Farris v Development Consent Authority - [2017] NTSC 44

CITATION:Farris v Development Consent Authority [2017] NTSC 44
PARTIES:FARRIS, Grant Michael

v
DEVELOPMENT CONSENT AUTHORITY

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:97 of 2016 (21647180)
DELIVERED ON:  14 June 2017
DELIVERED AT:  DARWIN
HEARING DATES:  19 and 20 January 2017
JUDGMENT OF:  BARR J
CATCHWORDS:

TOWN PLANNING Dwelling house in RL (Rural Living) zone - helicopter for resident owner’s private transport - proposed helicopter related activities subsumed within permitted use as a single dwelling - alternatively, if activities are a separate use, such use is ancillary to the permitted use - consent of consent authority not required
Planning Act (NT) s 3, s 7, s 44
Northern Territory Planning Scheme cl 2.2, cl 2.9
Warringah Shire Council v Raffles and another (1979) 2 NSWLR 299; Walker v Warringah Council [1998] NSWLEC 276, followed
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157; Canterbury Municipal Council v Wallspace Advertising (Australia) Pty Ltd (1982) 47 LGRA 13; Lizzio v Ryde Municipal Council (1983) 155 CLR 211; Re Shire of Carnarvon; ex parte Humphrey and Anor [2005] WASCA 182; Boss v Manningham City Council [2005] VCAT 1048, referred to
Thaya Morgan-Phoenix v Gold Coast City Council [2007] QPELR 47, distinguished
REPRESENTATION:
Counsel:
Plaintiff:S W Henry SC
Defendant:T Anderson
Solicitors:
Plaintiff:HWL Ebsworth Lawyers
Defendant:Solicitor for the Northern Territory
Judgment category classification:    B
Judgment ID Number:  Bar1705
Number of pages:  16

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Farris v Development Consent Authority [2017] NTSC 44

No. 97 of 2016 (21647180)
BETWEEN:

GRANT MICHAEL FARRIS

Plaintiff

AND:

DEVELOPMENT CONSENT AUTHORITY

Defendant

CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 14 June 2017)
Introduction

The plaintiff is the joint owner and registered proprietor of the land and improvements situated at 1093 McMillans Road, Knuckey Lagoon, formally described as Portion 2921 Hundred of Bagot (“the property”). He has applied by originating motion for a declaration that he does not require a development permit under the Planning Act (NT) for helicopter flights to and from the property if:
1.1the flights are piloted by the plaintiff;
1.2the plaintiff is a resident at the property, and
1.3the only passengers on such flights are the plaintiff, and/or members of his family.
The property is zoned RL (Rural Living) under the Northern Territory Planning Scheme (“the Planning Scheme”). It is rectangular in shape. It has an area of 1.85 hectares (4.6 acres) with a boundary to McMillans Road of 69 metres and a depth of 269 metres. Improvements include a single dwelling and several outbuildings, one of which is a shed with dimensions of approximately 13.8 metres x 14.4 metres which the plaintiff uses as a helicopter hangar, as well as for garaging motor vehicles and some general storage. There is a sealed concrete area in front of the shed which can be used as an all-weather touchdown area for a helicopter, and also as a sealed parking…

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: [2017] NTSC 44
Decision Date: 14 June 2017

CaseChat Overview and Summary

Farris initiated legal proceedings against the Development Consent Authority, challenging the necessity of obtaining consent for helicopter-related activities on his property, which falls under the Residential Land (RL) Zone. The plaintiff argued that the proposed use of the land for helicopter activities should be considered an integral part of the permitted use of the land for a single dwelling, or alternatively, as an incidental or ancillary use that does not require consent. The court had to determine whether the proposed helicopter activities constituted a separate use from the residential purpose or if they could be considered part of the dwelling house use, which does not require consent.

The court considered the plaintiff's contention that the helicopter-related activities are part of the dwelling house use for private transport, similar to the use of a motor vehicle. The court found that the use of the land for helicopter activities would not change the essential nature of the dwelling house use and that the proposed activities should be regarded as a use of the land for the purpose of the dwelling house on the land. Therefore, the court concluded that the plaintiff's use of the land for helicopter activities did not require consent from the Development Consent Authority.

The court adopted the analysis made by Waddell J. in Warringah Shire Council v Raffles and another, which held that where land is used for the purpose of a dwelling-house, the use of some part of the land for some means of private transport necessarily constitutes a use of the land for the purpose of a dwelling-house. The court found no reason to treat the use of a helicopter for private transport differently from the use of a motor car for the same purpose.

The court dismissed the Development Consent Authority's appeal, finding that the proposed helicopter-related activities on the plaintiff's property did not require consent as they constituted a use of the land for the purpose of a dwelling house. The court considered the conditions set out in the Tribunal's decision to be appropriate to address concerns about the potential impact of the helipad on adjoining properties and the surrounding area. However, the court held that it could not impose conditions on the use of the land for helicopter-related activities if such activities were permitted in the RL Zone.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The conditions set out in [11] were in my view very appropriate, reflecting the Tribunal’s concern about the potential impact which the helipad would have on the amenity of adjoining properties and the surrounding area. However, the fact that such controls may be desirable does not resolve the issue I have to decide, nor may this Court (or the consent authority) impose conditions on the use of the land for helicopter related activities in the event that such activities are permitted in the RL Zone.Consideration of the parties’ submissions The plaintiff’s primary contention is that, in all the circumstances, the helicopter related activities from part and parcel of the ‘single dwelling’ use which is permitted without consent in the RL Zone.[7] Alternatively, if the helicopter related activities constitute a separate use, then such use is incidental and subordinate to the plaintiff’s use of the land for residential purposes. In the further alternative, the plaintiff argues that the use is an ‘ancillary use’ within the meaning of clause 2.9.1 of the Planning Scheme and hence protected from the requirement of consent because the primary use, ‘single dwelling’, does not require consent. In my opinion, the plaintiff’s primary contention is correct. The proposed helicopter related activities constitute a use of the property for the purpose of a dwelling house, for the plaintiff’s private transport. The helicopter would be used for travelling to and from work, or for recreational trips, in much the same way as a resident might use a motor vehicle. There is no distinction in principle between the use of part of the land for the proposed helicopter related activities and the use of part of the land for garaging or working on a motor vehicle or motor vehicles. Carrying on the proposed helicopter related activities would not bring about “a change in the essential nature” of the dwelling house use.[8] The use of the land would remain residential regardless of the mode of transport chosen by the plaintiff to get to and from the land. I adopt, with respect, the following analysis, made by Waddell J. in Warringah Shire Council v Raffles and another:[9] … Where land is used for the purpose of a dwelling-house, the use of some part of the land for some means of private transport seems to me necessarily to be use of the land for the purpose of a dwelling-house. The very idea of a dwelling-house presupposes that the occupants may have some means of private transport kept at hand to travel from the dwelling-house to their places of work, shops, social occasions, and other places. In the present case, I do not see any reason to treat the use by Dr Raffles of a helicopter as being, for the purpose of the application of the ordinance, different in principle from the use by him of a motor car to travel to his various places of practice and to social occasions. It should be regarded as a use of the land for the purpose of the dwelling house on the land. Accordingly, the consent of the council to the use is not required.