Bediavas v Development Assessment Commission - [2017] SASCFC 124

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
BEDIAVAS v DEVELOPMENT ASSESSMENT COMMISSION
[2017] SASCFC 124
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Nicholson)
22 September 2017
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - APPLICATIONS
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - APPLICATIONS - FORM AND CONTENTS OF APPLICATION - DESCRIPTION OF LAND
Appeal against a decision that a development was non-complying with the Development Act 1993 (SA) (the Act).
The appellant applied for approval to develop ‘workers accommodation and associated facilities’ described as ‘camping ground[s], [a] caravan parking area and accommodation facilities for tourists’. The appellant sought to limit the use of the accommodation to people employed in the region and proposed ‘Residence Rules and Regulations’ to enforce that limitation.
The Development Plan for the region prescribed camping grounds, caravan parks and tourist accommodation as non-complying. However a policy of general application contained in the development plan encouraged short term worker’s accommodation.
The Judge found that the proposed development was for a caravan park and camping ground and therefore non-complying and that those uses were also types of tourist accommodation.
Held per Kourakis CJ (Peek and Nicholson JJ agreeing), dismissing the appeal:
1.       There is no textual or contextual reason to read down the ordinary meaning of camping ground, caravan park and tourist accommodation in light of the policy encouraging short term worker’s accommodation (at [9]).
2.       The proposed development is to situate a number of caravans and camping sites for short term stays. The use of the land is not affected by the residents’ employment (at [14]).
3.       In the alternative, while an applicant’s intention may affect the proper categorisation of a development (at [18]), on these facts, the applicant’s proposed limitations on the use of the land do not affect the categorisation of the development (at [20]).
Development Act 1993 (SA), referred to.
Chappel Investment Co Pty Ltd v City of Marion (2009) 103 SASR 184, considered.

BEDIAVAS v DEVELOPMENT ASSESSMENT COMMISSION
[2017] SASCFC 124
Full Court: Kourakis CJ, Peek and Nicholson JJ

KOURAKIS CJ: This is an appeal against a judgment of the Environment Resources and Development Court (the ERD Court) dismissing an appeal from the Development Assessment Commission (the DAC) which categorised a proposed development as non-complying with the Development Act 1993 (SA).
The appellant, Theodoros Bediavas (Mr Bediavas), is the owner of the subject land, known as Tamaringa Station, which is situated at Paringa on the River Murray. The fruit growing areas along that stretch of the River Murray are known as the Riverland. Mr Bediavas sought approval for a development which he described as ‘workers accommodation and associated facilities’ (the application). The premises were to be managed by Mr D’Anastaci, the lessee of the portion of his land on which the development was proposed. The application was for a ‘camping ground, caravan parking area and accommodation facilities for tourists’. That description of the development was not a promising start for an application for planning approval in a zone in which prescribes ‘camping ground’, ‘caravan park’ and ‘tourist accommodation’ as categories of development which are non-complying.
The application was supported by a letter from a town planner, Mr David Hutchison. There is an existing dwelling on the subject land comprising four bedrooms, a kitchen, a bathroom and a laundry. Mr Hutchison’s letter explained that the proposal is to convert the existing dwelling to accommodate up to nine guests in three bedrooms with the guests sharing the bathroom. Mr Hutchison’s letter continued that ‘additional persons’ will be ‘accommodated in caravans and camping facilities’ as ablution facilities become available. The proposed new ablution block would comprise male, female and disabled toilets and showers in a transportable structure. The number of caravans and camping sites was not quantified but as judged from the accompanying plan was likely to be substantial.
Mr Hutchison’s letter asserted that the residents of the facility would be limited to ‘those persons who are contracted to work locally’ and to that end occupants would be required to agree to a code of conduct, which was attached to Mr Hutchison’s letter which among other things obliged guests to maintain employment. The code was entitled ‘Residence Rules and Regulations’ (the code). The code reserved the management’s right to evict ‘any guest out of work for more than five days’. On the basis of the proposed rules, Mr Hutchison described the development as workers’ accommodation.
On the hearing in the ERD Court of the review of the DAC’s categorisation of the development, two affidavits sworn by Mr D’Anastaci were received. In his first affidavit Mr D’Anastaci deposed that seasonal work was performed in the Riverland by backpackers but also by ‘regular workers’ who reside permanently elsewhere but attend the Riverland for a short period of time to perform a discrete role. Despite the terms of the code, Mr D’Anastaci deposed that residents would be allowed a grace period of 14 days without employment in between contracts and may be allowed to stay for up to 30 days after their employment came to an end. Mr D’Anastaci deposed that ‘genuine tourists’ would not be accommodated.
The Development Plan
The Development Plan for the Renmark Paringa Council consolidated on 21 February 2013 (the Development Plan) applies to the subject land and the proposed development. The land is wholly within the River Murray Flood Zone under the Development Plan. Prescribed non-complying developments for the River Murray Flood Zone include:
·Camping Ground;
·Caravan Park;
·Tourist accommodation.
Those developments are not defined in the Development Plan, the Act or the Regulations.
The general section of the Development Plan for the Renmark Paringa Council (the Council) sets out policies of general application throughout the Council area and includes a section entitled ‘Short Term Workers Accommodation’ (STWA) which states:
OBJECTIVES
1A range of appropriately located accommodation types supplied for seasonal and short-term workers.
PRINCIPLES OF DEVELOPMENT CONTROL
1Accommodation intended to be occupied on a temporary basis by persons engaged in employment relating to the production or processing of primary produce including minerals should be located within existing townships or within primary production areas, where it directly supports and is ancillary to legitimate primary production activities or related industries.
2      Buildings used for short-term workers accommodation should:
(a)     be designed and constructed to enhance their appearance
(b)     provide for the addition of a carport, verandas or pergolas as an integral part of the building
(c)     where located outside of townships, not jeopardise the continuation of primary production on adjoining land or elsewhere in the zone
(d)     be supplied with service infrastructure such as power, water, and effluent disposal sufficient to satisfy the living requirements of workers.
3Short-term workers accommodation should not be adapted or used for permanent occupancy.
4A common amenities building should be provided for temporary forms of short-term accommodation such as caravan and camping sites.
The STWA Objectives and Principles must be understood against the long and well known history of horticulturalists in the Riverland providing accommodation on one or more of their ‘blocks’ for the seasonal workers they employ. That is not to say that the STWA Objectives and Principles must be construed as limited to that form of accommodation. For example, boarding house style accommodation might also be provided within a township. However, the SWTA Objectives and Principles do not provide any textual or contextual reason to read down the ordinary meaning of the terms caravan park, camping ground and tourist accommodation in the Murray River Flood Zone section of the Development Plan so that accommodation for short term workers is excluded. On the contrary, the reference to caravan and camping sites (rather than grounds) in STWA Principle 4 recognises that the workers’ accommodation to which it speaks may be something other than a conventionally understood caravan park or camping ground. The word sites recognises that caravans, or camping spaces, provided for short term workers’ accommodation is likely to be on the private premises of the fruit grower where it is not accessible to the public and dedicated exclusively to use by workers whilst they are employed.
The express recognition in the Development Plan of the special land use described as ‘Short Term Workers Accommodation’ does not mean that a land use properly so described might not also be described as a caravan park or camping ground.[1]
[1] Chappel Investment Co Pty Ltd v City of Marion (2009) 103 SASR 184 at [17]-[24].
The Objectives of the River Murray Flood Zone include the following:
OBJECTIVES
1Buildings and structures excluded from the zone where they are likely to impede or be damaged by floodwaters and/or fluctuating pool levels of the River Murray.
2The conservation and improvement of water quality that sustains the natural environment and natural ecological processes associated with the River Murray in areas as defined by the River Murray Act 2003.
3Conservation of the natural features of the river environment.
4Restricted development in recognition of the hazards associated with floods, by minimising new structures and changes to existing natural ground levels.
5Land division enabling security of tenure for existing dwellings.
6The upgrading of existing dwellings to assist environmental improvements.
7Development that contributes to the desired character of the zone.
The Judgment
The Judge found that the proposed development was for a caravan park and camping ground which were non-complying and that those uses were also types of tourist accommodation:[2]
[36]I determine that the proposed use of the house on the land is for tourist accommodation within the meaning of that term in the list of the kinds of development which are non-complying in the River Murray Flood Zone. Moreover, I consider that the caravan park and the camping ground portions of the proposed development, in addition to being non-complying in their own right, are also types of tourist accommodation.
[37]I note that it is well established that, where a development application is made in relation to a proposed development which comprises a number of land uses, and one of those land uses is non-complying under the Act, then the development application is to be processed as a kind of development which is non-complying. In this matter, the proposed land use can be characterised as a single non-complying land use, namely tourist accommodation, or as three land uses, all of which are non-complying.
[2] Bediavas v Development Assessment Commission [2017] SAERDC 1 at [36]-[37].
Analysis
The proposed development is to situate a substantial number of caravans and camping sites on the land, serviced by ablution facilities, for the purpose of renting the caravans and sites to members of the public for short term stays. They will sleep, take meals and enjoy some leisure in and around their caravans or camping site, albeit for parts of the day and in particular ways which will vary from resident to resident. They will use the common ablution facilities.
The land use so described is a caravan park and camping ground. The use of the land as such is not affected by whether or not residents spend most of the day on the subject land or whether they leave early in the morning and return late at night. The land use is no less as a caravan park or camping site if residents spend the day sightseeing, shopping, visiting relatives, playing sport, performing voluntary work or undertaking paid employment. If all, or many, of the guests do engage in paid work, a caravan park or camping ground might also be described as short, or even long, term workers’ accommodation without derogating from its proper description as a caravan park or camping ground.
Moreover, reading down the terms ‘caravan park’ and ‘camping ground’ to exclude developments which, but for the fact that the guests were workers, would properly be so described, does not promote, and is probably inconsistent with, the objectives of the River Murray Flood Zone.
The appellant’s application is therefore for a non-complying development.
If, contrary to my holding, the purpose of the hiring of caravans, or the sites in a camping ground, is capable of affecting the proper description of the land use on which the caravans and sites are situated, it would be necessary to consider whether the developer’s intention to limit occupants of the caravan park or camping ground to short term workers could change the categorisation of the land use.
A planning regime which controls development by reference to land use is primarily concerned with the actual activities on the land and their direct or indirect effect on that land and the enjoyment of surrounding land. For that reason land uses which have the same outward appearance and effect should generally not be categorised differently by reference to the subjective purpose for which they are undertaken. However, a Development Plan may categorise developments by reference to the purpose, intensity or duration of the land use, or by reference to collateral aspects of the land use. The proper categorisation of a development so defined may depend on the applicant’s stated intention to limit the activity in accordance with a Development Plan’s definitions. There is no reason in principle why the applicant’s intention should not be taken into account in such a case. For example, accommodation of a certain kind, like a caravan park, might be prescribed as a non-complying use unless it is available only as a short-term accommodation for seasonal workers. In such a case the developer’s intention to offer the accommodation only to short term workers will affect its categorisation. If the development is ultimately approved, a condition enforcing that intention will probably be imposed. However, as counsel for the DAC correctly observed, categorisation is necessarily an anterior question and cannot be affected by a planning condition which might ultimately be imposed.
On the other hand, unrealistic restrictions on land use which are inherently inconsistent with the nature of the activities that will be undertaken on the land may be ignored and the nature of the development described without reference to them. An analogous principle applies on an assessment of a development application on its merits when development approval may be refused if the imposition of conditions to enforce the complying use are impracticable.
Be that as it may, the proposed limitations on use by reference to the purpose of the guest’s stay at Tamaringa Station do not for the reasons I have given affect the categorisation of the development as a caravan park and camping ground.
Having found that the proposed development is for a caravan park and camping ground, it is not necessary to decide whether the proposed development was tourist accommodation and therefore non-complying for that reason as well. Nonetheless, I deal with that question for the sake of completeness. It is on this issue that the proposed limitations on the classes of guests who would be accepted might have been material. However, on the wording of the code, and on Mr D’Anastaci’s evidence, the caravan park and camping ground were available to persons on holiday in the period after, or between, contracts of employment. That use is sufficient to categorise the proposed development as tourist accommodation even if it were not the predominant use of the caravan park and camping ground.
A more difficult question may have arisen if it were proposed to limit guests, more strictly, to those in employment. Many persons described as backpackers from overseas enter Australia on working visas for the purpose of financing their holiday or recreational visit to Australia with some paid employment.[3] If the purpose of the proposed development was to provide accommodation for those persons, both whilst they were working and also while they were staying on for recreational reasons, the caravan park and camping ground would, as I have just observed, be properly described as tourist accommodation. However, if the stay of the backpacker/tourist were limited strictly to the period of employment, it might be doubted that the development was tourist accommodation. Even though the backpacker/tourist might be described as a tourist for the entire period of his or her stay, in the sense of a person who tours by travelling away from his or her regular place of residence, I doubt that the same could be said for the more limited period in which they stayed at a place whilst engaged in employment. In that situation it would be difficult to distinguish between the stay of the backpacker/tourist at such premises and the stay of a local worker who has travelled from another town or city in Australia as part of his or her occupation as a seasonal worker.
[3] Australia provides a working holiday visa sub-class 417 (Migration Act 1958 (Cth) Schedule 2, Migration Regulations). It is a condition of that visa that the holder work for an employer for six of the 12 months of the permitted stay. There is also a visitor sub-class 600 visa which has four streams but which prohibits the holder undertaking work.
Conclusion
The appeal must be dismissed.
PEEK J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.
NICHOLSON J: I agree with the Chief Justice.