Planning and environment – Originating Application seeking declarations that a proposed plan of development to increase the size of one building on a heavily developed site was "generally in accordance" with a plan attached to a rezoning approval over the site under the superseded plan as "Special Facilities Zone (Architecture and Building Gallery...)" – whether site was developed in accordance with the rezoning approval – where development of site was substantially different from development proposed in plan associated with rezoning – whether the proposal involved any "pre-existing lawful use" as at 30 March 1998
Integrated Planning Act 1997 (repealed),
Sustainable Planning Act 2009
Facts: This was an application for a declaration about whether development in accordance with a proposal plan was "generally in accordance" with approved plans referred to in a rezoning approval.
The subject site was located on the Bruce Highway at Forest Glen.
Under a superseded 1985 town planning scheme, the site had been zoned Rural B. On 10 May 1996 it was rezoned by gazettal to Special Facilities (Architecture and Building Gallery and Access to Service Station). Development of the site was to be generally in accordance with Plan No. 399.
Plan No. 399 had provided for a proposed hall with a gross floor area of 2629m2 situated at the northern end of the site, for the purpose of an "Architecture and Building Gallery". "Architecture and Building Gallery" was not a defined term in the 1985 planning scheme or the planning scheme in force at the time of the proceeding.
On 10 July 1998, Plan No. 399 was replaced with Plan No. 427. In Plan No. 427, the proposed building was described as a building products display centre with an area of 1410m2.
When the current planning scheme took effect in 2000, the site was included in the General Rural Lands Precinct Class.
The building products display centre provided for by Plan No. 427 was never built. Instead, as a result of applications made on 7 August 2003 and November 2005 and an order of the Court dated 11 March 2005, the display centre became a mini storage shed known as Mammoth Self Storage.
At the time of the proceeding, the site had been developed with storage sheds in the north-western corner, a mix of commercial and light industry activities and a number of vacant buildings scattered throughout the balance of the property.
Under the planning scheme in force at the time of the proceeding, the site was located partly within the General Rural Lands Precinct Class Business and partly within the Industry Precinct Class in Precinct No. 9 – Forest Glen in Planning Area No. 21 – Eudlo Creek Valley.
The plan which was the subject of the application proposed that an existing building (not shown in either Plan No. 399 or Plan No. 427) be expanded to 1417m2. The applicant submitted that the proposed plan was "generally in accordance" with Plan No. 427. Council opposed the declaration sought. The building had been constructed in 2005 and was currently occupied by a business called Better Blinds, which used the building for the assembly of blinds and a 16m2 display area.
In 2010/2011 Council had instituted enforcement proceedings against the applicant which resulted in a consent order pursuant to which the applicant accepted that a significant number of uses on the site were at that time unlawful.
The applicant sought to argue that the use carried out in the building to be extended under the proposal involved a pre-existing lawful use that survived the introduction of the Integrated Planning Act 1997 (IPA) and the Sustainable Planning Act 2009 (SPA).
Decision: The Court held, in dismissing the application, that:
- The applicant was regarding "use rights" as extending all over the site irrespective of where the use is carried out. It completely ignored the approved plans and the conditions of the rezoning approval that tied the rezoning to Plan No. 399 and required the development to be generally in accordance with that plan.
- The applicant seemed to argue that a Special Facilities Zone classification provided more latitude to the developer than a specific use classification under the 1985 scheme. That proposition must be rejected.
- The real problem for the applicant was that the subject building was not built until 2005, so even if such a use of the building on the site might have been compliant with the rezoning approval there was insufficient evidence to satisfy the Court of that. What was preserved by the IPA was an actual lawful use of premises as at 30 March 1998, not a right to use the premises in future.
- A comparison with the proposed plan and either Plan No. 399 or Plan No. 427 revealed a wholesale redraft of location, intensity and almost every feature on the approved plan, whichever was selected.
- The fact that the applicant had, at one time, conceded that a significant part of the use of the site was unlawful was enough to reveal the significant town planning consequences resulting from the department to such a significant extent from the original approved plans, whichever one was conceded.
- The application was dismissed.
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