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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aldridge v Johnston

Details

AGLC: Aldridge v Johnston [2016] SASCFC 99
Case: [2016] SASCFC 99
Decision Date: 8 September 2016

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Kourakis CJ, Kelly and Bampton JJ, considered an appeal concerning a dispute over the proposed use of land as a farmers market, which was argued to be an existing use as a carpark.

The central legal issue before the Court was whether the proposed use of the land as a farmers market constituted a different use from its existing use as a carpark, and if so, whether this difference was significant enough to preclude its approval under relevant planning legislation. The Court also considered the implications of land being put to multiple uses and the purpose of provisions allowing for such.

The Court reasoned that the existing use as a carpark and the proposed use as a farmers market were plainly different. It held that an additional use need not alter the essential nature of a pre-existing use if the additional use is itself essentially different. This principle, the Court noted, is consistent with the concept of multiple uses and the legislative intent behind provisions such as section 6(1)(c) of the Act, which would otherwise be rendered ineffective.

Consequently, the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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