Stivens v Cabonne Shire Council

Land and Environment Court (NSW)|2012-04-16|Before: Mr P

Mr A Seton (Respondent) Solicitors Crennan Legal (Applicant)

Marsdens Law Group (Respondent) File Number(s): 10971 of 2011

Judgment 1This is an appeal under the s97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Cabonne Shire Council (council) of a development application (2011/77) for a tourist facility and ancillary dwelling at Lot 100 DP 1031436, 1034 The Escort Way, Borenore (site).

Planning framework 3The site is identified as "Class 3" Prime Agriculture Land under the Department of Agriculture's Land Classification Map and is therefore "Prime Crop and Pasture Land" as defined in cl 5 of Cabonne Local Environmental Plan 1991 (CLEP). 4The site is zoned 7(c) Environment Protection - Water Catchments under CLEP. A tourist facility and a dwelling house are permissible with development consent as innominate uses within the 7(c) zone. 5CLEP adopts the Environmental Planning and Assessment Act Model Provisions 1980 (Model Provisions). These include the following definitions of relevance to the application: 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. dwelling-house means a building containing 1 but not more than 1 dwelling. tourist facilities means an establishment providing for holiday accommodation or recreation and may include a boat shed, boat landing facilities, camping ground, caravan park, holiday cabins, hotel, house boat, marina, motel, playground, refreshment room, water sport facilities or a club used in conjunction with any such activities. 6Clause 9(3) of CLEP provides: Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out. 7The objectives of the 7(c) zone are relevantly: .......... (c) to promote the proper management and utilisation of agricultural resources by: (i) protecting, enhancing and conserving: · agricultural land in a manner which sustains its efficient and effective agricultural production potential, · soil stability by controlling and locating development in accordance with soil capability, · forests of existing and potential commercial value for timber production, · valuable deposits of minerals, coal, petroleum and extractive materials by controlling the location of development for other purposes in order to ensure the efficient extraction of those deposits, · trees and other vegetation in environmentally sensitive areas where the conservation of the vegetation is significant to scenic amenity or natural wildlife habitat or is likely to control land degradation, · water resources for use in the public interest, · areas of significance for nature conservation, including areas with rare plants, wetlands and significant habitat, and · places and buildings of archaeological or heritage significance, including the protection of Aboriginal relics and places, (ii) preventing the unjustified development of prime crop and pasture land for purposes other than agriculture, (iii) ensuring that any allotment created for intensive agricultural purposes is potentially and physically capable, on its own, of sustaining a range of such purposes or other agricultural purposes as a commercial agricultural operation suitable to the locality, (iv) facilitating farm adjustments, (v) minimising the cost to the community of: · fragmented and isolated development of rural land, and · providing, extending and maintaining public amenities and services, and (vi) providing land for future urban development, for rural residential development and for development for other non-agricultural purposes, in accordance with the need for that development, (vii) providing for a range of rural living styles in appropriate locations within the area to which the plan applies, and (viii) encouraging the establishment of rural and related industries within the area to which the plan applies. 8The parties disagree whether the proposal is consistent with the objectives of the 7(c) zone. 9Clause 10 of CLEP provides general considerations for development within rural zones. It relevantly provides: (1) The Council shall not consent to an application to carry out development on land within Zone No 1 (a), 1 (c) or 7 (c) unless it has made an assessment, where relevant, of the effect of the carrying out of that development on: (a) the present and potential use of the land for the purposes of agriculture, ...... and the Council is satisfied that the development will not have an adverse effect on the long term use, for sustained agricultural production, of any prime crop and pasture land. 10The application is seeking consent to erect a dwelling under cl 18(2) of CLEP which provides: The Council may consent to the erection of a dwelling-house in land within Zone No 1 (a) or 7 (c) where: (a) the dwelling-house is ancillary to the use of the land for another purpose, and (b) the Council is satisfied that: (i) the land could not reasonably be used for that primary purpose without the erection of that dwelling-house, and (ii) the dwelling house is to be located so as to minimise any adverse effect on the use of the land for that primary purpose. 11The key disagreement between the parties is whether the erection of the proposed dwelling house meets the requirements in cl 18(2)(b). This is discussed later in the judgment. 12Cabonne Development Control Plan No 5 - General Rural Zones is relevant. Section 3.3 provides development requirements for dwellings, which include a setback buffer of 100m in horticulture and broad acre cropping areas (s 3.3.3). 13State Environmental Planning Policy (Rural Lands) 2008 (Rural SEPP) applies. It provides rural planning principles (cl 7) and matters to be considered in determining applications for rural subdivisions and rural dwellings (cl 10).

Background and proposal 14On 16 October 2000, Cabonne Council approved a development application (DA2001/49) for subdivision of lots 8 and 9 DP 1001514 into three lots; being lots 100, 101 and 102 in DP 1031436 (the consent). The subdivision has been registered. 15Condition 1 of the consent required that 'Development is to take place in accordance with the attached stamped plans (ref No 201/49) and documentation submitted with the application and subject to the conditions below...'. The stamped plan and a report submitted with the application prepared by Terra Consulting indicate that a further vineyard was to be planted on the site. To date this has not occurred. 16Condition 4 - Lot Design and Purpose - of the consent states: Objective To ensure the subdivision proceeds in accordance with Council's consent and that the purpose of the newly created Lots is clarified in the context of Cabonne Local Environmental Plan, 1991. Performance ... (b) Lots 100 and 102 has been approved under Clause 13 of the Cabonne Local Environmental Plan 1991 for the purpose of irrigated agriculture and a dwelling house is permissible pursuant to clause 18 of Cabonne Local Environmental Plan 1991. (c) Lot 101 has been approved under clause 12(4) of the Cabonne Local Environmental Plan 1991 and contains an existing dwelling house. 17Clause 13(1) of CLEP permits subdivision of land in the 7(c) zone into allotments which are less than 20ha if "each allotment so created will be used for the purposes of irrigated agriculture and a dwelling-house". Clause 13(2) provides: (2) The Council may consent to the subdivision only if: (a) the objectives of the relevant zone are met, and (b) the subject land is developed as a viable irrigated agricultural operation or the Council can impose suitable conditions to ensure such development is effected. 18Clause 13(3) requires the provision of information to ensure viability. In granting consent to the subdivision, Council was satisfied that lot 100 would be used for the purpose of irrigated agriculture and a dwelling house which met the criteria in cl 13(2) and (3). A further consent for the erection of a dwelling house on Lot 100 was required under cl 18(1) which provides: Subject to subclause (2), a person shall not erect a dwelling-house on vacant land within Zone No 1 (a), 1 (c) or 7 (c) unless: (a) the land has an area of 100 hectares or more (or, in the case of land within Zone No 1 (c), the land has an area of 0.4 hectares or more), or (b) the land comprises: ...... (iv) a viable intensive agricultural holding which is established either in accordance with a subdivision consent referred to in clause 13 or on an existing allotment in accordance with the requirements specified in clause 13 (2) (a) and (b), or 19An application under s 96(2) of the EPA Act to amend the consent was approved on 19 January 2001. Condition 1 of the amended consent refers to an amended stamped plan. However, council has not been able to locate the amended plan but has indicated that the changes may have arisen in response to requirements of the Roads and Traffic Authority. 20On 10 August 2010, an application was lodged to construct a dwelling house and barn on the site under clause 18(1) of CLEP. This application was subsequently withdrawn in response to advice of council officers that the house was not permissible as there had not been additional vineyard planting in accordance with the consent and therefore the site was not used for the purpose of irrigated agriculture. 21Development application (2011/77) was lodged on 23 November 2010. The development is described on the application form as "cabin, residence, B&B and barn". The Statement of Environmental Effects lodged on 31 January 2011 described the proposed development as "tourist accommodation comprising a single storey 2 bedroom self contained cabin, bed and breakfast (B&B) with ancillary residence and barn". 22On the 7 April 2011, the application was amended to be a "tourist facility and ancillary dwelling" comprising "two Cabins, a barn and ancillary dwelling". A separate access is to be constructed off The Escort Way in accordance with the requirements of the Roads and Maritime Service (RMS). The development is to be constructed in two stages. The tourist cabins and barn are to be constructed in the first stage and the dwelling is to be constructed in the second stage. 23Council refused the application on 20 April 2011. Council also refused a request for a review under s 82A of the EPA Act on 24 August 2011.

Evidence 24The Court visited the site and heard evidence from adjoining residents. The principal concern of the owner of 1090 The Escort Way (lot 101) was the proximity of the proposed tourist facility to his property. He considered a tourist development would adversely impact on his rural lifestyle, particularly noise, traffic and privacy impacts. He considered a tourist development to be incompatible with adjoining agricultural land uses and that it would result in land use conflicts. In particular, he considered that it would be a precedent for other tourist facilities. 25Another adjoining owner agreed that it would be a precedent for other applications. He stated that he would be interested in subdividing his own property and developing tourist cabins rather than use the land as an agricultural enterprise. 26The Court heard expert planning evidence from Mr L Fletcher, for the applicant, and Mr I Sinclair, for the council. 27Mr P Stivens, the joint owner of the site and the adjoining property (lot 102), explained the background to the application. He stated that both lots currently have vineyards and that planting more grapes would not be viable. A tourist facility and dwelling would provide a 'family home' as well as an income. Mrs M Stivens provided a statement which explained the proposed operation of the tourist facility and supported the information in the "Heifer Station Estate Business Plan" (Business Plan) which was provided with the original application.

Is the dwelling house permissible under Clause 18(2) of CLEP? 28The key dispute between the parties is whether the erection of a dwelling on the site is permissible under cl 18(2) of CLEP. 29In Mr Fletcher's opinion, the dwelling is ancillary to the tourist facility and is necessary for its management for the following reasons:

it would be very unusual to have any type of tourist facility without on-site management;
it would not be practicable to provide the services set out in the Business Plan without on site management;
the relative size of the dwelling house to the tourist accommodation is not indicative of their relative importance;
the land will be used for the purpose of a tourist facility, grazing and a vineyard. The dwelling is ancillary to those primary uses. 30Mr Sinclair held the contrary view that the dwelling house is not ancillary to the use of the land for a tourist facility as it is much larger than the combined size of the two cabins. In his opinion, the use of the land will be for a dwelling and the cabins are ancillary to this use. Further, the two cabins can operate without an on site manager's residence, especially such a large dwelling. He accepted that a larger facility with 4 or 5 cabins could require on site management and accommodation for the manager. In his opinion the proposal does not satisfy cl 18(2)(a) and cl 18(2)(b)(i).

Submissions 31Mr McEwen SC, for the applicant, submits that the dwelling house is ancillary to the tourist facility use. He refers to the Macquarie Dictionary definition of ancillary which states:

accessory; auxiliary
an accessory, subsidiary, or helping thing or person. 32Mr McEwen submits that the dwelling house meets this definition as it supports the use of the land for a tourist facility. The size of the house relative to the size and number of cabins does not determine whether a use is ancillary, rather it is whether the dwelling is an accessory or subsidiary of the tourist facility use. In Mr McEwen's submission, the proposal meets the criterion in cl 18(2)(a). 33Mr McEwen submits that the tourist facility could not be reasonably used without the dwelling. The on site dwelling will accommodate the manager of the tourist facility. As set out in the Business Plan and Mrs Stivens' Statement, the manager will coordinate activities such as meeting and greeting guests, access to keys, complimentary transport, provide hampers and tours. It is not reasonable for these functions and activities to be coordinated off site. In Mr McEwen's submission, the proposal meets the criterion in cl 18(2)(b)(i). 34Mr Seton, for the council, submits that the question of whether a use is "ancillary" is one of fact and degree. He submits that the facts in this case are: The dwelling house is self contained and no facilities are shared with the tourist accommodation;

The dwelling house is capable of operating separately and independently of the tourist facility;
The size of the dwelling is considerably larger than the cabins. 35Mr Seton submits that the concept of "ancillary" in planning terms means that the dwelling should be subsidiary or a necessary adjunct to the tourist facility. In Mr Seton's submission, there is nothing, which indicates that the other tourist operations referred to in the Business Plan have a manager's residence, or that this is necessary for the operation of tourist facility as set out in Mrs Stivens' Statement. All the services and activities can be managed through an office or a mobile phone. 36Further, Mr Seton submits that the scale of the dwelling relative to that of the tourist facility does not support the conclusion that it is "ancillary". At best the use of the land can be characterised as a "tourist facility" and as a "dwelling". 37To support his submission, Mr Seton referred to the decision of Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114 where Preston CJ states at [45] "the characterisation of the purpose of development must also be done in a common sense and practical way". 38In Mr Seton's submission, the proposed dwelling is not ancillary to the tourist facility and does not meet the criterion in cl 18(2)(a). The land could reasonably be used for tourist accommodation without the dwelling and therefore does not meet the criterion in cl 18(2)(b)(ii).

Findings 39Clause 18(1) of CLEP provides that a dwelling house may only be constructed on vacant land in the 7(c) zone in certain circumstances, including the land having an area of 100 ha or more (cl 18(1)(a)) or being a viable intensive agricultural holding (cl 18(1)(b)(iv)). The application is not made under cl 18(1). 40The application is made under cl 18(2) of CLEP which provides that council may consent to the erection of a dwelling house in the 7(c) zone where: (i)the dwelling house is ancillary to the use of the land for another purpose (cl 18(2)(a)); and (ii)the land could not reasonably be used for that primary purpose without the erection of a dwelling (cl 18(2)(b)(i)); and (iii)the dwelling house is located to minimise any adverse effect on the primary purpose (cl 18(2)(b)(ii)); 41The parties disagree whether the dwelling is ancillary to the tourist facility and whether the land could not reasonably be used for tourist accommodation without the dwelling. They did not raise an issue with the location of the dwelling and any adverse effect on the tourist facility. 42I accept the evidence of Mr Sinclair and Mr Seton's submission. The development application seeks approval for a "tourist facility and ancillary dwelling". Both uses are permissible within the 7(c) zone. However, under cl 18(2)(a), consent for the erection of a dwelling house can only be granted if it is ancillary to the use of the land for another purpose. In this case, the other purpose is a tourist facility being a separate self contained cabin (Cabin 1) and a self contained cabin within the dwelling house (Cabin 2). 43For consent to be granted to the dwelling house there must also be satisfaction under cl 18(2)(b)(i) that the land could not reasonably be used for the "primary purpose" ie a tourist facility without the erection of the dwelling. These two tests are intertwined and are a question of the fact and degree. 44The proposal comprises a three bedroom single storey dwelling house with an area of about 200 sqm (including an office). Cabin 2 is part of the eastern wing of the dwelling. It is accessed off a verandah which connects the garage, cellar and laundry to the dwelling. Cabin 2 comprises a bedroom with a kitchenette and ensuite. It has an area of about 20sqm. Cabin 1 is located to the south of the proposed dwelling near the adjoining house on lot 101. It has two bedrooms (one with ensuite), a kitchen, dining and living area with a total area of about 70 sqm. A barn is located near the dwelling. 45The two cabins are self contained and can operate independently of the dwelling house. The staging in the development application proposes that the tourist cabins and barn are to be constructed in the first stage and the dwelling is to be constructed in the second stage. Although, it is hard to understand how Cabin 2 could be built prior to the dwelling as it forms part of the structure of the dwelling. Cabin 2 has limited living area and appears to be more of the nature of B&B type accommodation, which would be ancillary to the dwelling. 46The dwelling house is also self contained and can operate independently of the cabins. The dwelling house and the cabins have no shared facilities, other than perhaps the laundry in the dwelling house which may also be used by the occupants of the cabins. 47The Business Plan and the Statement of Mrs Stivens outline the facilities and services that are to be provided by the manager. It is not essential that the manager live on site for this to occur. The services and facilities for two cabins could reasonably be provided by an off site manager via a mobile or with an office onsite. 48The scale of the tourist facility is small with only two cabins which would not require a significant amount of management. The size of the cabins is also small in relation to that of the dwelling house. 49In considering these facts, I do not accept that the dwelling house is an accessory or subsidiary to the tourist accommodation. It is therefore not ancillary to the use of the land for the purpose of a tourist facility. I am also not satisfied that the land could not reasonable be used for the purpose of providing tourist accommodation without the erection of a dwelling. For these reasons, consent to the erection of a dwelling on the land cannot be granted under cl 18(2)(a) and cl 18(2)(b)(i) of CLEP and the appeal must therefore fail.

Other issues 50The parties also did not agree whether the proposal was consistent with the objectives of the 7(c) zone and met the requirements of cl 10(1)(a) of CLEP. As the proposal fails on other grounds it is not necessary for me to adjudicate on these matters.

Order 1.The appeal is dismissed. 2.The development application for a tourist facility and ancillary dwelling at Lot 100 DP 1031436, 1034 The Escort Way, Borenore, is refused. 3.The exhibits, except Exhibits 1 and B, may be returned Annelise Tuor 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: 19 June 2012

At a glance

Court

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Before

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Judgment (13 paragraphs)

Parties

Cases Cited (1)