If commercial premises are prohibited in a zone, a use for “creative purposes” may be otherwise permissible.

We explore the Court’s reasoning in Solid Gold Custodians Pty Ltd ATF SGH Property Trust v Inner West Council [2024] NSWLEC 1835 (Solid Gold) which examined whether a hair and beauty salon was permitted within an industrial zone.

Key points

1. Whether a commercial premises is used for a “creative purpose” depends on fact and degree.
2. A commercial premises may be used for “creative purposes” if it:
   1. involves the deploy of “skilful design”;
   2. has a diversity of designs; and
   3. provides a means for creative self-expression.

What uses are for “creative purposes”? 

In Solid Gold, a hair and beauty salon was proposed within an existing building, located in an E4 General Industrial zone under the Inner West Local Environmental Plan 2022 (IWLEP).  

Council refused the application on the basis that commercial premises are a prohibited use in the E4 General Industrial zone and a hair and beauty salon is not a use for “creative purposes” which, if it was, would permit the Council to approve the application under cl 6.21 of the IWLEP. 

While “creative purposes” is not defined in the IWLEP, cl 6.21 provides the following non-exhaustive list of premises used for creative purposes which are otherwise permitted in the E4 General Industrial zone: 

• media
• advertising
• fine arts and craft
• design
• film and television
• music 
• publishing
• performing arts
• cultural heritage institutions 

Hairdressing and beauty salons are not included in the list. 

Commissioner Gray reasoned that the examples in cl 6.21 form a ‘type’ of permissible premises, and whether a premises falls within this type is a question of fact and degree (see the decision at [62]). 

The Court found that a hair and beauty salon is a use for “creative purposes” – it is a creative process with creative ends. The Comissioner's reasoning is as follows: 

• Hairdressing, which involves skilful design of the hair to achieve a style, is “design”: [64]. 
• Creativity is used in the design process to achieve a particular style both respect to hair and beauty therapy services: [69]. As evidenced by history, a variety of design techniques have been used to achieve different hair styles and makeup effects: [68]-[71]. 
• Hair and make-up provide a means of self-expression: [73]. Due to the variety of styles, a person’s chosen style reflects their creative expression. 

The Court therefore granted consent for the hair and beauty salon. 

Implications  

The direct implication of this decision is that hair and beauty salons are recognised as permissible in the E4 General Industrial zone under the IWLEP, by the "creative purposes" exception provided in cl 6.21.

Other similar ‘types’ of business premisses may also be permissible under the “creative purposes” exception, provided it can be demonstrated that they fit the ‘type’ of activity listed in cl 6.21. This can be achieved by likening the type of premises proposed to the list in cl 6.21, such as ‘design’, and evidencing the creative purpose behind the premises. Ultimately, whether or not a commercial premises falls within this type will depend on fact and degree.