What to make of land uses described in the General Section or Council-Wide provisions of a Development Plan versus those in a non-complying list? Important guidance from the Full Court - Bediavas v Development Assessment Commission [2017] SASCFC 124

LG Leader November 2017

This recent decision from the Full Court provides important guidance on how to determine the nature of a land use for classification and categorisation purposes.

This decision concerned a proposal for a development described by the applicant as ‘workers accommodation and associated facilities’. The proposal included the conversion of an existing dwelling to accommodate up to 9 guests, caravan and camping facilities for additional guests and a new ablution block. The precise number of ‘caravan and camping facilities’ was not specified by the applicant, but was expected to be substantial.

The subject land was contained in a Zone where ‘caravan park’, ‘camping ground’ and ‘tourist accommodation’ were each listed as non-complying forms of development. The General Section of the relevant Development Plan contained a section entitled ‘Short-Term Workers Accommodation’. The objective of the section called for “a range of appropriately located accommodation types supplied for seasonal and short-term workers”.

The DAC determined that the proposal was a non-complying form of development. The applicant challenged this decision in the ERD Court and was unsuccessful. The applicant appealed the ERD Court’s decision to the Full Court. In his leading judgment, His Honour Chief Justice Kourakis held that even though the proposal might be classified as ‘Short-Term Workers Accommodation’, this does not prevent it from also being described as a caravan park or camping ground. The Court held that the nature of the development had to be determined objectively, having regard to the form and substance of the proposal. The fact that the occupants of the proposed development were to be workers did not render the proposal something other than a caravan park or camping ground for classification purposes, though it was relevant to the merits of the proposal.

The decision of the ERD Court was confirmed and the appeal dismissed.

This decision reaffirms the correct approach to determining the nature of a development for classification and categorisation purposes; if, when viewed objectively, a development falls within a form of development designated as complying, non-complying or to a particular public notice category, it must be determined as such. The intentions of the applicant are of little consequence to this decision, though they are relevant to the merits assessment of the relevant application.