Land and Environment Court clarifies meaning of “residential” buildings

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19 July 2012

In the GrainCorp Operations Limited v Liverpool Plains Shire Council [2012] NSWLEC 143 decision, the Land and Environment Court (Court) found that a proposed workforce accommodation development designed primarily for fly-in, fly-out (FIFO) (or similar) workers lacked the element of permanency required to be characterised as “residential buildings”.

Ultimately, the Court classified the development as an “innominate use”, permissible with consent within the zone, and in doing so held that the characterisation of use was a jurisdictional fact which went to the question of the power of the consent authority to determine the development application.

The decision helps clarify the meaning of “residential” use.

Background

On 14 July 2011, the second respondent in the proceedings, The MAC Services Group Pty Ltd (The MAC) submitted a development application to Liverpool Plains Shire Council (Council) for a “Workforce Accommodation Facility for 1,500 occupants” (Proposed Development). In addition to rooms designed to accommodate occupants, the Proposed Development was to feature various communal facilities such as:

  • a commercial kitchen and restaurant;
  • ‘crib’ room for the self-preparation and consumption of meals; and
  • indoor and outdoor recreation facilities.

At all times the management of the site reserved the right to re-allocate rooms to occupants on a needs basis and no occupant was permitted to stay longer than a pre-determined length of time (according to the nature of the FIFO conditions for each guest).

The Proposed Development site was situated near the small town of Werris Creek on land zoned “1(b) General Agricultural” under the applicable Parry Local Environmental Plan 1987 (Parry LEP). Relevantly, “residential buildings (other than dwelling-houses and units for aged persons)” were prohibited development within the zone.  Unfortunately, “residential buildings” was not defined in the Parry LEP.

On 17 November 2011, the third respondent, the Northern Joint Regional Planning Panel (NJRPP), exercising the functions of Council, granted consent to the application for the Proposed Development. The NJRPP’s decision was based on the classification of the Proposed Development as an “innominate use” and not as “residential buildings”.

Further, a condition of consent required The MAC to provide a detailed Infrastructure Servicing Strategy (Strategy), which was to be endorsed by Council prior to the consent becoming operational.

GrainCorp Operations Limited (GrainCorp) operates a facility adjacent to the Proposed Development.  It appealed against the grant of development consent on two bases, namely that the:

  1. Proposed Development was properly characterised as “residential buildings”; and
  2. NJRPP deferred consideration of a fundamental matter, being the aspects of the Proposed Development covered by the Strategy, which were required to be determined before granting consent.

Submissions on the classification of the Development

GrainCorp contended that the Proposed Development was properly characterised as “residential buildings” on the basis that:

  • the objectives of the zone intended the preservation of a rural character;
  • a purposive construction of the Parry LEP could not lead to the development being permissible within the zone;
  • the development had a residential purpose; and
  • persons may have more than one place of residence and that guests within the Proposed Development would treat it as a place of residence.

The MAC contended that the Proposed Development did not fall under the term “residential buildings” and was properly characterised as an innominate use.

Submissions on the deferred consideration of a fundamental matter

GrainCorp submitted that the Strategy, which was to cover the details of the provision of gas, electricity and telecommunications services (Services) for the Proposed Development, was a fundamental matter which was not considered by the NJRPP when it granted consent. Although not covered by GrainCorp’s submissions, the Court inferred GrainCorp’s submission concerned the NJRPP’s failure to take into account the provisions of section 79C of the Environmental Protection and Assessment Act 1979 (EPA Act) concerning the likely impacts of and the suitability of the site for the development.

Decision

The Court confirmed the question of the proper characterisation of use as a jurisdictional fact; being a fact that must exist as a condition precedent to the proper exercise of a consent authority’s power.

The Court analysed case law on the definitions of “residential accommodation”, “residential building”, “residential flat building”, “domicile” and “flats”, and concluded that there must be “an element of permanence or residence for a considerable time, or having the character of a person’s settled or usual abode” in order to constitute “residential buildings”; relying particularly on North Sydney Municipal Council v Sydney Serviced Apartments Pty ltd (1990) 21 NSWLR 532 and Derring Lane Pty ltd v Port Phillip City Council (No 2) (1999) 108 LGERA 129.

The Proposed Development did not have this degree of permanency as it was intended to accommodate a transient population; it had communal facilities, a retail area, manager’s office and a lack of facilities in individual units; and management had control over which units were allotted to occupants at all times. The Court concluded that the occupants would not regard the facility as their settled or usual abode, or the place where they lived.

The Proposed Development was, therefore, an innominate use permitted with consent under the 1(b) General Agricultural zone.

In response to GrainCorp’s submission that the consideration of a fundamental matter was deferred, the Court held that a series of Infrastructure Servicing Strategies, accompanying the development application for the Proposed Development, sufficiently described various options for the provision of Services which were either currently available or could be made available. It found that the provision of Services was properly considered by the Council and NJRPP and that a deferred commencement condition appropriately dealt with this aspect of the Proposed Development.

The imposition of this deferred commencement condition was not found to result in a development which could be significantly different from the development for which the application was made. The Court said it was appropriate to impose a condition requiring that necessary approvals be obtained from another authority.

Implications

The characterisation of the Proposed Development as an innominate use, and not as residential buildings, has important ramifications for mining activities throughout New South Wales, particularly in the coal-rich Sydney-Gunnedah Basin.

Not only does the Court’s decision provide greater certainty for the assessment of temporary workforce accommodation to support mining operations in this area but it clarifies the previous uncertainty in decisions of the Land and Environment Court as to the meaning of a “residential” use or building. 


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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