Bindara Pty Ltd T/A Ampol Shop Stop Brighton v City of Holdfast Bay &Ors No. Scciv-01-804

BINDARA PTY LTD TRADING AS AMPOL SHOP STOP BRIGHTON v CITY OF HOLDFAST BAY, WHITE & FRAZER
[2001] SASC 314
Land and Valuation Division

DEBELLE J. This appeal from a decision of a Commissioner of the Environment Resources and Development Court (“the Environment Court”) concerns an application to extend the hours of operation of a service station and shop.
Bindara Pty Ltd, the appellant, owns and operates an Ampol service station on the corner of Brighton Road and Lynmouth Avenue, Brighton. The service station is on the western side of Brighton Road and occupies about 2,680 square metres. On its eastern side it has a frontage some 66 metres long to Brighton Road from which there are two access ramps to the service station. The frontage to Lynmouth Avenue is about 40 metres long and it includes one access ramp to the service station. Apart from the access ramp, the two street frontages are extensively landscaped. A brick wall about two metres high encloses the north and western boundaries of the land. The service station comprises a building as well as an adjacent covered area for fueling of motor vehicles. The building houses both the shop selling the usual kind of accessories for motor vehicles as well as selling so-called convenience goods. It is known as an Ampol Shop Stop.
This service station is in the area of the City of Holdfast Bay (“the Council”). It falls within the Residential (Brighton Road) Zone as prescribed in the Council’s Development Plan. The development in the immediate vicinity of the service station is a mixture of single storey detached dwellings and small scale commercial developments, the latter being limited to the frontage to Brighton Road. The appellant holds a development consent which allows it to operate the service station from 6 am to 10 pm on every day of the week.
On 25 October 2000 the appellant lodged an application for development consent with the Council to vary condition 6 of its development consent to allow it to trade until 12 midnight on each day of the week. The Council received 14 written submissions and a petition opposing the application. It also received a written submission from the appellant and a petition in support of the application. On 19 December 2000 the Council refused the appellant’s application. The appellant appealed to the Environment Court which dismissed the appeal. It is from that decision that the appellant appeals to this Court.
The second respondents, Mr White and Ms Frazer, were authors of one of the written submissions received by the Council in respect of the application and they took part in the appeal before the Environment Court. They took no part in this appeal, having indicated that they will abide the order of the court. The protagonists to this appeal were, therefore, the appellant and the Council.
Before considering the grounds of appeal, it is necessary to note a previous application made in 1992 by Ampol Road Pantry Pty Ltd, a predecessor in this business, to extend the trading hours of this service station and shop to enable trading for 24 hours in each day of the week. The application was refused by the Council. Ampol Road Pantry Pty Ltd appealed to the Planning Appeal Tribunal and the appeal was dismissed. An appeal to a single judge of this Court, and later to the Full Court of this Court, were also dismissed: Ampol Road Pantry Pty Ltd v City of Brighton (1993) 62 SASR 165. This appellant seeks to rely on some aspects of the decision of the Full Court. I mention the decision for that reason only.
The Development Plan
The intent of the Development Plan for this zone is spelt out in these terms:
“The impacts of non-residential development and the traffic on Brighton Road detract from the amenity of the living environment. The Zone is a barrier to linear expansion of existing commercial areas, the extension of which would be detrimental to the living environment and the traffic flow on Brighton Road. Non-residential development should be limited to redevelopment of existing business premises in which there is an improvement of neighbouring living conditions and residential amenity.
OBJECTIVES
Objective 1: An increase in population and dwellings in a location which is well served by public transport, shopping and community facilities.
Objective 2: An area accommodating residential development which forms a barrier to linear expansion of existing non-residential areas.”
That intent is reinforced by the first two principles of development control for this zone, which are in these terms:
“1Development undertaken in the Residential (Brighton Road) Zone should be, primarily, medium-density dwellings which allow a greater number of residents to benefit from proximity to public transport routes, shopping and community facilities.
2Development may include small-scale retail, commercial and community facilities in appropriate locations.”
Those principles are consistent with the objectives and principles of development control for the whole of the Council area. They were all quoted by the Commissioner in his reasons.
After setting out those provisions and summarising the zoning and development along Brighton Road, the Commissioner continued,
“7As has been said many times (eg Pooley v District Council of Mallala and Smith 1995 EDLR 186), it is basic planning practice to evaluate development proposals firstly against the strategic intent of the relevant development plan, secondly as to how they fit within their neighbourhoods or localities and thirdly how they fit upon their sites having regard to the provisions of the plan. If the answer to the first question is clearly in the negative, there is rarely little point in proceeding further. Of course, all three questions must be answered having regard to the physical realities of the urban or rural setting into which the proposal is to be placed.
8What then is the situation here? Notwithstanding that Brighton Road is a high volume Arterial Road serving beachside suburbs and providing an access to the southern metropolitan Noarlunga region, the authors of the Plan have come down firmly on the side of residential development along much of its length. In this it contrasts with many other similar arterial roads in metropolitan Adelaide. Putting together the structure plan, the introductory statements to the zones and their objectives and principles there is little, if any, latitude given to business type uses or even those of the community variety (the ‘Institution’ Zone excepted). Indeed, such developments ‘.... should be limited to redevelopment of existing business premises in which there is an improvement of neighbouring living conditions and residential amenity’ and ‘small scale’ is the touchstone. Having regard to these issues, the proposed development fails the first question.
9However, are the physical realities of the locality such that the Plan’s strategic intent is weakened? The answer is no. Except for two properties, residential development - primarily detached dwellings - faces onto Brighton Road between Balmoral Avenue and Gladstone Road. This section of the road between the high school and the business premises of the Neighbourhood Zone is obviously residential in character. Not only that, in contrast to the situation along many other arterial roads these dwellings, or at least those that I observed in the company of the other parties, are well maintained with neat and tidy frontages.”
The Commissioner then examined whether the overall development of the Ampol Shop Stop is small scale and held that it was not saying,
“10Is the proposal small in scale? The ‘corner shop’ of a very distant yesteryear is sometimes put forward as an example of a small-scale use. While Ms Nolan rightly saw the Ampol Shop Stop as including some of the aspects of a ‘corner shop’, it is far larger and is clearly a service station with all the paraphernalia of canopies, pumps and the like. Its customers would come from far and wide and its trading hours are far more extensive than the very restrictive hours that used to be imposed on the traditional corner shop. It is not ‘small scale’.”
Turning to the question of the amenity of the area, the Commissioner held that it was but one of a number of issues to be considered and was of little import in this matter. He concluded that while the extension of the trading hours would be slight, the appellant had not demonstrated that the extension would result in an “improvement of neighbourhood living conditions and residential amenity”. He concluded in these terms:
“12On the face of it, a neat, well run service station adjoining a busy arterial road would seem unexceptional as would the extension of its trading times by two hours. However, that only takes into account issues of marketing and customer convenience. It does not take into account the intentions of the Development Plan which, in this instance, do not align with such issues. In this regard, this matter contrasts with BP Australia Limited v City of Prospect & Alessi (ERDC No 906 of 2000) referred to by Mr Manos.”
For those reasons, he dismissed the appeal.
It is apparent from these reasons that the Commissioner’s decision essentially involved an exercise of planning judgment, a judgment which was made after considering the relevant provisions of the Development Plan. This Court has repeatedly said that it will not interfere with the decision of a planning court or tribunal upon essentially planning issues save in exceptional cases only. The court does not sit to hear purely planning issues to be argued unless the Environment Court has made an identifiable and egregious blunder, has made a demonstrated 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 City of Brighton (supra) at 73. These words are an application of well established principle relating to an appeal from the exercise of a discretion: see, for example, House v The King (1936) 55 CLR 499 at 505. They also recognise that the appeal is from a specialist court or tribunal. The court will also interfere where the Environment Court has erred on a question of law.
I turn to the grounds of appeal. It is convenient to deal with the first and second grounds of appeal together. The first is that the Environment Court erred in that it placed undue weight on the provisions of the Development Plan so as, in effect, to treat those provisions as directory rather than discretionary or as guidelines. The second is that the Environment Court erred as a matter of law in its interpretation of the relevant provisions of the Development Plan and failed to take into account all relevant provisions of the Plan when dealing with the application.
I deal first with the second ground of appeal. Mr Manos, who appeared for the appellant, referred to the following provisions in the Development Plan which, he submitted, had not been taken into account. They are principles 23, 24 and 25 in this zone and principle 54 in the principles of development control which apply throughout the area of the Council. The Commissioner did not expressly refer to them, although his reasons state that he had considered the relevant provisions of the Development Plan. However, these provisions only serve to reinforce the effect of the objectives for this zone and, in particular, principles 1 and 2. Even if the Commissioner had failed to refer to those principles – and I do not assume that he has – they would not in any relevant respect lead to a different conclusion.
The first ground of appeal fails to have sufficient regard to the whole of the Commissioner’s reasons. It is well established that a Development Plan is couched in the language of objectives and principles rather than legal obligation and that its provisions are, in effect, guidelines by reference to which the proposed form of development will be assessed. As was noted by the Full Court in Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 at 187,
“As was pointed out by Wells J. in Hassen’s case, however, the Plan is in the nature of a planning document and is couched in the language of planning objectives and principles rather than that of legal obligation. Jacobs J. in the judgment appealed from in this case described the language of the principles in the Plan as ‘advisory’. Perhaps that word read out of context does not attach sufficient force to the language of the principles, but it is nevertheless language appropriate to the expression of goals and guiding principles rather than to the expression of legal mandates.” (Footnotes omitted.)
When assessing a proposal regard must be had to all relevant provisions of the relevant Development Plan “distilling from them the overall intent and purpose and the desired character of the zone on which it is sought to place the proposed development”: see City of Mitcham v Freckmann (1999) 74 SASR 62. The provisions of a Development Plan are not mandatory: South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35.
I have already quoted para 7 of the Commissioner’s reasons. His statement of the steps to be taken is, broadly speaking, consistent with what the court said in City of Mitcham v Freckmann. However, I express some concern as to the sentence which reads, “If the answer to the first question is clearly in the negative there is really little point in proceeding further”. On its face, that sentence suggests that the Commissioner might be regarding the terms of the Development Plan as mandatory, rather than advisory, in operation. Mr Manos attacked the Commissioner’s reasons on the ground that he had viewed the provisions of the Development Plan as mandatory.
However, I do not believe, when read as a whole, that the Commissioner is giving the Plan a mandatory effect. The Commissioner’s reference to his own reasons in Pooley v The District Council of Mallala might be more happily expressed, but I do not think that they indicate that the Commissioner is treating the Plan in any other way than as providing guidelines. That is apparent when the whole of the Commissioner’s reasons and his approach in the case are considered. The critical sentence in his reasons is not expressed in absolute terms. More importantly, the rest of the Commissioner’s reasons show that he has examined this proposal by reference to other relevant factors including the fact that the service station and shop already operate, that the premises are located on a busy arterial road, and its effect upon the amenity. I do not think, therefore, that the Commissioner has adopted an incorrect approach and has treated the provisions of the Plan as being mandatory in their operation. It has not been shown that he did not have regard to all relevant provisions or, if he did not, that they would affect his decision. Grounds one and two must, therefore, fail.
Relying on Courtney Hill Pty Ltd v South Australian Planning Commission (1990) 59 SASR 259 at 263, Mr Manos submitted that the Commissioner had failed to have regard to the fact that the appellant’s application concerned an existing use of this land as a service station and shop. That submission must plainly fail as it is quite apparent from paras 10 and 12 of the Commissioner’s reasons that he had regard to that fact. Furthermore, the Commissioner was clearly aware that the application concerned an extension of hours to an existing business.
The third ground of appeal is that the Environment Court erred as a matter of law in not taking into account, or not properly taking into account, the current operations on the site, its location on a very busy arterial road, and that in 1992 the planning tribunal had determined that the use of the land as a “modern type service station” was an appropriate land use. It is readily apparent from the Commissioner’s reasons that he has had regard to the existing operations of the site. They are mentioned in both paras 10 and 11 of his reasons. The Commissioner also notes at least twice in the course of his reasons that Brighton Road is a busy arterial road. The Commissioner has considered the existing operations as well as the application for an extension of two hours from 10 pm until midnight and all other relevant issues. The fact that in 1992 the Planning Appeal Tribunal determined that the use of this land for a modern type of service station was appropriate does not assist the appellant in that it begs the question whether the hours should be extended. It should be added that in 1992 those comments were made in the context of refusing an application to extend the hours to a 24 hour operation. This ground of appeal, therefore, fails.
The fourth ground of appeal is that the Environment Court erred in that it failed to pay any proper regard to the expert evidence presented to the court and, in particular, the evidence of Dr Peter Swift, regarding the acoustic impact that the extended hours would have on the locality and how that related to the Development Plan. It is quite apparent that the Commissioner has had regard to the evidence of Dr Swift since he acknowledged, in para 11 of his reasons, that any deleterious impact upon the amenity would be slight. However, as he is required, the Commissioner has balanced that factor with all other relevant factors when deciding not to allow the appeal. Issues concerning amenity are not determined simply by questions of noise. It is implicit in his reasons that the Commissioner was paying particular regard to the fact that the proposed extension was late at night, from 10 pm until midnight, and that the shop would be used by customers from well outside the locality of this site. This was quintessentially an exercise of a planning judgment. No ground has been demonstrated for interfering with the Commissioner’s conclusion.
The fifth ground of appeal asserts that the Environment Court erred in not considering the extension of trading hours to be “small scale” in the context of the current hours of operation. This ground relies on the fact that the extension is sought for two hours only and fails to have regard to the hours when the extension is being sought. Furthermore, the reference to “small scale” in Principle 2 referred to above refers not only to hours but also to the nature of the operation. This service station is not a small scale operation. The reasoning in the previous paragraph applies with equal force to this ground. Again, the Commissioner was exercising his planning judgment and nothing has been shown by Mr Manos which warrants this Court interfering with it.
The appellant has, therefore, failed to demonstrate either an error of law or a departure from proper planning principle. It follows that the appeal must be dismissed.
The orders will be:
1. Appeal dismissed.
2. The appellant will pay the first respondent’s costs as taxed or agreed.

[2001] SASC 314

27 August 2001