Gosch C v Snowy River S C

[2004] NSWLEC 158

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:      Gosch C v Snowy River S C [2004]  NSWLEC 158 revised - 14/05/2004

PARTIES:
APPLICANT
Gosch C

RESPONDENT
Snowy River Shire Council

CASE NUMBER:      11257, 11259, 11260            of        2003

CATCH WORDS:     Designated Development

LEGISLATION CITED:

CORAM:        Bly C

DATES OF HEARING:          10/3/2004

EX TEMPORE DATE:          10/03/2004

LEGAL REPRESENTATIVES

APPLICANT
Mr A Pickles, barrister
SOLICITOR
Macedone Christie Willis

RESPONDENT
Mr A Bradbury, solicitor
SOLICITOR
Minter Ellison

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT
OF NEW SOUTH WALES

11257 of 2003

Bly C

10 March 2004

Gosch C
Applicant

v

Snowy River Council
Respondent

Judgment

1. These three appeals before the Court relate to orders under involving an on-farm tourist accommodation facility at lot 2 DP 626888 West Lyn Road, Jindabyne.

1. The parties have consulted extensively in relation to these orders, with some being resolved and consent orders sought. Several orders remain in dispute.

1. In relation to appeal 11257 of 2003, consent orders were tendered as Exhibit 1, and having no reason to conclude otherwise, I make those orders in accordance with the exhibit.

1. In relation to appeal 11260 of 2003, orders were provided in Exhibit 2 and 5 of the six orders were agreed, and again I agree that orders 1 through 5, excluding 6, can be made. I will return to order number 6 shortly.

1. Similarly, in relation to appeal 11259 of 2003, orders numbers 1, 4, 6, 8, 10 and 11 in Exhibit 3 were not in dispute and I am satisfied that those orders can be made, leaving orders 2, 3, 5, 7 and 9 in dispute.

1. The matters which remain in dispute fall into two categories - the removal of double beds from one person bedrooms as required by condition 12 in development consent 83/88 (issued on 12 July 1988,) and the reinstatement of the hobby and music rooms within the building from a manager’s suite to their approved uses including the removal of the kitchen from the music room.

1. In relation the double beds’ issue, I note that condition 12 in the consent relevantly requires that bedrooms 1, 3 and 5 are approved as sleeping accommodation for no more than one person in each bedroom. These rooms have provided within them double beds, and the relevant orders seek to have these bedrooms reinstated to comply with the condition by the removal of these double beds and replacing them with single beds.

1. I do not accept that the provision of double beds in these rooms by itself necessarily infringes the condition.  It is clear that these double beds make the rooms capable of being occupied by two people, but this capability is not in itself an infringement.         There are other ways that the condition could be infringed even if a single bed were placed in that room, in that a portable bed could be added to the single bed and that would result in a non-compliance with the condition.

1. Today I heard no evidence that these rooms are being used by two people, even though there is a possibility that this is the case. This matter is, I have concluded, a matter of management, and if necessary, enforcement.

1. In the circumstances I have decided that orders 5, 7 and 9 in relation to appeal 11259 of 2003 should be altered to require that each of these rooms may only be used by one person at any one time, and that the requirement for the removal of the double beds will be excluded.

1. An additional order, as indicated as a possibility by Mr Pickles, will be included, requiring that, in relation to these three rooms, the manager of the premises will maintain a register in relation to these rooms, which register will contain details of their use.

1. In relation to the manager’s suite issue, I am not concerned that this development may possibly be categorised as two separate dwellings because I have decided that its principal and relevant categorisation is as an “on-farm tourist accommodation”.  I do not accept that it is a dual occupancy development. Despite its present likely non-approved configuration, the manager’s suite is effectively a dwelling with the remainder of the building comprising accommodation for guests.  Such an arrangement, it seems to me, is entirely consistent with the relevant essentials of on-farm tourist accommodation.

1. In this context, there was no planning evidence that such an arrangement would be inappropriate, and I find no problem with it.      More particularly, I find no planning problem with the provision of a kitchen and additional bedroom for the manager in the manner now provided.

1. It is possible that the kitchen, and indeed the whole building, especially in the context of the fire safety requirements of the Building Code of Australia, do not meet such standards, and if this presumption is correct, this is a matter of considerable concern.         It is also possible that the use of the building in its present form is not strictly in accordance with existing consents.  If this is so, this could be rectified, particularly in terms of future use, by a development application.

1. As for the fire safety matter to which I have referred, I have decided that although it would not be a perfect mechanism to achieve this end, that a building certificate should be obtained.  This will provide a means, albeit indirect, of dealing with fire safety matters. It is of little concern to me how the building is actually categorised under the BCA.  Instead it is a matter of ensuring that, for health and safety reasons, the building is up to modern standards.  I have thus decided that the kitchen need not be removed, nor need the hobby room be reinstated as such, if a building certificate has been obtained.

1. Orders 6 in Exhibit 2 and orders 2 and 3 in Exhibit 3 will be retained but suspended for a reasonable period so as to allow a building certificate to be obtained.

1. Orders to the effect of the above will be issued in due course. Exhibits 1, 2, 3 and A are retained.

________________________
T A Bly
Commissioner of the Court

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