To be a substantial and permanent structure, a building or other structure needs to be constructed on the land
When is the land considered to be ‘vacant’?
Under S.26-102(1)(b), land may be ‘vacant’ if:
- “there is no substantial and permanent structure in use or available for use on the land having a purpose that is independent of, and not incidental to, the purpose of any other structure or proposed structure.”
A structure includes a building or other thing that is built or constructed on the land.
When is a structure considered to be ‘substantial and permanent’?
To be a substantial and permanent structure (with a purpose independent of, and not incidental to the purpose of any other structure), a building or other structure needs to be constructed on the land and it must:
- be significant in size, value or some other criteria of importance;
- not support the use or functioning, or increase the utility of another structure; and
- be fixed and enduring (i.e., not build for a temporary purpose)
This suggests that any structures, such as letterbox, residential garage, landscaping, pipe lines and powerlines, which serve as an addition to another structure, are unlikely to be regarded as substantial and permanent structure; because they would be an adjunct to any residential property constructed on the land.
- example – a rental property is going to be built on a block of land, while the block is fenced and has a retaining wall, neither the fence nor the wall is considered to be substantial and permanent; as such, the block of land is vacant land (even if the land is used to generate income, e.g., pet horse agistment, unless one of the exceptions applies).
Alternatively, structures such as commercial buildings, parking garage complexes, woolsheds, grain silos and homesteads on a farming property are examples that satisfy the requirement of being substantial and permanent structures with a purpose independent of, and not incidental to, the purpose of any other, or proposed, structure.
- example – a parcel of farmland comprises mostly fenced paddocks and fields, with a large grain silo in the corner of the land; it is not ‘vacant land’ because there is a substantial and permanent structure on that land, the grain silo, which has a purpose independent of, and not incidental to, the purpose of any other existing, or proposed structure.
- however, if the grain silo is replaced by empty shipping containers that are used to store tools and harvesting equipment, they would not be considered substantial and permanent structure, as the containers were not fixed and enduring (given they are only attached to the land by their own weight), which could potentially make the land ‘vacant’ (subject to exceptions).