Wookey v Byron Shire Council

[2022] NSWLEC 1650

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wookey v Byron Shire Council [2022] NSWLEC 1650

Hearing dates:

2 November 2022

Date of orders:

25 November 2022

Decision date:

25 November 2022

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Order No. 1 in Schedule 5 of the Environmental Planning and Assessment Act 1979 requiring the Applicant to stop use of the cabin located on Lot 2 in Deposited Plan 208063 Skyline Road Middle Pocket NSW dated 18 January 2022 is confirmed.

(3) All exhibits are retained.

Catchwords:

STOP USE ORDER – use of residential cabin without development consent

Legislation Cited:

Byron Local Environmental Plan 1988

Byron Local Environmental Plan 2014

Conveyancing Act 1919, s 88B

Environmental Planning and Assessment Act 1979, ss 4.65, 4.66, 4.68, 8.18, 9.34, Sch 5

Interim Development Order No. 1 – Byron Shire Council 1968

Land and Environment Court Act 1979, ss 17, 39, 63
Local Government Act 1993
National Parks and Wildlife Act 1974

Rural Fires Act 1997

Cases Cited:

Auburn Council v Nehme (1999) 106 LGERA 19; [1999] NSWCA 383

Penrith Waste Services Pty Ltd v Penrith City Council (1998) 101 LGERA 98

Texts Cited:

Building Code of Australia

Byron Development Control Plan 2010
Byron Development Control Plan 2014

NSW Rural Fire Service: Planning for Bushfire Protection (2019)

Category:

Principal judgment

Parties:

Robin Wookey (Applicant)
Byron Shire Council (Respondent)

Representation:

Counsel:
B Webster (Agent) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
B Webster (Agent) (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2022/50854

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The Applicant is appealing an Order issued by the Respondent on 18 January 2022 pursuant to s 9.34 of the Environmental Planning and Assessment Act 1979 (EPA Act), being Order No. 1 in Sch 5 (Stop Use Order) to the EPA Act requiring the Applicant to stop use of the cabin (Cabin) located on Lot 2 in Deposited Plan 208063 Skyline Road Middle Pocket NSW, having an area of approximately 41.2ha (Site).

2. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

3. The power or function of the Court in these proceedings is s 39(2) of the LEC Act and s 8.18(4) of the EPA Act.

4. The Applicant filed a letter dated 31 October 2022 appointing Benjamin Webster as his agent in these proceedings (Ex A: Agent’s letter 31/10/22). In accordance with s 63 of the LEC Act I granted Mr Webster leave to appear as agent for the Applicant. I note Mr Webster was the tenant residing in the Cabin when the Stop Use Order was served by the Respondent.

5. The topography of the Site is very steep and slopes upwards from Lacks Creek on the north eastern boundary at an elevation of approximately 120m AHD, up to Skyline Road on the south western boundary to an elevation of approximately 350m AHD. The Site is substantially vegetated with much of the Site mapped as containing wet sclerophyll forest with pockets of subtropical rainforest.

6. The Site contains a dwelling used by the Applicant, a studio, the “Kioda Hut”, and two buildings/structures that have previously been used for habitation and the Cabin. The Cabin has been in situ for many years and is in a state of disrepair (Ex 1 tab 2 Statement of Facts and Contentions dated 28 June 2022 (SOFAC) par [10]).

7. The Site is bounded by Crown Land to the north and south, National Park to the west and a number of “rural lifestyle” properties to the east (Ex 1 tab 2 SOFAC par [10]).

8. The Respondent issued a Notice of Proposed Order No. 1 – Stop Use to the Applicant on 22 November 2021 to stop use of the Cabin. The Applicant did not make any formal representations to the Respondent in relation to the Notice of Proposed Order No. 1 – Stop Use (Ex 1: Respondent’s Bundle of Documents, tab 1)

9. The Stop Use Order requests that the Applicant:

1. Cease the use of the Cabin for the purposes of habitation; and

2. Remove the kitchen and plumbing from the Cabin so that it cannot be used for the purposes of habitation.

The Stop Use Order does not request demolition of the unauthorised Cabin, only the removal of the components which enable it to be used as a dwelling.

Figure 1 - Cabin – Ex 1 tab 2: SOFAC p2 par 3

10. At the date of issue of the Order No. 1 the Site was variously zoned pursuant to Byron Local Environmental Plan 2014 (BLEP 2014) (Ex 1 tab 3):

RU2 Rural Landscape

1. The objectives of the 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 enable the provision of tourist accommodation, facilities and other small-scale tourism use associated with primary production and environmental conservation consistent with the rural character of the locality.

• “To protect significant scenic landscapes and to minimise impacts on the scenic quality of the locality.”

2. Permitted without consent are: “Environmental protection works; Extensive agriculture; Home-based child care; Home occupations”

3. Permitted with consent include, inter alia – “”Dwelling houses; Eco-tourist facilities; Environmental facilities…”

C1 National Parks and Nature Reserves

1. Objectives: “To identify land that is to be reserved under the National Parks and Wildlife Act 1974 (National Parks Act) and to protect the environmental significance of that land.

2. Permitted without consent: Uses authorised under the National Parks Act.

3. Permitted with consent: Nil.

C2 Environmental Conservation (Ex 1 tab 3)

1. Objectives:

• “To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values,

• “To prevent development that could destroy, damage or otherwise have an adverse effect on those values.”

2. Permitted without consent: “Environmental protection works.”

3. Permitted with consent: “Environmental facilities, Extensive agriculture; Oyster aquaculture, Recreation areas, Road.”

DM Deferred Matter : The parts of the Site zoned “Deferred Matter” are zoned 1(a) General Rural Zone and 8(k) Habitat Zone subject to Byron Local Environmental Plan 1988 (Ex 1 tab 5).

Zone No 1(a) (General Rural Zone)

1. Objectives

1. ‘to encourage and permit a range of uses creating a pattern of settlement, at a scale and character that maintains or enhances the natural, economic, cultural, social and scenic amenity of the rural environment of the Shire of Byron.

2. “to encourage and permit a pattern of settlement which does not adversely affect the quality of life of residents and visitors and maintains the rural character,

3. “to ensure development only occurs on land which is suitable for and economically capable of that development and so as not to create conflicting uses.

4. ……

5. (h)   “to enable the provision of rural tourist accommodation and facilities only where such facilities are compatible with the form and density of the nature of the locality.

6. ……

2. Without development consent: “Agriculture (other than animal establishments): bushfire hazard reduction; forestry.

3. Only with development consent: “Any purpose other than a purpose specified in item 2 or 4.” (2 Without development consent; 4 Prohibited)

11. Zoning history:

1. Interim Development Order No. 1 – Shire of Byron (IDO) came into force on 8 November 1968 (Ex 1 tab 7). The Site was zoned “Non-Urban 1(a). “Country dwellings” were permissible with development consent. A “Country dwelling means a dwelling-house occupied in conjunction with land within Zone No. 1(a) or 1(b), such land having an area of not less than 100 acres or such lesser area as may be determined under subcl (2) or (3) of subcl (11) of this Order on which there are no other buildings or on which the only other buildings are buildings ordinarily incidental to the use and enjoyment of a country dwelling or to the use of the land for agriculture”.

2. Byron Local Environmental Plan 1988 commenced on 22 April 1988 (BLEP 1988). The Site was zoned a combination of 1(a) (General Rural Zone) and 8(k) (Habitat Zone). The location of the Cabin is entirely within 1(a) (General Rural Zone) (Ex 1 tabs 4 and 5).

12. Under each of the planning instruments the Cabin is permissible with consent.

13. The contention between the parties is:

1. The Applicant says that the Cabin was constructed prior to 1968, and therefore prior to IDO 1968, has existing use rights or continuous use rights.

2. The Respondent says that the Cabin was not lawfully constructed and the use was not lawfully commenced.

Legislation

Environmental Planning and Assessment Act 1979

9.34   Orders that may be given

(cf previous s 121B)

(1)  The development control orders that may be given under this Act are as follows—

(a) general orders in accordance with the table to Part 1 of Schedule 5,

……

(2)  The regulations may amend those tables.

(3)  A reference in those tables to a planning approval is a reference to a development consent, an approval for State significant infrastructure or a certificate under Part 6 (other than a compliance certificate).

Note—

See also Part 4 of the Building Products (Safety) Act 2017.

Schedule 5 Development control orders

Part 1 General orders

Column 2 To do What?	Column 2 When?	Column 3 By whom?
1	To stop using premises or a building Not to conduct or to stop conducting an activity on the premises	Premises are being used— •  for a prohibited purpose, or •  for a purpose for which a planning approval is required but has not been obtained, or •  in contravention of a planning approval. Building is being used— •  inconsistently with its classification under this Act or the Local Government Act 1993, and •  in a manner that constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety, and •  in a manner that is not regulated or controlled under any other Act by a public authority. Premises are being used for an activity (that would or would be likely to require planning approval) that— •  constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety, and •  is not regulated or controlled under any other Act by a public authority.	•  The owner of premises or building •  The person using the premises or building

8.18   Appeals concerning orders

(cf previous s 121ZK)

(1)  A person who is given a development control order may appeal to the Court against the order.

(2)  However, a person may not appeal against a fire safety order given by an authorised fire officer (other than an order that prevents a person using or entering premises).

(3)  The appeal may be made only—

(a)  within 28 days after the development control order is given to the person, or

(b)  if an order is given subsequently that forms part of the development control order, within 28 days after the subsequent order is given to the person.

(4)  On hearing an appeal, the Court may—

(a)  revoke the development control order, or

(b)  modify the development control order, or

(c)  substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d)  find that the development control order is sufficiently complied with, or

(e)  make such order with respect to compliance with the development control order as the Court thinks fit, or

(f)  make such other order with respect to the development control order as the Court thinks fit.

4.65   Definition of “existing use”

(cf previous s 106)

In this Division, existing use means—

(a)  the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for this Division, have the effect of prohibiting that use, and

(b)  the use of a building, work or land—

(i)  for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and

(ii)  that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.

4.66   Continuance of and limitations on existing use

(cf previous s 107)

(1)  Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.

(2)  Nothing in subsection (1) authorises—

(a)  any alteration or extension to or rebuilding of a building or work, or

(b)  any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or

(c)  without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or

(d)  the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 4.17(1)(b), or

(e)  the continuance of the use therein mentioned where that use is abandoned.

(3)  Without limiting the generality of subsection (2)(e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.

(4)  During the period commencing on 25 March 2020 and ending on 25 March 2022, the reference to 12 months in subsection (3) is taken to be a reference to 3 years.

14. Mr Ray Darney is a town planner who acted for the Applicant. Mr Dylan Johnstone is a town planner who acted for the Respondent. Both town planners have extensive experience working for Byron Shire Council (although Mr Darney is now a town planning consultant), and participated in a joint report (Ex 2: Town Planning Joint Report). I summarise their evidence in Ex 2 as well as their evidence in chief or under cross examination as follows:

Issue: Is the Cabin a permissible dwelling?

1. Mr Ray Darney:

1. It is acknowledged that the Cabin is a dwelling and has been and is being used for that purpose. The original Cabin preceded the 1968 IDO, and has the right to continue as a rural workers dwelling, it is not a prohibited use. It is not defined as an “existing use”, as it is a use that was permitted under the 1968 IDO, and continued to be permitted under the provision of BLEP 1988 and the current BLEP 2014. (Ex 2 p2)

2. There is no need for a current Building Information Certificate application. Mr Darney contacted the builder who did the construction work in the 1980s and was informed it was constructed to the standard at the time. (Ex 2 p5)

3. The Cabin occupied by Mr Webster can continue to be occupied as a dwelling. The IDO did not prevent a dwelling such as a rural workers dwelling, such an occupancy is “incidental ….to the use of the land”. Most farms in NSW have additional dwellings or cabins for farm employees, or shearers quarters or the like. (Ex 2 p9)

4. In cross examination –

Q:   You concluded that there was a building in place prior to 1968 based on aerial photographs taken prior to 1968?

Response:   Agreed.

Q:   You approximated where the Cabin was?

Response:   If you look at the topographic maps and aerial photographs you can see the light coloured areas.

Q:   Reflection on the roofs?

Response:   Yes.

Q:   Reflection of a roof – not what the structure is?

Response:   Yes

Q:   Which could be a packing shed?

Response:   Quite possibly. There were a number of people living in the area 30 or 40 years ago.

Q:   Not possible to determine whether the reflective roofs we are seeing are a dwelling or a country dwelling?

Response:   That is agreed.

Q:   I refer you to the photographs annexed to the Affidavits of Peter Dane (Ex 3) and Leissa Dane (Ex 4) – you have seen them?

Response: Briefly this morning.

Q:   Those photographs show the construction of the building at the time – what it looked like at the beginning?

Response:   Yes.

Q:   Noting since those photographs the Cabin has changed?

Response:   I cannot tell what the structural changes have been. Obviously additions over a period of time. There may be an addition of a room in the roof, and the deck closed in.

Q:   The Cabin has been changed since it was built in 1984. You do not know who made those alterations?

Response:   I do not know who changed the building since it was built by Craig Davidson.

Q:   Structural adequacy?

Response:   I cannot tell what happened since 1984 – whether the additions had structural adequacy or not. I asked Mr Wookey if he had made any alterations, and he said ‘no’.

5. The Cabin is serviced by a composting toilet. In an earlier era a pit toilet was provided to the Cabin. The composting toilet is a normal and approvable facility in the rural areas of Byron Shire Council and many multiple occupancy sites have composting toilets favoured by early ‘alternate communities’.

2. Mr Johnson:

1. Observations by Council Community Enforcement Officer Christopher Mitchell during his inspection on 18 October 2021 indicated that the Cabin is being used as a dwelling house in accordance with the definition of ‘dwelling house’ and ‘dwelling’ in BLEP 2014.

2. A dwelling house is permitted with consent on land zoned RU2 in accordance with BLEP 2014 Land Use Table.

3. Council has no record of a development consent being granted, either pursuant to the IDO 1968, BLEP 1988 or BLEP 2014, or an approval being issued under the Local Government Act 1993 for an onsite sewage management system to service the Cabin.

4. Council has not received an application for a Building Information Certificate which would allow an assessment of the structural integrity of the building and an assessment of whether the building complies with the Building Code of Australia.

Issue: Is there legal access to the Cabin

1. Mr Johnstone:

1. The Site has legal access to Skyline Road. However, historically vehicular access to the Cabin has been occurring via Middle Pocket Road through a neighbour’s land, Lot 9 in DP 1137873. There is no registered right of way and the neighbour has withdrawn consent for access to the Cabin over his land. (Ex 2 p 3)

2. Deposited Plan 1137873 includes a notation “I” which refers to a ‘right of carriageway over existing track in use by DP 1066950’ traversing Lot 9 DP 1137873 to a right of carriageway 20.117 wide. The s 88B Instrument associated with DP 1066950 indicates that the use of the existing track and right of carriageway burdens Lot 3 DP 1066950 (now Lot 9 DP 1137873) and benefit only Lot 1 DP 208063. The Cabin is on Lot 2 DP 1137873. (Ex 2 p3)

2. Mr Darney: “Agreed”. (Ex 2 p3)

Issue: Is the Cabin safe for habitation – structurally and in relation to fire safety? Structural?

1. Mr Johnstone: “Council has not received an application for a Building Information Certificate which would allow an assessment of the structural integrity of the building and an assessment of whether the building complies with the Building Code of Australia.” (Ex 2 p 5)

2. Mr Darney: “There is no requirement for a Building Information Certificate. I have contacted the builder who did the construction work to the existing dwelling circa 1980. The building was constructed to the standards at the time…” (Ex 2 p 5)

3. Mr Darney in cross-examination:

Q: You have seen the photographs attached to the affidavits of Peter Dane and Leissa Dane? (Ex 3 and Ex 4)

Response:   Briefly this morning.

Q:   Having seen these photographs the Cabin has changed since 1984?

Response: I cannot tell what the structural changes have been since 1980. Obviously changes over a period of time. There may be additions to the structure – may be an addition of a room in the roof.

Q:   It has been changed – you do not know who made those alterations?

Response:   I do not know who changed the building since 1984. …I cannot tell what happened since 1980s, whether there is structural adequacy or not.

Q:   You do not know who made those alterations?

Response:    I asked Mr Wookey had he made any alterations and he said no.

4. Mr Darney in re-examination:

Q:   You were a senior town planner by Byron Shire Council: is this a relatively common construction within Byron Shire?

Response:   ...I would have approved approximately 100 houses for continued occupation and that is not even 50% of the houses.

Q:   You know Craig Davidson built the Cabin in the early 1980’s – what were his qualifications?

Response:   He was a licensed carpenter. He was not able to certify or do substantial building other than working as a carpenter.

Fire?

1. Mr Johnstone: The location of the ... Cabin is identified as Vegetation Category 1 (high risk) in accordance with Council’s bushfire mapping certified by the Rural Fire Service on 12 July 2022. The Cabin is located approximately 230m from a section of Skyline Road that is a Crown Road and approximately 3km from the Council owned section of Skyline Road. (Ex 2, p5)

2. Mr Darney: Agreed. Fire safety is a crucial issue for this Site and adjacent sites in the inner Middle Pocket area…At a minimum the site of the Cabin needs to be cleared in accordance with Planning for Bushfire Protection 2019, Section 2.6.5 10/50 Vegetation Clearing Scheme.

3. The Applicant claimed that Council had not visited the site of the Cabin but in cross-examination Mr Darney agreed that Mr Christopher Mitchell, Council’s Community Enforcement Officer inspected the site on 18 October 2021.

4. The town planners are in disagreement as to whether the Cabin has been in continuous use, Mr Johnstone stating that there is no evidence to support the claim, and Mr Darney stating it has been in continuous use. (Ex 2 p7)

Access during bushfires? (Particulars (c) and (d) of Contention 2 – Ex 1 tab 2 p 5)

1. Mr Johnstone: (see par[5] above): Wet sclerophyll forest is recognised as a distinct vegetation formation in Keith (2004) “Ocean shores to desert dunes: the native vegetation of New South Wales and the ACT”. Planning for Bushfire Protection 2019 categorises wet sclerophyll forest as “Forest” hazard. “Forest” is recognised as having the highest hazard level amongst the vegetation formations recognised by Planning for Bushfire Protection 2019, and rainforest is also identified as a vegetation hazard but is amongst the lowest hazard levels. It is noted that rainforest does burn as evidenced by the Sarabah Valley fire which destroyed the Binna Burra lodge on the Gold Coast hinterland in the 2019 fires. (Ex 2 p8).

2. Mr Darney: The existing (3) dwellings on the land (including the Cabin) need to have improved access arrangements – use the 10/50 rule, upgraded water storage and improved road access. (Ex 2 p6)

15. Mr Peter Dane was interposed at 11.30am as he and his wife, Leissa Dane, were travelling in rural Australia. Mr Dane swore an Affidavit dated 7/10/22 which was filed on 10/10/22 (Ex 3). Mr Dane gave evidence that:

1. He was a former owner of the land upon which the Cabin is built.

2. He and Leissa Dane built the Cabin in 1984 without obtaining development consent. Craig Davidson assisted Leissa and Peter Dane to build the Cabin.

3. During 1984-1992 the Cabin was used for occasional overnight stays, but mostly as a day shelter for him and his family when working on the Site and planting trees. He did not live in the Cabin full time.

4. The Cabin was originally one room with a small loft above approximately half or one third of the lower floor (accessed by a ladder) and a front veranda. There was no running water, or cupboards, or cooking facilities.

5. Mr Dane believes the Cabin the subject of these proceedings to be the Cabin Leissa, Craig Davidson and he built in 1984.

16. Ms Leissa Dane was also interposed at 11.30am, and she appeared on screen via AVL alongside her husband, Peter Dane. Ms Dane swore an Affidavit dated 7 October 2022 which was filed on 10 October 2022 (Ex 4). Ms Dane gave evidence that:

1. In 1984 Peter and I built the Cabin. Annexed to my affidavit are copies of photographs of the Cabin during and after construction.

2. We had young children at the time, and Peter occasionally used the Cabin for overnight stays, and it was used less frequently by our family.

3. I believe the Cabin the subject of these proceedings is the Cabin we built in 1984.

17. Mr and Ms Dane appeared via AVL to give evidence, and because they were on the same screen, they both answered various questions put to them. I do not have a transcript, and the responses set out below are in words by both or either of them during the giving of their oral evidence:

1. In examination in chief:

Q:   What was the land like before you built the Cabin?

Response: We cleared the site. The only building was an old banana packing shed at least half a kilometre away.

Q:   Did anyone else help you build?

Response:   Yes. Craig Davidson.

Q:   Was he a licensed builder?

Response:   I cannot recall. He was building his own place and he helped us build that Cabin.

2. In cross examination:

Q:   How did you get to the Cabin?

Response:   We regularly visited the Site of the Cabin – there was a rough track along where the creek was and we would walk up the hill. We cleared 2 sites; the top site is where we used to park the car. On the bottom site we built the Cabin.

Q:   Banana packing shed?

Response:   I remember bananas on the slope – no shed. There were no sheds as a fire went through there before we built.

Q:   Do you have any recall of that fire?

Response:   I remember …. that fire and nothing there.

Q:   Do you recall Philipstown?

Response:   No. I know Mrs Phillips lived at the bottom. I do not recall a town. We just referred to it as Inner Pocket.

18. Mr Howard John Barker swore an affidavit on 23 October 2022 (Ex D). He was a regular visitor to the Site since 1979. Mr Barker acknowledged he lived in the Cabin from December 2014 to May 2015.

19. Mr Robin Wookey (the Applicant) swore or affirmed an affidavit dated and filed on 24 October 2022 (Ex C), and states, inter alia:

1. He has owned the Site known as “Kinabalu” for 16 years.

2. There is a legal Right of Way on the northern boundary of Kinabalu shared by National Parks, Mr Dodds at 570 Inner Pocket, and Mr Wookey. This legal right of way provides safe access to the cottages on Kinabalu.

3. Ray Darney, town planner, has verified from aerial photographs taken in 1962, 1987 and 1979 that the Cabin is in the same location as it was in an aerial photograph from the 1940’s. The Cabin is at the north western end of what is known as the Inner Pocket Trail. (Ex C par [56]). (It is noted that Mr Darney’s advice recited in this paragraph changed under cross examination.)

4. The Cabin is still shown on a number of topographical maps produced by the NSW mapping authority. In these maps you can clearly see that the Cabin has been in existence from at least 1979. (Ex C, par [57].

5. Mr Wookey in cross examination:

Q:   You understand you have a duty to take reasonable steps in these proceedings and the Court could make a costs order against you if you are unsuccessful?

Response:   That is correct.

Q:   Ex C par [6]: would you agree that you have let dwellings on Airbnb?

Response: Yes, around the main house on the original building that was built in 1976, and my home.

Q:   Are buildings used for short term accommodation?

Response:   That is correct

Q:   History of the Site?

Response:   I take it upon myself to record the history of the area and I have recorded Mr Frank Mills, a respected local historian.

Q:   Ex C par [48]: you are aware that there has been no DA lodged in respect of the Cabin?

Response:   The process is very unfamiliar. There are various documents we need – bushfire report. At the time due to covid there were extraordinary pressures – the reports take a long time. I did not find any patience from Council in trying to get it approved. I am very unfamiliar with the process.

Q:   Aerial photograph dated 23 March 1979 with the heading “1978 Aerial Image by portal.spatial.nsw.gov.au” annexed to your affidavit: the image appears to the snipped – “cut”?

Response:   The view was cut and pasted.

Q:   It was named “Mullumbimby” not “Lismore”?

Response:   Not aware of it.

Q:   Annexure to your affidavit: “1945, 1946, 1947 Aerial Image provided by postal.spatial.nsw.gov.au”: Nothing could be discerned?

Response:   Only a white dot.

Q:   Cannot discern white?

Response:   I discern a white dot similar to other white dots.

Q:   Further annexure of aerial photograph to your affidavit – not identified on the photograph – referred to in your par [56] Aerial photograph in the 1940’s?

Response: Lots of white dots or houses similar marking to the white dot in question.

Q:   In par [57] of your affidavit you refer to the cottage as still shown on a number of topographical maps produced by the NSW mapping authority: “In these maps you can clearly see that the cottage has been existence from at least 1979.”    Annexed to your affidavit is a topographical map “Section of 1979 Print produced by NSW Government Mapping Authority” – and you say that the black dot at the end of Middle Pocket Road is the Cabin? There is no key to that map is there?

Response:   No. I do not know.

6. Re-examination of Mr Wookey by Mr Webster:

Q:   1946 Aerial?

Response:   Only in observation of that building that I could see something that denotes 1940’s at that stage – a dot.

Q:   Is that something that shows that a building is there?

Response:   What I found quite interesting was how these different facts have been expressed by different people. Craig Davidson in 1980’s – that was a surprise to me.

Q:   Skyline Road – Middle Pocket Road?

Response:   No – at that time there was no Skyline road – access was via the Inner Pocket Trail.

20. Mr Simon John Dods swore an affidavit on 17 October 2022 which was filed on the same day. (Ex 6).

1. He is the owner of 670 Middle Pocket Road Middle Property and it adjoins the Site. (Ex 6, par [1]).

2. There were no structures at the location of the Cabin in 1977 nor when he purchased his property in 1981. (Ex 6 para [5]).

3. In 1984 I witnessed Craig Davidson and Peter Dane build the Cabin. (Ex 6 par [8]).

4. The Cabin appears to have been renovated over time, however the Cabin is in the same location as in 1984. (Ex 6 par [9]).

5. The only legal access to the Cabin is via Skyline Road. There is a legal Right of Way to my property which benefits me and there is no legal access to the Cabin from Middle Pocket Road. (Ex 6, par [17-18]).

21. Mr Dodds in examination in chief:

Q:   The Cabin?

Response:   I witnessed it being built in 1984. There was a fire prior to the Cabin being bult. RFS backburned up that ridge. RFS would not have allowed the backburn up that ridge if there was a Cabin on it. In 1977 I walked up that valley, there was a packing shed at the bottom but where the Cabin is there was grassland and no road to where the Cabin stands now.

22. Mr Scott Munn Brodie swore an affidavit on 7 October 2022, which was filed on 10 October 2022. (Ex 5), and exhibited to Mr Brodie’s affidavit is Exhibit “SB-01”. Mr Brodie is the Community Enforcement Officer with Byron Shire Council, and has held that position since 1999:

1. Council has no previous records of any buildings (being the Cabin) before 11 July 1978 (Ex 6, reference Ex SB-01 pp 6-7).

2. On 18 October 2021 I inspected the Site and Cabin. At pages 10-13 in Ex SD-01 are copies of photographs taken during the inspection.(Ex 5 par [17]).

3. Council issued a Notice of proposed stop use order regarding the Cabin on 22 November 2021 to cease use of the Cabin and to remove the kitchen and all plumbing from the unapproved Cabin. Representations regarding the notice could be made to Council by 6 December 2021 and the Notice was to be complied with by 13 December 2021. (Ex 5 par [18]).

4. On 20 December 2021 Council received an email from Mr Wookey advising that Ben Webster no longer lived in the Cabin. (Ex 5 par [19]).

5. On 10 January 2021 after receiving an email from Council Mr Wookey replied that “...it is impossible for me to police what’s going on down there and I have been informed that Ben does not live there so I cannot help you”. (Ex 5 par [20]).

6. On 18 January 2022 Council issued the Stop use Order in relation to the Cabin.

7. On 31 July 2022 Mr Peter Dane emailed Mr Brodie and advised he was a tenant in common at the Site from 1977 to 1992. Mr Dane advised he built a small cabin in 1984. During the period 1984-1992 he used the Cabin for occasional overnight stays but mostly as a day shelter. (Ex 5 par [23])

8. On 15 August 2022 Mr Peter Dane emailed Mr Brodie advising that Mr Dane got a machine and built the road up from the bottom and cleared flat sites in 1984, and that there were no existing buildings there. (Ex 5 par [26].

23. Mr Brodie in cross-examination:

Q:   Mr Dane built the road in the 1980’s?

Response:   Mr Dane said that he built the road, and he said as I understand him that he repaired it because it got overgrown very quickly.

Submissions by the Applicant

24. Mr Webster made the following submissions:

1. Mr Wookey and I tried to regularise the use of the Cabin. In early 2020 Byron Shire Council launched a moratorium to assist owners of non-compliant dwellings to get help to make them legal dwellings by having a development application approval. Mr Wookey and Mr Webster made a submission to Council dated 12 May 2021, receipt number UD20.

2. Mr Wookey and Mr Webster have done everything in their power to regularise the use of the Cabin, and are still going through the DA process. However, Council have continued to send fines and compliance orders resulting in hindering the process of obtaining development consent.

3. The aerial photographs and topographical map demonstrate that there was a building on the site prior to 1968. The Applicant should be able to continue to use the Cabin as a dwelling.

4. More than an order of non-compliance is required to make a house non-habitable.

5. These Cabin proceedings may influence a fairly large number of people and only in very recent times has a culture arisen in Council to enforce the law instead of giving a helping hand. I ask that the Court assist us by giving us a helping hand.

6. There is a severe housing crisis on the North Coast as a result of the recent floods.

7. This stop use order puts at risk the conservation works Mr Wookey and I are able to undertake on the Site.

8. We are in the Court’s hands and I ask again for leniency in this matter because of the conservation works being carried out on the Site and the history of fires and floods from 2019 to date.

Submissions by the Respondent

25. Ms Rose made the following submissions:

1. This is an appeal against a Stop Use Order against an Order issued by Council pursuant to s 9.34(1)(a) and Sch 5 Order 1 of the EPA Act.

2. The Cabin is being used for a purpose for which a development consent is required but which it does not have: cease use as a dwelling and remove the kitchen and the plumbing.

3. The Applicant appealed the Stop use Order under s 8.18(1) of the EPA Act. Council requests the Court to exercise its discretion to dismiss the appeal and confirm the Order because:

1. There is no development consent (Council has no record of a development consent);

2. No planning approval;

3. Mr Peter Dane said he constructed the Cabin in 1984, and he levelled the land in order for the construction to take place;

4. Ms Kath Vail said that the Cabin was constructed in 1984 (Ex 5 [25]);

5. Leissa Dane said the Cabin was built in 1984. There was nothing in the location prior to the Cabin being built;

6. Mr Dane said he did not obtain development consent for the construction of the Cabin;

7. Mr Dods said he remembered that there were no structures there in 1977;

8. The IDO 1968, the BLEP 1988, and BLEP 2014 apply to the Site;

9. Mr Darney, on viewing the aerial photographs and topographic map, could acknowledge that whilst he had seen roofs in the area he could not say that they were dwellings on the Site or in particular the Cabin on the Site.

4. Permission for a dwelling is the question. On the Applicant’s case, he does not need planning approval since the Cabin was built prior to 1968. That is contrary to the evidence of Mr and Ms Dane.

5. The Applicant bears the onus to demonstrate that the Cabin was built prior to 1968 relying upon Penrith Waste Services Pty Ltd v Penrith City Council (1998) NSWCA 98 @ 105-106; (1998) 101 LGERA 98 (Penrith Waste Services).

1. If the Applicant is correct in his assertions as to the construction prior to 1968, then he relies upon the continuous use provisions in the EPA Act being s 4.66. However, the Respondent says that the Cabin was not lawfully approved and therefore the continuous use provision in s 4.68 of the EPA Act is not available to the Applicant, Auburn Council v Nehme (1999) 106 LGERA 19; [1999] NSWCA 383 @ [31] (Auburn Council v Nehme).

2. That onus of proof as to the lawful use of the Cabin by the Applicant has not been discharged:

1. Mr Darney: A dwelling is more than a structure – includes a kitchen and a bathroom.

2. The aerial photographs are difficult to discern what lies beneath the ‘white dots’ which appear to be sunlight reflected off the roofs.

6. In exercising your discretion you would have reference to the criteria Planning for Bushfire Protection 2019.

7. Structural assessment: evidence that Mr Craig Davidson was a licensed carpenter who assisted in building the original Cabin. However there have been building alterations over time and no evidence has been given about the structural adequacy of those alterations. There is no information that the structure of the Cabin is safe.

8. Neither a Building Information Certificate application nor a development application have been received by Council.

9. Finally access: the site is very steep and there may be internal access within the Site but there has been no assessment of access in relation to Planning for Bushfire Protection 2019.

10. There is no evidence of continuous occupation of the Cabin.

11. There is lack of evidence for an approved dwelling.

12. I invite the Court to dismiss the appeal, and confirm the order.

26. Mr Webster in reply: the onus regarding abandonment for a pre-existing house is on Council. I repeat my submissions in relation to the difficulty facing tenants regarding the recent local history of bushfire in 2019/20 and repeated flood events.

Findings

27. In his Class 1 Application, the Applicant seeks the following Orders:

1. An order that the Development Control Order Non habitation order issued by Council dated 18 January 2022 be stayed until the conclusion of these proceedings.

2. No order as to costs.

3. Such further or other order as this Honourable Court sees fit.

28. The Applicant filed his appeal on 21 February 2022 in accordance with his right to do so pursuant to s 8.18(1) of the EPA Act, and in accordance with the time provisions in s 8.18(3) of the EPA Act.

29. Without further evidence (such as a surveyor identifying one of the ‘white dots’ on the aerial photograph ‘1945, 1946, 1947 Aerial Image’ as annexed to the affidavit of Robin Wookey - Ex C as the site of the Cabin, and evidence that it was used as a dwelling prior to 1968) the Applicant is unable to prove that the Cabin was an existing dwelling prior to IDO 1968.

30. I find that the Respondent has established that the Cabin was constructed on virgin land in 1984 by the evidence of Peter Dane, Leissa Dane, Simon Dodds and Kath Vail:

1. Peter Dane and Leissa Dane cleared the land in 1984, and made 2 level areas;

2. Peter Dane, Leissa Dane and Craig Davidson built the Cabin in 1984. It may be that Mr Davidson, who was a carpenter at the time, still has the original plans for the Cabin.

3. Bushfire had been through this part of the Site not long before the construction of the Cabin in 1984, however, neither Peter Dane nor Leissa Dane saw the remnants of any prior buildings, which would include footings. Their evidence was: “The only building was an old banana packing shed at least half a kilometre away”.

1. Simon Dodds saw the Cabin being built in 1984.

2. Kath Vail saw the Cabin being built in 1984.

31. The Respondent’s records do not disclose a development consent for the Cabin. Peter Dane gave evidence that he did not apply for development consent.

32. Alterations and additions have been made to the Cabin since 1984. There is no evidence as to exactly what alterations and additions have been made, but the visual evidence of alterations and additions is available in the photographs in Ex 1 pp 63-68.

33. There is no evidence as to when the alterations and additions were made, nor by whom they were made.

34. IDO 1968 was the planning regime in effect as at the date of the construction of the dwelling, i.e. 1984.

35. Pursuant to IDO 1968 the part of the Site where the Cabin is situated is zoned ‘Non-Urban 1(a)’ and the construction of the Cabin fell within the objectives of the Non-Urban 1(a) zone to:

1. Encourage and permit a range of settlement at a scale and character that maintains or enhances the natural, economic, cultural, social and scenic amenity of the rural environment of the Shire of Byron.

2. To enable the provision of rural tourist accommodation and facilities only where such facilities are compatible with the form and density of the nature of the locality.

36. Under IDO 1968 only agriculture (other than animal establishments) bushfire hazard reduction and forestry was permissible without development consent.

37. Further under IDO 1968 ‘Country dwellings’ were permissible with development consent. The definition of ‘Country dwelling’ is set out in par [11] above. For a Country dwelling to be permissible the land area is required to be 100acres. I note that the land area in these proceedings is 41.2ha which is an area above 100 acres. Therefore the Cabin was permissible with consent pursuant to the provisions of IDO 1968.

38. The following planning instrument was BLEP 1988 and the Cabin was already in situ.

39. At the date of issue of Order No. 1 the area of the Site upon which the Cabin is built was zoned pursuant to BLEP 2014 (Ex 1 tab 3) ‘DM Deferred Matter: 1(a) General Rural Zone. Again, the construction of the Cabin was permissible with development consent, and only agriculture (other than animal establishments), bushfire hazard reduction and forestry was permissible without development consent.

40. It has been mooted in correspondence from the Applicant to the Respondent that the Applicant will lodge a Building Information Certificate for the Cabin as built (which includes the original Cabin together with alterations and additions), and a development application. Neither application has yet to be made.

41. The Applicant submitted that I should exercise my discretion and permit the Cabin to remain as a dwelling because of the shortage of accommodation in the North Coast of NSW as a direct result of the extreme flooding of that area over the last 12 to 18 months and the bushfires in 2019. Whilst I sympathise with the Applicant’s view in this regard, I cannot ignore the risk under Planning for Bushfire Protection 2019 - of ember strike, bushfire, and the limited road access to and from the Cabin.

42. The location of the Cabin on the Site is identified as Vegetation Category 1 (high risk) in accordance with Council’s bushfire mapping certified by the Rural Fire Service on 12 July 2022. Mr Darney stated in evidence (Ex 2 p 5) that fire safety is a crucial issue for this site, and at a minimum the site of the Cabin needs to be cleared in accordance with Planning for Bushfire Protection 2019.

43. There has been no expert report prepared in relation to Planning for Bushfire Protection 2019. The Respondent is correct in requiring a development consent application which would include an expert report advising on an Inner Protection Zone, Outer Protection Zone, likelihood of ember attack, and ease of access to evacuate the site in a fire emergency, which ease of access could also be used by RFS to fight a fire on or adjacent to the Site.

44. I understand that Mr Craig Davidson has the original plans from when the Cabin was built in 1984. I have not seen those plans. However, the fact that those plans are available puts the Applicant in a strong position in relation to the structure of the original Cabin, and together with expert evidence on the integrity of the alterations and additions, the Applicant is able to lodge an application for a Building Information Certificate, subject of course to any other documentation the Respondent may need to process such an application.

45. The Respondent submits that the onus is on the Applicant to prove the Cabin was, and is, a permissible dwelling. The Applicant relies on Talbot J’s judgment, which was upheld in the NSW Court of Appeal, in Penrith Waste Services at BC9805884 at [11].

“The appellant challenges his Honour’s finding that the appellant, as the user of land, bears the onus of proof that a relevant consent exists where it is relying on that consent to continue the existing use after prohibition. The challenge is rejected……

“Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 337-338; 63 LGRA 361 at 363-364 is authority for the proposition that the onus is on the user to prove that its use, for a prohibited purpose, was exempted as being the continuance of an existing lawful use. The Court of Appeal affirmed the decision of Cripps J on this issue: see Warringah Shire Council v Sedevcic….”

……

“In my opinion, Talbot J’s approach to onus was correct. It was for the appellant to prove the consent and compliance with its conditions in order to prove an existing lawful use within ss 106 and 107 of the Act” (the forerunning to ss 4.65 and 4.66 of the EPA Act) “or the carrying out of development in accordance with the consent for the purposes of s 109B. To prove that its actual use complies with the consent, it must prove the terms of the consent. Sedevcic was such a case. In the appellant’s proceeding in the Land and Environment Court, it sought a declaration. In so doing it assumed the onus to prove the relevant consents for lot 22….”

46. The Applicant has not discharged the onus of proof to prove the Cabin was permissible pursuant to the ‘Country dwelling’ provisions of IDO 1968.

47. The Applicant also submitted that the ‘permissible dwelling’ had continuous use in accordance with s 4.66 of the EPA Act. Clearly on the evidence of Peter Dane and Leissa Dane that the Cabin was used occasionally for overnight stays from 1984 to 1992 and therefore the Applicant cannot provide continuous use evidence even if he could prove the Cabin was a permissible use. The Respondent relies upon Auburn Council v Nehme, par [31]

“……However, after 1980, the continuing use provisions of the EPA Act did not protect a use which had been abandoned after its commencement.”

48. The Applicant did not prove continuous use of the Cabin as a dwelling from 1984 to the date Order No. 1 was served.

49. I have considered the Applicant’s arguments in relation to continuous use for the sake of completeness. However, the continuous use provisions do not apply to the Cabin as development consent was necessary for its lawful use when it was built in 1984, and Council has no record of granting development consent, and nor has any application been made for such a consent.

50. I note that the Order does not require demolition of the Cabin. I recommend that the Applicant lodge with the Respondent a Building Information Certificate for the Cabin as built and a development application for its use.

51. In accordance with s 8.18(4)(e) and (f) of the EPA Act and s 39(2) of the LEC Act I shall dismiss the appeal and confirm the Order.

Orders

52. The Court orders:

1. The appeal is dismissed.

2. Order No. 1 in Sch 5 of the Environmental Planning and Assessment Act 1979 requiring the Applicant to stop use of the cabin located on Lot 2 in Deposited Plan 208063 Skyline Road Middle Pocket NSW dated 18 January 2022 is confirmed.

3. All exhibits are retained.
    

M Peatman

Acting Commissioner of the Court

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Decision last updated: 25 November 2022