owners and property. I note, merely for the purpose of completeness of this decision, that early in the proceedings, I declined an application to refuse to hear the application - the evidence from Mr Rouse on the merits of the application - and that has been published in a separate interlocutory decision (see Rouse v Palerang Council [2011] NSWLEC 1029). 12I also note for completeness that, as one of the matters dealt with by Mr Rouse in the statement of evidence arising from the joint conference between him and Mr Laycock, the planner who gave evidence on behalf the council, Mr Rouse indicated that he considered that the site would have been more appropriately included in the adjacent precinct to the north, Precinct 6, which is a large lot rural residential subdivision. As I observed during the course of the hearing, to adopt such a policy position would be expressly contrary to that which was determined to be appropriate by the Court of Appeal in Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226, and I have disregarded in its entirety the question of whether or not it might be appropriate to consider this application in a Precinct 6 context, because it is clearly impermissible to do so. 13The above diagram shows the precincts in Bungendore and I have circled in red the location of the site at the northern extremity of Precinct 2. As earlier noted, the two objectives for Precinct 2 that are required to be satisfied, or good reason provided why they should not be observed are, "to preserve and enhance the residential amenity and character of the precinct" and "to permit uses, other than residential uses, only where such uses are compatible with and incidental to the residential use." 14I note at this time, that the five objectives for Precinct 2 are in the conjunctive, that is each of them, as relevant, is required to be satisfied, rather than the disjunctive. I also note that the first of the objectives is not one of a neutral nature, but requires the enhancement of the residential amenity and character of the precinct. Preservation is, in its essence, a neutral term, connotating that no degradation or derogation should occur, but enhancement has a positive element of requirement to it. 15The joint statement of evidence of the planners agreed that the character of the site should be described as follows: The site is located in a residential area in the central north-western part of the Bungendore township. The site borders large lot residential land to the north, east and south and rural farm grazing land to the west, as such we consider that the site can be characterised as being located in a large lot residential area, on the periphery of Bungendore township with a rural land use interface along its western boundaries. 16During the course of their oral evidence, the witnesses were asked to describe how they considered that this proposal for three additional bed and breakfast and/or motel (the particular characterisation, in my view being irrelevant for the purposes of the present consideration) enhances the residential amenity and character of the precinct. I carefully listened to the answers that Mr Rouse gave on behalf of the applicant. First, he said that the impact is negligible, however he did not assert, in that statement, that there was no impact. He then said that the proposal utilises existing landscape and features of the site and utilises existing infrastructure serving the site, if I understood his evidence in this regard accurately. 17He also said subsequently in response to a question from Mr Gavagna that enhancement comprises, at least in part, the use of the land having regard to the existing use of it for bed and breakfast accommodation, and that his opinion was that it was neutral, but does have the connotation of being a tourist facility without any environmental impact. He was not able to articulate to me a reason why I should regard that which is currently proposed as constituting an enhancement - not of the use of the land (which I accept that it might well be for both the applicants and for its commercial operation) - but an enhancement of the residential amenity and character of the precinct . 18As a consequence I am satisfied that that element of the objectives for the precinct are not satisfied. 19However, that is not the end of the matter. I am also asked to conclude that the council has not consistently adopted the satisfaction of that precinct objective, in the period of nine years or so since the Development Control Plan came into effect. 20What is relevant, to my understanding of that proposition (one which would fall within the compass of those matters dealt with by MacClellan J in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at para 117), concerning consistency of application of Development Control Plans and council policies, is the fact that on Mr Rouse's evidence, there have only been three applications for commercial uses in the precinct since the Development Control Plan came into effect. One of those applications is that which has been approved for the bed and breakfast accommodation on the site. The second is the application that has been approved for the intensification of a then existing use of a veterinary clinic, and the permitting of the conversion on Mr Rouse's evidence, of an existing veterinary practice building into a residence, and the third is the refused application that applies to these premises. 21As I earlier indicated, I am obliged to accept the present proposal as an approved use and as an appropriate design, that being the effect of the two earlier consents given by the council for this site. As to the veterinary practice, although it is Mr Rouse's uncontested evidence that there is a significant intensification of the use, I have no knowledge of the site and I have no evidence of the specific details of either the prior or now approved use, save that it is significantly more intense. 22I am therefore satisfied that there is no particular attitude adopted by the council of an inconsistent nature, since the adoption of the Development Control Plan, that could tip the balance against the position taken by the council in these proceedings and put it in favour of the applicant. 23I further note that the nature of the proposed structures are of an entirely different nature to that which was approved by the council in the earlier structures that were subsequently approved for bed-and-breakfast use. They were clearly a distinct wing, but addition to the existing dwelling house, whereas the structures that are proposed in these proceedings are quite clearly three separate structures, unattached in form, to the dwelling house and to the bed-and-breakfast units that had been approved. I am not satisfied that there is any sufficient reason to set aside compliance with the first of the objectives of the precinct and as a consequence, the appeal should be dismissed. 24The orders of the Court therefore are: (1)The appeal is dismissed. (2)Development Application DEV.2010.0124 for the installation of three cabins and their use as bed and breakfast accommodation on 75 Tarago Road Bungendore is determined by the refusal of development consent and (3)The exhibits, other than Exhibits A, D and 1 are returned. Tim Moore Senior Commissioner 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: 12 April 2011