City of Mitcham v MOL Pty Ltd

CITY OF MITCHAM v MOL PTY LTD & ORS
[2003] SASC 166
Full Court: Doyle CJ, Duggan and Debelle JJ

DOYLE CJ I would allow the appeal and make the orders proposed by Debelle J. I agree with the reasons given by Debelle J for so ordering. There is nothing that I wish to add to those reasons.
DUGGAN J I agree with the conclusions reached by Debelle J and the orders which he has proposed. I also agree with his reasons for decision.
DEBELLE J This is an appeal from a decision of a Judge and two Commissioners of the Environment Resources and Development Court.
One issue which falls for consideration in the appeal is whether the establishment of a vineyard is consistent with the provisions of the Development Plan which regulates development in that part of the Hills Face Zone which provides a backdrop to metropolitan Adelaide. That issue is to be determined, not by any beliefs as to whether vineyards are a desirable form of development in the Hills Face Zone, but by reference to the terms of the Development Plan.
An Application to Develop a Vineyard is Refused
The respondents, MOL Pty Ltd and Averil Garrett, own a substantial parcel of land known as “Springwood Park”. The land has a total area of some 205 hectares and is within the area of the City of Mitcham (“the Council”). It has a substantial frontage to Mount Barker Road and extends back generally in a south-westerly direction toward Brownhill Creek. The land and adjacent land is within the Hills Face Zone prescribed by the Council’s Development Plan.
On 8 November 2000 the Council had granted the respondents consent to develop seven acres of land within the Hills Face Zone as a vineyard. It seems that consent was granted because the development application had been made when the provisions of the Development Plan were in terms different from those which now exist. (Section 53 of the Development Act 1993 provides that a planning application is to be determined in accordance with the law and Development Plan in force at the time when the application was lodged.)
On 20 June 2000 the respondents lodged an application for consent to develop a further 24.5 hectares as a vineyard. The proposed development was described in the application form as “Agriculture (vines)”. As ultimately proposed, it included planting, trellising and irrigation of vines. The respondents intended to add to the vineyard, the subject of the approval granted in November 2000. Only five hectares have been developed pursuant to that approval. The resulting vineyard of 29.5 hectares was to be managed as one development. By notice dated 1 May 2001 the Council refused the application on the ground that it was contrary to provisions of the Development Plan, including Objectives 1 and 2 and Principle of Development Control 1 for the Hills Face Zone.
On 19 November 2001 the respondents lodged a separate application to erect trellising on the vineyard of five hectares. By notice dated 5 February 2002 the Council resolved to refuse the application on the ground that it did not comply with Objective 1 of the Objectives for the Hills Face Zone and the explanatory text for that Objective.
By a third application, also lodged on 19 November 2001, the respondents lodged an application to develop the vineyard of five hectares by installing an irrigation system. By notice dated 7 February 2002 the Council resolved to refuse the application. It stated the grounds for its refusal in these terms:
“A vineyard is not regarded as a low intensity (agricultural) activity. The proposal to irrigate the approved vineyard will further exacerbate/intensify an activity that is (already) not a low intensity use.”
Appeal to the Environment Court
The respondents appealed to the Environment Resources and Development Court (“the Environment Court”) from all three decisions of the Council. The appeals were heard together. On 25 July 2002 the Environment Court allowed all three appeals and granted provisional development plan consent in respect of each application. The court granted one consent which applied to all three applications. The consent was subject to 32 conditions. The Council appeals to this Court from the decisions allowing each appeal. The respondents also cross-appeal against certain of the conditions but later withdrew the cross-appeal.
Appeal to Supreme Court
An appeal from the Environment Court, when comprised of a Judge and two Commissioners, lies to this Court. The appeal is of right on a question of law and by leave on a question of fact: s 30(2) of the Environment Resources and Development Court Act 1993. By order dated 31 January 2003, Besanko J granted both the Council and the respondents leave to appeal on questions of fact to the extent that leave might be necessary.
The Conservation Council of SA Inc (“the Conservation Council”) was a party to the appeals in the Environment Court. The Conservation Council did not appeal against the decision of the Environment Court. On the hearing of this appeal the Conservation Council adopted the arguments of the Council and presented some brief submissions on its own behalf.
The Proposed Development
The proposal involves:
●The planting of some 24.5 hectares of vines in addition to the planting of vines approved in November 2000 resulting in a total of approximately 29.5 hectares of vines.
●The vines will be planted on land having a slope in the range of 1:3 to 1:6 with the rows either perpendicular to or parallel with the contours and spaced two metres apart. Grasses will be grown between the rows.
●The erection of trellising to support the vines with the posts generally standing some 1.5 metres above ground level.
●The provision of an irrigation system involving pipes, pumps, valves and a dripper system to irrigate the vines.
●The erection of a small pump shed.
●The enlargement of a dam.
●The establishment of vegetation buffers 10 metres wide in various locations to be planted with indigenous vegetation.
●Post and wire fencing of existing and new vegetation buffers.
●Management regimes will include the application of fertilisers and fungicides if required and pruning and harvesting, the application of black netting to keep out birds. Gas guns and other audible bird scaring devices will not be used.
Locality
There was no dispute as to the bounds of the locality as determined by the Environment Court. It extended generally in the north to the approximate ridge line of Mount Osmond, including the residential uses and golf course; in the north-east and east to include the Leawood Gardens residential development and visitor look-out; in the south as far as Sheoak Road, including the Belair ridge line and residential development in that area; and in the west as far as Brownhill Creek Road and passing through the Brownhill Creek Recreation Park. The land within that locality is presently used for a range of purposes. A significant portion of it is used for grazing and that is mainly cleared land. There is at least one small area of viticulture. Within the locality, residential development exists on a range of allotment sizes. A substantial amount of the land within the locality is bushland. The locality includes the South-Eastern Freeway. Limited parts of the locality and a small part of the subject land are visible from parts of the Adelaide Plains. The amenity of the locality is reasonably high. One feature of the amenity is its open rural and natural character. There are, however, areas which detract from the general amenity of the area and they include quarrying activity to the south-east of the subject land, the prominent siting of some dwellings and other buildings, some visually obtrusive high voltage overhead power lines and the presence of a range of noxious pest plants. The character of the locality is generally rural with extensive indigenous bushland areas. The fact that development has occurred in the locality is not a factor to which any real weight should be attached. That is the consequence of the requirement in the Objectives for the Hills Face Zone which state that “each development should be assessed on the extent to which it preserves and enhances the natural character … rather than on the basis of a comparison with existing development in its locality”. The full text of the Objectives immediately follows.
The Environment Court’s Decision
The central issue before the Environment Court was whether the proposed development could be approved having regard to the provisions in the Development Plan relating to the Hills Face Zone. Although regard was had to other provisions in the Development Plan, the court principally had regard for the provisions of Objectives 1 and 2 for the Hills Face Zone, the two paragraphs explaining those Objectives and to Principle 1 of the Principles of Development Control for the Zone. It is common ground that these are relevant provisions. It is convenient to set them out.
“OBJECTIVES
Objective 1:   A zone in which the natural character is preserved and enhanced or in which a natural character is re-established in order to:
(a)provide a natural backdrop to the Adelaide plains and a contrast to the urban area;
(b)preserve and develop native vegetation and fauna habitats close to metropolitan Adelaide;
(c)provide for passive recreation in an area of natural character close to the metropolitan area;
(d)provide a part of the buffer area between metropolitan districts and prevent the urban areas extending into the western slopes of the Mount Lofty Ranges; and
(e)ensure that the community is not required to bear the cost of provided (sic) services to land within the zone.
Objective 2:   A zone accommodating low-intensity agricultural activities and public/private open space and one where structures are located and designed in such a way as to:
(a)preserve and enhance the natural character or assist in the re-establishment of a natural character in the zone;
(b)limit the visual intrusion of development in the zone, particularly when viewed from roads within the zone or from the Adelaide plains;
(c)not create, either in themselves, or in association with other developments, a potential demand for the provision of services at a cost to the community; and
(d)prevent the loss of life and property resulting from bushfires.
The western slopes of the Mount Lofty Ranges in metropolitan Adelaide are an important natural asset to both the population of the urban area and the tourism industry. Development which is undertaken in this zone should not only preserve but should also enhance the natural character of the zone or assist in the re-establishment of a natural character.
The term ‘natural character’ refers to the natural topography, native vegetation and colours, such as greens and browns of non-reflective earthen tones, normally associated with a natural landscape. Additionally, natural character refers to the open character of the land in those areas of the zone where open grazing currently predominates. Thus, existing buildings should not be seen as setting a precedent when assessing the impact of a proposed development. Each development should be assessed on the extent to which it preserves and enhances the natural character or, more importantly, assists in the re-establishment of a natural character, rather than on the basis of a comparison with existing development in its locality.
…
The Hills Face Zone is not a residential zone and so the services provided in an urban area will not be provided in this zone. Accordingly, development should not be undertaken if it is likely, in itself or in association with other development, to create a potential demand for such services.
…
PRINCIPLES OF DEVELOPMENT CONTROL
1      Development should not be undertaken unless:
(a)it is associated with a low-intensity agricultural activity, a public open space area or a private use of an open character, or is a detached single-storey dwelling, including outbuildings and structures normally associated with such dwellings, on a single allotment; and
(b)together with associated native landscaping, it preserves and enhances the natural character of the zone or assists in the re-establishment of a natural character.”
The Environment Court concluded that the purpose and intent of the Hills Face Zone was to preserve and enhance or re-establish the natural character of the zone, that intensive development was not desired, and that agricultural activities may be accommodated, if they are low-intensity. Development should be limited and any development should have an open character so as to preserve and enhance the natural character of the zone. It expressed its conclusions in these terms:
“⁵¹The zone is not one in which intensive development is desired. This much can be distilled from the objectives for the zone. Intensive development would not be likely to preserve the ‘natural character’, whatever that might be. Agricultural activities may be accommodated, if they are low-intensity. Development should be limited and any development should have an ‘open’ character, so as to preserve and enhance the natural character. Structures may be contemplated in restricted circumstances and should be unobtrusive, preferably not visible from either the Adelaide plains or roads within the zone; be designed to minimise damage from bushfire hazard and incorporate fire protection measures; and include an adequate water supply and safe effluent disposal system. Development should have minimal visual impact within the zone, or as viewed from outside the zone.
⁵²The ‘natural character’ is to be preserved and enhanced or re-established. At first instance, we would take ‘natural character’ to mean the natural topography of the land, without man-made roads, tracks and structures, and including the existing native vegetation. The zone provisions seek to have the natural character enhanced or re-established. This would seem to mean, in the context of the zone provisions, and having regard to the explanatory paragraphs under zone Objective 2, that the addition of new roads, tracks and structures, is discouraged, and their obliteration or the reversion of the land to vegetation, whether ‘bush’, grasslands, or uses such as open grazing on grasslands, is encouraged, as is the replanting of the land with appropriate native vegetation.
⁵³The intent, purpose and desired character of the zone is reflected in the kinds of development that are expressed in Principle 25, to be ‘complying’ within the zone. Agistment and holding of stock are acceptable within the zone, as is agriculture, subject to specified limitations which suggest a desire to avoid any impact upon the existing visual amenity of the zone land and the destruction of existing native vegetation. Indeed, the Full Court in Fusco (above) found this to be the case, at paragraph 33 of the reported judgment.”
Broadly speaking, it is not possible to disagree with those remarks. Later in its reasons, the Environment Court indicated that it does not confine the question of natural character to the natural topography of the land as para 52 seems to suggest. I will later examine more fully the meaning of the expression “natural character” as it applies in the Hills Face Zone and consider whether the Environment Court gave due weight to that natural character.
The Environment Court then identified the issues in the appeal in these terms:
“The issues that arise are whether the proposal will retain the ‘open character’ of the land presently facilitated by the open grazing use, whether the vineyards as proposed are ‘low-intensity agriculture’ and whether overall, the natural character will be preserved, enhanced or re-established.”
On this appeal, the parties did not question that list of the issues. The court concluded that the proposed vineyard would have an open character, would amount to a low-intensity agriculture use, and would go some way towards preserving and enhancing the natural character of the Hills Face Zone. It then reached a provisional conclusion that the proposal might merit development consent subject to the consideration of other issues which fell for examination by reason of the fact that the proposed development was to be located in the Hills Face Zone. Those issues were the impact of the proposal on natural vegetation, the impact on native birds, the impact on water resources, the impact on the amenity and the effect of the existing approval. It concluded that none of those factors caused it to alter its provisional conclusion. It therefore allowed all appeals and granted development consent.
The Issues in this Appeal
The issues in this appeal concern the provisional conclusion of the Environment Court. There was no issue concerning the other matters which the court subsequently examined. There are essentially three issues. They are whether the Environment Court was correct in deciding
(1) that the proposal would have an open character;
(2) that the proposal was for low-intensity agricultural use;
(3)that the proposal would go some way to preserving and enhancing the natural character of the Hills Face Zone.
Before examining them, it is necessary to consider more closely the relevant provisions in the Development Plan concerning the Hills Face Zone.
An Intention to Preserve Natural Character
The provisions relating to the Hills Face Zone differ from most other provisions in the Development Plan in that they expressly state an intention to preserve the natural character of the zone and to restrict development in the zone. The intention to preserve the natural character is expressed in both Objectives 1 and 2 as well as in Principle 1 of the Principles of Development Control. Development is restricted in a way not usually found in other zones. Save for open space zones or recreation zones or the like, the provisions relating to other zones speak of the kinds of development which might be permitted in that zone and controls on that development. By contrast, in the Hills Face Zone, Principle 1 provides that development should not be undertaken unless
“(a)it is associated with a low-intensity agricultural activity, a public open space area or a private use of an open character, or is a detached single-storey dwelling, including outbuildings and structures normally associated with such dwellings, on a single allotment; and
(b)together with associated native landscaping, it preserves and enhances the natural character of the zone or assists in the re-establishment of a natural character.”
Only three kinds of development are complying forms of development. They are agriculture, agistment of stock, and prescribed forms of advertising: see Principle 25. The fact that development is restricted is emphasised by the long list of non-complying developments in Principle 26.
The primary goal of the Hills Face Zone is expressed in Objective 1, namely, that it is a zone in which the natural character is preserved and enhanced or in which the natural character is re-established. That goal is intended to achieve the five purposes expressed in paragraphs (a) to (e) of Objective 1. The intention to preserve, enhance or re-establish the natural character of the zone receives repeated emphasis in both Objectives 1 and 2 and in the two paragraphs which immediately follow them. It is a matter of particular note that, although Objective 2 states that the zone is intended to accommodate low-intensity agricultural activities and public/private open space, those uses must be of a kind which preserve and enhance the natural character of the zone or assist in re-establishing it.
The importance of the goal of preserving and enhancing the natural character of the zone receives further emphasis in Objective 33 of the Metropolitan Objectives which is concerned with conservation. Objective 33 is in these terms:
“The conservation, preservation, or enhancement, of scenically attractive areas, including land adjoining water or scenic routes.”
The first two paragraphs of Objective 33 deal with the face of the Mount Lofty Ranges and spell out in greater detail the intent of that objective in these terms:
“The retention of the natural character of the Mount Lofty Ranges is of the utmost importance to present and future generations of city dwellers.
The natural slopes of the foothills and the wooded character of the face of the ranges rising to Mount Lofty, provide a pleasant contrast to the suburbs on the plains, and give Adelaide a special character. It is necessary, therefore, that the face of the ranges and the skyline as seen from various points in the metropolitan area should retain a natural character.”
In short, when viewed as a whole, the Development Plan spells out in clear terms that the intent and purpose of the Hills Face Zone is to preserve and enhance and, where possible, re-establish the natural character of the Hills Face Zone.

Principle 1 reinforces the goal of the preservation, enhancement or re-establishment of the natural character of the zone. The principle is complementary to Objective 2. It makes it clear that, although low-intensity agricultural activity and public open space area or a private use of an open character may be accommodated in the zone, development associated with such activities may not be undertaken unless, among other things, it preserves and enhances the natural character of the zone or assists in re-establishing it.
The expression “natural character” is repeatedly used in the Hills Face Zone provisions. It appears at least nine times in the Objectives for the zone. It is again repeated in at least Principles 1, 6 and 9. There can be no doubt that the overriding purpose of the Hills Face Zone provisions in this Development Plan is to preserve and enhance the natural character of the Zone and, where possible, re-establish that natural character.
The Meaning of “Natural Character”
The Objectives spell out what is meant by the expression “natural character” in the second of the paragraphs following Objective 2. It is convenient to repeat it.
“The term ‘natural character’ refers to the natural topography, native vegetation and colours, such as greens and browns of non-reflective earthen tones, normally associated with a natural landscape. Additionally, natural character refers to the open character of the land in those areas of the zone where open grazing currently predominates. Thus, existing buildings should not be seen as setting a precedent when assessing the impact of a proposed development. Each development should be assessed on the extent to which it preserves and enhances the natural character or, more importantly, assists in the re-establishment of a natural character, rather than on the basis of a comparison with existing development in its locality.”
The repeated and constant use of the epithet “natural” is striking. It is repeatedly used in expressions such as “natural character”, “natural topography”, “natural landscape”, “natural backdrop”, and “natural asset”. In this context, “natural” means that which has been formed or constituted by nature in contradistinction to that which is artificially made or constructed: see Macquarie Dictionary and Oxford English Dictionary. As the Oxford English Dictionary notes, when qualifying land, “natural” means that which is not cultivated.
The expression “natural topography” refers to the topography in its natural form. The goal is that the topography will remain unaltered in its natural form. Where it has been altered from its natural state, the most obvious form being quarrying, the objective is to re-establish the natural topography. To the extent that the expression “natural topography” refers to land, the intention of the Objectives appears to be that the preferred position is that the land should not be cultivated. Clearly, cultivation and the planting of any kind of crop involve an interference with the land in its natural form and, generally speaking, will change the natural appearance of the land. Next, native vegetation is to be preserved and enhanced subject to prescribed measures to reduce fire risk. Plainly, there are areas where human intervention, if not interference, has removed native vegetation. The Objectives for this Zone recognise this fact. Thus, where natural vegetation has been removed and grazing now occurs on land with an open character, that open character is deemed to be the natural character of the land. In other words, open character is related to the natural character. The third aspect of natural character is to preserve the colours of the natural landscape. The reference to “greens and browns” is a clear reference to the fact that the appearance of vegetation, especially grasses, changes with the seasons.
In City of Mitcham v Fusco (2000) 110 LGERA 14 at [21] the Full Court, when discussing the expression “natural character” said:
“The development plan seeks to maintain the pristine condition of the Hills Face Zone.”
As the epithet “pristine” means that which is original and unspoiled: see Oxford English Dictionary and Macquarie Dictionary, its use in Fusco may have been unhappy. However, when the passage is read in context, it is apparent that the Full Court then intended to emphasise the overall objective of preserving the natural character of the Hills Face Zone.
It would be a mistake to assume that the Hills Face Zone has one form of natural character. Plainly, it varies as one moves along the Zone. It varies from naturally wooded slopes to land of a more open character. It contains a variety of topography. In some parts there is a greater degree of development than in others. In some areas, the interference with the natural character has been quite dramatic. Quarries in the area of Burnside are an obvious instance. However, no matter in what area the development is proposed the same goal remains, namely, of preserving, enhancing or re-establishing the natural character of the Zone. The importance of achieving that goal is emphasised in the last sentence of the paragraph which explains the meaning of the expression “natural character”. It reads:
“Each development should be assessed on the extent to which it preserves and enhances the natural character or, more importantly, assists in the re-establishment of a natural character, rather than on the basis of a comparison with existing development in its locality.”
Thus, when determining whether a proposal should receive development consent, more weight is to be given to the question whether the proposal assists in preserving, enhancing or re-establishing the natural character than to a comparison with existing development in the locality.
The passage quoted from the Objectives in the preceding paragraph is critically important when considering the following remarks made by the Planning Appeal Board in Creedy v Director of Planning (1971) SAPR 115 at 123, which were cited by the Environment Court with apparent approval:
“Although in this appeal we heard suggestions that the natural character was in effect affixed (sic) at a particular instance in time, whilst we do not decide that point, we feel that there is a possibility that it is a continuous concept capable of change and in which processes of evolution are involved.”
Those remarks were written more than twelve years before the detailed objectives for the Hills Face Zone were introduced into the Development Plan. Although it would certainly be incorrect to assert that the natural character of the Hills Face Zone is fixed, the current provisions of the Development Plan make it quite clear that the objective is that any process of the evolution will preserve, enhance or re-establish the natural character of the Zone, not diminish it.
Some Footnotes
The Environment Court began its examination of the intent and purpose and desired character of the Hills Face Zone by adopting the following observation of the Planning Appeal Board in Wait and Regano Industries Pty Ltd v Director of Planning (PAB No. 25 of 1969, unreported):
“To appreciate what is proposed for the Hills Face Zone and why, is no easy task.”
As the Environment Court noted, the Planning Appeal Board was referring to the Metropolitan Development Plan which was the only public document then existing which stated the purpose of the zone. That document was the precursor of the Development Plan made under the Planning Act 1982 and the Development Plans which now exist under the Development Act 1993. The remarks made in Wait and Regano Industries and in other decisions to which the Environment Court referred in its reasons must be treated with great caution because, unlike the former Metropolitan Development Plan, existing Development Plans spell out in great detail the objectives of the Hills Face Zone. Both the intended purpose and the reasons for that purpose are now more readily apparent than they were in 1969. The objectives for the Hills Face Zone are now stated in terms which clearly spell out the purpose and intent of the Hills Face Zone.
Mr Hayes QC, who appeared for the respondents, submitted that to interpret the Hills Face Zone provisions in this way was tantamount to declaring that vineyards were a non-complying use in the Hills Face Zone. Had that been intended, he said, vineyards would have been listed as one of the non-complying uses for that zone. The argument proceeds on a false premise. Although the list of non-complying uses is extensive, it is not complete. There are a number of uses which readily come to mind which, on any view, should not be permitted in the Hills Face Zone but are not in the list of non-complying uses. In any event, it is necessary to determine the intent of the objectives and principles of development control for the zone. If, in the result, a use is effectively added to the list of non-complying uses, that is not a reason for not upholding the true intent of the zone.
Mr Hayes also submitted that a Planning Amendment Report (“PAR”) in 2000 had altered the provisions of the Hills Face Zone in such a way as to permit horticulture and thereby viticulture in that zone. He submitted that it had done so without altering the terms in which Objectives 1 and 2 were expressed. Thus, he said, there is no inconsistency between vineyards and the objectives of the zone. I put to one side the question whether Mr Hayes has correctly interpreted the effect of the PAR. Assuming he has, that does not necessarily mean that the implications of the PAR were fully appreciated at the time it was implemented. In the event, the PAR was withdrawn only after a few months. That might have been because of a realisation that it permitted vineyards and so would undermine the objectives of the Hills Face Zone. It might have been for some other reason. In other words, no implications can be drawn from the implementation of the PAR.
Similarly, an examination of the history of the provisions regulating development in the Hills Face Zone does not provide any useful assistance. The first statutory provisions controlling development in the Hills Face Zone were the Metropolitan Development Plan Hills Face Zone Planning Regulations 1971. They were made on 16 December 1971 pursuant to powers contained in the Planning and Development Act 1966. Those regulations prescribed a régime of permitted uses and prohibited uses as well as uses for which a planning authority might grant consent. The permitted uses included agriculture and agriculture was defined in terms which included horticulture and viticulture. However, I do not think that much weight can be attached to that fact because the definition also included pig raising and poultry farming which are not consistent with the objectives of the Hills Face Zone. More importantly, it must be also noted that, in 1971, there was nothing which spelled out the objectives and goals of the Hills Face Zone in anything like the detail of the present provisions.
The Metropolitan Development Plan Hills Face Zone Regulations 1971 were repealed after the enactment of the Planning Act 1982 and the establishment of the Development Plan under that Act. The Development Plan at first contained provisions in similar terms to those which had hitherto been found in the Hills Face Zone Regulations. However, the description of the permitted use was changed from farming to agriculture. That change has more significance than might at first appear because the definition of farming was changed from the definition in the Hills Face Zone Regulations by the Development Control Regulations 1982. Those regulations included definitions of terms used in both the Development Plan and in the Development Regulations. The regulations did not define agriculture. However, farming was defined in terms which did not include horticulture and horticulture was defined to include viticulture. The Development Control Regulations remained in substantially the same form until 1993. Thus, for some 11 years, farming did not include either horticulture or viticulture. In 1985 the Hills Face provisions in the Development Plan were amended to include Objectives in terms which to all intents and purposes are the same as currently exist and Principles of Development Control which are very similar in terms of the current provisions.
On 15 January 1994 the Development Act 1993 came into operation. That Act repealed the Planning Act 1982. The Development Regulations 1993 made under that Act define “farming” but not “agriculture”. The definition of “farming” excludes horticulture and viticulture as already noted.
Reference has already been made to the PAR introduced and later withdrawn in 2000. Thus, until 1982, it was possible to plant vines in the Hills Face Zone. In 1985 there were important changes. No longer were there any provisions permitting vineyards in the Hills Face Zone. Equally, there were no provisions expressly prohibiting vineyards. However, there were detailed provisions spelling out the goal that development should preserve and enhance the natural character of the Hills Face Zone in terms which, to all intents and purposes, were the same as those which now exist. The change from express permission to an absence of express permission tends to suggest that vineyards were not compatible with the Hills Face Zone, particularly given that farming was defined in a way which did not include viticulture. However, I prefer to proceed on the footing that nothing can be inferred from the history of the controls for the Hills Face Zone and that the preferred course is to interpret the terms of the existing Development Plan.
The MOSS Provisions
The part of the Hills Face Zone in which the respondents propose this development also forms part of the Metropolitan Open Space System which is an overlay upon the Hills Face Zone. The Metropolitan Open Space System (“MOSS”) is intended to be a clearly defined and linked system of land of an open and natural character in public or private ownership in and around metropolitan Adelaide. That is expressly stated in Objective 39 of the policies for metropolitan Adelaide which apply in the area of the Mitcham Council: see also Objectives 40 and 41. The scheme is intended to achieve the following goals which are listed in Objective 39.
“(a) provide a visual and scenic contrast to the built urban environment;
(b) separate different parts of the metropolitan area;
(c)assist in the conservation of natural or semi-natural habitats and sites of scientific or heritage interest and re-vegetation;
(d)provide corridors for movement of wildlife;
(e)accommodate a range of active recreation and sporting facilities of regional or State significance, including facilities which may be used for national and international events;
(f)accommodate a range of passive recreation and leisure areas; and
(g)provide for the integration of stormwater management in association with recreation, aquifer recharge and water quality management.”
As Objective 42 states, the overall intention is to increase the extent of public open space within strategic locations of the Metropolitan Open Space System.
It will have been noticed that the expression “natural character” is used in Objective 39. It is also used in Objectives 40 and 41 which speak of “the open, natural or rural character” of land subject to the MOSS provisions. The expression “natural character” has, in my view, the same meaning in the MOSS provisions as it does in the Hills Face Zone, at least in that part of the scheme which includes the Hills Face Zone. To conclude otherwise would set at nought the provisions of the Hills Face Zone.
Is the Natural Character Preserved and Enhanced?
I turn to examine the issues in this appeal. It is convenient to begin by considering whether the Environment Court was correct in determining that the proposed development would go some way to preserving and enhancing the natural character of the Hills Face Zone. The Environment Court recognised that the Development Plan seeks to preserve and enhance or re-establish the natural character of the Hills Face Zone. It expressed its reasons for concluding that the proposed vineyard would go some way towards preserving and enhancing the natural character of the Zone in these terms:
“⁶⁶We have referred earlier to the meaning of ‘natural character’. It encompasses a number of aspects, including native vegetation. The proposal will preserve the visually outstanding scattered, remnant indigenous trees which exist naturally on the subject land. The native grasses, sedges and other existing low plants on the open grazing land, where they are to be replaced by the vineyard, will not be preserved, although there is the possibility of native grasses being planted, for use as a cover, to bind the soil between the rows of vines, as included in earlier versions of the vineyard proposal.
⁶⁷It cannot be said that the particular green colour of the vine leaves (and the red, yellow and brown colours in autumn) are those ‘normally associated with a natural landscape’ if the natural landscape only comprised local native vegetation, but that is not the case in many instances. Thus, while the native trees and natural topography will be preserved, in general the ‘natural character’, as described in the paragraphs following Objective 2 for the Hills Face Zone, will not be preserved overall, in the vineyard areas. However, upon our reading of the Development Plan, the vineyard would be no less natural than open grazing land.
⁶⁸Even if the vineyard would not amount to preservation of the natural character, we have to take into account that the balance of the land will be retained, generally, for grazing of stock and the large stand of existing native vegetation will be retained. In addition the natural character of the existing stand of native vegetation will be enhanced. Vegetation buffers will be established adjacent to the vineyard areas. The existing large stand of vegetation on the southern side will be enhanced, with the removal of pest plants, and the regeneration of native species encouraged.
⁶⁹The proposal includes plans to remove the pest plants which have become established on the property to a significant degree along the gullies adjacent to the watercourses. However, no time-frame was provided for the implementation of the work necessary to carry out the plans, which would be significant and extensive.
⁷⁰In addition, the applicant intends to undertake buffer zone plantings which would also act as windbreaks, at strategic places in the vineyard area. These areas would be planted in 10m wide strips and would comprise local species, in a dense ground cover of grasses and groundcovers, mid-storey plants and canopy species, grown from seed to be collected preferably on the subject land, or at worst, from land within a radius of 10km from the vineyard site, in keeping, we were told, with the guidelines of the Native Vegetation Council.
⁷¹Thus, we are able to conclude in an overall sense that the proposal would go some way towards preserving and enhancing the natural character of the zone, although we cannot say that it would re-establish the natural character.”
The reasoning is flawed and fails to give due weight to the expression “natural character” and to the definition of that expression in the Objectives.
The Environment Court finds in para 67 that, while native trees and natural topography will be preserved, the natural character of the zone will not, in general, be preserved overall in the vineyard area. It then makes the observation that “the vineyard would be no less natural than open grazing land”. I will return to that conclusion.
Paragraphs 68, 69 and 70 say no more than that the balance of the land will remain in its existing state with some enhancement of native vegetation, removal of pest plants and plantings as windbreaks of natural species. That amounts to little more than saying that the land which will not be used for a vineyard will retain its existing natural character.

Notwithstanding that it had earlier concluded that the natural character of the zone will not be preserved in the vineyard areas, the court finally concludes at para 71 that the proposal would go some way to preserving and enhancing the natural character of the zone. The court has erred in reaching that conclusion. Nothing in the preceding paragraphs points to the preservation and enhancement of the natural character of the zone other than some rather indeterminate proposals to enhance existing native vegetation and remove pest plants.
The reasoning appears to be that, while the natural character will not be preserved in the vineyard, the vineyard will be no less natural than open grazing land. The Environment Court also proceeds on the footing that it is proper, when assessing the proposal, to have regard to the whole of the land owned by the respondents instead of confining attention to that part of the land to be developed as a vineyard. In this way, the court concludes that, when viewed as a whole, the proposed vineyard would go some way to preserving and enhancing the natural character of the zone. That reasoning too is flawed.
An examination of the Environment Court’s reasoning discloses that the only respect of which the natural character is preserved and enhanced by development is that some plant pests will be removed, some existing vegetation remains on land not planted to the vineyard and some native trees will be planted in a buffer zone in part of the vineyard, both of which are of little moment in the overall picture.
I deal first with the conclusion that “… upon our reading of the Development Plan, the vineyard would be no less natural than grazing land”. The proposed vineyard is to be established on cleared land now used for grazing. The grazing land is not native vegetation. It is open in character and the grasses change colours with the changes of seasons. Furthermore, the definition of “natural character” expressly includes open grazing land. The proposed vineyard will be, of course, a product of nature in that it will grow naturally, albeit in this case assisted by irrigation, trellising, chemical spraying and all the other modern techniques for promoting vine growth and grapes of high quality. However, there is a marked difference in appearance between open grazing land and the proposed vineyard or, indeed, any vineyard of the kind proposed.
Grazing land is open grassland. The land may have been cleared but there is no apparent ordered form in grazing land. There is no apparent cultivation. By contrast in this proposal, the vines are to be planted in ordered rows either perpendicular to or parallel with the contours of the land. A well-ordered development of rows of vines standing like serried ranks on a slope presents a stark contrast to the unordered character of both open grazing land and natural vegetation. The ordered rows of vines are regular in shape and are not particularly natural in appearance especially in summer when the vivid green of irrigated vines with clearly defined borders starkly contrast with the surrounding dry open grazing country. In the winter months, when grasses are usually green, the vineyard will present row upon row of brown posts, vines and canes. The result is a series of green and brown stripes along or across the hillside formed by the rows of vines and the green grasses between the rows. In addition, vines grow on the trellises to a height of almost two metres whereas grazing land will have relatively low grasses. All of these aspects of a vineyard are matters of general knowledge and can be readily noticed from ordinary observation. In short, a vineyard is an ordered development with well-ordered rows of vines quite distinct from the open, unordered appearance of this grazing land through which trees and some native grasses and sedges are scattered.
The Environment Court qualified its conclusion that the vineyard would be no less natural than open grazing land with the expression “upon our reading of the Development Plan” but did not identify any part of the Plan which supports that conclusion. A reading of the Plan yields nothing which supports it. I infer that the court is referring to its conclusion that the vineyard will be of an open character. For the reasons which appear later, that conclusion is open to question. Even if the vineyard has an open character, it still presents an ordered appearance in marked contrast to the open grazing land and so does not preserve the natural character of that part of the zone. For the above reasons, the court has erred in reaching that conclusion.
The Environment Court has also erred in determining this issue by having regard to the fact that the remainder of the respondents’ land will essentially retain its existing natural character. For the reasons which follow, it has both addressed the wrong question and placed too much weight on that fact. The proposal was to develop a substantial vineyard of some 29.5 hectares (which equates to about 72 acres). The total area of the respondents’ land was 205 hectares (approximately 505 acres). The land not developed as a vineyard will remain for the grazing of stock. In addition, a large stand of native vegetation will be retained. The proposal to remove what are called “pest plants” has no time frame and it can fairly be described as incidental, particularly given the absence of any time frame. The proposal to plant some native trees to provide windbreaks is also relatively incidental. It is, of course, appropriate to examine a proposed development in its context. However, when determining whether the proposed development would preserve and enhance the natural character of the zone, the Environment Court was required to determine the extent to which, if at all, the vineyard would preserve and enhance that natural character. In approaching that issue by an examination of both the vineyard and the balance of the respondents’ land which, to all intents and purposes, was to remain in its existing form, the court has addressed the wrong question. Plainly, the land which will not be developed as a vineyard will essentially retain its existing character. It is only the vineyard which has the capacity to alter the natural character of the land. There is a kind of circularity in the reasoning. It is tantamount to saying that, if we put to one side the fact that the vineyard would not amount to preservation of the natural character, the balance of the land will retain its natural character and, therefore, the natural character of this part of the Hills Face Zone will be preserved and enhanced. The reasoning is, I think, false. The court, therefore, had first to determine the extent to which the proposed vineyard would preserve and enhance the natural character of the zone. Having to determine that question first, the court had to then consider the proposal in its overall context.
To summarise. The Environment Court has erred in its conclusion that the vineyard would be no less natural than grazing land. It has addressed the wrong question when determining whether the vineyard will preserve and enhance the natural character of the zone. For the reasons already expressed, the proposed vineyard does not in any significant sense preserve or enhance the natural character of the zone. Viewing its reasons as a whole, the Environment Court has failed to give due weight to the expression “natural character” as that expression is used in the Hills Face Zone provisions. There was, therefore, no sound basis upon which the court was able to conclude that “in an overall sense, the proposal would go some way towards preserving and enhancing the natural character of the Zone”. In my view, the proposed vineyard impairs the natural character of the zone.
This decision does not mean that the provisions of the Hills Face Zone are being construed so as to give them mandatory effect. Such an approach is at odds with the Development Plan which speaks in terms of planning objectives and guiding principles rather than that of legal obligation or legal mandates: see South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35 and Telstra v Mitcham City Corporation (2001) 79 SASR 509 at 515 – 516 and the cases there cited. Instead, the decision assesses the proposal against the objectives and principles of development control for the Hills Face Zone. For the reasons expressed above, when assessed against the provisions of the Development Plan, the proposed vineyard does not merit approval.
An Open Character
The Environment Court held that the proposed vineyard would have an open character. It did so in the process of addressing the issues raised by Principle 1. It is convenient to repeat the terms of Principle 1.
“1 Development should not be undertaken unless:
(a)it is associated with a low-intensity agricultural activity, a public open space area or a private use of an open character, or is a detached single-storey dwelling, including outbuildings and structures normally associated with such dwellings, on a single allotment; and
(b)together with associated native landscaping, it preserves and enhances the natural character of the zone or assists in the re-establishment of a natural character.”
The Environment Court examined whether the proposed vineyard was a private use of an open character and whether it was a low-intensity agricultural use. It concluded that it was both. There are some flaws in this reasoning. It is unnecessary to deal with them all. I refer to those of greater moment.
First, the court has misstated the effect of Principle 1. Contrary to what the court said in para 55 of its reasons, Principle 1 does not state that development should not be undertaken unless, among other things, it is a private use of an open character. Instead, Principle 1 authorises development associated with, among other things, a private use of an open character. The distinction is small but is of consequence.
Secondly, and perhaps more importantly, once the Environment Court had determined that the proposed vineyard was associated with a low-intensity agricultural activity, it was unnecessary for it to consider whether it was associated with a private use of an open character. That is apparent from the terms of Principle 1 which lists three alternatives. If the proposal is associated with any one, it is unnecessary to consider the other two.
Thirdly, the court has erred in its interpretation of the meaning of the expression “private use of an open character”. The court gave the following meaning to the expression “open character”. It said:
“We conclude that whether a use of land has an ‘open character’ is to be determined having regard to its visual aspects, from roads and other vantage points, rather than terms of its ‘permeability’ to accommodate movement across the land …”
There is nothing in the Development Plan either in ordinary usage or in which requires this restrictive view to be taken.
In ordinary usage, “open character”, when applied to land and the use of land, signifies that which is not shut in, that which is unconfined and unobstructed: see Oxford English Dictionary and Macquarie Dictionary. The expression is used in contradistinction to land with a natural character which is vegetated with trees. Thus, when referring to land, the expression “open character” in ordinary usage refers both to visual appearance and the capacity to move across the land.
This is also the effect of the Development Plan whose provisions suggest that the ability to move across land is as much a feature of its open character as its visual appearance. An example is Objective 2 of the Hills Face Zone which notes that open character of land refers to those parts of the zone where grazing now predominates. Grazing land is both visually open in appearance and open in the sense that it presents no hindrance to any movement. This is also the effect of the Objectives for the Metropolitan Open Space System, referred to earlier in these reasons, which intend to set aside land of an open or natural character to provide, among other things, visual and scenic contrast to the urban environment as well as to provide areas for active and passive recreation. In short, both the Hills Faze Zone provisions and the MOSS provisions speak of open and natural character in a way which envisages the capacity to move across land with relative ease as well as its visual appearance. The Environment Court therefore erred in confining the expression “open character” to the visual aspect of the land.
Expert evidence was led in the Environment Court on the question whether a vineyard would exhibit an open character. The expression “open character” is not a term of art but represents an ordinary use of language. The question whether the proposed vineyard was of an open character is a question on which an ordinary person could properly form an opinion and is not, therefore, a question which requires expert evidence: c.f. R v Bonython (1984) 38 SASR 45 at 46 – 47.
It is common knowledge that a vineyard is closely developed. The rows in this vineyard, like many others, will be about two metres apart. This vineyard, in common with many others, has long rows of vines supported by trellising. While access may be easily obtained along the rows, it is not possible to move readily from one row to another except at the end of the row. In the result, the vineyard presents a barrier when seen from one side. It clearly inhibits movement across the land. While the proposed vineyard is open in appearance in that it does not include obtrusive structures, its ordered rows of vines do not suggest the capacity to move easily across the land.
I agree with the Environment Court’s conclusion that in this context open character means devoid of structures which would detract from the natural character. In that respect, a vineyard has an open appearance. Trellised vines grow to a height of approximately two metres. That permits an unobstructed view across the top of the vines. However, at the same time, there is an appearance of dense planting. This is but one aspect of the barrier to movement. When regard is had to the issues as to movement, there is a real question whether the vineyard has an open character.
In any event, the question whether the vineyard has an open character does not determine the issues under Principle 1. Principle 1 contains two prerequisites for development. The first is that the development must be associated with the uses listed in para (a). The second is that the development must preserve, enhance or assist in the re-establishment of the natural character of the zone. Both limbs of Principle 1 must be satisfied. It must be acknowledged that para (b) opens with the words “together with associated native landscaping”. Those words cannot, in my view, mean that para (b) applies only if the proposal includes native landscaping. If that were so, the purpose of Principle 1 would be defeated. The words are, I think, inserted to encourage the use of planting of indigenous plants and trees. Principle 1 is intended to be consistent with Objectives 1 and 2 so that when it speaks of preserving the natural character of the zone, Principle 1 is referring to the natural character of that part of the zone in which the proposal is situated. To conclude otherwise would result in manifest absurdity. Thus, if a proposal is located in an area with a natural open character, a proposal which changes that natural open character does not satisfy Principle 1. Thus, the Environment Court’s conclusion that the vineyard has an open character does not address all of the issues in Principle 1.
A Low-Intensity Agricultural Activity?
The Council attacked the conclusion that the proposed vineyard is a low-intensity agricultural activity. There are two issues. The first is whether the agricultural activity is low-intensity. The second is whether a vineyard is an agricultural activity contemplated by the provisions for the Hills Face Zone.
Assuming the vineyard is an agricultural activity within the meaning of the provisions for the Hills Face Zone, I first examine whether it is a low-intensity agricultural activity. Evidence on this question was given by two witnesses. Mr Scholefield said that, looking at the vineyard alone, the activity stood somewhere between low-intensity and high-intensity. He did not have a definite position for it. Mr Drew’s evidence was that the vineyard could not be regarded as a low-intensity agricultural use. Thus, the only two witnesses called on this subject both with experience in agricultural and horticultural activities, concluded that it was not a low-intensity use. Notwithstanding the clear effect of this evidence, the court concluded that the proposed vineyard was low-intensity. Although the Environment Court was entitled to reach its own conclusion on this issue, there was no basis for disagreeing with the two experts. Their evidence accords with common understanding of what constitutes low-intensity agricultural use.
The court justified its conclusion by stating that the use of the expression “low-intensity” in the Development Plan conveys a broader concept including visual appearance. On that view, the court concluded that it qualified “to a sufficient degree” as low-intensity. The court did not define the broader concept it purported to identify in the Development Plan. In my view, there is nothing in the Plan which justifies the conclusion. Questions of visual appearance are to be determined by reference to issues such as the intent to preserve and enhance the natural and open character of the Hills Face Zone.
For these reasons, the Environment Court has erred in concluding that it was a low-intensity agricultural activity.
An Agricultural Activity?
It is not clear whether a vineyard is an agricultural activity within the meaning intended by the Hills Face Zone provisions. Although Principle 25 lists agriculture with certain conditions as a complying use in the Hills Face Zone, it was common ground in the Environment Court and on this appeal that the proposed development was neither a complying nor a non-complying use. That must plainly be so. Principle 25 is in these terms:
“Agriculture, but not including:
(a) excavation or filling of land;
(b) the construction of roads, tracks and thoroughfares;
(c)the erection, construction or alteration of, or addition to, any building or structure;
(d)the clearing of native vegetation; or
(e)market gardening within the Mount Lofty Ranges watershed.”
(The reference to market gardening in the Mount Lofty Ranges watershed refers to that part of the Hills Face Zone for which controls exist with the object of maintaining water quality in water catchment areas.) The vineyard will comprise trellised rows which are structures. In addition, the vineyard will include tracks and thoroughfares. The proposal, thus, fails to qualify as agriculture within the meaning of Principle 25. However, that is not the end of the matter as Objective 2 states that the Hills Face Zone accommodates, among other things, low-intensity agricultural activity. The Environment Court was, therefore, required to consider the meaning of the expression “low-intensity agricultural activity”.
Notwithstanding the decision in Fusco v City of Mitcham (supra), the Environment Court concluded that the Development Plan did not differentiate between agriculture and horticulture in this zone, so that a reference to agricultural activity included horticulture, which thereby included viticulture. It then decided that horticultural activity might amount to low-intensity agricultural activity depending on the nature of the horticultural activity. For the reasons which follow, the court has again fallen into error. In my view, the Development Plan does distinguish between agriculture and horticulture. More importantly, even if it does not, there are provisions in the Development Plan which speak against a vineyard in the Hills Face Zone.

Schedule 1 of the Development Regulations made under the Development Act defines terms used in both the Development Regulations and in the Development Plan: see Regulation 3. These terms include “farming” and “horticulture”. However, neither “agriculture” nor “agricultural activity” is defined. In ordinary usage, agriculture means the cultivation of land and includes growing crops, forestry and raising stock. It means farming in the wider sense: see Macquarie Dictionary and Oxford English Dictionary. I think the intent of the Development Plan is that “agricultural activity” should have the same meaning as “agriculture”. To the extent that agriculture includes the cultivation of land and cultivation will generally involve an interference with the natural character of the Hills Face Zone, there may be an inconsistency between agriculture being a complying use and the preservation and enhancement of the natural character of the zone. It is unnecessary to pursue that issue.
The definition of “farming” is in these terms:
“ ‘farming’ includes the use of land for any purpose of agriculture, cropping, grazing, or animal husbandry, but does not include horticulture, commercial forestry, horse keeping, or any intensive animal keeping or the operation of a stock slaughter works or dairy.”
There is a degree of circularity in the definition as, in ordinary usage, agriculture means farming. What is significant for present purposes is that the definition excludes horticulture as well as some other activities. For its part, “horticulture” is defined in these terms:
“ ‘horticulture’ means the use of land for market gardening, viticulture, floriculture, orchards, wholesale plant nurseries or commercial turf growing.”
Thus, both viticulture and market gardening are not farming as defined.
The word “farming” does not appear in the provisions for the Hills Face Zone in the Development Plan. Farming is permitted in a specified part of the Metropolitan Open Space Scheme but, clearly, by reason of the definition of farming, viticulture is not permitted in that location. However, privately owned land in the Metropolitan Open Space Scheme may be used for rural activities and agriculture but not intensive animal keeping: see Principle 32. But the provisions of Principle 32 must be read together with Objective 40 for the Metropolitan Open Space Scheme which provides that private land may be used for “low scale uses such as non-intensive agriculture” and some other identified uses which retain or develop the open, natural or rural character of the zone. Objective 40 therefore appears to exclude viticulture because it is not a non-intensive agricultural activity. Farming and intensive animal keeping are non-complying developments in the light industry zones and general industry zones in the Council area but, curiously, neither agriculture nor horticulture are non-complying uses. Both “farming” and “horticulture” are non-complying developments in all of the residential zones in the Council area but, curiously, agriculture is not. The agistment and holding of stock and intensive animal keeping are also non-complying developments in residential zones. However, there is no need in those zones to refer to agriculture given the width of the definitions of “farming” and “horticulture” and the fact that, in addition, the agistment and holding of stock as well as intensive animal keeping are listed as non-complying developments. It is unlikely that there would be any aspect of agriculture which would not fall within any of those uses.
It is apparent, therefore, that the terms “agriculture”, “agricultural activity” and “farming” are not consistently used in the Development Plan. However, that does not enable the conclusion that agriculture includes horticulture. Instead, the only conclusion which can reasonably be reached is that there is no consistent use of these terms.
The provisions of the Development Plan must not be interpreted like a statute. A Development Plan is a planning document couched in the language of planning objectives and principles, rather than that of legal obligation: see Telstra v Mitcham City Corporation (supra) at 515 and the cases there cited. This Court has earlier noted that the Development Plan does not always use expressions in a consistent manner: District Council of Mallala v M & B Farmer Nominees Pty Ltd (2000) 76 SASR 443 at 449; Telstra v Mitcham City Corporation (supra) at 516. When expressions are not used consistently, it may be necessary to have regard to either or both the overall purpose and objectives of the relevant zone and of the Development Plan in order to determine the intended meaning of a word or expression. This is an instance of that principle, particularly as the expression “agricultural activity” is not a term of art or a technical term.
The absence of any consistent use of the terms farming and agriculture, therefore, requires that the meaning of the expression “agricultural activity” be primarily determined by reference to the context in which it appears and, in particular, by reference to the objectives for the particular zone in which it appears. In the Hills Face Zone, the expression is qualified by the adjectival phrase “low-intensity”. For the reasons already expressed, that excludes viticulture. In addition, for the reasons already given, the MOSS provisions appear to exclude viticulture. Superimposed on all of this is the fact that the Objectives for the Hills Face Zone spell out that the natural character includes the open character of land where grazing currently predominates. The proposed vineyard is to be located on open grazing land. That only serves to emphasise the fact that very few activities will satisfy the criteria. For those reasons, a vineyard is not an agricultural activity of the kind intended in this zone.
Conclusion
To draw three strands together. First, there is a clear and unequivocal statement in the Development Plan that the natural character of the Hills Face Zone is to be preserved and enhanced and the Plan clearly spells out what is meant by the expression “natural character”. The Environment Court has misapplied, if not misunderstood, what is meant by natural character and has wrongly determined that the proposed vineyard would go some way towards preserving and enhancing the natural character of the Zone. Secondly, leaving aside what is meant by the expression “agricultural activity”, the Environment Court has, contrary to the unchallenged evidence, found that the proposed development is low-intensity. There is no ground on which to sustain that conclusion. Thus, it erred in reaching the conclusion that the proposed vineyard would amount to a low-intensity agricultural activity. Furthermore, although the meaning of the terms “agriculture” and “agricultural activity” when used in the Hills Face Zone is not entirely clear, the context in which those terms are used indicate that it does not include viticulture. That is a further reason for concluding that the Environment Court was wrong in finding that the proposed vineyard would amount to a low-intensity agricultural activity. Finally, it was unnecessary for the Environment Court to consider whether the vineyard would have an open character.
It follows that the Environment Court has erred in making its provisional conclusion that the proposal might merit approval because “the vineyard would have an open character, would amount to a low-intensity agricultural use, and the proposal would go some way towards preserving and enhancing the natural character of the Zone”. Although the other issues which the Environment Court examined have their own individual importance, they are not central to the determination whether development consent should be granted. As the Environment Court has erred in reaching its provisional conclusion on those central three issues, what orders should be made?
Mr Hayes QC, who appeared for the respondents, submitted that, if the appeal were allowed, this Court should remit the matter to the Environment Court for further determination in accordance with the principles expressed in its reasons. In many cases, that is likely to be the appropriate order, particularly as this Court is not equipped to determine the questions which ultimately lead to a planning judgment. There are, of course instances where a failure to satisfy one or two requirements of the Development Plan is not fatal. There are other instances where the Environment Court has erred with respect to one or two aspects of its reasoning and, if the correct reasoning is applied, it might still be possible to conclude that development consent should be granted. But this case does not come within either of the above alternatives. Instead, this is a case where the Environment Court has erred in its interpretation of the Development Plan on at least two important issues which are central to the grant of development consent. They constitute the very foundation on which the Environment Court’s planning judgment is based. Because they are so central to the Environment Court’s conclusion, development consent should not be granted. It is not, therefore, appropriate in this case to remit the matter to the Environment Court.
This Court should, therefore, allow the appeal, set aside the decision of the Environment Court and restore the decision of the Council refusing to grant development consent to the application to develop a vineyard containing 24.5 hectares.
The Applications for Trellising and Irrigation
There remain the appeals from the Environment Court’s decision on the application for trellising and irrigation.
As already mentioned, the respondents had obtained development consent to establish a seven hectare vineyard on the subject land. The application that resulted in the grant of development consent stated that the proposal did not include either trellising or irrigation of the vineyard. In October 2001 the respondents began planting the vineyard. At the same time they began to erect the trellising and install an irrigation system. Following action by the Council, the respondents ceased these activities. They lodged two separate applications on the same day seeking provisional development plan consent to erect trellising for the vines and to install an irrigation system.
The Environment Court did not give separate consideration to the appeals against the Council’s refusal of these two applications. Instead, it dealt with them in conjunction with the application to develop the large vineyard of 29.5 hectares. The factors which might affect consideration of those two applications differ from those affecting the proposal of the large vineyard. One obvious factor is that development consent has already been granted for the planting of the small vineyard. That may be offset by the fact that the Council is minded to grant development consent because it was not to include trellising and irrigation. In addition, it is open to argument that the factors which lead to the conclusion that development consent should not be granted for the large vineyard might mean that development consent should not be granted to either the application for the trellising or the application for the irrigation system. I am very reluctant to put the parties to the expense of further litigation. However, as other issues may fall for consideration than those which have been dealt with in these reasons and because the Environment Court is better equipped to make such planning judgments as are necessary, I believe there is no alternative but to remit these two appeals to the Environment Court for further consideration in the light of these reasons. I would hear the parties on the question whether these appeals should be remitted to the same or a differently constituted court.
Orders
For these reasons I would make the following orders.
1       Appeal allowed.
2Set aside the orders of the Environment Court and in lieu order as follows:
(i)     That the appeal from the decision of the Council refusing Development Application No. 080/806/2000 be dismissed.
(ii)   That the appeals from the decision of the Council refusing Development Applications No. 080/1792/2001 and No. 080/1793/2001 be remitted to the Environment Resources and Development Court for further hearing and determination.
I would hear the parties on the question of costs.

[2003] SASC 166

27 May 2003