Land and Environment Court of New South Wales CITATION : Peter Walter Carmont v. Ballina Shire Council [1998] NSWLEC 122 APPLICANT Peter Walter Carmont PARTIES : RESPONDENT Ballina Shire Council FILE NUMBER(S) : 10236 of 1998 CORAM: Pearlman J KEY ISSUES: :- LEGISLATION CITED: Ballina Local Environmental Plan 1987 cl 12 CASES CITED: DATES OF HEARING: 07/08/98 EX TEMPORE JUDGMENT DATE : 08/07/1998 APPLICANT Mr J B Maston, Barrister Peter W Carmont LEGAL REPRESENTATIVES: RESPONDENT Mr P K Lalich, Solicitor Allen Allen & Hemsley JUDGMENT: In these class 1 proceedings four questions of law have been raised as preliminary questions. The questions are as follows. (1) Whether or not cl 12(3) of Ballina Local Environmental Plan 1987 prohibits: (a) the erection of a tourist facility on the land consisting of a bed and breakfast establishment; and (b) the erection of such a tourist facility on the land, part of which is intended to be occupied by the owner/manager of the facility. (2) Whether or not the erection of the building proposed in the development application is prohibited. (3) Whether the development proposed in development application No 1998/129 for lot 2 DP 607237 No 2 Pacific Highway, Tintenbar, is a "dwelling house", a "tourist facility" or a "bed and breakfast establishment" for the purposes of the Ballina Local Environmental Plan 1987. (4) If the proposed development is properly characterised as a "dwelling house" or a "bed and breakfast establishment", whether the Court is entitled to hear this appeal in the absence of proper objection under State Environmental Planning Policy No 1. There was an agreed statement of facts filed by the parties which comprises a number of documents. The first document is the development application itself. It sought consent for development of the land for the purpose of bed and breakfast. Accompanying the development application is a plan which is stated to be a plan for the proposed bed and breakfast facilities at the land. The site plan shows the site of a building to be erected at the end of a driveway and parking area, with an adjacent tennis court, amenities building, and a shed on an area of land which, according to the deposited plan which was tendered, comprises 1.184 hectares. The floor plan shows a building comprising four bedrooms, two bathrooms, a living, dining room and kitchen, a garage and laundry all of which are totally surrounded by a verandah. The council requested further information in relation to the development application. That is contained in two letters sent to the council by the applicant, one dated 23 February 1998, and the other 25 June 1998. The information in those letters (which is important for the questions of law which I have to decide) is, first, that bedrooms marked 1 and 2 will be used for the accommodation of tourists and holidaymakers, and, secondly, that bedrooms 3 and 4 will be used as accommodation by the owner/manager of the tourist facility. The remainder of the building is intended to be in common use. A fee will be charged for the occupation as a tourist facility, that is the occupation of bedrooms 1 and 2 and the use of the kitchen and other areas. That use will be offered at all times of the year, except for a period of four weeks in each year. I take that to mean substantially the whole of the year. The land is zoned No 1(b) Rural (Secondary Agricultural Land) under the Ballina Local Environment Plan 1987 (LEP 87). In that zone, development for the purpose of a dwelling house and development for the purpose of a tourist facility is development which is permissible with development consent as falling within the innominate use, cl 3. Clause 12 of LEP 87 applies to dwelling houses within, amongst others, zone 1(b). Clause 12(2) provides: "The council shall not consent to the erection of a dwelling-house on land to which this clause applies except in accordance with this clause". Clause 12(3)(a)(ii) relevantly provides that a dwelling house may, with the consent of the council, be erected on vacant land to which cl 12 applies, only where (in the case of land within zone 1(b)) that land has an area of not less than 40 hectares. The council claims that cl 12 applies to the development for which consent is sought, that the provisions of cl 12 amount to a development standard which might be capable of variation under State Environmental Planning Policy No 1 (SEPP 1) but an objection under SEPP 1 has not been lodged. Mr Maston, for the applicant, claims that a SEPP 1 objection is not necessary, that cl 12(3)(a)(ii) does not apply, and that the applicant is not required to rely upon a SEPP 1 objection. Clause 6 of LEP 87 adopts, with certain irrelevant exceptions, the model provisions under the Environmental Planning and Assessment Act 1979. The definitions in the model provisions are the relevant definitions. The first that I would draw attention to is "tourist facilities", which, relevantly, means an "establishment providing for holiday accommodation or recreation". I do not think there is any serious dispute that the provision of bed and breakfast to tourists and holidaymakers falls within the definition of "tourist facilities" in the model provisions. But the question is whether, for the purpose of the application of clause 12 of LEP 87, the development comprises a dwelling house. A dwelling house is defined in the model provisions to mean "a building containing 1 but not more than 1 dwelling". "Dwelling" is defined in the model provisions to mean "a room 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". The development application is for the development of the land by the erection of a bed and breakfast facility; that is, the erection of a building for a tourist facility. It is not yet constructed. The development application seeks consent for its construction, and therefore so far as the definition of "dwelling" refers to a suite of rooms "occupied or used", it is not relevant. What is relevant is whether or not the development for which consent is sought is for the erection of a suite of rooms "so constructed or adapted as to be capable of being occupied or used as a separate domicile". The council's position is that the building is to be so constructed as to be capable of being occupied or used as a separate domicile, that it will be used as a dwelling, and accordingly it is subject to clause 12 of LEP 87. The applicant's position is that the development consent seeks approval for a building to be constructed which is so constructed or adapted as not being capable of being used as a separate domicile. The basis upon which Mr Maston makes that submission is that, the development application seeks consent, on a permanent basis, for the construction of a building which will contain bedrooms 1 and 2 and other amenities which will be used and adapted entirely for bed and breakfast facilities. Therefore it cannot be said that this building will be so constructed as to be capable of being used or occupied as a separate domicile. The owner/manager will occupy bedrooms 3 and 4, and the tourists will occupy bedrooms 1 and 2. Both will share the amenities that are to be provided in the building. It is not, in the submission of Mr Maston, a dwelling, because it is not a suite of rooms so constructed or adapted as to be capable of being occupied or used as a separate domicile. I think that submission is correct. The definition must be construed in its context. It is part of a local environmental plan which controls the development of land for various purposes. What is sought here is consent to development being the erection of a building for a purpose which is specified. There is no issue that the answers that have been given by the applicant to the council, which I take to form part of the development application, are bona fide. They provide that the purpose of the construction of this building is for a tourist facility in which part will be occupied by an owner/manager. As the building is depicted on the plan, I do not think that it can be said to be constructed or adapted so as to be capable of being occupied or used as a separate domicile. That being the case, I answer the questions of law as follows: (1) No. (2) No. (3) The development proposed is a tourist facility which incorporates within its definition a bed and breakfast establishment for the purposes of the Ballina Local Environmental Plan 1987. (4) The proposed development is properly characterised as a tourist facility incorporating a bed and breakfast establishment, and the Court is entitled to hear this appeal in the absence of an objection under State Environmental Planning Policy 1. I make no order as to costs. The exhibits may remain on the file. The class 1 appeal should proceed to a hearing on the basis of the answers that I have given. I stand the matter over to the next available country callover list. In these class 1 proceedings four questions of law have been raised as preliminary questions. The questions are as follows. (1) Whether or not cl 12(3) of Ballina Local Environmental Plan 1987 prohibits: (a) the erection of a tourist facility on the land consisting of a bed and breakfast establishment; and (b) the erection of such a tourist facility on the land, part of which is intended to be occupied by the owner/manager of the facility. (2) Whether or not the erection of the building proposed in the development application is prohibited. (3) Whether the development proposed in development application No 1998/129 for lot 2 DP 607237 No 2 Pacific Highway, Tintenbar, is a "dwelling house", a "tourist facility" or a "bed and breakfast establishment" for the purposes of the Ballina Local Environmental Plan 1987. (4) If the proposed development is properly characterised as a "dwelling house" or a "bed and breakfast establishment", whether the Court is entitled to hear this appeal in the absence of proper objection under State Environmental Planning Policy No 1. There was an agreed statement of facts filed by the parties which comprises a number of documents. The first document is the development application itself. It sought consent for development of the land for the purpose of bed and breakfast. Accompanying the development application is a plan which is stated to be a plan for the proposed bed and breakfast facilities at the land. The site plan shows the site of a building to be erected at the end of a driveway and parking area, with an adjacent tennis court, amenities building, and a shed on an area of land which, according to the deposited plan which was tendered, comprises 1.184 hectares. The floor plan shows a building comprising four bedrooms, two bathrooms, a living, dining room and kitchen, a garage and laundry all of which are totally surrounded by a verandah. The council requested further information in relation to the development application. That is contained in two letters sent to the council by the applicant, one dated 23 February 1998, and the other 25 June 1998. The information in those letters (which is important for the questions of law which I have to decide) is, first, that bedrooms marked 1 and 2 will be used for the accommodation of tourists and holidaymakers, and, secondly, that bedrooms 3 and 4 will be used as accommodation by the owner/manager of the tourist facility. The remainder of the building is intended to be in common use. A fee will be charged for the occupation as a tourist facility, that is the occupation of bedrooms 1 and 2 and the use of the kitchen and other areas. That use will be offered at all times of the year, except for a period of four weeks in each year. I take that to mean substantially the whole of the year. The land is zoned No 1(b) Rural (Secondary Agricultural Land) under the Ballina Local Environment Plan 1987 (LEP 87). In that zone, development for the purpose of a dwelling house and development for the purpose of a tourist facility is development which is permissible with development consent as falling within the innominate use, cl 3. Clause 12 of LEP 87 applies to dwelling houses within, amongst others, zone 1(b). Clause 12(2) provides: "The council shall not consent to the erection of a dwelling-house on land to which this clause applies except in accordance with this clause". Clause 12(3)(a)(ii) relevantly provides that a dwelling house may, with the consent of the council, be erected on vacant land to which cl 12 applies, only where (in the case of land within zone 1(b)) that land has an area of not less than 40 hectares. The council claims that cl 12 applies to the development for which consent is sought, that the provisions of cl 12 amount to a development standard which might be capable of variation under State Environmental Planning Policy No 1 (SEPP 1) but an objection under SEPP 1 has not been lodged. Mr Maston, for the applicant, claims that a SEPP 1 objection is not necessary, that cl 12(3)(a)(ii) does not apply, and that the applicant is not required to rely upon a SEPP 1 objection. Clause 6 of LEP 87 adopts, with certain irrelevant exceptions, the model provisions under the Environmental Planning and Assessment Act 1979. The definitions in the model provisions are the relevant definitions. The first that I would draw attention to is "tourist facilities", which, relevantly, means an "establishment providing for holiday accommodation or recreation". I do not think there is any serious dispute that the provision of bed and breakfast to tourists and holidaymakers falls within the definition of "tourist facilities" in the model provisions. But the question is whether, for the purpose of the application of clause 12 of LEP 87, the development comprises a dwelling house. A dwelling house is defined in the model provisions to mean "a building containing 1 but not more than 1 dwelling". "Dwelling" is defined in the model provisions to mean "a room 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". The development application is for the development of the land by the erection of a bed and breakfast facility; that is, the erection of a building for a tourist facility. It is not yet constructed. The development application seeks consent for its construction, and therefore so far as the definition of "dwelling" refers to a suite of rooms "occupied or used", it is not relevant. What is relevant is whether or not the development for which consent is sought is for the erection of a suite of rooms "so constructed or adapted as to be capable of being occupied or used as a separate domicile". The council's position is that the building is to be so constructed as to be capable of being occupied or used as a separate domicile, that it will be used as a dwelling, and accordingly it is subject to clause 12 of LEP 87. The applicant's position is that the development consent seeks approval for a building to be constructed which is so constructed or adapted as not being capable of being used as a separate domicile. The basis upon which Mr Maston makes that submission is that, the development application seeks consent, on a permanent basis, for the construction of a building which will contain bedrooms 1 and 2 and other amenities which will be used and adapted entirely for bed and breakfast facilities. Therefore it cannot be said that this building will be so constructed as to be capable of being used or occupied as a separate domicile. The owner/manager will occupy bedrooms 3 and 4, and the tourists will occupy bedrooms 1 and 2. Both will share the amenities that are to be provided in the building. It is not, in the submission of Mr Maston, a dwelling, because it is not a suite of rooms so constructed or adapted as to be capable of being occupied or used as a separate domicile. I think that submission is correct. The definition must be construed in its context. It is part of a local environmental plan which controls the development of land for various purposes. What is sought here is consent to development being the erection of a building for a purpose which is specified. There is no issue that the answers that have been given by the applicant to the council, which I take to form part of the development application, are bona fide. They provide that the purpose of the construction of this building is for a tourist facility in which part will be occupied by an owner/manager. As the building is depicted on the plan, I do not think that it can be said to be constructed or adapted so as to be capable of being occupied or used as a separate domicile. That being the case, I answer the questions of law as follows: (1) No. (2) No. (3) The development proposed is a tourist facility which incorporates within its definition a bed and breakfast establishment for the purposes of the Ballina Local Environmental Plan 1987. (4) The proposed development is properly characterised as a tourist facility incorporating a bed and breakfast establishment, and the Court is entitled to hear this appeal in the absence of an objection under State Environmental Planning Policy 1. I make no order as to costs. The exhibits may remain on the file. The class 1 appeal should proceed to a hearing on the basis of the answers that I have given. I stand the matter over to the next available country callover list. 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.