Corporation of the City of Adelaide v Commercial & General Pty Ltd
[2013] SASCFC 125
•19 November 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CORPORATION OF THE CITY OF ADELAIDE v COMMERCIAL & GENERAL PTY LTD
[2013] SASCFC 125
Judgment of The Full Court
(The Honourable Justice Sulan, The Honourable Justice Anderson and The Honourable Justice Blue)
19 November 2013
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - APPLICATIONS - GENERALLY
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - RIGHT AND AVAILABILITY OF APPEAL
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - APPLICATIONS - WHETHER REQUIRED
The respondent, Commercial & General Pty Ltd, owns land in Angas Street, Adelaide on which the SAPOL building is situated. Commercial applied for development plan consent to use vacant land adjacent to the SAPOL building as a car park for use predominantly by SAPOL personnel. The vacant land is owned by the Yorke Companies. In August 2012, the appellant, Adelaide Council, assessed the application on merit and refused development plan consent. The respondent successfully appealed against the refusal to the Environment, Resources and Development Court.
The Council appeals on the grounds that the Environment Court erred in concluding that:
1. the use of the vacant land for car parking was excluded by clause 5, Schedule 3 to the Development Regulations 2008 (SA) from the definition of “development” in the Development Act 1993 (SA);
2. the proposed use of the vacant land was a complying development under Principle 49(c) of the Development Plan;
3. the change in use of the vacant land to car parking was not non-complying development under Principle 50(a) of the Development Plan; and
4. the application for development plan consent warranted approval if assessed on merit.
Held by Blue J (Sulan and Anderson JJ agreeing) allowing the appeal:
1. The Environment Court erred in concluding that development approval was not required.
(a) The clause 5, Schedule 3 exemption is not applicable when there are two separate, albeit adjoining parcels of land in different ownership and one is used for purposes of the other parcel (at [33]-[35]).
(b) The use of the vacant land for car parking by predominantly SAPOL personnel is not excluded by clause 5, Schedule 3 of the Regulations from the definition of “development” in the Act (at [42]).
2. The Environment Court erred in concluding that the change in use was complying development. There was no change in the use of the vacant land to an office and hence Principle 49 of the Development Plan had no application (at [50]).
3. The Environment Court was correct in concluding that the change in use of the vacant land to car parking was not non-complying pursuant to Principle 50(a)(i) of the Development Plan. Here the car parking serves only the two adjacent parcels of land and predominately serves one of them (at [59]).
4. The Environment Court did not make any errors of law in concluding that development plan consent was warranted if assessed on merit (at [67]).
Development Act 1993 (SA); Development Regulations 2008 (SA) reg 3, referred to.
Sames v Mount Barker District Council [2004] SASC 374, (2004) LGERA 187, applied.
Adelaide City Investments Pty Ltd v Adelaide City Council [2004] 135 LGERA 53; Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton (1993) 62 SASR 165, discussed.
CORPORATION OF THE CITY OF ADELAIDE v COMMERCIAL & GENERAL PTY LTD
[2013] SASCFC 125FULL COURT: Sulan, Anderson and Blue JJ
SULAN J:
I agree with the reasons of Blue J and the orders he proposes.
ANDERSON J:
I agree with the orders proposed by Blue J and I agree with his reasons for allowing the appeal.
BLUE J:
This is an appeal by the Corporation of the City of Adelaide against a declaration by the Environment, Resources and Development Court that the use of land at 110-130 Angas Street, Adelaide (“the Vacant Land”) as a carpark does not constitute “development” and does not require development approval under the Development Act 1993 (SA) (“the Act”). The Vacant Land was the subject of a development application by the respondent Commercial & General Pty Ltd.
The Vacant Land is presently being used as a carpark by personnel working in the South Australian Police Headquarters building situated on land adjacent to the Vacant Land on its western side (“the SAPOL Land”) and personnel working in the Yorke Motors building adjacent to the Vacant Land on its eastern side (“the Yorke Motors Land”).
In June 2012, Commercial & General lodged with the Council an application for development plan consent to use the Vacant Land for carparking as an ancillary carpark for use by SAPOL personnel. In August 2012, the Council assessed the application on merit and refused development plan consent.
Commercial & General appealed against the refusal to the Environment Court on three alternative grounds. First, Commercial & General contended that the use of the Vacant Land as a carpark for SAPOL and Yorke Motors personnel did not constitute “development” and therefore no development approval was required from the Council. Secondly, if the Vacant Land constituted development and required approval, Commercial & General contended that the proposed development was complying under the Council’s development plan. Thirdly, if the proposed development fell to be assessed on merit, Commercial & General contended that it warranted approval.
The Environment Court, constituted of a Judge and two Commissioners, upheld Commercial & General’s primary contention that use of the Vacant Land did not comprise “development” and no development approval was required. In the alternative, the Court held that the proposed development was complying which entailed the Council having been obliged to grant development plan consent. Finally, the Court determined in the further alternative that, if it were to be assessed on merit, development plan consent was warranted for use of the Vacant Land as a temporary carpark.
The appeal to this Court raises the following questions:
1.Is the use of the relevant land for carparking by SAPOL and Yorke Motors personnel excluded by clause 5 of Schedule 3 to the Development Regulations 2008 (SA) (“the Regulations”) from the definition of “development” contained in the Act?
2.Alternatively, is the proposed use of the relevant land properly characterised as complying development under Principle 49(c) of the Capital City Zone section of the Development Plan?
3.Alternatively, is the proposed use of the relevant land properly characterised as non‑complying development under Principle 50(a) of the Capital City Zone section of the Development Plan?
4.Alternatively, if the proposed use of the relevant land is properly characterised as being on merit, did the Environment Court err in law in assessing it as warranting approval as a temporary carpark?
Background
Development within the area of the Council is the subject of the Adelaide (City) Development Plan. The relevant version of that plan is the version consolidated on 31 May 2012 (“the Development Plan”).
The SAPOL Land is situated at 100 Angas Street, Adelaide.[1] The Vacant Land is situated at 110-130 Angas Street, Adelaide.[2] The Yorke Motors Land is situated at 271-279 Pulteney Street, Adelaide.[3] The three contiguous parcels of land (collectively “the Land”) are all situated on the northern side of Angas Street to the west of Pulteney Street.
[1] Certificate of Title Register Book Volume 6043 Folio 469.
[2] Certificate of Title Register Book Volume 6043 Folio 470 and Volume 5241 Folio 5.
[3] Certificate of Title Register Book Volume 5296 Folios 904-906.
For several decades until 2006, the Land was owned by companies in the Yorke group of companies (collectively “the Yorke Companies”). The SAPOL Land was owned by Yorke Partners Pty Ltd. The western half of the Vacant Land was owned by Yorke Investments Pty Ltd and the eastern half by Yorke Group Pty Ltd. The Yorke Motors Land was owned by 271 Pulteney Street Ltd.
Between 1973 and 2006, the Land was used by Yorke Motors for its business of sale of motor vehicles and servicing and supply of spare parts for motor vehicles. There were buildings constructed on most of the Land, including on most of the Vacant Land. There was a vacant space outside the buildings forming part of both the Vacant Land and SAPOL Land which was used for carparking. Originally, that space was used for parking by customers and staff of Yorke Motors and subsequently also by members of the public. By 1996, management of carparking by members of the public was undertaken by Wilson Parking, and in 1999 Care Park took over that management from Wilson Parking.
Some time between 2006 and 2009, the current owners, Commercial & General, purchased the SAPOL Land from Yorke Partners. The Yorke Companies still own the Vacant Land and the Yorke Motors Land.
In April 2007, the Council granted development plan consent for a development on the Land involving the construction of three separate commercial buildings ranging from 8-10 levels incorporating two levels of basement carparking. The basement car parks were intended to serve both the building to be constructed on the SAPOL Land and the Vacant Land.
In 2009, SAPOL agreed to become a tenant of the building proposed to be constructed on the SAPOL Land. In June 2009, the Council granted a variation to the earlier development plan consent to separate the building proposed for the SAPOL Land from the adjoining building proposed for the Vacant Land. There was now to be a dedicated, single level, carpark in the basement of the building on the SAPOL land.
The buildings on the Vacant Land were demolished at the same time as demolition of the old building on the SAPOL site in December 2009. Construction of the new building on the SAPOL Land (“the SAPOL Building”) commenced in December 2009 and was completed in August 2011.
In October 2011, the Yorke Companies commenced using the Vacant Land as a carpark managed by Care Park under contract with the Yorke Companies. Ninety percent of the persons using the carpark were SAPOL personnel, with the remainder being Yorke Motors personnel and members of the public. Care Park charged all users of the carpark a daily fee. Commercial & General and SAPOL had no control over the price charged for carparking or the terms upon which carparking was offered to SAPOL personnel. The carpark was operated for a commercial purpose. The revenue generated from the operation of the carpark was sufficient to meet the expenses of operation and most (but not all) of the holding costs incurred by the Yorke Companies in holding the land.
In January 2012, the Council directed that the carparking cease and it did so.
On 7 June 2012, Commercial & General lodged with the Council an application for development plan consent for use of the Vacant Land as an auxiliary carpark for SAPOL use only. The statement of support lodged in conjunction with the application showed a bitumised carpark comprising 173 bays with a ticket station and colorbond fencing around the perimeter. The statement of support stated:
It is intended that the 120 Angas St site be operated as a secure carpark to service the need of the SA Police Force until such time as a future building development commences. The site will be for use by SAPOL personnel only.
...
The external boundary of the site is fenced with colorbond fencing, with access via swing gates onto Angas St.
...
The carpark will be operated and managed by Care Park Adelaide, and as such appropriate signage will be displayed at the side entry to advise that the carpark is private for SAPOL use only. Carepark will only issue monthly permits to SAPOL staff on direct contact with them. Any public that access the carpark would be subject to removal. The hours of operation will coincide with operational hours of SAPOL.
Some time in June 2012, apparently coinciding with lodgment of the development application, the Yorke Companies recommenced operating the Vacant Land as a carpark. It has been used continuously since then as a carpark, primarily for SAPOL personnel but also for Yorke Motors personnel.
On 6 August 2012, Commercial & General wrote to the Council’s Development Assessment Panel stating that the site was likely to remain vacant for the next 18 months and urging approval for it to be used as an ancillary carpark, even if that approval had a time limit of 18 months.
On 6 August 2012, the Development Assessment Panel refused the application. The Panel assessed the application on merit and regarded the application as neither complying nor non‑complying. The Panel considered that the proposal was not seriously at variance with the provisions of the Development Plan, but that it did not warrant development plan consent because the open nature and poor amenity of the site was at odds with the desire for high quality design and detailing of buildings sought within the City.
Use incidental to particular use of land
For the purposes of the Act, the use of the SAPOL Land and the SAPOL Building is offices. Commercial & General successfully argued on the appeal to the Environment Court that the use of the Vacant Land for carparking for SAPOL personnel is ordinarily regarded as, and is in fact, reasonably incidental to the use of the combination of the SAPOL Land and the Vacant Land as offices. This led to the conclusion that use for carparking did not comprise “development” by reason of regulation 7 and clause 5, Schedule 3 of the Regulations and no development application was necessary.
The term “development” is defined by section 4(1) of the Act to mean, inter alia, “a change in the use of land”. It is common ground on appeal that use of the Vacant Land for carparking is a change in the use of land and thereby comprises development unless it is excluded by the Regulations.
Regulation 7(1) of the Regulations provides:
Subject to this regulation, an act or activity specified in Schedule 3 is excluded from the ambit of the definition of “development”.
Clause 5(1) of Schedule 3 to the Regulations provides the following exemption:
Use of land and buildings
(1)The use of land and the use of any lawfully-erected building which is ordinarily regarded as (and is in fact) reasonably incidental to any particular use of the land and the building, or the land or the building, and which is for the substantial benefit of the person or persons who, in any capacity, are making use of the land and the building, or the land or the building.
The Environment Court concluded that the SAPOL Land and the Vacant Land should be considered in combination as the “land” for the purposes of clause 5 and that, considered as such, use of the combined land for carparking for SAPOL personnel was reasonably incidental to use of the combined land as offices.
The reasoning of the Environment Court was as follows:
In short, if the “land” referred to is (as the respondent submitted) the SAPOL site only it would be difficult to say that activity on the vacant site is incidental to its use. If, on the other hand, the land under consideration includes both the SAPOL site and vacant site the reverse is likely to apply.
…
If the purpose of the use here is to provide carparking for the occupiers of the SAPOL building it is otherwise reasonable to regard the land as that parcel which includes both the SAPOL site and the vacant site …
In summary, the composite parcel historically was used as a single parcel where the parking of vehicles occurred in association with the use of the buildings on the composite parcel albeit on parts of the composite parcel other than the vacant site. In 2006 the appellant and the Yorke Group in joint venture, sought to develop the composite parcel. In 2007, a consent was obtained which envisaged, in part, occupants of the building on the SAPOL site, parking on the vacant site. From 2009 onwards, although the ownership of parts of the composite parcel changed, and the SAPOL’s requirement for a separate and secure building was accommodated, the intention of both joint venturers continued to be that occupants of the building on the SAPOL site, would park on the vacant site. In fulfilment of that intention, after the construction of the SAPOL building was completed, the overwhelming bulk of those parking on the vacant land were SAPOL employees.
Accordingly when the question of land use is considered we are left with:
·a history of parking across parts of the composite parcels in association with the use of buildings on the composite parcel;
·a proposal to develop the composite parcel by using it for parking associated with buildings on the composite parcel; and
·a development resulting in the construction of a building on the composite parcel with parking in association with the use of that building.
Understood in this way and applying the above to the observations of Stephen J in Pioneer Concrete, we are satisfied that the use of the vacant site is for the parking of vehicles in association with the use of the SAPOL site. Accordingly, in our view, the land for the purposes of Clause 5 of Schedule 3 includes both the SAPOL site and the vacant site.
…
As with many other aspects of planning assessment, it is a matter of fact and degree, as to whether, in any given case, a particular car park will be incidental to another land use. No one factor will be decisive. However, in this case we are satisfied that this car park is incidental to the SAPOL office.[4]
[4] [2013] SAERDC 19 at [33], [39]-[42] and [48].
On appeal, the Council contends that the conclusion of the Environment Court was erroneous for two reasons:
1.“the land” referred to in and for the purposes of clause 5 comprised the Vacant Land only and not a combination of the Vacant Land and the SAPOL Land;
2.in the alternative, use of the combined land for carparking is not ordinarily regarded as, and is not in fact, reasonably incidental to use of that land as offices.
Identification of the relevant land
As observed above, Commercial & General accepts on appeal that there was a change of use of the relevant land, for the purposes of the definition of “development” contained in the Act, in October 2011 when the Yorke Companies commenced to use it as a carpark. Commercial and General does not contend that there were any existing use rights for carparking on the relevant land due to the history of use before to 2009 for carparking.
When the change of use occurred in October 2011, the Vacant Land was owned by the Yorke Companies and the SAPOL Land was owned by Commercial & General. No evidence was adduced that the Yorke Companies had any beneficial interest in the SAPOL Land, or that Commercial & General had any beneficial interest in the Vacant Land. The position was relevantly the same as if the SAPOL Land had always been owned by Commercial & General and the Vacant Land had always been owned by the Yorke Companies.
The proposition advanced on appeal by Commercial & General is that, whenever one parcel of land owned by one entity is used for the purpose of carparking by persons working on an adjoining parcel of land owned by another entity, the two parcels of land should be combined for the purpose of the clause 5 exemption and use of the first parcel for carparking would ordinarily be regarded as and would in fact be reasonably incidental to use of the second parcel as offices. That contention should be rejected.
The evident purpose of the exemption under clause 5 is to ensure that development approval is not required for uses of a parcel of land which are no more than reasonably incidental to the principal use of that parcel of land. That principle has no application where there are two separate, albeit adjoining, parcels of land in different ownership and one is used for purposes of the other parcel.
The Environment Court relied on the fact that both parcels of land had historically been used by the Yorke Group as a single parcel. However, that historical use is incapable of altering the fact that, well before the change in use of the land to car parking which occurred in October 2011 and which would otherwise comprise “development”, the SAPOL Land and the Vacant Land were already legally and beneficially owned by different entities. Given that Commercial & General does not contend that there are any relevant existing use rights, the historical position is irrelevant.
The Environment Court erred in treating “the land” referred to on both occasions in clause 5 as encompassing more than the Vacant Land. It follows that clause 5 had no application and development approval was required for a change of use to carparking.
Carparking for the same land
On appeal, the Council contends that, even if the SAPOL Land and the Vacant Land had comprised a single parcel of land, nevertheless the use of the composite land for carparking would ordinarily not be regarded as and would not in fact be reasonably incidental to use of the land as a whole for offices.
In Sames v Mount Barker District Council,[5] Mrs Cleggett owned two adjoining parcels of land at 49 and 51 Main Street, Hahndorf. She sought and was granted development plan consent to construct two shops on the land at number 49 with carparking at the rear of both parcels and access to exit the carpark through number 51 and access to enter through number 49. She subsequently sold number 49 and entered into a land management agreement with the new owners of number 49 and the Council to ensure reciprocal carparking rights between the two parcels. Mrs Cleggett subsequently sold number 51 to Mr Sames, who contended that he was not bound by the land management agreement because it was only authorised by section 61 of the Planning Act 1982 (SA) if the use of number 51 for carparking constituted “development”. Mr Sames contended that it was excluded from the definition of “development” by a regulation in identical terms to clause 5(1) of Schedule 3 to the Regulations. This Court rejected Mr Sames’ contention. Doyle CJ (Perry and Vanstone JJ agreeing) set out the wording of clause 10(1) of the Schedule and stated:
Mr Manetta argues that the use of the land at No.51 for the parking of cars is a use which would ordinarily be regarded as, and was in fact, reasonably incidental to the use of the land at No.49 for shops, and was for the substantial benefit of the person using that land for shops. Accordingly, the proposed development did not involve acts or activities that constituted development on the land at No.51. I do not accept that submission.
First, I do not agree that the use of land for car parking by customers of shops established on the land is reasonably incidental to the use of the land for shops. It would be surprising, having regard to the impact of the use of land for car parking, if land on which shops are erected could be used for the parking of cars without the relevant planning authority having the ability to determine whether that use is to take place or not. That, of course, is not a decisive factor. But it remains the case, in my opinion, that this is a use of land which would not ordinarily be regarded as reasonably incidental to the use of land for shops. There is simply no reason why the use of land for car parking should be regarded as incidental to the use of land for shops. The fact that land used for shops is often used for car parking does not establish the proposition for which Mr. Manetta argues.[6] (Emphasis added)
[5] [2004] SASC 374; (2004) LGERA 187.
[6] (2004) LGERA 187 at [25]-[26].
On its face, that reasoning appears to have equal application in the present case. However, Commercial & General relies upon another decision of this Court. In Adelaide City Investments Pty Ltd v Adelaide City Council,[7] land at North Terrace, Adelaide on which is situated Ayers House had been used as a carpark since at least 1973 for patrons of Ayers House exclusively. Adelaide City Investments applied for development approval to use the land as a public carpark. The Council refused development plan consent. On appeal to this Court, Adelaide City Investments contended that there was no “development” because there was no “change of use of the land” within the meaning of the definition of “development” in the Act. This was because there was to be no change in the size or configuration of the existing carpark, the only change being that it would now be open to the public. Adelaide City Investments did not rely upon clause 5 of Schedule 3 to the Regulations but rather on a contention that a use of land ancillary to the predominant use of land is not regarded for planning purposes as a use in its own right and that the use for carparking was and continued to be ancillary to the predominant use of the land as a restaurant and heritage site.
[7] [2004] SASC 309; (2004) 135 LGERA 53.
Doyle CJ (Duggan and Gray JJ agreeing) said:
Deciding whether a change of use has occurred or will occur involves considering both the activity on or use of the land before and after the postulated change of use, that activity being viewed objectively, and the purpose of the use. The relevant principles are well established. The Judge referred to the decision of Wells J in Prestige Car Sales Pty Ltd v Walkerville Town Corporation, in which the relevant principles are summarised in a manner frequently referred to with approval. As Wells J said in that case, the relevant principles are not "hard and fast rules". They involve consideration of matters of fact and degree.
It is true that after December 2000 there was no change to the location, size or configuration of the car park. It is also true that, viewed objectively, car parking continued on the land as before. But the change from December 2000 is not simply that thereafter users of the car park were required to pay a fee. The use of the car park from December 2000 was no longer ancillary to the use of Ayers House, except if and when a particular person happened to park a car in the car park in connection with the use of Ayers House. I consider, that having regard to the purpose of the use of the car park until 2000, and the purpose of the proposed use from December 2002, and having regard to all the circumstances, the use of the land from December 2002 was as a public car park, and no longer as a car park ancillary to or in connection with the use of Ayers House. At best, from the applicant's point of view, a new use had been added, even if the existing ancillary use continued.
As I have said, the present case is one in which the purpose of the use is significant. A use of land ancillary to another (predominant) use of land is not regarded for planning purposes as a use in its own right: see Ronecast Caterers Pty Ltd v Davis (No 2); Davenport v Waverley Municipal Council; Minister of Environment and Planning v Stirling District Council. Thus, schools, churches, residential flats and offices, for example, often have car parking spaces adjacent to them. The use of that land for car parking does not require separate planning approval if the purpose of the use of those spaces is in connection with and ancillary to the use of the relevant building. Such a use of car parking spaces is, for planning purposes, treated differently from a use of those same spaces for the parking of cars by the public for purposes unconnected with the use of the relevant building.
This fundamental principle of planning law is recognised by Schedule 3 of the Development Regulations.[8]
(Citations omitted)
[8] (2004) 135 LGERA 53 at [18]-[21].
It is to be noted that Doyle CJ wrote the judgments in each of Adelaide City Investments Pty Ltd and Sames and that the cases were heard and determined within two months of each other.
The Council contends that the observations of Doyle CJ in both cases are to be reconciled on the basis that they addressed different issues and stages in the planning process. Adelaide City Investments Pty Ltd involved the anterior question whether there was “change of use” within the meaning of the general definition of “development” contained within the Act. In contrast, Sames involved the subsequent question whether, on the basis that it was acknowledged that there was a change of use and hence “development” within the meaning of the Act, the change was excluded from the definition of “development” by the predecessor of clause 5(1) of Schedule 3 to the Regulations. Conversely, Commercial & General contends that both decisions are equally applicable to both stages and that Adelaide City Investments Pty Ltd addresses carparking ancillary to schools, churches, residential flats and offices; whereas Sames addresses carparking ancillary to shops.
In light of the conclusion which I have reached on the first issue, it is not strictly necessary to decide this issue. However, had it been necessary to decide, I would have accepted the contention by the Council and rejected the contention by Commercial & General. There is no good reason to differentiate between an office complex and a shopping complex in terms of carparking spaces provided for persons using them as to whether the carparking is ancillary to the predominate use of the Land. The three cases cited by Doyle CJ in the passage quoted from Adelaide City Investments Pty Ltd at [41] above all related to the proper characterisation of the nature of a proposed development for the purpose of assignment to complying or non-complying categories and then substantive assessment. That is a quite different context to considering the application of clause 5(1) of Schedule 3 to the Regulations to what has already been characterised as a change of use and hence otherwise as “development” within the meaning of the Act.
Complying development
The Capital City Zone of the Development Plan contains several principles of development control. Principle 49 relevantly provides:
49. The following kinds of development are complying:
…
(c) Change in the use of land from a non-residential use to an office, shop or consulting room (excluding any retail showroom, adult entertainment premises or licensed entertainment premises).
Regulation 3 of the Regulations relevantly provides:
(1) In these regulations and in any Development Plan, the terms set out in Schedule 1 have, unless inconsistent with the context, or unless the contrary intention appears, the respective meanings assigned by that Schedule.
(2) Unless stated to the contrary, a term set out in Schedule 1 which purports to define a form of land use will be taken to include a use which is ancillary and subordinate to that defined use.
Schedule 1 to the Regulations defines the term “office” as follows:
Office means any building used for administration or the practise of a profession, but does not include consulting rooms or premises where materials or goods are stored for sale or manufacture.
The Environment Court concluded that use of the Vacant Land for carparking by SAPOL personnel was ancillary to use of the SAPOL Land as an office. The Environment Court concluded that there was a change in the use of land from a non-residential use to an office within the meaning of Principle 49(c) and this was a complying development. The Court relied upon identical reasoning to that relied upon by it to conclude that the carpark was reasonably incidental to the use of the land and for the purposes of clause 5(1) of Schedule 3 to the Regulations. The Court said:
It is unnecessary for us to rehearse the factors which have led us to conclude that the use of the vacant land for parking of vehicles is incidental to the office use on the SAPOL site. In our view, they apply with equal force to the question of whether the use is ancillary and therefore complying. The use of the vacant site is, in our view, so closely identified with the use of the SAPOL site as to take on its character.
Accordingly, the proposed use is for a complying development.[9]
[9] [2013] SAERDC 19 at [58]-[59].
The issue arising under Principle 49(c) was not identical to the issue arising under clause 5(1) of Schedule 3 to the Regulations. The Environment Court failed to identify the relevant “land” for the purpose of Principle 49(c) or the nature and date of the change in use of such land to an office.
The relevant land to be considered for the purpose of Principle 49(c) was the Vacant Land. It was not the SAPOL Land or a combination of the SAPOL Land and the Vacant Land. The Vacant Land was owned by the Yorke Companies, whereas Commercial & General owned the SAPOL Land. It was operated commercially (albeit at a small loss) by Care Park on behalf of the Yorke Companies. For the purpose of Principle 49(c) it had its own use as a carpark.
The change of use of the SAPOL Land to an office occurred no later than upon commencement of construction of the office building on the SAPOL Land in around December 2009. There was no change in use of the Vacant Land to a carpark until October 2011. It is the latter change of use which, on the current premise, constituted development within the meaning of the Act and which required development approval.
The Vacant Land and the SAPOL Land should be treated separately for the purpose of Principle 49(c). There was no change in use of the Vacant Land to an office and hence Principle 49(c) had no application.
Non-complying development
Principle 50 contained in the Capital City Zone section of the Development Plan relevantly provides:
50. The following kinds of development are non-complying:
(a) A change of use to any of the following:
…
Vehicle parking except:
(i) where it is ancillary to an approved or existing use.
(ii) it is a multi-level carpark located outside the Core Pedestrian Area …
(iii)it is within an existing building located outside the Core Pedestrian Area …
The Environment Court concluded that the change of use to a carpark was “vehicle parking” which was ancillary to an approved or existing use within the meaning of Principle 50(a)(i). The Court rejected the Council’s contention that, if the parking was ancillary to use of both the SAPOL Land and the Yorke Motors Land, it could not be ancillary to “an approved or existing use” because Principle 50(a) referred only to a single use. The Court concluded that the carpark was ancillary to the use of both the SAPOL and Yorke Motors Land.
On appeal, the Council accepts that vehicle parking can be ancillary to an approved or existing use within the meaning of Principle 50(a) even if it is on land adjacent to the land the subject of the approved or existing use and the two parcels of land are in different ownership. However, the Council contends that the use of the singular “an approved or existing use” entails that the parking cannot be ancillary to use of two other parcels of land.
It is necessary to consider the meaning of Principle 50(a)(i) in the context of other provisions contained in the Development Plan addressing carparking. The Council-wide section of the Development Plan addresses carparking. It contains the following objectives:
Objective 72: To meet community expectation for parking supply while supporting a shift towards active and sustainable transport modes.
Objective 73: An adequate supply of short stay and long-stay parking to support desired growth in City activities without detrimental affect on traffic and pedestrian flows.
The Council-wide principles of development control under the heading Carparking relevantly include:
259Multi-level car parks or non-ancillary car parking use of an existing building should only be established where it can be demonstrated that there is a need which is not adequately satisfied by other parking facilities in the locality.
260Multi-level car parks and short stay public use of ancillary car parking spaces are discouraged at ground floor street frontages in the Primary Pedestrian Area … Multi- level car parks, short stay public use of ancillary car parking spaces or non-ancillary car parking use of an existing building may be appropriate where it:
…
(g) with respect to ancillary parking, is provided at basement level, or under croft if located behind other uses which provide activity on the street frontage.
…
263In areas outside the Core and Primary Pedestrian Areas … car parking may be provided to serve a development within the site of the development or elsewhere.
(Map references omitted)
Principles 259 and 260 contemplate that ancillary carparking might be provided on one parcel of land to serve the needs of a different parcel of land which itself might be in different ownership.
Against that background, the reference to vehicle parking being “ancillary” to a use in Principle 50(a)(i) encompasses parking on one parcel of land to serve those using a different parcel of land in different ownership.
There is no reason to construe the reference to “an approved or existing use” as requiring that off-site ancillary parking must be ancillary to a single site and not to two sites. The concern of Principle 50(a)(i) is to prevent non-ancillary carparking, ie carparking which is publicly or generally available. Where, as here, the carparking serves only the two adjacent parcels of land and predominately serves one of them (the SAPOL Land to the extent of ninety percent), it is appropriate to characterise the parking as being ancillary to the use of the adjoining land.
The Environment Court correctly rejected the Council’s contention that the change of use of the Vacant Land to vehicle parking was non-complying pursuant to Principle 50.
Assessment of planning merits of application
An appeal lies as of right to this Court from a decision of the Environment Court on a question of law. Permission of this Court is required to appeal on a question of fact.[10]
[10] Environment Resources and Development Court Act 1993 (SA) s 30(2).
Upon the appeal to the Environment Court, the Environment Court effectively stood in the shoes of the Council and exercised its own planning judgment.[11]
[11] Development Act 1993 (SA) s 88(2)(b).
In Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton,[12] Debelle J (Cox and Duggan JJ agreeing) said:
The Court does not sit to hear purely planning issues to be argued unless the [Planning Appeal] Tribunal has plainly made an identifiable and egregious blunder, has made a demonstrable error of fact or principle, or the circumstances are in some other respect quite exceptional. This Court is reluctant to substitute its planning opinion for that of the Tribunal and will be minded to do so only where the appellant is able to demonstrate some fundamental departure from proper planning principles.[13]
[12] (1993) 62 SASR 165.
[13] (1993) 62 SASR 165 at 173.
The Council contends that the Environment Court made errors of law. The first contention is that the Environment Court erred in assessing the proposed development on the basis that it was temporary. The Council contends that the fact that the proposed development was temporary was incapable of affecting the Environment Court’s assessment. The reasons given by the Council for refusal of consent in its decision notification form on 9 August 2012 were as follows:
1.That the development, the subject of the applicant [sic] from Commercial & General P/L to use vacant land as an ancillary car park at 112 – 130 Angas Street, Adelaide as shown on plans designated DA/395/2012, is not seriously at variance with the provisions of the Development Plan but is REFUSED Development Plan Consent as it fails to:
· Satisfy the intent of the Desired Character Statement of the Capital City Zone for development that displays a level of intensity, interest and activation sought within the centre of the state’s capital.
· Activate the street as sought by Capital City Zone PDC 20 and Council Wide PDC 198.
· Provide access from a minor lane as desired by Capital City Zone PDC 36 and Council Wide PDC’s 226, 242 and 251.
· Locate the car park away from the street frontage and minimise the interruption to the streetscape and [sic] sought by Council Wide PDC 251 and 254.
On appeal, the Council does not press the reason advanced in the third dot point. The remaining dot points can essentially be reduced, as observed by the Environment Court, to the fact that the proposal did not involve an advancement of the development of the Vacant Land towards achievement of the desired character for the Zone in the sense of an aesthetically attractive and functional building. Given the nature of the Council’s objection, it was highly relevant for the Environment Court to take into account that the permitted use of the Vacant Land was for temporary carparking limited to a period of 18 months. The Council’s first contention should be rejected.
The Council makes an allied contention that the Environment Court did not have proper regard to Principle 207 contained in the Council-wide section of the Development Plan. That principle provides:
Where there is no immediate prospect of a long term use, a temporary use for up to 24 months (excluding temporary carparks) is encouraged. Temporary uses of vacant or underdeveloped land should be landscaped, screened and/or treated so that negative impacts to the public realm are minimised.
It is true, as the Environment Court accepted, that Principle 207 actively encourages temporary use but does not include in that encouragement temporary carparking. However, it does not follow that temporary carparking is absolutely discouraged, particularly where it is ancillary to the use of adjacent land.
The Council’s second contention is that the Environment Court erred because there was nothing in the Development Plan which spoke in favour of the development. That contention should be rejected. It is clear from the objectives and principles of development control relating to carparking in the Council-wide section of the Development Plan and in the Capital City Zone that there was an objective of providing adequate carparking to meet the needs of persons residing, working in or visiting the City. Provision of carparking facilities for SAPOL and Yorke Motors personnel was in compliance with those objectives.
The Environment Court did not make any errors of law in concluding that development plan consent was warranted. There is no other basis for this Court to interfere with the judgment exercised by the Environment Court in determining that development plan consent should be granted.
Conclusion
The Environment Court wrongly concluded that the change of use to a carpark was exempted from the definition of “development” by clause 5 of Schedule 3 to the Regulations.
The Environment Court wrongly concluded in the alternative that the change of use was a complying development under Principle 49(c).
The Environment Court correctly concluded that the change of use was not a non-complying development under Principle 50(a). No error has been demonstrated in the Environment Court’s assessment that the application for development plan consent warranted approval when assessed on merit.
The appeal should be allowed. The order of the Environment Court declaring that the use of the Vacant Land does not constitute “development” and does not require development approval under the Act should be set aside.
There should be substituted for that declaration the order which the Environment Court indicated it would have made if it had concluded that the application for development plan consent should be assessed on merit. An order should be made that development plan consent be granted, subject to the following conditions as formulated by the Environment Court:
1.The development must be undertaken and operated in accordance with the relevant details submitted as part of the development application and, in particular, the proposal plan prepared by Murray F Young & Associates marked Exhibit “A1”.
2.The proposed cross-over and associated alterations to the road reserve adjacent to the site must be undertaken in accordance with the Council’s standards and requirements, and so as to avoid any damage to any street tree, to the reasonable satisfaction of the Council. Detailed plans and drawings must be provided to the Council for authorisation in writing prior to the commencement of any work on the road reserve. Any conditions of the Council’s authorisation must be complied with to the reasonable satisfaction of the Council.
3.Access to and egress from the car-park must occur via the new cross-over to be provided on Angas Street.
4.The carpark must not be used, operated or advertised as a carpark other than an ancillary carpark for workers in, or visitors to, the SAPOL building on land immediately to the west of the carpark or the offices of the Yorke Group of Companies on land immediately to the east of the carpark.
5.Use of the land as a car-park pursuant to this consent, must cease at the conclusion of 18 months from 2 May 2013.
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