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Characterisation refers to the process of properly defining a use (or ‘development’) that is, or is intended to be, carried out.
The process of characterisation is critical in some cases, as the permissibility of a particular development can be affected by its characterisation. Local Environmental Plans (LEPs) are legally binding planning instruments that regulate land use within a particular local government area.
All land is zoned in order to control the permissible uses on particular land. The way land is zoned will determine how flexible land uses are. For example, in a residential zone, most residential uses are permissible, but industrial uses are usually not.
The dictionary contained within the LEP will include a long list of defined ‘land use terms’. These definitions are central to the characterisation process.
Dominant Purpose Test
The first step in characterising a development is determining what the ‘dominant purpose’ of the development is. The dominant purpose of a development is the end result that the development serves, or the reason that it is carried out.
For example, if one were to build a theatre, this would be a type of ‘entertainment facility’.
The development will naturally require certain things to be constructed as part of that development, including a car park, storage areas, driveways, ramps and passageways, as well as landscaping and staff areas. These additional components are integral to the proposed development and are all regarded as being for the one dominant purpose of a theatre. In that sense, they are ancillary (or subservient) to the dominant purpose.
Ancillary Use
If a use serves the dominant purpose of the development, even though it is capable of being independently defined as a stand-alone use (e.g. a car park), then it is considered to be ancillary.
Ancillary uses can potentially include uses that would ordinarily be prohibited in the zone. For example, if the theatre included a caretaker’s residence and residential development was prohibited in the zone, so long as the residential component was subservient to the dominant purpose of the theatre, it may be permissible as an ‘ancillary use’. However, if the definition of ‘theatre’ expressly excludes residential development of any kind, the residential ancillary use would not be permissible.
Characterisation will depend on the facts and circumstances in each case. The Department of Planning published a circular on 21 February 2013, as a guide on how to characterise development. Follow the link here to view the circular on the Department of Planning website.
It is important to remember that the circular is a guide only and should be considered as such. It will not have bearing in any court proceedings. The characterisation of development is a question of law and legal advice should be sought.
If you would like to know more about characterisation, you can contact us, or you may like to read through some of our related articles on LEPs and DCPs, or interpreting consents.
Lorri is a director of PDC Law. Lorri combines excellent technical expertise with a common-sense approach to best represent her clients. She is one of few Accredited Specialists in Commercial Litigation in the Illawarra and Shoalhaven. This accreditation is testament to Lorri’s expert knowledge and skill in dealing with commercial disputes. In 2019 Lorri was awarded Regional Lawyer of the Year by Women Lawyers Achievement Awards.
