Land and Environment Court New South Wales Medium Neutral Citation: Griffis and anor v Tweed Shire Council [2011] NSWLEC 1126 Hearing dates: 4 November 2010 Decision date: 10 March 2011 Jurisdiction: Class 1 Before: Moore SC Decision: Matter No 10535 of 2010 (1) The applicants are to complete, within 30 days of the date of this decision, the external cladding of the building to render it vermin proof and to complete the internal lining in the bathroom; (2) The applicants are notify the respondent and the Court, within 35 days of the date of this decision, that they have completed the external cladding of the building to render it vermin proof and have completed the internal lining in the bathroom; (3) The respondent is directed to inspect the building and file and serve any certificate of satisfaction or otherwise with the works in (1) within 10 days of being notified pursuant to (2) that these works have been completed; (4) The applicants are to file and serve all outstanding certificates, including a structural engineer's certificate certifying that the shed is structurally adequate, within 45 days of the date of this decision; (5) Liberty to re-list Matter No 10763 of 2010 before me on two days notice concerning any matters arising out of directions (1) to (4); (6) If the parties comply with directions (1) to (4) and there are no matters requiring re-listing pursuant to those directions, orders will be made in chambers upholding the appeal and ordering the respondent to issue a building certificate to the applicants within 28 days of the date of those orders; and (7) If the applicants do not comply with (1), (2) or (4) or exercise the liberty to re-list in (5), within 10 days of service of any certificate issued by the respondent concerning the works in (1), any dispute concerning any such certificate, the appeal in Matter No 10763 of 2010 will be dismissed without further reference to the parties. Matter No 10763 of 2010 (1) The appeal is dismissed; (2) Development Application DA08/1056 for approval of the use as a rural worker's dwelling of part of the shed structure constructed pursuant to Development Consent DA06/0827 is determined by refusal of development consent; and (3) The exhibits, other than Exhibits 1, 2, A and B, are returned. Catchwords: BUILDING CERTIFICATE APPLICATION; incomplete works; conversion of portion of a rural shed into a dwelling; need for structural and other certification. DEVELOPMENT APPLICATION; proposed use of a rural shed as a rural worker's dwelling; second dwelling on a rural property; consistency with zone objectives; satisfaction of exception in Local Environmental Plan to permit a rural worker's dwelling; meaning of words "employment" and "employed" in the exception. Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1 - Development Standards Tweed Local Environmental Plan 2000 Tweed Local Environmental Plan 2009 Cases Cited: Ireland v Cessnock City Council [1999] NSWLEC 153; (1999) 103 LGERA 285 Pancho Properties Pty Ltd v Wingecarribee Shire Council [1999] NSWLEC 245 Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 Category: Principal judgment Parties: J & P Griffis (applicants) Tweed Shire Council (respondent) Representation: Counsel: Ms S Duggan SC (applicant) Solicitors: Hunt & Hunt (applicant) Ms N Simmons Sparke Helmore (respondent) File Number(s): 10535 and 10763 of 2010 Judgment Introduction 1Mr and Mrs Griffis live on a five acre allotment (the site) some 4 km or so from the town of Murwillumbah. The site is within the river valley flats and has highly fertile soils. Mr and Mrs Griffis live in a substantial dwelling toward the northern end of their property with gently sloping lawns to their road frontage. To the south, in the vicinity of the south-eastern corner of their allotment (perhaps 200 m or so from the principal dwelling) is a large Colorbond-clad shed. Tweed Shire Council (the council) gave consent for the erection of this shed to act as an agricultural machinery and equipment shed in support of the market gardening activities conducted on the site. 2Approximately six months or so after the completion of the shed (built to the footprint for which consent was given), Mr and Mrs Griffis had a number of un-authorised alterations made to the interior fit out and external permitted apertures of this shed. In its original approved form, the shed was to have a small kitchen in its south-western corner and a small bathroom facility at approximately the mid point of its eastern face. Although the shed, as now constructed, has bathroom and kitchen facilities at these locations, they are considerably bigger than those envisaged in the original approval. 3In addition, although the shed application had envisaged the inclusion of a laundry, this did not form part of the consent granted but, nonetheless, a laundry has, in fact, being constructed. The kitchen as constructed is of significantly greater scale than that which was envisaged - this being as a modest kitchenette in the development for which approval was given. 4Further, internal partitioning and additional windows and an entrance door have been installed. These "extras" have the total effect of turning approximately 70% of the floor area that had been approved for the shed into a three bedroom dwelling. 5These proceedings arise from the fact that Mr and Mrs Griffis seek to regularise the existence of this additional dwelling on their property. They have done so by making two applications to the council. The first of those applications to be dealt with in the merit assessment process that I need to undertake (although not the first application in time) is an application for a building certificate to regularise the works as they will be when completed. 6The second application to be dealt with is the one seeking consent to the use of part of the shed as a rural worker's dwelling This requires my consideration as to whether or not the use of the shed as a dwelling should be permitted after consideration of relevant planning controls. Although the application for the use pre-dated the application for the building certificate, the sequence of consideration I have outlined is that required in following the decision of Bignold J in Ireland v Cessnock City Council [1999] NSWLEC 153; (1999) 103 LGERA 285. 7Following Ireland, I have treated these as entirely separate questions (with different matters for consideration arising for each. The building certificate application 8The appeal concerning the application for a building certificate, Matter No 763 of 2010, arises because of the deemed refusal by the council to issue such a certificate. Although the council proposed some without prejudice orders with respect to the building certificate application, the first of them, requiring that proof of development consent to use the structure as a dwelling is required, is misconceived as it would reverse the sequence of assessment required by Ireland . 9I indicated to Ms Simmons, solicitor for the council, and Ms Duggan SC, counsel for the applicants, what I understood to be the proper sequence of assessment of the two appeals as required by Ireland . To follow the proper assessment sequence, it is first necessary for me to consider the remaining matters raised by the council concerning the application for a building certificate. 10These, essentially, arise from what the council says is inadequate documentation to satisfy the first step in Ireland , namely whether the premises are fit and properly constructed to enable the use as a dwelling, if determined to be appropriate in the second step, to be carried on within the shed. 11A wide range of certificates relating to matters such as waterproofing of wet areas; compliance of glazing with the relevant Australian Standard and the like are required by the council in the without prejudice conditions for this matter. The applicants do not, as I understood the position, dispute the need for such certification. These certificates, in my opinion, are ancillary to my consideration of the merits and are capable of being dealt with by way of deferring the issuing of a building certificate until these certificates have been provided to the council. 12Similarly, a number of minor works such as completing the external cladding of the building (to render it vermin proof - with such cladding being required in the vicinity of the doorway entrance to the constructed dwelling) and some internal lining in the bathroom are also necessary to be completed prior to issuing of a building certificate. A requirement deferring the issuing of a building certificate until after the completion of such works to the satisfaction of the council is, therefore, also the appropriate approach to ensure that these works are carried out. 13The final element of certification that is necessary before a building certificate could be issued is provision of a structural engineer's certificate certifying that the shed is structurally adequate. This is not a minor requirement - as compared to the other outstanding matters earlier noted. 14Although its intended use presently is, principally, as a dwelling (but with a subsidiary use - at its residual northern end - as an agricultural machinery and produce packaging area), the internal arrangement of spaces - even if such a domestic use were not to be approved (as is the case for the reasons below) - could, perhaps, be utilised functionally for permissible purposes. That is a matter for the applicants' consideration in light of my determination that use as a dwelling cannot be permitted. 15Ms Duggan was confident that such a structural engineer's certificate could be obtained and I indicated that, as I would be prepared to provide a reasonable period of time within which such a certificate could be obtained and provided to the Court, the absence of such a certificate (because of non-finalisation of the building certificate application) did not act to prevent me considering the merits of the second application to be considered consistent with the sequence in Ireland , namely the application to use the structure as a dwelling. 16Although, given the conclusion that I have reached with respect to the use of the shed may effectively render my conclusion concerning the building certificate futile, nonetheless directions can be given the building certificate application appeal so that, if: the outstanding certificates are provided; the outstanding works are completed to the council's satisfaction; and a structural engineer's certificate for the whole of the shed structure is, in fact, provided to the Court, that appeal can be upheld and the council would be ordered to issue a building certificate for the shed structure. 17Therefore, in this matter, at the conclusion of this judgement, I have made appropriate directions to permit a building certificate to be issued (if so desired by Mr and Mrs Griffis) if these requirements are met. However, if the applicants do not wish to obtain a building certificate for the shed structure in light of my decision concerning the proposed use as a dwelling, I have provided for a self-executing process to refuse the building certificate appeal if the required further steps are not carried out as directed. The application to use the shed as a dwelling 18Consideration of the application to use the shed as a dwelling raises a range of more complex issues. It is not necessary to provide any further physical description of the shed but it is appropriate to note that a site inspection was undertaken at the commencement of the hearing. 19In a planning sense, the proposal is to have use of the dwelling regularised as a rural worker's dwelling. The person residing in the dwelling, on Mr Griffis' evidence, will: pay no rent; be provided with gas, electricity and telephone utilities by Mr and Mrs Griffis at no cost; have the shed's domestic water supply topped up from a well on the property if the rainwater catchment from the room of the shed requires supplementation; and retain any profits that are derived from selling the produce that the resident will farm on a market garden area approximately 100 m in its north-south dimension and 50 m in its east-west dimension. The past farming activities 20The main market garden area lies between the shed and the principal residence on the property). In addition, there is a further small produce planting area to the south of the shed between the shed and the southern boundary of the property. This is also to be available for production by the shed's occupant. 21Mr and Mrs Griffis have approval to run a roadside stall and have a mobile stall that is, I infer from observing it during the site inspection, kept overnight in the vicinity of the shed. 22Mr and Mrs Griffis have had a person who was the former partner of their son, living in the shed, until two months or so prior to the hearing of these matters. This person had been undertaking farming operations generally in the fashion outlined above. Tragically, that person died in September 2010 and the shed is currently unoccupied. Mr and Mrs Griffis have given an undertaking that occupation will not recommence unless and until use of the shed as a dwelling is approved by the Court. 23The farming activity that is involved for the shed's occupant comprises planting, watering and weeding a variety of food plants and harvesting and packaging sufficient of them, each morning, to stock the roadside stall and harvesting and packaging additional supplies, as required during the day, in order to replenish the stock of the stall. 24Mr Griffis gave evidence that, although he and his wife owned the property, the farming activities were undertaken under the aegis of a company that they owned. He further gave evidence that the former person who had undertaken the farming activities had done so on a share farm basis and that person was entirely responsible for their own taxation recording (and, if necessary, tax payment arrangements with respect to) the totality of the benefits that they received (both in cash and in kind) - total benefits he estimated were of the order of $45,000 all found. He expressly disavowed any notion that of the person undertaking these activities would be an employee of the farm operations company but insisted that they were to be a share farmer only. Mr Griffis indicated that he provided such equipment and other farm supplies as were necessary for carrying out the operation and would do so for any future occupant of the shed. 25Mr Griffis' evidence was also that, for some time in the past (prior to the commencement of the roadside stall selling of the produce), produce from the market gardening activities had been sold into the Sydney market but this trading had proved to be unprofitable. The need for a rural worker 26Mr Griffis' further evidence was that he is unable to undertake the farming activities himself because of injuries and disabilities to his back and upper body functions. As a consequence, it was his evidence that, for farming operations to be able to be carried out on the site, it was necessary that another person carry them out. 27If I understood his written and oral evidence correctly, in total, it was his opinion that the presently proposed arrangement was the only viable and practical way of doing so. I observe that such personal circumstances, whilst obviously appropriate for the extension of sympathy to him, cannot found a decision on proper planning considerations of this proposal unless specifically invoked for some purpose (as is the limited position dealt with later). The relevant planning controls 28The presently applicable local environmental plan is the Tweed Local Environmental Plan 2000 (the 2000 LEP). 29Although there is a draft of the Tweed Local Environmental Plan 2010 (the 2010 LEP) available, a new LEP prepared in conformity with the state-wide template (the Standard Instrument) and although the relevant terms of the 2010 LEP that would be applicable in the present circumstances may be regarded as certain, there is no basis upon which I could conclude that the 2010 LEP is, in any way, imminent. As a consequence, I consider that I should give no weight to this draft planning instrument. 30This idea is zoned 1(a) Rural under the 2000 LEP. The objectives for this zone are as follows: Primary objectives to enable the ecologically sustainable development of land that is suitable primarily for agricultural or natural resource utilisation purposes and associated development. to protect rural character and amenity. Secondary objectives to enable other types of development that rely on the rural or natural values of the land such as agri- and eco-tourism. to provide for development that is not suitable in or near urban areas. to prevent the unnecessary fragmentation or development of land which may be needed for long-term urban expansion. to provide non-urban breaks between settlements to give a physical and community identity to each settlement. 31The land use table for this zone shows, relevantly, the following uses are permitted with development consent: Item 2 allowed only with consent: bed and breakfast dwelling houses if each is on an allotment of at least 40 hectares or on an allotment referred to in clause 57 multi-dwelling housing if: (a) not more than two dwellings are involved, and (b) they are attached, and (c) they are on an allotment of at least 40 hectares or an allotment referred to in clause 57 any other buildings, works, places or land uses not included in Item 1, 3 or 4 32The dictionary to the 2000 LEP provides that multi-dwelling housing means more than one dwelling on an allotment, but does not include a rural worker's dwelling. 33The dictionary to the 2000 LEP also provides that rural workers' dwelling means a dwelling which is on land on which there is already erected a dwelling or dwellings and which is occupied by persons engaged in rural occupation on that land . 34In addition, there is a specific provision in the 2000 LEP that deals with the question of rural workers' dwellings and the circumstances under which one can be approved on a landholding in addition to the principal residence on that landholding. 35The clause providing for rural workers' dwellings, cl 18, is in the following terms: 18 Rural workers' dwellings (1) Objective to enable the provision of on-farm accommodation for rural workers only where there is a genuine need for them to live on-site and there is a demonstrated capacity of the existing farm to support their employment. (2) Consent may be granted to the erection of a rural worker's dwelling only if the consent authority is satisfied that: (a) its erection will not impair the use of the land for agriculture, and (b) the existing agricultural operation genuinely necessitates that rural workers reside on the farm and the operation has the economic capacity to support them, and (c) the resident of the rural worker's dwelling is to be employed on that farm, and (d) the erection of a rural worker's dwelling would not result in there being any more than one rural worker's dwelling on the farm, and (e) the dwelling will not be built on land classified as Class 1 or 2 agricultural land by the Department of Agriculture. (3) Consent must not be granted to the erection of a rural worker's dwelling on an allotment of land having an area of less than 40 hectares in Zone 1 (a), 1 (b2) or 7 (d) or an allotment of less than 10 hectares in Zone 1 (b2). (4) For the purposes of subclause (3), land is taken to be in Zone 1 (b2) if it is shown on the zone map by the marking "1 (b2)". 36As the site does not satisfy the minimum allotment size contained in cl 18(3), an objection pursuant to State Environmental Planning Policy No 1 - Development Standards (SEPP 1) has been made to compliance with the development standard requiring this minimum allotment area. The issues 37The council raised a number of issues in these proceedings. As best I am able to distil them, they are as follows: The proposal for use of the present shed as a worker's dwelling is prohibited because cl 18 only deals with the erection of such a rural worker's dwelling and the conversion of the existing shed does not constitute erection . As a consequence, even if the erection of a rural worker's dwelling in the zone is consistent with the objectives for the zone by the exemption created by cl 18, that which is proposed in this application does not constitute erection and therefore cannot have the benefit of the clause; The proposal for a rural worker's dwelling is not consistent with the objectives for the zone; Even if the proposal passed all these earlier hurdles, when assessed against the tests in cl 18, including the objective of cl 18, the proposal could not be approved; The objection pursuant to SEPP 1 to compliance with the minimum allotment size contained in cl 18(3) should not be sustained as it is not well founded; and If this proposal is not able to have the benefit of the concessionary approach in cl 18, it merely amounts to seeking consent to having a second dwelling on the site and is thus prohibited, Is what is proposed erection of a rural worker's dwelling ? 38Ms Simmons raised an initial objection to this application as one capable of utilising cl 18 of the LEP as a gateway to permissibility of future use of the shed as a dwelling. Ms Simmons' objection finds its foundation in the introductory words to cl 18(2), consent may be granted to the erection [emphasis added] of a rural worker's dw elling. 39The proposition advanced by Ms Simmons was that, because the shed had already been adapted to the extent already described for use as a dwelling and, on Mr Griffis' evidence, had already been so used, that which was sought by this application was not for erection but was for permission to use something that was already erected where the erection had not been subject to development consent in the form actually carried out. 40Ms Simmons relied on the decision of Talbot J in Pancho Properties Pty Ltd v Wingecarribee Shire Council [1999] NSWLEC 245 at para 130 where His Honour said, with respect to the provisions of the local environmental plan there under consideration: For the reasons already given, the subclauses only apply where the rural worker's dwelling is a dwelling house. Furthermore, they only apply where erection of a rural worker's dwelling is proposed. They have no direct application to a change of use that does not necessitate erection of a building. 41I do not consider that this necessarily raises a fatal bar to the proposal, as there is no reasoned analysis to support this element of His Honour's decision. 42It seems to me that cl 18 is, like other elements of the planning framework such as s 96 of the Environmental Planning and Assessment Act 1979, to be regarded as being of a beneficial and facultative nature. In addition, the approach taken by Bignold J in Ireland is clearly one that, as His Honour expressly observes, is not morally judgmental and sets aside entirely all questions of culpability and proceeds to consideration of the proposed use on a conventional planning assessment against the relevant planning instruments. 43However, given my other conclusions as to why the applicants cannot rely upon cl 18 to regularise the proposed arrangement with a future occupant of the shed, it is unnecessary for me to venture into considering His Honour's conclusion on this point - being a consideration where questions of Sir Humphrey-like courage might arise! Compliance with cl 18 Introduction 44In considering how I should approach my determination in this matter, I concluded that I should proceed on the basis of taking a number of elements of the applicants' case at their highest and proceed direct to consideration of the proposal when assessed against the objective of cl 18 and its specific assessment requirements in cl 18(2). In doing so, I have a proceeded on the basis that: the use of portion of the shed as a rural worker's dwelling is not contrary to the objectives of the zone; the residual area of the shed is capable of and does actually provide a sufficient working space for the legitimate agricultural management needs of the property; and a detached dwelling for the purposes of being a rural workers dwelling is permitted within the zone, by virtue of cl 18, because it is an other building .............. or land use not included in Item 1, 3 or 4 of the zone's portion of the land use table. 45Indeed, in addition to acting on these presumptions for the purposes of taking the applicants' case at its highest and proceeding direct to an assessment pursuant to cl 18, I indicate that the assumptions I have made on those three points I consider to be proper and well founded but I consider also that there is no need to articulate reasons therefore (given the overwhelming series of bases upon which the application is otherwise unacceptable when assessed against the provisions of cl 18). Is an employer/employee relationship required? 46During the course of the hearing, I raised with Ms Duggan the question of the status of the person who would occupy the proposed rural worker's accommodation. I raised this in light of Mr Griffis' evidence that the person was to be a share farmer rather than an employee and his express disavowal of any employer/employee relationship proposed to be created with the occupant of the shed. I put the proposition to Ms Duggan that the use of the word employment in the objective to cl 18 and the use of the word employed in cl 18(2)(c) meant that such a rural worker needed to be the subject of an employment contract and be employed on that farm . 47Ms Duggan responded that, in this context, I should read employment as being, effectively, engagement and the word employed is to be treated in an analogous fashion. It was her submission that the use of these words did not require the existence of an employer/employee relationship between the applicants and the share farmer and that a relationship of the type envisaged was sufficient to meet the requirements of the clause and enable the applicants to have the benefit of it. This was necessary to take purposive approach to the clause. 48I am unable to accept this proposition. It seems to me that, in the context of this clause, specifically in the use of the two words to which I have earlier referred (but also, more generally, the use of language relating to the economic viability of the agricultural enterprise to support such a person) necessarily require, in a contextual reading of the totality of the clause (as well as the use of the two specific words cited), that there must be an employer/employee relationship between the farming enterprise and the rural worker who is to reside in a rural worker's dwelling. As a consequence, the applicants are not able to invoke this clause in support of their application in the absence of such a relationship being created with the future occupant. Compliance with the objective to cl 18 49However, if I am wrong in reaching this conclusion, I turned to consider a number of other aspects of the inter-relationship between this application and cl 18. 50The first is whether or not the application complies with the objective of the clause. There are two separate matters required to be satisfied for this application to be consistent with the objectives of the clause. The first is that there be a genuine need for the rural worker to live on site. Taking the applicants' case at its highest, as I propose to do in the merit assessment against cl 18 (on the assumption that my earlier conclusion that the provision is not available to the applicants may be found to be wrong), I am prepared to treat the nature of the farming and on site marketing operations - including the early morning harvesting of produce for loading the roadside stall and its manoeuvring to the front of the property to commence the daily marketing - as engaging and satisfying this element of the objective. This is the sole area in consideration of cl 18 where Mr Griffis' personal circumstances might be engaged but engagement of them is unnecessary, in the first instance, for this conclusion. 51In doing so, I take, perhaps, in this interpretation, an overly facultative meaning for the word need as it being a synonym for is highly desirable in the context rather than the more restrictive view that would apply if I were to regard the word requires , that is implying strict necessity, as the appropriate synonym for need . I note that, in my adoption of this interpretation (thus taking the applicants' case on this point at its highest), I may, in fact, be taking too permissive and interpretation of this objective if it is not permissible to have regard to Mr Griffis' personal circumstances on this restricted point. 52The second limb of the objective requires that there be a demonstrated capacity of the existing farm to support the employment of the rural worker. On Mr Griffis's own evidence, I cannot be satisfied that this limb of the objective is met. It is quite clear that the provision of rent-free accommodation and the provision of utility services of gas, electricity and telephone without charge (as part of a total package of benefits of approximately $45,000 [including retaining the sales receipts for the produce of the farming activities] - thus making the arrangement, as described by Mr Griffis, an attractive one to a future occupant of the shed), in my view, demonstrates that this element of the objective cannot be met. On the evidence of several witnesses, accommodation of the standard proposed to be provided by Mr and Mrs Griffis evidences an effective and significant in-kind subsidy to any person entering into the proposed arrangement. This in-kind accommodation subsidy is in addition to the utility provision subsidy and the further in-kind agricultural materials and equipment provision noted earlier. 53As a consequence, even if, contrary to my earlier finding, the applicants are able to engage the provisions of cl 18, this application does not satisfy the second element of the objectives of the clause. As a consequence, on this, second, general basis, the applicants are unable to utilises cl 18 to seek consent for this proposed arrangement. Compliance with cl 18(2) 54However, in the event that I am wrong on both the preliminary bases as to why cl 18 is not available, I now turn to assess the proposed application against the tests contained in cl 18(2). This provision contains five elements with respect to all of which I must be satisfied that this application is compliant before I am able to approve the use of the structure as a rural worker's dwelling. Cl 18(2)(a) 55The first of these tests is that the erection of the rural worker's dwelling will not impair the use of the land for agriculture. 56I accept that this element is satisfied as the footprint of the structure is identical with the footprint of the rural shed that already has development consent for the site. 57Despite Ms Simmons valiantly suggesting that, at some future time, alienation of the proposed portion of the shed for a dwelling would lead to a demand for some future shed to be erected and that that future shed and would result in alienation of part of the land from future use for agriculture, I am unable to accept this proposition. I am satisfied that, on the uncontradicted evidence as well as my observations during the course of the site inspection that the present configuration of the structure has retained sufficient space to satisfy the operational needs of the agricultural activities taking place on the site. Cl 18(2)(b) 58The second element contains, like the objective of the clause, two separate elements and, in effect, it poses exactly the same tests as for the objective of the clause. For the same reasons as earlier discussed, I am prepared to accept, for the purposes of this analysis, that the proposed arrangement satisfies the first limb of this element but fails the second. Cl 18(2)(c) 59The third element requiring to be satisfied is that the resident of the shed is to be employed on this farm. Whilst, as I have earlier discussed, I am able to be satisfied that the resident will be engaged in the fashion outlined by Mr Griffis in his evidence, this does not constitute a person being e mployed in the fashion I consider is required by the ordinary English use of this word. As a consequence, I am satisfied that this element is not met. Cl 18(2)(d) 60The next element requires that there be only one rural worker's dwelling on the particular agricultural enterprise and that requirement is clearly satisfied. Cl 18(2)(e) 61Finally, as it is the agreed position that the land is not classified as Class 1 or 2 agricultural land by the Department of Agriculture, this element is satisfied. Conclusion concerning cl 18(2) 62However, as cl 18(2)(b) and (c) are not satisfied - two elements about which I am required to be satisfied, the application must fail cl 18(2) as well. Non-compliance with cl 18(3) - the SEPP 1 objection 63Finally [cl 18(4) being irrelevant], cl 18(3) sets a minimum allotment size upon which such a rural worker's dwelling is permitted. The minimum allotment size in the zone within which Mr and Mrs Griffis' property is located is 40 ha and, as previously observed, their property has an area of 2.4 ha. There is, thus, a significant non-compliance with the development standard contained in clause 18(3). 64However, this development standard is amenable to being set aside if an objection to compliance with the standard, made pursuant to SEPP 1, is sustained. Such an objection has been made in this instance. 65As a consequence, against the eventuality that I am wrong in all my earlier enunciated reasons as to why this proposal cannot use cl 18 as a basis for approval, I turn to consider the objection pursuant to SEPP 1. 66The classic formulation for considering whether an objection to compliance with a development standard are the five questions posed for consideration by Lloyd J in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46. Those questions are as follows: First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5 ( a)(i) and (ii) of the EP&A Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection is well founded? The first Winten question 67It is clear, in this instance, that cl 18(3) is a development standard. It is thus amenable to objection pursuant to SEPP 1. The second Winten question 68The objection pursuant to SEPP 1 correctly identifies that there is no specific objective set for this development standard. However, the objection sets out the first part of the first of the objectives of the minimum allotment size for the zone as relevant. I accept this objective, set out in cl 20, is relevant to (but not totally defining of) the basis for the development standard. This is in the following terms: to prevent the potential for fragmentation of ownership of rural land that would: (i) adversely affect the continuance or aggregation of sustainable agricultural units, or 69In addition, it is reasonable to assume, as also discussed in the SEPP 1 objection, the objectives of the zone within which the site is located are also relevant - these are set out at (28) above. 70Finally, however, as this development standard is contained in a clause dealing with a specific topic - rural workers' dwellings - the specific objectives of the clause itself, in my view, inform on the basis for the development standard being set. The third Winten question 71I have dealt, earlier, with an analysis of the proposal in the context of the objectives of cl 18 and concluded that the proposal does not satisfy them. In the context of the SEPP 1 objection and the material put in support of it, it is necessary to make some further observations about the SEPP 1 objection document and the inconsistencies contained in it with the evidence given by Mr Griffis during the course of the hearing. It also necessary to comment, in the context of the SEPP 1 objection, on the aspects of the objection that rely on the incapacity of Mr Griffis to carry out agricultural activities that he had undertaken in the past. 72I have earlier set out the evidence of Mr Griffis in which he expressly made it clear that the person who the applicants propose reside in this dwelling and enter into the farming arrangement earlier described is, expressly and explicitly, not to be a person who has an employer/employee relationship with the company that undertakes the farming enterprise on the Griffis' property. 73On the other hand, the language employed by the SEPP 1 objection is, in my view, one that expressly envisages the arrangement will be an employer/employee one. As an example, the SEPP 1 objection specifically talks about the concept of annual leave and nominates a preferred time of the year when such leave would be taken. 74In addition, as was clear from Mr Griffin's evidence, the reason that a person is required to be available to undertake the cropping related activities it is because Mr Griffis is no longer physically able to do so because of a combination of back and upper torso medical limitations now experienced by him. This disability, it is also clear from the concluding remarks of the SEPP 1 objection, forms one (by no means the only - but nonetheless a necessary and critical) element of the SEPP 1 objection. 75The statement of accounts for 2006/2007 for the company that undertakes the farming activities [these accounts forming part of appendix C to the SEPP 1 objection], clearly show, in my view, that the farming activity is certainly not capable of supporting Mr and Mrs Griffis and another, separate occupant of the site (however the arrangement with that person might be described). Indeed, although Mr Griffis, in his evidence, expressed the intention that the occupant of the proposed dwelling would retain all of the profits from the cropping arrangements, that is not the basis shown in the SEPP 1 objection in supporting documents as these appeared to envisage that Mr Griffis would receive 25% of the proceeds as a supplement to his pension. 76It is clear, in addition to the reasoning discussed earlier relating to the objectives of cl 18, that there is a significant subjective element arising from Mr Griffis' personal circumstances in seeking to regularise the use of the structure and permitting the farming related arrangement to be entered into for the future. 77I indicated to Ms Duggan during the course of the hearing, an initial reading of the objective of cl 18 might lead to an initial inference that some subjective circumstances might be appropriate to be considered (and I have done so for the limited purposes earlier discussed). On further consideration, I have concluded that that can only be appropriate for those limited purposes earlier discussed. I reached this conclusion because the whole of the planning system is based on the concept that consents are given to run with the land rather than with a particular person or people (unless otherwise provided - as earlier specifically considered). 78In this instance, although Mr and Mrs Griffis agreed to accept a condition of consent that would require the reconversion, prior to do any disposal of the property by them, of the structure to its originally approved form so that it was no longer a dwelling, this, in my view, merely reinforces the fact that what is intended here is a response to the personal circumstances of the present owners of the land rather than any of the objective and enterprise related elements of the objective of cl 18. 79Whilst I may have, indeed do have, sympathy for Mr and Mrs Griffis and the circumstances in which they now find themselves, taking that into account in making a planning decision within the statutory framework is not permissible. As a consequence, I cannot be satisfied that the third of the Winten question s is adequately addressed and able to be answered favourably to Mr and Mrs Griffis. The fourth Winten question 80It therefore follows that I cannot conclude that it is either unnecessary or unreasonable, under the circumstances, to require compliance with the development standard. The fifth Winten question 81As the final, further consequence of my consideration of the Winten question s, it cannot follow that the SEPP 1 objection is well founded. SEPP 1 objection conclusion 82As a consequence, even if I am wrong about all the other bases upon which the proposal must fail, I have separately concluded that, in itself, the SEPP 1 objection should not be sustained and, on that basis, alone the application must also fail. Conclusion Building certificate application 83I am satisfied that, subject to the completion of a small number of outstanding works and provision of a number of certificates (including provision to the Court of a certificate of structural adequacy) prior to the making of any orders, nothing stands in the way of the making of orders requiring the council to issue a building certificate. Given my refusal of the application to permit the structure to be used as a rural worker's dwelling, my decision concerning the issuing of a building certificate may be purely academic. 84However, if the applicants wish to be issued with such a certificate for some reason, I have made directions that set a timetable for this. If the timetable is not complied with by the applicants or if the liberty to re-list is not exercised by them, the directions also provide that the appeal in Matter No 10763 of 2010 will be dismissed without further reference to the parties. Application to use the structure as a rural worker's dwelling 85First, I have concluded that I do not need to determine if the use of the word erection in the preambular element of cl 18(2) of the Tweed Local Environmental Plan 2000 acts as a bar to approving the use of the structure that is the subject of these proceedings as a combination of a dwelling and agricultural activities space. 86I have proceeded direct to consideration of the compliance or otherwise of the application with the various matters in cl 18 requiring satisfaction. I have concluded, taking the applicants' case at it highest on other contentions raised by the council, that the use of the shed as a dwelling is incapable of approval, as it cannot satisfy several of the provisions of cl 18. 87In my assessment of the proposed use against cl 18, I have concluded that the application must fail, on a number of separate and stand-alone bases each of which requires rejection of the application. These are: (a) The proposal is inconsistent with the second element of the objective in cl 18(1) which, for the reasons set out, I am satisfied requires that there be an employer/employee relationship between the farming entity and the person who is the proposed occupant of the dwelling for that dwelling to be able to be characterised as a rural worker's dwelling; (b) The proposal fails the second element in cl 18(2)(b) and thus must be refused; (c) The proposal fails cl 18(2)(c) and thus must be refused; and (d) The objection to compliance with the minimum allotment size (set by cl 18(3) as necessary for a property in the zone within which the site is located not be permitted a rural worker's dwelling in addition to the principal dwelling on the site) is not a well founded and cannot be sustained. 88Each of these four failures to satisfy an element of cl 18 is, separately, fatal in its own right to this application. 89As a consequence, although there is an acceptable basis upon which a building certificate could be granted, there is no basis upon which the use of the structure could be approved for the purposes of a rural worker's dwelling. Directions - building certificate 90However, in case there be some reason (other than use of the shed as a dwelling) why the applicants might wish to have a building certificate, I give the following directions: (1) The applicants are to complete, within 30 days of the date of this decision, the external cladding of the building to render it vermin proof and to complete the internal lining in the bathroom; (2) The applicants are notify the respondent and the Court, within 35 days of the date of this decision, that they have completed the external cladding of the building to render it vermin proof and have completed the internal lining in the bathroom; (3) The respondent is directed to inspect the building and file and serve any certificate of satisfaction or otherwise with the works in (1) within 10 days of being notified pursuant to (2) that these works have been completed; (4) The applicants are to file and serve all outstanding certificates, including a structural engineer's certificate certifying that the shed is structurally adequate, within 45 days of the date of this decision; (5) Liberty to re-list Matter No 10763 of 2010 before me on two days notice concerning any matters arising out of directions (1) to (4); (6) If the parties comply with directions (1) to (4) and there are no matters requiring re-listing pursuant to those directions, orders will be made in chambers upholding the appeal and ordering the respondent to issue a building certificate to the applicants within 28 days of the date of those orders; and (7) If the applicants do not comply with (1), (2) or (4) or exercise the liberty to re-list in (5), within 10 days of service of any certificate issued by the respondent concerning the works in (1), any dispute concerning any such certificate, the appeal in Matter No 10763 of 2010 will be dismissed without further reference to the parties. Orders - use as a rural worker's dwelling 91In Matter No 10535 of 2010, the orders of the Court are: (1) The appeal is dismissed; (2) Development Application DA08/1056 for approval of the use as a rural worker's dwelling of part of the shed structure constructed pursuant to Development Consent DA06/0827 is determined by refusal of development consent; and (3) The exhibits, other than Exhibits 1, 2, A and B, are returned. Tim Moore Senior Commissioner ********** 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. Decision last updated: 24 May 2011