Characterisation of development

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12 April 2013

On 21 February 2013, the Department of Planning and Infrastructure (Department) released a planning circular (PS 13-001) titled “How to characterise development” (Circular). 

The purpose of the Circular is to provide assistance in determining whether a particular development is permitted on land in a specific zone under a Standard Instrument Local Environmental Plan (Standard LEP). A link to the Circular is here.

Introduction

The definitions in the Dictionary of the Standard LEP include terms that describe land uses which are listed in the Land Use Table of the Standard LEP (Land Use Terms).  Direction 5 of the Land Use Table exclusively lists all the Land Use Terms that may be included in the Land Use Table.   

The Land Use Table specifies for each zone:

  1. development which may be carried out without consent;
  2. development that may be carried out only with development consent; and
  3. development that is prohibited.

In order to determine which category a development falls into, consideration must be given to the particular purpose for which the development is being carried out.  The Circular explains the terms ‘development for a particular purpose’, ‘ancillary uses’ and ‘principal purpose’.

Development for a particular purpose

The dominant purpose of a development is the reason for which the development is undertaken or the end to which the development serves. 

To determine whether a development is for a particular purpose, one must enquire how that purpose will be achieved.  For example, if a development is for the purpose of a shop such as a supermarket, the development could involve the construction of:

  1. the building in which the supermarket and its associated stock room and loading dock is located; 
  2. a car park and a driveway for customer access;
  3. a landscaped supermarket forecourt area that provides passive recreation and access for customers.

The development referred to in (b) and (c) above may be regarded as additional components that enable the use of the land as a supermarket and as being for the one dominant purpose of the supermarket due to the integral relationship between the components and the shop.

Ancillary use

An ancillary use is an important concept where a development involves multiple components on the same land.  If the use of a component is subordinate or subservient to the dominant purpose of the development, then it is an ancillary use

A component is likely to be ancillary where:

  • the component will serve the dominant purpose of the development;
  • the amount of land to be used for the component is relatively small compared to the amount of land proposed to be used for other purposes;
  • the component is temporary; and more likely to be ancillary;
  • components of a development are related, although this is not necessarily determinative of such a relationship.

Physical proximity of the component to the rest of the development is likely to be evidence of an ancillary relationship, although again not necessarily determinative.

However, the characterisation of a use as ancillary does not permit a use that would otherwise be a prohibited use.  For example, if a development application is made for a warehouse and distribution centre (permissible under the Standard LEP), and a retail component (prohibited under the Standard LEP): 

  • development consent could only be granted if the land is rezoned to permit ‘retail premises’; and
  • the retail component cannot be characterised as an ancillary to the dominant purpose of the development because the definition of the term ‘warehouse and distribution centre’ in the Standard LEP expressly excludes any retail sales from being made at the premises.

If, on the other hand, the definition of the term ‘warehouse and distribution centre’ in a local environmental plan does not exclude the retail component, development consent may be granted if the retail component can be characterised as ancillary to the dominant purpose of the development.  

Characterisation of mixed use

If a component of a development serves a purpose independently of the dominant purpose, then the development has its own purpose and is a mixed use development. 

A component is likely to be independent if:

  • it goes beyond what is reasonably required in the circumstances for the development to implement the dominant purpose (regardless of whether it has ancillary qualities); and
  • it has a regular or ongoing use.

Implications

The information in the Circular provides some guidance to assist in the characterisation of the purpose of a development and whether or not particular components of that development are an ancillary or independent use.

However, the Department’s views set out in the Circular should be regarded as a guide only and will not influence a Court’s characterisation of a development.  Ultimately the permissible use of land and proper characterisation of a development will depend on the particular facts of the development and the terms of applicable environmental planning instruments.  This is a question of law on which legal advice should be sought.


The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.


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Contacts

Christine Covington

Partner. Sydney
+61 2 9210 6428

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