Tesoriero v Hornsby Shire Council [2003] NSWLEC 55

> Land and Environment Court of New South Wales

CITATION : Tesoriero v Hornsby Shire Council [2003] NSWLEC 55 APPLICANT: Tony Tesoriero PARTIES : RESPONDENT: Hornsby Shire Council FILE NUMBER(S) : (1)0147 of 2003 CORAM: Lloyd J Question of Law :- statutory interpretation - "rural workers' dwelling" KEY ISSUES: Words and Phrases: - "rural workers' dwelling" Environmental Planning and Assessment Act 1979 s 4 and 72(3) LEGISLATION CITED: Interpretation Act 1987 s 32 Land and Environment Court Act 1979 s 36(5) CASES CITED: Dixson v Wingecarribee Shire Council (1999) 103 LGERA 103; Water Board v Glambedakis (1992) 28 NSWLR 694 DATES OF HEARING: 21/02/2003 DATE OF JUDGMENT: 03/06/2003

APPLICANT: Mr M H Baird (barrister) SOLICITORS: N/A LEGAL REPRESENTATIVES: RESPONDENT: Mr J B Maston (barrister) SOLICITORS: Ian Woodward

JUDGMENT: - 1 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES (1)0147 of 2002

Lloyd J

6 March 2003 Tony Tesoriero Applicant v Hornsby Shire Council Respondent JUDGMENT Introduction 1 This is the separate determination of a question of law in proceedings brought in Class 1 of the Court's jurisdiction. The separate determination of the question of law has been raised in proceedings before a commissioner and referred to the Chief Judge for determination by a judge (pursuant to s 36(5) of the Land and Environment Court Act 1979). 2 During the hearing of the principal proceedings a fundamental question of law arose: In terms of the provisions of the Hornsby LEP [Hornsby Shire Local Environmental Plan 1994] can a "rural workers [sic] dwelling" in the Rural BA zone be approved for occupation by the owner of the land who intends to carry out agricultural activities on the subject land, while the main or principal dwelling on the land is rented out to persons not engaged in the agricultural production of the subject land? The Facts 3 The subject site is located at No. 8 Knights Road, Galston and is owned by the applicant, Mr T Tesoriero. Existing improvements on the property include a dwelling house located at the Knights Road frontage and outbuildings located at the rear of the dwelling. 4 A development application for a "dwelling and rural store" was lodged with the respondent, Hornsby Shire Council ("the council"), and is the subject of the appeal before the commissioner. Amended plans were lodged with the council in March 2002 to alter the proposed dwelling from a permanent to a moveable structure of 120 m2 floor area. The plans were further amended at the hearing before the commissioner to reduce the floor area to less than 110 m2. 5 The land is zoned Rural BA (Small Holdings- Agricultural Landscapes) under the Hornsby Shire Local Environmental Plan ("the LEP") which was originally gazetted on 22 July 1994. 6 The objectives of the Rural BA zone, to be taken into account by the council in determining development applications within the zone, are: Objectives of Zone (a) to restrain population growth, maintain the rural character of the area and ensure that existing or potentially productive agricultural land is preserved. (b) to promote agricultural use of land and provide for a range of compatible land uses which maintain the agricultural and rural environment of the area. (c) to ensure development is carried out in a manner that improves the environmental qualities, and is within the servicing capacity, of the area. 7 "Rural workers' dwelling[s]" and "dwelling house[s]" are permissible with council consent in the Rural BA zone. 8 Clause 23 of the LEP contains the dictionary for the LEP. "Rural workers' dwelling" is defined as follows: "rural workers' dwelling" means a moveable dwelling: (a) located on land on which a dwelling-house is or is intended to be located; and (b) used as the place of residence by persons whose principal employment is for the purpose of agriculture, animal establishment, aquaculture or a rural industry on that land; and (c) with a maximum gross floor area of 110m 2 . 9 A "moveable dwelling" is defined as follows: "moveable dwelling" means a dwelling which is: (a) a self contained dwelling including at least a kitchen, bathroom, bedroom, living area, toilet and laundry facilities; and (b) manufactured off- site in one or more major sections and transported to a site for installation; and (c) capable of being placed on and removed from a site within 24 hours, but does not include a caravan, mobile home and the like;" 10 "Dwelling house" means "a dwelling other than a rural workers' dwelling or an attached dwelling, that is the only dwelling on an allotment." 11 In 1995, a study was completed for the rural areas of the Shire, titled "The Hornsby Shire Rural Lands Study" ("the 1995 Rural Lands Study"). It is an exhibit in these proceedings. 12 The Rural BA zone was included in the LEP by Hornsby Shire Local Environmental Plan 1994 (Amendment No. 50), which commenced on 22 December 2000. The aims of this amendment are provided in cl 2: Aims of the plan 2. This plan aims to provide a framework for the future management of the rural areas, surrounding lands and waterways in the area of Hornsby by: (a) implementing the recommendations and findings of the Hornsby Shire Rural Lands Study; (b) promoting agriculture as a viable activity in the rural areas of Hornsby; (c) limiting population growth in areas with environmental, infrastructure, transport and service constraints; (d) conserving the environmental qualities and character of the rural areas of Hornsby. 13 The council adopted the Rural Lands Development Control Plan ("the RLDCP") on 13 February 2001. This is in the same terms as the draft Rural Lands Development Control Plan which was incorporated into Pt 2 – "Planning Strategy" of the 1995 Rural Lands Study as a working document. 14 The proposed dwelling is moveable and has a gross floor area of less than 110 m2. The existing dwelling house is occupied by a tenant of the owner of the property and it is proposed that it remain thus so. The said tenant will not be involved in the proposed agricultural activity. At present there is no agricultural activity on the land that requires a rural worker. Moreover, despite the applicant's plans to develop the agricultural potential of the land if the development application is approved, there is no proposal to employ a rural worker or workers who would reside on the land in the proposed dwelling. It is proposed that the applicant reside in the "rural workers' dwelling" and develop the land for snow pea production and aquaculture. The Parties' Submissions 15 Mr M H Baird, appearing for the applicant, relies upon the following relevant submissions (inter alia): (i) This application is slightly unusual in that it is intended that the owner of the property occupy the rural workers' dwelling. Furthermore it is clear that the primary intention of the owner is to undertake a variety of agricultural activities that are more subsistence farming or retirement farming. (ii) The definition of "rural workers' dwelling" is clear and as the application falls within the definition it is therefore permissible with consent. (iii) The relevant sub- clause of the LEP "says nothing about the need for an economically viable agricultural use" . There is no need for the consent authority to be satisfied that the occupation of the dwelling by an agricultural worker be long-term: Dixson v Wingecarribee Shire Council (1999) 103 LGERA 103 at 108-109 [18]-[20]. (iv) In this case the RLDCP aims to make the dwelling temporary to ensure that there is the capacity to remove the dwelling if it is not occupied in accordance with the LEP. (v) Approval for a rural workers' dwelling is by the terms of the LEP and RLDCP dependent upon the continued occupation of the dwelling by a person or people whose principal employment is for agricultural pursuits on the subject land. (vi) As long as the evidence establishes that agricultural pursuits will be established on the land, it cannot be a ground for refusal that there is no current justification for the rural worker. (vii) The development is therefore within the definition of a "rural workers' dwelling" . The RLDCP cannot make it fall out of that category. If it did the RLDCP would have more weight than the LEP. (viii) In response to the respondent's argument that a rural workers' dwelling is subordinate accommodation to the principal dwelling, the temporary nature of the dwelling only relates to the need to remove the dwelling when there is no longer need for it. (ix) The argument is whether the owner of the land can be a rural worker "whose principal employment" is for agriculture. (x) The council relies on objective (a) of the Rural BA zone of the LEP and objective (c) of Amendment No. 50 to limit the population growth. There is, however, another zone objective, in par (c): to "promote agricultural use of land" . (xi) It cannot be said that the provision of a dwelling that fits the definition of "rural workers' dwelling" , that must be occupied by a person whose principal employment is for agriculture, is against the objects of the zone. (xii) The 1995 Rural Lands Study refers to "genuine need for a rural worker to live on- site" (s 5.1.4 at page 60). The development control plan cannot make prohibited that which is permissible under a local environmental plan. A development control plan is not an environmental planning instrument (s 4 EP&A Act) and under s 72(3) must generally conform to the provision of the LEP. 16 Mr J B Maston, appearing for the respondent, made the following pertinent submissions. (i) The purpose and use of the new dwelling is to "live in". The applicant proposes to occupy the new proposed dwelling, not as an employee. There is no proposal to employ a rural worker who will reside on the land. (ii) In the Rural BA zone, dwelling houses are permissible with development consent. In the dictionary to the LEP (in cl 23) "dwelling- house" is defined to mean a dwelling, other than a rural workers dwelling, or an attached dwelling, "that is the only dwelling on an allotment" . Thus the proposal in the development application is prohibited because it would have the effect of placing a second dwelling on the subject land which is a single lot. (iii) Under the definition of a "moveable dwelling" , a "rural workers' dwelling" must be a temporary structure. Therefore a "rural workers' dwelling" cannot be the only dwelling on the land. It can only exist on land on which a dwelling house is already located (or is intended to be located). (iv) If accommodation for rural workers is unnecessary, a rural workers' dwelling cannot be approved. Where the proposal is that the only person dwelling on the land who is proposed to be engaged in rural work is the farm owner, and the existing dwelling on the land provides residential accommodation, a second dwelling for the purposes of "rural workers' dwelling" cannot be permitted. This is because there is no proposal to engage "rural workers" , whose principal employment is for the purpose of agriculture etc, the presence of whom is an essential ingredient for a "rural workers' dwelling". This is consistent with the evident object and purpose of the definition of "rural workers' dwelling" read in the context of the structure and terms of the whole of the LEP, including the Rural BA zone and its objectives to maintain rural character and promote agricultural use and to restrain population growth in the zone. (v) The requirement that the removable dwelling be used as "the place of residence by persons whose principal employment is for the purpose of agriculture…on that land" is ambiguous. "Employment" could simply mean "engaged" or "occupied" , or alternatively, it could refer to the relationship of master and servants, or of farmer and rural workers. (vi) The limitation of population growth is an aim of the Amendment No. 50, forming part of the framework for the future management of the rural areas by means of certain stated strategies. This is reiterated in the objectives of Rural BA zone. (vii) The draft RLDCP's performance criteria for "rural workers' dwelling [s] " is: "Rural workers' dwellings should only be constructed where rural undertakings on the property have the capacity to support both the farmer and the rural worker" . (p. 17). (viii) Reference to the objective in the LEP shows that the proposed development is not within the objectives of the planning instrument, or within the definition of the phrase "rural workers' dwelling". (ix) This resolves the ambiguity in the definition of "rural workers' dwelling" and confirms that the reference to "rural workers" is to employees of the farmer, not to the farmer himself. Conclusions 17 It is appropriate, firstly, to resolve the nexus between the LEP and the RLDCP. Subordinate legislation cannot override the operation of an Act: see s 32 of the Interpretation Act 1987: 32 Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made (1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made. (See also Water Board v Glambedakis (1992) 28 NSWLR 694 at 701). 18 Similarly, a subordinate instrument, such as a development control plan, cannot override the operation of a local environmental plan: see s 72(3) EP&A Act1979: Such a development control plan shall generally conform to the provisions of the local environmental plan or the draft local environmental plan which applies to the land to which the development control plan applies." 19 Therefore, to the extent that the RLDCP is inconsistent with the LEP, the latter prevails. It follows that the RLDCP's relatively more onerous requirements for such a proposed development are not relevant to the question of law which I am asked to determine. 20 Pursuant to the LEP, in the Rural BA zone, development for the purpose of a "rural workers' dwelling" is permissible with the council's consent. Further, the definition of "rural workers' dwelling" (cl 23 of the LEP), noted in par [8] above, seems to have been satisfied by the proposed development. It is a "moveable dwelling", as defined in the LEP. The existing leased principal residence on the land satisfies the definition of "dwelling-house", noted in par [10] above. The definition of "dwelling house" expressly excludes a rural worker's dwelling in requiring that it be the only dwelling on an allotment. Further, the proposed structure will be "used as the place of residence by persons whose principal employment is for the purpose of agriculture, animal establishment, aquaculture or a rural industry on that land". The applicant, Mr Tesoriero, intends to live in the dwelling whilst he "develop[s] the land for snow pea production and aquaculture". 21 As previously noted, Mr Maston submits that the term "employment" in the definition of "rural workers' dwelling" is ambiguous and that it refers to employees ("rural workers") of the farmer, and is not a reference to the farmer himself. In my opinion there is no ambiguity in the use of the word "employment" in the definition of "rural workers' dwelling". This is an ordinary English word with a well-understood meaning. The Macquarie Dictionary (3rd ed, revised, 2001) defines "employment" as "… 2. the state of being employed;…3. that on which one is employed; work; occupation; business". It follows that, the occupant of the "rural workers' dwelling" does not necessarily have to be employed by another person, in this case, the farmer. Mr Tesoriero, as a farmer, will have his principal employment on the land for the purpose of agriculture. 22 Lastly, the plans were amended at the merit hearing to reduce the floor area to less than 110 m2. This fulfils the final requirement under the definition that a "rural workers' dwelling's" gross floor area be a maximum of 110 m2. 23 In light of the conclusions to which I have come it is now possible to return to the question for determination raised in the principal proceeding. The answer is that it is possible under the definition of "rural workers' dwelling" for such a dwelling to be approved in the Rural BA zone for the occupation by the owner of the land who intends to carry out agricultural activities on the subject land, while the main or principal dwelling on the land is rented out to persons not engaged in the agricultural production of the subject land. The question is thus answered in the affirmative. 24 The matter is remitted to the commissioner for determination of the appeal on its merits. ********** I hereby certify that the preceding 24 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.