Land and Environment Court of New South Wales CITATION : Van der Zypp & Ors v Murray Shire Council [2010] NSWLEC 1242 APPLICANTS Michael van der Zypp Diane van der Zypp PARTIES : Neil Greaves RESPONDENT Murray Shire Council FILE NUMBER(S) : 10316 of 2010 CORAM: Pearson C KEY ISSUES: SECTION 121B ORDER :- Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1 - Development Standards LEGISLATION CITED: State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Murray Regional Environmental Plan No 2 - Riverine Land Murray Local Environmental Plan 1989 Murray Development Control Plan CASES CITED: KSK Developments Pty Ltd v Murray Shire Council DATES OF HEARING: 19 August 2010 DATE OF JUDGMENT: 31 August 2010 APPLICANTS Michael van der Zypp LEGAL REPRESENTATIVES: Elisabeth Ulrich (agent) RESPONDENT Matthew Rogers, solicitor Kell Moore JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Commissioner Pearson 31 August 2010 10316 of 2010 Michael van der Zypp, Diane van der Zypp and Neil Greaves v Murray Shire Council JUDGMENT 1 Commissioner: This is an appeal under s121ZK of the Environmental Planning and Assessment Act 1979 (the Act) against an order issued by Murray Shire Council (the Council) under s121B of the Act in relation to a structure on land at 93 Goldsborough Road Moama, lot 7 in DP 252159 (the site). 2 The Order was issued on 26 March 2010 and directed the applicants as owners of the site: To demolish or remove the two storey building (as detailed in Schedule 1) as such were erected without the prior Development Consent and Construction certificate from the relevant consent authority. 3 Schedule 1 provided: Works Required To demolish the two storey building clad in grey/blue colourbond that is positioned between the dwelling/inground pool and the Murray River. A picture of the illegal structure to be removed is shown below. 4 The photograph is annexed to these reasons. 5 Section 121ZK(4) confers the following powers on the Court: (4) On hearing an appeal, the Court may: (a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the person who gave the order could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit. The site and the structure 6 The site is located adjacent to the Murray River, and has an area of 10.3ha. There is an existing dwelling on the site used for bed and breakfast accommodation. There is a swimming pool between the dwelling and the river, and a concrete slab for the proposed erection of a games room to the south west of the dwelling. 7 The parties prepared an Agreed Statement of Facts which includes a detailed description of the structure and its location. The structure is located approximately 17m from the identifiable high bank of the Murray River (measured 90 degrees to the structure) or 12.5m (measured 45 degrees to the structure). The structure is located approximately 47.6m from the existing dwelling and 8.020m from the adjoining property boundary. 8 The structure is approximately 5.15m high at its highest point, being the front of the structure on its northern face, and 4.6m at the rear. The ground floor has a height of 2.35m and the first storey a height of 2.8m. The structure is 5.385m long and 4.185m wide. The structure is clad in blue/grey colourbond corrugated iron. The western wall is entirely enclosed in colourbond cladding. The eastern wall consists of a glass sliding door providing access to the ground floor, and the first floor is clad with colourbond. The southern wall is a combination of colourbond cladding and fixed glass windows along the length of each floor. The northern face has fixed glass windows installed on the ground floor; the first floor has a glass sliding door positioned centrally and two smaller windows. There is a verandah on the northern side accessed by timber stairs along the eastern side of the structure. 9 Internally, the ground floor has timber framed walls and a concrete floor. The first floor is clad with gyprock. The eastern wall, and a section of the floor adjoining it, are tiled, and installed on the tiled floor is a bath, a toilet, and a vanity basin. Planning controls 10 The site is zoned 1(a) General Rural Zone under the Murray Local Environmental Plan 1989 (the LEP). The objectives of the zone are set out in the development control table in cl 9. Clause 10 contains general considerations for development in rural zone. Clauses 17 and 18 relate to dwelling houses in the zone. Clause 30 provides setbacks for development along rivers. 11 The Murray Regional Environmental Plan No 2 – Riverine Land (the REP) applies to the site. Clause 3 sets out objectives. Clause 9 contains general principles to be taken into account in assessing any development, and cl10 contains specific principles to be taken into account. 12 Chapter 5 of the Murray Development Control Plan (the Murray DCP) contains provisions for exempt and complying development. Applicants' submissions 13 The applicants' position is that the Order should be revoked, on the basis that advice was given by a Council officer in 2004 that consent would not be required for work to rebuild an old pumping shed on the location of the structure. The applicants submit that there are other structures on other properties closer to the river; that they applied for and obtained development consent for the construction of the swimming pool and the games room; and that Council officers had attended the site in the course of inspecting the swimming pool and did not question the erection of the structure. The applicants submit that the structure is not a dwelling; that it is ancillary to the use of the site as a bed and breakfast as it provides an area to supplement the main house when there are guests, and that the lower level will facilitate irrigation around the property including the swimming pool; that it is well set back and hardly visible from the river; and that as ancillary development it is an exempt development. Council's submissions 14 The Council submits that the structure should be characterised as a structure capable of use as a dwelling, which would be a "dwelling house" as defined in the Environmental Planning and Assessment Act Model Provisions 1980, and which would be permissible with development consent under the LEP. The Council submits that cl30 of the LEP applies so that an objection under State Environmental Planning Policy No 1 – Development Standards (SEPP No 1) would be required for the erection of a building within 400m of the river, and that the concurrence of the Director General of the Department of Planning would be required. The Council relies on the Draft Murray Regional Strategy which includes comment (at pp 37-38) on the need to manage pressure for development on or near the Murray River and (at p39) to ensure that the integrity of the river and other major waterways is not undermined or compromised by urban development or riverine structures to support its submission that concurrence is unlikely to be granted. Evidence 15 The Agreed Statement of Facts contains a description of the structure including its dimensions and location, site plans and photographs. During the course of the hearing there was a site view. Further evidence was provided in the form of an affidavit by Mr Michael van der Zypp, and by Mr Michael Keys, the Council's Director of Planning and Environment. 16 In his affidavit Mr van der Zypp outlined the background to the construction of the structure in the following terms: 3.In early 2004 I contacted the planning department of the Murray Shire Council (Council) to inquire whether a permit would be required to resurrect an old pumping shed at the site. The original pumping shed had remains of a pitched gable roof which I recall to be close to the same height as the structure as it currently stands. I outlined that the proposed works would consist of building out the existing base of the pumping shed at the site and we were advised that formal consent was not required for works to an existing structure, or words to that effect. Based on Council's advice I did not seek development consent on this occasion. 4.After looking back through my old papers and notes, I have located a scrap piece of paper which I believe dates back to around the time I was considering these works as it refers to rebuilding an existing shed. That paper has two names on it – Michael Keyes and Simon Arkinstall – so whilst I am not completely sure, I can only assume that I spoke to one or both of these gentlemen in relation to the proposed works. 5.At no time did I proceed with these works without believing I had sufficient approval from Council. I also believe that back then, almost seven years ago, that perhaps the mindset of the population was a little different, perhaps less litigious and people proceeded in good faith. What I mean by this is that Council's advice could be taken as accurate been though it was over the phone, which is why I did proceed with my project in good faith and (unfortunately) did not even consider having to get something in writing to confirm their advice. 6.It also never crossed my mind to query Council's advice as my neighbours have structures that are much closer to the river (Annexure 1), and over the past ten years whilst I have owned the Site there have been countless structures erected along the riverfront, some virtually metres from the water's edge, for instance the Merool Caravan Park (Annexure 2). On subsequent occasions as a matter of course I contacted Council in exactly the same manner in relation to other works that we had in mind for the Site including the swimming pool and the games room and were informed that permission was necessary for those works, As a result, I made the necessary applications for development consent for the swimming pool and games room, which were granted subject to my completion of a Home Builders TAFE course in Sydney (which I did). 7.The cubby has been a work in progress since approximately June 2004 and I have worked on it during my spare time (various weekends over the years). 8.The intended use of the structure has always been an area where children (at the time specifically my young son at the time and now my two other children also) could go so as not to disturb guests in the main house. The main house is run by my sister and her husband, Diane and Neil (the second and third applicants) as a Bed and Breakfast, Bright on the Murray. For practical reasons a small area with bathroom facilities is intended for the top level of the structure, as guests often go to Bright on the Murray to get away from children, so when guests are in the house we try to restrict their access to the main house as much as possible. As a result the structure has always been referred to as a cubby for the kids. I have indicated that if the facilities need to simplified to include only a toilet and sink then I would be happy to take out the other bathroom facilities currently there. 9.The lower level is intended to be used for storage of water pumps and equipment for the swimming pool and house. 17 In his affidavit, Mr Keys states that he cannot recall ever speaking to Mr van der Zypp or either of the other applicants or anyone associated with the site in relation to a pumping shed, cubby house, two storey building or any other development to which these proceedings relate. Mr Keys also states: Due to the contentious issues associated with structures along the Murray River, and especially those within close proximity to the Murray River, I was cautious about advice offered in relation to structures in close proximity to the Murray River. Consideration 18 Based on the Agreed Facts, the structure has two storeys and is 5.15m high at the front and 4.6m high at the rear. The structure has a glass sliding door on the ground floor, and the first floor is accessed by external stairs. The first storey has a partially tiled floor and walls, and a bath, toilet and vanity basin installed, and an external verandah. Based on the site view there are several electrical outlets on the opposite wall. 19 Clause 9 of the LEP provides in relation to the zone No 1(a) (General Rural): 1 Objectives of zone The objectives of this zone are to promote the proper management and utilisation of resources by: (a) protecting, enhancing and conserving: (i) agricultural land in a manner which sustains its efficient and effective agricultural production potential, (ii) soil stability by controlling and locating development in accordance with soil capability, (iii) forests of existing and potential commercial value for timber production, (iv) valuable deposits of minerals, coal, petroleum and extractive materials by controlling the location of development for other purposes in order to ensure the efficient extraction of those deposits, (v) trees and other vegetation in environmentally sensitive areas where the conservation of the vegetation is significant to scenic amenity, recreation or natural wildlife habitat or is likely to control land degradation, (vi) water resources for use in the public interest, (vii) areas of significance for nature conservation, including areas with rare plants, wetlands and significant habitat, and (viii) places and buildings of archaeological or heritage significance, including the protection of aboriginal relics and places, (b) preventing the unjustified development of prime crop and pasture land for purposes other than agriculture, (c) facilitating farm adjustments, (d) minimising the cost to the community of: (i) fragmented and isolated development of rural land, and (ii) providing, extending and maintaining public amenities and services, and (e) providing land for future urban development for rural-residential development and for development for other non-agricultural purposes, in accordance with the need for that development. 2 Without development consent Agriculture (other than ancillary dwellings, animal boarding or training establishments and intensive livestock keeping establishments); forestry (other than ancillary dwellings and pine plantations). 3 Only with development consent Any purpose other than a purpose included in item 2 or 4. 4 Prohibited Motor showrooms; residential flat buildings; shops (other than general stores not exceeding 100 square metres in gross floor area). 20 Clause 6 of the LEP adopts the Environmental Planning and Assessment Model Provisions 1980 (the Model Provisions), which include the following definitions: dwelling means a room or suite or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. dwelling-house means a building containing 1 but not more than 1 dwelling. 21 It was common ground that the structure does not fall within any of the purposes prohibited in the zone. I agree with the Council that the structure does not fall within "agriculture" as defined in the LEP, or "forestry" as defined in the Model Provisions. The Council submits that the structure falls within the definition of "dwelling"; the applicants submit that in the absence of a kitchen, it does not. The Council accepts that even if the structure does not fall within the definition of "dwelling", it would not fall within the uses prohibited in the 1(a) zone, and it would be permissible with development consent in the zone under the LEP. 22 Clause 30 of the LEP provides: 30 Development along rivers (1) Notwithstanding any other provision of this plan, a person shall not, on land to which this plan applies: (a) on land within Zone No 1 (a) or 1 (c) within 400 metres of any bank of a river, erect a building for any purpose, (b) on land within 60 metres of any bank of a river, cause destruction to any tree, (c) on land within 20 metres of any bank of a river, carry out development for any purpose, or (d) on land comprising the bed or any bank of a river, carry out development for the purposes of: (i) a canal, (ii) a marina (including pontoons, jetties, piers of other structures) designed to provide mooring or dry storage for one or more vessels used for any purpose, or (iii) filling or extraction, except with the consent of the Council. (2) The Council shall not consent to an application to erect a building on land comprising: (a) a bed of a river, or (b) land within Zone No 1 (a) or 1 (c) and being within 60 metres of any bank of the river, unless, in the opinion of the Council, the building: (c) is ancillary to the use of that land for the purpose of a recreation area, or (d) is to be used for the purpose of fisheries, irrigation works (including the pumping and treatment of water for private domestic consumption), marinas, utility installations or the servicing of vessels or sea planes. (3) The Council shall not consent to an application made in accordance with subclause (1) unless, in the opinion of the Council, the destruction of the trees or the development of the land, including subdivision of the land, will be carried out in a manner which, in respect of that land and the adjacent land, minimises: (a) the risk of soil erosion and other land degradation, (b) the loss of scenic amenity, and (c) the loss of important vegetation systems and natural wildlife habitats, including fish habitat values. 23 It was common ground that the structure is located at most 17m from the identifiable high bank of the Murray River. Clause 30(1)(a) and (c) of the LEP apply to require the consent of the Council for the erection of any building, or the carrying out of development, for any purpose in that location. The term "building" is defined in s4(1) of the Act to mean: building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure or part of a manufactured home, moveable dwelling or associated structure. 24 "Development" as defined in s4(1) of the Act includes the erection of a building. 25 I agree with the Council that the erection of the structure in its location is the erection of a building to which cl30(1) applies and requires development consent. 26 The Council submits that cl30(2) applies, and is a development standard. The applicants submit that the structure falls within the exclusions in cl30(2)(c) and (d). 27 It was common ground that the structure is located within 60m of the bank of the river, and accordingly cl30(2)(b) applies. The term "recreation area" is defined in the LEP: recreation area means: (a) a children's playground, (b) an area used for sporting activities or sporting facilities, or (c) an area used to provide facilities for recreational activities which promote the physical, cultural or intellectual welfare of persons within the community, being facilities provided by: (i) a public authority, or (ii) a body of persons associated for the purposes of the physical, cultural or intellectual welfare of persons within the community, but does not include a racecourse or a showground. 28 I agree with the Council that the use of the site as a bed and breakfast is not a use for the purpose of a "recreation area" as that term is defined in the LEP, and that accordingly cl30(2)(c) does not apply. The use of the first floor of the structure for the purposes identified by the applicants would not fall within cl30(2)(d). 29 The Council relies on KSK Developments Pty Ltd v Murray Shire Council [2009] NSWLEC 43 to support its position that cl30(2) is a development standard, and submits that an objection under SEPP No 1 would be required before consent could be granted. On 18 July 2001 the Acting Director General notified a number of councils, including the Council, of a change in the arrangements for assumed concurrence under cl7 of SEPP No.1 in the following terms: These councils may no longer assume that the Director-General has given her concurrence under SEPP 1 to their granting development consent to the following: (a) the erection of a building; or (b) the carrying out of a work, that does not comply with a development standard or other requirement relating to the distance of the building or work from the River Murray. However, these councils may continue to assume that the Director-General has given her concurrence under SEPP 1 to their grating consent to the following: (a) any alteration or addition to an existing building (other than the addition of a storey), where the existing building does not comply with such a development standard or requirement, or (b) the erection of a class 10 building (classified under the Building Code of Australia), where there is an existing building on the allotment that does not comply with such a development standard or requirement, provided that the alteration or addition, or the class 10 building, is not proposed to be located any closer to the River Murray than the existing building. 30 If cl30(2) is a development standard, rather than a prohibition, the concurrence of the Director-General would be required before the Council could grant development consent to the erection of the structure. Even if the structure could be regarded as an alteration or addition to the former pump shed, the addition of the first storey means that concurrence would still be required. The Council could not grant development consent for the erection of the structure in its present location in the absence of the concurrence of the Director General under cl7 of SEPP No 1. 31 The applicants submit that the structure is exempt development. The Council identified two alternatives available to a landholder to assert that a development is exempt, being Chapter 5 of the Murray DCP, or State Environmental Planning Policy (Exempt and Complying Development) Code 2008 (the Code). 32 Based on the map included in the Council's bundle, the site is within a bush fire prone area. When considered against the provisions of the Code, if the structure is a dwelling, cl1.9(5) of the Code would apply to exclude the application of the General Housing Code. In the alternative, if the structure is as the applicants submit a cubby house, Subdivision 9 Cabanas, cubby houses, ferneries, garden sheds, gazebos and greenhouses provides at 2.18(1) development standards that must be satisfied; paragraph (c) specifies a maximum height of 3m above existing ground level. Subdivision 29 Playground equipment specifies at 2.58 a maximum height of 2.5m above existing ground level. If the Code applies, acknowledging that it came into force after the commencement of works on the structure, the structure does not satisfy the requirements that must be met for it to be exempt development. 33 Chapter 5 of the Murray DCP lists a range of development as exempt development and imposes conditions to be met. The structure does not meet those requirements if it is considered to be "ancillary development", being more than 3m above natural ground level; or if it is considered to be "playground equipment" (which includes cubby houses), as it is more than 2.4m high. Clause 1.3 of Chapter 5 of the DCP provides that in the event of an inconsistency between it and any applicable environmental planning instrument, that provisions of that environmental planning instrument would prevail. The structure does not fall within the provisions of Chapter 5 of the DCP, and I am satisfied that if it did, cl30 of the LEP would prevail to the extent of any inconsistency and require that development consent be obtained. 34 It follows that I agree with the Council that the structure required development consent. It was common ground that development consent was not sought, or obtained, before the erection of the structure. 35 The applicants rely on the conversation outlined in paragraph 4 of Mr van der Zypp's affidavit. Neither Mr van der Zypp nor Mr Keys were cross examined on the content of their affidavits. Mr Rogers for the Council accepted that notwithstanding Mr Key's statement that he does not recall such a conversation, that does not mean that no conversation in fact took place. Considering the evidence at its most favourable to the applicants, and accepting Mr van der Zypp's evidence that he did speak to a Council officer in 2004, I am satisfied that it is likely that the conversation would have been in terms similar to those recounted in paragraph 3 of the affidavit, namely that it related to rebuilding the pump shed. It is clear from the history of the building work which has been ongoing since 2004, as outlined in Mr van der Zypp's affidavit and in his oral submissions, that the structure as it now stands is more elaborate than the re-building of a shed to store pump equipment. However, even if oral advice had been given by a Council officer in 2004 that consent for either the re-building of the pump shed, or for a two storey structure including bathroom facilities, was not required, that would not override the requirement imposed by s76A of the Act to obtain development consent. 36 I am satisfied that the grounds for the making of Order 2 under s121B of the Act, namely that the building was erected without development consent where prior development consent was required, are satisfied. The evidence before me includes the Notice of Intention to Serve an Order issued pursuant to s121H of the Act on 16 October 2009. The applicants responded to that notice in writing. The Council issued an Order on 2 March 2010 which referred to Order No 15 in the heading (and identified the Order as Order 2 in the text), and re-issued the Order on 26 March 2010 with the correct reference in the heading to Order No 2. The terms of the order, as noted above, refer to Order 2 as did the Notice of Intention to Serve an Order, and provide the reasons for the making of the order. I am satisfied that the Order was properly issued. 37 In considering whether to exercise the powers under s121ZK(4), there are a number of factors to consider. There is no evidence before me as to the structural adequacy of the structure. The Council's Director of Environmental Services provided a report to the Council on 2 February 2010 which included an assessment of the structure under the matters specified in s79C of the Act. That assessment included assessment against the objectives of the REP, the general principles in cl9 and the specific principles in cl 10. In summary, the assessment concluded that the structure is inconsistent with the applicable objectives and principles because of its close proximity to the river, but is otherwise generally consistent. The assessment referred to the visual impact on the riverine environment, and noted that this could have been eliminated by setting the building back. Mr van der Zypp's affidavit includes a reference to a conversation with a Council officer concerning the possibility of moving the structure. Mr Rogers for the Council submitted that a development application for approval of the structure located beyond the distance for which an objection under SEPP No 1, and the concurrence of the Director General, would be required, would be considered on its merits. 38 Taking these circumstances into account, I am satisfied that the appropriate course is to extend the time for compliance with the order for a period to enable the applicants and the Council to have further discussions on the possibility of relocating the structure and to allow the required approvals to be obtained if that course is adopted. 39 The orders of the Court are: 1. Appeal upheld in part. 2. The order issued under s 121B, Order No 2, of the Environmental Planning and Assessment Act 1979 dated 26 March 2010 is modified by the deletion of the words under the heading Period for Compliance with Order and the insertion in lieu of the following: " Period for compliance with order The order must be complied with by 28 February 2011." 3. Exhibits are returned. Linda Pearson Commissioner of the Court 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.