Clearihan v Cooma-Monaro Shire Council
[2013] NSWLEC 1120
•08 July 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Clearihan & Anor v Cooma-Monaro Shire Council [2013] NSWLEC 1120 Hearing dates: 24 June 2013 Decision date: 08 July 2013 Jurisdiction: Class 1 Before: Morris C Decision: Appeal dismissed
Catchwords: Orders, whether development is exempt development, demolition Legislation Cited: Cooma-Monaro Local Environmental Plan 1999 - (Rural)
Environmental Planning and Assessment Act 1979;
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008;Cases Cited: Clearihan and Anor v Cooma - Monaro Shire Council [2011] NSWLEC 1155 Texts Cited: Building Code of Australia Category: Principal judgment Parties: Christopher Clearihan
Cooma-Monaro Shire Council (Respondent)
Cheryl Love (Applicants)Representation: Solicitors
Mr Alan Bradbury
Mr John Last (Applicant)
Bradley Allen Love Lawyers (Respondent)
File Number(s): 10220 of 2013
Judgment
Cooma-Monaro Shire Council has issued Orders to Mr Clearihan and Ms Love (applicants), owners of land known as Lot C PD 334335 Monaro Highway, Michelago, requiring the removal of a storage structure erected on that land. The applicants have appealed the provisions of that Order under s121ZK(1) of the Environmental Planning and Assessment Act 1979 (EPAAct) and are seeking that the Court revoke the Order.
The site and its context
The site is located on the western side of the Monaro Highway in a rural area approximately 9.5k to the south of the township of Michelago. It has an area of 86.6ha and is primarily vacant land with a small portion of the site leased for share farming. A private airstrip is also located on the site.
Background
The owners of the land have erected a prefabricated structure on the land. That structure comprises three shipping containers arranged in a U-shape with a curved, steel-framed roof section covered with canvas. It has no floor.
The structure is located approximately 150m from the southern and 500m from the western boundaries of the site. It comprises three containers, each with dimensions of 12.19m x 2.43m. These are arranged in a U-shape. A curved steel frame is connected to the two side containers and that frame has been covered with canvas. The structure occupies an area of 210.26sqm.
In 2011, consent orders were issued by this Court for the development of a private airstrip and storage facility on the site, see Clearihan and Anor v Cooma - Monaro Shire Council [2011] NSWLEC 1155. The airstrip has been constructed however, none of the sheds authorised by that consent have been erected. The site of those sheds was identified by the owner as an area currently used as a gravel stockpile. It is common ground that the structure the subject of these proceedings is not the storage facility approved by the Court.
The council issued a Notice of Intention to Issue an Order No. 2 under s121B of the EPAAct on 4 February 2013. The applicants made representations to the council in response to that notice however, the council issued Order No 2 on 22 February 2013. The Order requires "that you remove the storage structure erected at the property which comprises of shipping containers with a steel frame roof structure, within 28 days of this Order".
It is the council's position that the structure requires development consent and that consent has not been obtained and that there is no evidence that the building is structurally sound.
The applicant says the development is a farm shed and is Exempt Development in accordance with the provisions of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP2008).
The planning controls
The site is zoned 1(a) (Rural Zone) under the Cooma-Monaro Local Environmental Plan 1999 - (Rural) (LEP). Under the 1(a) land use table, the only development permitted without development consent is agriculture (except use of intensive animal establishments), bushfire hazard reduction and home businesses. A farm shed is a form of development that would require development consent in the 1(a) zone under the LEP.
SEPP2008 provides for certain forms of development to be erected without development consent provided that the provisions of that policy are satisfied. Clause 1.15 sets out what development is exempt development and states:
(1) Development that is specified in an exempt development code that meets the standards specified for that development and that complies with the requirements of this Division for exempt development is exempt development for the purposes of this Policy.
(2) For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out.
Clause 1.16 sets out general requirements for exempt development and, relevant to the application requires:
(1) To be exempt development for the purposes of this Policy, the development:
(a) must meet the relevant deemed-to-satisfy provisions of the Building Code of Australia, or if there are no such relevant provisions, must be structurally adequate, and
(b) must not, if it relates to an existing building, cause the building to contravene the Building Code of Australia, and.....
(3) To be exempt development for the purposes of this Policy, the development must:
(a) be installed in accordance with the manufacturer's specifications, if applicable, and
Subdivision 16 of SEPP2008 applies to Farm Buildings and Structures. For the purposes of that subdivision, specified development is:
The construction or installation of a farm building or other structure used for the purpose of an agricultural activity is development specified for this code if it is:
(a) constructed or installed on land in Zone RU1, RU2, RU3 or RU4, and
(b) not constructed or installed on or in a heritage item or a draft heritage item.
The 1(a) zone has been deemed to be a zone equivalent to the RU1 - Primary Production Zone in accordance with the certification required under clause 1.6(3) of SEPP2008.
The development standards for farm buildings and structures are contained in clause 2.32 as follows:
(1) The standards specified for that development are that the development must:
(a) be not higher than 7m above ground level (existing), and
(b) not have an area of more than:
(i) if it is a stockyard-0.5ha, or
(ii) if it is any other building or structure-200m2, and
(c) be located at least 20m from the primary road frontage of the lot and at least 10m from the other lot boundaries, and
(d) not be constructed or installed within 50m of a dwelling on an adjoining property, and
(e) be located at least 50m from a waterbody (natural), and
(f) to the extent it is comprised of metal components-be designed by, and constructed in accordance with the specifications of, a professional engineer, and
(g) to the extent it is a silo-not be fitted with a motorised fan for aeration or drying purposes.
(2) If the development is a shipping container, there must not be more than 1 shipping container per lot.
For the purposes of SEPP2008, a farm building means:
a structure the use of which is ancillary to an agricultural use of the landholding on which it is situated and includes a hay shed, stock holding yard, machinery shed, shearing shed, silo, storage tank, outbuilding or the like, but does not include a dwelling.
The issues
The contentions in the case are whether the development is exempt development and whether allowing the appeal is in the public interest.
It is necessary for the Court to determine whether the Order is appropriate or, in accordance with the options available under s121ZA of the EPAAct, the Court may:
(a) revoke the order, or
(b) modify the order, or
(c) substitute for the order any other order that the person who gave the order could have made, or
(d) find that the order is sufficiently complied with, or
(e) make such order with respect to compliance with the order as the Court thinks fit, or
(f) make any other order with respect to the order as the Court thinks fit.
The evidence
Evidence was heard from Ms Cheryl Love, one of the applicants and Mr Kenneth Pitt, the sharefarmer, both of whom had sworn affidavits in the proceedings.
Ms Love advised the property had been purchased in 2010 for the purpose of using it for farming and recreation purposes and the applicants have entered into a share farming agreement with Mr Pitt. Attached to her affidavit of 6 June 2013 are brochures of structures similar to that the subject of the appeal and sold by a company Allshelter as alternative storage solutions and weather protection systems. A design check certification of structural sufficiency by John Skurr, consulting engineer was also attached. That certificate indicated that he had checked the structural design of the building. Drawings prepared by Mr Skurr for a curved structure 15.6m wide and 6.22m high (Drawing U1A) and another 14.838m wide and 6.22m high incorporating two side containers (Drawing No U2) were also attached. An email from Mr Skurr to Mr Peter Smith from the council indicated that he had completed a structural design and envisaged the need for a foundation classification to AS2870 and a structural inspection and sign off on completion.
Ms Love considered the plans attached show that the building as erected would be structurally adequate when completed and conceded that what was seen on the site view was an incomplete structure. She said the equipment stored in the structure is used on the farm and, in addition, comprises household goods that they will use when they move to the site.
Mr Pitt confirmed that he used part of the site to grow peas and, during the site view, showed the Court the area where he was currently harvesting potatoes. He confirmed that he utilises farm equipment that he owns and also equipment owned by the applicants, which is, at times, stored within the subject structure.
Expert evidence was heard from Mr Peter Smith, the council's Director of Environmental Services. Mr Smith is a council accredited certifier, health and building surveyor and also holds management qualifications. He prepared a statement of evidence, Exhibit 2 in the proceedings.
Mr Smith says that the structure is not exempt development because it does not meet the development standards set out in clause 2.32 of SEPP2008. In particular, he says the area of the structure is greater than 200sqm, there is no evidence that the structure has been constructed in accordance with the specifications or the structural design of Mr Skurr and it comprises three shipping containers. His evidence detailed the variations between the structure as viewed on site and the design prepared by Mr Skurr, in particular drawings U1A and U2 (exhibit B).
Conclusions and findings
The differences between the parties are whether the structure would be exempt development. Mr Last, for the applicants says that the Court can apply its discretion and vary the orders as anticipated in s121ZK. He submitted that the development standards for exempt development could be varied and that it is open to the Court to modify the order. No alternate orders were proposed.
Having regard to the evidence and viewed the structure, it is not a structure that would satisfy the development standards to be exempt development for the purposes of SEPP2008. It exceeds the maximum area, comprises more than one shipping container and it has not been constructed in accordance with the structural engineering design. The Court does not have any discretion to vary the development standards contained in SEPP2008. A development either meets the controls and is exempt or it does not and consent is required. In this case, the development cannot be exempt development. Accordingly development consent is required and a proper merit assessment of the impacts of the work should be undertaken pursuant to s79C of the EPAAct. No such assessment has occurred.
Having found that the development is a development that requires consent, I now need to consider whether any of the alternatives available to the Court under s121ZK(4) of the EPAAct should be exercised.
I have no evidence that the structure is structurally adequate. I have no details of the extent of works that would be required to make the building structurally adequate. I have no details of whether the structure can be modified so as to comply with Mr Skurr's design. I have no evidence that the structure complies or could be made to comply with the Building Code of Australia (BCA). The only evidence is that the structure has not been erected in accordance with either of the designs prepared by Mr Skurr and that considerable modification of the structure would be required. I do not have any evidence that the building would comply with the deemed-to-satisfy provisions of the BCA. Accordingly, it is not appropriate to exercise any discretion under s12ZK and the application must fail.
The Orders of the Court are:
(1) The appeal is dismissed.
(2) The Orders made by Cooma-Monaro Shire Council on 22 February 2013 that require the removal of the storage structure erected at Lot C DP 334335 Monaro Highway within 28 days are confirmed.
(3) The exhibits, other than exhibits A, E and 2 may be returned.
____________________
Sue Morris
Commissioner of the Court
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Decision last updated: 09 July 2013
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