Planners should look beyond broad descriptions of land use such as “shop” or “industry” and closely examine the genus of the land use when undertaking development assessment. This is also important when preparing non-complying lists, particularly if intending to remove existing non-complying land uses from a particular area over time.
The City of Holdfast Bay recently refused the redevelopment of an existing service station on Brighton Road, which primarily involved increasing the floor area of the shop and 24 hour trading. A condition of the existing historic approval states “that the hours of operation be confined between the hours of 6am to 10pm, 7 days per week”. The site sits within the Residential Activity Node Zone where “petrol filling stations” and “shops” are listed as non-complying.
On appeal to the ERD Court, his Honour Judge Costello agreed with our written evidence, finding that “the condition was imposed to protect the amenity of the neighbouring residents… the hours of operation were of the essence of the land use… the change in hours proposed in this application is substantial i.e. a 50% increase and would… constitute a change in the use”.
As part of a subsequent appeal to the Full Court of the Supreme Court, it was found that the removal of the condition limiting operating hours did not change the existing land use because it did not bring about a change to the “genus” of the use. As an example, the Supreme Court indicated that a change from a fruit shop to a pet shop constitutes a change of use because the genus is different.
This judgement gives emphasis to the Expert Panel on Planning Reform’s call to “revise the development definitions to minimise the need for change of land use to be assessed and focus more attention on design, particularly in mixed-use zones”.