Taylor v Bathurst Regional Council - [2012] NSWLEC 1140 - NSWLEC 2012 case summary — Zoe

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Taylor v Bathurst Regional Council

[2012] NSWLEC 1140

Land and Environment Court (NSW)|2012-04-30|Before: Mr P

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Court

Land and Environment Court (NSW)

Decision date

2012-04-30

Before

Mr P

Catchwords

DEVELOPMENT APPLICATION: change of use
10053 of 2012

Source

Original judgment source is linked above.

Catchwords

DEVELOPMENT APPLICATION: change of use10053 of 2012

Judgment (21 paragraphs)

[1]

Judgment 1COMMISSIONER: This judgment concerns two appeals lodged by Mr Taylor against decisions made by Bathurst Regional Council. The first appeal relates to council's refusal to grant consent for the use of an existing building at 2 Robertson Place Rockley as a dwelling (development application DA2010/0937). The second and related appeal is against council's refusal to issue a building certificate for works undertaken on the building at 2 Robertson Place. 2These proceedings are brought pursuant to s 97 and s 149F (respectively) of the Environmental Planning and Assessment Act 1979 (the Act).

[2]

Relevant background 3In 1990, the former Evans Shire Council approved a development application (EDA 1989/0103) for a proposed development stated as "erection of workshop and timber storage shed" with the proposed use of the building being "furniture manufacturing". The approved plans show extensions to an existing previously approved shed; the additions being a 'timber store' at the western end, a 'finishing hall' at the eastern end, and an attached annex on the northern side comprising staff lounge, toilets, office and drawing office. The factory employed up to seven people. 4The furniture manufacturing business went into liquidation. In 2004, Mr Taylor purchased the land on which the building stands (Lot 238) as well as two associated smaller lots (Lots 8 and 9). The liquidator of the furniture company issued the contract of sale. 5The contract of sale included a s 149 certificate issued by Evans Shire Council which indicates a building entitlement was available on the lot. 6Mr Taylor's evidence is that prior to his purchase of the land, the former owner used part of the building, the northern extension (staff/ office facilities) as a dwelling. 7Following his purchase of the building, and unaware of the obligation to obtain council permission, Mr Taylor carried out a number of internal extensions and alterations to enlarge the portion of the shed used as a dwelling. The internal alterations include forming up two bedrooms and a lounge room in part of the former assembly hall and finishing hall; conversion of one of the toilet areas to a laundry including an external door; reconfiguration and improvements to the kitchen established in the original staff lounge. This work also included installing additional windows and doors on a number of facades. Mr Taylor's statement notes that plumbing, electrical and plaster finishing works were undertaken by qualified tradespeople. 8After deciding to sell Lot 238, Mr Taylor was advised that he needed to obtain a building certificate in respect of the work he had undertaken. In July 2010 Mr Taylor applied for a building certificate, and in September 2010 he applied to council for a change in rating category from 'business' to residential'. Council advised Mr Taylor that the Rural 1(e) land was occupied by a 'shed' and there was no approval to occupy the shed as a dwelling. 9In December 2010, Mr Taylor lodged DA2010/0937 (the subject of this appeal) seeking development consent for a change of use of the building to a dwelling and consent to the use of the building as a dwelling. 10The details of the somewhat confusing response from council are included in the application, however, in May 2011, the council wrote to Mr Taylor and advised that " a dwelling house is not permissible on the land". A s 82A review was subsequently sought. The arguments in that submission are essentially the basis of the applicant's position in this appeal. 11In November 2011, the council reaffirmed its original determination that a dwelling house is not permissible on the land. The council requested a timeline for the conversion of the unapproved dwelling back to the intended use as a shed. The detailed reasons for refusal are the basis of the council's contentions.

[4]

The planning controls 15The original development application for the shed was approved under Interim Development Order No. 1 - Shire of Evans 1980. Bathurst Regional (Interim) Local Environmental Plan 2005 (BRILEP) repeals that instrument. 16The site is zoned 1(e) Outer Rural Zone under BRILEP. Clause 6(3) states: 6(3)Consent must not be granted to the carrying out of development within a particular zone unless the consent authority has taken the objects of the zone into account and: (a)is satisfied that the proposed development is consistent with one or more of those objects, or (b)if the proposed development is development of the kind that is identified by this plan as usually not consistent with those objects - is satisfied that, in the particular circumstances of the case, it is appropriate that the proposed development be carried out. 17The relevant zone objectives for Zone No 1 (e) Outer Rural Zone are: (1)The objectives of the zone are as follows: (a)to support and maintain the continued viability of agricultural development in rural lands located in the outer rural areas of the local government area of Bathurst Regional, (b)to enable the carrying out of development that is appropriate for broad acre productive land used for grazing and cropping, (c)to protect and conserve the scenic environment by controlling the location of buildings and materials used, particularly in respect of development adjacent to a major road or located within a scenic protection area or within an identified remnant bushland area, 18Part 5 of BRILEP relates to provisions for rural areas. Of significance in this matter is cl 28 - Dwelling-houses - rural zones. This states: (1)The consent authority must not consent to the erection of a dwelling-house within one of the zones identified in the Table to this subclause unless the lot on which the dwelling-house is proposed to be erected: (a)has an area not less than the minimum area set by the Table for a lot in that zone, and is vacant, or (b)comprises the whole of an existing holding, the area of which is less than the minimum area set by the Table for a lot in that zone, and is vacant, or (c)comprises a lot created pursuant to cl 27(4) and is used for intensive agriculture and is vacant, or (d)comprises a lot that was created in accordance with a consent granted before the appointed day, being a lot on which a dwelling-house could have been lawfully erected immediately before the appointed day, and is vacant. 19The Table for cl 28 specifies that the minimum area for an erection of a dwelling-house in Zone 1(e) is 100 ha. 20Subclauses 28(2) and 28(3) provide exceptions to 28(1). Clause 28(4) includes relevant definitions. The 'relevant dates' are well before Mr Taylor purchased the land. 'Vacant' means devoid of a dwelling house. 21The council contends that State Environmental Planning Policy (Rural Lands) (SEPP-RL) applies. Specifically, c7 - Rural Planning Principles and cl 10(3) which outlines matters to be considered when determining development applications for rural subdivisions or rural dwellings.

[6]

The hearing and the evidence 23The hearing commenced on site with an inspection of the premises and its surrounds. There were no objectors. The parties' planners, Mr Neil Kennan for the applicant and Mr Richard Denyer for the council were present as was Mr Richard Noonan, a structural engineer engaged by the applicant. 24The internal layout of the dwelling component was noted as well as the alterations to external windows and doors. Mr Noonan indicated where rectification of some components of the shed structure was required in order to comply with the approved structural drawings. It was agreed that these are relatively simple modifications and are works that should be undertaken regardless of the use of the building. 25The part of the shed not occupied by the dwelling is essentially used as a large garage. 26In regards to Mr Noonan's written statement and oral evidence, the report goes to the structural integrity of the building and its compliance with the approved plans. He notes that design loads (for wind and snow) for a residential building are similar to those for an industrial shed and therefore the frame design would be adequate for a residence. A similar finding was made for the floor slab (based on an inspection and standardised soil tests). While he accepts that a detailed inspection of some of the internal modifications could not be carried out, based on what he could inspect, he considers the shed frame and residential portions of the shed to be structurally adequate for occupation as a residence, subject to completion of the rectification works to the frame. It is noted that the report does not deal with the fire separations between the different classes of building. 27Mr Taylor gave evidence that supported his written statement and the events outlined earlier in this judgment. He stated that if required to do so, he would surrender the approval for use of the building as a factory. His uncontested written statement includes the location of other small lots nearby on which dwellings have been erected. 28Apart from agreement on a few facts, the planners had opposing views on each of the contentions. The differences are covered in the following summary of the parties' positions on each of the contentions.

[9]

Findings - Issue 1 - Building Certificate 37In Ireland 153 and Ireland 250, Bignold J considered two related appeals not entirely dissimilar to the matters before me. Those matters were an appeal against a refusal for a building certificate and the other against the council's deemed refusal of a development application for the use of the building as a farm shed. The first case dealt with questions of law and the second with the merits of each appeal. 38Of relevance, Bignold J found in Ireland153 at [104] that the issuing of a building certificate pursuant to s 149D does not have the effect of making the construction of the building lawful, rather the effects of the issue of a building certificate are those prescribed by s 149E. Council can grant consent to the use of a building the construction of which has been declared unlawful. In Ireland 250 at [38(i)] Bignold J states that the provisions of s 149A-G of the Act expressly enable a building certificate to be issued is cases, where amongst other things, the building has been found to be structurally adequate for the purpose by a suitably qualified person, so as to regularise a breach of the planning law. At [38(ii)] his Honour states that "the proper approach to be taken to the available discretion... is to leave to the criminal law, the punishment of the unlawful conduct involved in the erection of the building and to determine the present application on its merits, but taking care not to allow the wrongdoer to benefit from his wrongdoing..". 39In Dach v Kiama Council [2007] NSWLEC 316, Moore C (as he then was) at [12], [13] and [22] cites Bignold J. 12It is important to note, at this point, that, consistent with the matters discussed by Bignold J..., matters of culpability or moral turpitude for the development are not appropriate matters for my consideration in this Class of the Court's jurisdiction. 13They may, on questions of discretion, arise to be matters considered by another member of this Court in a different class of the Court's jurisdiction but are not matters appropriate to be considered in these proceedings. 22The first stage in his Honour's consideration, a process consistently followed in this jurisdiction after that decision, is to determine whether or not the structures for which a certificate is sought are structurally sound for the purpose for which they are proposed to be used or whether it is possible to render them structurally sound and sound in other respects for those purposes if they are not already in such a state. 40In the matter before me, Mr Noonan's opinion (summarised at [26] of this judgment) is that subject to some rectification works to comply with the approved structural drawings for the 1990 approved shed, the shed frame and residential portions of the shed will be considered as structurally adequate for occupation as a residence. 41The council has not put on any building evidence to counter or support Mr Noonan's opinion. The reasons given by council for the refusal of the building certificate go to the lawfulness of its use and not to a consideration of the adequacy or otherwise of the building. Council had the opportunity to deal with the unlawfulness of the modifications and or the use but at this stage has chosen not to do so. 42The Court's power in regards to appeals with respect to building certificates is found in s 149F(3) of the Act. There is no reason why I should not reach the same conclusions as Bignold J in Ireland and Moore C in Dach in that there appears to be no technical reason why council should not issue a building certificate. However, it is likely that a number of conditions will have to be imposed to ensure that all work is compliant with the BCA and any other relevant standards.

[12]

48Mr Cork for the applicant considers that the erection of a dwelling house is not prohibited in the 1(e) zone, however, he agrees that cl 28 sets conditions which should be satisfied before a dwelling house may be erected. In this regard he accepts that cl 28 is a development standard which is susceptible to a SEPP 1 objection. However, Mr Cork contends that the appeal before the Court is for a change of use of a lawfully erected building; it is not an application for the erection of a dwelling and therefore cl 28 does not apply. 49Mr Cork considers that the language of cl 28 is plain and it would be straining its intent to interpret its meaning as including "use of a dwelling house" when the clause says "erection of a dwelling house". In support of this contention he cites Jagot J in Matic v Mid-Western Regional Council [2008] NSWLEC 113 at [7]-[10]: in summary: The meaning of a provision in an environmental planning instrument must be determined having regard to its context and purpose [7]; Legislative intent, however, is not to be discerned by reference to pre-conceived ideas or vague notions of what might or might not be desirable [8]; These requirements have particular significance for the construction of environmental planning instruments. The planning purpose of an environmental planning instrument is to be determined by reference to the language of the instrument considered in context [9]; 50In this he says the context of cl 28 must be considered in relation to cl 27 - Subdivision - rural zones. Clause 27 determines the minimum areas per lot in each zone, the minimum area in zone 1(e) being 100ha. The language and layout of both clauses is complementary and clear. He submits that had the council desired to include other provisions such as "use' in the clause, it would have but it did not and it would be wrong to extend the meaning of the clause beyond the text itself. 51In Mr Cork's view, the existing development consent for the erection of the building as a shed and its use for furniture manufacturing is consistent with s 81A(1) of the Act. 52The former Evans Shire Council approved the erection of the building on land with a similar zoning to the current zoning, with a lot size less than the nominated minimum area of 100 ha. That is, in his view, the building was lawfully erected on the site. He also contends that no dwelling has been constructed from scratch, rather, part of the existing building, previously used for residential purposes, has been upgraded with an associated extension of that residential area into the void of the empty factory building. Mr Cork considers that the definition of "erection of a building" in s 4(2)(b) does not apply as the factory building has not been rebuilt, enlarged or extended. He also states that the definition of 'erect' in the Macquarie Dictionary does not include 'use' [other than "to make ready for use" in the context of Machinery]. He notes Mr Richardson's report considers that the structure of the building has not been changed. 53In regards to the lawfulness of the modifications and the use of the building as a dwelling, Mr Cork cites Preston CJ in Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99. 54In his view cl 28 has no work to do with respect to these appeals.

[14]

Issue 3 - Is the proposal contrary to the zone objectives, the objects of the Act and rural planning principles established under SEPP (Rural Lands)? 59The council's position is that the 100 ha minimum lot size specified in BRILEP is a development standard set to protect and secure agricultural land for the future and to prevent fragmentation and discourage rural residential development. In Mr Denyer's opinion, the objectives as they relate to the erection of dwelling houses operate in the same way with respect to the use of a building as a dwelling house. In his view, as the land is only 1.6 ha, it is well below the minium lot size and the application should be dismissed. 60Similarly, the council contends that objects 5(a)(i) and (ii) of the Act relate to the proper management, development and conservation of natural resources including agricultural land, and the promotion of orderly and economic use of land. 61The council's position in these respects is probably best articulated in an extract from the "Director of Environmental Planning & Building Services' Report to the Council Meeting 16/11/2011 at p 46 of that document: Even if it were the case that Clause 28 is not applicable it would remain an extremely curious state of affairs in that a person could undertake building work without consent to allow a use which would otherwise not be permissible and then rely upon those works to negate the planning rules as they apply. In that sense it could not be said that a Development Application that relies upon that premise could be consistent with the objects of the EP&A Act itself relating to orderly and economic use of the land and the objectives of the 1(e) Outer Rural Zone. In that sense consent could not and should not be given on the merits of the application. 62In regards to the Rural Planning Principles in SEPP Rural Lands, Mr Denyer considers that the development is contrary to clauses 10(2) and 10(3) of SEPP RL. This clause requires a consent authority to take into account matters such as uses of land in the vicinity, impacts of the proposal on predominant land uses and whether the proposal is incompatible with those uses when considering granting consent to subdivision of land and the erection of dwellings on rural land. 63In Mr Denyer's view, the preferred and intended use of the land in the area is for agriculture and not for residential purposes and therefore this proposal is contrary to the relevant parts of cl 10 SEPP RL.

[16]

Findings - Issue 3 67I accept the applicant's arguments in regards to this contention. Whatever the historical circumstances were, the land on the outskirts of Rockley now zoned 1(e) was subdivided into a wide range of lot sizes, many of which are less than 100 ha. Evidence of this was provided by council plans showing the number of lots less than 100 ha in size within a 2 km and a 10 km radius of Rockley. A quick visual assessment of the plans indicate that 40-50% of the 1(e) lots within a 2km radius are less than 100 ha with many in the vicinity of the site being smaller than lot 238. 68I accept the intent of the zone objectives is to maintain and support the viability of agricultural development. I also accept that cl 27 - subdivision of land and cl 28 - dwelling houses on rural lands have been formulated to maintain those objectives and to limit the proliferation of dwellings that may interfere with achieving those objectives. Similarly, while I accept that SEPP RL also aims to maintain the principal use of land, I consider it does not apply to the appeal before the Court. 69I in the circumstances of this proposal, the building and ancillary roads and landscaping were approved and constructed and therefore the potential of Lot 238 for broad acre agricultural purposes is effectively extinguished. Similarly, there will be no change to the scenic environment. Again, this is not an appeal against the refusal of a new dwelling or structure on the land. Therefore I can give very little weight to the council's arguments regarding the objectives or the zone or any significant contravention of the objects of the Act. Even if the building were to be demolished, the lot size is likely to be too small for any viable broad acre agricultural use. Likewise, an empty building contributes little to the local economy. Similarly, council did not raise any particular aspects of the scenic environment of the site that require protection or conservation. 70Therefore I find on a merit assessment that the proposal is not contrary to the zone objectives, the rural planning principles in SEPP RL, or to the objects of the Act and therefore should not be refused on this basis.

[17]

Issue 4 - Is the proposal a BASIX affected development? 71The applicant has submitted a BASIX certificate that makes a number of commitments. The experts were unable to agree as to whether the development is a BASIX affected development but agreed that if it were, the submitted plans do not sufficiently demonstrate that those commitments will be met. 72Without making a definitive finding, cl 3 of the Environmental Planning and Assessment Regulations 2000 (the Regulations) defines a BASIX affected building as "any building that contains one or more dwellings, but does not include a hotel or motel. In this regard, it is a BASIX affected building. 73Clause 3 of the Regulations defines a BASIX affected development as: BASIX affected development" means any of the following development that is not BASIX excluded development: (a)development that involves the erection (but not the relocation) of a BASIX affected building, (b) development that involves a change of building use by which a building becomes a BASIX affected building, (c)development that involves the alteration, enlargement or extension of a BASIX affected building, where the estimated construction cost of the development is: (i) $100,000 or more-in the case of development for which a development application or an application for a complying development certificate is made on or after 1 October 2006 and before 1 July 2007, or (ii) $50,000 or more-in the case of development for which a development application or an application for a complying development certificate is made on or after 1 July 2007, (d)development for the purpose of a swimming pool or spa, or combination of swimming pools and spas, that services or service only one dwelling and that has a capacity, or combined capacity, of 40,000 litres or more. 74 Whether it is a BASIX affected development is another matter. The appeal before the Court is for "use" of part of the building as a dwelling. However, the development application lodged with council is for a 'chang [sic] of use to residential building and use of' . On the face of the original application, it may be a BASIX affected development as defined in the Regulations although there is an argument that the building already contained a dwelling that was being used and therefore it may not be. Mr Taylor states on the BASIX Certificate that the renovation works are valued at $50,000 or more but it is not clear whether these works were completed after 1 July 2007 and it is not associated with an application for a complying development certificate. Therefore, it would seem that the proposal may not be BASIX affected development but this is unclear. In any event, I do not consider the issue to be determinative. 75However, notwithstanding that reasoning, the applicant has submitted a BASIX certificate that makes certain commitments and which has been found wanting. I think it is appropriate and reasonable in the circumstances to impose a condition of consent requiring those commitments to be fulfilled in order to meet the NSW government's requirements for sustainability.

[18]

Issue 5 - Would approval create an undesirable precedent? 76Council has major concerns that an approval of what Mr Denyer maintains is the erection of a dwelling house will create an undesirable precedent given the number of small-sized allotments in the Rural 1(e) zone, not only in the Rockley area but throughout the LGA. He considers this ad hoc deviation from the development standard is not acceptable. 77Further, Mr Crennan contends that a farmer could erect a shed, convert it to a dwelling and apply for use as a dwelling. This he says would have the effect of subverting cl 28 of BRILEP. In support of this contention he cites Lloyd J in Thorncraft & Anor v Bathurst Regional Council & Anor [2005] NSWLEC 571. This matter involved a SEPP 1 objection for the erection of a dwelling on 2.4 ha lot on land zoned 1(e). At [16] and [17] Lloyd J writes: 16Mr Fletcher also refers to the question of precedent. It is clear that there are many lots within a two-kilometre radius of the site which are considerably less than 100 hectares in area. These lots in most cases comprise a larger holding, but there is no reason why these could not be separately sold and become the subject of similar applications to the present. Under these circumstances the Court is of the view that the precedent effect is another factor which should be taken into account. As was noted in Goldin v Minister for Transport (2002) 121 LGERA 101 at 110, if there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration. 17This stands as a further reason for refusing the present development application. As I have said, what is proposed here is a hobby farm. It could lead to other hobby farms on the other allotments which are less than 100 hectares in area in the immediate vicinity. 78Mr Crennan submits that I should make a similar finding. 79In regards to precedent, Mr Cork cites Lloyd J in Goldin v The Minister for Transport and the Minister Administering the Waterways Legislation [2002] NSWLEC 75; [2002] 121 LGERA 101 at [34] which reads in part: 34In the present case the Senior Commissioner did not err in law by taking into consideration the fact that approval of the applications would be a precedent. That was not an irrelevant consideration. It was a relevant consideration on the facts and circumstances of the case as found by the Senior Commissioner, namely: that the proposed developments were not themselves objectionable, having as the Senior Commissioner found, an undesirable visual impact on the shoreline; and that there was more than a mere chance or possibility that there may be later undistinguishable development applications of the same class... 80Mr Cork contends that the circumstances in Goldin [a boat shed and ancillary structures] were quite different to the circumstances in this appeal. He submits that this development application is unusual in that it focuses on the use of a building that already exists and does not involve:

any disturbance of the site within Lot 238;
the erection of any new building;
any clearing of land within any of the lots; and
any change in appearance of any lots. 81In his view, the situation is unique, particularly given that the building is an existing approved structure. He also contends that the appeal is to use part of the building for the purpose of a dwelling and in essence legitimise the use to which the building was put prior to Mr Taylor's purchase of it. As previously contended, the use of the building will have no impacts on the amenity of the adjoining land and no lessening of the existing agricultural potential of the land. He argues that given these particular circumstances, the likelihood of any similar applications is remote and unlikely to 'open the floodgates' of multiple applications as contended by the council.

Taylor v Bathurst Regional Council

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