Dixson v Wingecarribee Shire Council - [1999] NSWLEC 105

Land and Environment Court

of New South Wales

CITATION:

DIXSON - V - WINGECARRIBEE SHIRE COUNCIL [1999] NSWLEC 105

PARTIES

Applicant: Patricia Dixson

Respondent: Wingecarribee Shire Council

NUMBER:

10301 of 1998

CORAM:

Lloyd J

KEY ISSUES:

:- "rural workers' dwelling"
Section 56A appeal - 40 hectare minimum allotment size for dwelling - whether a development standard or prohibition - whether SEPP 1 applicable

LEGISLATION CITED:

"rural workers' dwelling"
Section 56A appeal - 40 hectare minimum allotment size for dwelling - whether a development standard or prohibition - whether SEPP 1 applicable

DATES OF HEARING:

04/09/1999

DATE OF JUDGMENT DELIVERY:

05/14/1999

LEGAL REPRESENTATIVES:

Applicant: J J Bingham(s)
Solicitors: Deacons Graham & James
Respondent: P D McClellan QC
Solicitors: B Bilinsky & Co

JUDGMENT:

Contents

Para

Does the 40 hectare minimum standard apply? 5

Must the occupation of the dwelling by an agricultural worker

be long-term? 15

Does State Environmental Planning Policy No 1 apply to

subclause 13(4) of the LEP ? 22

Conclusion 36

_______________IN THE LAND AND Matter No: 10301 of 1998

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 14/05/99

PATRICIA DIXSON

Applicant

Respondent

WINGECARRIBEE SHIRE COUNCIL

JUDGMENT

HIS HONOUR:

1. This is an appeal by the respondent Council under s 56A of the Land & Environment Court Act 1979 against the decision of a Commissioner who allowed an appeal under s 97 of the Environmental Planning & Assessment Act 1979 against the refusal of a development and building application. The successful applicant cross appeals because, although obtaining the desired result, the Commissioner’s orders were said to be made for the wrong reasons. It is thus an unusual case in which neither party is happy with the Commissioner’s decision.

2. The applicant owns an allotment of land having an area of about 15 hectares at Sutton Forest. The land has been cleared for grazing. There is an existing house, a stable and outbuildings on the land. The stable is built to look like a house from the outside.

3. The applicant proposes to convert about 80% of the existing stable into a dwelling. The remaining part of the building would be used as a store. The alterations proposed are wholly internal, apart from some doors being converted into windows. The issues argued before the Commissioner were whether clause 13(4) of the Wingecarribee Local Environmental Plan 1989, which requires a minimum allotment size of 40 hectares for the erection of the dwelling, applies in this case; if so, whether an objection under State Environmental Planning Policy No 1 is well founded; and whether there are reasonable grounds to be satisfied that the dwelling will be occupied by a person working in agriculture on the property.

4. The Commissioner held that the 40 hectare minimum standard applied and in this case it was not satisfied; that the consent authority needs to be satisfied that the dwelling will be occupied on a long-term basis by an agricultural worker, which was also not satisfied in this case; but that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] NSWLEC 105
Decision Date: 14/05/1999

CaseChat Overview and Summary

Patricia Dixson applied to the Land and Environment Court of New South Wales for an appeal under Section 56A of the Land and Environment Court Act 1979 against the decision of a Commissioner who had allowed an appeal against the refusal of a development and building application. The applicant cross appeals because, although obtaining the desired result, the Commissioner's orders were said to be made for the wrong reasons. The applicant owns an allotment of land having an area of about 15 hectares at Sutton Forest, which has been cleared for grazing. The applicant proposes to convert about 80% of the existing stable into a dwelling. The issues argued before the Commissioner were whether clause 13(4) of the Wingecarribee Local Environmental Plan 1989, which requires a minimum allotment size of 40 hectares for the erection of the dwelling, applies in this case; if so, whether an objection under State Environmental Planning Policy No 1 is well founded; and whether there are reasonable grounds to be satisfied that the dwelling will be occupied by a person working in agriculture on the property. The Commissioner held that the 40 hectare minimum standard applied and in this case it was not satisfied; that the consent authority needs to be satisfied that the dwelling will be occupied on a long-term basis by an agricultural worker, which was also not satisfied in this case; but that the proposal should be approved under State Environmental Planning Policy No 1 in the special circumstance that it involves the internal alteration of part of an existing building, so that there will be no perceptible physical change to the environment. The court found that the 40 hectare minimum standard applied, that there is no need for the consent authority to be satisfied that the occupation of the dwelling by an agricultural worker will be long-term, and that State Environmental Planning Policy No 1 does not apply to subclause 13(4) of the LEP. Therefore, the appeal must be allowed and the orders of the Commissioner must be set aside.

Orders