Sikma and anor v Hawkesbury City Council

Land and Environment Court (NSW)|2012-07-18

Judgment 1ACTING SENIOR COMMISSIONER: This appeal relates to the refusal by Hawkesbury City Council of Development Application No. 0798/10 for the use of an existing building as a "rural shed" at 1239C Upper McDonald Road, Upper McDonald (the site). 2The site is Lot 53 in DP 753827. It is generally rectangular in shape and has an area of 34.5 ha. Access to the site is from Upper McDonald Road via an unformed Right of Carriageway and an unformed reserve road, including a crossing of the McDonald River. The site is predominantly natural bushland although the area around the existing building has been cleared. 3The general are is natural bushland with some cattle grazing in cleared pastures. Dwelling houses are located along Upper McDonald Road although the settlement pattern becomes sparser, the greater distance from this road. The site adjoins two properties in private ownership to the north-east and Yengo National Park on the remaining three sides.

Relevant planning controls 4The site is zoned Environmental Protection - Mixed Agriculture under Hawkesbury Local Environmental Plan 1989 (LEP 1989). A "rural shed" is permitted with consent in this zone. The definition of "rural shed", in cl 5, is: rural shed means a building or structure used for the storage of the property of the occupiers of the subject land or property associated with an agricultural use or other permissible land use conducted on the same parcel of land, but does not include a building or structure elsewhere specifically defined in this clause or a building or structure used for a purpose elsewhere specifically defined in this clause. 5Clause 6 adopts the Model Provisions 1980 and relevantly provides a definition for a "dwelling" as: "dwelling" means a room or suite 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 6The central area of dispute between the parties centres on whether the building is characterised as a "rural shed". The applicant maintains that the building is characterised as a "rural shed" whereas the council maintained that the building is characterised as a "dwelling". While both uses are permissible, with consent in this zone, the requirements for a "dwelling" raise additional issues associated with flooding and bushfire protection that are not relevant for a "rural shed". The council has not undertaken a full assessment if the building was characterised as a dwelling (as the development application sought approval only for a rural shed) and it was accepted by both parties that any assessment for a dwelling would require additional information to address flooding and bushfire protection issues and there was no certainty that approval could be granted even if the additional information was provided. 7Put simply, if the building was not characterised as a "rural shed", the development application should be refused.

The existing building 8The applicants purchased the site approximately 20 years ago and constructed the dwelling some 5 years later without any approval. It was submitted by Mr Sikma that he was not aware that approval was required at the time. 9The building is some 11.5 m x 6 m with a 3 m wide covered balcony surrounding the building. It is around 550 mm above the ground with steps to provide access the balcony and internal area. The roofing material is galvanised iron, the floor and decking is hardwood and the building is clad externally in western red cedar. The internal walls are unclad and there are no permanent internal improvements, such as a kitchen, bathroom or separate rooms inside the building. Doors are provided in the north and south elevations together with windows. Windows are also located in the eastern and western elevations. 10An external shower and screen is provided to the west of the building, together with water tanks that capture stormwater from the roof. A toilet is located to the north east of the dwelling that connects to a septic system.

How is the existing building used? 11The Statement of Environmental Effects states, in part:

The current owners - two brothers, purchased this land in the 1990s and have regularly used it of a weekend for family recreational uses.
Not long after purchasing the land, the families became trapped for four (4) days when the Mac Donald River flooded - causing the creek, through the valley in which the land is sited, to also flood.
To ensure that - if that situation recurred at some stage in the future, reasonable shelter was available, it was decided to build a shelter shed - both brothers being tradesmen. .
However it was never intended to be, nor has it ever been used, other than a "rural shed "storing the property of the occupiers of the subject land". There are beds etc in the shed so that if ever "caught again" by floods the family can have reasonable shelter. 12The council maintains that the building is used as a "dwelling". The fact that the building may be used irregularly for accommodation does not change the categorisation as a "dwelling". Reliance is also placed on the council "Record of Investigation" dated 21 August 2008 where Mr Sikma states that "they stayed in it (the building) when they were riding the bikes with the kids on the premises". Council also relies on observations made on site inspections on the 21 August 2008 and June 2012 that indicated the use of the building consistent with a "dwelling" as it contained tables and chairs, lounges, beds and double bunks. The evidence 13Expert town planning evidence was provided by Mr Ken Willis, for the applicant and Mr Greg Miles for the council. Mr Willis and Mr Miles agreed on a number of matters although their positions on the characterisation remained in dispute. 14Mr Willis states that the applicants are both qualified and practising tradesmen. Had they intended the building to be used as a dwelling for accommodation albeit, in an emergency, they would have been expected to install a toilet, cooking facilities etc inside the building. Instead, the toilet is a small external facility and the only cooking facility is a barbecue area outside the building. A shower is also located outside the building. He further states that it has never been intended to be, internally, other than a storage shed to provide shelter in an emergency in the same way that a motor vehicle could. 15Mr Miles states that the applicant has confirmed in the documentation provided as part of the development application, that it is intended to occupy the building for a habitable purpose, albeit in emergency situations. Mr Miles states that he has not sought advice from the Rural Fire Service on the question of bushfire protection as the application sought approval only for a shed. Notwithstanding this, Mr Miles states that if this was used for habitable purposes, even in emergency situations, a bushfire assessment would be required and in his opinion, there is considerable doubt as to whether satisfaction could be achieved with the bushfire requirements, given the access arrangements and the construction of the building. 16As the building is used for a habitable purpose, cll 25(3) and 25(6) of LEP 1989 also apply. Clause 25(3) states: (3) Each habitable room in a building situated on any land to which this plan applies shall have a floor level no lower than the 1-in-100 year flood level for the area in which the land is located. 17Clause 25(6) states: (6) Minor structures such as outbuildings, sheds and garages may be erected on land below the 1-in-100 year flood level, with the consent of the Council. The Council shall, in the assessment of a development application for such a structure, consider the likely frequency of flooding, the potential flood damage and measures to be taken for the evacuation of the property. 18Mr Miles states the floor level of the building is not at or above the 1 in 100 year flood level and fails to satisfy cl 25(3). Clause 25(6) is also not satisfied as access to the building involves fording the McDonald River. The likely frequency of flooding could be quite high and it is considered there is limited to no opportunity to evacuate the property once access across the McDonald River is cut. There is no safe refuge on the land in the event of the 1 in 100 year flood. 19Mr Alan Hastie, the Subdivision and Development Engineer with the council provided additional evidence, on the question of flooding. He states that the property does not have an effective flood evacuation route and due to the likelihood of high frequency, low-level flooding of the access, it is unlikely that the landholder could ever be in a position of readiness for flooding.

Is the building characterised as a "rural shed"? The legal framework 20The general approach to characterisation for planning purposes is best set out by Preston CJ in Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 114 for a supermarket where His Honour includes the relevant cases and relevantly states (at 27 and 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. 21His Honour further relevantly states (at 33 to 36 and 45): 33 The fact that the nature of the uses of different components or parts of the development may vary is not necessarily of importance. Obviously, the only part of the proposed development that will have a use of the specific nature of supermarket is that part of the building which incorporates the supermarket. The nature of the uses of other parts of the building, such as the car park, driveways, access ways, and landscaped forecourt, is different. 34 However, the nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose: see Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534, 535 and Warringah Shire Council v Raffles (1978) 38 LGRA 306 at 308. 35 In this case, the use of the car park, driveways, access ways and landscaped forecourt are each designed to serve the end of enabling the supermarket to be carried on. That is their purpose and that purpose imparts to the land on which those uses are pursued the character of shop, including the supermarket. The end to which the parts of the land in Lot D is to serve is not roads. 36 The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310. . 45 The characterisation of the purpose of development must also be done in a common sense and practical way... 22The general thrust of the findings in Chamwell is that the characterisation must focus on the purpose of the land. This must be done at a level of generality and in a commonsense and practical way that is sufficient to include the individual uses that make up the purpose. While there may be a number of different uses, these different uses may still serve the same purpose. 23Abret Pty Ltd v Wingecarribee Shire Council [2011] 180 LGERA 343 (at 54), relevantly state: ...where part of the premises is used for a purpose which is subordinate to the purpose of the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used.... Where premises are used for two or more purposes, none of which subserves the others, if any one purpose which is independent and is not incidental to the other purposes prohibited, the planning ordinance is being disobeyed. Findings 24For a building to be characterised as a "rural shed", the building must firstly, be used for the storage of the property of the occupiers associated with an agricultural use (as there is no other permissible land use), and secondly, not be used for a purpose elsewhere defined in LEP 1989. In this case, the council contends that the purpose is more appropriately characterised as a dwelling, and as such the use of the building cannot be a rural shed.. 25In considering the evidence of the town planners and with the benefit of the site inspection, I am satisfied that the building cannot be characterised as a "rural shed" for two reasons. 26First, I do not accept that the building is used for any storage associated with an agricultural use of the property. In my view, the use of the word "storage" suggests that goods or materials must be put away or kept for a future use. While Mr Sikma stated that he and his brother owned 10 or 12 head of cattle, there was no evidence of feed or any other goods or materials associated with the cattle stored in the building or even the vicinity of the building. The presence of cattle was also not observed on the cleared around the building although cattle were observed on land travelling to the site on what appeared to be the unformed Right of Carriageway and an unformed reserve road used to access the site. 27Mr Sikma also stated that he and his brother owned a "rural digger" for the clearing of wattle although this was not pointed out on the site inspection. In any event, there is no ability to use the building for the storage of the rural digger, at present, given that only steps were available from ground level to the floor of the building and access to the internal areas of the building was restricted by domestic sized doors. 28Second, 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. 29In 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. 30Given 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". 31I 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. 32In 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.

Orders 33The orders of the Court are:

The appeal is dismissed.
Development Application No. 0798/10 for the use of an existing building as a "rural shed" at 1239C Upper McDonald Road, Upper McDonald is refused.
The exhibits are returned with the exception of exhibits 1, A and B.

G T Brown Acting 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: 27 July 2012

(2007) 151 LGERA 114

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