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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Upton v Yarrowlumla Shire Council

Details

AGLC: Upton v Yarrowlumla Shire Council [1999] NSWLEC 43
Case: [1999] NSWLEC 43
Decision Date: 03/03/1999

CaseChat Overview and Summary

In the case of Upton v Yarrowlumla Shire Council, the applicant Harold Upton sought development consent from the Yarrowlumla Shire Council to conduct two separate businesses on his rural/residential property. The first business involved the sale and distribution of packaged fireworks for consumer use through a telemarketing and mail order business, while the second business involved the fabrication or reformulation of display fireworks. The council refused the development applications, asserting that the proposed developments were for prohibited purposes under the Local Environment Plan (LEP). The applicant appealed the council's decisions, and the Land and Environment Court of New South Wales was tasked with determining the legal issues.

The primary legal issues in the case were whether the proposed developments could be properly categorised as "home office" and "home industry" under the LEP, and if they met the spatial conditions of the defined terms. The court considered the definitions of "home office" and "home industry" and examined the nature of the proposed developments. The applicant argued that his wife would conduct the mail order business as a "home office" occupation, while he would undertake the fabrication of display fireworks as a "home industry." The council argued that the developments should be categorised as a single enterprise, which would be considered a "commercial premises" or "industry," both of which are prohibited purposes under the LEP.

The court found that the applicant's arguments were generally preferable and that the proposed developments could be properly categorised as "home office" and "home industry." The court held that the mail order or telemarketing business fell within the statutory definition of "home office," as it was an occupation carried on in the dwelling-house or within its curtilage by a permanent resident of the dwelling-house, without involving any of the conditions specified in the statutory definition. The court also found that the display fireworks business fell within the statutory definition of "home industry," as it was an industry carried on in a building with a floor space not exceeding 50 square metres, within the curtilage of the dwelling-house.

As a result, the appeals were allowed, and development consent was granted for each appeal, subject to certain conditions specified in the council's proposed conditions (Exhibit 9), with some modifications as outlined in the judgment. The court deleted certain conditions and inserted a proviso to condition 5 in respect of each of the development applications. The parties were ordered to file Short Minutes of Order to give effect to the orders within 7 days. No order was made as to costs.

Orders