Alexandrina Council v Strath Hub Pty Ltd

ALEXANDRINA COUNCIL V STRATH HUB PTY LTD
[2003] SASC 382
Land and Valuation Division
BLEBY J:
Introduction

The town of Strathalbyn is within the area of the Alexandrina Council. The Council’s Development Plan provides for an area of approximately 160 hectares immediately to the north of the existing township area to be zoned as Residential (Golf Course) Zone (“the Zone”). It is an unusual zone, not merely providing for a limited range of possible development for which consent is likely to be given, but requiring a substantial degree of co-ordination and integration of various developments throughout the Zone.
The only objective provided in the Development Plan for the Zone is:
“Objective 1: Housing and tourist accommodation development in association with a golf course, conservation area and public linear parks along the Angas River and Middle Creek, ……….”
The objective goes on to provide for compliance with certain standards not presently relevant.
Principles 1 – 4 of the Principles of Development Control for the Zone provide:
“1 Development should be consistent with Concept Plan Fig R(GC)/1.
2Development of residential allotments should not occur unless integrated with the provision of an eighteen hole golf course.
3Residential development should not be commenced north of the Stage 1 Development Line shown on Concept Plan Fig R(GC)/1 until all eighteen holes of the golf course have been developed and are in use.
4A maximum of 70 hectares within the zone should be developed for residential purposes.”
For present purposes “development” includes the division of an allotment: s 4(1) and s 5(1), Development Act 1993.

Concept Plan Fig R(GC)/1 appears below:
The land comprising the Zone is presently undeveloped apart from a heritage listed dwelling and associated garden area and outbuildings. Otherwise it is undulating grazing land containing a number of remnant indigenous trees, mainly along the drainage lines. The existing dwelling is located within Policy Area B.
Other relevant Principles of Development Control for the Zone are as follows:
“8Where residential allotments directly adjoin the golf course, dwellings should be designed to address both the golf course and the access street.
9Public open space should be provided within the residential areas on each side of the Angas River which is of a size, shape and gradient to meet community needs.
10Where land which has a frontage to the Angas River and Middle Creek is to be divided, public open space should be provided in the form of a reserve having a width of at least 25 metres from each river bank.
11An area of public open space should be provided within Policy Area C in accordance with Concept Plan Fig R(GC)/1.
……………….
Policy Area A
19Development in Policy Area A on Concept Plan Fig R(GC)/1 should be for the purpose of a linear park, revegetation, water management, a golf course and associated facilities.
20Residential or commercial development should not occur within Policy Area A shown on Concept Plan Fig R(GC)/1.
Policy Area B
21A golf clubhouse, tourist accommodation, restaurants, conference facilities and small-scale retailing development should only be located in Policy Area B on Concept Plan Fig R(GC)/1.
22 ……………..
Policy Area C
23Development in Policy Area C on Concept Plan Fig R(GC)/1 should be for residential and golf course purposes.
24Residential streets should follow the contours of the land where practically achievable.
25A range of allotment sizes should be provided when dividing land for residential purposes.”
The Development Plan therefore contains some detail regarding the nature of any development in the Zone, but is not specific about the location and shape of the 18 hole golf course, save that it is necessarily intended to have as its focal point the development intended in Policy Area B. The area contains the existing heritage dwelling, and is to contain the proposed golf clubhouse, tourist accommodation, restaurants and conference facilities (Principle 21). Beyond that the Development Plan contemplates the golf course extending over parts of Policy Areas A and C (Principles 19 and 23).
It seems reasonably clear that the Development Plan intends that the golf course should be full-sized and well equipped, designed to cater not only for residents of Strathalbyn and surrounding areas but for a significant number of tourists and conference goers (Principles 2 and 21). The proposed infrastructure of tourist accommodation, restaurants, conference facilities and small scale retail development would not generally be associated with a smaller par 3 golf course. There is nothing in the Development Plan to suggest that the golf course should be other than a full-sized course of 18 holes. That is the ordinary meaning of the phrases “golf course” and “eighteen hole golf course”. If a smaller scale development were envisaged by the Plan it would have said so, or would have been less specific about the nature of the recreational facility.
The south-eastern part of Policy Area A is plainly insufficient to accommodate by itself such a golf course. A substantial part of Policy Area C would necessarily be included in the proposed golf course development.
One final feature of the Development Plan, particularly arising out of Objective 1, is that the golf course, conservation area and public linear parks are intended as the centrepiece or feature of the Zone, with housing and tourist accommodation developments associated with and orientated towards those features: Principles 2 and 8. While the 11 allotments of land comprising the Zone are in separate ownership, and that undoubtedly creates some difficulty in the implementation of any master plan, that in itself is no reason to call into question the validity or practicality of implementing the plan. The plan itself may well encourage consolidation of ownership of the land in order to implement the plan. Indeed, the present proposed development could not occur without the intended consolidation of ownership of that part of the Zone which is the subject of the application.
The application for development
The application before the Council sought to divide an area of approximately 56.9 hectares, comprising the south-eastern portion of the Zone, being more than one-third of the Zone, into 143 allotments and associated roads and reserve areas. Those reserve areas were to be principally along the banks of the Angas River and Middle Creek. Most of the south-eastern portion of Policy Area A was to be divided into two allotments of approximately 18.9 and 4.5 hectares respectively. The balance of the allotments, apart from some larger allotments in Policy Area B, were residential allotments. No provision was made for any golf course, and no immediate proposals were made for the development of the two large allotments in Policy Area A.
Refusal of consent and appeal the ERD Court
On 16 September 2002 the Council refused approval for the application, the reasons being that the proposed development was “at variance” with Objective 1 of the Zone and Principles of Development Control 1 and 2.
The developer then appealed to the Environment, Resources and Development Court. That Court, comprised of a Commissioner, allowed the appeal and granted provisional development plan consent subject to a number of conditions, including a condition that the sub-division layout be in accordance with a modified plan containing 149 allotments within the same general area, but ensuring compliance with Principles 10 and 20, with which the original plan did not comply.
As approved by the Commissioner, the proposal still contains no reference to a golf course. It results in two major areas of housing allotments. Fifty-one allotments are in an area south of an irregular line extending generally north-east from the bridge adjacent to Taylor’s Lane to the Angas River, generally within that part of Policy Area C between Middle Creek and the Angas River. The remaining residential allotments cover that portion of Policy Area C generally north-east of the northern boundary of Policy Area B north of North Creek, extending to a point near the junction of Macclesfield Road and Adelaide Road. The two residential areas are separated by a reserve area along the banks of the Angas River and four larger allotments generally within Policy Area B. Those allotments range in area from approximately 0.6 hectares to 1.1 hectares, the largest one containing the existing heritage listed dwelling. That part of Policy Area A north of an access road into the sub-division from the junction of North Parade and Adelaide Road was to form one allotment of almost 23 hectares. While no specific uses are proposed for the larger allotments in Policy Area B, encumbrances to be placed over all allotments envisage that they would accommodate some form of business activity. The nature of the proposed sub-division is such that it would be difficult to envisage how the land in Policy Area B, even though containing much larger allotments, could effectively be used in association with any 18 hole golf course which might be built in the balance of the Zone.
The Commissioner’s reasons
The Commissioner considered that, while the proposed sub-division was not integrated with an 18 hole golf course layout, that was not fatal to the outcome of the appeal. He considered that the proposal as amended was not seriously at variance with the Development Plan. Had the Commissioner decided that it was, he would have been obliged to dismiss the appeal: Section 35(2) Development Act 1993.
There were many issues debated before the Commissioner. In view of the limited nature of this appeal it is only necessary to consider the Commissioner’s reasons for holding that the proposal was not seriously at variance with the Development Plan in so far as it is said not to comply with those parts of the Development Plan to which I have referred.
The Commissioner’s approach was dictated largely by his understanding of the nature and effect of the Development Plan. He considered that it must be considered as a “flexible, advisory planning policy document, not as a mandatory, legal statute; as a practical guide for practical application, superimposed upon an existing state of development”. The Development Plan, he said, was “to be used as a practical guiding tool for practical application to the site and locality in the current day circumstances and context”.
It appears that one of the reasons why the Commissioner considered some flexibility should be applied in the implementation of the Development Plan was the difficulty associated with the Zone presently containing some 11 allotments and therefore 11 potential owners. He appears to have given significant weight to the fact that the matter was to be assessed upon the footing that the various present owners of the land were not cooperating in the solution for the Zone proposed by the Development Plan, and that that might never occur.
The Commissioner appears to have considered it to be unfair that one owner, who wishes to develop their land in the absence of an existing or proposed golf course should be denied that opportunity until a further proponent comes forward with a proposal to develop a golf course. He considered that allowing other development, including residential development, to proceed may be acceptable on the basis that the possible development of an 18 hole golf course is not precluded by the development. In this case there was still adequate area left within the Zone after the creation of this sub-division for that to occur.
Next, the Commissioner appears to have been influenced by evidence led on behalf of the developer that the development of a full sized championship or competition 18 hole golf course in this locality was not commercially viable, although he acknowledged that there was no detailed evidence concerning viability or as to whether the development of such a golf course in the Zone was likely. He drew on his own experience that such projects “have been difficult, protracted and slow in their implementation”. He was also influenced by what appears to have been a separate development application made by the same developer for a smaller scale “community based” 18 hole (par 3 length) golf course with complementary facilities on the one allotment comprising the major portion of Policy Area A. However, approval of this residential development proposal was not conditional upon approval for or development of that facility.
Although the Commissioner acknowledged that the development was at variance with Principle 2¸ he did not consider that to be fatal. The development was in association with proposed public linear parks along Angas River and Middle Creek, and during the course of the proceedings the developer had offered to link the development to the proposed 18 hole par 3 golf course. He did not consider that the reference to an 18 hole golf course in Principles 2 and 3 necessarily excluded a par 3 golf course.
The role of this Court on appeal from the ERD Court
The essential issue on this appeal is whether the Commissioner erred in not assessing the proposal as being seriously at variance with the relevant Development Plan, or in not otherwise confirming the decision of the Council to withhold provisional Development Plan consent.
Under s 88 of the Development Act the Commissioner had very wide powers to review the decision of the Council. Standing in the shoes of the Council, he was required to assess the development against the provisions of the Development Plan: s 33(1)(a) Development Act. If the development was assessed by him as being seriously at variance with the Development Plan, he could not grant consent: Ibid s 35(2). That does not mean to say that if he or the Council (as it did) considered the development merely to be at variance with the Development Plan they could not refuse consent. That course would still be open in the exercise of a planning judgment in accordance with the principles contained in the Development Act, the Regulations and the relevant Development Plan.
Nevertheless, on an appeal, as this is, under s 30 of the Environment, Resources and Development Court Act 1993, on what is essentially a matter of planning judgment, the grounds on which this Court can interfere are limited. In City of Mitcham v Freckmann (No 2) (2000) 76 SASR 145 Debelle J, with whom Doyle CJ and Nyland J agreed, said, at 148 [15]:
“This Court is reluctant to interfere with the Environment Court’s conclusions upon essentially planning issues. It will interfere only where the court has made an identifiable and egregious blunder, has made a demonstrable error of fact or principle, or the circumstances are in some other respect quite exceptional. ….. This Court is reluctant to substitute its planning opinion for that of the Environment Court and will be minded to do so only where the appellant is able to demonstrate some fundamental departure from proper planning principles: Ampol Road Pantry Pty Ltd v Brighton City Corporation (1993) 62 SASR 165 at 173.”
Consideration of the appeal
In my opinion there was, on the part of the Commissioner, a demonstrable error of principle in his application of the essential features of the Development Plan to this proposal.
True it is that a Development Plan is not a document setting out legal obligations: Hassen v District Council of Murray Bridge (1984) 35 SASR 448. It contains statements of planning objectives and principles to be applied sensibly and flexibly to particular circumstances. However, that does not mean that its objectives and principles may be ignored because it may seem convenient to do so in a particular case.
In Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 King CJ said, at 187:
“The Development Plan is the focal point of the planning regime instituted by the 1982 Act. Its central importance is emphasized by the disappearance of regulations from the scheme. The Plan provides the objectives and principles upon which development planning is to be based. It is the charter by whose guiding principles future development is to be planned.”
The Chief Justice was then speaking of a Development Plan under the Planning Act 1982. What he said then has even greater force under the Development Act 1993. It must be remembered that when King CJ wrote those words the only obligation of a planning authority under s 47(9) of the Planning Act was to “have regard to” the provisions of the Development Plan so far as they were relevant to the decision. That meant that a planning authority, having had regard to the Development Plan, could nevertheless depart from it: South Australian Planning Commission v Dorrestijn (1984) 36 SASR 355 at 370 – 371: Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (supra) at 187.
Under the Development Act a development can only become an approved development if “a relevant authority has assessed the development against” the provisions of the Development Plan and has granted consent: s 33(1)(a). That requirement means that the planning authority must form a judgment as to whether and the extent to which the development conforms to the Plan. If the assessment is that the development is seriously at variance with the plan, consent must be withheld: Ibid s 35(2). Between being seriously at variance with and complying in all respects with a Development Plan there will be a range of possibilities. In some cases the exercise of planning judgment will result in consent. In other cases it will not.
An important factor in making the assessment will turn on the terms of the relevant part of the Development Plan itself. Some Development Plans or parts thereof will be in general terms and will allow for a range of possibilities within a particular zone. Others will be more particular. It is instructive to compare, for example, the requirements for the Residential Zone of the Development Plan for the Alexandrina Council with that of the Residential (Golf Course) Zone, being the one in question in these proceedings.
The objective of the Residential Zone is as follows:
“A zone primarily accommodating a range of dwellings, together with appropriate community uses complementing the permanent and holiday accommodation requirements of the urban coastal area.”
There follow a number of principles relating to the form of development, undertaking land division, the appearance of buildings and related matters. A complying development which, by virtue of s 35 of the Development Act means one that must be granted provisional Development Plan consent, includes a “Detached Dwelling” and “Recreation Area” as defined in the Development Regulations 1993. There is a wide range of non-complying developments specified for the Zone. By virtue of s 35(3) of the Development Act, it is very difficult to gain provisional Development Plan consent for those developments. They are generally inconsistent with the stated objective of the Zone. Although it is not specifically mentioned, the Development Plan contemplates the possibility of a golf course in the Residential Zone. That would be consistent with the objectives of the Zone and consistent with the planning for the Zone so far as it is specified in the Development Plan.
The Residential (Golf Course) Zone is another residential zone in the Alexandrina Council, but the planning provided for that Zone in the Development Plan is much more specific. I have already referred to the Objective of the Zone and some of the more relevant Principles of Development Control applicable to it. The objective is to provide housing and tourist accommodation in association with a golf course and other stated features. Because of the nature of and area required for a golf course, that places a very particular emphasis on the nature, style and design of any residential development in the Zone, and hence on the nature and location of any sub-division of land for residential purposes. Without the golf course, there can be no housing in association with it. The pivotal role of the golf course is reinforced by Principle 2. Without knowing the location of the golf course it is impossible to know which allotments will directly adjoin it and how dwellings built upon many of them should be designed in accordance with Principle 8. There are many other features of the Principles of Development Control relating to the Zone which reinforce this central feature of the Zone.

In my opinion it is evident from his reasons that the Commissioner misunderstood the nature and content of the relevant part of the Development Plan. He considered the Zone primarily as a residential zone in which a golf course could appropriately be located, but not as providing for residential and tourist accommodation in association with a golf course and related open spaces.
Considering a Development Plan as a flexible, advisory planning policy document and as a practical guide for practical application, and not as a mandatory legal statute, is an acceptable and sensible way of approaching a Development Plan. However it does not enable the Objective and the essential Principles of Development Control to be ignored simply because the view is taken that the Objective of the plan is unlikely to be achieved for various reasons. To consent to a sub-division of more than one-third of the area of the Zone without any certainty as to whether, where or when a golf course might be created is to compromise the whole objective of the Zone and to render that objective less likely to be achievable.
It is no answer to say that the land in the Zone is owned by different owners and they are entitled to develop their land when they wish in accordance with the principles applicable to the Zone. The particular Objective of this Zone requires either a cooperative development by all relevant landholders or consolidation of the holdings into common ownership. If that is a necessary consequence of the Objective and Principles of Development Control of the Zone, so be it. It may be necessary in the interests of good planning for the Zone.
It is difficult to see how development of the Zone could effectively be carried out otherwise. It is a Zone which has been imaginatively planned and which relies for its integrity on the golf course, club house, tourist and conference facilities, as well as the supporting residential and park development. It also relies on the club house, tourist accommodation and conference facilities becoming a focal point of the golf course and on them being in a particular location. However each of those land uses may result in different potential land values.
Let us assume that the use creating the highest value outside Policy Area B is for residential sub-division. Without the use of a coordinated plan the first application for development of one or more of the existing allotments in the Zone will be for residential sub-division, leaving those who delay their application being left with land which must be used for a use of lower value, namely as a golf course. Each application for residential development may in itself be consistent with the object and principles of development of the Zone. Yet, the lack of overall planning for development of the Zone would probably, in that event, result in the golf course or its intended focal point or both becoming impracticable because of the haphazard way that the residential development has proceeded. If the golf course is the centrepiece of the Zone, in association with which the housing is to be developed, a high degree of coordination is necessary. That is obviously lacking in this application.
Nor is it any answer to ignoring the Objective and the Principles of Development Control to say that the Objective of the plan cannot be or is unlikely to be achieved. On the evidence before him it was not open to the Commissioner to make such a finding. But even if it were, it is not open to a planning authority to ignore the essential thrust and objective of the Plan. If the view is taken that for some reason the objective is not achievable, it is for the relevant planning authority to decide upon an amendment to the Plan after due preparation and consideration of a Plan Amendment Report in accordance with the requirements of Part 3 of the Development Act, and after the sort of consultation that the legislation requires. The perceived inability of the Development Plan to be carried out is no reason to ignore it in respect of a particular application for development.
I have already said that I consider the Plan to be referring to a full-sized 18 hole golf course. There was no mandate for the Commissioner to substitute for that a par 3 golf course. However, even if I am wrong in that, the requirements for the Zone were such that he had to do more than act on the then stated intention of the developer. A golf course is so integral to the Zone that it required this development to be at least conditional upon development of the golf course proceeding.
The proposal complied with that part of the Objective of the Zone relating to linear parks along the Angas River and Middle Creek. However, that in itself was insufficient compliance with the Objective and the requirements of the Principles of Development Control. Selective compliance with some of the requirements of a zone which are as particular as these are is not sufficient.
The granting of Development Plan consent to this application seriously compromises the relevant Objective of the Development Plan in respect of this Zone. It is acknowledged to be contrary to Principle 2. That Principle merely reinforces the requirement of integration with the intended golf course. The Commissioner erred in principle and in the proper interpretation of the Development Plan in directing that provisional Development Plan consent be issued. He did not use the Plan as a practical guiding tool. He either ignored or misconstrued its essential requirements for this Zone.
For these reasons, the appeal is allowed. The order of the Environment, Resources and Development Court is set aside. Provisional Development Plan consent was properly refused by the Council.

[2003] SASC 382

14 November 2003