Is the use permissible?
26The question of permissibility arises from the proposed access to Lot 2. The proposal provides for access from Five Islands Road over Lot 41 and 42 to Lot 2. While Lot 2 is not landlocked and has a street frontage to Jarvie Road, access to this street is not proposed. Access over Lot 41 is via an existing right of way, and access over Lot 42 (owned by the council) forms part of the lease of Lot 2 that the applicant proposes to enter into, if approval to the development application is granted.
27There was agreement that the proposed development is permissible, and that there was also agreement that the proposed development was a prohibited use on Lot 41 and 42 as it was not included in Schedule 2. The only reference in Schedule 2 being to Lot 2.
28Mr Tomasetti SC, for the applicant, submits that properly characterised, the only use of Lot 41 and 42 is as a road to the development site. This road currently exists and as no new development is proposed on Lot 41 and 42, a further development application in respect of these lots is not required. The use of Lot 41 and 42 as a road is a lawful and permissible use under LEP 2009.
29This submission is supported by the decision in Hillpalm v Tweed Shire Council [2002] NSWCA 332 at (12) where the question of what land an application relates to must be determined by an examination of the terms of the application. In this case, the application relates only to Lot 2.
30Further support comes from Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 2002, where a battleaxe handle of the lot in question was zoned residential and the remainder of the site was zoned industrial. It was held that a road was a permissible use in the residential zone, even though its sole purpose was to serve as access to an industrial use on the land in a different zone, and which use would have been prohibited in the residential zone.
31Mr Clay SC, for the second respondent, relies on the decision in Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400, where access was provided to a shopping complex and ancillary facilities on commercially zoned land over land zoned residential. In this case it was held that the access was part of the purpose of a shopping complex, and as such, prohibited in the residential zone.
32In considering the competing submissions, I agree with the conclusions of Mr Clay. The general approach to characterisation for planning purposes is best set out by Preston CJ in Chamwell , where his Honour includes the relevant cases and relevantly states, at 27 and 28:
27. In planning law, use must be for a purpose: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535, and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGRA 173 at 188. The purpose is the end to which the land is seen to serve. It describes the character which is imparted to that land at which the use is pursued: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534.
28. In determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary: Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 at 499-500. The use of land involves no more than the 'physical acts by which the land is made to serve some purpose' at 508.
33His Honour further relevantly states at 33-36 and 45:
33. The fact that the nature of the use is of different components or parts of the development may vary is not necessarily of importance. Obviously the only part of the proposed development that will have a use of the specific nature of supermarket is that part of the building which incorporates the supermarket. The nature of the uses of the other parts of the building, such as the car park, driveways, access ways, and landscaped forecourt is different.
34. However, the nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose: see Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535 and Warringah Shire Council v Raffles (1978) 38 LGRA 306 at 308.
35. In this case, the use of the car park, driveways, access ways and landscaped forecourt are each designed to serve the end of enabling the supermarket to be carried on. That is their purpose, and that purpose imparts on the land on which those uses are pursued the character of the shop, including the supermarket. The end to which the parts of the land in Lot D is to serve is not roads.
36. The characterisation of the purpose of a use of land should 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 New South Wales v Sydney City Council (1987) 61 LGRA 305 at 310.
45. The characterisation of the purpose must also be done in a common sense and practical way.
34The general thrust of the findings in Chamwell is that the characterisation must focus on the purpose of the land. This must be done at a level of generality and in a common sense and practical way that is sufficient to include the individual uses that make up the purpose. While there may be a number of different uses, these different uses may still serve the same purpose.
35In this case, I have little trouble in concluding that the purpose is for a resource recovery facility. The nature of the access over Lot 41 and 42 is to serve Lot 2 for the purposes of a resource recovery facility. The use of Lots 41 and 42 is to provide access to the resource recovery facility. The end to which part Lot 41 and part Lot 42 is to be put is not a road. In the words used in Chamwell (at 38), the resource recovery facility "constitutes one integrated and indivisible business or activity", and the separate characterisation of the access as a road is not appropriate in these circumstances. It follows that, as the access is part of the purpose of a resource recovery facility and this use is prohibited on Lots 41 and 42 (as it is not included in Sch 2), there is no permissible access to Lot 2, and as such, development consent must be refused because of the unsuitability of the site for the purposes of a resource recovery facility.
36I am satisfied that the proposed development and the use of Lots 41 and 42 has similar characteristics to that in Chamwell and that, for the same reasons identified in par 49, Argyropoulos can be distinguished.
37I also note that a future development application would be required for the access over Lots 41 and 42, contrary to the submission of Mr Tomasetti, because of the agreed evidence of the traffic engineers requiring the upgrade of the existing access to provide passing bays for trucks travelling in opposite directions along the access way.