Development Assessment Commission v A & V Contractors Pty Ltd - [2011] SASCFC 21

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
DEVELOPMENT ASSESSMENT COMMISSION v A &V CONTRACTORS PTY LTD
[2011] SASCFC 21
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice Kourakis)
1 April 2011
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - EXISTING USES - CONTINUANCE OR CHANGE OF USE - GENERALLY
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENTAL, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - RIGHT AND AVAILABILITY OF APPEAL
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - PLANNING SCHEMES AND INSTRUMENTS - SOUTH AUSTRALIA - GENERALLY
Appeal from Environment, Resources and Development Court (ERD Court) - existing use of land - whether proposed use within existing use or change of use - if change of use whether change of use non-complying - if non-complying use whether proposed development reasonable development of pre-existing use entitling respondent to merits assessment before the Development Assessment Commission and appeal to ERD Court - whether ERD Court had jurisdiction - whether if ERD Court had jurisdiction it otherwise erred in law in disposition of appeal.
Held - appeal allowed - proposed development is change of use - change of use non-complying development - proposed development - cannot be reasonable development of existing use - ERD Court did not have jurisdiction - ERD Court did not otherwise err in law.
Development Act 1983 (SA) s 3, s 4, s 33, s 33(1), s 33(1)(a), s 33(4a), s 34(1)(b), s 35(2), s 35(3), s 35(5), s 37; Development Regulations 2008 reg 24, reg 38, reg 38(2)(a)(i), Sch 8, Sch 22, Sch 10 cl 2(b); Planning Act 1982 (SA) s 47(9), referred to.
Ridley v Whipp (1916) 22 CLR 381, applied.
Paradise Developments Pty Ltd v The Nature Conservation Society of South Australia Inc (1993) 59 SASR 239; Wilson v Mitcham City Corporation and Mercedes College (1986) 130 LSJS 31; Mount Barker District Council v Palma (2002) 120 LGERA 182; Adelaide Hills Recycling Pty Ltd v Development Assessment Commission [2010] SAERDC 53; Town of Gawler v Impact Investment Corporation (2007) 99 SASR 115; Lakshmanan & Anor v City of Norwood & Anor (2010) 174 LGERA 428; KIPA Freeholds Pty Ltd v Development Assessment Commission & Ors (1999) 101 LGERA 414, discussed.
Courtney Hill Pty Ltd v South Australian Planning Commission & Ors (1990) 59 SASR 259, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"existing use", "change of use", "reasonable development of existing use", "planning merits assessed against development plans"

DEVELOPMENT ASSESSMENT COMMISSION v A &V CONTRACTORS PTY LTD
[2011] SASCFC 21
Full Court: Doyle CJ, Sulan and Kourakis JJ

DOYLE CJ: I agree with the orders proposed by Kourakis J. I would allow the appeal, set aside the decision of the ERD Court, and substitute an order dismissing the appeal to that Court.
SULAN J: I would allow the appeal and set…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Development Assessment Commission v A & V Contractors Pty Lt... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] SASCFC 21
Decision Date: 1 April 2011

CaseChat Overview and Summary

The Development Assessment Commission appealed to the Supreme Court of South Australia against a decision of the Environment, Resources and Development Court (ERD Court). The dispute concerned whether the proposed development by A & V Contractors Pty Ltd constituted a continuation of an existing use of land or a change of use. If it was a change of use, the Commission argued it was a non-complying development, and therefore not a "reasonable development of a pre-existing use" that would entitle the respondent to a merits assessment before the Commission and an appeal to the ERD Court. The central question for the Supreme Court was whether the ERD Court had jurisdiction to hear the appeal and, if so, whether it had erred in law in its disposition of the matter.

The legal issues before the Supreme Court were twofold. Firstly, it had to determine whether the proposed development by A & V Contractors Pty Ltd was an existing use or a change of use. Secondly, if it was a change of use, the Court needed to ascertain whether that change of use was non-complying development. The Court was also required to consider whether, if the development was non-complying, it could be characterised as a "reasonable development of a pre-existing use" such that the ERD Court would have had jurisdiction to conduct a merits assessment and hear an appeal.

The Supreme Court allowed the appeal, finding that the proposed development constituted a change of use and that this change of use was non-complying development. The Court reasoned that the processing of building waste, as proposed, was an additional activity beyond the existing lawful use of the land as a landfill. This industrial processing was not incidental to the landfill operation and therefore required consent. The Court further held that the proposed development could not be considered a reasonable development of the pre-existing use, particularly given the evidence regarding the land's unsuitability for horticultural production. Consequently, the Supreme Court concluded that the ERD Court did not have jurisdiction to hear the appeal and, therefore, did not err in law in its disposition of the matter.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

It follows that my conclusion on this question makes it strictly unnecessary to determine the appellant’s complaints of error in the ERD Court’s consideration of the merits of the appeal. However, it is appropriate to do so.Evidence that the land was not arable According to a report of Dr Schofield, a horticultural consultant, received into evidence in the ERD Court, about half of the land is taken up by the landfill and associated holding area. An area of about four hectares to the north of the landfill site which adjoins the private access road, is leased for potato production. Dr Schofield opined that the cultivation of potatoes would not be affected by the proposed development. In his opinion the condition of the soil in the area of the proposed development had been “affected” by the disturbance of the land resulting from the storage and moving of building materials over many years; the horticultural potential had been “diminished”. Dr Scholfield considered that the small area of the proposed development, less than two hectares, was not viable for market gardening in its own right. Dr Schofield acknowledged that he had not carried out any soil investigations and he accepted that the soil below the disturbed surface may be suitable for horticultural production; but he was “not confident” that the area could be sufficiently restored to allow it to be used for “viable horticultural production”. Mr Davids testified that he had tried to crop the area of the proposed development in 1960 but he “would have been too ashamed to show anybody the result”. He described the land as “hungry country” which was “sticky in winter and goes like concrete in summer”. He had tried two or three times to grow a crop with no success. After those attempts he used the land for grazing. He described the difference between the loam of the arable northern part of the land and the surface of the site of the proposed development as being like “chalk and cheese”. Mr Davids was asked in evidence in chief whether he thought it would be practicable or feasible to try to get to any sort of crop from the site of the proposed development. There was no objection to that question. He answered in the negative. In cross examination, Mr Davids accepted that the poor state of the site may have been due to its previous use but he also observed that there had never been a loam pit on the site of the proposed development. He confirmed that the area had produced a very poor yield of oats in the 1960s but accepted that he had not tested the PH levels of the soil. Mr Davids agreed that it may be possible to prepare or treat the soil to make it productive, and again emphasised the strong contrast between the “hard sand” in the area of the proposed development and the soil covering the remainder of the land. He testified that “soil down the bottom is of a different texture and I’m sure a soil analyst or agronomist could do a very interesting historical study, but for what purpose other than gaining knowledge”.

Decision

Reasons for decision

In Policy Area 1 landfill, light industry and service industries are non-complying developments.The decision of the Environment, Resources and Development Court The ERD Court rejected the respondent’s contention that the proposed processing of the building waste was an incident of operating a landfill. The ERD Court accepted that contemporary socio-economic circumstances demand high levels of recycling but continued:33.However it is our concluded view that, where a landfill operation seeks to recycle items or recover materials and that involves subjecting waste items to a treatment or mechanical process, the activity is likely to constitute an additional use of land, depending on what is proposed in the context of the existing lawful use. In this case, the processing proposed amounts to industrial processing as typically allowed in a Special Industry zone and we have concluded that it is an additional activity and thus requires consent.34.The planning experts (Ms J Nolan and Ms F Tummel) agreed that the use proposed is similar to or of an industrial nature. The inference here is that both planners agree that what is proposed is a use additional to the existing use of the land. …[4][4] A & V Contractors Pty Ltd v Development Assessment Commission [2010] SAERDC 36 at [33] – [34]. The ERD Court commenced its consideration of the merits of the proposed development by making the following findings about the suitability of the land for horticulture:39.Presently, the part of the land to be used in the proposal could not be used now or in the future for a purpose consistent with the objectives either for the policy area or the zone. That was the uncontested evidence of Dr Scholefield and Mr Davids. The topsoil and the underlying loamy soil have been permanently removed and a large proportion of the land below the original surface level, contains hard waste. There is a large cleared area, coinciding with a previously filled pit, with signs of sub-surface settlement on the site. The land, apart from the 4 ha of arable area north of the landfill site, is unsuitable for market gardening. …40.It seems that the only prospective primary production use on the southern part of the land would be grazing, but even that assumes the cessation of the landfill use. Our conclusion is that there is no present possibility of the land being used for any activity consistent with the Development Plan objectives.[5][5] A & V Contractors Pty Ltd v Development Assessment Commission [2010] SAERDC 36 at [39] – [40]. The ERD Court discussed the significance of those factual findings to the assessment of the merits of the proposed development against the Development Plan in the following paragraph:41.Paradise Developments Pty Ltd v The Nature Conservation Society of South Australia Inc (1990) 59 SASR 239 was cited in support of the proposition that failure of a proposed land use to be consistent with the objectives of the zone does not mean that consent has to be refused. The Supreme Court judgment directed a commonsense approach, namely that where it is clear that the Development Plan does not speak to the subject land, it is not appropriate to assess the proposal by a strict and literal reference to the primary purpose of the zone. In this case the land is unsuitable now and in the foreseeable future for market gardening or primary industry. However, that does not mean the objectives for the policy area and the zone can be disregarded. The land use should not interfere with the attainment of those objectives in the Policy Area and Zone generally.[6] (Emphasis added).[6] A & V Contractors Pty Ltd v Development Assessment Commission [2010] SAERDC 36 at [41].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.