Hugh Ermacora and Joyce Lillyin v Byron Shire Council
[2005] NSWLEC 700
•12/07/2005
Land and Environment Court
of New South Wales
CITATION: Hugh Ermacora & Joyce Lillyin v Byron Shire Council [2005] NSWLEC 700
PARTIES: APPLICANT
Hugh Ermacora & Joyce LillyinRESPONDENT
Byron Shire CouncilFILE NUMBER(S): 10441 of 2005
CORAM: Hoffman C
KEY ISSUES: Development Application :- conversion of storeroom to an office/reception/meeting room - 2 holiday cabins - road upgrade - vehicular access - disabled access - minimum site area for holiday cabins - bushfire hazard - disputed conditions of consent
LEGISLATION CITED: Byron Local Environmental Plan 1988 (BLEP)
State Environmental Planning Policy No. 1 (SEPP 1)
Byron Rural Settlement Strategy 1998
Rural Fire Act 1997CASES CITED: Scott Revay & Unn v Ku-ring-gai Council [1994] NSWLEC 112
DATES OF HEARING: 29-30/09/2005
DATE OF JUDGMENT:
12/07/2005LEGAL REPRESENTATIVES: APPLICANT
Mr H Ermacora, self representedRESPONDENT
Mr A Seton, solicitor
SOLICITORS
Marsdens
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHoffman C
10441 of 2005 Hugh Ermacora & Joyce Lillyin v7 December 2005
JUDGMENT
Byron Shire Council
1 This is a class one appeal No. 10441 of 2005 between Hugh Ermacora and Joyce Lillyin v Byron Shire Council in regard to the conditions of approval in DA 10.2002.194.1 for a proposal to convert an existing detached studio into a commercial holiday cabin and to erect a second detached holiday cabin on Lot 6 DP 874010 being No. 151 Boogarem Road, Koonyum Range in the Byron hinterland of Mt Jerusalem National Park. The council’s consent in DA 10.2002.194.1 was issued on 5 May 2004, and it approved the conversion of the existing studio to a holiday cabin only.
2 The studio was once the house on the property but a new house was approved in 1993 when the ownership was about 57 ha. The original house was, in the 1993 consent, converted to the studio with a condition that it not be used as a dwelling nor for any form of residential occupation. A storage shed also exists near the original house or studio. The shed is proposed in this application to become a new “studio” for the purposes of an office/reception/meeting room for the overall use that is termed Rural Tourist Facility.
3 Also approved in the 1993 consent was a machinery shed which had not been completed at the time of this hearing. It had been commenced by the erection of masonry foundations and an elevated concrete floor slab. The subfloor is currently used as a battery power storage room fed by a large solar panel erected nearby. The proposal is to construct the second holiday cabin on top of the concrete slab. It is called Cabin B.
4 The previous studio that is approved as a holiday cabin is called Cabin A and has existing a bathroom and a kitchenette. It has a septic tank system connected that was approved by council when the studio was the original house. There is also a detached existing toilet and shower room about 10 m north of Cabin A. The proposed second cabin called Cabin B, being lower down the hill, is proposed to have its own new septic system. The applicant wanted, during the hearing, to change this to a composting toilet sewage system, but no details were tendered. The respondent objected to the change.
5 The existing water tanks are not contested by the council and are considered sufficient for both facilities.
6 The three buildings involved in this application are within 100 m of the right of carriageway and a private road that serves this site and a few other properties. The holiday cabin site is in the south-west corner of Lot 6 at about the half way point of the private road that loops back to a public road about 600 m in either direction.
7 The new house built under the 1993 consent is about 220 m away through the forest from the right of way and the other three buildings. The new house is near the northern corner of the site being Lot 6.
8 The house is perched a short distance from a 300 m high cliff. There is a panoramic view over the coastal mountains and plains to the ocean north of Byron Bay township.
9 The site is elevated at about AHD 530 m on the highest point locally of the Koonyum Range. Mr Ermacora said the cliff is a favourite launch point for experienced hang-gliders.
10 The site Lot 6 is about 12 ha in area and beside it, Lot 7 is about 45 ha in area. Lot 6 is forested except for areas around the house and the three other buildings that have been cleared for bush fire inner protection areas (IPA) and for some distance beyond the IPA the understorey and leaf litter on the ground has been cleared to provide a bush fire outer protection area (OPA). Together these form Asset Protection Zones (APZ). Lot 7 is vacant and forested also and was in the ownership of the applicant at the time of DA 10.2002.194.1.
11 The issues are:
- Vehicular Access
1.1 The Applicant has failed to demonstrate that adequate and sustainable access to the site can be provided.
1.1.1 National Parks and Wildlife Service are responsible for the management and control of the roads over which access to the proposed development is gained.
1.1.2 The Applicant has not complied with Condition No. 4 of Development Consent 10.2002.194.1, which requires the Applicant to enter into a Memorandum of Understanding with National Parks and Wildlife Service for the continued and safe access to the property.
1.1.3 The Applicant has failed to provide detail of any proposed upgrade and maintenance of the access road pursuant to Condition No. 4 of Development Consent 10. 2002.194.1.
1.2 Whether it is reasonable to impose conditions of consent requiring the upgrade and/or maintenance of the National Parks and Wildlife roads, over which access to the proposed development is gained.
PARTICULARS
1.2.1 The only physical access to the proposed development is gained over approximately 4.3 kilometers of road within the Mount Jerusalem National Park.
1.2.2 National Parks and Wildlife Services are responsible for the standard of maintenance of roads located within their National Parks.
1.2.3 National Parks and Wildlife Service have advised that they require the Applicant to meet the costs of any upgrade necessary as a result of the proposed development.
1.2.4 National Parks and Wildlife Service have stated that they require the Applicant to meet the costs of maintenance of roads to any standard required as a result of the proposed development for a rural tourist facility.
DISABLED ACCESS1.2.5 The pavement surfaces of the existing National Parks and Wildlife Service roads, over which access to the proposed development is achieved, are not of a standard or are not maintained to a standard adequate to service a rural tourist facility.
PARTICULARS
2.1 Clause 9.2 of Byron Development Control Plan 2002 ("Byron DCP 2002") applies to "motel, hostels and holiday cabins" and prescribes that a minimum of 1 unit in each development must be designed to facilitate access and mobility to all members of the community.
2.2 Clause 9.2 of Byron DCP 2002, being an objective of the Plan, seeks to ensure equity of access and mobility to all members of the community and accord with the Disability Discrimination Act 1992 (Cth).
2.3 The Applicant has not provided justification for dispensation with the disabled access requirement with regard to the two cabin proposal.
SEPP 1 OBJECTION TO DEVELOPMENT STANDARD2.4 The plans submitted by the Applicant in relation to Cabins A and/or B do not demonstrate intentions in relation to disabled access to the proposed Cabin A and/or B.
PARTICULARS
3.1 Clause 2A of Byron Local Environmental Plan 1988 , stipulates that Council before determining a development application shall have regard to the information, guidelines and recommendations of:
3.2 Clause 7.2 of Byron Rural Settlement Strategy requires the minimum land area to be considered suitable for rural tourist cabins must be not less than 20 hectares.
3.3 The Applicant seeks approval for two holiday cabins on Lot 6 in DP 874010, which has a site area of 11.7 hectares.
PROPOSED NEW STUDIO, STOREROOM AND/OR RECEPTION AREA
4.1 The proposed new studio does not meet the objectives of a studio as contained in Clause C14 Byron DCP 2002.
PARTICULARS
4.1.1 The objectives stated in Clause C14 of the Byron DCP 2002 are "to allow for construction of a detached building ancillary to a dwelling so as to provide a workspace for activities not generally possible in a dwelling".
4.1.2 The Supplementary Statement of Effects supplied by the Applicant, dated 10 August, 2005, identifies the proposed use of as being supplementary to the proposed holiday cabins.
4.2 The proposed new studio does not meet the performance criteria as contained in Clause C 14 of Byron DCP 2002.
PARTICULARS
4.2.1 One of the performance criteria stated in Clause C14 of the Byron DCP is that "the studio must be located close the associated dwelling house and must be reliant on the utilization of the existing services, infrastructure and facilities of that dwelling house. "
4.2.2 The Supplementary Statement of Effects dated 10 August 2005 identifies the proposed studio as ancillary to the holiday cabins and not the dwelling located on the property.
4.2.3 The Supplementary Statement of Effects does not identify any proposed extension of utilities to the proposed studio and does not confirm that they will be extensions of utilities currently serving the dwelling located on the property.
4.3 The proposed new studio does not meet the prescriptive measures as contained in Clause C14 of Byron DCP 2002.
PARTICULARS
4.3.1 Clause C14 of Byron DCP 2002 provides that "a studio must .... be located not greater than 100m from outside wall of the main dwelling house".
4.3.2 The Supplementary Statement of Effects dated 10 August 2005 states that the proposed studio is "some 220 metres from the owners' residential dwelling on the property".
4.3.3 One of the prescriptive measures contained in Clause C14 of Byron DCP 2002 provides that "a studio must ... not require construction of any ... electricity services....
4.3.4 The Supplementary Statement of Effects dated 10 August 2005 does not identify the source of proposed electricity services to the studio, which are supposed to be necessary to enable the proposed use as detailed in the Supplement Statement of Effects.
4.4 The proposed use of the existing timber structure does not fall within the ordinary and natural meaning of the word "studio".
PARTICULARS
4.4.1 The ordinary and natural meaning of the word studio is a building used for artistic or media broadcasting purposes.
4.4.2 The Applicant proposes to use the existing timber structure as a storeroom and/or reception area for the two holiday cabins.
4.5 Whether the proposed conversion of an existing timber structure to a storeroom/reception area for the two holiday cabins could be approved in the absence of details relating to the structural integrity and safety of the structure.
PARTICULARS
4.5.1 Use of a building for the purposes of a storeroom and/or reception area for the proposed holiday cabins could only be approved if it was ancillary and incidental to the use of the land for the purpose of holiday cabins.
4.5.2 There are no records of approval of the structure proposed to be converted to a storeroom and/or reception area.
4.5.3 The Amended Statement of Environmental Effects dated 10 August 2005 does not identify the standard of construction of the existing timber shed save that it states that it is "in need of some restoration work".
SECTION 94 CONTRIBUTIONS4.5.4 There are no engineering/building certifications attached to the Supplementary Statement of Effects, which confirm the structural stability of the existing timber structure nor whether it meets the applicable Australian Standards for the proposed use as a storeroom and/or reception area.
PARTICULARS
5.1 Developer contributions as provided for in Byron Shire Council s94 Plan 2001-2006 have not been previously paid with regard to holiday cabin development on this site.
6. The proposed development is unacceptable in terms of bush fire hazard.5.2 Developer contributions pursuant to s94 have not previously been paid in respect of any use of the existing studio on the site.
PARTICULARS
6.1 The site is located in a high to extreme risk bushfire prone area.
6.2 The proposed development is inconsistent with Clause 4.2, Clause 4.3. and Clause 5.3 of Planning for Bushfire Protection published by Planning NSW dated December 2001.
6.3 The required Asset Protection Zone (APZ) will not be located within the boundaries of the development. A suitable fire trail for APZ maintenance and access for fire fighters has not been provided.
6.4 The proposed development is not served by a public road constructed with an all weather surface suitable for two wheel vehicles. The public road system does not provide alternative access or egress for fire fighters and residents during a bushfire emergency if part of the road system is cut by fire.
6.6 The proposed construction form and materials of the holiday cabins do not comply with the construction standards l level stipulated in Australian Standard 3959 -1999.6.5 The holiday cabins are located more than 200 metres from the public road network. Alternative access arrangements providing emergency egress to a through road system is not provided to the site.
12 The respondent’s evidence was heard from:
- Mr J Samuels, senior engineer Byron Shire Council
- Mr P Dawson, consultant town planner
- Mr L McCoy, fire safety officer, Rural Fire Service of NSW
13 There was a report in evidence by Mr T O’Toole, the Development Control Officer of Rural Fire Service. However, he was taken ill and hospitalized and could not attend the hearing. The parties agreed Mr McCoy should give oral evidence and be cross-examined on Mr O’Toole’s report that Mr McCoy also adopted.
14 The applicant represented himself and gave submissions and evidence on his own behalf. There were technical reports and letters in evidence in support of the applicant from:
- Mr B Diacono, manager conservation, National Parks and Wildlife Service.
- A chronology of events and facts and submissions by Mr Ermacora with attachments in Exhibit A.
- Statement of Environmental Effects (SEE) by Balanced Systems Planning Consultants.
- Modification of the application to locate the development wholly on Lot 6 instead of Lots 6 and 7 and as a result a State Environmental Planning Policy No. 1 objection by Mr Ermacora.
- Modification of the application to include the conversion of the storeroom to a “studio” as an office/reception/meeting room ancillary to the proposed Rural Tourist Facility with a supplement SEE by Mr Ermacora.
- Memo dated 15 December 2003 from the former Byron Shire Council General Manager Ms P Westing to Director Local Approvals and Compliance in Council.
- Memoranda from a former Council Planning Consultant Mr G Smyth to the then Council Director Local Approvals & Compliance dated 23 February 2004, and to another planner of the Council on 16 March and 18 March 2004.
- Mr Smyth’s draft conditions of deferred commencement consent.
- Estimates of road upgrade costs from officers of the Department of Environmental & Conservation dated 21 September 2005 and 23 September 2005.
- Council’s Evaluation Report dated 4 May 2004 with annotation by Mr S McElroy consultant engineer.
- Annotated plans of the proposal in Exhibit G illustrating the modified application and the inclusion of a parking bay and turning bay near Cabin B being the one on top of the concrete slab of the approved machinery shed, and the extension of the drive to the proposed office to allow a vehicle to complete a circle back onto the primary access road on the right of way and private road.
16 I was asked to note in coming and going from the site there are locations with narrow carriageway, awkward transitional grades and exposed rock and clay road surfaces, but other parts are acceptable 2WD in wet weather.
17 Access issues were complex. The private road serving the site had several aspects. It is a loop road starting on Boogarem Road at Lot 1 DP 250297. At that point there is no right of way to the subject site, it is just a private road that the applicant uses by licence. The legal access is by the continuation of the loop road onto the subject site where the right of way commences and thence along the boundaries of Lots 4 and 7 DP 250297 to the Koonyum Range Road a public road. The private road unfortunately meanders outside the right of way on Lot 4 and the owners object to its use. The owner of Lot 1 has given a letter agreeing to establish a right of way on its property and the council accepts that to be made a deferred commencement condition of any consent.
18 The Rural Fire Service (RFS) requirements for emergency access by public roads is 2 WD all weather standard 8 m carriageway width to allow passing in both directions, bridges to carry 28 tonne vehicles or 9 tonne per axle maximum and there is one bridge on Boogarem Road, and the public road to be a through road or a maximum length of 200 m with a turning circle of 12 m. Maximum gradients to be 15 degrees (not 15%).
19 Boogarem Road is a dead end road, and there is one section at its entry where the maximum gradient exceeds 15 degrees. The council and the RFS therefore put that it does not comply for access to a commercial facility. The NPWS has other requirements to achieve 2WD all weather suitability.
20 On site roads, such as the private access road, according to RFS requirements require 4 m carriageway width with 7 m wide passing bays every 200 m. The surface designs of the road must carry 28 tonne vehicles and 9 tonne/axle. The maximum gradient of 15 degrees is again required and if a dead end the maximum length to be 200 m.
21 On this the council and the RFS said the private road is 2WD all weather standard but does not have the passing bays in some places. It did not press it is a dead end road due to its looping back to Koonyum Range Road and emergency vehicles can use it even with Lot 4’s objection. However, the council did press that both Koonyum Range and Boogarem Road are dead end roads and are not acceptable for emergency access.
22 The applicant put that the National Parks and Wildlife Services (NPWS) had stated intentions of upgrading Koonyum Range Road and Boogarem Road to 2WD all weather standard and that should be accepted.
23 The council and the RFS said that intention was supposed to be funded at the time it was first stated, but funding had not occurred and the works now had an unknown timetable. An NPWS letter in Exhibit 1 folio 193-194 said it would maintain the roads to 2WD dry weather standard, and if a higher standard is required the developer would need to contribute to maintenance and any upgrade. The NPWS had at one time considered a contribution scheme by land owners along Boogarem Road but this has not been adopted.
24 If the applicant wanted a consent in the meantime the council required the upgrading to be done if a consent for the proposal is to be granted.
25 However, the council’s primary position is that emergency access to this area is dangerous to the extent a Rural Tourist Facility should not be permitted. Tourists are not familiar with the area, if the roads are not upgraded they could go off the road in bad weather. In a bushfire emergency, tourists could panic, and being new to the area, cause danger to themselves and place additional demand on emergency services personnel to risk their lives and equipment to help.
26 The applicant’s position is that the RFS regularly use the road now for emergency purposes. If upgrading of the road is required the estimates of construction put by the council as conditions for contribution are way above the costs the applicant has access to. And, if it must be financed by individuals it is to the benefit of all the owners along the road and the RFS or the NPWS should create a contributions fund.
27 Also, Mr Ermacora said, the officers of the Bush Fire Brigade including a previous District Officer and the council reporting officers in the report of 4 May 2004 (Exhibit 1 folio 195-218) had none of the current concerns. The asset protection zones established now around the buildings were at that time acceptable as was the standard of the access roads for fire fighting vehicles and personnel and tourists to use. This is, after all, only a 2 cabin facility with enough beds for 6 people.
28 Also the nearby houses approved by the council including the one on Lot 4, still being constructed did not have similar conditions attached. They must necessitate the same requirements for roads, emergency access and services.
29 Mr Ermacora said, Officers of the Rural Fire Service had attended on site to look at the possibility of a helicopter landing site near the main house of the subject property for access in extreme situations. The applicant maintained that added safeguard, although comforting, was not really needed because the main house was designed with a fireproof basement that would be a safe refuge for patrons of the holiday cabins and the householders in an extreme situation. There would be no need for a panic evacuation along the road. Anyone on the site would simply retreat to the fireproof basement until the fire passed by, and that would only be for 24 hours or so maximum.
30 Mr McCoy had been with the Rural Fire Services for 2 years and held an Honor’s Degree in Applied Science (Geography). He had been on site with Mr O’Toole preparatory to the report in Exhibit 13.
31 On the last comment by Mr Ermacora, Mr McCoy said in extreme bushfires, the fire storm blew embers a kilometer or so ahead and caused “spot fires” in many locations. The 220 m of forest between the main house and the cabins could easily be ignited before tourists were aware of the bushfire. That could cause panic and an attempt to drive out through the main bushfire. The applicant/manager at the main house may not be able to reach persons at the holiday cabins.
32 On the asset protection zones, Cabin B was too close to the south boundary of Lot 6 to get the 80 m required for the OPA. Under current legislation, the proposal is a Special Protection Development (tourist development). However, the date of lodgment of the application being 1 August 2002 that classification does not apply.
33 As a result the RFS does not have a concurrence role under the Rural Fire Act 1997 to this application.
34 However, advice on the relevant bush fire protection measures to council is appropriate. That involves assessment of:
- (a) Vegetation within 140 m of dwellings;
(b) Construction standards for dwellings under s 3 of AS3959-1999 as amended 2000;.
(c) Slope of land within 100 m of dwelling;
(d) Considering (a), (b), and (c) and various fire and weather directions of approach, determine what APZ’s are needed;
(e) Site suitability for emergency access and evacuation and safety for residents and fire fighters;
(f) Determine water requirements for fire fighting.
35 Based on this the report of Mr O’Toole, both he and Mr McCoy disagree with opinions of the former Fire Control Officer in the council’s report of 4 May 2004. Mr O’Toole and Mr McCoy say Cabin B can only achieve a 20 m APZ to the boundary of Lot 6. APZ’s on other ownerships is not favoured. The former Fire Control Officer quoted from table 2.2 for dwellings requiring a 50 m APZ, instead of table 2.3 as applicable to this application under the State Circular “Planning for Bushfire Protection 2001”.
36 Mr O’Toole was the editor of that State publication and sat on the Planning for Bushfire Protection Review Panel.
37 On site access, Mr O’Toole and Mr McCoy say the existing 7 km long access road is inadequate for emergency evacuation or access for fire fighting. Greater reliance therefore must be placed on APZ’s, construction standards and water for fire fighting on site. The latter is satisfactory with 2x22000 litre and 1x13000 litre tanks on site, and the construction standards can be met.
38 Mr McCoy said the forest on site is Dry Sclerophyll and that the slopes on site, and the ridge top location makes it Extreme Hazard as classified on the map in Exhibit 8. In his opinion the remoteness of the site, and the extreme hazard of bushfire, meant the APZ’s should be adhered to. Cabin B could not achieve that, but Cabin A could.
39 The Cabin B bushfire APZ would have to overlap onto Lot 1 DP 250297 and there would have to be an easement for the APZ before it could be considered. There is no provision for that in the application. The decision in Scott Revay & Unn v Ku-ring-gai Council [1994] NSWLEC 112 supports this opinion.
40 Mr Ermacora noted that Cabin A is approved by council as a holiday cabin under consent No. 10.2002.194.1 issued on 5 May 2004 after the council report dated 4 May 2004. These fire, and APZ, and access issues were considered then. One extra cabin on the previously approved machinery shed site could not change them, he said.
41 The respondent noted that the same consent was the one involved in this appeal, and if the appeal was dismissed, that consent may be extinguished. This hearing is “de novo” and the evidence before the Court has evolved further than that before the council in 2004, the respondent said.
42 Also that application was made at a time when Lots 6 & 7 were in the one ownership. The applicant had sold Lot 7 so the current proposal is only on Lot 6 which is about 12 ha when 20 ha is required under the Byron Local Environmental Plan for holiday cabins.
43 The site is in the Zone No. 7(d) (Scenic/Escarpment) and holiday cabins are a prohibited use. Council’s consent was only possible due to an amendment to the Byron Local Environmental Plan 1988 (BLEP) cl 29(1)(b) Sch 8. It allows up to 2 holiday cabins on Lots 6 and 7 which are to be in a cluster formation and carried out in accordance with s 7.2 (Holiday Cabins) and 8 (Rural Settlement Performance Standards) of the Byron Rural Settlement Strategy 1998 as in force at the commencement of Amendment No. 99 to the BLEP 1988. These were tendered in Exhibit 5.
44 A number of aspects of the applicable statutes and controls need to be addressed in view of the respondent’s submission on them.
45 Schedule 8 of the BLEP makes possible a consent on Lots 6 and 7 for up to 2 holiday cabins.
46 The approval council gave was for 1 cabin on Lot 6 in consent 10.2002.194.1. At the time of application being made Lots 6 and 7 were in the one ownership. There was nothing in Sch 8 to say that the cabins must be located to straddle the common boundary of Lots 6 and 7 in a cluster formation. Consequently it appears there was no obstacle to the grant of consent with up to 2 cabins on Lot 6 but it would be to the detriment of Lot 7. No information on the opinion of Lot 7’s owner is available in regard to that.
47 The applicant amended its application from 2 cabins to one cabin only on Lot 6 prior to the grant of consent 10.2002.194.1. That is Cabin A on the plan in Exhibit G. The consent in Exhibit 1 folios219-229 refers only to Cabin A and Lot 6 and on the plans stamped with the consent Cabin B is crossed off.
48 A reading of Exhibit 5 indicated a cluster can be a rural home and a holiday cabin so the council consent for one (1) cabin on Lot 6 did not preclude another with a house on Lot 7. Although not expressed in any report this logic may have applied when the applicant sold Lot 7 prior to the original application receiving consent, and the latter being issued for Lot 6 only.
49 The requirement for disabled access is that 1 cabin in any cluster must have disable access. If there is only Cabin A, it must be made accessible. That is reasonable.
50 I am mindful that the council report of 4 May 2004 was for a single cabin, not 2 cabins and an office/reception/meeting room. Mr Ermacora’s use of that report to justify his current application is inappropriate.
51 The council used its delegated authority to uphold a SEPP 1 objection to the 20 ha minimum area requirement for holiday cabin sites to overcome the fact that Lot 6 is only about 12 ha.
52 As a consequence, council approved the conversion of the original house, then a studio, to a holiday cabin on Lot 6. The applicant has appealed that consent and its conditions and seeks 2 cabins once again and seeks to add in the conversion of the storeroom to become a “studio” use as an office/reception/meeting room ancillary to the Rural Tourist Facility. A notice of motion to permit that amendment to the appeal was granted but with the “studio” being redefined as “home office” as in the Court Directions of 4 August 2005.
53 The applicant had said at the hearing if the SEPP 1 objection was an obstacle to consent, there is such good rapport with the new owner of Lot 7 that a boundary adjustment could be a deferred commencement condition to make Lot 6 to have 20 ha in area. That does not assist me in this case, it would require a subdivision application also that is not before me. The point was made by Mr Dawson that to raise Lot 6 to 20 ha would reduce Lot 7 below 40 ha which is the minimum area in Zone 7(d). Once again there is no evidence before me as to the opinion of Lot 7’s owner in that regard.
54 It also appears to me that the merits of issues on bush fire protection and emergency access requirements make approval of Cabin B unsupportable.
55 The applicant during the hearing said he would move Cabin B further north on the site to achieve the APZ requirements if necessary. In my opinion it would not change the emergency road access issues. Moving Cabin B would involve another amendment of the application that was not before me, would require amended plans and expert reports and the respondent to reconsider its position during an adjournment. The northern site indicated by Mr Ermacora would involve putting Cabin B on the existing septic transpiration area for Cabin A. To amend an application at such a late stage in proceedings would mean the applicant paying the respondent’s costs thrown away.
56 The respondent noted during the hearing that a “home office” is defined in the BLEP 1988 and can be attached to, detached from or within a dwelling house and used by permanent residents of the dwelling who are professional qualified practitioners such as accountant, architect, engineer, solicitor, doctor, dentist or health professional.
57 That is not the character of the applicant’s description of the proposed use as a reception/office/meeting/storage room for the rural tourist facility. That description is in the supplementary SEE in Exhibit H.
58 The applicant sought to change the description again during the hearing to that referred to above. For the purposes of hearing the merits of the matter and the applicant not having the benefit of expert or legal advice and being self represented the change of name was allowed.
59 The respondent put that the Court Directions of 4 August 2005 also required plans and elevations of that building. The drawings tendered in Exhibit G are quite amateurish and did nothing to enable assessment of structural stability and compliance with the relevant Australian Standards for construction.
60 The applicant acknowledged the proposed reception/office/meeting room, being the existing storeroom had been built by a previous owner and there was no record of consent for it. However, the applicant pressed that it did exist and it appeared superficially quite solid.
61 Development consent for the building could not be granted retrospectively, so only the use could be considered and that is premature until an engineer’s certificate of sufficiency is produced and the council issues a building certificate to allow the structure to remain and to be suitable for the proposed use. I do not have such information before me, the visual appearance of the existing storeroom is not sufficient.
62 The applicant said in regard to the draft conditions in Exhibit 16 that they were not reasonable. Mr Ermacora sought the draft conditions prepared by Mr Smyth in Exhibit C for Cabin A because that was what he and Mr Smyth agreed. In respect of Cabin B Mr Ermacora said he would accept the conditions in consent 10.2002.194.1 as it only required road upgrading to 2WD dry weather standard. He said that was what existed so he could not see the need for a Memorandum of Understanding with the NPWS. He thought that condition is ultra vires.
63 On bushfire emergency Mr Ermacora said he had an agreed evacuation plan with the RFS, and the fire trucks regularly use the existing road. Cabin A existed and was currently used for occasional house guests, it had been the home on the site previously. He could not see how things had changed significantly.
64 The respondent noted that the 1993 consent required the original home to become a studio and not to be used for any type of residential accommodation. The change for the studio to become Cabin A in consent 10.2002.194.1 did constitute an intensification of use and a need for higher standards. Previously, the studio was supposed to be used by on-site residents for occasional activity not accommodation. Residents were familiar with the site, the surroundings and bush fire procedures. Tourists using the cabin as accommodation were quite different. If the applicant now wanted two holiday cabins and an office/reception/meeting/storage room, there is clear intensification that justifies the council and RFS requirements.
65 The council’s s 94 contribution condition in the original consent, is based on Cabin A becoming commercial accommodation, when previously it was not to be used for accommodation. The fact that Mr Ermacora has used it for house guests does not justify his argument for no s 94 contribution for Cabin A.
66 In regard to the access roads, the council is the consent authority for the development, but it cannot authorise actual works on the NPWS roads. That is why a Memorandum of Understanding with the NPWS is required.
67 It seemed to me it is a little like a council putting a condition for work on its own roads for a development but before a developer can actually do the works, proper specifications have to be submitted to the council engineer and a permit issued to commence work.
68 A reading of the report prepared by Mr Smyth for the original 2 cabin proposal reveal draft conditions in the council report for 2WD all weather road standard. It was only when Mr Ermacora deleted the second cabin that the council report of 4 May 2004 and conditions of consent reverted to 2WD dry weather road standard. Mr McCoy the council engineer at the time supported this in the report of 4 May 2004 and the Memorandum of Understanding. They became Condition 4 of consent 10.2002.194.1. Condition 24 of the consent must only apply to the private road component of the development since Condition 4 covers the public road.
69 It seems to me that since the NPWS has undertaken to maintain its public roads to 2WD dry weather standard the only work condition 4 of the existing consent has to do is in regard to the passing bays needed in the private road. That road being within the park is under NPWS authority. It is not an unreasonable condition.
70 In this appeal as previously mentioned, it is my opinion of merit and fact that only Cabin A might be able to be approved. The applicant already has a consent for Cabin A.
71 This appeal is primarily about obtaining consent for Cabin B and adding in the office/reception/meeting/storage room building. Those items generated an intensification of the use that necessitated more stringent conditions than Council granted on 5 May 2004.
72 I do not agree with the respondent’s submission that dismissal of the appeal would extinguish the existing consent. In refusing the extra facilities I am in fact confirming the original consent for 1 holiday cabin only. The conditions in consent 10.2004.194.1 are reasonable for that.
73 The applicant is self represented and did not have the benefit of expert or legal advice during the hearing to give me adversarial legal opinion. Therefore, I propose to stay orders of dismissal of the appeal for the applicant to consider its position and perhaps obtain legal advice on whether to withdraw the appeal in order to preserve the existing consent for Cabin A. Due to the Christmas season and absence of many lawyers until the end of January, I shall stay orders for 60 days.
74 Therefore the orders of the Court are:
1. The appeal is dismissed.
2. Order 1 above is stayed for 60 working days from the date of this judgment after which it will apply.
4. No order as to costs.3. The exhibits are returned to the parties except Exhibits A, B, C, D, E, F, G, H, 7, 8, 11, 12, 13, 14, 15 and 16.
___________________
- K G Hoffman
Commissioner of the Court
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