GrainCorp Operations Ltd v Liverpool Plains Shire Council & anor [2013] NSWCA 171

Operators of mining camps and providers of temporary workers accommodation need to be aware of a recent decision of the NSW Court of Appeal which declared invalid a planning consent approving a new accommodation village because it was considered a "residential use" and was therefore granted in breach of a local planning instrument. Partner, Andrew Price and Lawyer, Kate Angus take a look at the decision and its impact.

In GrainCorp Operations Ltd v Liverpool Plains Shire Council & anor, MAC Services Group (MAC) NSWCA 171 applied for and obtained the consent required under NSW planning legislation for the development of a new workers accommodation village servicing the needs of resources companies on an area in north western NSW.

GrainCorp Operations sought to restrain the development alleging the consent was granted in breach of the local planning instrument. In NSW, areas of land are divided into permitted land uses (or zonings) which are controlled by environmental plans. These environmental plans are legislative instruments created under the planning legislation either at a state or local level. In this case the relevant land was zoned "General Agricultural" which specifically prohibited the development of residential buildings.

GrainCorp argued the workers accommodation village was a "residential building" and therefore was prohibited.

In deciding the village was a residential building the Court of Appeal said that when attempting to characterise the true purpose of a development, the purpose needs to be determined objectively from the nature of the facility to be provided, not how individual users might consider it. It was sufficient in the opinion of the Court of Appeal that the facility was used as an abode or for habitation on an ongoing basis for the working life of the relevant mines in the area. They said it mattered not that different occupants would occupy different rooms at different times with no permanence as to individual accommodation or room allocation.

MAC had also sought to argue that the purpose of the facility was akin to that of a motel (which would have been permitted under the LEP) but was not successful because the facility was not open to all members of the public, something which the Court of Appeal held was an essential characteristic of a motel.

Companies providing accommodation villages or the like may find it desirable to associate their planning consent applications with planning consents required for major resource projects. The NSW State Environmental Planning Policy for Mining Petroleum and Extractive Industries 2007 provides that an accommodation facility is only ancillary to the main development (being the development of the resource project), as such it is possible for that ancillary use to be approved even if it is over land where that use is otherwise prohibited. In NSW at least, absent a significant alteration to relevant planning instruments, operators will need to be particularly careful of the zoning restrictions which could enable those seeking to restrict mining activities to raise legal challenges to any such development.