The NSW Land & Environment Court has upheld Byron Council’s decision to order a local landowner to stop renting out a 40-year-old rural cabin in Middle Pocket because it was an unapproved dwelling.
In a decision with potential implications for the owners of other ‘unauthorised’ dwellings in the Shire, the court found that Council’s Stop Use Order issued in relation to the ‘Kioda Hut’ in Middle Pocket last year was lawful, and should remain in place.
The landowner, represented in the proceedings by the tenant who had been living in the cabin for a number of years, had appealed the decision.
Acting Commissioner, Maureen Peatman, said in her reasons for the decision, ‘The [landowner] submitted that I should exercise my discretion and permit the cabin to remain as a dwelling, because of the shortage of accommodation in the North Coast of NSW as a direct result of the extreme flooding of that area over the last 12 to 18 months, and the bushfires in 2019.’
Bushfire risks
‘While I sympathise with the applicant’s view in this regard, I cannot ignore the risk under Planning for Bushfire Protection 2019 – of ember strike, bushfire, and the limited road access to, and from, the cabin.’
The court heard that the cabin was in a ‘high risk’ area, under Council’s bushfire mapping, and fire safety was a ‘crucial issue’ for the site, which had not been cleared in accordance with bushfire protection regulations.
There was also evidence of limited road access to the cabin. ‘Historically, vehicular access to the cabin has been occurring via Middle Pocket Road through a neighbour’s land,’ Acting Commissioner Peatman said in her summary of the evidence.
‘There is no registered right-of-way, and the neighbour has withdrawn consent for access to the cabin over his land.’
The other key factor in the decision was the inability of the landowner to prove that the cabin was built before 1968, when planning laws requiring development consent were put in place in the Shire.
He was also unable to prove that the cabin had been continuously used as a residence since then.
The former owner of the property and his wife gave sworn evidence that they had built the cabin in 1984 without development consent, and that there had been nothing there before this.
‘The applicant has not discharged the onus of proof to prove the cabin was permissible, pursuant to the “Country dwelling” provisions of IDO 1968,’ Acting Commissioner Peatman said.
‘The continuous use provisions do not apply to the cabin, as development consent was necessary for its lawful use when it was built in 1984, and Council has no record of granting development consent, and nor has any application been made for such a consent,’ she said.
Plumbing, kitchen, to be removed
Peatman AC upheld the Stop Use Order, which requires that the landowner and tenant stop using the cabin for the purposes of habitation and that it remove the kitchen and plumbing from the cabin, so no one else can live there.
She noted that the order did not require that the cabin be demolished.
‘I recommend that the applicant [landowner] lodge with the respondent [Council] a Building Information Certificate for the cabin as built and a development application for its use,’ she said.
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