Posted on July 6, 2017 by Katie Mortimer and Megan Hawley

A reminder of the Court’s approach to characterising development

A recent decision of the Land and Environment Court (‘Court‘) has reinforced the approach the Court will take when characterising development.

Once the Court is satisfied that development does not fall into a use expressly noted as permissible in a land use table and the use falls within an innominate prohibited category, then it is not necessary for the Court to inquire further as to how the development should be defined.

Penrith City Council (‘Council‘) brought proceedings under the Environmental Planning and Assessment Act 1979 (‘EP&A Act‘) alleging that a rural block of land (‘Land‘) was being used as a junk yard or storage premises, or a waste or resource management facility.

As Council considered such a use was a prohibited use of the land under the applicable environmental planning instrument, Council sought a declaration from the Court that this use was unlawful.

Classification of the development under the LEP

Under the Penrith Local Environmental Plan 2010 (‘PLEP 2010‘) the Land fell within the ‘E2 Environmental Conservation’ and ‘E3 Environmental Management’ zones.

The land use tables for those zones did not expressly refer to development for the purpose of a junk yard, storage premises or waste or resource management facility.

Both land use tables specified that any other development not specified as permitted without consent or permitted with consent is prohibited development.

The Court’s approach in characterising the development

The Respondent raised arguments to the effect that the use of the Land did not fall within the meaning or defined terms for  ‘junkyard’, ‘storage premises’ or ‘waste or resource management facility’.

The Court was satisfied that the use did not fall within any nominate uses which were permitted with or without consent.  Therefore the use was ‘any other development not specified‘ as being permitted in the land use tables. The development was therefore prohibited.

It was not therefore necessary for the Court to inquire further as to how the development should be defined, and whether the development fell within a defined term of the PLEP.

This approach reinforces the approach taken to characterisation in Botany Bay City Council v Pet Carriers International Pty Limited [2013] NSWLEC 147.

The Court stated that the ultimate focus of an inquiry as to the characterisation of land should be whether a development is within a nominate or innominate purpose under the relevant instrument.

Who bears the onus of proving the use? 

In making its determination, the Court found that the Council bore the burden of satisfying the Court that the use of the Land was prohibited.

However, once it was demonstrated by the Council ‘on the balance of probabilities‘, that the use of the Land was prohibited under the zoning of PLEP then the onus shifted to the land owner to prove its case that there was either an existing use or prior consent granted that would make the use lawful.

Was this an ancillary use?

The Court agreed with Council that no plausible explanation could be found for the development to be ancillary to the lawful use of the Land as a dwelling house. This was due to the quantity and scale of material present on the Land.

The Court noted that when determining whether relevant material was ‘junk’  which was kept in connection with use of a dwelling, the owner’s subjective opinion must be weighed against an objective consideration to ensure the owner’s subjective opinion is not beyond any acceptable community standard.

Read the full judgment of the Court here.

Should you wish to discuss this case, please contact Megan Hawley, Partner on 8235 9704 or by email, at