Posted on June 21, 2020 by Brigitte Elvy and Megan Hawley
Characterising Accessways to Development
We have previously blogged about the task of characterising an access way to a development.
In the recent case of Ballina Shire Council v Palm Lake Works  NSWLEC 41, the Court considered whether an access way to a proposed seniors housing development was to be characterised as development for the purpose of a road or development for the purpose of seniors housing.
Palm Lake Works Pty Ltd (Palm Lake) appealed against the Council’s refusal of consent to a development application for expansion of an existing seniors housing development at North Creek Road, Ballina. The expansion involved constructing 75 new serviced, self-care dwellings, roads, earthworks, wastewater management works, infrastructure works and environmental protection works, as well as removing vegetation.
The appeal was initially upheld by Commissioner Dixon who granted deferred commencement consent to the development. The Council appealed that decision to a judge of the Land & Environment Court on a number of grounds.
One of the issues on appeal was whether the access way to the proposed development had been properly characterised.
The access way and seniors housing development were both proposed on land zoned RU2 Rural Landscape under the Ballina Local Environmental Plan 2012 (BLEP). In the land use table for that zone, development for the purpose of a road is a nominate permissible use and development for the purpose of seniors housing is an innominate prohibited use.
However, the proposed seniors housing development was made permissible under the State Environmental Planning Policy (Housing for Seniors or People with Disability) 2004 (SEPP) as that SEPP makes seniors housing permissible despite the provisions of a local environmental plan. However, the particular development could only be permissible if a site compatibility certificate had been issued. A site compatibility certificate was issued for the site of the seniors housing development, but it did not cover the land for the access way.
The Commissioner at first instance characterised the access way as for the purpose of a road and found it was therefore permissible under the BLEP. That characterisation was challenged by the Council on appeal. If the access way was characterised as for the purpose of a seniors housing development, it would have been prohibited under the BLEP, and not permissible under the SEPP as there was no site compatibility certificate in respect of the access way.
Characterisation of access way
On appeal, the Council argued that Dixon C had erred in two ways:
- Firstly, Dixon C had incorrectly characterised the access way by looking not to its purpose but rather to whether it fell within the definition of ‘road‘ under the BLEP (referencing the decision in Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400).
- Secondly, in characterising the access way as for the permissible purpose of a road, Dixon C had disregarded the fact that the use could also fall within the prohibited purpose of seniors housing.
Chief Justice Preston dismissed this ground of appeal. His Honour found that Dixon C had ‘correctly understood the characterisation task she was required to undertake’ as established in Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116 (Pet Carriers).
The approach required by Pet Carriers is first to consider whether the access way could be characterised for the nominate permissible purpose of a road. If so, it would be permissible irrespective of whether it could also be characterised as for the innominate purpose of seniors housing.
Given that the access way fell within the definition of ‘road‘ under the BLEP, Preston CJ held that it was correct to find that the access way was permissible as a result of the structure of the zoning table in the BLEP.
Prohibited development in the zone includes ‘any other development not specified in item 2 or 3′. One of the developments specified in item 3 as being permissible with consent is ‘roads’. Therefore as the access way could be characterised as a road, it could not fall within the category of prohibited development of ‘any other development not specified in item 2 or 3′.
On this basis, the fact that the access way could also be characterised as a seniors housing development was legally irrelevant.
Preston CJ also found that Dixon C had not disregarded the purpose of the access way.
Further, Preston CJ found that Dixon C had not erred in likening the facts to those in Argyropolous v Canterbury Municipal Council (1988) 66 LGERA 203 (Argyropoulos), where the use of an access handle of a battle axe block was characterised as being a use for a road rather than for the light industrial use of the remainder of the battle axe block to which it provided access.
The Council had relied on the decision of Craig J in Site Plus Pty Limited v Wollongong City Council  NSWLEC 125 (Site Plus) in which an access way to service a resource recovery facility was characterised as being for the purpose of the resource recovery facility. In that case, Craig J cast doubt on the correctness of the decision in Argyropoulos. See our blog here regarding Site Plus.
Preston CJ did not comment on the decision in Site Plus, although as noted in our earlier blog, the zoning table in that case was structured differently.
This case reinforces the importance of the approach taken in Pet Carriers to characterisation based on the structure of the zoning table.
We have previously blogged on the approach to be taken in characterising development (see here).
A copy of this judgment is available here.
If you would like to discuss this article, please leave a comment or contact Megan Hawley on 8235 9703 or Brigitte Elvy on 8235 9707.