Posted on January 14, 2013 by Frances Tse 3

Draft DoPI Circular on characterisation of development

The Department of Planning and Infrastructure recently published for public consultation a draft planning circular on how to characterise development. Whilst the draft circular provides some guidance on matters which must be considered when characterising development,  readers should take care in relying on the draft circular, as it contains some commentary that is inconsistent with principles established by the relevant caselaw.

It is noted that the draft circular was on exhibition until 14 November 2012, but has not yet been finalised.

Development must be for a purpose

The draft circular reflects the principle that a use of land must be for a purpose (see Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400).  In Chamwell, all elements of a proposed development were held to be for the purpose of a supermarket (including car parking areas, driveways and a landscaped forecourt) on the basis that they all served the  purpose of the supermarket.

This is  an accurate reflection of the law.

However, the draft circular provides no guidance on how to determine the purpose of a development, where the facts may be less clear than in Chamwell.

The case law is to the effect that in identifying the purpose of a development, the task needs to be undertaken in a commonsense and practical way and at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on (see Chamwell).

The circular also states that the ‘dominant purpose’ of the development must be identified. The use of the term ‘dominant purpose’ is misleading, unless in the circumstances two purposes can be seen to be served by the same land use, in which case the issue of which is dominant will arise. Chamwell itself makes clear that a distinction must be drawn between the nature of different components of a land use, and the purpose. Uses of different natures can still be seen to serve the same purpose.

Using the supermarket example from Chamwell, there was only one purpose identified for all of the components of the development, which included roads and landscaped areas. Whilst those components had different natures, they were all for the one purpose being the supermarket. There was no issue of the supermarket purpose being the dominant purpose -it was the only purpose.

The draft circular does, however, go on to deal with situations where more than one purpose of the development is identified.

Ancillary use and ancillary purpose

The draft circular refers to ancillary uses, which it defines as a use which is subservient to or subordinate to a dominant purpose, and which can therefore be ignored for characterisation purposes.

In Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157, the Court of Appeal held that where premises are being used for more than one purpose and one purpose  is subordinate to the other, it is legitimate to disregard the subordinate purpose and treat the premises as being used for the dominant purpose. The draft circular reflects this.

However, in Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404), the Court of Appeal qualified what was said in Foodbarn, and held that the fact that a land use is ancillary to another land use does not automatically preclude the ancillary land use from also being an independent use of the land. If it is an independent use of the land, that use is relevant for characterisation purposes, and if that use is prohibited, the entire development will be prohibited.

The draft circular does not make this clear, and suggests that land uses are either ancillary, or independent, and cannot be both.

By way of example, in Baulkham Hills v O’Donnell, Meagher JA said that if a book publisher opens a sales room at its publishing house, the selling of books would be ancillary to the publishing use, but it would also be an independent use.

The draft circular suggests that when determining whether a component of a development is ancillary or independent, consideration should be given to what area of land is used for the different components as of the development.  This is inconsistent with the caselaw which states that an ancillary use may be more than a minor use and whether a use is ancillary or not is not capable of being reduced to a mathematical formula (see Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218 cited in Bardsley-Smith & Anor v Penrith City Council & Others [2012] NSWLEC 79). It always involves questions of fact and degree.

Nominate and innominate uses

The draft circular does not give guidance on how to deal with innominate uses. This is an important part of the task of determining whether a development is permissible or not.

An innominate use is one which is not specifically referred to in a land use table.

The general rule is that if a particular land use is a type of another land use (for example,  extractive industry is a type of industry), then the permissibility of the species (extractive industry) would depend on the permissibility of the genus (industry), unless they are separately set out in the land use table.

This is reflected in clause 2.3(3)(b) of the Standard Instrument – Principal Local Environmental Plan which provides that in a land use table a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone.

For example, a land use table may be structured such that development consent is required for any development not specifically listed as prohibited or permitted without consent. If extractive industry is not specifically prohibited or permitted without consent, but industry is prohibited, then extractive industry would also be prohibited. However, if extractive industry was specifically listed as permissible with consent, then it would be permissible notwithstanding that industry is prohibited.

Councils should be careful when using the information in the draft circular. Whilst it provides an introduction into the process for characterising development, the draft circular does not reflect the full extent of the case law on characterisation, is misleading in some respects, and therefore should not be relied on.

If the manner in which a council characterised a particular development came to be considered by the Court, the Court would be bound by the decided cases, and the draft circular would not be relevant. Reliance on the draft circular, in the absence of consideration of the applicable case law, could lead councils and other consent authorities into legal error.