Farris v Development Consent Authority
[2017] NTSC 44
•14 June 2017
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 2.9Warringah 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 DARWINFarris 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 area for motor vehicles.
The plaintiff has a licence to fly helicopters. His intention is to fly a helicopter to and from the property, for social and recreational purposes and also to visit any pastoral property or properties he may own.[1]
It was clarified in cross-examination of the plaintiff that the only helicopters in which he presently has an interest, direct or indirect, are a Robinson R44 Raven Helicopter, which belongs to Bullo River Pastoral Company, and which may be retained by the plaintiff when that company is dissolved, and a Eurocoptor AS350 Écureuil (referred to in evidence as “the Squirrel”), a light utility helicopter which the plaintiff has flown frequently in the past and intends to fly in future.
The plaintiff’s proposed use of the property for “helicopter related activities” would involve not only flying onto and away from the land by helicopter, that is, use of the land as a landing place and take-off place for a helicopter, but also use of the property for garaging or storing a helicopter or helicopters, as well as for refuelling and carrying out some helicopter maintenance.
In addition to keeping his helicopter or helicopters on the property, the plaintiff said he would “more than likely” store fuel onsite, in the same shed in which the helicopter or helicopters are kept. He said in evidence that he would keep 500 litres of fuel in 44 gallon drums. That is about three 44 gallon drums of fuel. The plaintiff would meet any further fuel requirements by purchasing from a named supplier in a nearby industrial area.
Zoning and development control of the property
The Planning Scheme requires that land within a zone be used or developed only in accordance with the Planning Act and the Planning Scheme.[2] Sub-clauses 2 and 4 of clause 2.2 are of particular relevance:
2.2Permitted, Self Assessable, Discretionary and Prohibited Development
2.A use or development of land within a zone is permitted without consent if the use or development:
(a)is shown on the relevant zoning table as permitted; and
(b)complies with all the provisions of this Planning Scheme relating to that use or development in the zone.
4.A use or development of land within a zone requires consent if any of the following apply in relation to the use or development:
(a)it is shown on the relevant zoning table as discretionary;
(b)subject to sub-clause 5, it is not shown on the relevant zoning table;
(c)it does not comply with all the provisions of this Planning Scheme relating to that use or development within the zone; or
(d)a provision of this Planning Scheme expressly requires consent.
I also set out Clause 2.9, which I will refer to and discuss further in [25] – [31] below:
2.9 Ancillary Use and Development
1.Where a use or development of land is permitted without consent, an ancillary use or development which would require consent if proposed as the primary use or development, is also permitted without consent provided it complies with the provisions of the clauses (if any) specified opposite the use or development in the relevant zoning table.
2.Where the ancillary use or development of land would be prohibited if proposed as the primary use or development, the ancillary use or development is permitted only with consent.
As mentioned in [2], the property is zoned RL (Rural Living) under the Planning Scheme.[3] The stated primary purpose of the zone is “to provide for low-density rural living and a range of rural land uses including agriculture and horticulture”. The zoning table for the RL zone shows ‘single dwelling’ as a permitted use or development of land in the zone, and therefore the consent of the Development Consent Authority is not required under s 44(a) Planning Act to the establishment of that use.
The Planning Scheme (and that includes the zoning table for the RL zone) does not mention any of the “helicopter related activities” described in [5] and [6] above. The issue in brief, therefore, is whether those activities are subsumed within the ‘single dwelling’ permitted use, not requiring consent, or whether they constitute a discretionary use requiring consent, being a use “not shown on the relevant zoning table” (an ‘innominate use’).[4]
The declaratory relief sought by the plaintiff does not place this Court in the position of a consent authority. The Court’s role is only to decide whether the helicopter related activities described in [3], [5] and [6], and subject to the self-imposed restrictions set out in [1], constitute a ‘development’ (that is, the establishment of, or change in, the use of the land[5]) for which consent is required. Counsel for the defendant referred in submissions to the decision of the Victorian Civil and Administrative Tribunal in Boss v Manningham City Council [6] in which a permit was granted to the applicant to use and develop land for a helipad (private use), subject to a number of significant conditions, some of which were as follows: take-offs and landings from and to the permitted helipad were required to follow designated flight paths on a plan endorsed by the Tribunal; aircraft using the helipad were not to fly below 305 m (1000 feet) within five kilometres of the helipad; the helipad was not to be used more than five times per week and no more than once on any day, with a maximum of one flight to the land and one flight from the land per day; flights were not to take place before sunrise or after sunset; the helipad had to be used by the owner of the land in association with the residential use of the property except in the case of emergencies, so that the land could not be used for commercial charter operations including scenic or joy flights; the helicopter using the helipad was specified; the operations were required to comply with the Environment Protection Authority Noise Control Guidelines, and dust minimisation measures were to be put in place.
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.
The facts in Warringah Shire Council v Raffles were indistinguishable in most respects from the facts in the present case. Dr Raffles was a radiologist who lived on a one-acre property in outer suburban Ingleside. He used a helicopter to travel from his home to his medical practices at Bankstown, Liverpool and Richmond. He also used it for social purposes, for example, visiting friends in the country and going on trout fishing expeditions. The helicopter could carry a pilot and two other persons.
Counsel for the defendant acknowledges that the authorities diverge on the question of whether helicopters are “really no different to motor vehicles when used to access residential property for purely personal purposes”.[10] In response to the plaintiff’s reliance on Warringah Shire Council v Raffles, the defendant relies on the decision of the Queensland Planning and Environment Court in Thaya Morgan-Phoenix v Gold Coast City Council,[11] in which Wilson DCJ made the following observations:
It was submitted, and I accept as a matter of common knowledge, that helicopter use in association with residential premises is very rare, and different in character and impact from ordinary residential uses. Indeed, the question whether a helicopter is an ordinary residential use need only be asked, to be denied. I have the misfortune to disagree, with respect, with Waddell J’s conclusion that there is no difference in principle between helicopters and motor vehicles. One is a universal, popular mode of domestic transport and movement which is usually, or in the most part, quiet and unintrusive; the other is rare and, on any view, noisy and, in a domestic setting, potentially intrusive and disruptive. Adopting the contemporary, purposive approach to statutory interpretation, it is highly improbable that legislation was intended to encompass and protect it.
While it is true that home helicopter ownership and use is rare, I do not agree that helicopter use is necessarily different in impact from so-called “ordinary residential uses” in the context of the Knuckey Lagoon rural (or semi-rural) area. It is a question of fact and degree. A noisy truck or piece of agricultural equipment may make more noise, and cause greater and more prolonged disruption of semi-rural serenity, than a helicopter taking off and landing several times a week. The flies and vermin attracted by domestic livestock may adversely affect neighbouring residential amenity far more than the occasional helicopter operation. I do not consider that the views expressed by Judge Wilson, directed as they are to the notion of “ordinary residential use”, are necessarily applicable to the Knuckey Lagoon area.
Moreover, the comments of Judge Wilson extracted in [17] were made in the context of legislation very different to the legislative and regulatory scheme which applies in the present case. In order for the applicant in Morgan-Phoenix to establish that the helicopter use was incidental to the residential use of the property, she had to establish that the use was “incidental to and necessarily associated with the use of the premises”.[12] This required the applicant to establish “some inevitable or unavoidable connection” between the new activity and the primary or original use in order that the new activity might be categorised as ‘necessarily associated with’ the primary or original use.[13] No such requirement is imposed by the Planning Act (NT) or the Planning Scheme.
I make a final point in relation to the plaintiff’s primary contention. If, as found by me, the proposed helicopter related activities constitute a use of the property for the purpose of a dwelling house, the position is clear also in relation to the keeping of a helicopter or helicopters on the property as an incident of the proposed helicopter related activities. As McHugh J said in Lizzio v Ryde Municipal Council:[14]
Obviously, a person who is entitled to use land for the purpose of a dwelling house may use it for incidental purposes, such as garaging his car or housing his boat.
I turn to consider the plaintiff’s alternative contentions, which arise for determination only if the helicopter related activities were to constitute a separate use of the property.
Plaintiff’s first alternative contention
The plaintiff’s first alternative contention is that the proposed helicopter related activities constitute a use which is ‘incidental’ and ‘subordinate’ to the residential use. In practical terms, this contention is the same or very similar to the plaintiff’s primary contention; the difference being that the proposed helicopter related activities are seen to constitute a separate use, rather than bring subsumed within the ‘single dwelling’ permitted residential use. The starting point is the oft-cited judgment of the New South Wales Court of Appeal in Foodbarn Pty Ltd v Solicitor-General in which Glass JA (with the agreement of the other members of the Court) stated as follows:[15]
… where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that to which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts.
In Warringah Shire Council v Raffles, Waddell J cited a passage from Foodbarn Pty Ltd v Solicitor-General which included the above extract.[16] However, as appears from the extract from Warringah Shire Council v Raffles in [15] above, Waddell J decided the case on the basis that use of the land for private transport (by helicopter) was the use of the land for a dwelling-house; that is, the use was subsumed within the residential use, rather than being a separate use ‘incidental’ and/or ‘subordinate’ to the residential use.[17]
In the circumstances, I am not persuaded that the plaintiff’s first alternative contention is correct in this case. However, it is not necessary for me to decide the issue and I refrain from doing so because of my findings and conclusions in favour of the plaintiff in relation to his primary contention, explained in [14] – [20] above, and in relation to his second alternative contention, explained in [25] – [31] below.
Plaintiff’s second alternative contention
The plaintiff contends that, if the proposed helicopter related activities constituted a separate use of the property, such use would be an innominate use, that is, a use “not shown on the relevant zoning table”.[18] In principle, therefore, it would require consent pursuant to clause 2.2.4. However, if it were properly characterized as an ‘ancillary use’ to the residential ‘primary use’ as a single dwelling, then (like the primary use) it would be permitted without consent, pursuant to clause 2.9.1 of the Planning Scheme.
I am satisfied that the proposed helicopter related activities, as explained, are plainly ancillary to the residential use. The proposed helicopter related activities (1) depend on the existence of the plaintiff’s home on the property and (2) give support to the plaintiff’s effective and better use of the property for residential purposes in travelling to and from his home. Those matters satisfy the “ancillary use” requirement in clause 2.9.1 of the Planning Scheme. My conclusion is supported by the decision of the New South Wales Land and Environment Court in Walker v Warringah Council,[19] in which Lloyd J considered a very similar situation to that in Warringah Shire Council v Raffles. His Honour said:
In my view the proposed use of the helipad in the present case is not an independent use but is wholly ancillary to the use of the land for the purpose of a dwelling house.
My conclusion in [26] would be different if, for example, the plaintiff were operating helicopter flights for commercial purposes or in connection with a business (save for personal travel to his place of work). Whether a use is ancillary to a residential use is a question of fact and degree. In this respect, I note that the facts which I have been asked to assume for the purpose of making the declaration sought in this proceeding are not the same as the facts previously found by the learned Tribunal Member in Farris and Farris v Development Consent Authority.[20]
Before I conclude my reasons in relation to the plaintiff’s second alternative contention, I explain why I have rejected the submissions of counsel for the defendant in relation to clause 2.9 of the Planning Scheme. By way of background, clause 2.9.1 protects an ancillary use from the requirement of consent if the ancillary use is a consent use, that is, one to which consent could be granted if it were proposed as the primary use. If the ancillary use is one which would be prohibited if it were proposed as the primary use, then clause 2.9.1 does not apply, and the position is instead governed by clause 2.9.2, which states that the ancillary use is permitted only with consent. In this context, counsel for the defendant submitted that the proposed helicopter related activities constitute a “fuel depot” or a “passenger terminal”, both prohibited uses in the RL zone, and therefore requiring consent as ancillary uses.
The expression “fuel depot” is defined in clause 3 of the Planning Scheme to mean “a depot for the storage or sale of solid, liquid or gaseous fuel, but does not include a service station”. The Oxford Dictionary definition[21] of a ‘depot’ is a “place for the storage of large quantities of equipment, food, or goods”. A second meaning is a “place where buses, trains, or other vehicles are housed and maintained and from which they are dispatched for service”. In both meanings, the word ‘depot’ denotes large or relatively large scale in terms of quantities of goods stored or the number and size of vehicles housed.
I do not accept the defendant’s submission to the effect that a person who stores two or three 44 gallon drums of fuel in a shed on a rural block thereby establishes a ‘depot’ for the storage (or sale) of fuel. The implied definitional requirement of scale is not established.
The expression “passenger terminal” is defined in clause 3 of the Planning Scheme to mean “premises used as a railway or bus station, shipping passenger terminal, airline passenger terminal, hoverport or heliport”. Counsel for the defendant submits that the Oxford dictionary definition of a ‘heliport’ is “an airport or landing place for helicopters”. That is correct. Counsel contends that the plaintiff will use the property as a ‘heliport’ which, he argues, is “akin to a garage for a helicopter.” Although the plaintiff will use the property as a landing place for his helicopter, the word ‘heliport’ should be construed in the context of the definition of “passenger terminal”, which refers to significant public transportation facilities such as a railway station, a bus station, a shipping passenger terminal and an airline passenger terminal. In that context, the word ‘heliport’, properly construed, does not include a private garage or landing area for a home-based helicopter. The common and dominant feature of the inclusions in the “passenger terminal” definition is the large or relatively large scale of the hypothetical premises used for passenger arrivals and departures and the implication that significant number of passengers may be involved.
For reasons explained in [31], I reject the “passenger terminal” characterization contended for by the defendant.
Proposed declaration
Counsel for the defendant has not advanced any technical legal argument to the effect that relief in the form of a declaration should not be made with respect to the proposed helicopter related activities. Therefore, given my conclusions and findings in favour of the plaintiff in relation to the plaintiff’s primary contention and second alternative contention, I propose to make a declaration in terms consistent with the self-imposed restrictions set out in [1] and with the description of “helicopter related activities” set out in [5] and [6].
I direct that the plaintiff file a draft minute of order containing the precise terms of declaration and any consequential orders sought.
The plaintiff’s application should be adjourned for further consideration and the making of final orders.
--------------------
[1]There was evidence given that the plaintiff has entered into a contract to sell his three-quarters share in Bullo River Station with completion to take place in June 2017. The plaintiff said in evidence he did not intend to purchase any other property in the Northern Territory, although he has purchased a small farm south of Perth. The latter does not seem to be particularly relevant, given that the flying time by helicopter between Darwin and Perth is approximately 17 hours.
[2]Clause 2.2.1.
[3]The Northern Territory Planning Scheme is established under s 7 Planning Act (NT).
[4]Clause 2.2.4(b).
[5]See definition of ‘development’ in s 3 Planning Act (NT).
[6]Boss v Manningham City Council [2005] VCAT 1048
[7]Subject to cl 6.5.1 (off-street parking), cl 7.1 (residential density) and cl 7.3 (building setbacks), none of which are presently relevant.
[8]See also the very helpful survey of the authorities in relation to existing (non-conforming) uses in Re Shire of Carnarvon; ex parte Humphrey and Anor [2005] WASCA 182 at [25] – [36], per McLure JA.
[9]Warringah Shire Council v Raffles and another (1979) 2 NSWLR 299 at 303E.
[10] Defendant’s Outline of Submissions, par 19.
[11]Thaya Morgan-Phoenix v Gold Coast City Council [2007] QPELR 47.
[12] Underline emphasis added.
[13]Thaya Morgan-Phoenix v Gold Coast City Council [2007] QPELR 47 at [8].
[14]Lizzio v Ryde Municipal Council (1983) 155 CLR 211 at 216.
[15]Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161.
[16]Warringah Shire Council v Raffles and another (1979) 2 NSWLR 299 at 302D.
[17] In Canterbury Municipal Council v Wallspace Advertising (Australia) Pty Ltd (1982) 47 LGRA 135, Mahoney JA, at 138, cited Warringah Shire Council v Raffles to explain that the purpose of a use, formulated in broad terms, was to be contrasted with “ancillary activities which, though compatible with the purpose of the use, are not properly so described”.
[18]Clause 2.2.4(b).
[19]Walker v Warringah Council [1998] NSWLEC 276.
[20]Farris and Farris v Development Consent Authority [2016] NTCAT 373 at [17] – [22].
[21]
0
3
0