Stoneman v Byron Shire Council [2011] NSWLEC 1089

Land and Environment Court New South Wales

Medium Neutral Citation: Stoneman v Byron Shire Council [2011] NSWLEC 1089 Hearing dates: 19 April 2011 Decision date: 19 April 2011 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld Catchwords: CONSENT ORDERS; special purpose subdivision and construction of a shed for a rural industry Legislation Cited: Environmental Planning & Assessment Act 1979 State Environmental Planning Policy No. 1 - Development Standards Byron Local Environmental Plan 1988 Category: Principal judgment Parties: Douglas Stoneman (Applicant) Byron Shire Council (Respondent) Representation: Mr M Eirth (Applicant) Mr D Steiner (Applicant) Capital Lawyers Ms J McCullan (Respondent) Marsdens Lawyers File Number(s): 10110 of 2011

Judgment 1COMMISSIONER: This is an appeal pursuant to s 97(1) of the Environmental Planning & Assessment Act 1979 (the Act) against the imposition by Byron Shire Council (the council) of a condition of consent refusing subdivision of land at Lot 33 DP 855301, 107 Risley's Hill Road Federal (the site), into 2 lots. Council approved Development Application No 10.2010.353 for the erection of a work shed but refused the application to locate it on a new lot. 2The site is a 16.79 ha parcel of land zoned 1(a) (General Rural Zone) under the Byron Local Environmental Plan 1988 (BLEP). The applicant seeks to subdivide the site to create a 2.4 ha lot as a "Special Purpose Subdivision". The land is currently used for grazing cattle and contains the applicant's residence. 3The purpose of the smaller lot is for the construction of a rural shed to be used for rural industry purposes. The shed is proposed to have an area of 346 sq m, a height of 4.275 m and an awning 73.5 sq m at the southern end. The shed is to be internally divided into a workshop, store, office, lunch room, toilets/ showers and a training room. It is not to be used for habitation. 4The works depot is required by the applicant for the storage of plant and equipment associated with his rural business. The applicant carries out contracted outdoor maintenance for Byron Shire Council and rural landholders. Works include vegetation management, horticultural activities, rubbish removal, fencing, drain and road clearing and traffic control. 5The proposed depot requires an effluent management system. The shed is also located in a bushfire buffer zone. 6Following the provision of additional material to the council that satisfied council officers as to compliance with the planning controls, the appeal now comes before the Court for Consent Orders. In accordance with the Practice Note - Class 1 Development Appeals (cll 35 and 36) the " consent authority will be required to demonstrate the relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account". 7I am informed that one objection was received but that has been withdrawn. 8Under cl 11 of BLEP, the minimum area for rural lots is 40 ha. As the proposal does not comply with this minimum standard, the applicant prepared a State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) objection. The basis of the SEPP 1 objection is that the subdivision will create no additional dwelling entitlements, it will not require any alteration to existing infrastructure, it will not create any greater fire risks, it will not set a precedent and it will maintain agricultural production. The SEPP 1 objection was referred to the Department of Planning. 9Concurrence for the subdivision was granted by the Department of Planning on the basis that a future dwelling on the proposed smaller lot will not be permitted. Concurrence was also granted by the Rural Fire Service. 10The original application sought approval for a rural shed to be used as a 'works depot' however this is not defined in the BLEP and could not be approved. After further information was received from the applicant, council officers were satisfied that the proposed shed could be defined or characterised as a 'rural industry'. This is defined in the BLEP as "handling, treating, processing or packing of primary products and includes the servicing in a workshop of plant or equipment used for rural purposes in the locality." This use is permitted, with consent, in the zone. 11I am satisfied that the council has properly assessed the application against s 79C of the Act, the relevant clauses of the BLEP, the relevant SEPPs and REPs as well as the Byron Development Control Plan, in particular Part B 4.7 - Special Purpose Subdivision. I am satisfied that the proposal meets the objectives of the zone and is permitted with consent. The necessary concurrence has been granted by the Department of Planning and the RFS. 12There being no reasons why the Consent Orders should not be made, the Orders of the Court, by consent, are: (1)The appeal is upheld. (2)Development Application No. 10.2010.353.1 for a special purpose subdivision and the construction of a shed for a rural industry on the land known as Lot 33 DP 855301, 107 Risley's Hill Road Federal is approved subject to the conditions set out in Annexure A. (3)No orders as to costs. (4)Exhibit 3 is returned, all other exhibits are retained. J Fakes Commissioner of the Court Annexure A 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: 01 June 2011