UPDATE: This decision has been overturned by the Court of Appeal. See our case note here.
What has happened?
On 2 November 2017, the NSW Land and Environment Court handed down its decision in the following Class 4 proceedings: Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (No 2) [2017] NSWLEC 147.
One of the issues arising for determination by the Court was whether a certain private road was a "building" for the purposes of the Environmental Planning and Assessment Act 1979 (EP&A Act) such that a construction certificate was required to authorise its construction.
Findings by the Court
The Court held that the private road is a "building" for the purposes of the EP&A Act.
Section 4 of the EP&A Act states that a "building":
"... includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure or part of a manufactured home, moveable dwelling or associated structure."
Having regard to this definition, the Court held the relevant question was whether a road constituted a "structure".
The first step in the Court's analysis was to consider a decision by Talbot J in Bowyer v Manly Council (unreported, 1997) in which his Honour concluded, based on a "purposive" construction of the Roads Act 1993, that a road did not constitute a structure.
The Court held, however, that the decision in Bowyer v Manly Council was distinguished by the particular statutory context applicable under consideration in that case being the Roads Act 1993 which is confined in its operation to public roads.
The Court then considered the decision of Preston CJ in Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56 in which his Honour distilled the following 3 defining characteristics of "structures" distilled from the decision of Gillard J in O’Brien v Shire of Rosedale (1968) 22 LGRA 262:
"… the structure is something which is constructed, involving the notion of bringing together a number of distinct and separate physical components which, when constructed or brought together, form or make some other substantial object at a fixed site and having some utility value."
"… the mere fact that the new physical object so constructed rested by its own weight on the soil did not necessarily and of itself alter its character as a structure."
"… there must, however, be an intention on the part of the builder at the time of the erection that the new object brought into existence will remain permanently on its site on a permanent foundation …"
Measured against each of these criteria, the Court had no difficulty in concluding that the private road constituted a "structure" (and so a "building") for the purposes of the EP&A Act.
Implications
This case confirms that a private road, at least, is a "building" for the purposes of the EP&A Act the construction of which requires authorisation under a construction certificate.
The question of whether a public road, which had each of the 3 characteristics of a structure summarised by Preston CJ in the Royal Motor Yacht Club case, remains open but will likely rarely arise as public roads are usually permitted without consent.
Of course, these characteristics are not limited in their application to roads and can be applied to other potential structures.
Further information
For further information on this judgment and its potential implications for your development please contact Marcus Steele, Director, on (02) 8005-1411 or marcus.steele@steelelaw.com.au.