Aldridge v Johnston - [2016] SASCFC 99

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ALDRIDGE v JOHNSTON & ANOR
[2016] SASCFC 99
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Bampton)
8 September 2016
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - APPLICATIONS - OBJECTIONS
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - EXISTING USES - CONTINUANCE OR CHANGE OF USE - PARTICULAR CASES
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - SUPREME COURT - ERRORS OF RELEVANT AUTHORITY
Appeal against a decision of a Judge of the Environment, Resources and Development (ERD) Court.
The appellant was an applicant for development approval from the second respondent (the Council) to establish a farmers market in a hotel carpark. The Council granted development approval and classified it as an on-merit form of development.
The first respondent objected to the proposal, and appealed to the ERD Court on the grounds that the development was for a shop or group of shops, and should have been treated as non-complying in accordance with the Council’s development plan. A Judge of the ERD Court allowed the appeal and set aside the Development Plan Consent and Development Approval, remitting it to the Council for determination.
The appellant appeals against the decision of the ERD Court on the grounds that the Judge erred in determining that the proposed farmers market development was included within the definition of a shop.
Held per Kourakis CJ (Kelly and Bampton JJ agreeing), dismissing the appeal:
1. The word premises in the definition of a shop should be construed widely in order to promote the object of the Development Act 1993 (SA).
2. The development of a farmers market added a use to the area of the carpark which was essentially different to its pre-existing use.
Development Act 1993 (SA) ss 3, 4, 6, 32, 33, 35, 86; Development Regulations 2008 (SA) sch 1; Landlord and Tenant (Amendment) Act 1948-1949 (NSW), referred to.
Skaventos v Vander-Lee (1974) 9 SASR 342; Prestige Car Sales Pty Ltd v Corporation of the Town of Walkerville and Shuttleworth (1979) 20 SASR 514, distinguished.
Turner v York Motors Pty Ltd (1951) 85 CLR 55, considered.

ALDRIDGE v JOHNSTON & ANOR
[2016] SASCFC 99
Full Court: Kourakis CJ, Kelly and Bampton JJ

KOURAKIS CJ: This is an appeal by Mr Mark Aldridge, the appellant, and applicant for development approval, against a judgment of the Environment, Resources and Development Court (the ERD Court) that his proposed establishment of a farmers market in the carpark of the Old Spot Hotel on Main North Road, Salisbury Heights was a non-complying development.
Mr Aldridge applied to the City of Salisbury (the Council) for development approval (the application). The Council categorised Mr Aldridge’s application as one for a complying development which was to be assessed on the merits.
The Council gave notice of the proposal in the Advertiser Newspaper on 27 May 2015. However the notification procedures required for a non-complying development were not followed and the consent of the Development Assessment Commission was not obtained because of the Council’s decision to categorise the application as complying.
Mr Benjamin Johnston, the operator of a nearby fruit and vegetable shop, objected to the proposal.
The Council granted development approval to the appellant on 21 July 2015.
Mr Johnston both appealed to the ERD Court against the Council’s decision to grant consent and sought a review of the Council’s categorization pursuant to s 86(1)(b) and s 86(1)(f) of the Development Act 1993 (SA) (the Act). The Council and Mr Aldridge were respondents to the appeal. Mr Johnston contended on the appeal to the ERD Court that the proposed development was non-complying. The parties agreed to have that ground determined as a preliminary point because, if it were made good, the appeal would necessarily be allowed and the development approval set aside for non-compliance with the necessary procedural requirements.
The Judge found that the proposed development was non-complying and allowed the application for review. The Judge set aside the decision granting development plan consent and development approval and remitted the proposed development to the Council for processing and determination according to law.
Mr Aldridge appeals against that decision on the grounds that:
1The Learned Judge erred in holding that the definition of a shop in the Development Control Regulations included a stall.
2The Judge erred in applying the reasoning of the Full Court in the case of Skaventzos v Vander-Lee[1] as the basis for his reasoning in ground 1 hereof.
3The Judge should have found that the definition of shop in the regulations does not include the transient and unsubstantial character of the structures which are the subject of this appeal.
4In holding that the proposed use fell within the definition of a shop, the Judge erred in finding that the car park premises upon which the stalls were erected, were premises used primarily for the display and sale of goods.
5The Judge erred in relying on s 6(1)(c) of the Act for his conclusion in ground 4.
[1] (1974) 9 SASR 342.
The notice of appeal joined Mr Johnston as the sole respondent. Mr Johnston informed the Court that he would abide the event and did not otherwise appear on the appeal. The Court gave the appellant permission to join the Council as a respondent to his appeal, but on being satisfied that the Council did not wish to be heard, proceeded to hear the appeal without a contravener.
I would dismiss the appeal. As to grounds 1 to 3 I would hold that the word ‘premises’ in the definition of shop should be construed widely in order to promote the object of the Act. On grounds 4 and 5 I would hold that the development of a farmers market added a use to the area of the carpark which was essentially different to its pre-existing use. My reasons follow.
Statutory scheme
The Development Act
The Act relevantly provides:
4—Interpretation
...
development means—
...
(b)     a change in the use of land …
6—Concept of change in the use of land
(1)For the purpose of determining whether a change in the use of land has occurred, the commencement or revival of a particular use of the land will, subject to subsection (2), be regarded as a change in the use of the land if—
...
(c)the use is additional to a previously established use of the land which continues despite the commencement of the new use.
...
(6)For the purposes of this section, a particular use of land will be disregarded if the extent of the use is trifling or insignificant.
32—Development must be approved under this Act
Subject to this Act, no development may be undertaken unless the development is an approved development.
33—Matters against which development must be assessed
(1)A development is an approved development if, and only if, a relevant authority has assessed the development against, and granted a consent in respect of, each of the following matters (insofar as they are relevant to the particular development):
(a)the provisions of the appropriate Development Plan (development plan consent);
...
35—Special provisions relating to assessment against Development Plan
...
(3)A development that is of a kind described as a non-complying development under the relevant Development Plan must not be granted a development plan consent unless—
(a)where the relevant authority is the Development Assessment Commission—the Minister and, if the development is to be undertaken in the area of a council, that council, concur in the granting of the consent;
(b)in any other case—
(i)    unless subparagraph (ii) applies—the Development Assessment Commission;
(ii)     in prescribed circumstances—a regional development assessment panel,
concurs in the granting of the consent.
The Development Regulations
The Development Regulations 2008 (SA) (‘the Regulations’) relevantly provide:
Schedule 1—Definitions
...
shop means—
(a)premises used primarily for the sale by retail, rental or display of goods, foodstuffs, merchandise or materials; or
(b)a restaurant; or
(c)a bulky goods outlet or a retail showroom; or
(d)a personal service establishment,
but does not include—
(e)a hotel; or
(f)a motor repair station; or
(g)a petrol filling station; or
(h)a plant nursery where there is no sale by retail; or
(i)a timber yard; or
(j)service trade premises; or
(k)service industry;
The Development Plan
The Salisbury Council Development Plan schedules ‘shop or group of shops’ as a non-complying development, except if it is a ‘bulky goods outlet’ or the shop is a restaurant.
The Judge’s Reasons
The Judge made the following findings of fact about the operation of the proposed market:
·    The overall Market area upon which the Market operates comprises only part of the area of the Hotel car park but is, nevertheless, able to be clearly defined;
·    The individual stalls each occupy an open area of land which is understood by both the licensor and licensee to comprise an area of 3 m x 3 m;
·    No set or regular stall is allocated to any particular licensee. Stalls are allocated on a first to arrive basis;
·    Each individual stallholder is entitled, during the operation of the market, to conduct his or her business to the exclusion of all others, providing he or she pays the agreed fee and obeys the conditions of the licence;
·    The overwhelming majority of stallholders operate using only a gazebo and a form of trestle table;
·    The structures, comprising each stall, are such that they are easily able to be erected and equally easily later dismantled and removed.
The market was to operate from 8.00 am to 1.00 pm on Wednesdays and Saturdays.
The Judge’s reasons for finding the stalls to be shops were:
[37]As a result, I am satisfied that each individual stall, with its specified area of land upon which there is erected a gazebo and trestle and from which goods are displayed and sold, is ‘premises’ within the ordinary meaning of the word, namely an area of land with a building or structure erected upon it.
The Judge’s reasons for finding the development of the farmers market to be a new additional use of the land to its pre-existing use as a carpark were:
[40]Mr Aldridge submitted that because the land is used for market purposes for no more than 10-12 hours per week and as a hotel car park outside those hours, the ‘premises’ are not being used primarily for the sale/display of goods by retail.
[41]I do not agree. The Act contemplates that land may be used for more than one purpose.[2] Prior to the commencement of the Market the land was being used as a hotel car park. The commencement of the Market operation represented a change in the use of the land with the introduction of an additional and quite independent use to that of the existing car park use. Thereafter there have been two separate and distinct uses operating on the land. As a result, on the days and at the times when the Market is operating the area of land occupied by the Market stalls is primarily, if not exclusively, used for the retail display and sale of goods.
[2] s 6(1)(c).
The Appeal
It is convenient to deal first with grounds 1 to 3 and the question of whether a stall is included in the definition of a shop.
The question whether ‘shop’ should be read to include a stall in a planning context was considered by this Court in Skaventzos v Vander-Lee.[3] The definition of shop in the planning regulations then in force provided that a shop was ‘any premises used or designed to be used primarily for the sale by retail of goods, merchandise or materials’ but the definition expressly excluded roadside stalls. The construction of the primary definition of shop was therefore necessarily informed by the express exclusion of roadside stalls. Not surprisingly the Court in Skaventzos held that ‘a stall from which goods are sold by retail must necessarily be a shop’ and that only those stalls which were also roadside stalls were excluded from the definition. Skaventzos is therefore not authority for the proposition that a stall is a shop within the current definition in the Regulations which does not expressly exclude stalls. The Judge’s reliance on that decision was therefore misplaced.
[3] (1974) 9 SASR 342.
Be that as it may the Judge’s ultimate conclusion was nonetheless correct. As the Judge observed the word ‘premises’ is a protean term which takes its meaning from the context in which it appears. The word premises may in one context include a bare tract of land, but in another mean only a substantial building.
In Turner v York Motors Pty Ltd[4] the defendants were the tenants of vacant land which they used as a caryard. They contested a notice to quit land on the ground that the bare land was prescribed premises and that they were therefore entitled to special procedural protections pursuant to the Landlord and Tenant (Amendment) Act 1948-1949 (NSW). Dixon and Williams JJ held that the trial Judge had correctly directed the jury that the premises were not prescribed premises because bare land did not fall within the statutory definition of premises.
[4] (1951) 85 CLR 55.
Dixon J relied on earlier authority on the construction of the word ‘premises’ in landlord and tenant legislation from three jurisdictions which had held that the word did not include vacant land without more but as requiring something in the nature of buildings before land could be considered as ‘premises’. Justice Dixon explained that the meaning of the word premises is uncertain but that in landlord and tenant legislation it was advantageous to adopt a definition which was an objective, and readily ascertainable, physical fact.
Williams J observed:[5]
... The word “premises” is used in a popular sense and in this sense has a wide meaning. It is wide enough to include bare land. Its true meaning in any particular statute must be ascertained from the context in which it appears and from an examination of the scope and purpose of the statute as a whole...
[5] Turner v York Motors Pty Ltd (1951) 85 CLR 55 at 83.
The statutory context of the word here is very different to that considered in Turner. The purpose of the definition of shop is to define a certain use of land. The use of a shop has extensive planning implications beyond the nature of the structure out of which the use is pursued. A shop use affects the movement of people and traffic, and is capable of generating noise and other inconveniences or nuisances. Moreover the construction of a physical structure itself requires other building approvals under the Act.
The objects of the Act include:
3—Objects
The object of this Act is to provide for proper, orderly and efficient planning and development in the State and, for that purpose—
…
(c) to provide for the creation of Development Plans—
(i)to enhance the proper conservation, use, development and management of land and buildings; and
(ii)to facilitate sustainable development and the protection of the environment; and
(iia)to encourage the management of the natural and constructed environment in an ecologically sustainable manner; and
(iii)to advance the social and economic interests and goals of the community …
Drawing distinctions based on the nature of the structure from which retail activities are conducted would undermine the planning purposes of the Act.
To adopt an illustration derived from the facts of this case there is no apparent reason to distinguish between stalls erected in an undercover carpark which makes use of the built structure of the carpark and stalls erected in an open air carpark using awnings and gazebos. Indeed distinctions of that nature undermine the purpose of organising and planning land use through Development Plans. Such distinctions encourage the selection of temporary structures which are likely to exacerbate adverse planning consequences of retail activity whilst at the same time avoiding the rigorous planning assessments applicable to non-complying uses. The Judge was correct to find that the proposed stalls fell within the definition of a shop.
Has there been a change in use?
A use is more than a bare activity. The proposed farmers market was to operate regularly. Even though its hours of operation were limited to Wednesday and Saturday mornings they were substantial. The activities to be generated by the proposed development were organised retail businesses. The proposed farmers market was more than a bare activity. The proposal was therefore for a use which was essentially different in nature to that of a carpark.
The farmers market was therefore an additional use within the meaning of s 6(1)(c) of the Act, which was not trifling. The appellant’s submission was that the proposed farmers market was not a use within the meaning of s 6(1)(c) of the Act unless it changed the essential nature of the pre-existing use. The appellant relied on Prestige Car Sales Pty Ltd v Corporation of the Town of Walkerville and Shuttleworth.[6] That submission is misplaced. The discussion in that case concerned the alteration of premises on an existing caryard to turn offices into a car showroom.
[6] (1979) 20 SASR 514.
Here the existing use as a carpark and the proposed use as a farmers market are plainly different uses. Land may be put to multiple uses. An additional use need not change the essential nature of the pre-existing use if it is, in itself, essentially different to the pre-existing use. If it were otherwise the concept of multiple use, and s 6(1)(c) of the Act, would serve no useful purpose.
Conclusion
The appeal must be dismissed.
KELLY J: I agree.
BAMPTON J: I would dismiss the appeal for the reasons given by the Chief Justice.