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Byron Shire
May 30, 2024

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‘There is no registered right-of-way, and the neighbour has withdrawn consent for access to the cabin over his land.’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.

        • Get the facts right? That’s what the court has just done. Courts cut through furphies and bullsh*t. Was illegally let full stop.

          As for 18 years worth of environmental repair works? Pull the other one. You mean as undertaken by actual environmental professionals? Or by arrogant rogues with no training, no experience, no approvals, no regard, no environmental skills not even basic botany – such as clearing the pristine creek bank of its natural rainforest & dumping truckloads of road base that all finished up in the creek despite objections and contrary advice? You’re deluded! No-one who is fair dinkum destroys the environment like that!

          Access? 18 years ownership is plenty of time to legally formalise something you think you’re entitled to. And why would neighbours be granting access for 90 years to a cottage that was only built 36 years ago anyway? Informal neighbourly agreements only work when neighbours get along and treat their neighbours with respect, and often end when the beneficiary has taken advantage or acted unconscionably or with an outrageous sense of entitlement…. Sound familiar?
          When someone does you a favour in allowing you onto their property, how does that confer any rights to you? If that arrangement worked for 72 years before being withdrawn, it obviously indicates says something about how current parties have conducted themselves boo hoo

          Sounds like a big confused sob story…. a cruel unsympathetic council, ignoring your good work providing affordable housing in a crisis, while doing such wonderful environmental repair works, despite mean and nasty neighbours with the effrontery to decide whom they allow to access their own private property. And that damned conspiratorial magistrate is in on it too. OMG

          • What a load of self interested rubbish. This person has to get his facts right. I wont even bother with an answer. There are many more people who are well aware of the history here that have a very different view of the situation. Environmental works and funding can be proven. Environmental Scientists and teachers are involved and still are. Well respected Companies (Botanica – Roslyn Oxley family) all involved. Why not start allowing the community to judge and allow people to access the Inner Pocket Nature (Public) Reserve for their enjoyment and appreciation.

          • Stop hiding behind the veneer of annominity and come out in the open and let others see who you are? Then it will be all very clear your true intentions. To keep the community out of Inner Pocket Nature Reserve. I believe the community would love to see for themselves the beauty and serenity of Inner Pocket Nature Reserve. Unlock and open the gate my friend. The time has come.

  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.

  6. “Well respected companies”… like “Botanica” undertaking environmental works?? Haha. Pull the other one again!
    Botanica just make scented aromatherapy candles & soaps so hardly a reputable “environmental works” company then! Or do you mean that other reputable environmental works company Botanica Day Spa in Mullum?
    Botanica must be the reputable company that said it would be a good idea to clear the rainforest along the creek & fill it with road base. Laughable.
    As for Roslyn Oxley & family, she/they may well be a “well-respected company” in the Sydney art gallery & art dealer circles, but how does having rich Sydney friends confer any environmental credentials or environmental awareness?

    Robin since you seem so keen on open access to others property, do you allow random strangers to constantly trespass? That might be the solution to helping “the community” enjoy “the beauty and serenity” of the reserve but your cabin is still illegal & has no access. QED.
    Anyway it’s a Nature Reserve for a reason. To protect nature & all the rare plants & animals found there from impacts of the ignorant masses.
    And one final point, yes this is my name. But is using only your first name “hiding behind the veneer of anonymity”(note spelling) ?

  7. The basis of any discussion begins with the truth. I have told the truth. The belligerence of the tone of your replies deserves no further response and anyone can see where you are coming from. Nasty piece of work!

    Peace & Love my friend.

    • Hmm… so if you’re speaking “the truth”, then that must mean the magistrate, the council officers, the previous owners & everyone else with a contrary view must be liars? Both cannot be true.
      No belligerence here my friend, just happy to highlight the absurdities & contradictions around the obvious house of cards presented.

  8. Hardly a constructive and helpful response. We won’t get anywhere with a character assassination of myself and friends and our works.

    If you wish to verify the truth we can meet in person and I will do so.

    Otherwise your response is totally designed to demean anything thing I say and will be treated for what it is. . . . Nasty piece of work.


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