Certificate of Lawful Use for the use of the farmworkers dwelling at Ohio Filed as a residential dwelling

Decision Summary

• ✓Agricultural occupancy condition imposed in 1981 requiring residents to be employed or last employed in agriculture or horticulture
• ✓Insufficient evidence that the occupancy condition had been breached for the required period
• ✓Contradictory and incomplete information about the previous occupant's employment
• ✓No alternative occupation identified for the last known occupant
• ✓Land use evidence accepted, but occupancy condition evidence was the decisive issue
• ✓contradictory and patchy information regarding the last occupation of the previous occupant
• ✓not enough evidence to support the claim that there was no one living within the property in the last 10 years whose employment or last employment was in agriculture
• ✓inadequate supporting evidence that the agricultural condition on the property had been broken

The property is a farmworker's dwelling on the western side of Bernahara Road, approximately 1km south of Andreas Village, subject to an agricultural occupancy condition imposed when it was originally approved in 1981. That condition requires the dwelling to be occupied only by persons whose employment, or last employment, is in agriculture or horticulture. The applicant sought a Certificate of Lawful Use on the basis that the property had not been used for agricultural or horticultural purposes for at least ten years. While the officer accepted there was sufficient written testimony to show, on the balance of probabilities, that the land itself had not been used for agricultural or horticultural purposes for the last ten years, the critical issue was different: whether the occupancy condition had also been breached. The evidence about the last occupant's employment was contradictory and incomplete. Some witnesses stated the previous occupant was not an agricultural worker, but no alternative occupation was identified, and the officer found the overall picture too patchy to conclude on the balance of probabilities that no occupant in the last ten years had employment or last employment in agriculture.

The certificate was declined because the applicant failed to demonstrate that the agricultural occupancy condition had been continuously breached for the required period. The evidence about the previous occupant's employment was contradictory and insufficient to establish that no one living there in the last ten years had agricultural employment as their current or last occupation.

Policies Assessed (2)

Planning History (1)

Documents (16)