In GrainCorp Operations Ltd v. Liverpool Plains
Shire Council  NSWCA 171, the New South Wales Court of
Appeal overturned a decision of the Land and Environment Court in
relation to the proper characterisation of workforce accommodation
for fly-in-fly-out workers.
The development application was made on the basis that the
proposed use was an innominate (undefined), which was permissible
in the General Agriculture zone of the Local Environment Plan. The
Court of Appeal held that the proposed use constituted a
'residential building' and was therefore prohibited
The development application was made by The Mac Services Group
for a 1,500 occupant workforce accommodation facility for fly-in,
fly-out mine workers.
The approval of the application was appealed to Land and
Environment Court by an adjoining owner, GrainCorp. The primary
issue in dispute in the appeal was whether the proposed development
constituted a 'residential building' which was prohibited
in the relevant zone or an innominate use, which was permissible in
the relevant zone. The Court at first instance held that the term
'residential building', which was not defined in the Local
Environment Plan, should be given its ordinary meaning which
implied an element of permanence, residence for a considerable
period of time or having the character of a person's usual
abode. The court held that the proposed workforce accommodation did
not exhibit the requisite degree of permanence.
The Court of Appeal overturned the decision of the Land and
Environment Court, finding that the planning purpose of the
proposed facility was to accommodate the residential needs of the
mine workers and that to the extent 'residential building'
connoted a degree of permanence, the proposed facility did fulfil
such a purpose for the mine workers.
In reaching this conclusion, the Court:
held that a person could have more than one residence;
found it significant that a relatively stable workforce would
be returning to the facility (if not the same room) while employed
at the mine; and
held that the whole of the facility met the residential needs
of its guests (even if individual rooms did not contain the full
compliment of ordinary residential facilities).
This decision will have the effect that workforce accommodation
is more likely to be treated as a residential use under planning
instruments which do not specifically define this type of
accommodation. Residential uses are often prohibited or 'not
preferred' uses on rural zoned land likely to be in close
proximity to mines. As a consequence, this decision may:
direct workforce accommodation projects to existing townships
rather than to rural land close to the associated mine; or
prompt those local governments in mining areas which have not
already done so to amend their planning instruments to specifically
address workforce accommodation.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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