Upton v Yarrowlumla Shire Council

[1999] NSWLEC 43

Reported Decision: 101 LGERA 435

Land and Environment Court

of New South Wales

CITATION:

Upton -V- Yarrowlumla Shire Council [1999] NSWLEC 43

PARTIES

APPLICANT:
Harold Upton

RESPONDENT:
Yarrowlumla Shire Council

NUMBER:

10708 and 10709 of 1998

CORAM:

Bignold J

KEY ISSUES:

:- "Home industry" and "home office permissible categories of development under LEP-meaning of terms-whether proposed developments fulfil spatial conditions of defined terms
HELD: Proposed developments for permissible purposes

LEGISLATION CITED:

"Home industry" and "home office permissible categories of development under LEP-meaning of terms-whether proposed developments fulfil spatial conditions of defined terms
HELD: Proposed developments for permissible purposes

DATES OF HEARING:

03/01/1999; 03/02/1999

DATE OF JUDGMENT DELIVERY:

03/03/1999

LEGAL REPRESENTATIVES:

APPLICANT:
Mr T. Robertson, Barrister

Solicitors:
Wolf & Associates

RESPONDENT:
Mr A.Bradbury, Solicitor

Solicitors:
Deacons Graham and James

JUDGMENT:


A. INTRODUCTION

1. These are two appeals pursuant to s.97 of the Environmental Planning and Assessment Act 1979 (as continued in force by cl.15 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998) in respect of the Council’s determinations refusing two separate development applications made by the Applicant to carry out development on a rural/residential lot comprising 5.2 ha owned and occupied by him (together with his wife and family) as his residence and known as lot 10 Deposited Plan 774571 Watson Place “Greenacres” via Queanbeyan (the appeal site).

2. The development applications sought development consent for the following developments:
(i.) a “home office” comprising the sale and distribution of packaged fireworks for consumer use (“shopgoods fire works” as defined by Australian Standard AS 2187.0) by a telemarketing and mail order business; and.
(ii.) a “home industry” comprising the fabrication or re-formulation of “display fireworks” (as defined by AS 2187).

3. The description of the two proposed developments is taken from the original development applications made by the Applicant on 22 June 1998 as amended by the letter dated 15 September 1998 from Mr Harvey Sanders, a town planning consultant retained by the Applicant, and as further amended by the supplementary statement of evidence prepared by Mr Sanders being Exhibit C.

4. The reason for the Council’s determinations refusing development consent to each development application was that each of the proposed developments was considered to be for the purpose of “industry”, being a prohibited purpose of development for land within Zone No. 1(d) (Rural/Residential) being the relevant zoning of the appeal site in terms of Yarrowlumla Local Environmental Plan 1993 (the LEP).

5. On the hearing of the appeals, (which by consent were heard together) the Council raised no objection on the planning merits to the proposed developments but maintained its contention that both proposed developments were absolutely prohibited by the LEP. A consequence of this stance adopted by the Council is that if its legal contentions be held to fail, it raises no objection to the upholding of the appeals and to the grant of development consents, but suggests that any such consents should be subject to the conditions it has formulated (Exhibit 9).

B.THE RELEVANT PLANNING PROVISIONS OF THE LEP

6. It is common ground that included in the purposes of development that the LEP absolutely prohibits within Zone No. 1(d) are the following purposes:

“commercial premises; industries (other than home industries, rural industries or rural home industries).”

7. These terms are relevantly defined by, or for the purposes of, the LEP as follows:

“`commercial premises’ means a building or place used as an office or for commercial purposes, but does not include a building or place elsewhere specifically defined in this clause or a building or place used for a purpose elsewhere specifically defined in this clause;

`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.

(In the Factories, Shops and Industries Act, the phrase `manufacturing process’ means:

`…any handicraft process in or incidental to the making, assembling, altering, repairing, renovating, preparing, ornamenting, finishing, cleaning, washing, breaking up, or adapting of any goods or any articles or any part of an article for trade or sale or gain, or as ancillary to any business, and includes any handicraft or process declared by the Governor, pursuant to this Act, to be a manufacturing process’)

` home industry’ means an industry carried on in a building (other than a dwelling-house or a dwelling in a residential flat building) under the following circumstances:
(a) the building does not occupy a floor space exceeding 50 square metres and is erected within the curtilage of the dwelling-house or residential flat building occupied by the person carrying on the industry or an adjoining land owned by that person; and
(b) the industry does not—
(i) interfere with the amenity of the locality by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products or grit, oil or otherwise;
(ii) involve exposure to view from any adjacent premises or from any public place of any unsightly matter; or
(iii) require the provision of any `essential service main of a greater capacity than that available in the locality”

`rural industry’ means—

(a) the handling, treating, processing or packing of primary products; or
(b) the servicing in a workshop of plant or equipment used for rural purposes; or
(c) a combination of the activities referred to in paragraphs (a) and (b)

‘rural home industry’ means a rural industry carried on in a building (other than a dwelling-house) under the following circumstances:
(a) the building has a gross floor area not exceeding 200 square metres and is erected within the curtilage of a dwelling-house occupied by the person carrying on the rural industry, or on adjoining land owned by that person; and
(b) the rural industry does not—
(i) interfere with the amenity of the locality by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit oil or otherwise;
(ii) involve exposure to view from any adjacent premises or from any public place of any unsightly matter; or
(iii) require the provision of any essential service main of a greater capacity than that available in the locality.”

8. It is also common ground that the LEP contains the following definition of “home office” which relevantly qualifies in the sense of abrogating the scope of the defined term “commercial premises”.

“`home office’ means an occupation carried on in a dwelling-house by the permanent residents of the dwelling-house, being an occupation that does not involve—
(a) the registration of the building under the Factories, Shops and Industries Act 1962;
(b) the employment of more than 3 persons other than permanent residents of the dwelling-house;
(c) interference with the amenity of the neighbourhood by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil or otherwise;
(d) the display of goods, whether in a window or otherwise;
(e) the exhibition of any notice, advertisement or sign other than a notice or sign exhibited on the dwelling-house, or on land on which the dwelling-house is erected, to indicate the names and occupations of the permanent residents of the dwelling-house; or
(f) a change in the appearance of the dwelling-house, or the land on which the dwelling-house is erected, that is, in the opinion of the Council, out of character with the appearance of the adjoining area;

9. Based upon the foregoing provisions of the LEP, it is also common ground that the proposed developments will be for prohibited purposes unless they can be properly categorised as being developments for the purposes of “home industry” and “home office” respectively.

10. In order to properly categorise the developments it is first necessary to determine precisely what each of the developments involves.

C. THE NATURE OF THE PROPOSED DEVELOPMENTS

11. The nature of the proposed developments is described in Mr Sanders’ letter dated 15 September 1998 to the Council in the following terms:

“As you will be aware, various activities are carried on at the premises and various materials are stored. The activities and the associated storage of materials take place in either the dwelling house and its attached garage, in one of two colourbond sheds or in one of two containers; the sheds and containers being located within the curtilage of the dwelling house. These activities relate to Mr Upton’s businesses which involves the fabrication of firework displays and the sale and distribution of packaged fireworks by mail-order. General administrative support for these activities and the storage of materials associated with them, as noted above, also takes place.

These activities, and where they take place, may be conveniently summarised in the following manner (the attached plan shows the locations of the buildings and containers referred to):-
· the fabrication of firework displays - this is carried out using fireworks delivered to the site in many different single cartons each of which contains a number of a particular type of firework and includes the fabrication of the formwork on which the displays are mounted as well as the installation of electronic or other fusing together with related activities - it is proposed to be undertaken generally in Building 2, the 6.5 m x 5.5. m colourbond shed;
· the packaging of fireworks - these fireworks are also delivered to the site in cartons and different combinations of individual types of firework are packaged into boxes to meet individual customer requirements - in general, these packages are sold through mail order as part of the tele-marketing component of the activities - it is generally undertaken in Building 1, the dwelling house;
· the storage of materials associated with both the fabrication of displays and the packaging of fireworks, including the cartons of fireworks (some of which are used only for display, some only for packaging and resale and some for both), pipes, tubes, formwork, fuses, electronic equipment and the like:-
the fireworks are stored generally in Container 1 and Container 2, both of which are 6.2 m x 2.4 m, although some are stored in Buildings 3, the 18 m x 3.5 m colourbond shed adjacent to the driveway;
ï it has been recommended that the fireworks presently stored in the latter mentioned building be stored in an additional 6.2 m x 2.4 m container (proposed Container 3, to be located next to Container 1);
ï the fireworks stored in Container 2 are used for displays only whilst those stored in Building 3 and Container 1 are used both for displays as well as for packaging and re-sale;
ï the materials used for the fabrication of displays are generally stored in Building 2 and Building 3;
· the cartons of fireworks are delivered to the premises in semi-trailers which make between 4 and 10 visits per year - other materials are generally delivered to the site in one of the small vans used by the businesses;
· packaged fireworks are taken from the premises in one of the small vehicles for collection elsewhere by a courier who delivers them to the customers; and
· general administrative activities which are associated with the above, including telemarketing/mail order - undertaken in a room furnished with the accoutrements of an office in Building 1.”

(A copy of the plan referred to in these extracts is annexed hereto and marked “A”)

12. As earlier noted, at the hearing the Applicant amended the proposals as they had been described in Mr Sanders’ letter by eliminating the use of building 3 and substituting for that building an additional container (No. 3). The location of the amended proposal is shown on a Revised Site Plan prepared by Surveyors P J Shaw and Associates Pty Ltd, a copy of which is annexed hereto and marked “B”.

13. The reason for this revised layout and consequential amendment of the proposals is explained in Mr Sanders’ Supplementary Statement of Evidence (Exhibit C). It reflects expert advice obtained from Mr Wells, to better reflect the requirements of the relevant regulations under the relevant Dangerous Goods legislation and the relevant requirements of AS 2187.

14. A complicating factor in appreciating the nature of the proposed developments is the fact that the Applicant is currently conducting on the appeal site all, or most of the activities, for which he now seeks development consent, some of which activities may be sanctioned by the grant in November 1997 by the Council of development consent for a “home office” use in respect of the appeal site.

15. Both Mr Sanders and Mr Upton gave oral evidence and each was cross-examined. Their additional testimony did not, in my opinion, alter the substance of the proposed developments, as they were described in Mr Sanders’ aforesaid letter.

16. I find on the evidence that the proposed developments are aptly and accurately described in Mr Sanders’ aforesaid letter. However, I would add a further fact, namely that each of the businesses is to be conducted by a permanent resident of the dwelling-house erected on the appeal site, namely the “home office” occupation is to be undertaken by Mrs Gail Upton and the “home industry” activity is to be undertaken by the Applicant. These facts emerge from the Applicant’s supporting written materials accompanying his development applications when lodged with the Council.

17. In one of those notes, the Applicant describes his business structure by referring to “my companies’ structure”. This matter was not elucidated in the evidence and Mr Upton was not cross-examined on the management structure of the two businesses or upon the manner in which he proposed to conduct those businesses by his wife and himself respectively.

18. The identity of the person who conducts the “home industry” and “home office” is, of course, a crucial factor in the two defined terms inasmuch as each activity is required to be undertaken by a (permanent) resident of the dwelling-house existing on the appeal site. In this respect, I would respectfully adopt the opinion of Else-Mitchell J in Ryde Municipal Council v. Wagemaker (1970) 19LGRA 327 in holding that if it were shown that the identity of the person undertaking the relevant “home industry” or “home office” was a Company, rather than a human being (permanently) residing in the dwelling-house erected on the appeal site, the defined purposes of “home office” and “home industry” would simply not apply.

19. However, in the present case, I am satisfied, on the evidence, that the two development proposals are intended to be respectively undertaken by the Applicant and his wife, being permanent residents of the dwelling-house erected on the appeal site.

D. THE COMPETING ARGUMENTS ON THE LEGAL PERMISSIBILITY OF THE PROPOSED DEVELOPMENTS

20. The rival contentions are directed to the following questions—
(i.) the proper construction of the two relevant defined permissible purposes of development i.e. “home office” and “home industry” adopted by the LEP;
(ii.) the proper planning characterisation of the proposed developments;
(iii.) whether the developments, properly categorised, fall within the ambit of the permissible purposes, properly construed.

21. I shall consider then, each of these questions separately:

A. The Construction Question

(i) “Home Office”

22. The Council’s contentions may be summarised as follows:
a. It is first necessary to characterise the relevant “occupation” and this involves consideration of the whole range of activities constituting the occupation.
b. It is then necessary to determine whether that occupation is relevantly “carried on in the dwelling house”.
c. Although the expression “in the dwelling-house” does not require the occupation to be carried on “within the four walls of the dwelling-house” there are nonetheless spatial or locational criteria or conditions to be satisfied, namely the occupation must be carried on in the dwelling-house or—
(i) within the curtilage or immediate surrounds of the dwelling-house; and
(ii) in a building that would generally be regarded as part of the dwelling-house.
d. The bulk storage of the fireworks is part and parcel of the occupation and accordingly it too must be carried on “in the dwelling-house” in the relevant sense.
e. The LEP definitions of “home office” and “home industry” deliberately distinguish between an “occupation” and an “industry” in the sense that the latter is not included in the former, so that to the extent that the Applicant’s occupation involves an “industry” it is not relevantly an “occupation” and hence would not fall within the meaning of the defined term “home office”.

23. The Applicant’s competing submissions may be summarised as follows:
a. The telemarketing or mail order business for the sale and distribution of packaged consumer/shop fireworks was relevantly “an occupation”.
b. That occupation was relevantly carried on “in a dwelling-house” in the required spatial or locational sense of being within the dwelling-house or within the attached garage, that being within the curtilage of the dwelling-house;
c. The bulk storage of the fireworks pending their being packaged and despatched to customers of the mail order business was incidental or ancillary to that business
d. The fact that the occupation involved the handling of goods so as to qualify as a “manufacturing process” within the meaning of the Factories, Shops and Industries Act did not disqualify that activity from also being an “occupation” within the meaning of the defined term “home office”.

24. In my judgment, the Applicant’s arguments are generally to be preferred to the Council’s competing arguments.

25. In so concluding, I have considered the many decided cases which were cited by each of the parties in support of their competing arguments. However, I do not think it necessary in these reasons, to refer to them in any specific detail because, ultimately, the question under consideration is one of statutory interpretation and it is the relevant statutory language of the LEP that is decisive.

26. In my opinion, properly construed, development for the purposes of a “home office” involves the carrying on of an occupation (“one’s habitual employment, business, trade or calling”: Macquarie Dictionary) substantially within dwelling-house (meaning within the spectrum embracing (i) within the dwelling-house itself or (ii) within its curtilage or (iii) “at home”) by the permanent residents of that dwelling-house where that occupation does not involve any of the qualities or conditions specified in paragraphs (a) to (f) inclusive of the statutory definition. (It is to be noted in passing that the defined term “home office” is necessarily wider than the term “home occupation” also adopted by the LEP (vide cl.7) which latter term does not permit the employment in the occupation of any person other than the permanent residents of the dwelling-house).

27. The construction that I have adopted of the term “home office” is, as I would understand them, consistent with the decided cases that have been cited in argument which are relevant to the question of construction (although, as I have indicated, many of the cases involve truly findings of fact or the application of statutory definitions to the different facts of each of those cases).

(ii) “Home Industry”

28. The Council’s arguments may be summarised as follows:
a. It is first necessary to characterise the “home industry”. This involves considering the whole range of activities constituting the industry.
b. Those activities must be carried on in a building (not being a dwelling-house).
c. The building in which the activities are carried out must have a floor space not exceeding 50m2 .
d. The activities include the bulk storage of the fireworks pending their fabrication or reformulation into display fireworks.
e. The activities of the industry also include the administrative activities carried on within the dwelling-house and the place where these activities are carried out automatically disqualifies the overall activity from being categorised as “home industry” as defined.
f. The buildings (other than the dwelling-house) in which the activities of the industry are carried out must be located within the curtilage of the dwelling-house.

29. The Applicant’s competing arguments may be summarised as follows:
a. The curtilage of the dwelling-house involves all or so much of the appeal site that is really devoted to the better use or enjoyment of the house as a place of residence, and is incidental to it, and this includes the building in which the industrial activity is to be undertaken.
b. The limitation on the floor space of the building in which the industry is carried on applies to the industrial activity simpliciter and not to ancillary or subservient features such as (i) the storage of the bulk fireworks pending their being subjected to the industrial activity and (ii) administrative activities associated with the industry and conducted in the “home office”.
c. The storage activity and the administrative activity are each truly subservient or ancillary to the industrial activity.

30. In my judgment, the Applicant’s arguments are generally to be preferred to the Council’s competing arguments and are consistent with the decided cases as I would understand them that were cited in the course of argument to the extent that they are relevant to the question of construction (where, once again, the statutory text of the LEP must be decisive).

31. In my opinion, both a literal and a purposive construction of the statutory definition of “home industry” yields the same result, namely that it is the industrial activity itself (and not ancillary or subservient aspects of it) that is the true focus and subject of the spatial limitation stipulated in the definition.

B. The proper categorisation of the proposed developments

32. The Council’s principal submission was that because of the existence of a number of common features applicable to both proposed developments, it was legitimate to categorise them not as two separate proposals falling within the respective defined purposes of “home office” and “home industry” (as the Applicant would have it) but as involving a single business enterprise of fireworks preparations and sales. So categorised, so the Council’s argument goes, the single enterprise would be properly categorised as “commercial premises” or “industry”, being in either case absolutely prohibited purposes of development for land within the 1(d) Zone in terms of the LEP.

33. In this respect, the Council submitted that the single business enterprise would not satisfy or fulfil the spatial or locational limitations contained in the defined purposes of “home office” and “home industry” because the former purpose requires the occupation to be carried on “in the dwelling-house” whereas the latter purpose requires the industry to be carried on “in a building (other than a dwelling-house)”. Since the Applicant’s proposed development, if considered as a single business enterprise, would involve both the use of buildings comprising the dwelling-house and of buildings other than the dwelling-house, it would not fulfil the spatial or location conditions of either of the defined purposes. Hence, inevitably the development proposed must be categorised as either “commercial premises” or “industry” both of which purposes are absolutely prohibited by the LEP for the appeal site (being within Zone 1(d)).

34. The common features relied upon by the Council in advancing this principal submission are as follows:
(i.) both activities are to be carried out by the same applicant and on the same land;
(ii.) bulk fireworks for both activities are delivered to the appeal site at the same time and in the same delivery truck;
(iii.) the administrative aspects of both activities are conducted in the same home office; and
(iv.) the storage of the bulk fireworks for both activities occurs, in part, in the same storage receptacle or facility (i.e. containers 1 and 3)

35. These common features are established in the evidence except for the fact as I have earlier found that the “home office” occupation is to be undertaken by the Applicant’s wife, as a permanent resident of the dwelling-house, and the “home industry activity” is to be undertaken by the Applicant, also a permanent resident of the dwelling-house on the appeal site.

36. The Council submitted that by subdividing the Applicant’s fireworks business into two separate businesses, the Applicant had artificially contrived to squeeze the activities into the two permissible purposes of “home office” and “home industry” so as to defeat the relevant zoning controls imposed by the LEP in respect of land situate within Zone No. 1(d) and in particular, so as to avoid the absolute prohibition on the carrying out of development thereon for the purpose of “commercial premises” or “industry”.

37. I am unable to accept the Council’s submission principally because it seeks to subvert, without any foundation, the unassailed fact that the Applicant is proposing to conduct on the appeal site two separate fireworks businesses—one being concerned with the fabrication or formulation of “display fireworks” and the other being concerned with the mail order business of packaging and selling consumer fireworks (i.e. toy fireworks or shopgoods fireworks) each being separate categories of fireworks as classified by AS 2187.

38. Not only do such different categories of fireworks involve different preparations and formulations on the appeal site but they involve different customers or clients and different marketing and sales activities. These differences decisively outweigh the common features of the businesses in the task of properly categorising (for planning purposes) the proposed developments.

39. Obviously, it is both legitimate and accurate to refer to the Applicant’s business activities as involving various aspects of the fireworks industry just as it is legitimate and accurate to refer to small goods, and grocery dealers who engage in both the wholesale and retail sale of such goods, as conducting a smallgoods and groceries business. However, in the planning context, and in particular for the purpose of categorising developments especially be reference to defined categories of permissible or prohibited developments that are adopted by environmental planning instruments, it is often necessary to adopt a more particular classification. Hence, wholesale grocery sales are not the same as retail grocery sales: see Foodbarn Pty Ltd v. Solicitor General (1975) 32LGRA 157 and Woolworths Ltd v. Campbell’s Cash and Carry Pty Ltd (1996) 92LGERA 244.

40. Thus, just as the one building may in fact be used concurrently for grocery sales by wholesale and by retail sales (as in Foodbarn) so in the present case there is no reason in terms of planning policy and practice why the Applicant cannot concurrently conduct on the appeal site the separate fireworks businesses in conjunction with his (and his family’s) use of that land as his permanent residence.

41. Moreover, as Foodbarn established as a matter of planning principle, where such concurrent businesses or activities co-exist in the one building or the one parcel of land (or on different parts thereof) in circumstances where it can be reasonably held that neither business or activity subserves the other, then each of the activities must be separately sanctioned under the planning law and it is irrelevant to enquire which of the multiple purposes is the dominant purpose.

42. Moreover, there is nothing artificial or exceptional in the Applicant seeking to fit his two business activities into the permissible purposes of “home office” and “home industry”. It would of course be artificial (and ultimately ineffective) if the Applicant were to contrive to subdivide his fireworks business enterprise into two businesses falling within the defined permissible purposes when in truth they were but a single business. However, this has not been shown to be the fact in the present case. However, the Council’s submission, as I understand it, is entirely based upon the existence of the aforesaid common features of the two activities or developments. In my judgment, the existence of these common features does not justify a re-interpretation of the facts concerning the nature of the two businesses. Nor do they justify a planning categorisation of the developments as if they were but a single enterprise, when in fact they are not.

43. There is simply nothing unusual, in principle or in fact, in a number of separate businesses being conducted by the same persons at the same premises. The facts of the Foodbarn and Woolworths well illustrate this.

44. In my judgment, properly categorised, the proposed developments, as I have found their essential natures to be, fall within the respective permissible purposes of “home office” and “home industry”.

C, The application of the statutory definitions to the facts of the case

45. In my judgment, the mail order or telemarketing business falls within the statutory definition of “home office’ for the following reasons:
(i.) it is relevantly an occupation;
(ii.) carried on in the dwelling-house erected on the appeal site or within the curtilage of that dwelling-house (namely in the attached garage building);
(iii.) by a permanent resident of the dwelling-house, namely the Applicant’s wife; and
(iv.) without involving any of the conditions referred to in paragraphs (a) to (f) inclusive of the statutory definition.

46. In so finding, I would hold that the bulk storage of the fireworks, pending their packaging and sale and distribution to mail order customers, is relevantly ancillary or subservient to that occupation. Alternatively, and if it were necessary, to do so, I would also hold that the storage activity (if relevantly part and parcel of the occupation) is carried on “in the dwelling-house” in the sense that the storage receptacles or containers are relevantly within the curtilage of the dwelling-house or alternatively, in the sense that the overall activity is carried on “at home by a permanent resident of the dwelling-house” cf. Bertram v. Warringah Shire Council (1990) 72LGRA 39 at 42.

47. In my judgment, the display fireworks business falls within the statutory definition of “home industry” for the following reasons:
(i.) it is relevantly an industry;
(ii.) the industrial activity is relevantly carried on in a building (building 2), having a floor space not exceeding 50 square metres;
(iii.) by a person, the Applicant, occupying the dwelling-house erected on the appeal site; and
(iv.) which building is within the curtilage of the dwelling-house.

48. In so concluding, I would hold that the storage of the bulk fireworks pending their fabrication and reformulation in the display fireworks industrial activity is relevantly subservient and ancillary to that activity.

49. I would also hold that the administrative activity associated with the “home industry” is likewise subservient and ancillary to that activity.

50. As an alternative to my finding that the relevant building in which the industrial activity in producing the display fireworks is carried out is erected within the curtilage of the dwelling-house, I would find that, if not within the curtilage, that building is relevantly erected on “adjoining land” within the meaning of that expression in the statutory definition i.e. on land adjoining the curtilage of the dwelling-house.

51. For all the foregoing reasons, I find that the proposed developments are for the permissible purposes of “home office” and “home industry” respectively in terms of the LEP.

E. CONCLUSIONS AND ORDERS

52. As mentioned earlier, the consequence of my rejection of the Council’s contentions on the issue concerning the legal permissibility of the proposed developments, is that the Council does not oppose the granting of development consent. However, it seeks the imposition of appropriate conditions which it has formulated (Exhibit 9) a copy of which is annexed hereto and marked “C”).

53. The Applicant accepts the appropriateness of most of these conditions but opposes the conditions (common to both consents) (i) requiring the upgrading of the private access road traversing the appeal site from its access corridor frontage to the public cul de sac known as Watson Place; and (ii) imposing a limit to 4 vehicle movements per day for each of the “home office” and “home industry” developments. Additionally, the Applicant opposes the condition requiring the upgrading of the entrance to the appeal site at Watson Place unless the Council first carries out necessary repairs and maintenance to the road pavement in Watson Place.

54. Very little evidence was adduced concerning these disputed conditions, principally, so it appears because the case was chiefly fought on the issue of the legal permissibility of the proposed developments.

55. However, the evidence led by the Applicant satisfies me that both development proposals are small scale activities which are unlikely to generate significant external impacts, including traffic generation. The appeal site is already serviced by an internal access road which is used by the Applicant for access to and from his dwelling-house and for the approved home office development.

56. In the light of these findings, I do not think that the Council has substantiated the imposition of the two conditions outrightly opposed by the Applicant, and I think that the Applicant’s suggested qualification of the condition requiring the upgrading of the entrance to Watson Place is fair and reasonable since otherwise the benefit intended by the implementation of the required condition would be negated.

57. Accordingly, I propose to impose on the grant of the development consents the conditions outlined in Exhibit 9 (annexure C hereto) subject to the following amendments—
(i.) the deletion of conditions 6 and 12 in respect of Development Application No. 142/98 and the corresponding conditions 6 and 10 in respect of Development Application No. 143/98;
(ii.) the insertion of the following proviso to condition 5 in respect of each of the development applications:

Provided that the upgrading not be required to be implemented until the Council has undertaken appropriate repairs and maintenance to the pavement of Watson Place in the vicinity of the appeal site; and
(iii.) the deletion from Condition 7 in respect of each of the development applications of the words “for private roads $300”.

58. For all the foregoing reasons, I make the following orders:
1. Appeals allowed.
2. Development consent granted in respect of each appeal subject to the conditions specified in Exhibit 9 (Annexure C hereto) as amended by this judgment.
3. Exhibits (other than Exhibit 9) be returned.
4. No order as to costs.
5. Parties to file within 7 days Short Minutes of Order to give effect to the foregoing orders.



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I HEREBY CERTIFY THAT THIS AND THE PRECEDING 27 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF HIS HONOUR MR JUSTICE N R BIGNOLD.

Associate