Tesoriero v Hornsby Shire Council [2003] NSWLEC 55

Tesoriero v Hornsby Shire Council [2003] NSWLEC 55

The proposed moveable dwelling satisfied the LEP definition of "rural workers' dwelling": it was a moveable dwelling on land with an existing dwelling-house, its floor area was reduced to less than the 110 m2 maximum, and it was proposed to be occupied by the owner whose principal employment would be agriculture and aquaculture on that land. The term "employment" did not require that the occupant be employed by another person. Any more onerous requirements in the Rural Lands Development Control Plan could not override the LEP. Accordingly, such a dwelling could be approved in the Rural BA zone even though the principal dwelling was rented to persons not engaged in the agricultural...

Jurisdiction
Australia
Judgment Date
06 March 2003
Procedural Posture
Class 1 Proceedings Concerning a Development Application / Separate Determination of a Question of Law Referred for Determination by a Judge Under S 36(5) of the Land and Environment Court Act 1979
Outcome
Question of law answered in the affirmative; matter remitted to the commissioner for determination of the appeal on its merits.
Legal Topics
["rural Workers' Dwelling" 'hornsby Shire Local Environmental Plan 1994' 'rural BA Zone' 'development Consent' 'development Control Plan Consistency With Local Environmental Plan']
['environmental Planning and Assessment' 'land Use Planning' 'statutory Interpretation'] ["rural Workers' Dwelling" 'hornsby Shire Local Environmental Plan 1994' 'rural BA Zone' 'development Consent' 'development Control Plan Consistency With Local Environmental Plan']

Case Brief

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Procedural Posture

Class 1 Proceedings Concerning a Development Application / Separate Determination of a Question of Law Referred for Determination by a Judge Under S 36(5) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether, under the Hornsby Shire Local Environmental Plan 1994, a rural workers' dwelling in the Rural BA zone can be approved for occupation by the owner of the land who intends to carry out agricultural activities on the land while the main dwelling is rented to persons not engaged in agricultural production on the land." 'Whether the word "employment" in the definition of "rural workers\' dwelling" requires an employment relationship with another person or can include the owner\'s own agricultural occupation on the land.' 'Whether the Rural Lands Development Control Plan could impose requirements inconsistent with or more onerous than the local environmental plan for the purpose of determining the question of law.']

Ratio Decidendi

The proposed moveable dwelling satisfied the LEP definition of "rural workers' dwelling": it was a moveable dwelling on land with an existing dwelling-house, its floor area was reduced to less than the 110 m2 maximum, and it was proposed to be occupied by the owner whose principal employment would be agriculture and aquaculture on that land. The term "employment" did not require that the occupant be employed by another person. Any more onerous requirements in the Rural Lands Development Control Plan could not override the LEP. Accordingly, such a dwelling could be approved in the Rural BA zone even though the principal dwelling was rented to persons not engaged in the agricultural...

Court Disposition

Question of law answered in the affirmative; matter remitted to the commissioner for determination of the appeal on its merits.

Orders

  • ["The question whether the rural workers' dwelling could be approved in the stated circumstances is answered in the affirmative." 'The matter is remitted to the commissioner for determination of the appeal on its merits.']