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Norman Waterhouse

E & P – The role of Schedule 1 definitions in the Development Regulations 2008

Background

The Earl of Leicester Hotel (the Earl) had applied to Consumer and Business Services to extend its liquor licence to include an outdoor area between the hotel building and the land’s northern boundary (Northern Area). It was proposed to place tables and chairs in this Area and to use it for the consumption of food and drinks.

The Council lodged a notice of intervention in this liquor licensing application. Subsequently, it refused a development application lodged by Intro Design, on behalf of the Earl (on a without prejudice basis) for a change in the use of the Northern Area from vacant land to hotel.

This refusal was appealed to the ERD Court. The parties requested the Court consider the preliminary question of whether the use of the Northern Area, as proposed in the liquor licensing application, in fact involved an act of “development” (in the nature of a change in land use) requiring development approval from the Council.

Change of land use?

The Earl’s position was that the proposed use of the Northern Area was not an act of “development”, as the whole of the land enjoyed historical existing use rights as a hotel, such that serving food and drinks in the Northern Area would simply continue that existing use.

In support of its case, the Earl put evidence before the Court establishing the Northern Area’s previous associations with the hotel building, including that it was formerly covered by a verandah which had since been demolished, and that it provided access to the previously used front door of the hotel building. The Earl also submitted that no evidence had been put against it to suggest that the Northern Area had previously been used for any other (non-hotel) use.

The Council’s case in response was that the existing hotel use did not extend across the whole of the land. Rather, it argued that the extent of the existing use rights should be determined by reference to the definition of “hotel” in Schedule 1 of the Development Regulations 2008 (Regulations). This defines a “hotel” as premises licensed under the Liquor Licensing Act 1985 (which we can read as the 1997 Act). The Council’s position was that the land’s existing use rights should be constrained by this Schedule 1 definition, and limited to the licensed areas within the land.

On this basis, as the Northern Area was unlicensed, the Council contended that it’s existing use was as vacant or undefined land, and that the proposal to serve food and drinks within it constituted a change of use to hotel.

Court’s decision

In finding in favour of the Earl, the Court held that the Northern Area did enjoy existing use rights as a hotel, and that no “development” was therefore proposed in the application.

In reaching this decision, His Honour held that the question of whether development has, or is proposed to, occur must be considered without reference to the Schedule 1 definitions.

This is because the role and function of the Schedule 1 definitions (pursuant to Regulation 3(1) of the Regulations) is to aid the interpretation of the Regulations and Development Plans. Accordingly, until it has been determined that “development” has occurred (and thus the Development Act 1993, Regulations and Development Plans enlivened), these Schedule 1 definitions have no work to do.

The Court held that it was incorrect to first consider the Schedule 1 definition of “hotel” when considering what the existing use rights of the Northern Area were, and whether the proposed use of this Area constituted a change in use. We note that this position is consistent with the earlier Supreme Court decision of Adelaide City Council v Frankham [2002] SASC 162.

The existing use rights of the Northern Area were to be assessed by reference to the acts and activities which had historically occurred on the land (being a hotel business), and their essential character (being the provision of food and drink to members of the public). On this basis the application, proposing the provision of food and drink to the public, did not constitute a change in use of the Northern Area.

However, we note that the Court did place weight, when considering the acts and activities which had historically occurred on the land, on the connections between the previous use(s) of the Northern Area and the hotel building identified by the Earl. It is unclear whether the Court would have reached the same decision had this area not had previous associations with the hotel building, and it may not always be the case that an expansion of the licensed area of a hotel will not constitute “development”.

Take away

This decision provides a timely reminder that the Schedule 1 definitions are limited in their operation, and should not be used by a relevant authority at first instance when determining the preliminary question of whether an act or activity constitutes “development”.

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