Posted on November 15, 2011 by Megan Hawley

Conflicting objectives and overlapping purposes – A recent case looks at permissibility under Local Environment Plans

In a recent decision – Abret Pty Ltd vWingecarribee Shire Council [2011] NSWCA 107 – the News South Wales Court of Appeal  has considered the role of objectives in local environment plans as well as how to determine the permissibility of developments with multiple and overlapping purposes.

This appeal concerned the decision of Wingecarribee Shire Council (‘Council’) to refuse development consent for a seniors housing development on land at Moss Vale located within the 1(a)(Rural A) Zone (‘1(a) zone’) under the Wingecarribee Local Environmental Plan 1989 (‘LEP’).  This LEP has now been superseded by the Wingecarribee Local Environmental Plan 2010.

The facts of the case were:

• The proposed development comprised of 138 self contained dwellings configured within a mix of 33 residential flat buildings and 27 individual dwelling houses.
• Under the LEP, residential flat buildings were prohibited in the 1(a)(Rural A) Zone.
• ‘Seniors housing’ was separately defined in the LEP, but was not included within the list of prohibited uses in the relevant zone.
• The LEP provided that in the 1(a) zone, a use which is not expressly identified as either prohibited or permissible without consent could be undertaken with development consent .
• The State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 did not apply to the proposed development.

In respect of the role of objectives in planning instruments, the Court of Appeal stated that objectives are not provisions controlling development but merely establish a framework in which the LEP operates.  They are, however, relevant when determining the proper construction of provisions in the LEP because they reveal the intended operation and effect of the LEP as a whole.

The objectives cannot influence whether or not a development is permissible. Because the judge in the Land & Environment Court had relied on one objective when determining the permissibility of the development, and given it precedence over other objectives, the Court of Appeal considered that the judge had erroneously engaged in a merits review process.

In respect of the proper characterisation of the development, the Court of Appeal found that whilst the development fell within the definition of seniors housing in the LEP, this did not prevent the development also being characterised as  residential flat buildings, and dwelling houses.

The Court of Appeal found that even if there is a predominant use the controls for all relevant uses must be considered.

The fact that the proposed development could also be properly be characterised as containing residential flat buildings could not be ignored by assigning a predominant use of seniors housing.  As residential flat buildings were expressly prohibited in the rural 1(a) zone the Court found the entire development was prohibited.

In Summary, this case provides a reminder that zone objectives should act as a guide to the interpretation of provisions in a Local Environment Plan and not treated as steadfast rules determining permissibility. However, it is noted that in all cases it is necessary to characterise the use of a proposal by reference to the purpose of development.  If this process reveals multiple purposes then the controls for all purposes should be considered regardless of whether one purpose is considered to be predominant.