Posted on August 29, 2014 by Megan Hawley
When is a road not a road?
Councils are often confronted with the issue of a private access road to a proposed development site being zoned differently to the site itself, and the question of whether the access road is to be characterised as a road or takes on the character of the development.
In Site Plus Pty Ltd v Wollongong City Council  NSWLEC 125, the Land & Environment Court considered whether an access across land (Lots 41 and 42) to a site (Lot 2) to be used for a resource recovery facility, was properly characterised as a road or as being for the purpose of a resource recovery facility.
Council argued that based on the characterisation test in Chamwell v Strathfield Municipal Council  NSWLEC 4, the proper characterisation of the access road was as a resource recovery facility, because the ‘purpose’ of the access was the development of Lot 2 for a resource recovery facility.
The Commissioner and Craig J (on appeal) agreed.
In his judgment, Craig J referred to the case of Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202 which involved similar facts, and in which Cripps J concluded that the proper characterisation of the road was as a road, not for the industrial use it served.
There were differences in the construction of the zoning tables in the relevant LEPs in Argyropoulos and this case. However, Craig J saw fit to comment that it was doubtful that the correct test for categorising development that involves two or more uses is articulated in Argyropoulos. Notably, Argyropoulos focusses not on the ‘purpose’ of the two uses, but on the function of each use.
It is clear from cases such as Chamwell, that it is the purpose of each use which must be considered.
Furthermore, LEPs based on the Standard Instrument now include clause 2.3 which provides that in the land use table in such an LEP:
‘a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing’.
Craig J did note that a public road which provides access to a development will remain a road.
However, in respect of private access roads the road will generally take on the character of the development it services.