In GrainCorp Operations Ltd v. Liverpool Plains Shire Council [2013] 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 development.

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.