Planning Law Update46

An Update and Preview of Recent Cases from the Environment, Resources and Development Court and the

Supreme Court of South Australia

Jamie BottenJamie Botten & Associates

A Paper Presented at a Seminar “A Day in Court”, 1st September 1995

Hosted jointly by the Planning Education Foundation and the Environmental Law Association (SA)

Introduction

In this paper I will provide a brief update, overview and commentary on a number of recent decisions of the Environment, Resources and Development Court of South Australia and the Supreme Court of South Australia on development control matters. The paper does not pretend to constitute an exhaustive study of recent case law. Instead, it is a review of what I consider to be some of the more interesting and significant recent cases.

Does "Should" Mean "Shall" in the Development Plan?

In my Case Law Update paper at the Winter Planning Seminar held on 15th and 16th June, 1994 I considered the above question in the context the decision of His Honour Justice Debelle in the matter of Corporation of the City of Marion v Kerta Weeta Construction Pty Ltd (Judgment No. S4339; 16th December, 1993, unreported). His Honour in that case expressed the view in relation to a particular principle of development control contained in the Development Plan for the City of Marion (namely, Principle no. 37) that the use of the word "should” indicated that compliance with the standard is mandatory. His Honour explained his view as follows:

If the proposal does not comply with the criteria in Principle 37, it must be refused unless the departure from those standards is minimal and the proposal in other respects merits planning consent. I do not mean to suggest that principle 37 is an absolute standard so that non-compliance automatically disqualifies a development proposal. However, it is only where the proposal fails to conform with the standard in a minor respect and other wise merits approval that it will be capable of obtaining planning consent.

Sometime after the decision in Kerta Weeta the Development Assessment Commission, when considering a residential development proposal to be undertaken by the South Australian Housing Trust within the area of the Marion Council (and in respect of which development proposal the same Principle no. 37 applied), refused planning consent to the application because of non-compliance with Principle 37. In refusing consent the Development Assessment Commission made it clear that they considered that the proposal otherwise demonstrated considerable merit and that they were refusing the application only because of non-compliance with Principle No. 37. The South Australian Housing Trust, being unhappy with that decision, appealed against it to the Environment, Resources and Development Court. When the matter came before that Court His Honour Judge Bowering reserved for the determination of the Full Court of the Supreme Court a number of questions of law regarding the proper meaning of Principle No. 37. Amongst the questions referred to the Full Court was the question of whether or not the subject development application must be refused as a matter of law because of the development's non-compliance with the standards set out in Principle No. 37. The Environment, Resources and Development Court also asked the Full Court to decide whether compliance by the development proposal with Principle No 37 was:

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mandatory; or

mandatory, except where the development fails to conform with the standards and that principle in only a minor respect and otherwise merits approval; or

* is not mandatory.

The Full Court held1, amongst other things, that:

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it did not follow, as a matter of law, that because of the development's non-compliance with the standards set out in Marion Principle No. 37, that the subject application must be refused;

compliance by the subject development with Principle No. 37 was not mandatory;

it was wrong as a matter of law to treat compliance by the subject development with Principle No 37 as being mandatory, except where the development fails to conform with the standards in that Principle in only a minor respect and otherwise merits approval; and

compliance by the development with Principle No. 37 is not mandatory.

King CJ, with whom Perry J agreed, stated his views as follows.

I am unable to agree that the use of the word "should" indicates an intention that the Principle be mandatory. The word "shall" is prima facie a word of mandatory import. The same can be said of the word "must" which is now fashionable with Parliamentary Counsel as a synonym for "shall". I think that the use of "should" rather than "shall" or "must" indicates that the sense is not mandatory. The standards specified in the Principle are the goal to be aimed at and the planning authority is to be guided by those standards in considering an application for consent.

The Chief Justice said further:

Although / consider that Principle 37 is not expressed in mandatory language, it must be stressed that it is not the language of the Principle which determines whether compliance with it is mandatory in the sense of binding the planning authority to refuse consent. No Principle of Development Control can be mandatory in that sense because by s 47 of the Act the planning authority is empowered to grant consent unless the proposed development "is seriously at variance" with the provisions of the Plan, (my emphasis).

The Chief Justice concluded:

"Principle No. 37 no doubt has a very important purpose, but whether it is more important than other standards and objectives in the Plan must depend, in my opinion on the particular proposed development and all the surrounding circumstances. That is a matter for the judgment of the planning authority and ultimately for the Court on the appeal."

In light of this decision (i.e. South Australian Housing Trust v Development Assessment Commission and the Corporation of the City of Marion (1994) EDLR 385), it can be seen that the principles established in Kerta Weeta have effectively been overturned. Although in both Kerta Weeta and the South Australian Housing Trust case the Supreme Court was considering the provisions of the Development Plan in the context of the former Planning Act regime, I have no doubt that the principles established in the South Australian Housing Trust case have equal application to the new Development Act regime.

1 South Australian Housing Trust v Development Assessment Commission and the Corporation of the City of Marion (1994) EDLR 385

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Is the Expansion of an Existing Non-Conforming Use on its Existing Site a Non-Complying Kind of Development9

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This question has been considered in a number of not so recent decisions of the Supreme Court including Wilson and Others v Corporation of the City of Mitcham and Mercedes College Springfield Inc. (1986) 130 LSJS 31; Church of England Collegiate School of St. Peter v Corporation of the Town of St. Peters (1990) 157 LSJS 401 and Cutajar v Corporation of the Town ofThebarton (1991) 55 SASR 70.

The abovementioned cases basically involved the Supreme Court in the application of a principle established by His Honour Justice Jacobs in the Mercedes College case and stated by His Honour Justice Jacobs in that case in the following terms:

... it would be a very strange Development Plan that sought to prohibit an existing and long- established school from expanding its facilities in order to provide the best possible education for its children. The purpose of designating an "educational establishment" as a prohibited development is not to inhibit the reasonable development of existing schools, but to prohibit the intrusion into the area of a new "secondary school, college, university or technical institute".

His Honour Justice Jacobs, in the Mercedes College case, then added, after having considered another argument, that:

... I would, however, prefer to rest my answer upon the broader view of the Development Plan which must be capable of adapting to development of existing non-conforming uses while at the same time inhibiting development by way of a new secondary and tertiary educational establishments in a Residential 1A Zone.

Although, I think it is fair to say that since the abovementioned Supreme Court cases there has been a deal of uncertainty about the full extent of the application of the abovementioned principle, it seems, of late, that that uncertainty has, if a number of recent decisions of the Environment, Resources and Development Court are any indication, "settled down". In that regard, there are at least two cases worth noting.

Firstly, the matter of Morrow v City of Mitcham, Kirk and Development Assessment Commission (1994) EDLR 448. In that case, which came before her Honour Judge Trenorden of the Environment, Resources and Development Court, her Honour had occasion to consider a proposal to redevelop land at 289-291 Cross Road. The land at 291 had existing use rights as a shop, naturopathic clinic and manufacturing laboratories. The land at 289 contained a dwelling and was used for residential purposes. Redevelopment was necessary as a result of the compulsory acquisition of a road widening strip by the Department of Road Transport The proposal before her Honour involved the demolition of the existing buildings on both allotments, and the construction of a new two-storey building comprising a shop, consulting rooms, manufacturing laboratories and store at no 291 and a carpark for 15 cars, a lawned area and a herbal nursery at 289. In the relevant zone (namely a Residential 1A Zone) a shop, consulting rooms and light industry were non-complying kinds of development. The Council treated the proposal as non-complying, and resolved to grant consent subject to conditions and the concurrence of the Development Assessment Commission. The Development Assessment Commission refused to concur, and the Council refused consent The applicant appealed and, with the Council, contended that the proposal was not non-complying. The Development Assessment Commission contended that it was.

In the course of her judgment her Honour Judge Trenorden considered the state of the law with respect to the question of the manner in which to characterize a proposed expansion of an existing non-conforming use on its existing site. In dealing with that matter her Honour referred to the abovementioned Supreme Court cases and commented as follows.

If the proposed development was limited to the replacement of the existing building at 291 Cross Road, notwithstanding that the proposed development involves a use, components of which are kinds of development which are non-complying, it would be not prohibited:..

Secondly, I refer to the decision of the Environment, Resources and Development Court in the matter of Southern and Croftv Corporation of the City of Happy Valley and Fairley (1995) EDLR 198. In that particular matter Commissioner Pitt had occasion to consider, as a preliminary point, whether or not a proposal to expand an existing broiler farm, by constructing additional broiler sheds and converting the use of one further shed on the existing site, was or was not a non-complying kind of development. "Intensive animal keeping," which included a broiler farm, was a non-complying kind of development in the relevant zone.

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In considering the preliminary point, Commissioner Pitt found that although he had some difficulty understanding the basis for the principle established in the abovementioned Supreme Court cases, if the proposal amounted to a reasonable expansion of an existing prohibited kind of use it does not constitute a prohibited kind of development. He also referred to and followed the decision of Her Honour Judge Trenorden in Morrow. Commissioner Pitt went on, in considering and dealing with the preliminary point before him, to make the following observations and findings :

What is "reasonable" in the circumstances of the particular case must, I suppose, be a matter of fact and degree. In the subject case, the fact is that a chicken broiler farm has been in operation, lawfully, since before 1970. Is the proposed addition a reasonable or unreasonable expansion? As I see it, the answer to the question entails the taking into account of all of the circumstances including the increase in floor area of the broiler sheds, the increase in the number of birds to be accommodated, the area of land occupied by all of the sheds relative to the area of the subject land and, perhaps most importantly whether the essential nature of the development would be materially altered by the addition. (my emphasis).

After considering all of the abovementioned matters in light of the matter before him Commissioner Pitt found that the proposed addition was a reasonable expansion of an existing prohibited kind of use and that therefore it did not constitute a prohibited (i.e. non-complying) kind of development.

Is the Expansion of an Existing Non-Conforming Use onto Adjoining Land a Non-Complying Kind of Development?

The above question was the real question before her Honour Judge Trenorden in the Morrow case. As her Honour observed in that case:

... the proposed development is on land which comprises the land at 289 and 291 at Cross Roads. Expansion of the use to include 289, which had previously been used for residential purposes only, gives rise to a different set of circumstances from those reported as pertaining in the cases the subject of the judgments sited above. In those cases, expansion cm* replacement of facilities which amounted to a continuation of an existing use were, according to the facts reported in the judgments, within the site occupied by the existing use.

The real issue that had to be dealt with in the Morrow case was whether the reasoning in the Mercedes College case, which was followed in the St Peters College case and the Cutajar case, to borrow from the words of her Honour Judge Trenorden "... inevitably leads to the conclusion that a reasonable expansion of an existing of a non-complying use, albeit onto land not hitherto comprised within the site of the existing use, should not be treated as a non-complying use."

After considering that issue her Honour Judge Trenorden found, in light of the abovementioned Supreme Court cases, that:

a reasonable expansion of an existing non-complying kind of use, albeit onto land not part of the site of existing use, does not constitute a non-complying kind of development. (my emphasis)

Her Honour went on to find that the expansion proposed by the appellant Morrow to include the land at 289 Cross Road was, in the circumstances of the case, a reasonable expansion.

Whilst if the law had been left standing still after the Morrow decision had been decided it could be argued that there was potentially a good deal of scope for existing non-conforming uses to expand onto adjoining land yet not be treated as non-complying kinds of development, the Environment, Resources and Development Court has, in a number of subsequent decisions, restricted the application of the Morrow principle. In that regard two cases that should be noted are Bodgara Pty Ltd and Terry Snell Nominees Pty Ltd v Corporation of the Town of St Peters and Lucky Eight Lounge Pty Ltd (1995) EDLR 361 and Tilley as Trustee for the Albert and Arthur Street Hall Trust v Corporation of the City ofUnley (1995) EDLR 382.

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In the Bodgara case, Bodgara Pty Ltd and Terry Snell Nominees Pty Ltd had applied to the Corporation of the Town of St Peters Council for planning consent for the modification and use of an existing building at 91 Hackney Road, Hackney (which adjoined the existing Hackney Hotel premises) as a cold room/keg room, storage area and service delivery area for use in association with the activities of the Hackney Hotel. The application was refused consent. Lucky Eight Lounge was joined as a party to the appeal. Bodgara and Terry Snell Nominees were the proprietors of the subject land and the adjoining Hotel premises. Lucky Eight Lounge was the lessee of the subject land and the Hackney Hotel premises.

A "hotel" was a non-complying kind of development in the relevant zone. The application was treated by the Council as an application for a kind of development which is non-complying. The Council refused consent and the appellants purported to appeal to the Court against the refusal, contending that the Council wrongly treated the application as one for a non-complying kind of development. The appellants and Lucky Eight Lounge Pty Ltd argued that the proposed use of the building situated at 91 Hackney Road was a reasonable expansion of a long standing non-complying use, namely the hotel use next door and on the authority of the Mercedes College case, the Morrow case and the other cases previously referred to in this paper, should have been treated by the Council as a kind of development which was neither complying nor non-complying.

Her Honour Judge Trenorden noted that although a "hotel" and a "store" were expressed to be kinds of developments that were non-complying kinds of development in the zone that had not always been the case. The Court noted that the land had been zoned Residential 2, for many years, but until the 1st September, 1988, a hotel was not, under the planning regime operating then, a kind of use that was prohibited.

Her Honour Judge Trenorden found that the expansion of the hotel use onto the land at 91 Hackney Road was not a reasonable expansion in the circumstances. In reaching that conclusion Her Honour Judge Trenorden expressed the following views:

"The facts in Morrow were quite different to those pertaining here. In Morrow where it was held that a reasonable expansion of a kind of use which was non-complying at the time of an application, albeit onto land not on the site of the existing use, did not constitute a non-complying kind of development, a portion of the land upon which the existing use operated was to be acquired for road widening purposes. Part of the existing premises on that land had to be demolished and this necessarily led to a reorganisation of the operations constituting the use and in the circumstances, expansion onto adjoining land owned by Morrow, essentially for carparking putposes was said to be a reasonable expansion of the non-complying use. The reorganisation provided for carparking on the premises."

Her Honour Judge Trenorden went on to find that what is reasonable in the circumstances is a matter of fact and degree. She held as follows:

"Each case is to be decided on its own facts, but I venture to suggest that it would only be in very special circumstances, such as those applying in Morrow, that the expansion of an existing non­complying use onto land not part of the site of the existing use, but in the same zone, would be found to be reasonable in the relevant sense."

In the matter of Tilley v The Corporation of the City of Unley, Judge Trenorden of the Environment, Resources and Development Court had to determine whether the Court had jurisdiction to hear a purported appeal in respect of the refusal by the Unley Council to grant provisional Development Plan consent in respect of a proposal to use certain land for carparking purposes. More specifically, Tilley made application to the Unley Council for provisional Development Plan consent to divide land and expand an existing carpark at 81-85 Mary Street, Unley, which land comprised allotments 234 and 243 in Filed Plan 12871 and allotments 301 and 302 in Deposit Plan 37690.

All of the land, but for existing allotment 302 was used for the purposes of a place of worship and associated carparking facilities. Up until a short time before the application, the land comprising existing allotment 302 had a number of houses situated on it, not necessarily associated with the place of worship. Those dwellings were demolished because it was proposed by the applicant to incorporate that land with the other land, to comprise the whole of the land to be used as a place of worship and associated carparking, with the land comprising existing allotment 302 to be converted to carparking use. The Council treated the application as one for a non-complying kind of development.

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The applicant appellant argued, amongst other things, that the proposed development, namely, the inclusion of the land comprising allotment 302 into the existing carpark was a reasonable expansion of an existing use, and therefore should not be treated as a non-complying use, albeit that the expansion is not onto land not previously use for the purposes of the primary non-complying use, namely, the place of worship.

In dealing with the abovementioned argument, Her Honour Judge Trenorden expressed the following views:

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"Each case is to be decided on its own facts. In determining whether it is reasonable in the sense in which it is used in the Mercedes College, St Peters College and Morrow, there are many factors to be taken into account including perhaps, whether the expansion.is on land owned by the operator of the existing non-complying use and used generally hitherto for the purposes of that use where the particular circumstances have rendered the expansion a necessary or appropriate course and the purpose of the expansion generally, the size of the expansion in comparison to the land area presently taken up by the existing non-complying use, and whether the physical expansion amounts to a physical expansion of the use. It will always be a matter of fact and degree. In Morrow, the extension was reasonable, having regard to the special circumstances that applied, particularly the need to reorganise the activities constituting the operation of the existing non­complying use, following the compulsory acquisition of part of the land used, and the expansion onto land already owned by Morrow, for essentially carparking purposes.

There are no such pressing circumstances here. The additional land, onto which it is sought to expand the use appears to have been relatively recently acquired by the Trustees. It is not the case that the additional land has been used for the general purposes of the (now) non-complying use ("place of worship") over many years, nor are there any special circumstances necessitating or making desirable or appropriate, the expansion of the public worship use on the said land onto adjoining land, so as to constitute the expansion reasonable."

Her Honour Judge Trenorden added later on in her judgment that regard must also be had to the fact that the Council amended its Development Plan in 1989, when a "place of worship" became a prohibited kind of development in the zone, whereas it had been a permitted kind of development prior to that date. Her Honour Judge Trenorden expressed the view that that change demonstrated ”... a clear intention in the Development Plan that any expansion of the place of worship use onto other land was not desirable, although of course an application to expand a place of worship use onto other land could be considered by the Council, notwithstanding it being a prohibited (non-complying) kind of use..."

Temporary Approvals

Although there was provision in the former City of Adelaide Development Control Act 1976 for a temporary planning approval to be granted to an applicant, the ability of a planning authority (and the former Planning Appeal Tribunal) under the Planning Act regime to grant such an approval was always somewhat unclear and, at the very least, restricted to special circumstances. The position, however, has changed under the Development Act because, by virtue of s42(3)(e) of that Act, a planning authority (and the Environment, Resources and Development Court) is empowered to approve a development on a temporary basis.

The Environment, Resources and Development Court has had occasion to consider the use of temporary approval power in a number of decisions. In Butterworth v District Council ofYankalilla (1994) EDLR 389 the Court, comprising His Honour Judge Bowering and Commissioners Buttrose and Hodgson, dealt with an appeal against a refusal to grant consent by the District Council of Yankalilla to an application by Mr Butterworth to use land on Main Street, Yankalilla for the temporary (12 years) use of the land for the growing of orchids and their wholesale disposal.

In leaching its decision the Court held that the term "temporary" as used in sub-section 42(3) of the Development Act must be construed in two distinct ways, the first being the proper legal interpretation to be applied and, second, its meaning in a planning context.

As regards the first construction, the Court expressed the view that the term "temporary" is generally used in contradistinction to terms such as "permanent" or "unlimited". The Court held that something that is not indefinite is not temporary, but added that the length of time does not appear to be of great moment, provided there is a definite and pre-determined end. The Court found that, insofar as the legal interpretation is

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concerned, there is no limit, either express or implied, to the length of time which may be accepted as being temporary within the meaning of the sub-section.

In relation to the meaning of the term "temporary" in a planning context, the Court found that:

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... the most common situation in which a temporary development authorisation will be granted is one in which there are sound planning reasons why a permanent authorisation should not be granted - a situation in which the reasons for which a permanent authorisation should not be granted either do not apply or do not apply with the same force to a temporary authorisation of the same development. This means, in planning terms, that the principal difference in respect to any particular development between a permanent authorisation and a temporary authorisation is that the reasoning and assessment applicable to a permanent authorisation is materially different to that which is applied to a temporary authorisation with a consequent different result, namely a temporary authorisation in lieu of a permanent refusal, (my emphasis).

Thus, the Court added, if an application for a temporary development approval proposed a temporary period of such length that, when making the planning assessment on the application, one applies the same reasoning and assessment as one would apply were the application for a permanent consent, the consent sought is not "temporary" in planning terms. On the other hand, if

... one applies to such application a different reasoning and assessment - leading, perhaps, to a different conclusion - than one would apply were the application for a permanent authorisation, the application sought may be reasonably regarded as being, in planning terms, a temporary authorization.

The Court explained that it is a matter of fact and degree to be assessed:

... in all of the relevant circumstances of the case - the nature of the development involved, the relevant provisions of the Development Plan, the character of the locality in which it lies, the likely future rate of development of that locality, the length of time for which the authorisation is sought and a variety of other matters.

After considering all of the material facts, including the relevant provisions of the Development Plan, the Court concluded that, prima facie, horticulture was not a suitable and appropriate use of the subject land, and that, the application to use the land in the manner proposed for a period of twelve years, was not, in a planning sense, a temporary application and would not overcome the manifest conflict between the use proposed and the provisions of the Development Plan.

The Court also had occasion to consider a proposal for a temporary approval in the matter of Riches v District Council of Willunga and French-Kennedy (1994) EDLR 473. In that matter, the applicant sought planning consent from the Council to conduct a seasonal craft market four times a year on the subject land for the temporary period only of twelve months. The land was situated in a Rural Area 1 zone and was being used for the purposes of a winery with associated cellar door sales and associated bed and breakfast accommodation. The Council resolved to approve the proposal subject to conditions. The appellants, being representors opposed to the development, appealed against that decision to the Environment, Resources and Development Court.

Commissioner Hodgson, in considering the matter, found that the proposed market could not properly be regarded as ancillary and subordinate or incidental to the existing approved uses and therefore encompassed by existing approvals for those uses. He found, however, that the proposal was consistent with the overall thrust of the zone provisions and if conducted on a limited basis would not adversely affect areas of scenic value or detract from the rural character of the locality.

Conditions of Planning Approval

The case law relating to conditions that may be validly attached to planning approvals is always developing and is also always an area of keen interest for applicants and planning authorities. There have, in recent times, been a number of interesting decisions that involve conditions of approval.A decision of particular interest is the matter of Mortow No. 24 Pty Ltd v City of Glenelg (1994) EDLR 493. In this matter, Commissioner Pitt of the Environment, Resources and Development Court had occasion to consider

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an appeal relating to a proposal to convert an existing confectionery shop into an amusement machine centre and to extend the building. The Glenelg Council refused consent. The subject building occupied the full length of the allotment which fronted Jetty Road and Elizabeth Street, Glenelg. A narrow rear yard existed on the land at the Elizabeth Street frontage which was used for parking of one or two staff cars. The proposal included extending the building to the Elizabeth Street frontage and eliminating the existing staff car parking.

In the course of his judgment, Commissioner Pitt made a number of observations relating to conditions pertaining to Council carparking funds. Although, counsel for the various parties before him in the appeal did not need to argue the matter of the lawfulness of the carparking fund, Commissioner Pitt's observations are nonetheless important and worth noting. He commented as follows.

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I understand that there is in existence a "Glenelg Council Parking Fund" and that contributions have been made to it when certain development consents have been granted; eg. in the Fasta Pasta case, as I understand it. All I can say in that regard is that, subject to any argument put on the topic, this Court would not place a condition of that kind on a consent for the subject proposal unless, apart from anything else, the fund was ear-marked for a specific parking project which would have a direct or identifiable relationship within the subject development; or unless the Development Plan was to provide for it in precise terms ...

When Does a Proposed Development Amount to a "Special Industry"?

The Full Court of the Supreme Court recently had occasion to consider this question in the matter of Jurkovic v Development Assessment Commission and City of Hindmarsh & Woodville and others (1995) EDLR 416. The matter came before the Full Court on appeal from a majority decision of the Environment, Resources and Development Court, whereby that Court affirmed the refusal of the then South Australian Planning Commission to grant planning consent in respect of a proposal to establish a waste recycling and transfer facility on land situated at Old Port Road, Royal Park. In reaching its decision the majority of the Environment, Resources and Development Court classified the proposal as being a "special industry" as that term was defined in the then Planning Act regulations. A special industry was a prohibited kind of development in the relevant zone. The applicant appellant, Jurkovic, being unhappy with the decision of the Environment, Resources and Development Court appealed to the Full Court of the Supreme Court and argued, amongst other things, that the majority of the Environment, Resources and Development Court wrongly classified the proposal as being for a special industry.

Although the applicant appellant Jurkovic, for reasons not relevant to the consideration of this particular topic, ultimately had his appeal dismissed by the Full Court of the Supreme Court, the Full Court nonetheless found that the Environment, Resources and Development Court had erred in classifying the proposal as a special industry.

The regulations made under the former Planning Act defined special industry as follows:

'special industry' means an industry where the processes carried on, the methods of manufacture adopted or the particular materials or goods used, produced or stored, are likely -

(a) to cause or create dust, fumes, vapours, smells or gases; or

(b) to discharge foul liquid or blood or other substance or impurities liable to become foul,

thereby -

(i) to endanger, injure or detrimentally affect the life, health or property of any person (other than any person employed or engaged in the industry);or

(ii) to produce conditions which are, or may become, offensive or repugnant to the occupiers or users of land in the locality of or within the vicinity of the locality of the land on which (whether wholly or partly) the industry is conducted.

It should be noted that "special industry" is defined in the Development Regulations made pursuant to the Development Act in the same terms as the above definition.

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During the course of the appeal hearing, the respondents (namely, the Development Assessment Commission and the City of Hindmarsh & Woodville) argued that the word "likely” used in the abovementioned definition of special industry only governs sub-paragraphs (a) and (b) of that definition. So it is, it was argued, that once it can be shown that the proposed use is likely, amongst other things, to cause fumes, vapours or smells then, if it can be established that those, in turn, "... may become offensive or repugnant to" relevant occupiers in the locality, the definition was satisfied.

His Honour Justice Olsson responded to this argument that:

...in my view such an approach is in plain discord with the intendment and proper construction of the definition. I consider that the verbiage which follows paragraphs (a) and (b) ultimately derives its flavour from the introductory wording of the definition. Properly paraphrased it seems to me that, relevantly, the test to be applied in the instant case was - was the proposed use one which was likely to cause or created vapours or smells producing conditions which may become offensive or repugnant to (relevant) to occupiers?

I am firmly of the view that the definition quite plainly infuses in the test to be applied the need for it to be shown not only that there is a positive likelihood that the proposed use will cause or create vapours or smells but also that there is a real probability that these will produce conditions which may become offensive or repugnant. The words "may become" as used in the definition attach only to the word conditions. The definition simply does not apply until it is first shown that the use is likely to create vapours or smells which will thereby produce the relevant provisions. It envisages the existence of the likelihood and the real practical probability that conditions of the type postulated will be generated."

His Honour Justice Lander of the Full Court expressed his views on the topic as follows.

I therefore believe that the development is a "special industry" if, because of any of the matters in the introductory words, those matters are likely to cause or create any of the matters in paragraph (a) or to discharge any of the substances in paragraph (b), and because of any of those matters, any of the events in placita (i) and (ii) are likely or probable to occur. I therefore agree with Bollen and Olsson JJ in the construction of the definition.

Is There a Place for Local Shops Outside of Centre Zones?

The above question was considered by the Environment, Resources and Development Court in the matter of Bluff Harbor Pty Ltd v District Council of Victor Harbor and Parker (1994) EDLR 196. In this case, an application for development comprising a single storey shop of a delicatessen/small grocery/take away food type was refused consent by the District Council of Victor Harbor. It was proposed to be established upon a comer allotment at the edge of a new residential estate within the Residential (Lakeside) Zone south of the Victor Harbor town centre. The flow area of the proposed shop was 220 square metres.

In considering the planning issues that arose as a result of the planning appeal, the Court considered firstly whether the proposed development ran counter to the provisions in the Development Plan for centres and forshops. The Court described those provisions as being "... a cornerstone of the Development Plan They noted that those particular provisions promoted the clustering and grouping of business and community facilities into nodes at various operational levels - Regional, District, Neighbourhood and Local (more often than not adjoining main roads of one classification or another).

The Court noted that the Victor Harbor Development Plan established a Centres hierarchy and noted in particular a number of local centres in the general vicinity of the subject land and the provision made in the Development Plan for a Neighbourhood Centre Zone on what was, at the time of the appeal, vacant farming land. More specifically, the subject land was located approximately 1.5 km from the local centres and 0.9 km from the proposed Neighbourhood Centre.

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In considering the relevance of the Centres provisions in the matter of the application before it, the Court noted that there were a number of exceptions contained in the relevant provisions of the Development Plan relating to the location of shopping facilities outside of Centre Zones.

The Court ultimately found, on the question of the relevance of the Centres provisions, that considering the distance between the local centres and the undeveloped neighbourhood centre and the fact that the residentially zoned land was steadily filling up, a "comer shop” such as the development proposed, was an acceptable distance from the existing centres and reasonable in planning terms. The Court added that:

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...after all, planning strategies such as those for centres should not be jso rigid as to preclude the provisions of facilities that may, viewed realistically, increase the convenience and access to key facilities for the residents of the extensive residential areas within a town. In general, "corner shops" if not so profuse as to challenge the integrity of Centres and if sensibility situated, are desirable features found throughout urban areas and clearly increase convenience in the right circumstances.

Hie Court therefore concluded that the proposed shop was neither inconsistent with nor would significantly compromise the provisions of the Development Plan.

It would seem therefore, in light of the above decision, that there is still a place for local shops outside of designated Centres.

Are Satellite Communication Dishes and Other Similar Structures "Development” for the Purposes of the Development Act?

The Court had occasion to consider this question in the case of Boeck v Corporation of the City of Glenelg (1995) EDLR 186. In August last year the Corporation of the City of Glenelg served an enforcement notice pursuant to s84 of the Development Act on Mr Boeck. He appealed to the Court against that notice and requested the Court to determine, as a preliminary issue, whether the act alleged to have been undertaken on the subject land, without approval, was development within the meaning of the Development Act. Specifically, the Council alleged that Mr Boeck had undertaken development without approval by erecting a structure in the form of a satellite communications dish.

In considering the appeal, the Court noted the provisions of clause 4(1 )(b) of Schedule 3 to the Development Regulations. The relevant portions of Schedule 3 are as follows:

“The following acts or activities are excluded from the definition of development (other than in respect of a State heritage place, or as otherwise indicated below):

Sundry Minor Operations

4. (1) The construction or alteration of, or addition to, any of the following (including any incidentalexcavation or filling), other than in respect of a local heritage place:(a)(b)

(i) a windmill; or

(ii) a non load-bearing aerial, antenna, flagpole, mast or open framed tower or other similar structure (but not including an advertising hoarding),

which is not attached to a building and is not more than ten metres in height, or which is attached to a building and is not more than four metres in height above the topmost point of attachment to the building, exclusive of guy wires;"

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In view of the abovementioned provisions of Schedule 3, the question to be determined by the Court was whether the subject structure was a non load-bearing aerial or antenna or otherwise, in which case its construction would not constitute development within the meaning of the Act

It was argued for the appellants that the structure fell within the words of clause 4 of Schedule 3 as being a non load-bearing aerial, antenna or other similar structure. It was argued that the structure performs an identical purpose to that of an aerial or antenna, has the same of similar components and performs the same functions as an aerial or antenna.

On the other hand, it was argued for the Council that the Court should look at the form, as opposed to the function, of the structures described in clause 4 of Schedule 3. It was submitted that the form or physical characteristics of the structures specified in clause 4 are such that the subject structure could not be an aerial, antenna, flag pole, mask, open framed tower ch- other similar structure. Essentially, it was argued for the Council that each of an aerial, antenna, flag pole, mask and open framed tower have height and no width, whereas the subject structure has height, but also has width and accordingly, even if it was ordinarily described as an antenna or aerial, it could not be an antenna or aerial for the purposes of clause 4 of Schedule 3.

In considering the issue, her Honour Judge Trenorden had regard to various factors, including the ordinary meanings or current common usage of the words "aerial" and "antenna". Regard was had to various dictionary definitions. Her Honour also had regard to certain evidence in the form of a letter from Technical Services Manager of a supplier which described the various types of antennas available in the market place for the reception of television transmissions.

The Court concluded that the structure was an "antenna". Her Honour went further and said in any event the structure was either an antenna, or aerial. Her Honour noted the heading to clause 4 of Schedule 3 of the regulations, namely, "sundry minor operations" and found that even if it could be said to qualify the meaning of aerial or antenna, it was not"... appropriate for the (Court) to take the heading into account, having regard to the provisions of the Acts Interpretation Act, which provides that a heading to a section does not form part of the statutory instrument, in contrast to a heading of a part, division or sub-division of a statutory instrument, which does not form part of an instrument."

Finally, the Court dealt with the argument to the effect that it should have regard to the provisions of the Development Plan for the Glenelg Council and, in particular to Principle of Development Control No. 71, which specifically provided that, amongst other things, facilities for communication receivers (satellite receivers) should not be unobtrusive. It was argued by the Council that the effect of this principle was to make it clear that the structure in question was not within the parameters of clause 4 of Schedule 3. Judge Trenorden rejected this suggestion. Her Honour found that where the Development Plan may be used to expand or give meaning to the Act or Regulations it will be specified in the Act or regulations. Thus, her Honour referred to whether the issue is a category 1, category 2 or category 3 development will depend on a perusal of the Act, regulations and the Development Plan. Her Honour found that:

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... it is not appropriate to have regard to the provisions of a Development Plan to determine what a particular word in the regulations means. The logical consequence of such a course, in any event, would be that the subject word has a particular meaning, having regard to the Development Han, for that geographical area in respect of which the Development Plan applies. That would be an untenable situation. The regulations might have one meaning for one geographical area and a different meaning for another geographical area."

Can the Environment, Resources and Development Court Award Costs in Favour of an Applicant Who Has Commenced Enforcement Proceedings Pursuant to S85 of the Development Act?

The above question was considered by his Honour Judge Bowering in the matter of City ofMt Gambier v MAT Holdings Pty Ltd (1995) EDLR 262. The matter before His Honour involved enforcement proceedings commenced pursuant to s85 of the Development Act by the City of Mt Gambier against MAT Holdings Pty Ltd in which it was alleged that MAT Holdings was in breach of the provisions of the former Planning Act.

At the end of the day, the questions of the alleged breaches of the former Planning Act were resolved and the only question left for the Court to determine was whether or not it had the power to make an order for costs in

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favour of the applicant Council. The Court concluded that it did not have power to order a respondent to pay the applicants costs of the action. Accordingly the application for costs by the City of Mt Gambier was dismissed.

In considering the question, his Honour compared the provisions of s85 of the Development Act with the provisions of its predecessor, namely, s36 of the former Planning Act In that regard, his Honour noted that by virtue of s36(10) of the former Planning Act, the Court had the power to make orders in relation of costs for proceedings in the nature of civil enforcement proceedings as it considered just He also noted that there were other significant differences between the provisions of s36 of the Planning Act and the provisions of s85 of the Development Act. One such important difference observed by his Honour was that under s36, civil enforcement proceedings could only be commenced by a planning authority whereas, under the provisions of s85, such proceedings can be commenced not only be a planning authority but also by any person.

In considering the matter, Judge Bowering noted that the provisions of s85 specifically confers upon the Court the power to award costs in favour of a respondent in those cases in which the applicant who commenced the proceedings has not made out a case. Judge Bowering went on to state as follows:

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...however, in view of the quite specific wording of the subsections, I have come to the conclusion that they cannot be reasonably construed as conferring a power upon the Court to do the reverse, namely, to order costs against a respondent in favour of the applicant. The provisions of the subsections simply do not bear such a construction. Thus, whilst I acknowledge that there may be some unfairness in a legislative provisions which confers the power upon the Court to award costs in favour of a successful respondent but not in favour of a successful applicant, I have come to the conclusion that such is the effect of the subsections.

His Honour dealt with an argument put on behalf of the City of Mt Gambier that the provisions of s85(6)(f) empower the Court to order costs in favour of an applicant. S85(6)(f) provides, in effect, that the Court can, if it is satisfied, on the balance of probabilities, that the respondent has breached the planning legislation ”... require the respondent to pay to any person who has suffered any loss or damage as a result of the breach or incurred costs or expenses as a result of the breach, compensation for the loss or damage of the amount for or towards the costs or expenses."

It was submitted by counsel for the Council that the words "incurred costs or expenses" includes legal costs incurred by the Council in bringing the action. It was submitted that the legal costs are costs incurred "as a result of the breach" of the planning legislation. His Honour rejected this argument for a number of reasons, including the reason that he did not consider that legal costs can be regarded as either costs or expenses incurred as a consequence of a breach of the law or loss or damage arising out of such breach. His Honour was of the view that the costs of the Council in bringing s85 proceedings are costs which are too remote to be costs resulting from the breach of the legislation.

Thus, on the authority of the abovementioned case, the Environment Court does not have the power to order costs in favour of an applicant who has commenced s85 proceedings.

What is the Relevant Criteria to be Applied in Deciding Whether a Third Party Should be Joined as a Party to Proceedings Before the Environment, Resources and Development Court?

The Full Court of the Supreme Court recently considered this question in the matter of Pitt and Others v Calvary Hospital Inc. <6 Corporation of the City of Adelaide (SA Supreme Court: Full Court; Judgment No S.5194.2; 1st August, 1995; unreported).

The proceedings before the Full Court of the Supreme Court in Calvary arose out of the refusal by Judge Bowering of the Environment, Resources and Development Court to grant an application by certain residents to be joined as parties to an appeal before that Court. The residents in question lived in close proximity to the Calvary Hospital at North Adelaide. In January 1994, the Hospital sought planning consent from the Adelaide City Council for development which would involve the demolition of an existing building, extension to existing wards and the construction of a two level carparking station on the Hospital grounds. The application for planning consent was made pursuant to the City of Adelaide Development Control Act 1976 which was repealed on the 15th January, 1994. The Adelaide City Council refused consent and in June, 1994 the Hospital

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appealed against the refusal. The appeal was to the Environment, Resources and Development Court which had, of course, been established in December, 1993.

S17 of the Environment, Resources and Development Court Act gives the Environment, Resources and Development Court power to join a person as a party to any proceedings other than criminal proceedings.

Although the appeal in Calvary involved, amongst other things, questions about the transitional provisions in the Statutes Repeal <6 Amendment (Development) Act 1993, the Full Court made a number of instructive general findings relating to the criteria that is to be applied in deciding whether a third party should be joined to the proceedings (other than criminal proceedings) before the Environment, Resources and Development Court.

The Full Court found that Judge Bowering had erred in his decision to refuse to join the residents as parties to the planning appeal. His Honour Justice Duggan noted that Judge Bowering had expressed the opinion that the residents could only be joined as parties if their application disclosed "special and unusual circumstances". Justice Duggan (and the other members of the Full Court) found that the exercise of the discretion is not expressly or impliedly limited in this way. Justice Duggan held that:

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There is an important distinction to be drawn between a test based upon "special circumstances" which would narrow considerably the scope for directing joinder under the Act and a situation in which the applicant has "a special interest" in the subject matter of the action ... although I am not suggesting that the latter circumstance, by itself, would justify the making of an order for joinder.

Justice Duggan held that it would be a proper exercise of the powers of the Environment, Resources and Development Court to exclude "meddlers" or "busybodies” from the proceedings. His Honour went on to find as follows.

An essential starting point for the exercise of the discretion to permit joinder in proceedings such as this is to determine whether the applicant for joinder has a genuine interest in the appeal,.... Such an interest would arise if an order could be made on appeal which would prejudicially affect the interest of the person applying to be joined.

Justice Duggan then explained his view of the present case.

I have already referred to the relevance of a genuine interest in the proceedings, emanating in this case from the fact that the appellants are at risk of an order being made which will prejudicially affect their interests. As / have pointed out, standing by itself such an interest might not lead to a successful application under section 17. However, it is relevant to take into account the extent to which the proposed development would affect the appellants. They live in a residential area but in close proximity to a large and busy institution. The application proposes substantial development including first and second level extensions to an existing building and the construction of a two- level parking station. The development, therefore, has the potential to affect the amenity of the appellants to a significant degree and may well reduce the values of their properties." (my emphasis).

Justice Duggan also observed that there was a history of the appellants’ involvement in the development application. He found that this involvement suggested that the Environment, Resources and Development Court would derive some benefit from the continued involvement of the appellants whilst indicating, at the same time, the appellants' genuine interest in the issues to be debated at the hearing of the appeal.

Some of the counter balancing factors of relevance to the exercise of discretion on an application for joinder considered by Justice Duggan included the fact that the Court has an interest with ensuring that the proceedings before it do not become protracted or cumbersome. Justice Duggan found that it is relevant ”... to consider the extent to which the issues which the appellants would raise coincide with the issues to be raised by the parties as of right to the appeal". He also added that the number of parties seeking to be joined to the proceedings is a matter of some importance.

His Honour the Chief Justice in his judgment added some comments of his own on the scope of the power given by sl7. He made the point that the power to make an order for joinder under sel7 "... involves making a judgment in light of the facts with the case before the ERD Court". He expressed the view that:

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...important factors in any such case will be the nature and strength of the interest of the applicant for joinder in the decision under appeal, the contribution which the applicant for joinder is likely to be able to make to a proper resolution of the issues before the ERD Court and whether the interest which the applicant for joinder represents and the material to be advanced by that person will be adequately dealt with by the parties already before the ERD Court. It will also be appropriate for the ERD Court to consider the impact upon the proceedings of the joinder. The Court can and should consider the interests of the parties before it as of right and the public interest in the prompt and efficient dispatch of proceedings. In addition, of course, there will in each case be other factors particular to the case.

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The Chief Justice noted that an order for joinder in favour of the appellants necessarily has an effect on the proceedings before the ERD Court He added that:

The interests represented in the proceedings are no longer confined to the applicant for the planning approval and the planning authority. But that is the inevitable consequence of any order for joinder. The potential for such a change in the nature of the proceedings is a necessary consequence of the conferral of the power to join.

The Chief Justice went on to express his view in the following terms.

In my opinion the impact of an order for joinder upon the proceedings is not a reason for taking a narrow view of the circumstances in which an order for joinder can be made. The test which an applicant for joinder must pass necessarily embraces both the establishment of a sufficient interest and the establishment of factors which make it appropriate to make an order for joinder in the particular case. On this approach, the making of an order for joinder does not mean that a legislative scheme conferring no third party rights for appeal has been converted into a scheme in which such rights are available. The true position is that a third party still cannot institute an appeal, and can be joined only if in the particular circumstances of the case there are factors making it appropriate to do so. Joinder will never be made as of course.

It would seem that the decision of the Full Court in Calvary has the very real potential to open the door wider than has been the case in the past for persons who wish to be joined as parties to the proceedings before the ERD Court It is to be noted as well that the power to join parties pursuant to sl7 includes not just planning appeals but also proceedings such as s84 enforcement notice appeals and proceedings commenced pursuant to s85 of the Development Act. The principles in Calvary apply with equal force to such other proceedings.

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