Allbound Pty Ltd v City of Onkaparinga - [2009] SASC 358

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
ALLBOUND PTY LTD v CITY OF ONKAPARINGA
[2009] SASC 358
Judgment of The Honourable Justice Kourakis
23 November 2009
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS - MODIFICATION - PARTICULAR CASES
The appellant had approval to construct a residential flat building comprising four dwellings on South Road Morphett Vale – the appellant later sought to change the use of the land to a home office development with four dwellings – that application was refused – an appeal to the ERD Court was dismissed by a Commissioner – the appellant appeals that decision – Council Wide Objective 10 (CWO 10) of the relevant Development Plan (DP) deals with small scale home businesses - whether CWO 10 is a permissive provision – whether the proposed development is a “small scale home business” – whether the proposed development is consistent with the applicable principles and objectives of the DP.
Held: The Commissioner erred in finding CWO 10 of the DP a permissive provision – CWO 10 of the DP directs that home businesses be appropriately located and designed if otherwise an appropriate development – the Commissioner erred in drawing on provisions governing home business developments in other zones to find that home businesses should generally not be located in the Residential Zone – the Commissioner erred in finding that if approval were given each business might not remain a “small scale home business” within the terms of CWO 10 – instead, the relevant question is whether an approval could be framed in a way which both defined and limited the acceptable home business use – the Commissioner erred in failing to have regard to the features of the location of the land of the proposed development which made it suitable for home office development – appeal allowed – matter remitted to ERD Court.
Development Act 1993 s 33(1)(a), s 42; Development Regulations 1993 r 5(2)(a), Sch 1, Sch 3, referred to.
Kipa Freeholdings Pty Ltd v Development Assessment Commission (1999) 101 LGERA 414, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"Small scale home business"

ALLBOUND PTY LTD v CITY OF ONKAPARINGA
[2009] SASC 358
KOURAKIS J

The appellant (Allbound) has approval to construct a two storey residential flat building comprising four dwellings at 312 Main South Road Morphett Vale (the land). The land is located in the Residential Zone of the City of Onkaparinga Development Plan. Approval of that development was given by the respondent (Onkaparinga) on 8 October 2007. Allbound later sought approval to change the use of the land from the approved two storey residential flat building development to an office and dwelling development.
The Development Plan against which the appellant’s application for approval fell to be assessed was the City of Onkaparinga Development Plan dated 29 March 2007 (the Development Plan). Council Wide Objective (CWO) 10 of the Development Plan provides:
Small scale home business, local service and community uses, sited, designed and operated to minimise detrimental impact to residential use.
No other Council Wide Objective or Council Wide Principle (CWP) expressly deals with home business developments.
No Residential Zone Objective (RZO) or Residential Zone Principle of Development (RZPD) expressly deals with home businesses.
Allbound’s application was refused by Onkaparinga on 21 October 2008. Allbound appealed against Onkaparinga’s decision to the Environment Resources and Development Court of South Australia (the Environment Court). On 28 July 2009, but a Commissioner of that Court dismissed Allbound’s appeal.
The Commissioner identified the following to be the relevant issues:
1the extent to which CWO 10 applies to the Residential Zone (the Objective 10 issue).
2whether the proposed non-residential use of the flats was a “small scale home business” (the small business issue).
3the extent to which the particular design construction and use proposed for the flats was consistent with the provisions of the Development Plan which regulated the amenity and living conditions of dwellings in the Residential Zone (the living conditions issue), and
4whether the proposed development as a whole was sufficiently consistent with the desired character of the locality of the development (the locality issue).
For the reasons that follow I have concluded that the Commissioner made the following errors of law in his consideration of issues 1, 2 and 4. On the Objective 10 issue, the Commissioner erred by proceeding on the basis that CWO 10 was a permissive, or authorising, provision. CWO 10 does not itself permit home business developments; rather it directs that home businesses be appropriately located and designed if they are otherwise an appropriate development. Having wrongly identified CWO 10 as a permissive provision, the Commissioner held that it had limited application in the Residential Zone because of a negative implication, which he wrongly drew from the provisions governing home business developments in other zones, that, as a general rule, home businesses, if they are to be approved within the City of Onkaparinga, should not be located in the Residential Zone. On the small business issue, the Commissioner found against Allbound on the grounds that if approval were given the businesses might not remain small-scale enterprises within the terms of CWO 10. That approach again treated CWO 10 as a permissive provision and distracted the Commissioner from the relevant question which is: were the proposed businesses compatible with the use of the flats as dwellings and with their locality, and if so could the approval be framed in a way which both defined and limited the acceptable home business use? The living conditions issue required the determination of questions of fact and the making of planning judgments; I would not give leave to appeal insofar as any of the grounds of appeal impugn the Commissioner’s findings on that issue. In addressing the locality issue, the Commissioner failed to have regard to the features of the Main South Road location of the land which made it particularly suitable for home office development.
The Development
The Commissioner described the development in the following terms:
If constructed as approved it is to be a two storey building. The ground floor has two dwellings each having its (‘L’ shaped side and rear) private open space accessed through a rear lobby that separates the laundry from the bathroom/toilet. The top floor also has two dwellings. Entry to and exit from each dwelling is made by stairs that are internal to the building as a whole. The door to each stairwell and the doors to the ground floor dwellings are a little over 1 metre apart, share the same verandah and are immediately adjacent the carpark. The majority of the open space for each of the top floor dwellings is at the side and forward of the ground floor dwellings and are accessible only by the entry/exit stairs. Each dwelling (having a floor area of about 120 square metres) has two bedrooms and an open plan ‘L’ shaped area allocated for living, meals and cooking. The dwellings on the top floor each have a 2 metre wide balcony. The building as a whole is set back a considerable distance from Main South Road. The intervening space is used for eight carparking spaces, a long driveway and landscaping.
The proposed development alters the approved development generally in the manner depicted in Exhibit A6. The bin storage area depicted in Exhibit A2 is also included in the proposal. The proposed office component occupies about 40 square metres (or about 33%) of the front portion of each unit. The remaining space is intended for one bedroom, a living/meals/cooking area and the (as approved) bathroom/toilet and laundry. The front door of each unit gives access to the office component and one must walk through this area to reach the door connecting to the residential component. Units 3 and 4 on the top floor each have access to a balcony measuring 2 x 5.2 metres (10.4 square metres). One must also walk from the dwelling through the office to access it.[1]
[1] Allbound Pty Ltd v City of Onkaparinga (No 2) [2009] SAERDC 56 at [9]-[10].
The Development Plan
The following Council Wide Objectives and Council Wide Principles of Development Control are, in addition to CWO 10, apposite to the proposed development:
OBJECTIVES OF DEVELOPMENT CONTROL (CWO)
Objective 1: The amenity of localities not impaired by the appearance of land, buildings and objects.
A city should be an attractive and pleasant place in which to live, as well as being healthy and convenient. …
Many roads through the suburbs are lined with commercial, residential and industrial development of varying qualities, with advertising, street signs and overhead wires providing an unwelcome contrast to the attractiveness of other parts of the City of Onkaparinga. An improvement in the quality of development is highly desirable. …
PRINCIPLES OF DEVELOPMENT CONTROL (CWPDC)
1The appearance of land, buildings, and objects should not impair the amenity of the locality in which they are situated, and should be consistent with the desired character for a zone or area expressed by its provisions.
2 Within residential areas:
(a) development should maintain or enhance the desired character and appearance of any zone, area or locality; …
The following objectives and principles of development control apply generally to commercial development in all Zones and bear on Allbound’s application:
Commercial Development Objectives (CO)
Objective 1: Commercial development including motor vehicle related activities, service trades, warehousing, large-scale showroom or outdoor displays, offices and service industries, primarily located in commercial zones, or appropriate policy areas within centre-type zones.
Principles Of Development Control (CPDC)
1Administrative and professional offices, distribution, wholesaling, storage, transport and service activities, motor vehicle related businesses and low traffic generating large-scale showrooms, outdoor displays and service trade premises provided they do not affect the function of centres should primarily be located within commercial zones or on the periphery and within district or regional centre zones.
…
The relevant objectives of development control which apply to residential development in all Zones are:
Residential Development Objectives (RDO)
Objective 1: Safe, pleasant, convenient and efficient residential zones, conducive to a sense of community.
Objective 2: Residential areas primarily used for residential purposes in well designed, safe and attractive environments, conveniently linked to community and other facilities and services.
…
Objective 7: Establishment of an appropriate range of dwelling densities, types, sizes and tenure to suit the needs of all sections of the community.
In the commentary to the Residential Development objectives the following observation is made:
Socio economic trends across metropolitan Adelaide highlight the need for a more diverse range of affordable housing to suit all household needs. A greater number and percentage of dwellings of smaller size and on smaller parcels of land is required in Onkaparinga, as elsewhere in the Adelaide metropolitan area, in addition to traditional standard housing. Such housing is required for the aged, post-family couples, youth, special needs groups, non-nuclear families (single parent families, extended families), professional couples and single persons.
The relevant general residential Principles of Development Control are:
RESIDENTIAL DEVELOPMENT PRINCIPLES (RPDC)
General
1Residential zones should be developed with housing to meet the needs of the metropolitan community.
2Residential zones should primarily contain residential and allied development, including recreational, educational and community facilities.
3Residential zones should be provided with a range of dwelling types suited to the needs of the population seeking residence in the area.
4Development in a residential zone should not impair its character or the amenity of the locality as a place in which to live.
Non-residential Development in Residential Zones
18Non-residential forms of development should enhance the ability of residential areas to meet the needs and desires of local resident populations.
19Non-residential development in residential zones should provide adequate protection for residents from air and noise pollution, traffic disturbance and other harmful effects on health or amenity.
Design and Siting of Dwellings
20    All forms of residential development should:
(a)     create a safe, pleasant and convenient living environment;
(b)     provide private open-space to accommodate the life-style needs of the occupants;
(c)     optimise energy efficient design opportunities and building comfort levels resulting from the passive use of use of solar radiation and microclimatic conditions; and
(d)     make adequate on-site provision for:
(i)    the parking and movement of vehicles; …
Finally, the particular provisions of the Residential Zone touching on the proposed development provide as follows:
Residential Zone Objectives (RZO)
Objective 1: A zone primarily comprising low-density and medium-density housing of varied form to accommodate a wide range of life-style needs.
Objective 2: A high standard of residential amenity and a pleasant living environment.
Objective 3: Development designed in context with the positive features of the particular locality.
Objective 4: The creation or maintenance of cohesive residential communities supported by compatible local community, recreational and educational facilities.
Principles Of Development Control (RZPDC)
Form of Development
1Development should primarily comprise residential uses of varied type and form, together with supportive community, recreational and educational facilities.
2Housing stock should primarily comprise detached dwellings, with medium-level densities in suitable locations.
3Subject to all other relevant principles of development control, significant new areas of residential development should seek to meet market demand for alternative forms of housing not currently satisfied by established housing stock within the zone.
4Suitable areas for semi detached dwellings, group dwellings, row dwellings and residential flat buildings should comprise localities which:
…
(b) contain suitable allotments or parcels of land in close proximity to major community open space and recreation facilities and services; and …
5Non-residential development should be compatible with the primary function of the zone in terms of desired character, amenity, service provision and household need.
Non-complying Development
52 The following kinds of development are non-complying in the Residential Zone:
…
Consulting Room not associated with a dwelling (except in the McLaren Vale Policy Area)
Consulting Room and Dwelling, where the component floor area used as a consulting room exceeds 50 square metres floor area (except in the McLaren Vale Policy Area)
The Objective 10 issue
Mr Billington for Onkaparinga submitted that, on a proper construction of CWO 10, the objective does not, of itself, permit or encourage the establishment of small-scale home businesses. Rather, it is a direction that any such business, as may be approved, be sited, designed and operated in a way which minimises its detrimental impact on other residences in the locality. That submission accurately reflects the text and context of CWO 10 and should be accepted.
However, it remains the case that CWO 10 in its terms anticipates that the residents of dwellings which generally, but not exclusively, will be found in residential zones, may be given approval to operate small-scale businesses from their homes consistently with the objectives and principles of the Development Plan. The corollary is that CWO 10 also assumes that residents will not be given approval to operate large scale businesses from their homes. Whether or not approval will be given will of course depend on the assessment of the particular home business proposed against all of the applicable provisions of the Development Plan. That assessment involves much more than an inquiry as to whether the proposed home business falls within the description in CWO 10, which, as I have just explained, does no more than anticipate that an approval may be given in some cases.
The Commissioner approached this issue by first setting out and considering Objective 1 and Principles of Development Control 1-3 and 13 of the Residential (Hackham) Zone. Those objectives and principles expressly permit some light home industries in that zone but subject to restrictive conditions. The Commissioner then continued:
The proposed use is not proscribed in the Residential Zone and is to be decided on its merits. The main issues as to its merits follow. However it appears to me that the authors of the Plan have identified only one of four residential zones as being expressly suited to the kind of development proposed. In my view the reference to ‘non-residential uses’ in the Residential Zone is intended to apply mainly to community, recreational and educational uses and activities that lend support to its primary purpose. That is a proposition that is supported by the desired character for the Coromandel Policy Area under the heading ‘Pattern of Development’. That Policy Area forms part of the Residential Zone. Its Desired Character permits non-residential uses where it relates or contributes to the retention of historic development or community uses. Although not a decisive finding, one might expect that, if the Residential Zone was intended to specifically implement Objective 10, the authors of the Plan would have said so in terms similar to that stated in the Residential (Hackham) Zone.[2] (emphasis added)
[2] Allbound Pty Ltd v City of Onkaparinga (No 2) [2009] SAERDC 56 at [20].
Later the Commissioner commented in the following terms:
As I have said earlier, the policy intent for the Residential Zone does not, unlike the Residential (Hackham) Zone, explicitly encourage the type of use proposed. In fact, by the terms of Objective 4 and Principle 1 for the Residential Zone the type of non-residential uses said to be desired are those that provide community, educational and recreational activities. There is no support for the proposed use in the expressed policy intent.[3] (emphasis added)
[3] Allbound Pty Ltd v City of Onkaparinga (No 2) [2009] SAERDC 56 at [32].
The effect of those paragraphs, in my view, is to imply a term in the Development Plan that home businesses should generally be located in the Residential (Hackham) Zone or such other zones for which particular provision for home businesses is made in the Development Plan. To put it in another way, the Commissioner’s approach places a special onus on proponents of home business development in zones in which no express provision is made for home business development. In my view he was wrong to do so.
It can be accepted that an implication can sometimes be drawn that development of a particular type should not be permitted outside a zone or area expressly designated to accommodate it. The creation of a specific industry or commercial zone is likely to carry with it such an implication. However, the same cannot be said for home businesses. It is in the very nature of a home business that it may be operated from wherever there is a home. There is nothing in the text of the objectives and principles of the Residential (Hackham) Zone to which the Commissioner referred which supports the implication he drew. On the contrary, it is quite clear from those provisions that their purpose is to support, within prescribed limits, light industrial home business developments which would otherwise probably not be approved in a residential zone. In this respect it is important to observe that the Development Plan sets aside certain areas for industrial use within the Residential (Hackham) Zone.

It is important that I make it clear that it does not follow from what I have just said that home business development will generally be permitted. To proceed on that basis would be to make a quite different error which would have the opposite effect to the error made by the Commissioner. Home business development is likely, in varying degrees, to be inconsistent with a number of the provisions of the Development Plan: CWO 1, CWPDC 1 and 2, CO 1, CPDO 1, RDO 1 and 2, RPDC 2 and 4, RZO 1, 2 and 3, RZPDC 1 and 5. Those provisions confine, as a general rule, industrial and commercial development within the eponymously named zones or areas and in that way protect residential zones and areas from the obnoxious effects of commercial and industrial development. That principle may be called the residential amenity consideration. Proponents of home business developments will face some, but not insuperable, difficulties in securing development approval because of the inevitable inconsistency between a home business development and the residential amenity consideration. To that extent the Commissioner was right to conclude that insofar as non-residential development is allowed in residential areas it will mainly be development which adds to, not detracts from, the residential amenity of the area, such as educational, community and recreational centres.
The relevant question therefore is not strictly whether the development is a “small-scale home business” within the meaning of those words in CWO 10; it is whether the use of a residence for a home business should be approved having regard to the appropriate balance between the residential amenity consideration and those provisions which speak of the need to provide dwellings and allow developments which meet the needs of the community.[4]
[4] See RDO 7, RPDC 1, 3 and 18.
CWO 10 assumes, for good reason, that the residential amenity consideration will preclude anything other than “small-scale” home businesses. The needs of the community which must be balanced against the residential amenity consideration include the needs of some of its members to support themselves financially by operating a home business. That need and the social benefits it creates is so obvious it does not need to be proved by evidence, at least not before a specialist planning tribunal like the Environment Court. The policy reasons which favour at least some home business activity are also reflected in the third schedule of the Development Regulations 1993, which enumerates acts and activities which are not development. It includes amongst those activities the use of land or buildings for carrying on a home activity on land used for residential purposes.[5] The first schedule to the Development Regulations 1993 defines “home activity” to mean:
[5]    Development Regulations 1993 reg 5(2)(a).
‘home activity’ means a use of a site by a person resident on the site-
(a)that does not detrimentally affect the amenity of the locality or any part of the locality; and
(b)that does not require or involve any of the following:
(i)assistance by more than one person who is not a resident in the dwelling;
(ii)     use (whether temporarily or permanently) of a floor area exceeding 30 square metres;
(iii)    the imposition on the services provided by a public utility organisation of any demand or load greater than that which is ordinarily imposed by other users of the services in the locality;
(iv)    the display of goods in a window or about the dwelling or its cartilage;
(v)     the use of a vehicle exceeding three tonne tare in weight.
A number of considerations can be identified in the text and structure of the Development Plan which critically affect the nature and scale of a home business which might properly be approved. First, the land itself has by definition approval for use as a residence. That necessarily implies that the scale of the business activity must not have a significant adverse effect on the use of the premises as a dwelling or on the use of other dwellings in the locality of the development. This policy consideration is evident in sub-paragraph (a) of the definition of home activity found in the regulation to which I have just referred. It follows that the scale of the home business must be restricted so that that use remains subordinate to the residential use of the dwelling. That issue raises questions of fact and degree about the quantitative and qualitative use of the dwelling. Secondly, the nature, scope and intensity of a proposed business will generally need to be on the lower end of the scale of operations of similar businesses in order to be approved as a home business. That consideration arises out of those provisions which generally confine commercial activity to the zones dedicated to that use; one would expect enterprises at the higher end of the scale to be located in those zones. Thirdly, an approved home business activity will necessarily be of a scale which exceeds the limitations imposed by the definition of home activity in the Regulations; if the home business activity fell within that definition there would be no need for approval at all. It follows that CWO 10 necessarily refers to the design and siting of home businesses which are of a larger scale or more intense nature than those which need no approval. The fact that businesses which meet the conditions set by the Development Regulations 1993 do not need approval at all suggests that it is a relevant consideration, favouring approval, that the scale of the proposed business is not significantly greater than those which can operate without approval.
I have assumed so far that a home business is one operated by the resident or residents of the dwelling. The Development Plan does not expressly limit home business development in that way. Approval may, I think, be given for a resident to allow a family member or friend to operate a business from his or her premises. However, such an application will generally be much less likely to be approved for at least two reasons. First, there is much less reason to allow use which would detract from the residential character of a dwelling in order to advance the interests of a non-resident. Secondly, the intensity of occupation of the home and use of the adjacent public areas of the locality will generally be less in the case of a resident operator.
The provisions in some zones which expressly support home business development necessarily qualify the operation of the residential amenity consideration. Applications for home business development are more likely to be approved in those zones. It may be that the Commissioner meant no more than that by the remarks in the passages to which I have referred. However, the better prospects for approval which an applicant in another zone might have are just not relevant to an assessment of Allbound’s application in the Residential Zone and did not warrant the discussion and consideration given it by the Commissioner. Ultimately, I am persuaded that the Commissioner, in the passages I have set out above, went further and wrongly drew an implication from the express qualification of the residential amenity consideration in the other zones that home business developments should generally be located in zones other than the Residential Zone. An applicant for home business development in the Residential Zone faces, as I have said, the obstacle of the residential amenity consideration but there is no additional obstacle or burden arising, by implication, out of the provisions like those identified by the Commissioner in the Residential (Hackham) Zone.
Small business issue
On the proper construction of CWO 10, the small business issue as defined by the Commissioner is a false one. For the reasons given in [15] – [22] above the relevant issue is whether the home business use should be approved having regard to what I have called the residential amenity consideration.
Even though it was not relevant to ask whether the development was and would remain a “small scale” business within the meaning of that term in CWO 10, an assessment of the nature, size and intensity of the proposed home business is obviously integral to addressing the residential amenity consideration.
The Commissioner found that “without onerous conditions being imposed, the proposal could not realistically be contained as one in which the home business is subordinate to the residential use nor of a scale likely to be regarded as ‘small scale’ ”.[6] The Commissioner expressed his reasons for so finding in this way:
In this proposal the facts are that, while the floor area of each unit to be used for business or office purposes is known and there is a preparedness to tie the occupancy of each dwelling to the business there is nothing in the proposal to indicate such things as the type of business that will occupy each office, the number of people employed, the number of vehicle movements likely to be generated or any other measure to gauge the likely intensity or scale of each of the businesses to be operated. In each case the door is wide open for the occupation of each by a wide variety and varying scale of office or commercial activities. I am not persuaded by Mr Hutchison’s evidence to the effect that, by virtue of the study (Exhibit A5) undertaken by Calvan Wang et.al., the business component for each unit will be and remain a small-scale enterprise. I have no doubt about the wide presence of home-based businesses in Australia or their importance in the economy. However, for the reasons advanced by Mr Billington the study and its findings have little relevance to the questions to be decided in this appeal.[7]
[6] Allbound Pty Ltd v City of Onkaparinga (No 2) [2009] SAERDC 56 at [24].
[7] Allbound Pty Ltd v City of Onkaparinga (No 2) [2009] SAERDC 56 at [23].
In my view the Commissioner’s approach on this question was erroneous because he failed to appreciate that on an application for home business development the extent to which the home business activity can be controlled by conditions is very important.
In the case of many applications to use a residence for a home business, there will be some uncertainty about the intensity of the business operations that will be undertaken because, generally, the business will not yet have commenced. The uncertainty will be less in those cases where the business has operated from other premises and there is some business history that can be taken into account. I acknowledge that in this case the uncertainty is greater because the flats are still being constructed and have not been leased. The identities of the tenants are not yet known, let alone the nature of the home businesses they will operate.
One possible approach to this level of uncertainty is to refuse approval for the use of the flats for home businesses unless and until the appellant has a prospective tenant and that tenant’s particular business can be assessed. That position was not in fact taken before, or by, the Commissioner and it is not the only approach that could reasonably be taken. I am of the opinion that, notwithstanding the greater uncertainty where the proposed business is not known, it may still be appropriate to approve a home business development in advance. However, the greater the uncertainty, the greater will be the need for caution and the imposition of conditions which ensure that the business use will remain a secondary one. I will return to the question of the proper purpose of conditions imposed on a development consent shortly.
Before I do so it is important to observe that there is an inherent limitation on the scale of the businesses that may be operated from the flats in the very nature of Allbound’s application. The proposed home business use is as offices. No more than 40 square metres of floor space is allowed for office use in each flat. A very limited number, probably no more than two people, could work from each of the home offices. The small floor space available for a waiting room and the limited space for car parking for clients will also restrict the scale of the home businesses.
Over and above the inherent limitations, it is, in my opinion, necessary and proper in the case of an application to use a residence as a home business to define the proposed business use by the imposition of appropriate conditions.
Section 42 of the Development Act 1993 provides that approval is subject to such condition as a relevant authority thinks fit to impose in relation to the development. Section 42(3) of the Development Act 1993 provides that a relevant authority may, for example, approve a development subject to a condition that regulates or restricts the use of any land or buildings subject to development. Section 42 of the Development Act 1993 is expressed in wide terms. There is no obvious reason to take a narrow view of the power. Nonetheless I acknowledge that some limits are suggested by the scheme of the Development Act 1993 as a whole.
In Kipa Freeholds Pty Ltd v Development Assessment Commission,[8] Debelle J said:
The power to impose conditions is vested in a planning authority for the purpose of enabling it to regulate incidental aspects of the development so that it does not have an adverse effect upon the amenity of the neighbourhood of the development, either in the course of construction or when the development is completed. And so it is that conditions frequently deal with such matters as landscaping, stormwater drainage, advertising and other signs, and fencing. Not infrequently, conditions will impose a constraint upon the use to be made of the proposed development in the form of a restriction upon hours of use or a limit as to the level of noise. But there is an important difference between conditions of that nature, which deal with incidental aspects of the proposed development and the intended use of the land, and conditions which restrain the very nature and essence of the development in a way which requires the development of the land to be used in a way significantly different from the use or uses intended. The power to impose conditions is not provided to enable a planning authority to alter the nature of the proposal and hedge it about with conditions which are unworkable, unenforceable, and seek to confine the development in a kind of straitjacket which will constrain the development from being used in the ordinary way. Resort to the use of such conditions is tantamount to an acknowledgment that the proposed development is inappropriate for the subject land. If a planning authority imposes this latter kind of condition, it is using the power to impose conditions for a purpose which was not intended because it goes beyond incidental aspects of the intended land use and strikes directly at the intended land use.[9]
[8] (1999) 101 LGERA 414.
[9] Kipa Freeholds Pty Ltd v Development Assessment Commission (1999) 101 LGERA 414 at [39].
That passage was approved by the Full Court in McKenzie Constructions Pty Ltd v Development Assessment Commission.[10] However, it is important to read that passage, as with most statements of general principle, subject to the particular circumstances of the matter before the Court. The condition in question in Kipa was one which limited the number of patrons who could use the proposed hotel. The evidence showed that the hotel would attract, by its very design and location, a multitude of persons but a condition was imposed to limit the patrons below the number that the hotel would naturally attract.[11] Debelle J described the error of law made by the planning tribunal in that case as a misdirection on a matter of law which caused it to have regard to an irrelevant factor; on appeal Bleby J described the error as a failure to take into account a relevant factor, namely that the proposal was so defective that it should not have been approved.[12] In whichever way the error is described, it is plain that the power to constrain an approval by imposing conditions was used by the Development Assessment Commission for a purpose for which it was not intended. Approval should not be given for development which is seriously at variance with a development plan in the hope that its adverse consequences, inherent in its very design, might be controlled, and consistency with the Plan achieved, by the imposition of conditions of doubtful efficacy.
[10] (1999) 74 SASR 539 at [40].
[11] Kipa Freeholds Pty Ltd v Development Assessment Commission (1999) 101 LGERA 414 at [36].
[12] Chyswick Pty Ltd v Kingston District Council (2003) 128 LGERA 266 at [22].
However, conditions are much more likely to be proper adjuncts to the approval of home business. In such a case, the primary use of the land must remain residential and the very nature of a dwelling is such that it will not, inherently, attract or generate a great deal of business. The additional home business use which is approved can effectively be identified, and defined, by the imposition of conditions. The imposition of conditions is necessary to ensure that the balance between residential and business use is clearly delineated. The imposition of conditions for that purpose is consistent with the planning scheme established by the Development Act 1993 and the Development Plan and is therefore not a reason to refuse approval. Of course, in some cases it may appear from the nature of the conditions that are required to ensure that the business activity does not have a significantly adverse effect on use of the premises as a residence, or on other dwellings in the locality, that the proposed home business is an inappropriate one and should not be approved.
It follows that in my view the imposition of conditions delimiting the home business use of the flats was an important matter which had to be addressed on this application. A consideration of those conditions may have led to the conclusion that it was not possible to sufficiently regulate the business consistently with the primary use of the flats as residences. Alternatively, it may be that the imposition of conditions would have met the concerns mentioned by the Commissioner in the paragraph I have cited.
As an example, a condition that the business be operated by a resident of the flat would in itself serve to limit the scale of the operation. This would prevent a single business taking a lease over all four flats and allowing four members of its workforce to reside in each of the flats. A condition that the business operated from each flat be operated by a resident of that flat probably would also prevent four partners operating the same business from the building as a whole; an additional condition could expressly prohibit that possibility if it were thought necessary to do so.
Furthermore, just as the Development Regulations impose a limit on the number of non-residents who can assist in the business, such a condition could also be imposed on the approval of a home business. A condition could also be imposed restricting the type of business by limiting it to the provision of advisory or similar services. In addition, the hours of operation of the home business might be restricted. As I have already mentioned, it is not yet known who will occupy the flats. For that reason it may be appropriate to take a cautious approach and commence by imposing relatively stringent conditions. Allbound, or a prospective occupier, can subsequently apply for a variation of those conditions to allow the operation of the particular business that the occupier intends to operate.
The locality issue
On this issue the Commissioner found:
There is also little support for the proposal when viewed in its locality. The land sits within a section of Main South Road that is predominantly residential in character. In the absence of any other factors, the appearance of the building that will accommodate the office and dwellings does indeed take on the character of a residential development. However when its unusual setting is taken into account enabling as it does the establishment of a carparking area the size and design of which is not characteristic of a conventional medium density residential development along with the intended signage as submitted by Mr Manos a different picture emerges. It will have the appearance and function of a quasi-commercial land use which will, over time, become recognised as such given its location in a heavily trafficked road and the inevitability of additional outdoor advertising such as A‑frame or free standing signs. There is an unacceptable conflict between the proposal and the established character of the locality (Council wide Residential Development Principle 4).[13]
[13] Allbound Pty Ltd v City of Onkaparinga (No 2) [2009] SAERDC 56 at [33].

The Commissioner does not, in that passage, refer to the features of the location of the land on Main South Road which make it a suitable location for a home office. In particular, the volume of traffic on Main South Road is such that the additional movement of cars and people that might be caused by the operation of home offices in the flats will probably have a negligible impact on other residences in the locality. Nor is it clear to me why the Commissioner thought that the addition of other signs was inevitable. Whether or not other signs would be added would depend on whether there was an application to alter the conditions. Moreover, if a home business development, with associated signage, is to be permitted, Main South Road would seem to be a preferred location; but that consideration too is not mentioned by the Commissioner. The advantages of the Main South Road location are substantial and called for serious consideration. I acknowledge that the failure of a decision maker to refer to a matter does not mean that it was not considered. However, in the circumstances of this case, the Commissioner’s failure to refer at all to the significant advantages of the Main South Road location in his discussion of the locality issue satisfies me that they were ignored.
Disposition of the Appeal
There were in my view considerations which supported Allbound’s application. In my respectful opinion, there is much to be said for the recognition by planning authorities of the policy reasons for allowing people to live and work on the same land. In an associated preliminary ruling,[14] Judge Trenorden observed:
There are good policy reasons, such as increasing transport and energy costs, as to why the Council might encourage persons to live and work on the same land. Thus in a zone where the objectives include low and medium density housing to accommodate a wide range of lifestyle needs it would not be surprising that a consulting room, an office and a shop are non-complying kinds of development but each of a consulting room, office and shop in association with a dwelling is excluded from the non-complying list unless the floor area of the consulting room, office or shop component, as the case may be, exceeds 50m².[15]
[14] Allbound Pty Ltd v City of Onkaparinga [2009] SAERDC 47.
[15] Allbound Pty Ltd v City of Onkaparinga [2009] SAERDC 47 at [9].
To those observations I would add the community and social benefits of allowing a low overhead, low cost, form of entry into a business.
On the other hand there is, in my respectful view, some force in the Commissioner’s observations on the living conditions issue. There is very little private open space provided for the upstairs units. It should not be forgotten that the primary use of the flats must remain residential; they are not just work places. The private open space falls below that which is prescribed by the applicable Development Plan. It appears that there has been some relaxation of the private open space requirement in the current Development Plan. Even though the application must be assessed against the “appropriate Development Plan”,[16] it may be possible to have regard to an underlying change in policy approach or standards when assessing the weight to be given to non-compliance with a provision in the relevant Development Plan.[17] It is also a relevant and important consideration, as Mr Billington submitted, that the application would allow the operation of four offices from a single allotment and that the total area which will be used as office space on the single allotment is in the order of 160 square metres.
[16] Development Act 1993 s 33(1)(a).
[17] cf Eylward v District Council of Tatiara (1989) 50 SASR 632 at 637; Sellick v City of Mitcham (1999) EDLR 215; [1995] SAERDC 27; Manos v City of Holdfast Bay and Vlachos [2000] SAERDC 30 at [52].
Overall the proposed development is, to some extent, inconsistent with the residential amenity consideration. However, the weight which can properly be given to that variance is reduced by the particular location of the proposed development on Main South Road.
It follows from the competing considerations to which I have just referred that this is not an appropriate case in which to substitute the planning judgment of this Court for that made by the Environment Court. In my view the matter should be remitted to the Environment Court for further hearing conformably with these reasons.