Land and Environment Court of New South Wales CITATION : Coombs v Ballina Shire Council [2006] NSWLEC 294 APPLICANT: Sharon Coombs PARTIES : RESPONDENT: Ballina Shire Council FILE NUMBER(S) : 10764 of 2005 CORAM: Lloyd J KEY ISSUES: Development Application :- dwelling house - minimum allotment size - dwelling entitlement - absence of evidence - question of fact LEGISLATION CITED: Ballina Local Environmental Plan 1987 cl 12 Interim Development Order No 1 - Shire of Tintenbar DATES OF HEARING: 03/02/2006 DATE OF JUDGMENT: 05/31/2006 EX TEMPORE JUDGMENT DATE : 02/03/2006 APPLICANT: M H Baird (barrister) SOLICITORS: N/A LEGAL REPRESENTATIVES: RESPONDENT: D P Wilson (barrister) SOLICITORS: W J Grace & Co JUDGMENT: - 5 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J Friday, 3 February 2006 LEC No. 10764 of 2006 COOMBS v BALLINA SHIRE COUNCIL [2006] NSWLEC 294 EX TEMPORE JUDGMENT 1 HIS HONOUR: The applicant, Sharon Coombs, has appealed against the council's refusal of a development application to demolish an existing shed and erect a single storey brick residential dwelling and double carport on the land known as lot 7 in deposited plan 113043, Sneesby's Lane, East Wardell within the Shire of Ballina. The land has an area of approximately 809.4 square metres and the proposed development does not satisfy the council's requirement for a minimum allotment size for dwelling houses in the relevant zone. 2 The council refused the development application for a number of reasons including the following: A dwelling entitlement does not exist on the subject allotment pursuant to Clause 12 of the Ballina Local Environmental Plan 1987. 3 The matter comes before me today for the determination of two preliminary or separate questions as follows: 1. Whether Lot 7 DP 113043 Sneesby's East Wardell, in the State of New South Wales, is entitled to existing use rights pursuant to the provisions of s 108 of the Environmental Planning and Assessment Act 1979. 2. In the alternative, whether Lot 7 DP 113043 Sneesby's Lane, East Wardell, in the State of New South Wales, is entitled to the benefit of the provisions of clause 12(3A) of the Ballina Local Environmental Plan 1987 to enable development consent to be granted by the consent authority for the purposes of a dwelling house. 4 At the commencement of the proceedings Mr M H Baird, appearing for the applicant, did not press the first question and sensibly conceded that the subject land does not possess any existing use rights for the use of the subject land as a dwelling house. This is because no dwelling house currently stands on the land. 5 Clause 12(3A) of the Ballina Local Environmental Plan 1987 is as follows: Notwithstanding the provisions of subclause (3), the council may consent to the erection of a dwelling-house on an allotment of land that was lawfully created before the appointed day and upon which a dwelling-house could lawfully have been erected immediately prior to the appointed day. 6 The evidence shows that there was at some time a dwelling house on the subject land. A survey plan dated 1 September 1968 is in evidence and it establishes, at least on a prima facie basis, the existence of both a galvanised iron shed and a weatherboard cottage on the land as at that date. There is also in evidence a photocopy of an aerial photograph together with a letter dated 27 May 2004 from Mr F W Thomas, a previous owner of the land, the photograph showing what appears to be a weatherboard house and a shed on the land. The accompanying letter states: I Frank Thomas of 52 Cook Avenue, Alstonville NSW do certify that the photocopy held by Sharon Coombs is a true copy of an original photo held in my possession. The picture is of the original house on lot 7 D.P. 113043 Sneesby's Lane and the surrounding area. The house was originally owned by myself and which was sold to John Elder on 15-3-1989. The picture depicts the layout of the old farmhouse and surrounds, as it was in those days. 7 There is also in evidence a copy of a notice of sale or transfer of land in the standard form sent to the Valuer General by David W Johnston, solicitor, notifying the transfer of the land from Mr Thomas to John Elder Pty Limited, the date of transfer being 15 March 1989. The nature of the property is described as being vacant land and shed and the purchase price is said to be $18,000. 8 I am prepared to infer from this evidence that there was no dwelling house on the land at the date of the transfer, 15 March 1989. It is not clear from the letter of Mr Thomas what he was referring to in his letter when he states: "The picture depicts the layout of the old farm house and surrounds as it was in those days." It clearly cannot be a reference to the date of transfer of the property from him to John Elder Pty Limited. 9 Although the applicant has conceded that the property does not today possess any existing use rights, the applicant relies upon cl 12(3A) of the Ballina Local Environmental Plan 1987 to say that there is an entitlement to have a dwelling house approved on this land. This submission means that one has to have recourse to the previous planning instrument, namely, Interim Development Order No 1 - Shire of Tintenbar, which commenced on 12 June 1970. Tintenbar Interim Development Order No. 1 appears to be the first planning control which applied in this area. I have noted that there is prima facie evidence of a dwelling house existing on the land in 1968. I am prepared to infer that the erection of a dwelling house in 1968 or prior to then was something that did not require any interim development consent or development consent. 10 Under Tintenbar Interim Development Order No. 1 the land was zoned Non-urban 1(a) in which dwelling houses other than country dwellings were prohibited. Clause 4 of that instrument, however, enabled the council to consent to the repair, alteration, enlargement, rebuilding or extension, including the erection of new buildings, of any existing building. 11 Clause 4 of the Tintenbar Interim Development Order No. 1 was, however, repealed on 26 September 1980. In the interim, on 1 September 1980, the Environmental Planning and Assessment Act 1979 ("the EP&A Act") had commenced and it, of course, contained provisions designed to protect existing uses. In particular, s 108 enabled the making of regulations allowing the carrying out of alterations or extensions to, or the rebuilding of, a building or work being used for an existing use. The provisions of the regulations to that effect are known as the incorporated provisions. 12 In other words, although cl 4 of the Tintenbar Interim Development Order No. 1 had been repealed, the applicant relies upon s 108 of the EP&A Act and the incorporated provisions to say that a dwelling house could lawfully have been erected immediately prior to the appointed day, the appointed day being 27 February 1987, when Ballina Local Environmental Plan 1987 commenced. 13 So far it would appear that all is well and the applicant retains an entitlement to have a development application lodged and considered and ultimately approved. 14 The argument of the applicant relies upon establishing that there was in existence a dwelling house on the land which could have had the benefit of the incorporated provisions at the appointed day. The onus of doing so, that is, the onus of showing that there was a dwelling house on the land immediately before 27 February 1987, lies upon the applicant. 15 The onus in my opinion has not been discharged. As I have said, there is prima facie evidence of the existence of a dwelling house on the land in 1968. There is clear evidence, however, that there was no dwelling house in existence on 15 March 1989. There is no evidence to show when the dwelling house was demolished or removed. In those circumstances the applicant has not discharged the onus of showing that sub-cl (3A) of cl 12 of the Ballina Local Environmental Plan 1987 applies. It follows, therefore, that the second question which I am asked to resolve must be answered in the negative. 16 The respondent seeks an order for costs. In my opinion no costs order is warranted. These are class 1 proceedings and it was convenient for the separate questions to be heard and determined separately because if answered in the negative, as they have been, it has saved the time and cost of possibly a lengthy hearing in front of a commissioner. The questions are not questions of law but questions of fact. Questions of fact determined in class 1 proceedings are subject to the usual costs practice in class 1 proceedings, namely, that there should be no order as to costs. Accordingly, there will be no order as to costs. The exhibits may be returned. I hereby certify that the preceding 16 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.