McKeown v Ballina Shire Council

[2005] NSWLEC 13

Land and Environment Court

of New South Wales

CITATION:

McKeown v Ballina Shire Council [2005] NSWLEC 13

PARTIES:

APPLICANT
Frank McKeown

RESPONDENT
Ballina Shire Council

FILE NUMBER(S):

10913 of 2004

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Construction of a caretaker's cottage - dwelling entitlement - consistency with aims/objectives - lawful lot - public interest

LEGISLATION CITED:

Ballina Local Environmental Plan
State Environmental Planning Policy No. 1
North Coast Regional Environmental Plan

DATES OF HEARING:

09/12/2004

 
DATE OF JUDGMENT: 

01/20/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Pickles, barrister
SOLICITORS
Stone & Partners

RESPONDENT
Ms J Derry, solicitor
SOLICITORS
Allens Arthur Robinson

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

20 January 2005

10913 of 2004 Frank McKeown v Ballina Shire Council

JUDGMENT

Background

1 This appeal was lodged against council's refusal of a development application for the construction of a caretaker’s cottage on a small rural residential lot at Tintenbar, which was formerly used for public school purposes.

2 The caretaker's cottage is to be used in conjunction with the private dog kennels approved by council on the 16 April 2003, for the keeping of 6 dogs.

3 In refusing the application, council has identified the following issues:

· consistency with the aims and objectives of Ballina LEP 1987,
· whether the site has a dwelling entitlement,
· whether the site is inconsistent with the zone objectives,
· consistency with North Coast Regional Environmental Plan 1988 ,
· adequacy of a SEPP 1 objection to the minimum lot area for dwelling houses,
· adequacy of safe access,
· public interest.

The Site

4 The subject site is described as Lot 2, in DP 607237. It has a 137 m frontage to the Pacific Highway and a total area of approximately 1.18 ha. At present there two sheds on the land, one of which was the former school toilet block and the other council approved private dog kennels.

5 For many years the site and adjoining Lot 1, DP 60772 37 comprised the Tintenbar Public School and ancillary principal’s residence. In 1981 this adjoining Lot 1 was excised from the school site by a Crown subdivision and appropriated to the NSW Teachers Housing Authority, who erected a teacher’s residence.

6 Subsequent to the subdivision, the school occupied the site until its closure in 1988. At about this time, apparently the principal's residence and the majority of the school buildings were removed from the site.

7 The surrounding locality is characterised by a mix of rural dwellings located on allotments utilised for rural activities. The predominant form of development comprises detached single and two-storey brick/weatherboard housing. To the north east of the site there is a two-storey brick dwelling house set within associated ornamental landscape gardens.

The proposal

8 The new dwelling house is a single storey building, to be constructed using concrete blocks and with a colourbond roof. The proposed dwelling has a floor area of approximately 168 sq m and is setback approximately 24 m from the Pacific Highway.

9 The car access to the site is proposed via a new access way off the Pacific Highway, located towards the southern boundary of the site.

Planning controls
Ballina Local Environmental Plan (BLEP) –
Appointed date 27 February 1987

10 Under this plan, the site is zoned 1 (b) - Rural (Secondary Agricultural Land) and the proposed development is permissible with consent.

11 The zone objectives relevant to this application are the primary and secondary objectives as follows:

Clause 9

1 Objectives of zone

A The primary objective is to regulate subdivision and use of land within the zone:


(a) to encourage the productive use of the land and enable development ancillary to agricultural land uses, particularly dwelling houses, rural workers dwellings and rural industries, and

(b) to permit a range of uses which are compatible with the rural character of a land, particularly tourist oriented developments and recreational establishments and recreational facilities, and …

B The secondary objectives are to ensure that development within the zone:

(a) maintains the rural character of the locality, and
(b) does not create unreasonable or uneconomic demands, or both, for the provision or extension of public amenities or services.

(a) development of land within the zone for public works and services, outside the parameters specified in the primary and secondary objectives, subject to the impact on agricultural resources be minimised, where practical,
(b) development of land for extractive resource purposes, and
(c) development of an industry which, by reason of the processes involved or the method of manufacture or the nature of the building materials used or produced, requires isolation from other buildings.

12 Also relevant in this matter are the provisions of cl 12 - Dwelling Houses. This includes the following:

(3) A dwelling house may, with the consent of the council, be erected on vacant land to which this clause applies only where that land:

(a) has an area not less than :

(i) …
(ii) in the case of land within Zone No. 1(a2), 1(b), 1(d) 1(e), 7(a), 7(c), 7(d1), 7(f), 7(l) – 40 hectares.
(b) is an existing holding,
(c) is an allotment created by subdivision to which development consent has been granted in accordance with cl 11,
(d) is an allotment created by subdivision to which development consent was granted in accordance with cl 13 as in force, which consent for the subdivision was granted, but before the gazettal of Ballina Local Environmental Plan 1987 (Amendment No. 36), or
(e) is an allotment created by subdivision to which development consent was granted before the appointed day, not being a development consent which was granted subject or condition that a dwelling house could not be erected on that allotment,
(f) is an allotment not in the 7 (f) zone created on or after the appointed day by subdivision carried out in accordance with Pt 12 of the Local Government Act 1919 where:
(i) the consent of the council was not required for the subdivision, and
(ii) before the subdivision was carried out, a dwelling house could have been erected under this clause on the land comprising that allotment.

(3A) Notwithstanding the provisions of subclause (3), the council may consent to the erection of a dwelling house on an allotment of land that was lawfully created before the appointed day and upon which a dwelling house could lawfully have been erected immediately prior to the appointed day.

13 This REP was updated 5 June 2001 and contains various regional planning details including aims that:

(a) to develop regional policies that protect the natural environment and guide development into a productive yet environmentally sound future,

(b) to consolidate and amend various existing policies applying to the region, make them more appropriate to regional needs and place them in an overall context of regional policy,

(c) to provide a basis for the co-ordination of activities related to growth in the region and encourage optimum economic and social benefit to the local community and visitors to the region, and

(d) to initiate a regional planning process that will serve as a framework for identifying priorities for further investigation top be carried out by the Department and other agencies.

The evidence

14 Detailed evidence on behalf of council was presented by:

· Mr R Mallard, town planner with council (Exhibit 2).
· Mr J Clark, town planner with DIPNR (Exhibit 3).
· Mr G Sciffer, land use planner with RTA (Exhibit 4).
· Mrs Rustelli, neighbour from Lot 1, Pacific Highway.

15 For the applicant, detailed evidence was presented by:

· Mr D Chapelle, consulting town planner (Exhibit A),
· Mr D Rytenskild, traffic consultant (Exhibit B).

Discussion of the evidence

16 Insofar as a number of issues were initially identified, further conferencing between the experts reduced these, particularly those concerned with access and building details. I note council’s acceptance of the actual building plans, subject to compliance with the other issues.

17 The threshold issue then concerns the merits of allowing the proposal on this relatively small parcel of approximately 1.184 ha, where dwelling houses are generally restricted to lots with an area of not less than 40 ha. Notwithstanding this, cl 12 does provide opportunities for the approval of dwelling houses, under certain conditions.

18 According to Mr Pickles’ submissions, there are several avenues available to enable consent to be granted for the caretakers residence. One avenue is to allow the caretaker’s cottage in conjunction with the approved dog kennels.

19 Whilst this is opposed by the council, nevertheless both parties have referred to the development history of the site, which has involved a number of development applications over a considerable period of time, leading to the approval of the dog kennels. This development history includes:

(a) this site, together with the adjoining Lot 1 was originally used as the Tintenbar Public School from about 1887.
(b) about October 1979, the site was subdivided (i.e. Lots 1 and 2) created by way of Crown Subdivision, which was registered on 18 March 1980. This was not subject to any development consent by council.
(c) until 1988 the land was used for school purposes and this included a dwelling house that was the ancillary principal’s residence. Since that time the land has remained vacant, except for the sheds.
(d) in May 1996, a development application for the erection of a single storey brick and tile dwelling was lodged. This was refused on grounds of inconsistency with the provisions of BLEP 1987. This decision was appealed (Appeal No. 10094 of 1997) and subsequently dismissed.
(e) in December 1997 a development application was lodged for a Bed and Breakfast (B & B). Council refused that application, predominantly on the grounds that was prohibited under the provisions of BLEP.
(f) in April 2003, a development application for the construction of private dog kennels, for the keeping of six dogs was lodged. On the basis that the keeping of private dogs on a rural property is permissible with consent, conditional consent was erected on the basis that "the proposal is for the erection of six private kennels to house family pets not for commercial breeding or boarding kennels."
(g) On 9 January 2004, the current development application for the caretaker's residents was lodged, resulting in the current appeal.

20 From this, Mr Pickles' first submission is that the proposal is consistent with the zone objectives because the proposal does not involve subdivision and dog kennels have been approved as an agricultural use and the caretaker's cottage is now an allowable ancillary use. He notes that from the history of the site, that it has never previously been used for agricultural purposes, until the dog kennel approval.

21 Reference then to the council report on the dog kennels shows that this development was determined on the basis that it could be appropriately classified as a stock home, as follows:

Under the BLEP there is no specific definitions of kennels, and in this instance the definition considered appropriate would-be "stock home" which is defined as:

"Stock home" means a building or place where animals are bred, trained or accommodated and nurtured for gain for reward except in relation to the use of land that for the purpose of agriculture".

22 This report concludes that:

“ The use of the property and construction kennels the keeping of six dogs which are kept as family pets, would ordinarily be consistent with the objectives of the zone and considered in keeping with the rural character of the locality."

23 Whilst I accept that council has categorised the development as a stock home, despite there being some argument about the degree of gain or reward, nevertheless the dog kennel application was made on the basis that conjoint residential occupation was not necessary with the 6 dog development and the following condition of consent was apparently accepted:

8 This approval is to the construction of a dog kennel (containing six night boxes and exercise area) and does not infer that a dwelling entitlement exists on the subject property.

24 With the current change of intentions, now requiring the caretaker’s cottage, I note Ms Derry’s opposing submissions that the consent was granted on the basis that the dog kennels were for family pets and that under these circumstances, a caretaker’s residence not associated with any primary agricultural activities is not appropriate.

25 Having considered these competing submissions, it seems to me that the stock home application in this case, still necessitates the primary use of the land for agricultural purposes. When this is achieved, then an ancillary caretaker’s cottage may be appropriate. However it appears to me that on the facts and degree on any agricultural use for the six approved dogs development, the proposed caretaker’s cottage would become the dominant use. Under these circumstances when the cottage is not an ancillary use, I do not consider that this avenue is reasonable or appropriate.

26 The next avenue proposed by the applicant concerns the lawful status of the subject Lot 2, whereby cl 3A of BLEP allows consent to be granted. As the lot was created by Crown Subdivision, on 18 March 1980, I accept the applicant’s submission that it is a lawfully created lot, despite not receiving development consent from council and this was before the appointed day of 27 February 1987 for BLEP. Accordingly the provisions of IDO 1 would then have applied for any subsequent dwelling application.

27 IDO 1 did not prohibit dwellings and so it is possible that a dwelling could have lawfully been erected, notwithstanding the qualification that the minimum area provisions would still have applied. But in this regard, I accept Mr Pickles’ submissions that a SEPP 1 objection could have been lodged, which could have enabled consent to be granted. Furthermore I rely on the submissions that it is not necessary to find that such an application would have been granted consent, instead it is only necessary to find that such application could have been granted consent.

28 Associated with this, I note Mr Pickles' further submission that as the subject site was lawful before the appointed date, and was owned by the Crown, then a Crown development application could have been made. Considering the exclusions applying to Crown development applications and that IDO 1 did not prohibit dwellings, it seems to me that a dwelling house could lawfully have been erected under these circumstances.

29 Therefore I consider the provisions of cl 3A of BLEP 1987 are activated in this case.

30 In addition to this, Mr Pickles has identified a third avenue for consideration, which is under the provisions of cl 12 (3) (e). This is on the basis that the subject site is classified as an allotment created before the appointed date. Insofar as there is a qualification regarding "not being a development consent …", I accept Mr Pickles’ submissions that the term consent can realistically be given a wide interpretation considering that some form of approval/consent was given to the subdivision, via the Crown Subdivision.

31 Opposing this, I note Ms Derry’s submissions that compliance with this provision is dependent on satisfaction of conditions of consent imposed by Council, and as these were not granted, then this section does not apply.

32 Whilst there is legal argument regarding the status of the Crown Subdivision "consent", I am inclined to accept the submissions that the subject lot complies with cl 12 (3) (e), because it was created before the appointed date and there were no apparent conditions in its creation restricting the erection of a dwelling house.

33 In summary then, I rely on Mr Pickles’ submissions that because the lot was created by Crown Subdivision, it obtained certain benefits at the time, which then allows it to come under the provisions of cl 12(3A), and cl 12(3)(e), enabling the merits of the proposal to be assessed.

34 The principle merit considerations concern the proposals compliance with the objectives and acceptability of the SEPP 1 objection to the minimum area development standard of 40 ha in cl 12(3) (a) (ii), of BLEP for erection of a dwelling house in the 1(b) zone.

35 With regard to the objectives, it seems that the approval of the dog kennels as a stock home, acknowledges an acceptable form of agricultural use on this site, which has never previously been used for agricultural purposes and therefore zone objective 1A(a) is satisfied. In addition to this, objective (b) permits a range of uses, including tourist oriented developments, which presumably include some buildings.

36 Considering the scale of the proposed caretaker’s cottage and the fact that there were previously school building and principal’s residence on the site for most of its existence, I consider the rural character objectives for this site are reasonably achieved. In this regard I accept the opinion of Mr Hallam that:

When considered in isolation, it is conceded that the impact of the proposed development upon the pattern of settlement is not likely to be significant. However, a proliferation of similar developments in the rural localities in the Shire will adversely impact upon settlement patterns. …
The level to which this proposed development (when considered in isolation) will alter the rural character is considered to be relatively minor, however a proliferation of such development would have an adverse impact upon the character of the rural locality, creating a sense of urban sprawl across the rural landscape.

37 Accordingly I consider the proposal demonstrates reasonable consistency with the zone objectives. Insofar as the zone objectives have been satisfied, I have then considered the SEPP 1 objection, in the event that a development application for this lawfully created lot may require determination of a SEPP 1 objection applicable under the BLEP or IDO 1.

38 The detailed SEPP 1 objection does not specifically identify the underlying objectives of this standard. However Mr Mallam says that "the intention of the 40 ha development standard is to protect the long term potential and viability of agricultural land in the Shire and to ensure development in rural localities is planned." But he then says that council does not have a planned strategy for housing within rural areas and that the approval of rural housing on allotments below the 40 ha minimum in an ad hoc manner will increase the environmental, economic and social cost to the community.

39 After further discussion by the planners, I accept their general agreement that the underlying purpose of the standard also includes the management of rural housing and prevent fragmentation of rural land so as to protect the long term potential and viability of agricultural land.

40 Accordingly, the SEPP 1 objection identifies a number of reasons why it is unnecessary and reasonable to comply with the standard and these include:

· the surrounding subdivision pattern of small lots already exist in the area each of which enjoys a dwelling entitlement with adjoining housing clustered to the immediate north of subject site,

· no conflicting land uses will be created by this proposal, as a majority of the surrounding lots are already used for rural residential purposes,

· the pattern of settlement within the immediate vicinity will not be adversely affected, thus the rural character of the area will be maintained,

· no prime agricultural land will be lost or sterilised through agricultural buffers. The agricultural potential of the land, when considered in its current form, is limited due to its relatively small land area. The small holding of the land, topography, proximity to Pacific Highway and surrounding land uses makes most forms of agricultural unviable on the holding,

· the parcel of land is unique and the granting of consent could not be construed as the creation of an effective precedent capable of being relied on in respect of alternative locations and applications. The property when considered in isolation contains characteristics which negate the creation of a precedent for other land which may be subject to the use of SEPP 1.

· the proposal does not create any unreasonable or economic demand for the provision of public amenities or services in respect of the property but rather significantly reduces any potential demand in relation to the property which is entirely consistent with the objectives of the Act.

41 Having considered the various details contained in the SEPP 1 objection, together with the planner’s evidence, it seems reasonable to take into account the unique status of this lot, which has never been used for agricultural purposes, until the recent dog kennel approval. Prior to this, it has predominantly been used for school purposes and these included erection of a dwelling on the land.

42 By reference to the derived underlying objectives of the development standard, it seems to me that this proposal will not result in the fragmentation of rural land because it is an existing allotment that does not involve subdivision and has never previously been used for agriculture. As the site has previously contained a school and dwelling and is within proximity of other rural/residential dwellings and it will not create demand the services, I do not consider it will create unmanageable rural housing consequences, based on the evidence before the Court.

43 Insofar as Mr Mallam identified the desirability of planning rural localities, no initiatives to formulate a strategy have been taken by council, thereby indicating that this is apparently not a significant priority.

44 Notwithstanding this, Mr Clarkson’s evidence goes to be State/regional planning impacts of the proposal. He does not support the SEPP 1 objection for the following reasons:

· the application represents a major departure from a development standard intended to protect the long-term viability of agricultural land in the Shire of Ballina;

· the proposal is not related to agricultural pursuit, and it is not appropriate that rural area should be used primarily for residential purposes unless part of the agreed strategy for rural housing. In this regard existence of dog kennels on the site is not use which justifies departure from the standard,

· the proposed residential use of the land is not strategically planned by means of an agreed rural residential release strategy, as provided for by being North Coast Regional Environmental Plan, and reflected through the local government planning process. The Ballina Shire Council has made a decision not to pursue such a strategy in this area;

· the application is not consistent with the intent of SEPP 1. The Policy should be used only in circumstances where strict compliance with the standard is unnecessary and unreasonable and/or it is not in the public interest to maintain the standard. The Policy is not to be used as a substitute policy ensured to allow dwellings on scattered small allotments. Use of the policy in such circumstances sets an undesirable precedent; and,

· an amendment to SEPP 1 is nearing finalisation, which has the effect of not permitting development of this type where departure from the standard is more than 10%.

45 In my assessment, these objections are of a generalised nature and do not sufficiently relate to the specific status of subject lot. They ignore the fact that council has granted consent to the dog kennels on the basis of the stock home classification, albeit with a somewhat tenuous link to agricultural use. Under these circumstances then, I do not consider that this proposal unduly interferes with the long-term viability of agricultural land, instead the proposed caretaker’s cottage is consistent with the approved dog kennels use.

46 Furthermore, as there are no rural/residential development strategies, I do not consider there is any compelling evidence, which indicates the erection of the proposed caretaker’s cottage will cause adverse environmental, economic or precedential impacts, due to the unique status of this lot and the very limited opportunities for its other individual agricultural uses, or consolidation opportunities with adjoining rural properties for agricultural uses.

47 For these reasons then, I consider this proposal satisfies the derived objectives of the development standard, so that strict compliance is unnecessary and unreasonable in this case.

48 The next issue raised concerns the adequacy and safety of access from the site onto the Pacific Highway. Following conferencing between the traffic experts, I accept their agreement that the property access can be relocated towards the southern boundary and reasonable conditions of consent imposed, which adequately address this access issue. The applicant accepts these conditions.

49 The public interest considerations include the objections from the neighbours on the adjoining Lot 1, located to the north. Their concerns are about the safety of the access on the Pacific Highway and adverse impacts on their outlook. Having inspected their property, I do not consider the proposal would unreasonably intrude into their primary view corridors and I accept that planners opinions that these objections are not sufficient to warrant rejection of the proposal.

Conclusions

50 Having considered the evidence, the submissions and undertaken a view, I have decided to present an interim finding, taking into account the disparate possible submissions regarding the legal status of the subject lot, made at the on-site hearing.

51 In my assessment, the subject lot was created by Crown Subdivision on 18 March 1980 which precedes the appointed day of 27 February 1987 for BLEP operation. Accordingly the provisions of IDO1 would have applied and this did not prohibit dwellings on the land, although it did contain minimum lot provisions, which could have been addressed in a merit application, possibly by way of a SEPP1 objection.

52 Therefore I am satisfied that this is a lawfully created lot upon which a dwelling house could have been lawfully erected, prior to the appointed day. This enables the provisions of cl 12(3A) to apply, allowing consent to be granted to a dwelling house.

53 I also consider that the subject lot satisfies the requirements of cl 12 3(e), to enable consent to be granted to a dwelling house on this lot. However such consent is subject to the merits of the application which includes satisfaction of the objectives and a SEPP 1 objection to the minimum area requirements.

54 It is apparent that the approved use of the dog kennels has been accepted by council as a form of agricultural use which is consistent with the zone objectives and I accept this position. Consequently other or associated developments are permitted on this site, such as recreational and tourist facilities, which are likely to have a building component, that impacts on the rural character.

55 Taking into account the character of the surrounding area, where there are many dwellings on small rural allotments and the fact that this site previously contained a school and residence, I do not consider this proposal is inconsistent with rural character of this locality and therefore the zone objectives are satisfied.

56 In consideration of the merits of the proposal, it seems to me that the proposal satisfies the derived objectives of the minimum area standard and does not take out of production, agricultural land, due to its use for the dog kennels. Furthermore, the proposal does not create demand for associated services and therefore the SEPP 1 objection is made out in my opinion. With respect to the arguments presented regarding precedence, I give them little weight because of the unique status of this lot, which was created by Crown Subdivision and used for a school and residence for a considerable period of time since 1887. Therefore the combined change in use to dog kennels together with the caretaker’s cottage is consistent with the controls in my assessment.

57 Insofar as reference was made to the previous appeal on this site, which was dismissed, the then Senior Commissioner specifically stated the right to construct a house was not pursued. Also no SEPP 1 objection was lodged, therefore the application failed. There are different circumstances in the subject case.

58 With regard to the character of this locality, whilst reference was made to other similar “undersized lots”, the distribution plan shows they are spread out through the Shire and in my opinion no precedential effect should occur as a result of the proposed development of this former school site, which distinguishes it from the other small lots.

59 For these reasons then, I consider the conditional consent could be granted to this proposal on its merits.