Corporation of the City of Adelaide v Commercial & General Pty Ltd

This case concerned an appeal to the Full Court of the Environment, Resources and Development Court of South Australia, brought by the Corporation of the City of Adelaide (the Council) against Commercial & General Pty Ltd. The dispute centred on whether the use of certain land for carparking by SAPOL and Yorke Motors personnel constituted "development" under the relevant legislation and Development Plan, and if so, whether it warranted development plan consent. The land in question comprised three contiguous parcels at Angas Street and Pulteney Street in Adelaide.

The Court was required to determine several legal issues. Firstly, whether the proposed carparking use was excluded from the definition of "development" by clause 5 of Schedule 3 to the Development Regulations 2008. Secondly, if not excluded, whether the use qualified as "complying development" under Principle 49(c) of the Capital City Zone section of the Development Plan. Alternatively, the Court considered whether it was "non-complying development" under Principle 50(a), or if it should be assessed on its merits.

The Full Court found that the Environment Court had erred in concluding that the change of use to a carpark was exempted from the definition of "development" and, in the alternative, that it was complying development. However, the Court agreed with the Environment Court that the use was not non-complying development and that no error was demonstrated in the assessment that the application warranted approval on merit. Consequently, the appeal was allowed, and the Environment Court's declaration that the use did not constitute development was set aside. The Full Court substituted an order granting development plan consent, subject to conditions including that the carpark be used ancillary to the SAPOL building or Yorke Group offices, and that its use must cease at the conclusion of 18 months from 2 May 2013.