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Byron Shire
February 3, 2023

Unapproved cabin stop order upheld

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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‘There is no registered right-of-way, and the neighbour has withdrawn consent for access to the cabin over his land.’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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  1. Can the Department of Planning explain why they have issued a registration number for a dwelling on the same property, without a DA, that is being used for STRA?
    All STRA must be registered and have building approval from the local Council.
    The Dept of Planning is failing in the STRA registration process and monitoring of day caps.

  2. Hi John,

    The NSW Government has finalised a number of planning reforms to help facilitate tourism activities on existing commercial farms, intended to increase their financial resilience to natural disasters and other adverse events.

    The changes include a number of new exempt and complying development codes for certain ‘agritourism‘ developments, including farm stay accommodation, farm experiences and roadside stalls, as well as amendments to the Standard Instrument (Local Environmental Plans) Order 2006 (Standard Instrument) to support the land uses.

    Amendments to the Standard Instrument

    ‘Agritourism‘ will be defined in the Standard Instrument to mean:

    farm gate premises,
    farm experience premises.
    ‘Farm gate premises‘ have been defined as buildings or places on commercial farms that are ancillary to the farm and are used to provide visitors to the farm with agricultural products sourced predominantly from the farm. This will include cellar door premises.

    ‘Farm experience premises’ have been defined as buildings or places used to provide visitors to the farm with ‘small-scale and low-impact tourist or recreational activities‘, including horse riding, farm tours and functions or conferences.

    Be careful what you wish for John,
    It seems that you are calling for dictatorship style governance? Ask yourself, why did you move to this area if you want everything to be straight? There is plenty of that in Brisbane or Sydney?

    Love they neighbour. Peace out. Friend.

  3. The cottage is not used for Airbnb but is an affordable home for a local resident. The STRA registration refers to the legally approved house which is in a different location . . . . .

    • Robin, I feel that you have very good grounds to launch an appeal to a full bench of the Land and Environment Court. But, you will need to employ an experienced legal representative such as an SC or KC. Have a go. What have you got to lose?
      I searched potential DA approvals for the buildings on your property and can’t see any. You should inform Byron Council that they have made a mistake and provide them with the approved DA number for your holiday let.
      Peace and love.

  4. One of the most appalling outcomes at the time was the kicking out of a resident out of his home in the middle of the largest flood in living memory. On the one hand you hand NSW Gov Depts bending over backwards to protect those who had lost their homes and another arm of the NSW State Government kicking someone out of his home. Again all in the middle of the largest rain bomb I living memory. No compassion by compliance police in the local council.

    • Robin, the state government were busy helping legal tenants living in legal approved dwellings affected by flooding. Isn’t the timing due to the landlord ignoring Council’s “Compliance Police” for years? and baselessly dragging out proceedings by persisting with that furphy that he was entitled to rent the joint out despite everything contrary.
      Including no legal access?
      This ruling confirms he had no business being there in the first place & that you knew it all along.
      Can’t always get your own way & ignore the rules using some nonsense story that unravels under examination.
      Isn’t the real reason you didn’t register the cottage as STRA as well as Kinabalu because it’s an unapproved dwelling with no legal access?

      • First get your facts right.

        This building has during my tenure been used for environmental works for 18 years during my tenure. This can be proven by the many grants received and the credentials of environmental teachers and scientists that have witness and contributed to the works here. Fortuately the original owners were a much more generous lot. There was never any dragging of proceedings – Covid, health reasons etc. You seem to ignore that for the 90 years that access has been used by the previous historical farmers and owners – it is only the newcomers with their less than generous and kind attitudes that have changed the landscape of generosity that preexisted. The cottage is not rented and its primary use is for environmental repair work. The assumption that I wish to airbnb is your own.

          • Thanks for your reply Christian. You would think that but BSC seem to want to ignore this. And to add the road was created by the first shire president of the first shire council.

  5. Make them put a plaque on the front door that says ‘structure unapproved by council and not to building standards’ and let the renter make up their own mind. We don’t need to be nannied.


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