Case Law Update

(Provided by Mellor Olsson)

WAKEFIELD REGIONAL COUNCIL v EVANS [2010] SASC 68

On 29 March 2010 the Full Court of the Supreme Court heard an appeal from a decision of a single judge of the Supreme Court.  This single Justice of the Supreme Court had overturned the decision of the Environment, Resources and Development Court to refuse planning consent to a development application.

The development application was for the construction of a new dwelling on a 132 hectare farming property near Owen, and the conversion of the existing dwelling to a manager’s residence (with the additional uses as an office, store, kitchen, laundry, toilet and bathroom).

The land was being operated as a substantial sheep feedlot, with a manager employed on a full time basis who resided on the property in the existing dwelling. The intention of the new residence was to allow the landowner to also reside on the farm to oversee the feedlot operation.

The issues on appeal (arising from the provisions of the Development Plan, particularly in relation to the Primary Industry Zone in which the property was situated) were whether the proposed residence was associated with farming and enhanced the viability of the agricultural sector, whether the proposed residence resulted in a reduction in size of landholdings in the area, and whether the proposed residence maintained the rural character.

The Full Court determined that the proposed residence was ancillary to farming, as it would assist with the management of the property and ensure the ongoing operation as a feedlot was viable.

The Full Court  agreed with the single Justice that a common sense approach was to allow the change of use of the existing dwelling to a “manager’s residence” with facilities which would accommodate workers and other visitors to the property.

The Full Court also confirmed the reasoning of the single Justice that the reduction in the size of the land holding and the loss of the farming land in this case was trivial. The set up of the farm in this way increased the viability of the farm in the agricultural sector as called for by the Development Plan.

Accordingly, the proposal was not contrary to the intent of the Plan to have only one dwelling on an allotment.

DISTRICT COUNCIL OF GRANT v PASIN & ORS [2010] SASC 71

On 31 March 2010, the Full Court of the Supreme Court upheld a decision of the Environment, Resources and Development Court (“the ERD Court”) in relation to the application of Section 50 of the Development Act 1993 (SA) (“the Act”).

Section 50 of the Act provides a mechanism by which a developer may be required to make a contribution to the Open Space Fund of a relevant body, being either the Council or the Development Assessment Commission depending the particulars of the development. The contribution can be made either by allocating land to be used as open space or, alternatively, by making a financial contribution.

The substantial question before the ERD Court, and the Supreme Court on appeal, was whether the development in question formed part of an earlier three stage subdivision or whether it was a separate, stand-alone subdivision.

In January 2003, the developer applied to the Development Assessment Commission (“the DAC”) to subdivide land to create a number of separate allotments. It was proposed that the subdivision would take place in three stages. The application was forwarded by the DAC to the Council, and subsequently the Council approved the development in respect of all three stages. No open space contribution was sought by either the DAC or the Council at that time.

In July 2006 the development approval lapsed with respect to Stage 3 of the proposal, being the only stage yet to be completed.

In 2007 the developer applied again for consent to the divide the parcel of land the subject of Stage 3 of the earlier development approval. The Council approved the development with a number of conditions including a condition that:

“Payment shall be made into Council’s Open Space Fund of the amount of $19,240 (8 allotments @ $2,405 per allotment)” 

The developer appealed against the imposition of the above Condition, and a number of other conditions, to the Environment, Resources and Development Court. At that time, the DAC joined the proceedings.

The appeal before the Supreme Court related solely to the validity of the above condition. The question before the Supreme Court was whether Section 50(11) of the Development Act had work to do in the circumstances.

Section 50(11) states:

“Where a council or the Development Assessment Commission is satisfied that the division of land is being undertaken in stages, this section does not apply to an application for development authorisation to the extent that an earlier application in respect of the same development has addressed the requirements of this section in respect of the area of land as a whole”.

The Court determined that Section 50(11) provides merely that where an earlier application for a staged development has already satisfied the open space requirements for all later stages, the section has no further application in respect of later stages.

The Court, therefore, found that Section 50(11) was not relevant to these proceedings as there had been no earlier application which could have been said to have addressed the requirements of Section 50(1) or (2).

The Court made it clear that the fact that an application might relate, historically, to an earlier application is irrelevant to the question as to whether the Council or the Development Assessment Commission is entitled to exercise the powers under Section 50.

The application in question was a new application, separate from the 2003 staged application, being a division relating to “20 allotments or less”, and therefore the Council had no right to now impose the Condition in relation to their Open Space Fund. The Council’s opportunity to claim a financial contribution had been satisfied in relation to the original application, although they did not make the claim at the time. The DAC was now the only authority entitled to claim under Section 50 in relation to the new application. The appeal was therefore dismissed.

VINPAC INTERNATIONAL PTY LTD v DEVELOPMENT ASSESSMENT COMMISSION AND ANOTHER [2010] SAERDC 21

This matter involved an appeal to a single judge of the Environment, Resources and Development Court against a decision of the Development Assessment Commission to process a development as a Category 2 as opposed to a Category 3 kind of development. The appellant was the owner of the land abutting the site of the proposed development. 

The appellant brought the appeal on the basis that that the Development Assessment Commission had incorrectly categorised the development, and it should have been processed as Category 3 in the Zone and non-complying.

The development proposed was for activity described in the application form as “General Industry comprising resource recovery centre (and associated office, truck servicing and parking for Sita environmental vehicles)”.

It was proposed the site would, in part, be open to the public to bring their waste (paper, cardboard, recyclable containers, garden/green waste, steel products, building materials and general waste) which would then be sorted by staff. There was also a proposed parking area for vehicles associated with the operation of the site, and associated businesses off-site, with car washing and servicing provided on site. 

The Court found that the development could appropriately be classified as “industry”. It then had to determine whether the proposal was “general industry”, which was a Category 2 type of development within the Zone.

In her assessment, Her Honour Judge Cole considered whether the development should be assessed as a whole or in parts. It was argued by the applicant that the vehicle washing and servicing component of the development was ancillary to the resource recovery operation on the site.

The Court, however, found that as the car washing and servicing was intended to be used by the applicant for vehicles servicing the whole of Barossa region, and not just the site in question, the “truck parking, servicing and washing area is a land use it its own right”.

Citing Compaction Application Tips Pty Ltd v Australian Waste Pty Ltd (2001) SASR 435, Her Honour commented that “the question of the nature of a proposed development must be decided as a matter of practical reality”. In the circumstances, she found that the practical reality was that the development application was properly for two distinct land uses on two different areas of the site, neither of which was subordinate to the other.

Her Honour then went on to determine that the resource recovery use was a “general industry” use, while the truck parking, servicing and car washing area fell within the definition of “truck parking” with the car washing and servicing being subordinate to the parking of trucks.

She therefore held that the proposal, when taken as a whole, was not Category 2 (being not wholly general industry) but Category 3, and should have been processed by the DAC as such.  She did, however, find that on balance that the proposed development was not non-complying.

VANDBORG v THE CITY OF ONKAPARINGA [2010] SAERDC 50

On 26 August 2010 a single judge of the Environment, Resources and Development Court dismissed an appeal by a third party in relation to development within the Happy Valley Sports Park, which is community land. 

The applicant had brought an application for review of the Council’s decision to approve its own development. The proposed development was the upgrade of the sports park, including replacement of the tennis club rooms, updating various facilities, landscaping and car park modification. 

The primary issue before the Court was whether the development could appropriately be classified as an ‘entertainment complex’, which was non-complying within the Zone. The applicant submitted that the development, primarily the tennis club rooms, was an entertainment complex as it provided a bar, dining facilities, function rooms and viewing platform overlooking the tennis courts.

In assessing whether the nature of the development had been correctly determined by the Council, the Court referred to, and distinguished, Kipa Freeholds Pty Ltd v Development Assessment Commission & Ors 1999 101 LGERA 414, determining that the “entertainment complex” in Kipa Freeholds was of a larger scale and had a number of interconnecting parts by comparison to the proposed tennis club rooms.

The Court found that tennis club comprised only two areas for entertainment, the bar/function and meeting areas within the tennis club being part of one area, and the viewing platform a separate area.

Her Honour Judge Trenorden clearly stated that a ‘complex’ was something that is composed of interconnected parts. She said, for example, a shopping complex may comprise a group of separate shops in the same building. The tennis club, comprising only two areas for entertainment purposes, did not sufficiently constitute an “entertainment complex”.

The Court, therefore found that the Council had correctly defined the nature of the proposed the development and dismissed the appeal. 

 

Pohl & Ors v Adelaide Hills Council & Anor (No 1) [2009] SAERDC 44

On 1 July 2009 the Environment, Resource and Development Court upheld a third-party appeal against the decision of the Adelaide Hills Council to process and approve an application for the construction of a single storey detached dwelling as a Category 3 Development and a type of development that was neither non-complying nor complying.

The applicant indicated that the proposed detached dwelling would be used for a short period (the next few years) as a self contained bed & breakfast facility accommodating a maximum of 6 guests.

The substantial issue on appeal was whether the Council had correctly identified the application as a one for a kind of development which was “on merit”. The appellants asserted that the development was for a “motel” as that term was defined in the Development Regulations 1993, which was a non complying form of development with the Zone.

Citing Stewart v McQuade & Ors (1997) EDLR 267, the Court commented that “ultimately, it is the intention of the developer as to the use of the building that is determinative of the development for which approval is sought”.

The Court made it clear that in order to determine the form of development proposed, it was necessary to consider the definition contained within the Regulations, not an ordinary dictionary definition.

The definition of motel within the Development Regulations considered was “a building or group of buildings providing temporary accommodation for more than 5 travellers, and includes an associated facility, but does not include a hotel or a residential fl at building”.

In her assessment, Her Honour Judge Trenorden indicated that for a facility to be a motel it did not have to include a restaurant, and that the definition should be read to mean that “any restaurant facility associated with a motel will be part of the motel”.

The Court found that the nature of the use for which approval was sought, being a bed and breakfast facility for up 6-travellers, was within the definition of a “motel” and as such was non-complying within the Zone.

The critical point to take from the decision is that it is necessary to assess not only the form of the building but also the use to which the building will be put.

A further issue raised by the respondents was whether the Court had the jurisdiction to set aside the consent of the Council. The Court held that the inclusion of paragraph (f) to Section 86(1), permitted the Court to deal with issues such as that which the appellant had asked the Court to consider, namely whether the classification by the Council was correct. The Court remitted the matter back to the Council to be assessed and processed as a non-complying form of development.

Anthony Kelly, Partner and Hannah Millard, Solicitor
Mellor Olsson Lawyers
December 2009

ACN 068 691 092 PTY LTD v CITY OF CHARLES STURT [2009] SASC 127

The following case summary/ commentary is a recent Supreme Court judgement, ACN 068691 092 v Charles Sturt, which relates to land division and infill development.

Judgment of the Honourable Chief Justice Doyle, 15 May 2009


Chief Justice Doyle has given some interesting guidance about infill development in the recent case of ACN 068 691 092 v The City of Charles Sturt.

That case involved the division of a parcel of land of a formerly industrial use, into 3 new allotments earmarked for residential development. The land was in Wood Avenue, Brompton. His Honour the Chief Justice noted that the locality was in an inner city area of predominantly residential character but where there was some land historically used for commercial uses. By reference to the relevant Development Plan, it was desired that such uses should be replaced with housing (after any necessary decontamination had occurred).

The subject land was a parcel of some 690 square metres with a “besser brick” building with a corrugated iron roof towards the rear. There was evidence of contamination around that building.

The proposal was to divide the land into 3, that is, create 2 new allotments. The allotments would range in sizes of 221 square metres, 223 square metres and 252 square metres. The appellant had characterised the proposal as being for a land division and change of use to residential.

The appeal failed for a range of reasons, however the most interesting comments of the Chief Justice related to the impact of the existing industrial building on the proposal. His Honour accepted that the proposed land division may be to facilitate future residential development and that was encouraged by the Development Plan. However the appellant had also asserted that there may be existing use rights attached to the existing building, which may be retained at least for that parcel if the land division proceeded.

The Development Application contemplated the retention of the industrial building. That retention of itself gave rise to the possibility that that parcel of land may continue to be used for industrial or commercial purposes and that potential ongoing use negated the Plan’s stated preference that existing industrial and commercial uses be replaced with housing.

It was also noteworthy that there was no proposal for decontamination of the site as part of the application for land division. In fact, any condition requiring remediation had been opposed by the applicant. His Honour made the point that the application was similar, but a reverse, of the situation in the Court’s decision in City of Port Adelaide Enfi eld v Moseley [2008] SASC 88. In that case the Court held that where there is a land use application which would result in a de facto land division (eg the construction of two wholly independent dwellings on a single parcel) then it may be appropriate to fi rst consider whether an application for division (which may be likely to be forthcoming down the track) is appropriate.

In that case, the land use proposal was not able to proceed until the suitability of a land division had been considered.
In this case, the opposite applied – the suitability of a land division was not progressed as the anticipated uses to be divided land could not be shown to be suitable. But as in Moseley, the appellant in ACN 068 691 092 was being asked to pin its colours to the mast. If it wished to divide the land into 3 parcels all to be used for residential development then it may be that the land division would have been allowed.

It seems the appellant may have wanted to retain the right to use the commercial parcel for ongoing industrial/commercial uses. To do so would have created an industrial allotment of some 250 square metres surrounded by residential development in a Residential Zone. That outcome would, based on the zone provisions, have been unacceptable.

Will Webster, Partner
Mellor Olsson Lawyers
September 2009

EVANS v WAKEFIELD REGIONAL COUNCIL [2009] SASC 238
Judgment of the Honourable Justice Koukaris, 13 August 2009

Address:    132 Hectare Allotment near the intersection of the Balaklava/Mallala and Pinery/Owen Roads, near Owen in the mid-north of South Australia
Zone:    Primary Industry Zone


This was an appeal against a decision of a single Commissioner of the ERD Court, who upheld the decision of the Council to refuse to grant consent to an application. The application sought to convert an existing residence on a property near Owen in the mid-north of South Australia into a manager’s residence and to construct a new dwelling to be utilised by the land owner, approximately 500 metres south of the existing residence (being a dwelling of some 386sqm). 

The Environment Resource and Development Court had previously concluded that the proposal should not be given approval on the basis that the zone provisions sought to prevent dwellings being built on agricultural land, particularly where they were not to add to the agriculture use. An important factor for the Court was that the use ad be “associated with farming”.

The Supreme Court upheld the appeal for a number of reasons, but ultimately concluded that the Commissioner was wrong to proceed on the basis that there is an implication in the Development Plan that approval should not ordinarily be given for the construction of new or additional dwellings in the Primary Industry Zone.  The Court commented that approval of such a development in the Zone depended on a balancing of all the relevant planning considerations.  The decision highlights the need for the planning authority to make sure that they carefully consider all of the provisions of the plan and weigh those up in making a decision.

His Honour also commented that the fact that a form of development is not prescribed to be a complying development does not entail any implication that an application for such a development has limited support, although the applicant must show good reason for it to be approved. In this instance the Court commented that the Development Plan did not include any implication that the construction of a new dwelling in the Zone must be “justified” in some way by the applicant. 

Furthermore, the Court considered the Zone provisions which called for any residences constructed on farming land to be “associated with farming”.  In discussing this issue, the concept of “directly associated” was examined by the Court. The Court ultimately found that a development may be “associated with farming” even though its direct contribution to agricultural production is relatively small.  The Court determined that there was no reason to exclude the dwelling of a farm proprietor if he or she does not actively engage in hands on farm work to a substantial degree. In this instance for the farm owner and the farm manager.

The Court also noted that the application did not involve any real reduction in the size of land holding and the loss of the farming land in this case was trivial, and in the circumstances increasing the density from 1 to 2 dwellings for an allotment of this size was minor. His Honour accepted that the set up of the farm in this way did, in fact, have the purpose and aim of increasing the future viability of the feed lot operation. He concluded that there would be an increase in future viability, through not only an improvement of efficiency in operation given the farm manager would be able to live on-site, but it may also encouragement further investment in agricultural production through allowing the proprietor to reside on site and supervise operations.

For these reasons, His Honour upheld the appeal and, as has been the preference of the Supreme Court in a number of recent decisions, remitted the matter back to the ERD Court for further consideration.