The existing non-complying development principle – when is Mercedes displaced?

The ERD Court has just delivered a most important decision on the operation of the existing non-complying development principle – also known as the Mercedes College principle.
 
The principle holds that in the absence of an express provision to the contrary in a Development Plan, developments which seek to continue an existing non-complying use (eg by improving, replacing or adding to a building or better adapting conditions of that use to address contemporary conditions) will be treated as a consent or on merit application rather than being classed as non-complying.
 
The question before the Court was whether the relevant wording of the Barossa Council Development Plan excluded the operation of the principle, namely:
 
Development (including building work, a change in the use of land, or division of an allotment) for the following is non-complying:
 

 
This wording is common to many Development Plans throughout the State, having arisen from the progressive conversion to the Better Development Plan format.
 
In that case, existing dormitory buildings were proposed to be replaced with new dormitory buildings. Within the relevant zone, “dormitory accommodation” was listed as a non-complying development.
 
The Court held that the wording did not exhibit a sufficiently clear indication to exclude the operation of the Mercedes College principle and that “a form of wording which leaves it open to question as to whether existing, as well as new, forms of development are intended to be ‘caught’ will not suffice”.
 
Effectively, the Better Development Plan format does not oust the Mercedes College principle.
 
As a consequence, the Council’s decision to treat the application as a non-complying development was overturned by the Court.
 
A copy of the judgment can be found at: Christadelphian Bible Camp Inc v The Barossa Council
 
George Manos March 2015