Corporation of the City of Marion v WC Projects Pty Ltd
[2017] SASC 74
•31 May 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
CORPORATION OF THE CITY OF MARION v WC PROJECTS PTY LTD
[2017] SASC 74
Judgment of The Honourable Justice Blue
31 May 2017
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY - GENERALLY - MATTERS TO BE CONSIDERED
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - PLANNING SCHEMES AND INSTRUMENTS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW
Appeal against decision of the Environment Court allowing appeal against Council refusal of development plan consent.
The respondent developer applied for development plan consent to construct two-storey residential flat buildings for student accommodation on land at Sturt Road, Seacombe Gardens falling within Policy Area 16. The proposed development ultimately comprised eight separate flats.
The proposed development involved an average site area per dwelling, private open space for five of the dwellings and car park spaces substantially below the amounts specified in the Development Plan. Principle 1 of the Policy Area 16 section of the Development Plan identified student accommodation as one of the forms of development envisaged in the Policy Area.
After the Council’s Development Assessment Panel refused Development Plan consent, a Commissioner of the Environment Court allowed the developer’s appeal and granted consent subject to 26 conditions, including conditions limiting residents to defined types of students. The Commissioner considered that the fact that the flats were to be occupied by students justified there being less private open space and fewer car parks than specified in the development plan as applicable to residential flats.
The Council appeals against the Commissioner’s decision on grounds that the Commissioner failed to assess the development’s failure to meet the dwelling site area specification; erred in affording less weight to the developer’s failure to meet the various specifications because the flats were intended to be occupied by students; and erred in relying on conditions as a means of constraining occupation of the premises to students.
Held:
1. The reference in the Development Plan to "student accommodation" is a reference to special purpose accommodation in the nature of a boarding house rather than to a residential flat building that happens to be occupied by students (at [59]).
2. The Commissioner erred in law in accepting or countenancing a wholesale reduction in dwelling site area, dwelling private open space and car parking from that specified in the Development Plan merely because the residential flats were intended to be occupied by students (at [67]).
3. The Commissioner erred in law by failing to address the failure of the development to meet the dwelling site area specification (at [73]).
4. The imposition of the condition constraining occupation of the premises to students confirms that the proposed development is not compatible with the relevant provisions in the Development Plan (at [79]).
5. Appeal allowed. Development plan consent set aside (at [80]).
B Central Development Group Pty Ltd v Stonnington City Council [2009] VCAT 2265; Kipa Freeholds Pty Ltd v Development Assessment Commission [1999] SASC 53; McKenzie Constructions Pty Ltd v Development Assessment Commission (1999) 74 SASR 539; Morris v City of West Torrens [2011] SAERDC 32; Paradise Development (Investments) Pty Ltd v District Council of York Peninsula (2008) 159 LGERA 211; Salandra v City of West Torrens [2011] SAERDC 1; [2003] SAERDC 13 [2003] SAERDC 13, discussed.
Angaston District Council v Hamilton (1995) 64 SASR 110; South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35; Town of Gawler v Impact Investment Corporation Pty Ltd (2007) 99 SASR 115, considered.
CORPORATION OF THE CITY OF MARION v WC PROJECTS PTY LTD
[2017] SASC 74Civil:
BLUE J:
This is an appeal by the Council against a decision of a Commissioner of the Environment Resources and Development Court allowing an appeal by the developer against the Council’s refusal of development plan consent.
WC Projects Pty Ltd (WCP) applied to the Corporation of the City of Marion for development plan consent to construct two-storey residential flat buildings comprising ten units (later reduced to eight units) for student accommodation on land at Sturt Road, Seacombe Gardens.
The Council’s Development Assessment Panel refused development plan consent on grounds that the proposal did not accord with objectives and principles contained in the City of Marion Development Plan, including those relating to average site area per dwelling (dwelling site area) and private open space of each dwelling (dwelling private open space) (except for unit 7) specified in the Development Plan for residential flats.
The Commissioner allowed WCP’s appeal and granted development plan consent subject to 26 conditions, including conditions limiting the number of residents and limiting residents to defined types of students.[1]
[1] WC Projects Pty Ltd v City of Marion [2016] SAERDC 35.
The Council appeals against the decision on grounds that the Commissioner erred:
1.in failing to assess the proposed development’s failure to meet the dwelling site area specification in the Development Plan (ground 6);
2.in affording less weight to the proposed development’s failure to meet the applicable on site car park space (carparking) specification and dwelling private open space specification (and in the alternative to the first alleged error the dwelling site area specification) in the Development Plan and in assessing them as satisfactory on the basis that the proposed development was for student accommodation (grounds 1 to 5); and/or
3.in relying on conditions as a means of constraining the occupation of the premises to students and the potential planning impacts of the development (ground 7).
Background
WCP owns the land situated at 215 Sturt Road, Seacombe Gardens (the Land). The land has a frontage of 19 metres,[2] a depth of 44 metres and an area of 841 square metres[3] (a traditional “quarter acre” block) and presently has a 1950s dwelling constructed on it.
[2] Distances shown in metres are rounded to the nearest whole metre unless otherwise shown.
[3] Areas shown in square metres are rounded to the nearest whole square metre unless otherwise shown.
In June 2014 WCP lodged with the Council a development application form seeking development plan consent to demolish the existing dwelling and construct two-storey residential flat buildings for student accommodation (20 students) comprising ten units.
In December 2015 WCP lodged amended plans for the construction of eight units to accommodate 16 students. Units 3 to 8 were essentially townhouses comprising ground floor and first floor levels. Units 1 and 2 were essentially first floor units with dedicated staircases leading up from the ground floor. There were a total of eight car park spaces provided.
In January 2016 Rob Tokley, Team Leader – Planning at the Council, provided a report (the Tokley report) to the Development Assessment Panel recommending against development plan consent due to concerns including inadequate dwelling site area, inadequate dwelling private open space and inadequate carpark spaces for visitors.
In January 2016 the Development Assessment Panel refused development plan consent for the reasons recommended by Mr Tokley.
In February 2016 WCP appealed to the Environment Court against the decision refusing development plan consent.
In May 2016 WCP lodged with the Environment Court amended plans issued in April 2016 which then became the subject of consideration by the Environment Court.
In June 2016 the Commissioner heard the appeal. WCP called as an expert witness Damian Dawson, the planning consultant engaged by it for the proposed development. He gave evidence in chief by way of a written statement (the Dawson statement) and was subjected to cross-examination and re-examination. The Council called Mr Tokley to give expert evidence. He gave evidence in chief by way of a written statement (the Tokley statement) and was subjected to cross-examination and re-examination.
The Development Plan addresses dwelling site area differently in respect of each policy area in their respective Principles of Development Control (Principles). One policy area is Regeneration Policy Area 16 (Policy Area 16). The provisions relating to Policy Area 16 (the Policy Area 16 section) include Principle 4 (PDC4) which addresses dwelling site area.
The Development Plan addresses dwelling open space generically for all residential development in the Residential Development part of the General Section (the Residential Development section). Principles 15 to 23 address private open space. Principle 17 (PDC17) addresses the requirements for dwellings with ground level habitable rooms. Principle 21 (PDC21) addresses the requirements for dwellings above ground level without ground level habitable rooms.
The Development Plan addresses car parking generically for all dwellings in the residential zone in the Residential Zone part of the Zone Section (the Residential Zone section). Principle 7 (PDC7) addresses the minimum number of on-site car parking spaces (carparking).
Mr Tokley in his statement identified that the proposed development fell short of the dwelling site area, dwelling private open space and carparking specifications in the Development Plan applicable to two-storey residential flat buildings as summarised in the following table. Mr Dawson did not take issue with these figures.
Aspect Development Plan
Specification
Actual
Dwelling site area
PDC4
residential flat building
2 storey
200 m2 minimum
105 m2
Dwelling private open space
PDC21
above ground level
2 bedroom dwelling
11 m2
U1 – 11 m2
U2 – 11 m2
PDC17
ground level habitable rooms
dwelling less than 250 m2
35 m2 or 20 per cent site area
(whichever greater)
U3 – 26 m2
U4 – 24 m2
U5 – 19 m2
U6 – 17 m2
U7 – 35 m2
U8 – 14 m2
One space minimum dimension 4 metres
18
U3 – 2.5 m
U4 – 2.0 m
U5 – 2.5 m
U6 – 2.0 m
U7 – 2.5 m
U8 – 2.0 m
Carparking
PDC7
residential flat building
1.5 per dwelling plus 1 visitor space per 3 dwellings
15 spaces
8 spaces
On 2 August 2016 the Commissioner issued to the parties a formal memorandum in which he said that he proposed to allow the appeal and provided a draft set of conditions for the parties’ consideration and submissions. The parties negotiated agreement on some conditions and the Commissioner heard submissions about the balance.
In October 2016 the Commissioner delivered reasons for judgment and made orders allowing the appeal and granting development plan consent subject to 26 conditions.
Reasons of the Commissioner
The Commissioner drew a fundamental distinction between a residential flat building and student accommodation (whether in the form of a residential flat building or otherwise). The Commissioner said:
It is clear from Whitington, Morris, B Central, and elsewhere, that important factors and distinction between student accommodation and conventional openly available residential flat building dwellings, lies in the management regime and parameters typically adopted for student accommodation as a whole, and with a level of detail and communal facilities and in some cases services.
…
There are sound planning reasons in this matter for recognising the distinction with respect particularly to parking needs and requirements, as well as to the size and amount of floor space, private open space and communal open space, and the likely differing needs of relatively short stay students as opposed to longer or semi-permanent occupiers with an expected wider range of disparate needs.
Hence, I assess the proposal to be a student accommodation form of residential flat building development that gives rise to differing functional, operational and behavioural characteristics that justify such a descriptor and in my mind, clearly separate it from the use, operation and functional needs of conventional/standard residential flat building developments and their occupiers.
This is supported by SA case law and to an extent interstate law, particularly in Victoria (referenced above), and on the basis of the proposal details summarised above, I am satisfied and determine that the proposal is for student accommodation, a distinct sub-set within a broader “residential flat building” nomenclature as defined in the Development Regulations 2008 (SA), Schedule 1.
Whether a residential flat building or, as determined, a student accommodation form of residential flat building, the development would remain for consideration on merit in the relevant RZ and PA16. However, the distinction has ramifications for the weight to be applied to various residential flat building development guides in the Plan.
The Commissioner identified his overall approach in the following terms:
The first usual step in assessment is to establish, at least prima facie, acceptability of the land use in-principle and then if judged acceptable, to consider the various impacts and functionality aspects against the general provisions in the Plan.
In relation to the first step, the Commissioner said:
Given the RZ guidelines, particularly Objectives 1 and 2, and Principles 1 and 2, the proposed residential land use, with small, near self-contained “dwellings” – except a shared laundry and storage of bicycles and goods – for the occupation and use by students undertaking or just prior to, or as recent graduates of, secondary or tertiary educational studies, clearly meets those land use guides.
Furthermore and more specifically, the applicable PA16 guidelines in Objectives 4, 6 and 9, and Principles 1 (with student accommodation specifically encouraged) and 2 are all favourable to such residential use of higher density.
The Desired Character statement for PA16 envisages:
… a wide range of dwelling types to meet a variety of accommodation needs for public housing tenants and the private housing sector.
It is clear to me, as it was for both planning witnesses, that the student accommodation residential land use, at medium densities, greater than existing patterns, clearly is acceptable in-principle and meets the land use intent of the Development Plan primarily enunciated through the RZ and PA16 guidelines.
The Commissioner then turned to consider functionality, impacts and other considerations. In relation to carparking, the Commissioner said:
On-site provision of parking spaces comprises 8 specified and dedicated spaces for the 8 individual dwelling units. Notwithstanding the RZ Principle 7 guide for car parking space provision for standard dwellings in residential flat buildings of 1.5 spaces per dwelling (plus visitor spaces at 1:3 dwellings) and having regard to case authorities for other student accommodation facilities in a suburban setting, I assess that such number will be adequate in conjunction with the requirement in the licence to occupy agreement and house rules that there be ownership of no more than one vehicle per unit occupier(s).
…
With respect to visitor parking provision, whilst it is traditional to require and provide some off-street parking for visitors to conventional, permanent occupancy residential use, or indeed community, education and most other land uses, the circumstances and demand for visitor parking with a student accommodation use are, in my experience (having regard to the facts and evidence in other case authorities both in this State and interstate, cited above) likely to be quite different.
No visitor parking is allocated on the site, although occupiers of one or more of the dwellings may not own a vehicle but rather allow their allocated space to be utilised by their visitors. I assess there to be a likely lower demand for off-street parking either by visitors to (or student occupiers of) the proposed facility and a higher propensity to use alternative transport modes, such that the absence of dedicated on-site visitor parking is not a sufficient weakness or negative for the development proposal to be refused on that basis.
In relation to dwelling private open space, the Commissioner said:
Turning to consideration of open space provision and firstly private open space for each dwelling unit. As depicted on the proposal plans all dwelling units are to have dedicated private open space and whilst some are quite narrow at 3 metres in width, others have greater dimensions. Elevated courtyards with dimensions of 2.9 metres by 3.8 metres and two small balconies are also beneficial. At the rear of dwelling unit 7 there is a larger area of some 3.2 by 5.8 metres, and of 1 by 7 metres as well as a balcony of 6.75 by 2.5 metres. Whilst the provision of private open space is not generous, it would not be expected or required by relatively short-stay student accommodation occupiers. I assess it to be adequate for the purpose – though not necessarily meeting guidelines for residential flat buildings with semi-permanent occupancy.
In relation to conditions, the Commissioner gave reasons for accepting submissions from one or other of the parties on contested matters falling within four key areas.
Student accommodation justification for shortfalls
I address grounds 1 to 5 collectively because the Council argues the appeal on a holistic basis in respect of these grounds rather than relying on each ground independently.
The Council contends that the only justification advanced by the Commissioner for the substantial shortfalls in dwelling private open space and carparking (and, if considered by the Commissioner, dwelling site area) was that the accommodation was intended for students and the conditions were crafted to ensure that no one but students occupied the units. The Council contends that the Commissioner erred in treating “student accommodation” as a discrete subset of residential flat buildings merely because the units were intended to be occupied by students.
WCP contends that the inclusion of “student accommodation” as one of the forms of development envisaged in Policy Area 16 justifies a greater departure from the Development Plan’s specifications for dwelling private open space, carparking and dwelling site area than would be warranted for residential flat buildings not used for student accommodation. WCP contends that the Council accepted that this was the position before the Commissioner and is not entitled to advance on appeal a case not run in the court below.
The Council takes issue with both of these contentions. The Council contends that the reference to “student accommodation” as one of the forms of development envisaged in Policy Area 16 is to recognised special purpose student accommodation variously known as boarding houses, student dormitories or residence halls.
Availability of contention on appeal
In his report, statement and oral evidence, Mr Tokley accepted that each of the specifications in the Development Plan in respect of dwelling private open space, carparking and dwelling site area for residential flat buildings is in the nature of a guideline rather than specifying a pre-requisite to the grant of development plan consent. Mr Tokley accepted, at least in respect of car parking, that it is appropriate to have regard to the particular circumstances including an intention that tenants of a residential flat building will be students with lower car parking needs in considering whether the carparking provided is adequate notwithstanding that it is less than the number specified in the Development Plan. However, Mr Tokely consistently expressed the opinion that the proposed development was to be characterised as for residential flat buildings, that this attracted the specifications in the Development Plan relating to dwelling private open space, carparking and dwelling site area and the mere fact that it was intended that the flats be occupied by students did not justify a wholesale departure from those specifications. The Council’s case before the Commissioner was conducted in accordance with the evidence given by Mr Tokley.
On appeal, the Council draws the same distinction between allowing a degree of leniency as to the precise amount of dwelling private open space, carparking and dwelling site area specified in the Development Plan on account of an intention that the tenants of a residential flat building be students (which involves a planning judgment) and a wholesale departure from those specifications on the basis that student accommodation is different in kind to generic residential flat building accommodation (which involves an error of principle). While it might be difficult to draw a precise line at the margin between leniency and wholesale departure, the Council’s case both at first instance and on appeal has consistently been that the proposed development clearly falls on the wholesale departure side of the line.
I reject WCP’s contention that the argument advanced by the Council on appeal is not open to it due to the manner in which it ran its case in the Environment Court.
The meaning and significance of student accommodation
The Desired Character for Policy Area 16 includes the following:
This area has been identified for regeneration because many of the dwellings and other infrastructure within the area are nearing the end of their economic life. Within the context of the Council area and the surrounding region this policy area represents a key opportunity to achieve strategic goals such as improved living conditions, environmental outcomes and community services and infrastructure, as well as provide economically viable housing choices for the changing demographics of our population and make more efficient use of land and infrastructure within the Metropolitan area.
New development will occur at densities greater than the current density housing to increase the number of dwellings and the number of residents within the policy area and justify the improvement of infrastructure and other services.
This policy area encompasses areas which were recently redeveloped or are suitable for redevelopment where the density of new development will substantially exceed that of existing low density housing. Much of the existing development in the area comprises older public housing, primarily detached or semi-detached dwellings of various age and construction materials.
The desired character of the policy area is derived from high quality and distinctive living environments at a higher density compared to that typical of the original dwelling stock in the area. It will be characterised by integrated development at low–medium and medium densities, with a wide range of dwelling types to meet a variety of accommodation needs for public housing tenants and the private housing sector.
In keeping with the Desired Character statement, the Objectives for Policy Area 16 include improved quality of living environments, housing and environmental outcomes (objectives 2, 3 and 4) and increased dwelling densities and population, higher dwelling densities in close proximity to centres and public transport routes and more efficient use of land (objectives 6, 7 and 9).
PDC1 for Policy Area 16 provides:
1 The following forms of development are envisaged in the policy area:
· affordable housing
· dwelling including a residential flat building
· student accommodation
· supported accommodation.
PDC4 for Policy Area 16 governs dwelling site area and provides:
4A dwelling should have minimum site area (and in the case of residential flat buildings, an average land area per dwelling) and a frontage to a public road or allotment depth not less than that shown in the following table:
Dwelling Type Additional circumstance
Site Area (square metres)
Minimum frontage to a non-arterial road (metres)
Minimum frontage to an arterial road (metres)
Minimum depth (metres)
Detached
250 minimum 9
12
20
Semi-detached
220 minimum 8
12
20
Group
One storey
250 minimum
18
18
45
2 or more storeys
200 minimum
18
18
45
Residential flat building
One storey
250 average
18
18
45
2 storey
200 average
18
18
45
3 storey
150 average
18
18
45
Row
170 minimum 7
12
20
As observed above, the Residential Development section addresses dwelling open space generically for all residential development. Principles 15 to 23 address private open space. They include the following Principles:
15Private open space (available for exclusive use by residents of each dwelling) should be provided for each dwelling and should be sited and designed:
(a) to be accessed directly from a habitable rooms of the dwelling
(b) to be generally at ground level (other than for residential flat buildings) and to the side or rear of a dwelling and screened for privacy
…
(d) to minimise overlooking from adjacent buildings
…
(i)to minimise noise or air-quality impacts that may arise from traffic, industry or other business activities within the locality
(j) to have sufficient area and shape to be functional, taking into consideration the location of the dwelling, and the dimension and gradient of the site.
…
17Dwellings in the Residential Zone, particularly those with ground-level habitable rooms should include private open space that:
(a) conforms to the requirements identified in the following table:
Site area of dwelling Minimum area of private open space
Provisions
250 square metres or greater 20 per cent of site area Balconies, roof patios, decks and the like, can comprise part of this area provided the area of each is 10 square metres or greater.
One part of the space should be directly accessible from a living room and have an area equal to or greater than 10 per cent of the site area with a minimum dimension of 5 metres and a maximum gradient of 1-in-10.
Less than 250 square metres
20 per cent of the site area or 35 square metres, whichever is the greater
Balconies, roof patios and the like can comprise part of this area provided the area of each is 8 square metres or greater.
One part of the space is directly accessible from a living room and has an area of 16 square metres with a minimum dimension of 4 metres and a maximum gradient of
1-in-10.(b) has a minimum dimension of 2.5 metres.
…
20A minimum of 70 per cent of the private open space provided should be open to the sky and free from roofed structures such as verandas.
21Dwellings located above ground level should provide private open space in accordance with the following table:
Dwelling type
Minimum area of private open space
Studio (where there is no separate bedroom)
No minimum requirement
One bedroom dwelling
8 square metres
Two bedroom dwelling
11 square metres
Three + bedroom dwelling
15 square metres
22Private open space located above ground level should have a minimum dimension of 2 metres and be directly accessible from a habitable room.
As observed above, the Residential Zone section addresses carparking generically for all dwellings in the residential zone. PDC7 includes the following provision.
7Dwellings should be designed within the following parameters:
Parameter Value
… … Minimum number of on site car parking spaces (one of which should be covered)
2 per detached, semi-detached, or row dwelling containing up to 3 bedrooms.
3 per detached, semi-detached, or row dwelling containing 4 or more bedrooms.
1.5 per dwelling plus 1 visitor space per 3 dwellings for a group dwelling or residential flat building.
There are 11 policy areas within the residential zone. Principle 1 for each policy area identifies forms of development envisaged in that policy area. Five policy areas envisage only residential accommodation in the form of detached dwellings[4] or detached and group dwellings[5] or detached and semi-detached dwellings.[6] The remaining six policy areas envisage a range of dwelling types (detached, semi-detached, group, row and residential flat building). These six more diverse policy area generally include also “affordable housing” and “supported accommodation”.[7]
[4] Cement Hill (Policy Area (PA10), Racecourse (PA15) and Watercourse (PA19)
[5] Hills (PA11).
[6] Residential Character (PA17).
[7] Medium Density (PA12), Northern (PA13), Oaklands Park (PA14), Regeneration (PA16), Southern (PA18) and Worthing Mine (PA20) (PA20 does not include “affordable housing”).
It is common ground on appeal that references in the Development Plan to “affordable housing” reflect a State-wide State Government initiative to promote inexpensive dwellings in various forms. Affordable housing is addressed by Principle 31 of the Residential Development section of the Development Plan which requires affordable housing to be complementary to “other dwellings” within the development, thereby confirming that affordable housing comprises dwellings in various forms.
Supported accommodation is addressed by the Supported Accommodation part of the General Section (the Supported Accommodation section) of the Development Plan. Principle 1 of that section (PDC1) shows that supported accommodation includes “nursing homes, hostels, retirement homes, retirement villages, residential care facilities and special accommodation houses”. These types of accommodation involve substantial communal areas and facilities and human care and/or support. They are different in nature to dwellings although it is possible that they might incorporate dwellings as part of the overall supported accommodation.
The only policy area which includes “student accommodation” as one of the forms of accommodation envisaged is Policy Area 16. The fundamental issue of construction as between the Council and WCP is whether “student accommodation” connotes communal accommodation that of its nature facilitates the needs of students as opposed to general members of the community or any form of accommodation (including any form of dwelling) intended to be used by students.
In approaching the construction of the Development Plan, I observe that it is not to be construed in the same manner, and in particular with the same rigour, as a statute but rather as a practical planning document. It remains appropriate to construe a development plan by reference to the text, context and evident purpose of the relevant provision, albeit with a higher degree of flexibility than in respect of a statute.
The text and immediate context of the reference in PDC1 to student accommodation indicates that it is reference to accommodation that is of its nature adapted to use as student accommodation rather than merely being a dwelling intended to be used by students. The use of the noun “accommodation” as opposed to an alternative such as “housing”, while not determinative, tends to suggest that the reference is to a form of accommodation that is not a simple conventional dwelling. This is particularly reinforced by the conjunction with the words “supported accommodation” which refer to accommodation specially adapted to the needs of the supported persons. The use of the adjective “student” in conjunction with the noun “accommodation” tends to suggest that the accommodation is accommodation specially adapted to the needs of students.
The fact that student accommodation is mentioned only in Policy Area 16 and not in the other policy areas in which students undoubtedly also reside supports the construction that the reference to “student accommodation” in Policy Area 16 is to special purpose accommodation rather than merely to dwellings in which students happen to reside.
The evident purpose of student accommodation being included as a form of development envisaged in Policy Area 16 is to show that it is a distinct form of development (distinct from dwellings) envisaged, if not encouraged, in that policy area. If the reference to student accommodation merely encompasses ordinary dwellings that happen to be occupied by students, there is no obvious rationale for singling out student accommodation as a separate form of development envisaged in the policy area. The fact that a dwelling might be used by students is a fact that can be taken into account in any event on any application for development approval. However, the mere fact that a dwelling might be used, or intended to be used, by students is not an evident reason to justify wholesale departures from the objectives and principles applicable to residential development.
Although different provisions of different development plans must be construed by reference to their own text, context and evident purpose, there is a broad analogy between the reference in the present case to “student accommodation” and the reference to “tourist accommodation” considered by Debelle J in Paradise Development (Investments) Pty Ltd v District Council of York Peninsula.[8] In that case, the relevant development plan contained a principle of development control referring to “tourist accommodation”. The developer sought development approval to construct two 2-storey buildings comprising townhouses. Leaving aside the intended letting of the townhouses to tourists, they comprised either residential flat buildings or row dwellings, each of which was a non-complying use. Debelle J held that the townhouses did not comprise tourist accommodation within the meaning of the relevant principle of development control. Debelle J said:
Viewed objectively, the proposed development is not of the kind that falls under the heading of tourist accommodation, even if that expression, when used in the provisions in this zone, includes lodging for tourists. Tourist accommodation refers to the provision of lodgings by a hotel, motel, boarding house, backpacker’s hostel, holiday cabins or the like. It does not refer to substantial three bedroom apartments containing all the paraphernalia of a dwelling including kitchen, living area and dining room. Apartments of this kind might be used regularly or occasionally to provide lodgings for tourist but they are not tourist accommodation, no matter what meaning is given to that expression.[9]
[8] [2008] SASC 139, (2008) 159 LGERA 211.
[9] At [37].
The Commissioner cited three first instance decisions in support of the distinction drawn by him between student accommodation and conventional residential flat buildings and dwellings. WCP contends that these decisions establish that the fact that residential premises are to be used for the accommodation of students is a relevant factor justifying departure from applicable specifications in the relevant development plan.
In Whitington v City of Burnside,[10] the developer applied for development plan consent for a change of use of two existing buildings from aged care facility to student accommodation. One building comprised a 31 bed nursing home on the first and second floors and a 70 bed hostel on the third to seventh floors. The other building comprised ten independent living units on two floors. The Environment Court said that the buildings comprised “a form of accommodation facility which may be described as a boarding house or a multiple dwelling.” In reality, the change of land use was confined to changing the occupants from aged persons to students but the nature of the accommodation was not to change. The only expert evidence called about parking was given by Mr Young who expressed the unchallenged opinion that the 27 on-site parking spaces proposed were sufficient. There is no indication in the Court’s reasons that there was a provision in the City of Burnside Development Plan that specified a minimum number of car park spaces for boarding houses. The Environment Court allowed an appeal by objectors to the proposed development to the extent of substituting a different set of conditions. There is nothing in the decision of the Environment Court that suggests an imprimatur to wholesale departures from applicable specifications in respect of residential flat buildings merely because they are intended to be occupied by students.
[10] [2003] SAERDC 13.
In B Central Development Group Pty Ltd v Stonnington City Council,[11] the developer had previously constructed a five storey building described as “student housing” including 24 apartments. The Stonnington Planning Scheme contained detailed provisions addressing student housing and required, amongst other things, communal areas to be incorporated. The developer applied for approval to replace the common room on the ground floor with a cafe. The Council refused the application and the refusal was upheld on appeal to the Victorian Civil and Administrative Tribunal because it would have removed an important communal area. It is apparent from the description of the facility given by Member Naylor that it was akin to an aged care facility or retirement village. Member Naylor said:
Student housing has long been recognised as a particular type of accommodation to be provided that has differing needs to other types of accommodation such as a typical residential apartment building. It is common for student housing to provide a level of communal facilities for the benefit of those residing within the development and, I note that this is not unlike what one would expect to find in other types of specialised residential accommodation such as an aged care facility or a retirement village development.[12]
[11] [2009] VCAT 2265.
[12] At [21].
Member Naylor said:
It is well acknowledged that the standard of accommodation provided for students in the form of size of apartments, car parking provision and the extent of private open space provision can be less for a development such as this than a typical residential apartment development. But, there remains an expectation that there will be other facilities, common facilities, that will be made available to the student residents. I am of the opinion that by approving a student housing development with limited car parking such as is the case here, then it is not an unreasonable expectation that the development will be balanced by providing a reasonable level of amenity or liveability to the students of the development through the provision of private and communal space.[13]
[13] At [30].
It is clear that in at least some Victorian planning schemes, such as the one considered by Member Naylor, detailed provisions are made for “student housing” but it is not clear what provisions are made in relation to dwelling site area, carparking or dwelling private open space. In the circumstances, the approach in Victoria cannot be transposed automatically to South Australia or more specifically to the Marion Development Plan. In any event, the observation by Member Naylor extracted at [51] above does not suggest an imprimatur to wholesale departures from applicable specifications in respect of student housing.
In Salandra v City of West Torrens,[14] the developer was granted development planning consent to construct a two storey building comprising 32 bedrooms for individual habitation by students together with shared lounge, bathrooms, stores, dining room/kitchen and laundry. The accommodation did not comprise dwellings, whether in the form of residential flats or otherwise. Commissioner Green characterised the accommodation as student accommodation, a boarding house, a lodging house or multiple dwelling. As such, the City of West Torrens Development Plan did not prescribe dwelling site areas or carparking. Accordingly, Commissioner Green assessed questions of density and car parking from first principles. Commissioner Green varied the conditions of approval but otherwise dismissed the appeal. There is nothing in the decision of the Environment Court that suggests an imprimatur to wholesale departures from applicable specifications in respect of residential flat buildings merely because they are intended to be occupied by students.
[14] [2011] SAERDC 1.
In Morris v City of West Torrens,[15] the developer sought development plan consent to construct a four storey building on South Road at Keswick that comprised retail on the ground floor; ten student apartments on one half of the first floor and retail/offices on the other half; 20 student apartments on the second floor and a communal deck on the roof. Commissioner Hamnett dismissed the appeal because residential development was not appropriate on South Road at Keswick and the building exceeded the relevant height limit. There was apparently no provision in the City of West Torrens Development Plan addressing student accommodation. Commissioner Hamnett made some observations obiter concerning dwelling size, private open space and car parking. Commissioner Hamnett referred to decisions in Victoria about student housing and said:
There is a trade-off, in other words, between, on the one hand, the typically smaller size of student apartments, often associated with a reduced amount of private open space, and the provision, on the other, of areas of communal space within student accommodation developments which provide opportunities for increased social interaction.[16]
[15] [2011] SAERDC 32.
[16] At [24].
Commissioner Hamnett also said:
It seems to me, therefore, that it is reasonable as a matter of general planning principle to distinguish student accommodation from other forms of residential development and to accept that typical student accommodation developments will have reduced amounts of car parking, smaller rooms or apartments and communal areas intended to promote or facilitate social interaction. A management regime, which includes limits on car ownership or use, as well as rules to limit noise to avoid nuisance to other residents and neighbours, will also be characteristic of student accommodation developments, as will some form of on-site supervision.[17]
[17] At [28].
However, Commissioner Hamnett ultimately considered that the provisions of the Development Plan relating to private open space should not be applied less strictly in the case of student housing. Commissioner Hamnett said:
I do not accept, however, that the provisions of the Development Plan relating to private open space should be applied less strictly in the case of student apartments, on the argument that students have different (that is to say, more limited) needs in this regard. I much prefer Ms Barnes' general opinion that students are entitled to the same level of amenity as anyone else and a reduction in the amount of private open space available to them can only be justified if it is traded off in some way against additional communal space.[18]
[18] At [53].
Given that questions of adequacy of apartment size, car parking and private open space did not arise for decision given the inappropriateness of residential development and height of the building, this decision does not stand as authority in support of the proposition advanced by WCP in the present case. On the one hand, it is not necessarily inappropriate as a matter of general planning principle to take into account the needs of the prospective occupants of residential premises. On the other hand, the mere fact that the occupants of a residential flat building are intended to be students does not justify a wholesale disregard of the specifications contained in the relevant development plan applicable to residential flat buildings. To the extent that the passage extracted at [56] might be seen as suggesting otherwise, I would not endorse it.
In conclusion, the reference in the Development Plan to “student accommodation” is a reference to special purpose accommodation in the nature of a boarding house rather than to a residential flat building that happens to be occupied by students.
Error of law by the Commissioner
In relation to dwelling private open space and car parking, it is clear from the Commissioner’s reasons that the Commissioner would not have granted development plan consent but for the fact that the flats were to be occupied by students. The Commissioner expressly said that the distinction between student accommodation and generic residential flat buildings had ramifications for the weight to be applied to the various guides in the Development Plan and explicitly relied on the fact that the flats were to be occupied by students in assessing that the provision of on-site parking was acceptable and that the dwelling private open space was adequate for the purpose. Moreover, the fact that the Commissioner considered it essential that conditions be included limiting residents to defined types of students demonstrates the essentiality for approval of the use of the flats by students. In relation to dwelling site area, on the assumption that the Commissioner took into account the shortfall as against the specification in the Development Plan, it is evident that the Commissioner could only have considered that this was justified because the flats were to be occupied by students.
As the Council accepts, the mere fact that the proposed development involved less dwelling site area, less dwelling private open space and less car parking than specified for residential flat buildings in the Development Plan does not entail either that development plan consent must be refused or that the Commissioner erred in granting development plan consent. For example, if the dwelling site area had been say 180 square metres, being 90 per cent of the specification, this would not necessarily have required refusal of development plan consent.
Similarly, if the proposed development incorporated say 13 car park spaces, being 87 per cent of the specification, this would not necessarily have required refusal of development plan consent. Indeed, the Council accepted before the Commissioner that empirical evidence indicated that it is generally sufficient to provide one, rather than one and a half, car park spaces per flat when flats are to be occupied by students and, provided that sufficient car park spaces were provided for visitors, this would not necessarily have required refusal of development plan consent. However, the real concern of the Council was not about the adequacy of car park spaces for the residents but rather about on site visitor parking, for which no provision at all was made.
Similarly, if the proposed development incorporated private open space for each of units 3 to 8 of 30 square metres, being 86 per cent of the specification, this would not necessarily have required refusal of development plan consent. Principle 23 of the Residential Development section (PDC23) provides that communal open space may be substituted for private open space for the purpose of meeting the dwelling private open space specification provided that certain conditions are met (the substitution principle).[19] There was some debate on appeal about the extent of communal open space contained in the proposed development and whether it meets the conditions for substitution. However, the substitution principle need not be considered because the Commissioner did not make any assessment of substitution, considering the adequacy of private open space and communal open space separately and independently of each other.
[19] The wording of PDC23 is inelegant and, read literally, might suggest that it addresses substitution for communal open space by an equivalent area of private open space, but it is common ground on appeal that this would render the principle absurd and is not its intention or effect.
In respect of each of the three parameters of dwelling site area, dwelling private open space and carparking, the Council accepts that it is not an error of principle to take into account that flats are intended to be occupied by students provided that there is not a fundamental departure from the relevant specifications in the Development Plan.
In the case of the proposed development, there were fundamental departures in respect of each of dwelling site area, which was approximately half of the specification; dwelling private open space, which was approximately half of the specification for three of the units; and carparking, which made no provision at all for visitor car parking. In the absence of these departures being justified by a fundamentally different approach countenanced by the Development Plan to residential flat buildings that happen to be occupied or intended to be occupied by students, the basis for the development plan approval granted by the Commissioner is removed.
WCP points to the provisions in the Residential Development section and the Policy Area 16 section that contemplate residential development in appropriate areas at higher than existing densities, especially in areas close to regional centres and public transport. However, when dwelling site areas are specified in the Residential Zone section, the specification takes into account the nature of the policy area. Thus, for example, the specification for detached dwellings in the Hills Policy Area is at least 700 square metres; whereas it is only 250 square metres in Policy Area 16. The specification for residential flats in the Northern Policy area is at least 300 square metres; whereas it is only 200 square metres for a two-storey building in Policy Area 16. This is not to say that some departure from the specification might not be justified in the case of a development near the regional centre and public transport, but the Commissioner did not rely on this as justification for any departures and in any event the departure from the dwelling site area specification is greater than could be justified by this consideration.
This ground of appeal is established. The Commissioner made an error of law in accepting or countenancing a wholesale reduction in dwelling site area, dwelling private open space and carparking from that specified in the Development Plan merely because the residential flat buildings were intended to be occupied by students. This error vitiates his decision independently of the other two issues addressed below.
Consideration of dwelling site area
Given my conclusion, it is not strictly necessary to address ground of appeal 6. However, as there is an interrelationship between this ground of appeal and the grounds of appeal considered in the previous section, I address also this ground of appeal.
In his reasons for judgment, the Commissioner did not compare the dwelling site area under the proposed development (105 square metres) with the specification set out in the Development Plan (200 square metres), identify the shortfall or analyse the consequences of the shortfall. The Commissioner did set out at paragraph [10] the fact that the average site area per dwelling was 105 square metres and set out in Attachment A to his reasons an extract from Policy Area 16 PDC4 showing minimum site area of 200 square metres for a two-storey residential flat building.
The Council contends that the Commissioner erred in law in failing to assess the proposed development’s failure to meet the dwelling site area specification in the Development Plan. The Council points to the importance of dwelling site area as a relevant consideration required to be taken into account in assessing whether development plan consent should be granted and to the contrast between the Commissioner’s analysis of carparking and dwelling private open space with a lack of any analysis of dwelling site area.
WCP contends that, while the Commissioner did not explicitly address the dwelling site area shortfall or include any analysis of it in his reasons for judgment, it should be inferred that he did not overlook the shortfall and reached the conclusion that it should not result in refusal of development plan consent for reasons which he did not articulate in his reasons for judgment. WCP points to the fact that the shortfall in the dwelling site area of 95 square metres was clearly identified in the statements by Mr Tokley and Mr Dawson, the Commissioner referred at paragraph [10] of his reasons to the actual average site area of 105 square metres, the Commissioner extracted at Attachment A to his reasons Policy Area 16 PCP4 showing minimum site area of 200 square metres for a two-storey residential flat building and the Commissioner as an experienced planner is unlikely to have overlooked this consideration.
In assessing the Commissioner’s reasons, I recognise that development plans are not to be construed with the same rigour as statutes, planning precepts frequently operate as guidelines rather than black letter law[20] and the Commissioner is not a lawyer and is not expected to deliver reasons for judgment in the same manner as a judge. Nevertheless, the difference between the specification in the Development Plan and the actual dwelling site area was so great that it was a consideration that the Commissioner was required to take into account. Adequate reasons required the Commissioner to identify explicitly the quantum of the difference, assess its consequences and give reasons why the development merited approval notwithstanding the difference. This matter, coupled with the extent to which the Commissioner did address the comparison in respect of carparking and dwelling private open space, leads to the inevitable inference that the Commissioner overlooked this aspect of the case notwithstanding that the issue had been identified by the parties.
[20] See South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35 at 37-38 per King CJ (with whom Perry J agreed) and 40-41 per Prior J; Angaston District Council v Hamilton (1995) 64 SASR 110 at 117-118 per Debelle J; Town of Gawler v Impact Investment Corporation Pty Ltd [2007] SASC 356, (2007) 99 SASR 115 at [22] per Doyle CJ and [79]-[82] per Bleby J.
This ground of appeal is established. Given the importance of dwelling site area as a mandatory relevant consideration, the failure of the Commissioner to address it amounts to an error of law vitiating his decision independently of the student accommodation issue addressed above.
Conditions as illegitimate means to an end
Given my conclusion, it is not strictly necessary to address ground of appeal 7. However, as there is an interrelationship between this ground of appeal and the grounds of appeal first considered above, I address also this ground of appeal.
The Council contends that the Commissioner erred in relying on conditions as a means of constraining the occupation of the premises to students and the potential planning impacts of the development.
The Council does not put this contention as an independent contention. The Council accepts that, if a reference in the Development Plan to student accommodation encompasses residential flat buildings occupied by students and justifies wholesale reductions from specifications in the Development Plan otherwise applicable to residential flat buildings, it would be appropriate – and indeed necessary – to fashion and impose conditions confining occupation to that of students. However, the Council contends that the fact that it was necessary for the Commissioner to impose conditions confining occupation to that of students is an indication that the Commissioner had erred at an earlier stage of the process in granting development plan consent in principle.
In Kipa Freeholds Pty Ltd v Development Assessment Commission,[21] the developer applied for development plan consent to construct a large entertainment complex at Modbury. The Commission imposed a condition on the development that the maximum number of people in the complex should not exceed 380 during the day and 740 at night and identified the purpose of this condition as being to regulate the amount of car parking generated by the development and prevent overflow parking in adjoining areas. Debelle J held that the imposition of the condition was invalid because it sought to restrain the very nature and essence of the development,requiring it to be used in a way significantly different from the use intended. Debelle J said:
The power to impose conditions must not obscure the first question to be determined by the planning authority, namely, whether the proposed development is a suitable and appropriate use of the land. It is only after that question has been answered affirmatively that the planning authority should turn its attention to appropriate conditions. …. As Jacobs J said in Beer v South Australian Planning Commission:
“The primary question with which planning authorities are concerned is the question of land use, whether a proposed development, including a change of use, is compatible with the relevant provisions in the Development Plan and the orderly and proper planning of the locality. It is only when that question has been answered in the affirmative that the authority should concern itself with questions of management, and indeed there has been an alarming trend on the part of some planning authorities to use planning conditions to bring the management of the land, once planning approval has been given, under planning control and in some cases thereby to usurp the functions of other government or semi-government authorities.”
…
The power to impose conditions is vested in a planning authority for the purpose of enabling it to regulate incidental aspects of the development so that it does not have an adverse effect upon the amenity of the neighbourhood of the development, either in the course of construction or when the development is completed. And so it is that conditions frequently deal with such matters as landscaping, stormwater drainage, advertising and other signs, and fencing. Not infrequently, conditions will impose a constraint upon the use to be made of the proposed development in the form of a restriction upon hours of use or a limit as to the level of noise. But there is an important difference between conditions of that nature, which deal with incidental aspects of the proposed development and the intended use of the land, and conditions which restrain the very nature and essence of the development in a way which requires the development or the land to be used in a way significantly different from the use or uses intended. The power to impose conditions is not provided to enable a planning authority to alter the nature of the proposal and hedge it about with conditions which are unworkable, unenforceable, and seek to confine the development in a kind of strait jacket which will constrain the development from being used in the ordinary way. Resort to the use of such conditions is tantamount to an acknowledgment that the proposed development is inappropriate for the subject land. If a planning authority imposes this latter kind of condition, it is using the power to impose conditions for a purpose which was not intended because it goes beyond incidental aspects of the intended land use and strikes directly at the intended land use.[22]
[21] [1999] SASC 53.
[22] At [38]-[39]. (Citations omitted)
In McKenzie Constructions Pty Ltd v Development Assessment Commission,[23] the Full Court dismissed the developer’s appeal against the decision of the Debelle J. Bleby J (with whom Doyle CJ and Wicks J agreed) endorsed the general principle articulated by Debelle J extracted in the previous paragraph and upheld its application to the facts of that case, without agreeing with Debelle J’s reasoning on the particular application to the facts.
[23] [1999] SASC 386, (1999) 74 SASR 539.
In the present case, the imposition of a condition constraining the occupation of the premises to students has an air of artificiality. If the premises are fit for occupation by students, it is not evident why they would not also be fit for occupation by some other categories of other tenants who may be expected to have limited needs or limited means. Considered as a matter of built form, there is nothing about the proposed building that makes it fit for students and unfit for other members of the population. The imposition of this condition supports the conclusion already reached that the proposed development is not compatible with the relevant provisions in the Development Plan. The imposition of this condition seeks to confine the development in a strait jacket which will constrain the development from being used in the ordinary way.
Conclusion
The Commissioner erred in law in reaching the conclusion that it is appropriate to grant development plan consent to the proposed development. I allow the appeal and set aside the development plan consent granted by the Commissioner. I will hear the parties as to further consequential orders.
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