Lawrence v Camden Council

[2000] NSWLEC 56

Land and Environment Court

of New South Wales

CITATION:	Lawrence and Anor V Camden Council [2000] NSWLEC 56
PARTIES:	APPLICANT: Lawrence and Anor RESPONDENT: Camden Council
FILE NUMBER(S):	10887 of 1998
CORAM:	Bignold J
KEY ISSUES:	Development - Question of Law :- Development - application to establish a "home business" Question of Law - Preliminary determination of question of law - whether "home business" a permissible development in association with use of caravan as residence.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 97
CASES CITED:	O’Brien v Warringah Shire Council (1977) 2NSWLR 417 at 437
DATES OF HEARING:	16/03/00
EX TEMPORE JUDGMENT DATE :	03/16/2000
LEGAL REPRESENTATIVES:	APPLICANT: Mr Campbell, Barrister SOLICITORS N/A RESPONDENT: Mr Clay, Barrister SOLICITORS Marsdens

JUDGMENT:

IN THE LAND AND Matter No . 10887 of 1998

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 16 March 2000

R K LAWRENCE

Applicants

v

CAMDEN COUNCIL

Respondent

REASONS FOR JUDGMENT ON PRELIMINARY QUESTIONS OF LAW

Bignold J:

A. INTRODUCTION

1. These are class 1 proceedings involving an appeal pursuant to the Environmental Planning and Assessment Act 1979 s 97 against the Council’s refusal of a development application to establish a “home business” on a parcel of land known as 729 Camden Valley Way, Catherine Field (the subject land) which is included in the Rural “A” Zone under Camden Local Environmental Plan No 48 (the LEP).

2. The Council has raised for preliminary determination certain questions of law concerning the issue whether the proposed development is permissible development in terms of the LEP on the agreed facts. The parties have requested the Court to determine those questions before embarking on any hearing on the merits of the case. There are also pending in the Court two related proceedings—(i) No 10888 of 1998 involving an appeal against an Order issued by the Council pursuant to the EP&A Act s 121B, requiring the cessation of an unlawful use of the subject land as a “home business” and (ii) No 20083 of 1999 involving an appeal against the Council’s decision refusing permission for the continuing occupation as a residence of a caravan placed upon the subject land that has been used as the Applicant’s residence since 1992.

3. On the hearing, the questions were slightly revised so that they now ask the following questions:
1. Is the Caravan (and annexe thereto) standing upon the subject land capable of falling within the definition of dwelling as adopted by Camden Local Environmental Plan 48 (CLEP 48)?
2. Is the proposed development capable of falling within the definition of home business adopted in clause 5 of CLEP 48 assuming that it:
(a) is carried on by the permanent residents of the dwelling and not more than one non-resident, if any; and
(b) does not take up floorspace of more than 50 square metres in the whole dwelling or ancillary building; and
(c) does not interfere with the amenity of the locality because of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, or otherwise; and
(d) does not involve exposure to view from any adjacent premises or from any public place of any unsightly matter, goods or products; and
(e) does not give rise to traffic levels out of keeping with those of the surrounding locality; and
(f) does not include acts of prostitution between persons of different sexes or of the same sec, such as:
(i) sexual intercourse, as defined in Section 61H of the Crimes Act 1900, for payment; and
(ii) masturbation of one person by another, for payment;
3. Is the proposed development capable of receiving development consent under the Environmental Planning and Assessment Act 1979 if at the time of determination of the consent authority, there is:
(a) no current development consent authorising the use of the Caravan (and annexe thereto) as a dwelling? Or
(b) no current approval under Section 68 of the Local Government Act 1993 for installation of a moveable dwelling or associated structure on the land?
4. If the answer to question 2 is No is the proposed development otherwise permissible in the 1(a) zone under CLEP 48.

4. At the conclusion of the argument, I announced my determination of the questions of law as follows:

Question 1 Answer:	Yes
Question 2 Answer:	Yes
Question 3 Answer:	No -but subject to the outcome of proceedings No 20083 of 1999
Question 4	The parties do not require this question to be answered in view of the answer to question 3

5. I indicated that the reasons for my determinations were reflected in what had been debated in the course of the hearing but that I would subsequently publish my reasons in writing, as I now do.

B. REASONS FOR DETERMINATIONS OF QUESTIONS OF LAW

6. To facilitate the determination of the questions of law, the parties tendered a statement of agreed facts (Exhibit 1). From this statement, the following most relevant facts may be distilled:-
1. The subject land, comprising some 1.5 ha is zoned Rural A under the LEP.
2. In December 1988, the Council granted approval under the Local Government Act 1919 Pt XI for the erection on the subject land of a residence and a shed. The approved shed proposed a floor area of some 390 m2 to be available for the following uses:
(i) stables for five horses
(ii) parking accommodation for rural machinery, horse float etc
(iii) home industry in an area measuring some 5.7 x 8.7 m; and
(iv) shower and refreshment room.
3. Thereafter the approved shed was built but the approved dwelling-house was not built.
4. The Applicants have lived on the subject land continuously from 1992 in a caravan and annexe placed thereon, such use having been originally approved by the Council on a temporary basis pending the erection of the approved dwelling house, and thereafter extended on the same basis. However, there is no current approval under the Local Government Act 1993 s 68 for that use, the Council having refused to extend the former approvals on 16 December 1999, in respect of which decision the Applicants have commenced the aforesaid class 2 proceedings by way of appeal pursuant to the Local Government Act 1993 s 176.
5. On 30 June 1997, the Council granted approval for the erection of a dwelling-house on the subject land but such building has not been constructed except for some of the foundations to that building.

C. RELEVANT CONTROLS IMPOSED BY LEP ON DEVELOPMENT WITHIN RURAL “A” ZONE

7. It is common ground that a “home business” (a defined term) is a purpose of development that is permissible with development consent in the Rural A zone: vide the LEP, cl 9(2).

8. The LEP definition of “home business” relevantly provides as follows:

home business means an industry or occupation carried on in a dwelling or in a building the use of which is ancillary to a dwelling where the dwelling and the land on which the dwelling is located are primarily used for residential purposes and where the industry or occupation:

(a) is carried on by the permanent residents of the dwelling and not more than one non-resident, if any;

(b) does not take up floorspace of more than 50 square metres in the whole dwelling or ancillary building;

(There are other express limitations stipulated in par (c), par (d), par (e), and par (f) but they are not relevant for present purposes.)

9. The terms “industry” and “dwelling” employed in the definition are themselves defined terms in the Environmental Planning and Assessment Model Provisions 1980 adopted by the LEP: vide cl 6. (Probably both definitions are caught up by the reference to the terms in the definition of “home business” although arguably, the reference to “dwelling” is intended in its ordinary meaning. However, I do not think this possibility is material to the present case.)

10. Those definitions are as follows:

industry means:

(a) any manufacturing process within the meaning of the Factories, Shops and Industries Act, 1962; or

(b) the breaking up or dismantling of any goods or any article for trade or sale or gain or as ancillary to any business;

but does not include an extractive industry;

dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile;

11. The Council’s principal contention is that the use since 1992 by the Applicants as their place of permanent residence of the caravan placed on the subject land does not qualify as a “ dwelling ” within the definition of “ house business ” for the following reasons:

(i.) the caravan per se is not a dwelling;

(ii.) since the use of the caravan since 1992 has been permitted by the Council only as a temporary use pending the erection of the approved dwelling-house (either the one approved in 1988 or the one approved in 1997) the use lacks the quality of permanence of residency implicit in the definition; and

(iii.) even if the Applicant’s use of caravan be held to qualify as a use of a dwelling, that use is not currently a lawful use because the Council has recently refused the Applicant’s current application to further extend the former approvals granted under the Local Government Act .

12. In my judgment, these arguments should not be accepted, save for my acceptance of the proposition that the reference to “dwelling” in the definition of “home business” is prima facie to be taken as a reference to a “lawful” dwelling: see the judgment of Mahoney JA in O’Brien v Warringah Shire Council (1977) 2NSWLR 417 at 437 where his Honour cites the principle of statutory interpretation “that a reference to an act done, prima facie, is a reference to an act validly or legally done”.

13. In my judgment, that same principle applies in respect of the reference to “dwelling” in the definition of “home business”.

14. In rejecting the Council’s principal contention, I think it clear that a caravan placed upon the subject land and used continuously since 1992 as the Applicants’ place of permanent residence relevantly qualifies as “a dwelling”. For more than a decade, many permanent residents of communities live in caravans or mobile homes, albeit generally located in caravan parks and the like.

15. In this respect, it may be noted in passing that the LEP definition of “caravan park” expressly recognises that movable dwellings, tents and caravans etc, may be used for “temporary or permanent accommodation” and that development for the purpose of a “caravan park” is a permissible purpose of development (with development consent) in the Rural A zone. (In referring to this definition, I of course, am not suggesting that the Applicant’s use of the caravan is a caravan park use thereof.)

16. The fact that the Council has not currently extended its former approvals to the temporary use of the caravan as a residence pending the completion of the approved dwelling-house means that that use is not currently an approved use. However, that legal status will change if the Applicants are successful in their pending class 2 proceedings in this Court.

17. It follows from what I have said, that unless the Applicants succeed in their pending class 2 proceeding and thereby attain the lawfulness of this use of the caravan on the subject land as their place of permanent residence, development consent to their application for a “home business” cannot be granted in law.

18. It was for the foregoing reasons that I determined the questions of law in the manner that I have earlier indicated.

19. As I understand the parties’ respective responses to my determinations of the questions of law, it is recognised that the determination of the pending class 2 proceedings will become a priority and will largely determine the future course of the two related proceedings. For example, if the Applicants succeed in their class 2 proceedings, it is likely that there will be no need to litigate the related proceedings. However, if they fail, the pending class 1 proceeding in respect of the “home business” development application must fail at the threshold.