ACN 068 691 092 Pty Ltd v City of Charles Sturt
[2009] SASC 127
•15 May 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge)
ACN 068 691 092 PTY LTD v CITY OF CHARLES STURT
[2009] SASC 127
Judgment of The Honourable Chief Justice Doyle
15 May 2009
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONTROL OF PARTICULAR MATTERS - SUBDIVISION - PRINCIPLES GOVERNING CONSENT OR APPROVAL - CONSIDERATION OF DEVELOPMENT PLAN
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - EXISTING USES - DEVELOPMENT APPLICATIONS WHERE SUBSISTING EXISTING USE RIGHTS - CHANGE OF USE - PARTICULAR CASES
Respondent Council refused application for provisional Development Plan Consent for division of subject land into three allotments - land in a residential zone - appellant proposed that two of the new allotments be used for residential housing - the third allotment had on it a layer of hydrocarbon requiring remediation and a building previously used industrially - during negotiations with the Council, appellant asserted an existing use right to use the building for industrial purposes - before the Commissioner, appellant asserted that any existing use rights had lapsed and that the third allotment would be used for residential purposes - the Development Plan specified that the desired future character of the area include the replacement of sites used for commercial purposes with housing after decontamination has occurred - one of the principles contained in the Development Plan specified that existing industrial or commercial uses should be replaced with housing - Commissioner found that division of land did not warrant Development Plan Consent.
HELD: appropriate to proceed on the basis that there might be existing industrial use rights in respect of the land and that the building would remain on the land - mere assertion that proposed division of land is for residential purposes does not terminate existing use rights - proposal does not satisfy the desired future character of the area since it was unlikely that decontamination would occur before previous uses of land are replaced by a use for housing - cannot be said unequivocally that proposal satisfies principle in Development Plan that existing uses be replaced with housing - open to Commissioner to conclude that Development Plan Consent should not be granted - appeal dismissed in relation to refusal of provisional Development Plan Consent.
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENTAL, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - OTHER MATTERS
After the hearing of the appeal in the Environment, Resources and Development Court, but before the Commissioner delivered judgment, appellant applied to re-open its case - section 29 of the Environment, Resources and Development Court Act 1993 (SA) confers on the Court a power to award costs if a party applies for an adjournment and the Court grants the adjournment - Commissioner dismissed application and, relying on s 29, ordered that the appellant pay the Council's costs of the application - appeal against decision of Commissioner to make an order for costs in favour of the Council.
HELD: Environment, Resources and Development Court has no power in the ordinary case to make an order for costs - application to re-open case not an application for an adjournment for the purposes of s 29 - in any event, Commissioner dismissed appellant's application - power to award costs in s 29 not enlivened - nothing to suggest that application was frivolous or vexatious for the purposes of s 17(4) of the Act - appeal allowed - order for costs made by Commissioner set aside.
Development Act 1993 (SA) s 33(1)(c)(i), s 39(3); Environment, Resources and Development Court Act 1993 (SA) s 17(4), s 29(2), s 30(1)(b), s 30(2), s 86, referred to.
ACN 068 691 092 Pty Ltd v City of Charles Sturt (No 2) [2008] SAERDC 92; City of Port Adelaide Enfield v Moseley (2008) 254 LSJS 217, discussed.
WORDS AND PHRASES CONSIDERED/DEFINED
"adjourn", "adjournment"
ACN 068 691 092 PTY LTD v CITY OF CHARLES STURT
[2009] SASC 127
DOYLE CJ: Mr Scragg applied to the City of Charles Sturt (“the Council”) for provisional Development Plan Consent and Land Division Consent for a proposed division of land. The proposal was for the division of one allotment into three allotments.
The Council asked Mr Scragg for some additional information.
After some time, and some discussions and negotiations between Mr Scragg and the Council, by Decision Notification Form the Council refused to consent to the proposed division of the land, because the required information had not been supplied: see s 39(3) of the Development Act 1993 (SA) (“the Act”).
The appellant company appealed to the Environment Resources and Development Court (“the ERD Court”) against that decision. No point has been taken on the fact that the company was not the applicant to the Council.
On 23 December 2008 the ERD Court (constituted by a Commissioner) dismissed the appeal. The Commissioner found that the proposed division of land did not warrant Development Plan Consent.
On 20 February 2009 the appellant filed a Notice of Appeal in this Court. The Notice includes an application for an extension of time within which to institute the appeal. The Notice of Appeal was filed 18 days late, after allowing for the Christmas vacation.
By s 30(1)(b) of the Environment Resources and Development Court Act 1993 (SA) (“the ERDC Act”) the appeal lies to this Court constituted of a single judge.
The issue on which the appeal turns is whether the Commissioner erred in law in the approach that he took to the question of whether consent should be granted. If he did not err in law, the remaining question is whether the planning judgment that the Commissioner made should be reversed. The decision can be challenged on the latter ground only if I grant permission because it is ultimately a question of fact: s 30(2) of the ERDC Act.
In the same Notice of Appeal the Company appeals against an order for costs that the Commissioner made against the Company on 3 November 2008, after refusing an application by the Company to reopen the hearing of the appeal.
The land and the proposed division of the land
The land is at 53 Wood Avenue Brompton. Brompton is an inner city suburb. The primary frontage of the land is to Wood Avenue, with a secondary frontage to Third Street. The land is on the corner of Wood Avenue and Third Street.
At the rear of the land is a besser brick building with a corrugated iron gable roof. My impression is that the building has been there for a good many years. Evidence before the Commissioner (which was very general in its nature) suggested that the land had been used in the past for an industrial purpose of some kind, and more recently for the production of olive oil. At the time of the hearing the building was empty.
At times in his dealings with the Council Mr Scragg claimed an entitlement (relying on existing use rights) to use the building for industrial purposes or as a warehouse. However, before the Commissioner he said that any existing use rights had lapsed and that the proposed use of the land was residential.
The characterisation of the existing use of the land, and the question of whether existing use rights existed, assumed some significance before the Commissioner. He found that the land “continues to enjoy existing use rights for industry”: ACN 068 691 092 Pty Ltd v City of Charles Sturt (No 2) [2008] SAERDC 92 at 7.
The proposed division of the land entails the creation of three allotments. Allotments 841 and 842 front Wood Avenue. The area of the allotments is 221 square metres and 223 square metres respectively. Allotment 843 fronts Third Street and has an area of 252 square metres.
The building to which I referred is within allotment 843 and occupies about two-thirds of the area of that allotment.
There was evidence before the Commissioner that proposed allotment 843 is unsuitable for residential use in its present state. On it is a layer of fill about half a metre thick that is highly contaminated as a result of earlier land uses. Before the land could be used for residential purposes that layer would have to be removed. Further measures might be required to make the land suitable for residential use.
The locality
I adopt the Commissioner’s description of the locality. There is no issue on appeal as to the Commissioner’s identification of the extent of the locality, nor does the appeal turn on that matter. As to the character of the locality, the Commissioner said that it was “predominantly residential”, but contained a number of non-residential land uses. These included warehouses, an arts studio and a community club. Allotment sizes in the locality vary. In one part of the locality they vary from 205 square metres to 335 square metres. In another part they vary from 291 square metres to 399 square metres. In another part of the locality allotments are larger, ranging in size from 534 square metres to 831 square metres. Frontages and depths of allotments also vary. Setbacks vary from about three metres to about five metres. The age, style and height of residential development in the locality varies considerably, there being a mixture of one and two storey buildings in the locality, and a mixture of detached, semi-detached and row dwellings. The expert planner called by the Council described the locality as having a “compact urban character”.
The Development Plan
The land is situate within a Residential Zone. Again, I draw on the Commissioner’s summary of the provisions of the Development Plan.
Objective 1 and Objective 2 for the Residential Zone are as follows:
Objective 1: A zone of residential character, high level of amenity and safe, convenient and distinctive living environments for all residents, provided by housing and local community facilities that complement the living environment.
Objective 2: A zone accommodating dwellings of various types and tenures at low and medium densities and of one to two storeys height.
Principle 3 provides that development in the Zone “… should conform to the desired future character identified in the relevant Policy Area”.
The land is within Inner Suburban Policy Area 1 (“the Area”).
The Desired Future Character for the Area is as follows:
Desired Future Character
This policy area should be characterised by a diversity of housing types including detached and semi-detached dwellings and row dwellings up to two storeys. Dwellings should exhibit innovative and contemporary design forms and integrate well with the areas cosmopolitan and historic character of late 19th century and early 20th century dwellings. Sites previously used for commercial purposes should be replaced with housing after, where necessary, decontamination has occurred.
Principle 2 of the principles applicable to the Area includes the following statement:
2 Existing industrial or commercial uses should be replaced with housing…
Principle 8 sets out minimum site areas for particular types of dwelling. For a detached dwelling and a semi-detached dwelling, the minimum site area is 250 square metres. For a row dwelling it is 220 square metres.
Principle 9 provides as follows:
9 Variations to principle of development control 8 may be considered as follows:
(a) in the case of detached, semi-detached and row dwellings, the minimum site area may be reduced by 15 percent where:
…
(ii)the development involves the replacement of a non-complying use …
Before the Commissioner and on appeal the question of whether the proposed division of land should be assessed against the Development Plan on the basis that an allotment area less than the minimum site area was acceptable assumed some significance.
I add the following references from the council wide provisions of the Development Plan. Principle 250 states:
250In order to prevent harm to human health or the environment, development should not be undertaken on contaminated land or on potentially contaminated land unless:
(a) the land is remediated to a level that makes it suitable and safe for the proposed use; or
(b) the land will be maintained in a condition or the development will be undertaken in a manner that will not pose a threat to the health and safety of the environment or occupiers of the land or land in the locality.
The Commissioner’s assessment of the proposed division
As I have mentioned earlier, the Commissioner found that existing use rights for industrial purposes attached to the land.
In the alternative, if he was wrong on that point, he found that there was no lawful use established for the land.
He therefore considered the proposed division on the assumption that there were existing use rights for industrial purposes, and on the alternative assumption that those rights had lapsed.
The Commissioner first considered the size of the allotments. He noted that in dealings with the Council Mr Scragg had asserted a right to continue to use the existing building on proposed lot 843 for industrial purposes. Before the Commissioner, Mr Scragg (who conducted the case for the appellant before the ERD Court) argued that the proposed division should be assessed on the basis that it satisfied principle 9(a)(ii) above, because he proposed that the land would be used for residential purposes. On the evidence proposed allotment 841 was 11.6 per cent below the minimum site area specified by principle 8, and proposed allotment 842 was 10.8 per cent below the minimum.
The Commissioner rejected the argument that the proposed division should be assessed by reference to principle 9(a)(ii). If there were existing use rights for industrial purposes, the proposed development (the division of the land) did not involve the replacement of a non-complying use. If there were no such rights, then the proposed development did not involve the replacement of a non‑complying use, because any entitlement to put the land to a non-complying use had lapsed.
I should add that it was part of the applicant’s case before the Commissioner that the existing building on proposed allotment 843 could be modified to render it suitable for residential use. That possibility was not explored in any detail.
The Commissioner’s conclusion that the division of the land for residential use in the form proposed did not warrant Development Plan Consent rested on the following propositions.
First, that retention of the existing building was at odds with the desired character for Inner Suburban Policy Area 1. The proposed division of land conflicted with the desired character for that Area, because it contemplated housing on proposed allotments 841 and 842 before, rather than after, decontamination of the soil on proposed allotment 843 had occurred. It was possible, indeed on the applicant’s proposal likely, that decontamination would occur in close proximity to established residential uses on proposed allotments 841 and 842.
Next, the Commissioner emphasised the importance of minimum standards for site areas and, for the reasons explained above, took the view that the proposed division should not be assessed on the basis that it “… involves the replacement of a non-complying use”.
For those reasons the Commissioner concluded that development in the form proposed did not warrant consent.
The Commissioner considered separately the question of whether the proposed division should receive consent on the basis that it was for the purpose of industrial use. Mr Hayes QC, counsel for the appellant before me, did not suggest that the proposed division warranted consent on this basis, and so there is no need to examine that aspect of the Commissioner’s decision any further.
Consideration of appeal
I consider that the proposed division of the land is to be assessed against the provisions of the Development Plan on the basis that the building referred to is to remain on the land, on the basis that the building has an industrial character, and on the basis that while the proposed use of the allotments is for residential purposes, there might or might not be existing use rights attaching to the land that would enable the land and building to be used in the future for industrial purposes or commercial purposes.
I accept that the proposed division is for residential purposes. However, it was Mr Scragg himself who introduced the consideration that there might be existing use rights attaching to the land which would enable proposed allotment 843 to be used in future for industrial or commercial purposes. It is not necessary, in my opinion, to decide whether that contention is correct or not. But the proposed development has to be considered on the basis that the contention might be correct. Accordingly, it cannot be said that the proposed development is for the division of land into allotments that will be used for residential purposes.
I do not accept the submission by Mr Hayes that the assertion now made by the Company that the proposed division of the land is for residential purposes terminates any existing use rights that might exist.
The next point to be made is that the proposed division satisfies the requirements of s 33(1)(c)(i) of the Act, in that the proposed allotments “may be lawfully used for the purposes proposed by the applicant”.
Against that background I consider that the Commissioner’s first proposition carries substantial weight. The retention of the existing building on proposed allotment 843, and the absence of any definite proposal for decontamination of the soil on that allotment, does mean that the proposed division does not satisfy the Desired Future Character stipulated for Inner Suburban Policy Area 1. Decontamination of the soil may occur after rather than before housing is erected on proposed allotments 841 and 842.
Nor does the proposed division satisfy principle 2 (above) that applies to this Area. Having regard to the possible existence of a continued entitlement to use proposed allotment 843 for industrial or commercial uses, the proposed division goes some way towards replacing existing industrial or commercial uses with housing, but does not do so entirely.
That leaves the question of the minimum site area for proposed allotments 841 and 842.
In my respectful opinion the Commissioner took an unnecessarily strict approach on this matter.
I do not consider that principle 9(a)(ii) would be inapplicable, were one to conclude that existing use rights for industrial and commercial purposes in relation to proposed allotment 843 had lapsed. The proposal could still be said to “involve” the replacement of a non-complying use, if it proposed the division of land into allotments for residential purposes because the effecting of those purposes (by the construction of residences) would in due course, and as a matter of ordinary speech, replace the industrial or commercial use of the land with a residential use of the land.
As well, proposed allotment 843 has a site area that complies with principle 8, if the allotment is to be used for residential purposes.
However, the difficulty from the appellant’s point of view is the circumstance that the proposed division must be assessed on the basis that existing use rights for a non-complying use might exist in relation to proposed allotment 843, with a consequence that principle 9(a)(ii) is not satisfied. The proposal is one that might involve the replacement of a non-complying use, but it might not, should the appellant decide to continue to use the existing building for a non-complying use (and prove an entitlement to do so) in the event that the conversion of the existing building to a residence is no longer desired by the appellant or is not a practical proposition.
In that event the further point can be made that proposed allotment 843 has an area that falls far short of the minimum size required for new allotments for industrial purposes.
To summarise, in my opinion the obstacles to the grant of consent are these.
First, the proposal does not satisfy the aim of the Plan that decontamination of the land occur before rather than after previous uses of the land are replaced by a use for housing.
Second, the retention of the existing building and the possibility of the continued use of that building for industrial or commercial uses means that the proposed division is not one which in an unqualified way contemplates the replacement of existing uses with housing.
Third, there is not a persuasive case for permitting a site area less than the minimum specified by principle 8, having regard to the fact that the proposed development would permit the continuance of a non-complying use on proposed allotment 843, should there be existing use rights in respect of that allotment.
In short, while my approach treats the proposed development as satisfying the requirement for the Desired Future Character and principles 8 and 9 in a qualified way, rather than as not satisfying them at all, in my opinion the Commissioner’s ultimate conclusion is not eroded. There is in fact a conflict between the proposed division of land and these significant provisions of the Development Plan, and in those circumstances it was open to the Commissioner to conclude that Development Plan Consent should not be granted.
It is implicit in what I have said that, in my opinion, the Commissioner has not erred in law when one comes to the central part of his reasoning. On my approach it was not necessary for him to decide whether or not a right to use the proposed land for industrial or commercial purposes continued to exist. It was sufficient to note that such a right might exist. Nor was it necessary or appropriate, in my opinion, to consider the matter on the basis that no lawful use for the land had been established.
But if in that respect the Commissioner erred in law, that error does not affect the central part of the Commissioner’s reasoning.
Coming then to the ultimate planning judgment that the Commissioner made, I acknowledge that the matter is finely balanced. For that reason, I grant permission to appeal on grounds of fact. But this Court has said on many occasions that it is not appropriate for it to substitute its judgment on the planning merits, unless it is satisfied that the planning judgment of the ERD Court manifests a clear error. I am not persuaded that any such error is manifest. The decision that the Commissioner made was open to him on the facts.
Accordingly, I am not persuaded that the Commissioner erred.
Mr Hayes submitted that the Commissioner had wrongfully failed to consider whether consent should be granted subject to conditions relating to the removal of contamination on proposed allotment 843. I consider that Mr Billington, for the Council, was correct in submitting that the answer to this submission is that this was not proposed by the appellant (indeed such a condition was opposed), and in addition the question of soil remediation is by no means a straightforward one, and would require the investigation and consideration of a number of matters that have not been considered by either the Council or by the Commissioner.
Accordingly, I dismiss the appeal against the refusal of Development Plan Consent.
I have some sympathy for the company. The obstacle that it faces is the reverse of that faced by the respondent in City of Port Adelaide Enfield v Moseley [2008] SASC 88; (2008) 254 LSJS 217, in which the respondent applied for provisional Development Plan Consent to redevelop an allotment in a manner that would require the division of the land into two allotments. No consent had been obtained for that division. In the present case assessment of the proposed division entails a consideration of the future use of the land, and a possible change of use.
I am prepared to extend the time within which to institute the appeal to 20 February 2009, the date on which the Notice of Appeal was filed. I do so on the basis that the appellant has an arguable point and on the further basis that the combination of the Christmas vacation and Mr Scragg taking holidays is a sufficient explanation for the delay. However, it is appropriate to record that I agree with Mr Billington’s submission that the affidavit filed by Mr Scragg to support the application for an extension of time should have provided a more complete explanation than it does. Mr Scragg is an experienced legal practitioner. He should have realised that more was required by way of explanation for the delay than he provided.
I turn to the appeal against the order for costs. The extension of time applies to that appeal also. Although the delay is much greater, I accept the submission by Mr Hayes that an appeal against the costs order before the Commissioner had decided the case on the merits might have been met with the response that the appeal, in any event, should be put to one side until the ERD Court had dealt with the substance of the matter.
The Commissioner ordered the appellant to pay the costs of an unsuccessful application by the appellant to reopen the proceedings, after the hearing of the appeal had concluded. As I understand the Commissioner’s reasons, he rejected each of the bases put forward in support of the application.
The ERD Court Act does not confer on the ERD Court a general power to order payment of costs of the kind exercised by this Court and commonly by other courts. The jurisdiction exercised by the ERD Court under s 86 of the Act is commonly, if slightly inaccurately, described as a “no costs” jurisdiction. The starting point is that the ERD Court has no power in the ordinary case to make an order for costs, and in particular no power to approach the question of costs on the basis that ordinarily costs should follow the event.
Section 29 of the ERD Court Act confers on the Court the power to make an order for costs in certain specified situations. By s 29(2) the Court may make an order for costs if a party to proceedings before the Court “… applies for an adjournment of the hearing …” or so conducts itself that it is “… appropriate or necessary for the Court to adjourn the hearing of the proceedings…” and the Court adjourns the proceedings. This is the power which the Commissioner purported to exercise in making an order for costs against the appellant.
Mr Billington submits that the application to reopen the hearing of the appeal was, in effect, an application for an adjournment of the hearing. Had it been made at the conclusion of the hearing, it would have been correctly expressed as an application for an adjournment, because if successful the application would have resulted in an adjournment of the hearing to a day when further submissions could be heard.
I acknowledge the force of this submission. I agree that the provisions of s 29 should not be read too strictly. However, I am not persuaded that the application to reopen the hearing was an application for an adjournment of the hearing, for the purposes of s 29(2). Bearing in mind that the ERD Court has no general power to award costs, and that s 29(2) is one of several limited powers in relation to costs, I consider it appropriate to give the language of the provision its ordinary meaning. In my opinion, in the ordinary sense of the term, the appellant did not apply for an adjournment or make an adjournment of the proceedings appropriate or necessary. But even if Mr Billington is correct, the Court did not in fact adjourn the proceedings. The power given by s 29(2) to make an order for costs is attached to an order adjourning the proceedings. The power does not arise if the adjournment application is refused. I consider that s 29(2) does not support the order that the Commissioner made.
In the alternative Mr Billington invokes s 17(4) of the ERD Court Act, which gives the Court power to dismiss or determine proceedings that appear to be frivolous or vexatious, and in that event to make an order for costs. The Commissioner did not purport to rely upon this provision, nor did he indicate that the application was frivolous or vexatious. There is no suggestion that it was made with a view to delay or obstruction. In the circumstances, I consider that s 17(4) does not support the order that the Commissioner made.
I set aside the order for costs. Subject to that, I dismiss the appeal.
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