Key points

• Characterisation of uses must be done so as to endeavour to determine the appropriate nominated use in the relevant instrument that best describes the activities generally proposed to be undertaken.
• Whether or not a “service” is provided is not dependant on the collection of compensation for the provision of the service by a person; a service can be provided by automation.

Introduction

The proper characterisation of a use is critical to determining whether or not it is permissible or prohibited under the relevant planning instrument.  

A recent decision of Jancewicz v Wagga Wagga City Council [2023] NSWLEC 1695, serves as a reminder of this, where a use for which consent was sought as a permissible innominate use was ultimately found to be for a nominated prohibited purpose.

Background

The Applicant operated medical centre the use of which also benefited from an adjacent carpark which was also owned by the Applicant. The Applicant sought to increase the number of spaces and open the use of the additional spaces to the public for paid ticketed parking.

The medical centre made an application for a carpark as defined in the Wagga Wagga Local Environmental Plan 2010 (LEP). The Applicant invoked the provision in the zoning of the site which made permissible “Any other development not specified…” as prohibited or permissible without development consent. The defined use of carpark was not specified as permissible, with or without consent, nor was it specified as prohibited in the relevant zone. The Applicant argued the use sought was an innominate permissible use. 

The Council argued that the carpark was properly characterised as a “business premises”, a species of the genus of the use of “commercial premises” which was a nominated prohibited use in the LEP. 

The Council submitted that a carpark met the definition of a business premises that provided a service because it was to be “provided directly to members of the public on a regular basis”. 

A summary of authorities:

The Court provided a neat summary of the principle authorities on characterisation of uses at [21] relevantly as follows:

…in planning law, use must be for a purpose: Shire of Perth v O’Keefe (1964) 110 CLR 529 at 534-5; Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 (Chamwell) at [27] (Preston CJ). Furthermore, that the characterisation of the purpose of a use of land is to be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions and processes carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310 (McHugh JA); Chamwell at [36]. In approaching the question of characterisation of a use of land, what is required is the determination of the appropriate genus which best describes the activities in question: North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50 at 59E-F (Kirby P). The focus of this inquiry is whether the proposed development is within a nominate or innominate purpose: Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 (Pet Carriers) at [32].

Applying the authorities

The Applicant argued that the use of a carpark does not meet the ordinary definition of a “service” in the sense of being “an act of helpful activity” as accepted in Sevenex Pty Ltd v Blue Mountains City Council (2011) 183 LGERA [2011] NSWCA at [32]-[33] (Sevenex)

The Court found that the provision of a car space for the length of time desired by an individual is “an act of helpful activity” by the operator, using the ordinary definition of “service” in Sevenex. 

It is immaterial whether the service was automated or staffed by an individual since this can have no bearing on whether something is a “service” for planning purposes. The Court made the following observation at [40]:

The fact that there may not be any person who will be present at the ticket machine and physically operating the boom gate of this particular car park must be immaterial. Whether a service is facilitated directly by an individual or alternatively by automated equipment cannot be relevant for planning purposes; compare for example, an automatic car wash and one where the car washing is done by hand. Both are places where the service of car washing is being provided.

Since the provision of a car space did meet the definition of a business service, it was a prohibited use under the LEP, so the Court was obligated to refuse development consent finding at [43]:

Accepting that the characterisation of the proposed development is to be answered by reference to the particular terms of the environmental planning instrument and the Land Use Table for the zone in which the development is proposed to be carried out: Pet Carriers at [32] (Preston CJ), it follows - for the reasons articulated by the Council as summarised above that the development application be refused development consent as the proposed “business use” is prohibited in the R3 Medium Density Residential zone.

Key takeaways 

When characterising use, it is important to consider the general, rather than specific purpose of the use. 

While car parking was not excluded under the relevant LEP, a use does not need to be named in order to be captured by statutory provisions. 

When expanding access of an existing use to the broader public, consider whether this might change the primary use of the premises to a business service. If business services are prohibited under relevant statutory instruments, then planning approval may be refused even where the change in use appears to be incidental.