Adelaide City Investments Pty Ltd v Adelaide City Council - [2004] SASC 309

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ADELAIDE CITY INVESTMENTS PTY LTD v ADELAIDE CITY COUNCIL
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Gray)
29 September 2004
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CLASSIFICATION OF USES
Appeal against the decision of the Environmental, Resources and Development Court - Appellant made an application to Council for development approval to use land as off-street public and private car-parking - Council determined that use of land was open lot parking and therefore non-complying use - whether proposed development is a non-complying development - whether the proposed use of land involved a change of use - whether change of use can be classified as open lot parking - appeal dismissed.
Development Act (1993) (SA) s 35(4), s 39(4)(d), s 86(1)(a)(iii); Development Regulations 1993 (SA) reg. 16(1), reg. 17(3), schedule 3 para 5(1), referred to.
Prestige Car Sales Pty Ltd v Corporation of the Town of Walkerville (1979) 20 SASR 514; Ronecast Caterers Pty Ltd v Davis (1981) 26 SASR 545; Davenport v Waverley Municipal Council (1981) 46 LGRA 97; Minister of Environment and Planning v District Council of Stirling (1990) 53 SASR 505, considered.

ADELAIDE CITY INVESTMENTS PTY LTD v ADELAIDE CITY COUNCIL
[2004] SASC 309
Full Court Doyle CJ, Duggan and Gray JJ

DOYLE CJ Adelaide City Investments Pty Ltd (“the applicant”) applied to the Adelaide City Council (“the Council”) for development approval to use a portion of land at North Terrace Adelaide as “Off-street public and private car park”. The land is part of the property known as Ayers House, a building of heritage significance.
The Council was required to determine the nature of the proposed development: Regulation 16(1) of the Development Regulations 1993. The Council determined that the proposed development was the use of the site “as an off-street private and public open lot car parking area”.
The land in question is within the East End Precinct designated by the Adelaide (City) Development Plan. That plan contains a statement of Objectives and Principles of Development Control that apply in that precinct, in addition to those that apply to the whole of the Council area. Principle 29 that applies in the East End Precinct identifies certain kinds of development as non-complying in the Precinct. Those developments include a change of use to any of a number of listed uses. One of the listed uses is “open lot parking”. As I understand it, this case has proceeded on the basis that the Council determined that the proposed use of the land was open lot parking, and so was a non-complying use.
By s 39(4)(d) of the Development Act 1993 (SA) (“the Act”) a relevant authority (the Council in this case) may
“(d)refuse an application that relates to a development of a kind that is described as a non-complying development under the relevant Development Plan without proceeding to make an assessment of the application.”
Regulation 17(3) of the Development Regulations is to the same effect.
The Council refused the applicant’s application without proceeding with an assessment of the application. No appeal lies against the refusal of Development Plan consent to a non-complying development: s 35(4) of the Act. However, the applicant appealed to the Environment Resources & Development Court (“the ERD Court”) against the Council determination that the proposed development is a non-complying development. The right of appeal is conferred by s 86(1)(a)(iii) of the Act. The ERD Court dismissed the appeal. The applicant has appealed to this Court.
Two issues arise on appeal. First, does the proposed use of the land involve a change of use of the land? The proposed use will not be “development” for the purposes of the Act unless it involves a change of use. In any event, Principle 29 refers to a change of use. The applicant submits that there is no change of use of the land, and that if the proposed use is “open lot parking”, the land was being used for that purpose before the applicant’s use of the land began. The second issue is, if there is a change of use, is the change to “open lot parking”? The applicant submits that the proposed use of the land is not open lot parking. It submits that the use is properly described as car parking for the public and for people visiting or using Ayers House.
Facts
The Judge’s findings of fact were not challenged. I will summarise them.
The land in question is part of Ayers House. It is to the east of Ayers House itself. Access to the land is available from North Terrace. On the land there is space to park 42 motor cars.
Statutory planning controls applied to the land from June 1972. At that time the National Trust had begun to use Ayers House for offices, a museum and as a caretaker’s residence. Part of the land in question, the part closer to North Terrace, was already in use as a car park for persons visiting or using Ayers House. The car parking area was occasionally used by members of the public for purposes unconnected with Ayers House, but that use was tolerated rather than permitted.
In 1973 a restaurant was established in part of Ayers House. The car park was extended to the south, in connection with the establishment of the restaurant. The car park was then of the same size as it is now. Planning consent was granted in 1973 for the use of Ayers House as a licensed restaurant. It is common ground that that consent carried with it the right to use the adjacent parking area for the parking of cars in connection with the operation of the restaurant.
The Judge made the following findings, arising from these facts. First, that from 1973 the whole of the relevant land had become a car park: at [11]. Second, that from 1974 the northern part of the car park was allocated for the use of staff and volunteers of the National Trust, the balance being available to the restaurant for its patrons and staff: at [11]. My understanding of the Judge’s findings is that at times, such as of an evening, when the car park was not required for the use of people connected with the National Trust, the whole of it was used in connection with the restaurant. People trying to use the car park other than in connection with the restaurant or Ayers House were discouraged from doing so: [12]. Third, the Judge made the following findings:
“[27] I find that, by 1973, the use of the carpark site was for a carpark ancillary to the use of the buildings on the property, which then, as now, was for a restaurant, function facility, offices, museum and caretaker’s residence
…
[31] The existing use of the carpark site was the same until December 2000 as it had been in 1973. Occasional parking which was not ancillary to the use of Ayers House, but which was not invited or encouraged, could not and did not change it. The purpose of the existing use was to provide a facility for users of the buildings on the land.”
In December 2000 Parkfast (Aust) Pty Ltd (“Parkfast”), a company related to the applicant, entered into an agreement with the Minister for Government Enterprises (the proprietor of the land) giving that company an exclusive licence to operate and manage the car park. The applicant is acting as agent for the company. The agreement entitled the company to install ticket vending machines, and to manage the car parking area as a car park available to members of the public on payment of the appropriate fee. Subject to any legal restraints, the company was entitled to operate the car park for 24 hours a day. Signs were placed on North Terrace advertising the car park.
I accept the submission by Mr Roder for the Council, that under the agreement the Minister can require up to 16 parking spaces to be available for the parking of motor cars registered in the names of members of the National Trust and in the names of persons working at the restaurant and conference facility on the land or in the name of patrons attending the restaurant or conference facility. However, I accept Mr Roder’s further submission that, having regard to the terms of the agreement and the evidence before the Court, no spaces are to be allocated on a permanent basis for the use of those people. The whole area will usually be available for public use, on payment of the appropriate fee. However, the Minister may require up to 16 spaces to be set aside on a particular occasion or at a particular time for the use of the persons just referred to.
Parkfast began to operate the car park in about December 2000. It did not apply for development approval until May 2002.
Change of use
I agree with the Judge’s finding that before December 2000 the relevant land was used for car parking ancillary to the use of Ayers House by the National Trust and for the purposes of a restaurant. As the Judge said at [31]:
“Occasional parking which was not ancillary to the use of Ayers House, but which was not invited or encouraged, could not and did not change it.”
That use of the land was lawful because of existing use rights held by the National Trust and by virtue of the planning consent granted in 1973 for the operation of a restaurant in Ayers House.
I agree with the Judge’s finding that the proposed use is a change of use.
Deciding whether a change of use has occurred or will occur involves considering both the activity on or use of the land before and after the postulated change of use, that activity being viewed objectively, and the purpose of the use. The relevant principles are well established. The Judge referred to the decision of Wells J in Prestige Car Sales Pty Ltd v Corporation of the Town of Walkerville (1979) 20 SASR 514, in which the relevant principles are summarised in a manner frequently referred to with approval. As Wells J said in that case, the relevant principles are not “hard and fast rules”. They involve consideration of matters of fact and degree.
It is true that after December 2000 there was no change to the location, size or configuration of the car park. It is also true that, viewed objectively, car parking continued on the land as before. But the change from December 2000 is not simply that thereafter users of the car park were required to pay a fee. The use of the car park from December 2000 was no longer ancillary to the use of Ayers House, except if and when a particular person happened to park a car in the car park in connection with the use of Ayers House. I consider, that having regard to the purpose of the use of the car park until 2000, and the purpose of the proposed use from December 2002, and having regard to all the circumstances, the use of the land from December 2002 was as a public car park, and no longer as a car park ancillary to or in connection with the use of Ayers House. At best, from the applicant’s point of view, a new use had been added, even if the existing ancillary use continued.
As I have said, the present case is one in which the purpose of the use is significant. A use of land ancillary to another (predominant) use of land is not regarded for planning purposes as a use in its own right: see Ronecast Caterers Pty Ltd v Davis (1981) 26 SASR 545 at 546 – 547 King CJ and at 548 – 549 Sangster J; Davenport v Waverley Municipal Council (1981) 46 LGRA 97 at 108-109 Cripps J; Minister of Environment and Planning v District Council of Stirling (1990) 53 SASR 505 at 512-513 Matheson J. Thus, schools, churches, residential flats and offices, for example, often have car parking spaces adjacent to them. The use of that land for car parking does not require separate planning approval if the purpose of the use of those spaces is in connection with and ancillary to the use of the relevant building. Such a use of car parking spaces is, for planning purposes, treated differently from a use of those same spaces for the parking of cars by the public for purposes unconnected with the use of the relevant building.
This fundamental principle of planning law is recognised by Schedule 3 of the Development Regulations. Schedule 3 sets out “Acts and activities which are not development”. By paragraph 5(1) they include:
“(1) The use of land and the use of any lawfully-erected building which is ordinarily regarded as (and is in fact) reasonably incidental to any particular use of the land and the building, or the land or the building, and which is for the substantial benefit of the person or persons who, in any capacity, are making use of the land and the building, or the land or the building.”
Mr Hayes QC, counsel for the applicant, relied on the fact that the size and layout of the car park were unaltered, the fact that people visiting or using Ayers House would continue to park there, and the fact that in the past there had been occasional use of the car park by members of the public not using Ayers House. As I have already mentioned, on the Judge’s findings that latter use of the car park was sometimes tolerated, sometimes discouraged, sometimes prevented. I accept that these points are matters to be considered. Nevertheless, I agree with the Judge’s conclusion, when all matters are taken into account. Certainly, there is no error of principle in the Judge’s approach. That being so, this Court would be reluctant to interfere with her conclusion, reached after applying the correct principles to the facts of the case. In any event, I agree with her conclusion.
Accordingly, the proposed use involves a change of use, unless it can be said that before December 2002 the existing use was for open lot parking. It is convenient to deal with that issue in a moment.
Open lot parking
The Development Plan does not define the expression “open lot parking”.
As a starting point, it must be the case that this expression is not intended to embrace or include the use of the land for parking before December 2002. That use of the land was not a separate use. It would not make sense to treat an ancillary use of land as a non-complying development.
On that basis I am satisfied, as was the Judge, that before December 2002 the land was not used for “open lot parking”. The submission by Mr Hayes that if the use of the land after December 2002 was for open lot parking, the use of the land before December 2002 was also for open lot parking, must be rejected.
It does not follow that the use of the land after December 2002 was open lot parking. That requires separate consideration.
The car park in question is open. Car parking does not take place within a building or structure on the land. It takes place on open land. The use of the land as a public car park is a freestanding or distinct use, not ancillary to the use of other parts of the land. So the land is used for car parking by the public, meaning that there is a separate and identifiable use of the land taking place. That being so, I can find no reason to differ from the Judge’s conclusion that the proposed use is for open lot parking. That conclusion is not one that offends common sense. Nor does it offend any basic planning principle. It is not necessary to attempt to define exhaustively what open lot parking is. It suffices to say that in the present case the proposed use is for open lot parking.
Even if the correct position is that the land is being used for mixed purposes, those purposes including parking ancillary to the use of Ayers House, I am satisfied that the mixed purposes include open lot parking. The proposed use of the land by the applicant is distinct from the use of the land for car parking ancillary to the use of Ayers House, and is a substantial use. The use proposed by the applicant is not so insignificant in its extent, or so transitory, that it can be disregarded.
However one views the matter, I agree with the Judge that the application to the Council was to use the land in question for open lot parking, which use is a non-complying kind of development.
Conclusion
The proposed use of land is a non-complying development. The Council was entitled to refuse the application without assessing it. The appeal against the decision of the ERD Court should be dismissed.
DUGGAN J In my view the appeal should be dismissed for the reasons given by the Chief Justice.
GRAY J This appeal should be dismissed. I agree with the reasons of Doyle CJ.