Townsend v Lake Macquarie City Council

The Applicant suggested that the relevant facts should also include the facts recorded in paragraphs 7 to 14 (inclusive) of the Statement (Exhibit A) most of which relate to the content and operation of a draft LEP Amendment (No 180) which exclusively applies to the subject land and rezones it in part Residential 2(a) and in part Environment Protection (Scenic) No 7(a).

It is to be noted that one of the reasons for the Council's determination refusing development consent was that the proposed development "was not consistent with draft Amendment No 180".

The Council contended that the content and operation of the draft LEP Amendment was relevant if the case proceeds to a determination of the planning merits but that it is not relevant to the determination of the preliminary questions of law.

Although this submission may be accepted, it nonetheless remains the fact that the anticipated making of LEP Amendment (No 180) substantially has informed the Applicant's future intentions in respect of the use of the existing dwelling-house - both the immediate future if consent is granted for the new dwelling-house in which event the existing dwelling-house will be "decommissioned" so that it cannot function as a dwelling-house (eg by removal of the kitchen, bathroom and laundry facilities) and the longer term future if and when the rezoning of the subject land is effected by LEP Amendment (No 180) coming into force when consent would be sought for the recommissioning of the decommissioned dwelling-house so that it might once again function and be used as a dwelling-house.

To this end, I consider that the following additional facts (suggested in the Applicant's version of relevant facts, but not agreed in by the Council) be included in the summary of relevant facts: 10. The applicant is willing to accept, and the Court has power to impose, conditions of consent which make the existing building not capable of occupation or use as a domicile. In addition to removal of cooking facilities, the Applicant would also accept conditions requiring: 10.1 Removal of laundry facilities; 10.2 Board up all entry doors; 10.3 Disconnection of water and electricity services, to the existing building. 11. The applicant is willing to carry out the works in paragraph 10 prior to occupation o the proposed new dwelling-house. C. THE COMPETING ARGUMENTS

It will be readily appreciated from the summary of the relevant facts that the real dispute between the parties focuses on the legal effect of the Applicant's intention and proposal to decommission the existing dwelling-house in the event of consent being obtained for the new dwelling-house so that the prohibition indisputably created by the relevant provisions of the LEP on there co-existing on the subject land more than one dwelling-house is not infringed. For the purposes of determining the preliminary questions of law, I have necessarily assumed that the existing dwelling-house can be relevantly decommissioned in the manner proposed by the Applicant.

The Council's arguments may be summarised as follows:

(i) The proposed development is for the erection of a new dwelling-house on the subject land upon which is already erected the existing dwelling-house. Accordingly, the end physical outcome of consent being granted to the proposed development would be the existence on the subject land of two dwelling-houses which is a result expressly forbidden by the LEP - either because that outcome would constitute development for the defined prohibited purpose of "dual-occupancy - detached" or be in direct contravention of cl 13(4) of the LEP. (ii) The Applicant's attempt to avoid such a physical outcome (ie two dwelling-houses co-existing on the subject land) with the inevitable legal consequence of violation of the relevant provisions of the LEP, by her intended action to "decommission" the existing dwelling-house must be held to fail for two separate reasons. Firstly, because even in its decommissioned state it is properly to be characterised for planning purposes as a dwelling-house see Wyong Shire Council v Ardi Pty Limited (2000) 112 LGERA 85; Lonergan v Byron Shire Council (2000) NSWLEC 21. Secondly, (and separately) because it is not possible for the Applicant, by submitting to the imposition of conditions of development consent, to change or modify the true and proper characterisation of the development: see Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGERA 186, Westport Marina Developments Pty Ltd v Concord Council (2000) 109 LGERA 451 and Hopkins v Tweed Shire Council (2001) 113 LGERA 406.

The Applicant's competing argument may be summarised as follows:

(i) It is accepted that conformably to the relevant provisions of the LEP, development consent for the new dwelling cannot be granted if the ensuing result were the co-existence on the subject land (in its currently unsubdivided condition) of two detached dwellings or two dwelling-houses.

(ii) The question of the permissibility of the proposed development is raised by the relevant provisions of the LEP, not at the time of determining the development application, but at the time if and when any consent granted for the new dwelling-house is implemented (ie by the coming into existence on the subject land of the new dwelling-house).

(iii) Provided that any development consent granted for the new dwelling-house ensures that there exists on the subject land only one dwelling-house (the new dwelling) (eg by imposition of a relevant condition requiring the decommissioning of the existing dwelling-house so that it no longer has the functioning capability of a dwelling), the proposed development is for a permissible purpose.

(iv) The crucial question is whether, as a matter of law, the old building can be decommissioned so that what remains of the existing dwelling-house following action to decommission it, is not properly characterised as a dwelling or dwelling-house.

(v) The proposed decommissioning action (by way of the physical removal of kitchen, bathroom and laundry facilities and any additional action thought necessary eg disconnection of water and electricity services) will result in the decommissioned building being incapable of reasonable characterisation for planning purposes, as a dwelling. That decommissioning action will have the effect of so adapting the building as to render it incapable of being occupied or used as a separate domicile.

(vi) The contemplated decommissioning action need only be taken immediately prior to the issue of an occupation certificate for the new dwelling (so that the existing dwelling-house may continue to be used prior to the completion and occupation of the new dwelling-house).

In my opinion, the Applicant's submissions should be accepted in preference to the Council's competing submissions for the reason that the relevant provisions of the LEP which prohibit the result of there co-existing on the same allotment of land two (or more) dwellings or dwelling-houses will not be infringed or violated in the present case. This is because the decommissioning of the existing dwelling-house will have the effect, both in fact and in law, of it (in its decommissioned condition) not falling within the planning purpose definitions of "dwelling" or "dwelling-house".

This is because the absence of kitchen, bathroom, laundry facilities (by virtue of their removal from the existing dwelling-house) will necessarily have the effect of taking what remains of the existing building outside the ambit of the definition of "dwelling" adopted by the LEP and relevant to the provisions of the LEP relevant to this case. This is because the decommissioned existing dwelling-house will not be "so constructed or adapted as to capable of being occupied as a separate domicile" by virtue of the absence of kitchen, bathroom and laundry facilities. (There is no question raised in the present case but that it is intended that the decommissioned dwelling-house will not be "occupied or used….as a separate domicile").

With respect to Council's reliance upon the decision of Pearlman CJ in Ardi to support the Council's argument that even following the decommissioning of the existing dwelling-house it would nonetheless remain properly characterised as a "dwelling" because it would be capable of being occupied or used as a separate domicile, I do not think that either the decision or reasoning in Ardi supports the argument.

It is true that on the facts in Ardi one of the units held by her Honour to be a "dwelling" did not have cooking facilities (see par 9). However, it had its own bathroom (see par 19). Her Honour concluded (par 19) that the physical layout of each unit was "a separate and more or less self-contained domestic establishment" and was "so constructed or adapted as to be capable of being occupied or used as a separate domicile".

But as her Honour had earlier noted (par 18) it was a question of fact as to whether "a particular building falls within the definition properly construed" and it was for that reason that she found "no assistance" from her earlier decision in Carmont v Ballina Shire Council (unreported 7 August 1998) where she had held that an approved building (but not yet constructed) was not capable of being used or occupied as a separate domicile.

In short, the decision in Ardi does not establish any principle of planning law or construction, but is best understood as an ultimate finding of fact deduced by applying the settled planning principles concerning the proper characterisation of development to the primary facts (in that case concerning the physical attributes of the building and the nature of the use and occupation that had been, or was being, made of that building).

Similarly, the Council's reliance upon Pearlman CJ's decision in Lonergan does not, in my opinion, support the Council's argument that since the decommissioned existing dwelling-house could be so reconstructed and re-adapted as to be capable of being occupied or used as a separate domicile, it thereby fell within the statutory definition of "dwelling". To the contrary, her Honour at par 18 held that the Commissioner's finding that the building was capable of being occupied or used on a permanent basis for residential accommodation was based upon the existing state of the structure and not upon any modification or adaptation that may be made to that structure.

In my opinion, it is abundantly clear from the express terms of the statutory definition of "dwelling" that the "capability" of a building to be "occupied or used as a separate domicile" is referable to the existing state of the construction and adaptation of the building and not to some other future possible state of construction or adaptation of that building. It is a modern day truism that most building types are capable of being re-constructed or re-adapted to some other type of building (eg a warehouse or industrial building being re-constructed or re-adapted for residential usage is nowadays commonplace).

Finally, I would emphatically reject the Council's argument that the proposed legal means of ensuring the decommissioning of existing dwelling-house (namely by way of the imposition of appropriate conditions of development consent) involves a violation of a long line of judicial authority in this Court originating with the decision of Stein J in Drummoyne Municipal Council v The Maritime Services Board.

That line of authority is directed to promote the provisions of the Environmental Planning and Assessment Act requiring environmental assessment of various types of applications to carry out development which applications are required to be supported by either an environmental impact statement or a species impact statement, by insisting that the requisite processes of environmental impact assessment be not by-passed or defeated simply by modifying the proposed development by imposing conditions on any development consent that may be granted designed to mitigate adverse environmental impact.

This scenario is far removed from the legal or factual background to the present development application which proposes a new dwelling-house to be erected on the subject land on condition that the existing dwelling-house be effectively decommissioned so as to legitimately avoid the relevant statutory prohibition created by the LEP on there co-existing on the same allotment of land two or more detached dwellings or dwelling-houses.

There is nothing contrary to principle in the selection of the means proposed by the Applicant to eliminate the co-existence of two dwelling-houses on the same allotment. Indeed, it is difficult to conceive of a more direct and effective means to achieve that end, consistent with the Applicant's legitimate desire to retain the decommissioned existing dwelling-house after the new dwelling-house comes into existence.

For all of the foregoing reasons, I determine both questions of law in the negative.

1. The preliminary questions of law are determined as follows: Question 1. Whether the proposed development is properly characterised as development for the purpose of " dual occupancy - detached" being a prohibited purpose within the Rural 1(a) Zone created by the Lake Macquarie Local Environmental Plan 1984 (the LEP). Answer: No, provided that the existing dwelling-house is relevantly decommissioned prior to the new dwelling-house coming into existence. Question 2 Whether the provisions of cl 13(4) of the LEP operate to prohibit the proposed development. Answer: No, provided that the existing dwelling-house is relevantly decommissioned prior to the new dwelling-house coming into existence.

2. The parties have leave to obtain a hearing date for the hearing of the proceedings on the planning merits.

3. Exhibits are to remain on the Court file.
4. Question of costs reserved.

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