Stock v Wingecarribee Shire Council

[2021] NSWLEC 1066

Land and Environment Court

New South Wales

Medium Neutral Citation:

Stock v Wingecarribee Shire Council [2021] NSWLEC 1066

Hearing dates:

4-5 February 2021

Date of orders:

16 February 2021

Decision date:

16 February 2021

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The Orders of the Court are:

(1) The appeal is dismissed.

(2) Development Application No. 20/0623 for the construction of a building described as a secondary dwelling at 506 Greenhills Road, Werai, is refused.

(3) The exhibits, other than Exhibits 1, A and C, are returned.

Catchwords:

DEVELOPMENT APPLICATION – secondary dwelling – characterisation of secondary dwelling – permissible development – location of the secondary dwelling would result in an adverse impact of the character of the rural area

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy (Affordable Rental Housing) 2009

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

State Environmental Planning Policy No 44—Koala Habitat Protection

State Environmental Planning Policy No 55—Remediation of Land

State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011

Wingecarribee Local Environmental Plan 2010

Cases Cited:

Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114

Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190

Loccisano v Hornsby Shire Council [1996] NSWLEC 122

Parsons v Hornsby Council [1995] NSWLEC 69

Sweeney Pastoral Company v Snowy River Shire Council [1993] NSWLEC 189

Texts Cited:

Macquarie Dictionary (7th ed)

Macquarie Dictionary (Online Edition)

Wingecarribee Shire Rural Lands Development Control Plan 2010

Category:

Principal judgment

Parties:

Jenny Stock (Applicant)
Wingecarribee Shire Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
McCabe Curwood Pty Ltd (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2020/185882

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 20/0623 for the construction of a secondary dwelling (the proposal) at 506 Greenhills Road, Werai (the site) by Wingecarribee Shire Council (the Council).

2. The hearing commenced with a view of the site in the company of the parties and their experts. The view included observing the site from a distant location to the north of the site. During the site view, the Council expressed a view that the proposal would be characterised as a secondary dwelling if the proposed location was changed to a position on the hill between the principal dwelling and the equine facilities.

3. The hearing was conducted thereafter via MS Teams.

4. The applicant sought an adjournment of the hearing on the first day for an opportunity to provide information to enable an assessment of the proposed vehicular access to the secondary dwelling and vegetation clearing. The Council opposed the adjournment on the bases that the applicant was put on notice of the issue of a lack of information regarding the vehicular access to the secondary dwelling as early as 28 November 2019 (Ex 3, tab 2) and the issue was raised as a contention in the Statement of Facts and Contentions filed 5 August 2020 (Ex 1); and an adjournment of the hearing would be contrary to the just, quick and cheap resolution of the issues in the proceedings. The applicant agreed that an adjournment was not necessary if I determined the first two contentions and handed down findings, and, if I found in favour of the applicant on those contentions, the additional information could then be provided, and final orders handed down thereafter.

Issues

5. The Council’s contentions can be summarised as:

• The proposed dwelling is properly characterised as a “dual occupancy (detached)” which is prohibited in the zone. The proposal is not properly characterised as a secondary dwelling because it is not established in conjunction with another dwelling.

• The siting of the proposed dwelling will have an unacceptable impact on the rural landscape character of the area.

• The proposed dwelling will result in land use conflicts with surrounding agricultural activities.

• Insufficient information has been provided to enable a proper assessment of the proposed vehicular access and any proposed vegetation clearing.

• Insufficient information has been provided to enable a proper assessment of the proposed earthworks.

• The proposal is not in the public interest and will result in an undesirable precedent for approval of similar developments.

The site and its context

6. The site is approximately 85 Hectares (Ha). The site is on the western side of Greenhills Road, and is entered via a driveway from Greenhills Road. The driveway provides access to the principal dwelling on the hill, and to the equine facilities which are located further down the hill and to the north-east of the dwelling. The site is known as “Werai Park”.

7. The principal dwelling is setback approximately 350m from Greenhills Road. The equine facilities are clustered approximately 160m to the north of the principal dwelling (Ex A, Attachment 3, f 14). The site falls gently to the east from the equine facilities across fenced paddocks to Greenhills Road.

The proposal

8. The proposal is for a secondary dwelling located in a paddock in the north-eastern corner of the site, to the east of the equine facilities. The secondary dwelling consists of a single storey dwelling with two bedrooms, two bathrooms, a kitchen, a laundry, a large open plan dining and lounge room, and a verandah wrapping around the north-eastern corner. The secondary dwelling is a building kit known as “Glenbrook 14 Modified” to be supplied by Kitome and designed by Peter Turner & Associates. The footprint of the secondary dwelling, including the verandah, is 10.33m x 13.96m, an area of 144.21m²; and excluding the verandah, 116.68m² (Ex A).

9. The setout point for the secondary dwelling is the north-eastern corner of the verandah, which is 49m from the Greenhills Road boundary and 21m from the side boundary (Exs A and D). The finished floor level (FFL) of the secondary dwelling is RL 576.15 (Ex A).

10. The proposal includes a new crossover and driveway from Greenhills Road to a handstand area adjacent to the secondary dwelling. The location of the centreline of the driveway is indicated on a survey which, according to the submission of the applicant, includes the incorrect setout point for the proposal (Ex B, tab 2). No documentation has been provided for the driveway and hardstand.

11. The applicant submitted that the purpose of the application is to house a farm manager and that the manager’s dwelling needed to be close to the paddocks where the horses are kept.

Planning framework

12. There are preconditions to the exercise of power to grant development consent for the proposal pursuant to cl 7(1) of the State Environmental Planning Policy No 55—Remediation of Land, cl 7(1) of the State Environmental Planning Policy No 44—Koala Habitat Protection and cl 10(1) of the State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011. No contentions have been raised by the Council regarding these preconditions.

13. The site is zoned RU2 Rural Landscape and pursuant to the Wingecarribee Local Environmental Plan 2010 (LEP 2010). The objectives of the RU2 zone are:

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

• To maintain the rural landscape character of the land.

• To provide for a range of compatible land uses, including extensive agriculture.

• To provide opportunities for employment-generating development that is compatible with, and adds value to, local agricultural production through food and beverage processing and that integrates with tourism.

14. Secondary dwellings are permitted with consent in the RU2 zone. Any other development not specified in items 2 (permitted without consent) or 3 (permitted with consent) are prohibited, at item 4 of the RU2 zone of the Land Use Table in LEP 2010. Secondary dwelling is defined in the dictionary of LEP 2010 as follows:

secondary dwelling means a self-contained dwelling that—

(a) is established in conjunction with another dwelling (the principal dwelling), and

(b) is on the same lot of land as the principal dwelling, and

(c) is located within, or is attached to, or is separate from, the principal dwelling.

Note—

See clause 5.4 for controls relating to the total floor area of secondary dwellings.

Secondary dwellings are a type of residential accommodation—see the definition of that term in this Dictionary.

15. Clause 5.4 of LEP 2010, Controls relating to miscellaneous permissible uses, includes, at subcl (9), the following control for the total floor area of a secondary dwellings:

(9) Secondary dwellings If development for the purposes of a secondary dwelling is permitted under this Plan, the total floor area of the dwelling (excluding any area used for parking) must not exceed whichever of the following is the greater—

(a) 60 square metres,

(b) 33% of the total floor area of the principal dwelling.

16. The minimum lot size for the site is 40 Ha (cl 4.1 and Lot Size Map – Sheets LSZ_008 and LSZ_008C of LEP 2010).

17. Development consent is required for earthworks that alter the existing ground level by more than 600mm, at cl 7.3 of LEP 2010.

18. The site includes categories 2 and 3 streams (Natural Resources Sensitivity Map – Sheet NRS_008 of LEP 2010). Clause 7.5 of LEP 2010, Natural resources sensitivity—water, requires the consent authority, or the Court exercising the functions of the consent authority, to consider any potential adverse impact of the proposal on the natural flow regime; the water quality of receiving waters; the waterway’s natural flow paths; the stability of the waterway’s bed, shore and banks; and the flow, capacity and quality of groundwater systems, at cl 7.7(3).

19. The Wingecarribee Shire Rural Lands Development Control Plan 2010 (DCP 2010) applies to land zoned RU2, at A1.3.

20. DCP 2010 includes the following statement regarding cut and fill at A3.6.1 and objectives at A3.6.2:

“A3.6.1 Introduction

In undertaking the site analysis, applicants are reminded that Council expects new development be designed to respond to a site’s topography. Cut and fill is not considered an acceptable alternative to responsive design. Excessive cutting and filling of a site disturbs the natural soil profile and results in built form that is not sensitive to the existing landform on a site.

A3.6.2 Objectives

a) Encourage stepping of buildings in response to existing topography.

b) Minimise disturbance to existing landforms and soil profile.

c) Minimise use of retaining walls.”

21. DCP 2010 includes the following requirements for the siting of rural buildings, at A3.7:

“In future, the assessment the location and style of rural buildings, including dwellings, will be based on an assessment of the Site Analysis report with regard to the following guidelines:

(a) The maximum height of any non-residential building shall be determined by Council staff with reference to the objectives of the zone, the location of the proposed development and any relevant environmental and amenity considerations.

(b) No single rural building or structure shall generally occupy a ground level building footprint of more than 600 square metres (except as permitted in Section B6.5.2 – Equine Facilities). The building footprint excludes any area on which works or structures are carried out or constructed beneath the natural ground level, provided disturbance of the natural ground surface is kept to a minimum and there is no adverse visual or environmental impact.

(c) The total area of all land occupied by the ground level building footprint of all rural buildings and other structures shall not generally exceed a total ground level footprint of 1000 square metres (except as permitted in Section B6.5.2 – Equine Facilities), excluding any area on which works or structures are carried out or constructed beneath the natural ground level.

(d) All rural buildings are generally to be within building envelopes that are separated from each other by a distance of not more than 30 metres and not less than 5 metres.

(e) No rural building or structure is to be located closer than 20 metres from any public road, unless assessed by Council as appropriate due to site constraints.

…”

22. DCP 2010 includes the following objective and performance standards for the siting of residential development, at B2.1.2:

“B2.1.2 Objectives for the Siting of Residential Development

In assessing an application for residential development in a rural area, Council will consider the extent to which the following objectives have been addressed:

(a) development is responsive to the scenic and historic landscapes of the Shire.

(b) development recognises, protects and promotes the scenic qualities of its immediate and wider setting. Rural developments must respect the landscape setting, not attempt to dominate it.

(e) dominant scenic character and quality of the Shire are maintained by ensuring that new developments are located designed, coloured and landscaped in a way that complements the existing and desired future character of the area in which they are situated.

(g) siting of rural development leads to appropriate outcomes for the community while considering the privacy and amenity of adjacent property owners.

In order to assess the extent to which these objectives are addressed, Council will apply the following performance standards to the application.

B2.1.3 Performance Standards - Development Location

(a) Development will be placed in locations on the land where visual impacts on views, features such as ridge lines, hill tops, horizons, prominent slopes and topographic features will be minimised, when these are viewed from a public place.

(b) The visual impact of buildings with respect to siting and visibility will be assessed from all locations from which they are reasonably capable of being viewed (its visual catchment). A building will generally be acceptable if it has a low impact on its overall visual catchment, provided that it does not have significant impacts on individual viewing places of a public place or Heritage Conservation areas.

(e) Where there are two or more buildings, for example homes, sheds and ancillary buildings, they will be clustered to reduce the space that they occupy and be landscaped to reduce their accumulated impacts. Building groups that spread across the landscape and increase the visibility and bulk of the built form will not be permitted. Replacement buildings are to be sited in a location that complies with this DCP. The existing siting of a building that is to be demolished may not be approved for the siting of a new building.”

23. DCP 2010 includes the following objective and development controls for secondary dwelling developments, at B2.3:

“Dual occupancy and Secondary Dwelling developments offer increased housing choice within rural areas, providing a level of independent living for both younger and older family members, as well as for guests. However, it is important to ensure that such development does not adversely impact on rural localities stimulating an increase in the number of independent dwellings scattered across the landscape.

…

Applicants are reminded that, although the land use table in WLEP permits, with consent, development for the purposes of a dwelling house, attached dual occupancy, secondary dwelling and farm stay accommodation in the rural and environmental zones, applications for such development will be assessed on their merits to ensure that the objectives of the zone and the environmental amenity of the locality are not compromised.

B2.3.2 Objectives

In assessing an attached dual occupancy or a secondary dwelling development Council will consider the extent to which the following objectives are addressed:

(a) The development ensures a high level of amenity, both for it and for the principal dwelling.

(b) No adverse impact on the character of a rural area will occur through any dual occupancy or secondary dwelling development.

(c) The cumulative effects of dual occupancy or secondary dwelling development, both on the subject site, or within the vicinity.

B2.3.3 Development Controls

(a) Each dwelling shall have its own independent access.

(c) A secondary dwelling which is separate from the principal dwelling shall be located no more than 50 metres from the principal dwelling so that the effect of the relative locations is to create a ‘group’ of buildings.

(d) A secondary dwelling which is separate from the principal dwelling shall be designed to be compatible with the design of the principal dwelling, particularly with regard to design, materials, colour, finish, roof treatment and roof pitch.”

Expert evidence

24. The applicant relied on the expert planning evidence of Scott Lee and the Council relied on the expert planning evidence of Jeremy Swan. The planning experts prepared a joint report (Ex 4) and gave oral evidence.

Proper characterisation

The competing arguments

25. The parties agreed that the proposed secondary dwelling has a total floor area of 144m², which is 28% of the total floor area of the principal dwelling, and thus complies with the numerical control at cl 5.4(9)(b) of LEP 2010.

26. The parties disagreed on whether the proposal is characterised as a secondary dwelling under the LEP 2010 dictionary definition of secondary dwelling. The parties agreed that the proposal satisfies the requirements under (b) and (c) of the dictionary definition but disagreed on whether the proposal satisfies the requirement under (a), “is established in conjunction with another dwelling (the principal dwelling)”.

27. The applicant submitted that the proposal is established in conjunction with another dwelling (the principal dwelling), for the following reasons:

• The proposal is to provide accommodation for a site manager for the established equine business.

• The proposal complies with the numerical requirements of cl 5.4(9) of LEP 2010 and this is deliberate so as to comply with the planning controls that apply to a secondary dwelling.

• There are no prescribed development standards with LEP 2010 that specify a minimum or maximum distance between a principal dwelling and a secondary dwelling. Mr Swan’s argument that because the secondary dwelling is 400m from the principal dwelling, (a) is not satisfied, has no basis. The mere fact that the principal dwelling and secondary are located approximately 400m apart is irrelevant to the determination of whether the relevant requirements under (a), (b) and (c) are met.

• The maximum separation distances between rural buildings as required by DCP 2010 have not been routinely applied to a number of recent development applications for secondary dwellings where development consents have been granted.

• Both the principal dwelling and the proposal will be used as accommodation on the land which is being used as an equine business. This is important in the context of Pearlman CJ’s decision in Sweeney Pastoral Company v Snowy River Shire Council [1993] NSWLEC 189 (Sweeney) at [13] (as adopted by Stein J in Parsons v Hornsby Council [1995] NSWLEC 69 (Parsons) and Pearlman CJ in Loccisano v Hornsby Shire Council [1996] NSWLEC 122 (Loccisano)).

• In Hornsby Shire Council v Trives(No 3) [2015] NSWLEC 190 (Trives) at [72], Biscoe J adopted the reasoning in Sweeney, Parsons and Loccisano.

• It is open to the Court to characterise the proposed development as a secondary dwelling and not a dual occupancy as suggested by the Council, because there will be a clear functional nexus between the existing principal dwelling and the proposed secondary dwelling. There is an interdependence between the use of the principal dwelling and the proposed secondary dwelling.

• Nothing prevents a secondary dwelling from having its own services and driveway entry.

28. The Council submitted that the proposal is not established in conjunction with another dwelling (the principal dwelling), for the following reasons:

• The location of the proposal 400m from the principal dwelling is completely contrary to the “cluster control” (B2.1.3(e) of DCP 2010) and the objective for the RU2 zone to maintain the rural landscape character of the land.

• Biscoe J dealt with the phrase, “established in conjunction with” in Trives, whereas Pearlman CJ and Stein J dealt with the phrase “used in conjunction with” in the other cases. Biscoe J’s decision is therefore more helpful in this interpretive task.

• The Macquarie Dictionary 7^th ed definition of conjunction is helpful; it means conjoined, and conjoined means to join together, unite, combine, associate.

• Although a functional nexus is not demonstrated by mere physical location (Loccisano and Trives at [72]), the substantial physical distance between the principal dwelling and the proposal should not be ignored, because the further away the two buildings are, the more difficult it is to establish the functional nexus.

• There is no functional nexus or relationship between the principal dwelling and the proposal. Both dwellings can function separately, they have separate vehicular entries, separate wastewater systems and the proposal does not rely on the principal dwelling but is on its own isolated site with independent facilities.

• The functional relationship is between the proposal and the equine business because the proposal is to house the farm manager. The principal dwelling and the equine business have separate development consents and are not interdependent. Therefore, the functional nexus is between the proposal and the business, not the principal dwelling.

• The fact that the proposal is for a second dwelling on the same lot as the principal dwelling does not satisfy (a) of the definition. Having the two dwellings on one lot satisfies (b) of the definition, and if it also satisfied (a) of the definition, it would give (a) no work to do.

• Properly construed, the proposal is a self-contained dwelling and is not a secondary dwelling. The use does not fall within item 3 of the RU2 zone in the Land Use Table of LEP 2010 and so the proposal is prohibited.

Consideration

29. I reject any reference to the objectives and performance standards of DCP 2010 as being relevant to the task of characterising the proposed use. The task in the first contention is to identify the proper construction of the relevant terms of LEP 2010.

30. The dictionary definition in LEP 2010 of a secondary dwelling has four requirements, that the proposal is for a self-contained dwelling and the requirements at (a), (b) and (c). Those requirements are conjunctive and so the proposal must satisfy all the requirements in order to fall within the LEP 2010 dictionary definition of a secondary dwelling, being a nominate permissible use in the RU2 zone in the Land Use Table of LEP 2010.

31. “Self-contained dwelling” is not defined in the dictionary of LEP 2010, however, “dwelling” is defined as, “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”. The ordinary meaning of the adjective “self-contained” is, “containing in oneself or itself all that is necessary; independent; (of a flat or house) having its own kitchen, bathroom, and lavatory; not necessitating sharing” (online Macquarie Dictionary). The proposal must include everything necessary to be capable of being occupied or used as a separate domicile to be a self-contained dwelling. The spatial planning of the proposal includes two bedrooms, two bathrooms including two toilets, living and dining areas, a kitchen including a stove and a sink, a laundry and a verandah with an entry to the dwelling from the verandah. The proposal includes a driveway and a hardstand (subject to further information being provided by the applicant). The proposal is for a self-contained dwelling, because it is a suite of rooms capable of being occupied or used as a separate domicile, independently of the principal dwelling.

32. I accept the agreement of the parties that the requirements under (b) and (c) of the dictionary definition of a secondary dwelling are satisfied by the proposal.

33. The proposal is on the same lot as the principal dwelling, Lot 106 in DP 625826, which satisfies (b): “[a self-contained dwelling that] is on the same lot of land as the principal dwelling.”

34. The proposal is separate from the principal dwelling, which satisfies (c): “[a self-contained dwelling that] is located within, or is attached to, or is separate from, the principal dwelling.” The requirements in (c) are disjunctive and expressed as mutually exclusive possibilities, so that the secondary dwelling can either be located within the principal dwelling, or it can be attached to the principal dwelling, or it can be separate from the principal dwelling. The proposal need only satisfy one of the three possibilities. In the case of the proposal, the secondary dwelling is separate from the principal dwelling and is separated from the principal dwelling by approximately 400m.

35. The parties’ disagreement about whether the proposal is for a secondary dwelling is focused on the requirement under (a) of the LEP 2010 dictionary definition of “secondary dwelling”, as follows:

[a self-contained dwelling that] (a) is established in conjunction with another dwelling (the principal dwelling)

36. To satisfy the requirement under (a) of the dictionary definition, the proposal must be established in conjunction with another dwelling (the principal dwelling). Principal dwelling is not defined in the dictionary of LEP 2010. The adjective, “principal” means, “first or highest in rank, importance, value, etc.; chief; foremost” (online Macquarie Dictionary). The parties agreed that the principal dwelling is the existing, substantial dwelling on the site.

37. In Trives, Biscoe J construed a similar definition for a “detached studio” under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP). The definition of detached studio also included three conjunctive requirements, including, “(a) established in conjunction with a dwelling house”, at [39]. His Honour construed the requirement under (a) (referred to in his judgment as the second requirement) at [70]-[73] as follows:

“Second requirement: not established in conjunction with a dwelling house

70 The definition of “detached studio” in cl 1.5 of the SEPP includes a requirement that it be “established in conjunction with a dwelling house”. In my opinion, on its correct construction as applied to the clear facts, the Certifier could not reasonably have been satisfied that this requirement was met.

71 This is an additional requirement to the cl 3.5 requirement that it be “ancillary to a dwelling house”.

72 The phrase “in conjunction with” in this context connotes a connection or a relationship or association, which it is convenient to refer to as a nexus, between, on the one hand, the proposed structure and, on the other hand, a dwelling-house (in the present case the existing dwelling house). That nexus is not demonstrated by mere physical location or proximity or by the fact that they are both forms of residential accommodation. The nexus is between two uses. It is a question of function and accordingly it is a functional nexus that is required. The respective uses need not be interdependent nor the association necessarily a close one: Sweeney Pastoral Company v Snowy River Shire Council [1993] NSWLEC 189 (Pearlman J); Parsons v Hornsby Council [1995] NSWLEC 69 (Stein J) (“an example might be a cinema (permissible as an entertainment facility) and a car park to service it”); Loccisano v Hornsby Shire Council [1996] NSWLEC 122 (Pearlman J); Winten Property Group v Campbelltown City Council [1999] NSWLEC 241 at [33]-[40] (Sheahan J).

73 In circumstances where the proposed structures contain suites of rooms which are capable of being used as a separate domicile from the existing dwelling house on the lot, in my opinion the Certifier could not have been reasonably satisfied that each would be established in conjunction with the existing dwelling house.”

38. Biscoe J identified his task as being to determine if the certifier of three Complying Development Certificates (CDCs) for detached studios on three different properties could reasonably have held the opinion that each of the proposed studios was complying development on the correct construction of the Codes SEPP. Two of the three CDCs were for three bedroom dwellings comprising a “suite of rooms” and one of the CDCs was for attached dwellings, a one bedroom dwelling and a two bedroom dwelling, also comprising a “suite of rooms” (Trives at [26]–[28]). Each of the proposed buildings was characterised by the certifier as a detached studio, being ancillary development under the Codes SEPP. These are the “clear facts” his Honour referred to at [60] and [70].

39. Biscoe J concluded that the certifier could not have reasonably held the opinion that each of the developments was for complying development, because each of the developments was not ancillary to the existing dwelling house on the lot, at [60]. His Honour was not satisfied that the proposed structures, that contained suites of rooms capable of being used as a separate domicile from the existing dwelling house on the lot, were appropriately characterised by the certifier as detached studios.

40. Biscoe J’s construction of the phrase “in conjunction with”, in Trives at [72], relied on Pearlman CJ’s interpretation of the phrase, “in conjunction with” in Sweeney. Sweeney was an appeal from an Assessor’s decision under s 56A of the LEC Act. The proposal for tourist accommodation was prohibited development in the zone under the applicable LEP, but permissible under a clause in the applicable Regional Environmental Plan (REP) which applied to the land. The criteria set out in the clause of the REP, cl 44(2), included a requirement that the proposal be, “in conjunction with the use of the land for the purpose of agriculture”. The existing agricultural use was for the grazing of sheep. Her Honour adopted the reasoning of the Assessor, who found that it was not sufficient for the proposal to be located on the same land as the agricultural use, but that there also needed to be a “functional relationship” between the two uses. Pearlman CJ noted that the part of the REP that included cl 44 dealt with economic activity. Her Honour found (at p 5):

“In my opinion, the phrase “in conjunction with” connotes a connection or relationship or association, a quality which it is convenient to refer to as a “nexus”. In CL44(2), the phrase requires a nexus between, on the one hand, the tourist accommodation to be provided, and on the other hand, the use for agriculture. In the context of the clause in question, that nexus is not demonstrated by mere physical location or by the fact that these are both “economic activities”. The clause requires the nexus to be between two uses. It is a question of function and accordingly, it is a functional nexus which is required.”

41. The context of Pearlman CJ’s decision in Sweeney was very different to both this matter and Trives, because the permissibility of the proposal for tourist accommodation relied on the proposed use to be sufficiently connected to a very different use that was permissible, an agricultural use. The functional relationship requirement arose in the interpretation of the phrase because the terms of the provision demanded a connection between different uses, both forms of economic activity, in addition to the two disparate uses being located on the same property. One cannot ignore this context when considering Pearlman CJ’s interpretation of the phrase “in conjunction with” because it is fundamental to her finding of a requirement for a “functional nexus”. Similarly, in Parsons, Stein J adopted Pearlman CJ’s construction of the phrase “in conjunction with” when determining whether a proposed use was permissible on the basis that it had a necessary association with existing permissible development. Stein J noted that he did not think the respective uses needed to be interdependent, nor the association between them necessarily a close one (at p 8). Similarly also, in Loccisano, Pearlman CJ adopted her own construction of the phrase in Sweeney when determining whether a proposed use was permissible on the basis it was ancillary to or used in conjunction with purposes permissible in the zone.

42. Although Biscoe J adopted the notion of “nexus” from Sweeney in his construction of the phrase, “in conjunction with” in Trives; it is, in my opinion, less helpful when applied to the uses of a principal dwelling and ancillary development or a secondary dwelling. The functional nexus in those three judgments (Sweeney, Parsons and Loccisano) was the source of permissibility for the proposed use. In this matter, a secondary dwelling is a permissible use in the zone, and the definition of a secondary dwelling requires that the secondary dwelling be established in conjunction with the principal dwelling. That is a significantly different context for the construction of the phrase.

43. Biscoe J’s reasoning in Trives at [73] relied on his finding elsewhere in his judgment that each substantial structure or building, capable of being used as a separate domicile, was not a detached studio and was not ancillary development. In this matter, the definition pertains to a secondary dwelling and not to a detached studio, as was the case in Trives. The secondary dwelling is a self-contained dwelling, as required by the definition, and complies with the total floor area control for secondary dwellings. There is no requirement under LEP 2010 for the secondary dwelling to be ancillary, or for the development to not result in more than one dwelling house on the lot, as was the case in Trives. For these reasons, Trives is distinguishable from this matter. There is no explanation in Trives at [72]-[73] of what is or is not a “nexus” when applied to the very different circumstance to Sweeney of a principal dwelling and ancillary development.

44. It is therefore not entirely clear from these cases as to what is required for a functional nexus, or a nexus, to sufficiently exist between a principal dwelling and a secondary dwelling in order to satisfy the definition for secondary dwelling under LEP 2010. The Council submitted that it is proximity, the closer the secondary dwelling is to the principal dwelling, the more likely it is to be established in conjunction with that principal dwelling.

45. The finding in Sweeney that “nexus is not demonstrated by mere physical location” is specific to both the terms of the provision and the facts of that case. Pearlman CJ’s was saying that locating two disparate uses side by side did not, alone, establish the necessary connection between those uses to make the proposed use permissible under the terms of the provision. It is a significant leap to apply this phrase in her Honour’s judgment to evaluate the relevance of the distance between the principal dwelling and the secondary dwelling in this matter. The distance between the principal dwelling and the secondary dwelling of 400m is a function of the substantial size of the rural lot that is the site coupled with the applicant’s brief. Locating the secondary dwelling closer to the principal dwelling, as suggested by the Council during the site view, would not necessarily transform the use from what the Council characterises as a detached dual occupancy in the proposed location, into a secondary dwelling in the new location.

46. The characterisation of a development must be done in a common sense and practical way (Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 (Chamwell) at [45]). A secondary dwelling, by its very nature, can only be secondary if there is a principal dwelling on the same lot. The nexus between the uses is simply given by their identification as the principal and the secondary dwelling. The subservient character of the secondary dwelling is addressed by other requirements, such as a maximum size, in this case, a secondary dwelling must be less than a third of the total floor area of the principal dwelling. Further requirements for secondary dwellings in the form of objectives and performance standards are contained in DCP 2010. Taking a common sense and practical approach to the construction of the relevant provisions for a secondary dwelling in LEP 2010; the requirement that a secondary dwelling be established in conjunction with the principal dwelling does not, in of itself, set a high bar.

47. I am satisfied that the proposal is established in conjunction with another dwelling, being the principal dwelling on the site. Both the principal dwelling and the secondary dwelling are forms of residential accommodation. The secondary dwelling is clearly a dwelling within the meaning of dwelling as defined in the dictionary of LEP 2010. The proposal is a secondary dwelling because there is a principal dwelling on the same lot, establishing a sufficient nexus between the two uses, and the secondary dwelling meets the requirements for a secondary dwelling under LEP 2010, including complying with the numerical standard for a secondary dwelling under cl 5.4(9) of LEP 2010.

48. Both the principal dwelling and the secondary dwelling can function separately. There is no requirement under LEP 2010 that does not permit the two dwellings to have independent facilities or access. The definition for secondary dwelling includes a requirement that the secondary dwelling be a “self-contained dwelling” and the secondary dwelling may be separate from the principal dwelling.

49. I do not agree with the submission that the secondary dwelling necessarily has a functional relationship with the equine business and therefore does not have a functional nexus with the principal dwelling. The proposal is for a secondary dwelling. As long as the approved development is used as a secondary dwelling, there is no requirement to mandate that the secondary dwelling must be used by a farm manager. The secondary dwelling could also be occupied by a family member or a tenant, without any relationship to the equine business.

50. It is important, when characterising a development for the purpose of use, to focus on the specific provisions that define that use. In planning law, use must be for a purpose and the purpose is the end to which the land is seen to serve (Chamwell at [27]). The built form of secondary dwellings resulting from the provisions of different environmental planning instruments (EPIs) may look quite different. For example, a secondary dwelling in a residential zone under Pt 2 Div 2 and Sch 1 to the State Environmental Planning Policy (Affordable Rental Housing) 2009 may not look the same as the built form of a secondary dwelling in a rural zone under LEP 2010, because the provisions in each EPI are different. The built form of a permissible secondary dwelling development under LEP 2010 may not fit one’s presumption of what a secondary dwelling should look like, because the presumption is probably based on the character of a secondary dwelling development in a residential zone. It is also possible that the built form of a permissible detached dual occupancy may look exactly the same as the built form of a permissible secondary dwelling, depending on the terms of the applicable provisions, but their use in planning law would not be same. The proposal, which may have the same built form as what might, in a different application on a different site, be a detached dual occupancy, is a secondary dwelling within the meaning of the dictionary definition of secondary dwelling under LEP 2010.

The siting of the proposal would have an unacceptable impact on the rural landscape character of the area

51. The location of the proposal is isolated from the existing principal dwelling and the existing equine facilities, contrary to the objectives for the siting of residential development at B2.1.2 of DCP 2010 that development be responsive to the scenic landscape and qualities of its immediate and wider setting. The location of the proposal does not add to an existing building group on the site and its location would increase the visibility and bulk of built form on the site. Had the secondary dwelling been located closer to the equine facilities, overlooking the paddocks, it would have met the objectives for the siting of buildings in DCP 2010 and the applicant’s brief.

52. The applicant’s planning expert evidence was that the proposal would require a maximum of approximately 2m of excavation in the south-western corner of the proposal and this would probably require a retaining wall or walls in a horse-shoe shape around the back and sides of the dwelling. There is some confusion in the documentation of the proposal and the various reports as to the exact location of the secondary dwelling on the site. The application is for a dwelling in the location described above at [9], however, the FFL of the proposal relates to the alternative position in some of the documentation in the application (Ex B, tab 2; Ex A ff 52, 66, 69, 106) further down the hill and closer to the road. In the alternative position, the FFL would not have required much excavation, however, in the proposed location, the FFL requires substantial excavation. As the proposed footings are brick piers, it is very unlikely that the ground floor level would be nominated by the designer or builder to be at the lowest existing ground level point within the building footprint, which is where it is, for this type of construction. A more appropriate FFL would have been closer to existing ground level at the south-western corner, which would raise the building and significantly reduce the excavation required. The nominated ground floor level would require substantial excavation to provide underfloor ventilation and external access to the laundry door at the southern end of the western façade. The proposal has not been designed to respond to the site’s topography and the design is not responsive to the topography of the site in the proposed location. The proposal would require excessive cutting and retaining and is insensitive to the existing landform of the site.

Conclusion

53. The proposal is for a secondary dwelling and a secondary dwelling is a permissible use in the RU2 Rural Landscape Zone under LEP 2010.

54. The siting of the proposal, isolated from the existing clusters of development on the site, would have an unacceptable impact on the rural landscape character of the area and for this reason, the proposal is inconsistent with the objective for the RU2 zone to maintain the rural landscape character of the land and this is determinative. The siting of the proposal is also inconsistent with the objective that a secondary dwelling development not have an adverse impact on the character of a rural area, at B2.3.2(b) of DCP 2010.

55. The unnecessary substantial excavation and the requirement for high retaining walls behind and around the proposed secondary dwelling are inconsistent with the objectives for cut and fill at A3.6.2 of DCP 2010.

Orders

56. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 20/0623 for the construction of a building described as a secondary dwelling at 506 Greenhills Road, Werai, is refused.

3. The exhibits, other than Exhibits 1, A and C, are returned.

__________________

Susan O’Neill

Commissioner of the Court

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Decision last updated: 16 February 2021