The legal interpretation of what constitutes a “road” plays a significant role in property development, particularly when access roads serve adjacent structures in zones with distinct planning constraints.

In Henroth Pty Ltd v Canterbury-Bankstown Council, the Land and Environment Court grappled with this issue, highlighting the complex interplay between zoning regulations and land use characterisation.

In summary, Henroth Pty Ltd v Canterbury-Bankstown Council addresses the following question: does a road retain its independent classification when it serves an adjoining prohibited use? Here, the Court affirmed that it does, offering a fresh perspective on permissible use within zoning frameworks.

Background

In this case, Henroth Pty Ltd sought development consent to construct a new “private road” over a residential lot at 87 Norfolk Road, connecting it to an adjoining lot zoned for a different use. The Council, however, argued that this access point did not meet the standard definition of a “road” under the planning scheme. The core of the debate focused on whether this “road” genuinely served as a road or if it primarily functioned as a driveway serving the adjacent residential development.

Under the Local Environmental Plan (LEP), “roads” are permissible within both the R2 Low-Density Residential Zone (where 87 Norfolk Road is located) and the adjoining B2 Local Centre Zone, while “residential flat buildings” are restricted in the R2 zone. The proposed access road raised questions on whether it constituted a separate permissible use or if it was an inseparable part of the adjoining residential development.

Submissions by the parties

The Council maintained that the access road was functionally a driveway rather than a standalone “road.” Their argument referenced similar legal interpretations, such as in Chamwell Pty Ltd v Strathfield Council, where the use of land for access ways was integrated with a mixed-use building’s primary purpose. Citing Chamwell and subsequent cases, the Council contended that a “road” serving another land use can be characterized by its dependency on that land use. They argued that the driveway on 87 Norfolk Road was designed solely to facilitate the residential building’s needs, making it inseparable from the primary residential function.

Henroth argued that the development should be assessed based on the ordinary meaning of a “road” rather than its functional connection to the residential building. Drawing from Argyropoulos v Canterbury Municipal Council, they contended that as a separate permissible use in the residential zone, a “road” does not become prohibited simply because it provides access to a restricted use in an adjoining zone. Henroth’s position relied on the physical structure and the road’s separate legal status as a distinct property.

Determination by the Court

Ultimately, the Court ruled in favour of Henroth, determining that the access route served the permissible purpose of a “road” and was not necessarily tied to the adjoining residential building’s use. This affirmed that roads can maintain independent use within zoning definitions, provided they are legally separate from the structures they serve.

The Court distinguished this case from Chamwell, noting that in Chamwell, the access ways were physically and functionally inseparable from the mixed-use building. In contrast, Henroth’s proposed road on a separate lot qualified as an independent “road,” even if it facilitated access to the residential lot.

Key takeaways

This case reinforces the nuanced interpretation of zoning laws, emphasising the independence of permissible uses when applied to separate legal lots. Henroth underscores the importance of physical and functional distinctions in land use characterisations, showing how zoning definitions can be used in a more flexible way in certain circumstances.

Further reading

A copy of the judgment is below.