The NSW Court of Appeal has overturned decisions of the Joint Regional Planning Panel and the NSW Land and Environment Court and held that a development consent for the construction and operation of “workforce accommodation facility” was invalid. The Court held that the proposed development should be more properly characterised as a “residential building” which is prohibited under the relevant zoning rules.

With the increasingly use of “fly-in fly-out” (“FIFO”) accommodation for workers in the mining industry, this recent Court decision is a timely reminder that development applications need to properly characterise the proposed development to ensure it is not a prohibited development under the relevant Local Environmental Plan.

Background

In July 2011, the Mac Services Group (“MAC”) lodged a development application for a workforce accommodation facility for 1,500 occupants on the land (colloquially known as fly-in fly-out accommodation). Residential buildings (other than dwelling-houses and units for aged persons) are prohibited in the relevant zone under the Parry Local Environmental Plan.

The Northern Joint Regional Planning Panel approved the development application and GrainCorp Operations Ltd (“GrainCorp”) (an objector to the FIFO development) applied to the Land and Environment Court to have the development consent declared invalid and set aside. Whilst unsuccessful in the Land and Environment Court, the Court of Appeal has overturned the earlier decisions. The case in the Court of Appeal turned on whether the purpose of the proposed development should be properly characterised as a “residential building”.

The Court’s decision

MAC argued that the proposed development is intended to accommodate a “transient population” and does not have the necessary permanence to be described as a “residential building”. For that reason, MAC argued that the FIFO accommodation was not prohibited by the zoning. However, the Court accepted GrainCorp’s argument that the purpose of the proposed FIFO accommodation is to accommodate the residential needs of the mine workers and it is immaterial that workers may not occupy the same room each time they are rostered on and stay at the facility. The fact that workers under these FIFO arrangements would live elsewhere when they are not rostered on does not mean that the facility does not have a residential function.

As “residential buildings” were prohibited under the relevant zoning, the development consent granted by the Northern JRPP was declared invalid and of no effect.

What do you need to do?

Although the interpretation of zoning rules will ultimately be guided by the applicable Local Environmental Plan, including the objectives of the relevant zone, if you are seeking a development approval for similar FIFO accommodation, you need to check whether the relevant zoning rules permit residential buildings. In many cases, the rules will not permit it on rural land. More generally, this case shows that there is always scope for new and emerging uses and developments to fall within broad land use terms beyond what would traditionally be associated with those terms.