Caltex Australia Petroleum Pty Ltd v City of Holdfast Bay - [2014] SASCFC 59

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
CALTEX AUSTRALIA PETROLEUM PTY LTD v CITY OF HOLDFAST BAY
[2014] SASCFC 59
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Justice Parker)
11 June 2014
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CLASSIFICATION OF USES
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL
An appeal from a decision of the Environment Resources and Development Court which confirmed a decision of the City of Holdfast Bay; that an application to undertake development on an existing service station site (the Caltex site) was a non-complying use for the purposes of the Holdfast Bay Development Plan.
The appellant applied for development authorisation to (a) redevelop the service station, including replacing the existing retail building with a larger building, replacement of four petrol bowsers, the addition of three on-site parking spaces and replacement of existing signage; (b) extend the trading hours to 24 hours a day.
Held (Kourakis CJ, Bampton and Parker JJ agreeing):
If the proposed development does not effect a change in the existing use there is no further cause to ask whether the development is reasonable (Kourakis CJ at [58]).
Neither the building work nor the additional shopping and parking spaces it creates change the use of the Caltex site. There is no change in the activities engaged in on the land or in their relative mix (Kourakis CJ at [59]). The increase to 24 hours does not change the use of the land. The planning use of the land remains that of a petrol filling station and shop (Kourakis CJ at [60]).
The proposed development is a continuation of the existing non-complying use of the Caltex site and not a non-complying use for the purpose of the Development Plan (Kourakis CJ at [61]).
The appeal is allowed and the judgment of the ERD Court set aside. The appeal against the City of Holdfast Bay’s decision also be allowed and the decision reversed such that the City of Holdfast Bay are directed to determine the application for development approval on the basis that it is not a non-complying development (Kourakis CJ at [62]).
Development Act 1993 (SA) s 33, s 34, s 35, s 86; Development Regulations 2008 (SA); Planning Act 1982 (SA) s 39, s 42, referred to.
Wilson v City of Mitcham and Mercedes College (1986) 61 LGRA 126; Caltex Australia Petroleum P/L v City of Holdfast Bay [2013] SAERDC 48, discussed.
Potter v City of Holdfast Bay (2005) 142 LGERA 39; Development Assessment Commission v A & V Contractors Pty Ltd (2011) 109 SASR 276; West Torrens City Corporation v McDonald's Properties (Aust) Pty Ltd (No 2) (1985) 38 SASR 467; Papadaopoulos v Woodville City Corporation (1985) 39 SASR 569; Cutajar (t/a Nova Motor Repairs) v Corporation of the Town of Thebarton (1991) 55 SASR 70; Mount Barker District Council v Palma (2002) 120 LGERA 182; Remove All Rubbish Co Pty Ltd v Munno Para City Council (1991) 56 SASR 254; City of Mitcham v Fusco (2002) 124 LGERA 196; Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305; Shire of Perth v O'Keefe (1964) 110 CLR 529; Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138; North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 67 LGRA 344, considered.

CALTEX AUSTRALIA PETROLEUM PTY LTD v CITY OF HOLDFAST BAY
[2014] SASCFC 59
Full Court: Kourakis CJ, Bampton and Parker JJ

KOURAKIS CJ: This is an appeal from a decision of the Environment Resources and Development Court (the ERD Court) dismissing an appeal against a decision of the City of Holdfast Bay (Holdfast Bay). The ERD Court confirmed the decision of Holdfast Bay that an application to undertake development on an existing service station site (the Caltex site) was a non-complying use for the purposes of the Holdfast Bay (City) Development Plan (the Development Plan).
The Development Act 1993 (SA) (the Development Act) prohibits developments of, or on, land without the approvals prescribed in Part 4 Division 1. The relevant approval for the purposes of this appeal is the development plan consent required by s 33(1)(a) of the Development Act. The authority for the giving of development plan consent is generally the governing council of the local government area in which the development is proposed.[1] A non-complying development may still be approved by the responsible planning authority if there is planning merit in the development and the responsible planning authority does not form the opinion that it is seriously at variance with the governing development plan.[2] To that end, the proponent of a non-complying development must provide a statement of effect setting out the full planning impacts of the proposed development.[3] Moreover, a non-complying development must be approved both by the responsible council and by the Development Assessment Commission.[4] Finally, the proponents of a non-complying development cannot appeal to the ERD Court against a decision to refuse approval.[5]
[1]    Development Act 1993 (SA) s 34(1).
[2]    Development Act 1993 (SA) s 35.
[3]    It should be noted, however, that the responsible authority has a general power to require any applicant to provide a report of that kind.
[4]    Development Act 1993 (SA), s 35(3).
[5]    Development Act 1993 (SA), s 35(4).
Caltex’s application for development approval has yet to be determined on its merits. However, Holdfast Bay informed Caltex that it would treat its application as a non-complying development and, importantly, that it required Caltex to provide a Statement of Effect in accordance with the Development Regulations 2008 (SA) (the Development Regulations) by letter dated 18 April 2013. That decision was a “decision, direction or act of a relevant authority under this Act that is relevant to any aspect of the determination of the application” for development approval made by Caltex within the meaning of that phrase in s 86(1)(a)(ai) of the Development Act and Caltex was, therefore, entitled to appeal the determination.[6]
[6] If, ultimately, Holdfast Bay were to grant development consent, despite its decision that the proposed development was non-complying, private and public resources will have been unnecessarily expended on the proceedings in the ERD Court and in this Court. There is therefore good reason not to appeal against a decision to treat a proposed development as non-complying as soon as it is made. After all if an application is later assessed and refused on the erroneous premise that the proposed development is non-complying, an appeal against the refusal of development plan consent can still be brought because it is for the ERD Court, and not the planning authority, to determine whether s 35(4) of the Development Act operates to deny a right of appeal which would otherwise be available pursuant to s 86(1)(a)(ai) of the Development Act. On the other hand, the early correction of an erroneous classification of a proposed development as non-complying may expedite a favourable decision on the merits. A decision in a particular case as to whether to appeal immediately, or after the development application is finally dealt with, can only be made on a practical assessment of the most efficient way of dealing with that application.
The Caltex site is situated on the western side of Brighton Road at North Brighton. Caltex seeks approval for:
·the construction of a new sales building, the replacement of four petrol bowsers, the addition of three on-site parking spaces, replacement of existing signage and
·permission to trade 24 hours per day.
The proposed sales building has a gross area of 300m² and a sales floor area of 148m². Caltex intends to continue to offer a range of fuels to the travelling public from the forecourt, and a similar range of products to those currently sold from the shop building.
Holdfast Bay correctly submits that the proposals for a larger shop and 24 hour trading are intertwined. The stated reason for the extended trading hours is to cater for the expansion of the retail shop and associated increased demand, and around the clock trading is required to justify the expenditure on the new shop.
Both “petrol filling stations” and “shops” are listed as non-complying developments in the applicable zone (the Residential Activity Node Zone (RANZ)) of the Development Plan in which the existing service station is situated.
In Wilson v City of Mitcham and Mercedes College (Wilson),[7] Jacobs J held that notwithstanding the designation of a use as non-complying, a development which is continuation of an existing or approved non-complying use of land will not, of itself, always be treated as a non-complying use. The proper classification of a proposed accretion on a site which is dedicated to a pre‑existing non-complying use, as one which is either complying or non‑complying, is determined by a process which involves a purposive construction of the terms in which non-complying uses are prescribed by the applicable Development Plan. The principle is often eponymously referred to as the Mercedes College principle. I will refer to the principle as the existing non-complying use principle. This appeal raises for consideration the scope and precise content of that principle.
[7] (1986) 61 LGRA 126.
The ERD Court Judge found that the change in use proposed by Caltex was so substantial that it departed from the distinct character of the existing use of the land and therefore fell outside the existing non-complying use principle. The nature of the arguments put to the Judge, and the Judge’s disposition of those arguments, show that the principle has become beset by complexities which allow much scope for subjective decision making. Consequently, undesirable uncertainty hangs over development applications of this kind. In my view, the existing non-complying use principle, and the characterisation of developments should be approached in a way which eschews fine distinctions and promotes relative certainty in decision making.
Viewed in the round, both the existing and proposed uses of the Caltex site are as a petrol filling station and/or shop. The proposed building work, and extension of trading hours enhances, but does not change, that use. Neither as a matter of business organisation nor common language is there a recognised taxonomy which would place the existing and proposed uses in different classes.
For the reasons which follow I would hold that on a proper application of the Development Act and Regulations, the same common sense conclusion is reached. Caltex’s proposed developments continue an existing non-complying use and for that reason they were not non-complying for the purposes of the Development Plan.
The subject land and locality
The Caltex site is rectangular in shape with frontage to both Brighton Road and Lynmouth Avenue. It comprises a total area of 2,676m². The existing service station shop has a gross floor area of 211m² and a sales area of 120m². The existing petrol bowser area has a flat roof canopy which sits diagonally to Brighton Road. The locality surrounding the Caltex site comprises predominantly detached dwellings with some group dwellings and residential flat buildings. There are some nearby offices.
The Desired Future Character Statement for that RANZ is stated in the following terms:[8]
The Residential Activity Node Zone covers those areas that have immediate frontage to the major transport corridors and nodes throughout the city, namely Tapleys Hill Road, Anzac Highway and Brighton Road. It also includes Jetty Road, Brighton, the land each side of the Railway Line between Jetty Road and the Brighton Railway Station, and the area adjacent to the Hove Railway Station.
The Zone has convenient access to services, shopping and businesses in adjacent centre zones and it also affords a high level of access to public transport routes, both rail and bus, as well as links to the tram at Glenelg.
The Zone will progressively experience small and medium-scale redevelopment at medium densities as opportunities arise to meet demand for smaller, conveniently located housing. The consolidation of land holdings into larger sites that accommodate integrated medium-density housing development is encouraged through development density and design provisions that seek more efficient use of sites in these infill locations.
All medium density housing forms are appropriate within the Zone, including accommodation for the aged, boarding homes and student accommodation, which takes advantage of the proximity of the Zone to transport services and facilities. This will ultimately result in a mix of these medium density housing forms, together with semi-detached and detached dwellings that contribute significantly to the range of housing choice in the city. Due to the need for vehicle crossovers onto arterial roads, redevelopment of individual allotments for detached dwellings or semi-detached dwellings is not appropriate on the arterial road frontages.
Recognising that non-residential development detracts from the amenity of the living environment, the linear expansion of existing commercial activities within the Zone is inappropriate. The further intensification of non-residential activity within the Zone is also inappropriate. (my underlining)
[8] Caltex Australia Petroleum P/L v City of Holdfast Bay [2013] SAERDC 48 at [10].
Historical use and planning consents
A motor fuel retail outlet was established on part of the present Caltex site in the 1950s. It consisted of a small shop, four petrol bowsers, two lubrication bays and a mechanical workshop. The shop stocked auto parts, car polishes, lubricating oils, cigarettes, confectionary, pies and pasties.
For six or seven months in 1990 the motor fuel retail outlet operated continuously from 6 o’clock on Thursday morning until midnight on the following Sunday. In 1991 it was closed down altogether whilst the site was redeveloped.
Until 1991 a dwelling and delicatessen had been situated on the northern third of the Caltex site. It had operated independently of the motor fuel retail outlet from some time in the 1980s.
On 12 December 1990 the City of Brighton granted the then proprietor of the site, Ampol Limited, approval to “redevelop and extend an existing service station including retail component plus additional pump facilities, car parking, signage and landscaping”. The approval was subject to 11 conditions. One of those conditions was that the hours of operation be confined between 6.00am and 10.00pm. Ampol initially appealed against that condition but later withdrew its appeal.
The development was undertaken in early 1991 and the premises opened in May 1991. Later in 1991 Holdfast Bay refused an application for approval to establish a carwash on the premises and to extend trading hours. Ampol appealed against the refusal but in the course of that appeal abandoned any intention to proceed with the carwash component. The Planning Appeal Tribunal confirmed Holdfast Bay’s decision refusing to extend the trading hours and that refusal was confirmed by this Court. Further unsuccessful attempts to extend the trading hours were made in 1995, 2000, 2001 and 2012.
Since the 1991 redevelopment, the Caltex site has continuously been used for the sale of fuel to the public from bowsers on the forecourt. The goods sold from that building include:
·automotive accessories and lubricants;
·ice;
·confectionary, cigarettes, bread, milk and newspapers;
·a limited range of frozen foods;
·fruit and vegetables;
·health and beauty pharmaceutical products;
·coffee, hotdogs, pies, pasties and other take away foods.
On 30 July 2012 Caltex, which became the proprietor and operator of the site after a merger with Ampol in 1995, applied to Holdfast Bay for the development described in para [4] above.
The authorities
The existing non-complying use principle holds that developments which continue an existing lawful use will not generally fall within those classes of development prescribed as prohibited, or non-complying, uses in a Development Plan. Some uncertainty remains as to whether the principle is limited to “reasonable” developments and whether or not it applies at all to developments which effect a change of use.
Wilson considered an application by Mercedes College for the approval of the construction of a multi-purpose hall and swimming pool on the existing school grounds. The applicable Development Plan included amongst its “prohibited uses” educational establishments including secondary schools. Jacobs J held that Mercedes College’s application for development did not fall within the category of prohibited uses so defined. The reasoning of Jacobs J appears in the following paragraphs:[9]
The Development Control Regulations define an "educational establishment" to mean "a secondary school, college, university or technical institute, but does not include a primary school or an institution for the care and maintenance of children". This definition is fatal to the argument. The proposed development is for a multi-purpose hall and swimming pool and is not by any stretch of the imagination an "educational establishment" as defined, ie it is not a secondary school, college, university or technical institute. This is not a matter of mere semantics, but involves a proper perception of the Development Plan and the principles of development control. It must never be forgotten, as I am afraid it sometimes tends to be, that the Development Plan was superimposed upon an existing state of development, and whilst it sought as best it could to characterise various localities by reference to their predominant or preferred land use, eg residential or commercial or industrial, it is an inescapable fact that within such areas there are nonconforming uses. Mercedes College has been established on its present site, in what is now designated as a residential 1A zone, for more than 30 years. The map which forms a part of the Development Plan shows it as a large unsubdivided area in that zone. It would be a very strange Development Plan that sought to prohibit an existing and long-established school from expanding its facilities in order to provide the best possible education for its children. The purpose of designating an "educational establishment" as a prohibited development is not to inhibit the reasonable development of existing schools, but to prohibit the intrusion into the area of a new "secondary school, college, university or technical institute".
There is, moreover, a more limited and technical reason which appealed to the tribunal, why the definition of "educational establishment" is fatal to the argument: for, if the proposed development is simply taken to be part of Mercedes College, the college itself does not fall fairly and squarely within the definition because it includes a primary school which is expressly excluded from the definition of "educational establishment". The proposed development is not designed, or intended to be divorced from, the primary school, and is an integral part of the whole school established on the one campus. That seems to me to be plainly right, and to take the proposed development outside the definition of the kind of educational establishment which is the subject of the prohibition. I would, however, prefer to rest my answer upon the broader view of the Development Plan which must be capable of adapting to development of existing nonconforming uses while at the same time inhibiting development by way of new secondary and tertiary (but not primary) educational establishments in a residential 1A zone.
[9] Wilson v Mitcham City Council and Mercedes College (1986) 61 LGRA 126, 135-136.

The principle stated by Jacobs J is premised on an acceptance that the purpose of designating certain categories of uses as prohibited developments in Development Plans is not to inhibit the reasonable development of existing uses, but to prohibit the intrusion into the regulated area of new prohibited uses. So much appears from the reference of Jacobs J to “the broader view of the Development Plan which must be capable of adapting to development of existing nonconforming uses”. If it is right that the purpose of prescribing prohibited, now non-complying, uses is limited in the way identified by Jacobs J, his Honour’s approach in Wilson simply reflects the, now commonly accepted, purposive approach to statutory construction. That the principle enunciated by Jacobs J in Wilson is a principle of construction of development plans is now well established.[10]
[10] Potter v City of Holdfast Bay (2005) 142 LGERA 39; Development Assessment Commission v A & V Contractors Pty Ltd (2011) 109 SASR 276.
However, there is some ambiguity in the reasons of Jacobs J on just how the purposive approach was applied. I take the view that his Honour used the limited purpose of the prescription of prohibited uses to construe the words “secondary school” narrowly to mean only those developments which, if standing alone, would constitute a complete development of the site into a secondary school. So much appears from the sentence “the proposed development is for a multi-purpose hall and swimming pool and is not by any stretch of the imagination an ‘educational establishment’ as defined, i.e. it is not a secondary school, college, university or technical institute”. In the paragraph which follows, Jacobs J referred to an additional “technical” reason for treating the hall and swimming pool as not prohibited based on the definition of an “educational establishment” not including a primary school. His Honour’s expressed preference for “the broader view of the Development Plan” is therefore a reference to his Honour’s use of the purpose of the Development Plan to characterise the proposed building and swimming pool divorced from their use as a part of an educational establishment.
That approach is, with respect, difficult to sustain. The fragmentations of developments into their individual components, divorced from any context, would deny Development Plans of much of their efficacy. For example, the “multi-purpose hall” proposed to be constructed by Mercedes College was, in its proper context, a school hall. If so described, even though the multi-purpose hall would be just one of many buildings which together comprised Mercedes College, it is difficult to see why its construction was not the development of a school. Difficult questions of fact and degree would arise if incremental developments were assessed in isolation. The difficulty would present itself most acutely in applying those provisions of Development Plans which define uses by reference to the area of land disposed for a particular use. Its application to developments which comprise components, which in isolation, can be ascribed a different use to that which they would have in combination with other components, would also be problematic. It should also be observed in this context that if that is the reasoning adopted by Jacobs J, his Honour’s reference to “reasonable development” is not a limiting condition on the operation of the principle. The “reasonableness” of the development proposed by Mercedes College could not affect the characterisation of a building as a simple multi-purpose hall on the one hand or a school hall on the other. His Honour’s reference to “reasonable development” can only have been part of the statement of the identified purpose of the Development Plan which led to his Honour’s particularly narrow construction of the words “secondary school, college, university or technical institute” to mean a complete and stand alone educational establishment and not the construction of additional school buildings which complement an existing establishment.
I acknowledge that despite the difficulty with that approach the characterisation by Jacobs J of the developments proposed by Mercedes College, divorced from the context of the existing school, accords with a line of authority to the effect that a development is primarily to be determined by examining its particular characteristics and not by reference to the development with which it is intended to be used.
In West Torrens City Corporation v McDonald’s Properties (Aust) Pty Ltd (No 2),[11] the Full Court of this Court held that the construction of a large free standing “McDonald’s” advertising sign on an existing McDonald’s site was not a shop development but simply the construction of a sign. In so holding Jacobs J, with whom the other members of the Court agreed, acknowledged that in some cases a development will take its character from the primary use of an existing development. Jacobs J cited as an example the construction of a new kitchen, toilets or storeroom for a take away food shop which may properly be characterised as a shop development. In Papadaopoulos v Woodville City Corporation,[12] Jacobs J again applied that approach, finding that the building of an additional carpark to serve a suburban shopping centre on adjacent land was not a shopping centre development.
[11] (1985) 38 SASR 467.
[12] (1985) 39 SASR 569. The decision in Papadopoulos was explained and in my respectful opinion the underlying principle correctly explained by Besanko J in Potter v City of Holdfast Bay (2005) 142 LGERA 39 at [73]-[77].
In Cutajar (t/a Nova Motor Repairs) v Corporation of the Town of Thebarton,[13] an applicant who operated a motor repair station out of four buildings on one parcel of land applied for development approval to demolish three of the older buildings and erect a new building in their place. This Court held that the use was not a prohibited use applying the decision in Wilson. In Cutajar it was not possible to characterise the new building as anything other than a motor repair shop. Cutajar is therefore an example of reasoning from the limited purpose of the prescription of prohibited developments to exclude from the classes of development so described even those developments that constitute a complete and stand alone facility of the kind prescribed.[14]
[13] (1991) 55 SASR 70.
[14] The problematic nature of the approach taken in Wilson and the earlier cases to which I have referred, was critically considered by this Court in Potter v City of Holdfast Bay (2005) 142 LGERA 39 at [18]-[20].
In Mount Barker District Council v Palma, [15] this Court took a broader view of the reasons of Jacobs J in Wilson.The applicant in Palma owned some 17.5 hectares of land with frontage to the Old Mount Barker Road just outside the township of Hahndorf. The land was used as a market garden. There were two sheds on the land. One, a large shed, was used to sell fruit and vegetables, some of which were produced on the land and some of which were brought in from elsewhere. In front of that shed lay a large bitumen carpark which was connected to the Old Mount Barker Road by a bitumen drive. A smaller shed was located closer to Old Mount Barker Road and contained a coolroom and storage area.
[15] (2002) 120 LGERA 182.
Mr Palma had been granted provisional development plan consent to carry out a small extension to the smaller shed and to undertake some internal and external improvements on the condition that:[16]
The building shall only be used for purposes as described in details accompanying the application. No sales of goods shall be undertaken within or about the building.
[16] Mount Barker District Council v Palma (2002) 120 LGERA 182 at [13].
Mr Palma applied for development approval to use the smaller shed to sell fruit and vegetables and the larger shed to store equipment, boxes and cartons. In effect, the application was to swap the use of the two sheds. No external building work was proposed.
A preliminary question arose in Palma as to whether a change in the use of sheds contrary to the condition was a development at all. Doyle CJ observed that the absence in the Planning Act 1982 (SA) of a power of the kind conferred by s 39(6) and s 42(2)(b) of the Act gave rise to a difficulty which, in Remove All Rubbish Co Pty Ltd v Munno Para City Council[17] was resolved by treating changes in conditions which were “substantial” or altered the “essence” of the use of the land as developments. In Removal All Rubbish that approach was explained by King CJ as follows:[18]
Generally speaking the hours during which a commercial or industrial operation is carried on on land do not affect the character of the use of the land. ... It seems to me that where the hours of operation are considered to be so much of the essence of the land use as to warrant the imposition of conditions restricting operations to certain hours, any variation of those hours can fairly be regarded as a change of use and therefore development. I think therefore that it is open to the respondent to apply for planning approval for a development consisting in the change of use of the land involved in altered hours of operation. Refusal of that application would, of course, leave the existing planning approval unaffected.
[17] (1991) 56 SASR 254.
[18] (1991) 56 SASR 254 at 255.
After noting that the parties in Palma had not challenged the correctness of the decision in Remove All Rubbish, Doyle CJ continued:[19]
The reasoning of the Full Court is not obviously inapplicable to the Act. The reasoning rests on the significance of the condition in a given case, and in particular on a conclusion that a particular condition is of such significance for planning purposes as to affect "the essence of the land use" or of such significance as to stamp "a distinct character on the use of the land". In the circumstances, I consider that it is appropriate to continue to apply the reasoning in Remove All Rubbish, even though I recognise that the application of that reasoning under the Act may require reconsideration.
[19] (2002) 120 LGERA 182 at [23].
Doyle CJ then turned to the question whether the development was a non-complying use. After citing the passages from the judgment of Jacobs J in Wilson, Doyle CJ made the following observations:[20]
Two possible bases for the decision emerge. The first is a relatively narrow one, that the definition of "educational establishment" did not apply. The broader one is that provisions of a planning instrument that submit particular land uses to special restrictions on the basis of their incompatibility with the general character of a zone, or on the basis that they call for special controls, should not ordinarily be interpreted as applying to a proposal which is a reasonable development of an existing use. I am not able to state the broader principle with any more precision than that.
Both bases for the decision are to be found in the later decisions: Church of England Collegiate School of St Peter v Corporation of the Town of St Peters [No 1] (1990) 70 LGRA 34; Church of England Collegiate School of St Peter v St Peters Town Council [No 2] (1990) 71 LGRA 309; Cutajar (t/as Nova Motor Repairs) v Thebarton Town Corporation (1991) 55 SASR 70.
As Mr Hayes submitted, it is unlikely that the decision in Wilson rests upon the narrow basis. The relevant part of the reasons of Jacobs J suggests that he would have come to the same conclusion even if the proposed development had, literally, fallen within a use that was a prohibited use. The thrust of his reasoning was that a reasonable development of an existing prohibited use was not to be treated in the same way as an intrusion into the zone of a prohibited use for the first time. I consider that the broader basis for the decision in Wilson, and in the later cases, is the correct one.
[20] Mount Barker District Council v Palma (2002) 120 LGERA 182 at [44]-[46].
In [24] above I respectfully take a different view of the basis of the decision in Wilson. However, since Palma it is the broader basis articulated by Doyle CJ which has become binding and which is, in my respectful opinion, more sound. Doyle CJ emphasised that the “broader basis” he identified was a principle of construction:[21]
It is important to bear in mind that what I have called the broader basis for the decision in Wilson is not a freestanding rule of law. It is a principle of interpretation. I have already attempted to express it as such. It calls for a particular approach when interpreting a provision of the Development Plan, that submits particular types of development to particular restraints, in its application to a use of land which was a lawful existing use when the Development Plan came into operation. The principle reflects the practical considerations identified by Jacobs J.
I consider that the principle can be applied to the existing Development Plan. But I readily acknowledge that the principle in question has the potential to have an unsettling effect. It should be applied with care.
I would go no further than to say that Principle 124 should be read as not applying to development which is a continuation of an existing lawful use of the land in question. I would leave for another day the issue of any wider application of the principle. In the present case I take the view, as I have explained above, that the proposal is for "development" because of the particular significance of condition 6, but I also accept that, viewed more broadly, the proposal is for the continuation of an existing use, and therefore within the scope of the principle of interpretation that I have identified.
To the extent that there is a tension between the last two propositions, and I recognise that there is one, it results from the significance attributed to condition 6, and from the difficulty of dealing with applications to vary conditions, which difficulty I have already touched on. If the reasoning in Remove All Rubbish were held to be inapplicable under the present Act, it may be that this case would properly be dealt with simply as an application under s 42(2)(b) of the Act, not involving development, and would be dealt with by the council in the exercise of its discretion and in the light of the provisions of the Development Plan. However, as I have already indicated, that is a hypothesis that gives rise to a number of difficult issues, and is not a hypothesis appropriately pursued here.
It is to be observed that in the above passages Doyle CJ variously identified the scope of the existing non-complying use principle as applying to “a reasonable development of an existing prohibited use” and to “a development which is a continuation of an existing lawful use”.
[21] Mount Barker District Council v Palma (2002) 120 LGERA 182 at [49]-[52].
The broader basis on which Doyle CJ put the decision in Wilson was confirmed, by majority, in Potter v City of Holdfast Bay.[22]In Potter the applicant, who operated a new and used car yard with an associated repair station on Brighton Road, proposed to demolish an adjacent residential building and construct on it a carpark for customers and employees of the car yard. The ERD Court had held that the proposed development represented a change of use to a non-complying development. On appeal this Court held that the carpark development was properly characterised as the development of a car yard. Service trade premises and a motor repair station were prescribed non-complying developments.
[22] (2005) 142 LGERA 39.
The majority, Besanko and White JJ, dismissed the appellant’s appeal against the decision of the ERD Court on the grounds that the existing non-complying use principle did not apply to a development on land beyond the boundaries of the land which was subject of the existing use. In the course of his reasons, Besanko J, with whom White J agreed, expressly adopted the “broader” view of the decision in Wilson:[23]
I do not understand Jacobs J to have said in Mercedes College or St Peter's College that an application for a multi-purpose hall or a swimming pool is not a prohibited use or, to use the terminology in the present Act, a non-complying development, because it is properly characterised as an application for a multi-purpose hall or swimming pool. Rather, if the application is for a reasonable development of an existing use, the particular principle in the development plan referring to a prohibited use or a non-complying development will not apply to it because it is presumed that it is only directed at new forms of the relevant development. As the remarks of the Chief Justice in Palma make clear, that is a principle of interpretation rather than a freestanding rule of law. There are two steps in the application of the principle, namely, the characterisation of the application as embodying a reasonable development of an existing use, and then the interpretation of the relevant principle or provision in the development plan.
[23] Potter v City of Holdfast Bay (2005) 142 LGERA 39 at [68].
In Potter Debelle J agreed that the proposed development was a non-complying one but dissented on the question of the existing non-complying use principle. Debelle J held that there was no such principle. Debelle J recognised that the characterisation of the developments in Wilson, as simple buildings and not a school, applied the accepted principle of treating developments in isolation but criticised the application of that principle to developments associated with non-complying uses. Debelle J explained:[24]
[24] Potter v City of Holdfast Bay (2005) 142 LGERA 39 at [24].
The flaw in the reasoning is that it fails to give due weight to the fact that the Planning Act contained a régime for determining whether planning approval should be granted to an application for a prohibited use which differed from the régime for determining whether planning approval should be granted to other forms of development. Unlike an application for planning consent for other kinds of developments, an applicant for planning consent for a proposed development which constituted a prohibited use was required by s 47(6) of the Planning Act to obtain both the consent of the council and the concurrence of the Development Assessment Commission in the grant of that consent where the relevant planning authority was the council. Where the relevant planning authority was the Commission, the applicant had to obtain concurrence of both the Minister and the council in whose area the development was proposed to be undertaken. In addition, s 47(8) provided that no appeal would lie from a refusal of a consent or a concurrence under subs (6) or from a condition attached to a consent under subs (6).
Debelle J took issue with the statement of the existing non-complying use principle essayed by Doyle CJ in Palma. Debelle J said:[25]
[25] Potter v City of Holdfast Bay (2005) 142 LGERA 39 at [32]-[33].
The decisions in Mercedes and in St Peter's College have led to what I respectfully believe to be an erroneous statement of principle. In Mount Barker District Council v Palma(2002) 120 LGERA 182 the decision in Mercedes was examined by the Chief Justice who expressed the view that there were two possible bases for the decision. He said (at [44]):
Two possible bases for the decision emerge. The first is a relatively narrow one, that the definition of "educational establishment" did not apply. The broader one is that provisions of a planning instrument that submit particular land uses to special restrictions on the basis of their incompatibility with the general character of a zone, or on the basis that they call for special controls, should not ordinarily be interpreted as applying to a proposal which is a reasonable development of an existing use. I am not able to state the broader principle with any more precision than that.
Later he said (at [49]):
It is important to bear in mind that what I have called the broader basis for the decision in Wilson is not a freestanding rule of law. It is a principle of interpretation. I have already attempted to express it as such. It calls for a particular approach when interpreting a provision of the Development Plan, that submits particular types of development to particular restraints, in its application to a use of land which was a lawful existing use when the Development Plan came into operation. The principle reflects the practical considerations identified by Jacobs J.
With respect, the principle of interpretation identified by the Chief Justice does not exist. Indeed, to suggest that it does is to erode planning principle. It is not correct to suggest that there is a principle of interpretation that the special controls upon non-complying developments do not apply "to a proposal which is a reasonable development of an existing use". There is no basis for such a principle in the legislation or the development plan. The so-called principle creates a presumption in favour of a prohibited use of land which has never existed. Such a principle is not only not justified but it also erodes the principles which apply in the case of non-complying developments. Instead, the correct approach is that, once the nature of a proposed development has been identified, the proposal will be assessed as part of a non-complying development and the decision whether development consent should be granted will be made having regard to the provisions of the relevant development plan, the nature and extent of the proposed use and its effect upon the character and amenity of the locality, the location of the proposed development, the extent to which the proposal intensifies the existing prohibited use and other relevant factors. In short, the question will be whether the proposal merits development consent. If the proposal constitutes a reasonable development and satisfies relevant planning factors, it might well be approved. But there is no principle of interpretation creating a presumption in favour of a further development of an existing non-complying development. In short, the so-called principle purports to state what is in fact a conclusion which might be reached but only after the planning merits have been assessed. To elevate such a conclusion to the status of a legal presumption applicable to all circumstances is to weaken the effect of the provisions of the development plan relating to non-complying development. It ignores the balancing task that a planning authority must undertake in respect of an application concerning non-complying development.
The decisions in Papadopoulos, Mercedes, and St Peter's College have created difficulty for the Environment Court and its predecessor, the Planning Appeals Tribunal. That is apparent from the decisions to which the Environment Court has referred in its reasons, which it described as "the apparent maze of authorities". They have led to some apparently inconsistent decisions. These difficulties can be avoided by approaching the issues in the manner outlined above.
The existing non-complying use principle

The reasoning in the dissenting judgment of Debelle J in Potter has much to commend it. The existing non-complying use principle reads down the express words of Development Plans by which non-complying developments are prescribed by reference to an implied planning purpose which is contestable. Abrogation of the existing non-complying use principle would promote greater certainty and place stronger obstacles in the way of the expansion or enhancement of existing non-complying developments. On the other hand, the existing non-complying use principle commands some legitimacy as a principle of construction because it protects existing property rights. Its abrogation is likely to condemn many businesses based on existing non-complying uses to wither on the vine. It is also likely to have a chilling effect on applications to undertake developments which are non-complying because proponents could have little certainty that future modernisations or upgrades of those uses would be approved. When it is remembered that non-complying uses are, not infrequently, approved because of their planning merits, the detrimental effect on optimal development of such an approach is readily apparent.
Moreover, the existing non-complying use principle preserves access to a judicial review of the decisions of planning authorities.
In Development Assessment Commission v A & V Contractors Pty Ltd (AV Contractors),[26] I explained:
The denial of both a merits assessment of a development proposal and the facility of an appeal to the ERD Court from an adverse decision of a planning authority derogates substantially from the rights of persons who hold interests in property. The statutory right to continue pre-existing lawful uses would be substantially undermined if those rights were denied to proponents of developments which did not extend beyond that lawful use but were designed to allow its practical continuation by improving, replacing or adding to buildings, or by better adapting conditions attached to that use to contemporary conditions.
The ultimate statutory objective of sustainable development is difficult to achieve unless developers enjoy a reasonable level of certainty about the future operation of the development.
On the other hand, it would undermine the prospective objectives of development plans if existing uses became Trojan horses for the infiltration of new and additional non-complying uses.
(Citations omitted)
[26] (2011) 109 SASR 276 at [51]-[53].
The existing non-complying use principle attributes to Development Plans the purpose of preserving existing use rights and construes their provisions accordingly. The principle of construction having been clearly and repeatedly stated by this Court, the Executive Government may displace it by making express provision to the contrary in Development Plans, and the Legislature may abrogate it through statutory amendment of the Development Act. Until such time as the other arms of government so act, the existing non-complying use principle continues to be a principle of construction of Development Plans.
The existing non-complying use principle holds that in the absence of a contrary indication, a Development Plan’s designation of a use as non-complying does not apply to a development which is a reasonable development, or a continuation of, an existing non-complying use. The issues raised on this appeal require the Court to address more closely:
·what is meant by a “continuation” of an existing non-complying use;
·the distinction between a “continuation of”, and a “new”, non-complying use; and
·whether the principle is limited by a concept of reasonableness.
Obviously enough, a change of use from an existing complying use to one which is non-complying, is by definition, not within the principle and such a development falls to be assessed as a non-complying use. The existing non-complying use principle applies to developments in which the uses of the land, both before and after the development, are non-complying. The principle most obviously applies to building work which has no affect at all on the use of the land. The application of the existing non-complying use principle to a development constituted by a change of use is more complex for the reasons I gave in AV Contractors:[27]
The “reasonable development” principle is, as Doyle CJ recognised in Palma, inherently problematic. A development may be constituted by a change in use of land or by a departure from an important limitation on the use of the land. I will refer to the two forms of development I have just mentioned as a change of use in the primary and secondary sense respectively. Development may also be constituted by construction or demolition work (building development). The terms in which non-complying developments are usually described more aptly refer to the use of land in the primary sense, but are capable of referring to a change of use in the secondary sense and to building development. The authorities so far have applied the reasonable development principle to building development (Mercedes College) and to change of use in the secondary sense (Palma ). The authorities have not gone so far as to apply the “reasonable development” principle to a development which is a change of use of the land in the primary sense. If the respondent's application were limited to the construction of replacement or additional buildings for the purpose of operating the landfill it would fall within the principle. However, it is not so limited and, as I found in [45] above, proposes a change in use. The application therefore raises the question whether the reasonable development principle extends to proposed new non-complying uses.
[27] Development Assessment Commission v A & V Contractors Pty Ltd (2011) 109 SASR 276 at [49].
I went on to hold that the existing non-complying use principle was limited to developments constituted by building work and changes in conditions limiting the use of a land:[28]
In my view, this Court should hold that the “reasonable development” rule of construction applies only to developments which do not change the use of the land as a whole. A broader rule is not supported by the text and context of the Development Plan. The terms in which classes of development are designated as non-complying textually militates against any reading down of those classes. On the other hand, if building work or the variations of conditions attached to the existing use of land were treated as non-complying, the statutory protection of pre-existing uses would be largely undermined. In my view, the principle of construction established in Mercedes College reflects a negative implication drawn from the statutory protection of existing use rights which exempts from the prescribed “non-complying” classes of development those developments which are a continuation of that use.
[28] Development Assessment Commission v A & V Contractors Pty Ltd (2011) 109 SASR 276 at [54].
It is necessary to say something more about the way in which changes in conditions might attract the application of the existing non-complying use principle.
First as Doyle CJ observed in Palma, it is no longer necessary to characterise a change in conditions as a change in use in order to vary a condition of use attached to an existing development approval.[29] However, a change in condition might also constitute a change in use in the primary sense as described in the passage just cited from AV Contractors.
[29] See [32] above and s 39(6) and s 42(2)(b) of the Development Act.
If a proposed change in the activity carried on on land requires a variation in the conditions on which a development was approved and is, in itself, a development, the making and determination of the application will be governed by different statutory regimes depending on the way in which the development is classified. It is also important to recognise that there may be a change in use of land even if the use both before and after the change, is of a particular kind prescribed as non-complying. To use an obvious example there are many kinds of shops. If “shops” are prescribed as non-complying developments, a change from a fruit shop to a pet shop constitutes a change of use even though both the fruit shop and the pet shop are non-complying uses.
By reason of the powers conferred by s 39(6) and s 42(2)(b) of the Development Act, it is no longer necessary to approach the question whether a change in conditions has effected a change of use any differently to any other proposed change in the operations conducted on land. Whether or not a change in the way in which operations are conducted on land amounts to a change in use will not be affected by whether those operations are currently constrained by an existing condition. In either case a familiar question as to the level of generality at which the use of land should be described arises. Authoritative statements about the proper approach to that task are usefully collected in the judgment of Bleby J in City of Mitcham v Fusco.[30]Those statements eschew any hard and fast rules and recognise that characterisation of a use is a matter of fact and degree in which no one factor is necessarily decisive. The focus of the process is to determine a “genus”, of “the essential nature of the existing use”. Importantly, “natural changes in the method of using the land” do not constitute a change in use.
[30] (2002) 124 LGERA 196.
In Royal Agricultural Society of New South Wales v Sydney City Council,[31] McHugh JA (as he then was), with whom Hope and Samuels JJA agreed, said:
The object of “existing use” provisions in town planning legislation is to permit the continuation of the use of land for any purpose for which it was used immediately before the passing of the legislation even though the terms of the legislation prohibit that purpose wholly or partly or upon conditions. The rationale of these saving provisions is that it is unjust to deprive an owner of the right to use his land for an existing purpose. Because “existing use” provisions are incompatible with the main objects of the legislation of which they form part, the courts have had to develop principles which reconcile the right of owners to have the full benefit of the existing use of land with the right of the local authority to enforce the conflicting objectives of town planning legislation. The courts have done so by refusing to categorise an “existing use” so narrowly that natural changes in the method of using the land or carrying on a business or industry will render an existing use right valueless. At the same time, the courts have been concerned not to categorise the purpose of an existing use so widely that the land or premises could be used for a prohibited purpose which was not part of its use at the commencement of the legislation. Accordingly, a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land.
[31] (1987) 61 LGRA 305, 309-310.
After considering a number of other cases, including Shire of Perth v O’Keefe[32] and Woollahra Municipal Council v Banool Developments Pty Ltd,[33] McHugh JA continued:[34]
I see no reason why the principle upon which those decisions were based is not also applicable to a case where land is used for activities, processes or transactions of widely differing kinds. If the activities, processes or transactions are capable of being treated as all or the majority of the species of a genus, then that genus may properly be regarded as describing the purpose of the use of the land. If they are not, then it may be that the only conclusion is that the land has been used for more than one purpose. If that conclusion is drawn, then each purpose is to be characterised in accordance with the principles set out earlier in this judgment.
[32] (1964) 110 CLR 529.
[33] (1973) 129 CLR 138.
[34] Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 311.
In North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd,[35] Kirby P (as he then was) concluded:[36]
Defining the “existing use” depends upon a detailed examination of the facts of each case. Inevitably there will be borderline cases where the characterisation of the use which is protected will be controversial and upon which minds may differ.
Nevertheless, the general approach to be taken is one of construing the “use” broadly. It is to be construed liberally such that confining the user to precise activity is not required. What is required is the determination of the appropriate genus which best describes the activities in question.
In determining that genus, attention should be focused on the purpose for which the determination is being made. This is a town planning purpose. If therefore considers the use from the perspective of the impact of the use on the neighbourhood. …
[35] (1989) 67 LGRA 344.
[36] (1989) 67 LGRA 344 at 353.
In deciding whether or not there has been a change of use, whether or not a variation in the conditions of an earlier approval is required, the authorities call for an evaluative judgment to be made having regard to the Development Act, the statutory instruments made pursuant to its provisions, and the competing interests of existing users and the community as a whole. In cases in which a variation of an earlier imposed condition is required, the importance that the imposition of a particular condition might have had in the granting of the earlier development approval will no doubt inform the exercise of the discretion to vary or remove it. However, it will not bear on the question of whether variation or removal of that condition constitutes a change of use.
Holdfast Bay contends that any change in activity which has material planning effect should be considered as a new use. That approach would destroy the balance referred to in the passages collected by Bleby J in Fusco. Moreover, it departs from the proper approach of considering the activities, before and after the proposed development, for the purposes classifying them, in a practical way, within a particular genus of use. The adverse effects of the change in use will inform the discretion to vary a condition, and will bear on the merits of the development, if there be one, but again they cannot be determinative of the anterior question of whether there is any development at all.
In the light of the foregoing discussion, it is possible to return to the issues I identified in [43] above.
The assessment of whether a development continues the existing non-complying use or is a new use is to be determined in accordance with the approach adumbrated in [49]-[53].
It is difficult to give the concept of reasonableness any meaningful and certain context as a criterion for delineating those developments of an existing non-complying use which fall within the scope of the non-complying uses prescribed by a Development Plan and those which do not. If reasonableness means the planning merits of the development it would serve no useful purpose as a determinant of what is non-complying. The issue of the classification of a development and its assessment on the merits will be merged. Whether the development is reasonably necessary for the sustainability of a business operated on the site is not a planning issue. Nor can the concept involve an arbitration at large of the interests of the occupier of the land against the interests of neighbouring occupiers.
For these reasons, I would hold that if the proposed development does not effect a change in the existing use there is no further cause to ask whether the development is reasonable.
Application to this case
Neither the building work, nor the additional shopping and parking spaces it creates, change the use of the Caltex site. There is no change in the individual activities engaged in on the land or in their relative mix. The planning use of the land remains that of a petrol filling station and shop.
To my mind, nor would the increase to 24 hour trading change that use. Plainly enough, the use between 6.00 am and 10.00 pm would not be altered or affected in any way by the additional trading undertaken between 10.00 pm and 6.00 am. It is difficult to see therefore how the extended hours affect a change in the “genus” of the use of the land. In effect, Holdfast Bay contends that there is one class of use which can be described as a late night petrol filling station and shop, and another which is a “24 hour” petrol filling station and shop. Generally, the courts have rejected sub-classification of uses by reference to times of operation.[37] The general relaxation in trading hours over several decades also militates against categorising pre-existing uses by reference to times of operation. To my mind against that general relaxation, the extension of trading hours can be seen as “a natural change” in the use of the land.
[37] Rockdale Municipal Council v Clark (1982) 47 LGRA 159; Remove All Rubbish Co Pty Ltd v Munno ParaCity Council (1991) 56 SASR 254, 255 per King CJ and 260 per Cox J.
There is no basis in the Development Plan, in land use practices or in the nature of shops and petrol filling stations in contemporary South Australian socio-economic conditions to classify the use of the Caltex site differently by reference to whether or not it trades overnight. The proposed development, therefore, is a continuation of the existing non-complying use of the Caltex site and therefore is not a non-complying use for the purposes of the Development Plan.
Conclusion
I would allow the appeal. I would set aside the judgment of the ERD Court. I would order instead that the appeal against Holdfast Bay’s decision that the proposed development is non-complying be allowed and the decision be reversed. I would direct Holdfast Bay to determine the application for development approval on the basis that it is not a non-complying development.
BAMPTON J: I agree with the reasons of and the orders proposed by Kourakis CJ.
PARKER J: I agree with the reasons of Kourakis CJ and the orders that he proposes. I have nothing to add.