Development Assessment Commission v A & V Contractors Pty Ltd
[2011] SASCFC 21
•1 April 2011
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 21Full 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 aside the decision of the ERD Court and substitute an order dismissing the appeal to that Court. I agree with the reasons of Kourakis J.
KOURAKIS J: The respondent operates a solid landfill depot on land known as Lot 4 Higgins Road Buchfelde (the land). The Gawler River forms the southern boundary of the land. The land has a frontage to the west on Higgins Road, which intersects with Two Wells Road. To the north of the land Higgins Road is a compacted gravel road but it is unmade, and little more than a track, where it runs along the boundary of the land. There is better access to the land from a compacted gravel access road from Two Wells Road. That road provides the only direct access from Two Wells Road to a dwelling on the land, and to another dwelling situated between the land and Two Wells Road.
The land comprises about 13.8 hectares. The dwelling is constructed on the eastern aspect of the land. The northern part of the land is used for horticulture. The landfill occupies about 5.5 hectares on the site of a former loam quarry, predominantly to the west of the land. Loam had been extracted from that site, down to an underlying Hindmarsh clay level, during the 1970s. From about the mid 1980s Joe Trimboli, a principal of the earthmoving firm G and VJ Trimboli, commenced use of the quarry as landfill for clean demolition waste. There is an office and weighbridge at the entry of the landfill.
On 18 December 1987 the District Council of Light approved a development, proposed by G and VJ Trimboli, which was described as a solid landfill depot. The approval was subject to a number of conditions. Relevantly to this matter, it was a condition that “the use of this consent shall be limited to the disposal of only building demolition materials (bricks, roof tiles, etc), concrete, soil and other non-putrescible material”. The original pit has now been refilled and a further 35,000 tonnes of waste is stockpiled on the site.
The respondent acquired the landfill operations from G and VJ Trimboli in 2002. A licence, which was granted to the respondent on 8 September 2004 by the Environment Protection Authority (the EPA), authorises it to operate a waste or recycling depot on the site. The respondent now wishes to crush the bricks and concrete from the stockpile and to sell the crushed product as a building material for use elsewhere. In that way the respondent would both earn additional income and reduce a waste management fee, which is levied on its stockpile by the EPA.
On 29 June 2005 the respondent’s solicitors applied for developmental approval to the Light Regional Council (Light) to vary the license to allow for “the processing and storage of waste material on the site”. Pursuant to reg 38(2)(a)(i) of the Development Regulations 2008 (the Regulations) the application was forwarded to the Development Assessment Commission (the DAC) which was the proper planning authority.[1] The DAC referred the application to the EPA for its consideration and advice pursuant to s 37 of the Development Act 1993 (the Act) and reg, 24 and Sch 8 and 22 of the Regulations. Pursuant to those provisions the EPA was empowered to direct the DAC to refuse the application.
[1] Development Act 1993 s 34(1)(b); Development Regulations 2008 reg 38, Sch 10, cl 2(b).
On 16 June 2006 the EPA directed the DAC to refuse the application, which it did on 20 June 2006. The respondent appealed against that refusal to the Environment, Resources and Development Court (the ERD Court). On 24 August 2007 consent orders were made. The consent orders included an order quashing the direction made by the EPA and substituting a direction that the DAC impose certain conditions if it approved the respondent’s application.[2]
[2] Because the appellant contends that the number and nature of the conditions imposed by the ERD Court are indicative of error it is convenient to set out the conditions required by the EPA:
I.The development must be undertaken in accordance with the plans and specifications contained in development application number 313/0417/05, except for as varied by any conditions that follow.
II.Dust shall be suppressed as necessary to ensure that dust generation from operations on the site (e.g. from vehicle movements, loading/unloading operations and crushing) do not cause a nuisance off-site.
III.All stormwater generated from the hard stand must drain to the dedicated stormwater management system.
IV.The stormwater management system comprising of a sediment trap and sedimentation pond must be constructed in accordance [with] plan 20060034_SITEPLAN_D.dwg including:
a.the height of the walls are 40.10 AHD;
b.the sedimentation basin is lined with a HDPE liner
V.All excavation, crushing and depositing of the material currently located on site must be completed within 18 months of the date of this approval.
VI.Truck movements on site must be limited to the hours of 7am to 7pm Monday to Saturday and 9am to 7pm Sunday and Public Holidays.
VII.The measured noise levels from the development (without adjustment) must not exceed the maximum permissible noise levels of 47dB(A) (day time between 7am and 10pm) and 40dB(A) (night time between 10pm and 7am when measured in accordance with the relevant environmental noise legislation.
VII.The northern and southern walls of the shed and the roof must be lined with 50mm think [sic] acoustic insulation (with a minimum density of 32kg/m3) to reduce reflected sound.
IX.An appropriate Soil Erosion and Drainage Management Plan must be developed prior to construction commencing, which includes a range of strategies to collect, treat, store and dispose of stormwater during construction. The plan must be prepared to the satisfaction of the Relevant Authority.
At about the time that the draft consent orders were agreed, the Crown Solicitor wrote to the respondent’s lawyers in the following terms:
To the extent that it is necessary to do so, and in order to facilitate the resolution of this matter, we are prepared to give you an undertaking that neither the DAC nor the EPA will argue in any future appeal that your client is estopped from appealing the classification of the development that is the subject of application number 313/0417/05, as varied by an anticipated Court Order in terms of the attached draft order.
On the remittal of the matter to the DAC it resolved to treat the application as a merit application.[3]
[3] A DAC planning officer had recommended that the application should be characterised as a merit application because it could be considered as a ‘continuation of an existing use and even if the existing use were non-complying this application could be considered a reasonable expansion of that non-complying use…’.
In a report in March 2009 the DAC’s planning officer described the application as marginal and expressed the view that it was not seriously at variance with the Development Plan. Nonetheless, refusal was recommended for reasons which are summarised in the following paragraphs of the report:
6.2The location of the development in the Primary Industry Zone – Market Gardening policy area is not appropriate. The key policy premise is that conflicting uses should be discouraged and the preservation of this location for market gardening is important and of State significance. The proximity of the proposal to the Gawler River and its environs which is part of the MOSS scheme is also of concern as it is intended to be part of a second general network of parklands through Adelaide. Industrial uses adjacent to the river and the impact of ongoing noise from the crushing plant on adjoining residents and native wildlife is not appropriate.
6.3It is accepted that there is a necessity for local recycling centres in accessible and convenient locations for the local community however this application involves the introduction of a permanent facility to crush and recycle land fill material. It also introduces a significant increase in truck movements to and from the site. Planning policy does not anticipate industrial uses within the Primary Industry Zone.
6.4I have concluded that the application is not seriously at variance with the relevant provisions of the local Development Plan. Whilst the site has existing use rights as a land fill depot it is not considered appropriate to expand the use of the site as a permanent recycling depot involving the crushing of concrete and demolition material. Non-agricultural development should be limited within this zone as it could see an incremental erosion of the existing landscape character dominated by the Gawler River and market gardening.
On 12 March 2009 the DAC resolved that the proposed development “[was] seriously at variance with the policies in the Development Plan” and refused consent for the development because:
… it is contrary to the following provisions of the Development Plan:
Primary Industry Zone Policy Area 2 – Market Gardening: OB1, OB2, PDC1;
Primary Industry Zone: OB 1, PDC1, PDC2;
Council Wide: OB2, OB3, PDC2, PDC10, PDC11.
in that it is an industrial use within a zone that anticipates farming on large properties, predominantly for cereal cropping and grazing with designated areas for horticulture and market gardening. The development of a crushing plant at an existing waste landfill depot is not an appropriate land-use in the context of the locality and neighbouring development within the zone.
The Development Plan
The land is situated in the Primary Industry Zone (PI Zone) of the Light Development Plan. The PI Zone is dedicated to farming on large properties but with some designated areas reserved for horticulture and market gardening. The site of the proposed development straddles both of the two policy areas which comprise the PI Zone. Most of the land lies in Primary Industry Policy Area 2 (Policy Area 2) which is allotted for market gardening. The part of the land which immediately abuts the northern bank of the Gawler River is located in Primary Industry Policy Area 1 – Gawler River Flood Plain (Policy Area 1). Policy Area 1 is subject to the objectives and principles which govern the PI Zone and, where appropriate, Policy Area 2, and to additional principles and objectives calculated to address the risk of flooding.
Objective 1 of the Council Wide Objectives (CWO) is the promotion of development which supports the social, cultural, economic and environmental needs of the region including increasing employment opportunities. Specific reference is made in CWO 1 to maintaining and enhancing the primary production capacity of the district, and the separation of regular heavy vehicle movements from major town centres. The protection and enhancement of areas of conservation significance are also expressly promoted by CWO 1.
CWO 2 primarily encourages development which will sustain cereal production in the long term but specific reference is also made to the orderly and economic development of landfill facilities in appropriate locations and the minimisation of the environmental impacts flowing from the location, operation, closure and post management of landfill facilities. CWO 13, which appears under the heading “Catchment Water Management”, promotes the prevention and minimisation of the generation of waste by a number of measures including the reuse and recycling of waste.
I observe here that the wide and general terms in which CWO 1, and 13 are expressed necessarily means that their application will often be affected by the more particular objectives and principles of the Development Plan. However they, and objectives like them, reflect the Act’s objective of sustainable development and cannot be ignored.
The Council Wide Principles (CWP) dealing with waste management provide as follows:
174.Waste management facilities should be located, sited, designed and managed to minimise adverse impacts on surrounding areas due to surface water …
175.Waste management facilities should not be located in existing or future urban, township, living, residential, commercial, centre, office, business, industry or institutional zones or environment protection, conservation, landscape, open space or similar zones, or in a Water Protection Area.
180.Land-fill and associated facilities for the handling of waste, should be located at least a distance of 500 metres from the boundaries of the land-fill site. A lesser distance may be provided within the land-fill site where the land-fill facility is considered compatible with the surrounding area, land uses and activities so that an effective separation distance of 500 metres can be provided and maintained between the land-fill facility and potentially incompatible land uses and activities.
It is convenient to immediately draw attention to the absence of Primary Industry Zones from the collocation of Zones which are proclaimed to be generally unsuitable for the location of waste management facilities by CWP 175.
Notwithstanding that omission, landfill, waste disposal depots, and waste transfer stations are non-complying developments in the PI Zone.
General industry is also a non-complying development in the PI Zone.
Objective 1 of the Primary Industry Zone provides:
A zone for farming on large properties, predominantly for cereal cropping and grazing with designated areas for horticulture and market gardening. …
The background discussion which precedes the statement of the objectives of Policy Area 2 provides as follows:
Gawler River, which forms the southern boundary of the zone, presents an attractive landscape with its heavily treed banks, its natural topography of meanders and levees, and its abundant native flora. However, given its flood pattern, policies for the zone need to be applied where relevant, in subservience to those for the Gawler River Flood Plain – Policy Area 1.
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].
It will be necessary to consider in some detail the concept of a development plan speaking to land further below. The ERD Court then turned to other germane objectives and principles of the Development Plan. It noted that the proposed development, which it characterised as concrete and brick crushing, did not fit with the objectives and principles of the industry zones established by the Development Plan.
The ERD Court gave significant weight to the principles regulating waste management facilities in CWP 174 to 197. The ERD Court observed, in particular, that CWP 175 “strongly discourages” the location of waste management facilities “in a variety of zones, including industry zones, but not primary industry zones”.[7]
[7] A & V Contractors Pty Ltd v Development Assessment Commission [2010] SAERDC 36 at [44].
The ERD Court’s assessment of the planning merits of the proposed development appears in the following paragraphs:
43.The prospects for the location of an industrial use of the nature proposed in the Light Regional Council area are not good. While there are industry zones, the proposed use (concrete and brick crushing) fits neither within the desired uses for the Industry (Gawler Belt) zone, nor within the objectives for the Industry (BVR) zone. The Council Wide principle 228 makes clear that industrial development should only occur in conjunction with existing similar activities. That results in a difficulty for developments such as the proposal.
…
45.Primary industry areas are often the location for periodically noisy and potentially dusty activities, such as ploughing and grain harvesting and the driving to and fro of vehicles in the business of transporting cereal or other primary produce. Non-agricultural development in these zones should be limited so as to maximise farm and horticultural productivity and prevent incremental erosion of the existing landscape character (Zone principle 2). In our view, in the context of the land, the first part of this principle has no application. We note that the landscape character has already been eroded by the existence of the landfill, although visually this erosion is not significant. We do not agree that the proposed crushing plant will further erode the landscape character, because it is our view that this part of the land (not including the vegetation banks of the Gawler River) does not presently have a landscape character in the sense of primary production land. In any event, as far as the landscape is concerned, the development will constitute a very minor addition to a non-primary production use, and its siting is relatively unobtrusive.
46.Clearly, some kinds of industry use would be incompatible with some kinds of farming or horticulture uses in a primary industry zone. We have had regard to the location of the proposed development, the separation distances between the site of the development and other land uses in the locality.
47.Subject to assessing the impacts on these other uses, (while being mindful of the conditions that we are directed by the EPA to impose on a consent), we are satisfied that the development proposed, whilst not meeting the Policy Area and Zone objectives, would be a suitable use on the site providing it is appropriately managed, and developed in accordance with the EPA conditions.
48.In so concluding, we are not saying that any industry or any kind of waste management facility would be appropriately located in a primary industry zone or in a market gardening policy area. We agree with Ms Nolan that it is unlikely that the proposed development would be acceptable if the landfill, situated as it is in a former loam pit, had not been a lawfully existing use for many years.[8]
[8] A & V Contractors Pty Ltd v Development Assessment Commission [2010] SAERDC 36 at [43], [45] – [48].
The ERD Court found that the proposed development would not impede the use of any arable land for horticulture, not unduly disturb nearby residents, nor affect the visual amenity of the Gawler riverbank. It then concluded:
57.The proposed development is not seriously at variance with the relevant provisions of the Development Plan, even though it is not consistent with the desired objectives for the policy area or the Zone. While these objectives are of paramount consideration, the whole of the Development Plan must also be considered. In the context of the present situation of the land, this includes the lawful existing uses thereon, the prospects for the achievement of the objectives on the land and the closure of the landfill for a more sustainable long term use at lower overall cost to the community.
Assessment Conclusion
58.The development as proposed can be granted development plan consent, with the imposition of conditions. The EPA conditions, which were not challenged, must be imposed. In addition, we consider it necessary to impose other conditions to address the movement of trucks (access road sealing, internal road surfacing, speed limits), an acoustic mound/barrier as proposed by the Appellant adjacent to Higgins Road, the management of dust emissions (planting of vegetation and the maintenance and use on site of a water truck), and perhaps that the consent be operative only while the landfill continues to be actively used.[9]
[9] A & V Contractors Pty Ltd v Development Assessment Commission [2010] SAERDC 36 at [57] – [58].
The appeal
The appellant contends that the ERD Court erred in discounting the objectives and principles which dedicated the PI Zone to primary production because the land was not suitable for primary production. It contends that, as a result of that error, the ERD Court failed to assess the application against the Development Plan as it was required to do so by s 33(1)(a) of the Act. The appellant contends that, in any event, there was no evidence supporting the factual finding that the land was not suitable for agricultural production.
The appellant also complains that the ERD Court erred by having regard to the existing use of the land as a landfill depot as a consideration favouring the approval of the development.
Finally, the appellant argues that the ERD Court erred in law in that it granted approval to an unmeritorious development in the hope that the restrictive conditions imposed by it would sufficiently ameliorate the development’s objectionable elements to justify the appeal.
Shortly before the hearing the appellant gave notice that it would contend that the proposed development was a non-complying development and that therefore the ERD Court lacked jurisdiction to hear and determine the appeal from the DAC. Notwithstanding the lateness of the notice, the Court granted the appellants permission to appeal on this ground because of the fundamental nature of the error alleged, and the uncertainty which would result if the issue were not authoritatively determined.
The respondent for its part put the alternative contention, in support of the approval of the development, that the processing of the building material would not be a change in the use of the land but, rather, a continuation of the existing landfill use; it was therefore not a development and did not require approval.[10] The respondent contended that only the building work was development and that there was no reason to refuse consent for that aspect of the application.
[10] Development Act 1993 s 4.
In the alternative, and in answer to the appellant’s submission that the proposed development was non-complying, the respondent contended that, if the proposed processing of the building material did not fall within its pre-existing approval, it was nonetheless a reasonable development of that existing use, and therefore was not a non-complying development.
I summarise the questions arising from the parties’ contentions, and my answers, as follows:
1. What is the approved existing use of the land? – Solid landfill depot for building demolition material.
2. Is the proposed crushing and processing of waste no more than an activity which falls within the approved existing use, or does it amount to a change of use of the land? – The proposed activity results in a change of use from solid landfill depot to the industrial processing of building waste with the associated removal of useable building product and disposal of the residue as landfill.
3. If it amounts to a change of use, save for the question of reasonable development of an existing use, is the changed use a non-complying one? – Yes.
4. If the answer to the preceding question is “yes” is the proposed development nonetheless a reasonable development of the pre-existing use and, for that reason was the respondent entitled to a merits assessment before the DAC and an appeal against an adverse decision, as of right, to the ERD Court? – The reasonable development principle is confined to development which does not constitute a different use. The proposal constitutes a change of use to industrial processing of building waste with the associated removal of useable building product and disposal of the residue as landfill. For that reason, the proposed development cannot be a reasonable development of the existing use as landfill and the ERD Court did not have jurisdiction.
5. Apart from the question of jurisdiction, did the ERD Court err in law in:
a. finding that the land was not arable when there was no evidence to support that conclusion?
b.failing to have proper regard to those objectives of the Development Plan which dedicated the land for primary production?
c.having regard to the existing use of the land?
d.its approach to granting approval on the basis of restrictive conditions?
— No, there was evidence upon which the factual finding could be made and the reasons of the ERD Court, understood in their proper context, do not manifest any of the other errors of which the appellant complains.
The existing use
The construction of the terms of a planning consent generally, and the connotation of the consent in particular, is a question of fact. However, two guiding considerations inform that factual enquiry. First, the interest of certainty requires a largely textual approach. Second, the planning context militates against an expansive construction which includes developments which raise substantial planning considerations beyond those affecting developments which come within a more limited construction.
The existing approval for the land is expressed as a consent to the use of a land as a “solid landfill depot for building material”.[11] Landfill is the depositing of layers of waste for the purposes of raising the level of the site on which it is deposited. The operation of a landfill necessarily involves the orderly laying and mechanical compaction of waste.
[11] See [5] above.
The existing lawful use of the land extends to the operation of a depot. I doubt that the word “depot” adds much, if anything, to the described use as landfill. The word recognises, I think, that in the ordinary course, it may not be possible to immediately lay and compact, as landfill, the building material which is received onto the site, and that it may be stored next to the landfill until those operations can be performed.
The operators of the solid landfill depot on the land have from time to time salvaged timber, metal and bricks from the building waste they received. Mr Davids, one of the present owners of the land, occasionally extracted, and stockpiled for sale, clay bricks. Mr Davids also testified that Joe Trimboli extracted metal and timber from the deposited material.
The licences granted by the EPA, and its predecessor, the Waste Management Commission, have allowed the operation of a “waste or recycling depot”, but the terms of those licenses cannot, of course, expand the scope of the existing lawful use for the purposes of the Act.
I accept that the extraction of a part of the building waste which can be reused without any, or any significant processing, might fall within the connotation of “solid landfill depot”. If the proposed development application were to construct facilities for the storage and sale on the land of extracted material of that sort, difficult questions might arise as to the precise scope of the approval.
However, the proposed development involves much more than the extraction of a small part of the building material which can readily be recycled or sold without any further processing. The proposal is to crush rubble using heavy plant and equipment. The saleable product produced by crushing will then be removed from the land, leaving the residue to be compacted as landfill. The development includes the construction of a compacted hard area of about 30 metres by 28 metres and a large three sided Colorbond shed 12 metres by 24 metres by 7 metres high. It will also be necessary to build a stormwater sedimentation detention dam. Importantly, as the conditions imposed demonstrate, significant planning issues ensue from the proposed development which extend beyond those which attend the operation of the landfill.
In my view, the crushing of the building material in the way described is much more than an activity which is part of, or incidental to, conducting a solid landfill depot; it is a different use, namely the industrial transformation of building waste into a building product. The conclusion of the ERD Court at [33] that the proposed development requires consent is plainly correct, notwithstanding its infelicitous use of the phrase “additional activity”. It is clear from the reasons generally and from [34] in particular, that the ERD Court properly addressed the question of a change of use.
A non-complying use
It follows from the conclusion expressed in the preceding paragraph that the proposed use falls within the expression “general industry” which is a non-complying development in the PI Zone. It is therefore necessary to consider whether the proposed development is impliedly excluded from the non-complying class of developments by reason of its connection with the pre-existing use of the land. I observe for now that, if the proposed development is a non-complying one, the respondent had no right to appeal to the ERD Court against the DAC’s refusal to approve it and that the ERD Court had no jurisdiction to entertain the appeal.
It is well accepted that the parties to an action cannot, by agreement, expand or contract the jurisdiction of a court. [12] Nor can a party ever be estopped from taking a jurisdictional point. There is a public interest, which transcends the private interests of the parties to an action, in ensuring that courts exercise their functions to the limits of their jurisdiction and no further. The fact that the DAC, and its counsel on the appeal to the ERD Court, may have proceeded on the erroneous supposition that the proposed development was not non-complying, can not extend the ERD Court’s statutory jurisdiction. It follows, therefore, that subject to the “reasonable development” principle, which I next address, the appellant would succeed on the jurisdictional issue it raised shortly before the appeal was heard.
[12] Ridley v Whipp (1916) 22 CLR 381.
Is the proposed development a reasonable development of an existing use?
It is a principle of construction of development plans first stated by Jacobs J in Wilson v Mitcham City Corporation and Mercedes College[13] that classes of developments described as prohibited, or non-complying, do not include developments which are a “reasonable development” of an existing lawful use. In Mount Barker District Council v Palma[14] Doyle CJ explained the principle as follows:
[13] (1986) 130 LSJS 31.
[14] (2002) 120 LGERA 182.
44.Two possible bases for the decision emerge. The first is a relatively narrow one, that the definition of ‘educational establishment’ did not apply [because it was not just a secondary school]. The broader one is that provisions of a planning instrument that submit particular land uses to special restrictions on the basis of their incompatibility with the general character of a zone, or on the basis that they call for special controls, should not ordinarily be interpreted as applying to a proposal which is a reasonable development of an existing use. I am not able to state the broader principle with any more precision than that.
…
46.… I consider that the broader basis for the decision in Wilson, and in the later cases, is the correct one.
47.Mr Roder rightly points out that in the present case the language of the Development Plan is not so easily read as subject to this approach. Principle 124 states that: ‘All kinds of development are non-complying ... except the following’.
48.I note, however, that the Environment, Resources and Development Court has applied the broader basis to the Act and the development plan. In Morrow v Mitcham and Kirk and Development Assessment Commission [1994] EDLR 448, the court held that:
... a reasonable expansion of an existing non-complying kind of use, albeit on land not part of the site of the existing use, does not constitute a non-complying kind of development.
49.It is important to bear in mind that what I have called the broader basis for the decision in Wilson is not a freestanding rule of law. It is a principle of interpretation. I have already attempted to express it as such. It calls for a particular approach when interpreting a provision of the Development Plan, that submits particular types of development to particular restraints, in its application to a use of land which was a lawful existing use when the Development Plan came into operation. The principle reflects the practical considerations identified by Jacobs J.
50.I consider that the principle can be applied to the existing Development Plan. But I readily acknowledge that the principle in question has the potential to have an unsettling effect. It should be applied with care.
51.I would go no further than to say that Principle 124 should be read as not applying to development which is a continuation of an existing lawful use of the land in question. I would leave for another day the issue of any wider application of the principle. In the present case I take the view, as I have explained above, that the proposal is for ‘development’ because of the particular significance of condition 6, but I also accept that, viewed more broadly, the proposal is for the continuation of an existing use, and therefore within the scope of the principle of interpretation that I have identified.[15]
[15] Mount Barker District Council v Palma (2002) 120 LGERA 182 at [44], [46] – [51].
The “reasonable development” principle is, as Doyle CJ recognised in Palma, inherently problematic. A development may be constituted by a change in use of land or by a departure from an important limitation on the use of the land. I will refer to the two forms of development I have just mentioned as a change of use in the primary and secondary sense respectively. Development may also be constituted by construction or demolition work (building development). The terms in which non-complying developments are usually described more aptly refer to the use of land in the primary sense, but are capable of referring to a change of use in the secondary sense and to building development. The authorities so far have applied the reasonable development principle to building development (Mercedes College) and to change of use in the secondary sense (Palma). The authorities have not gone so far as to apply the “reasonable development” principle to a development which is a change of use of the land in the primary sense. If the respondent’s application were limited to the construction of replacement or additional buildings for the purpose of operating the landfill it would fall within the principle. However, it is not so limited and, as I found in [45] above, proposes a change in use. The application therefore raises the question whether the reasonable development principle extends to proposed new non-complying uses.
Any reading down of the classes of development prescribed as non-complying must be based firmly on the text of a development plan as a whole and its statutory context.
The denial of both a merits assessment of a development proposal and the facility of an appeal to the ERD Court from an adverse decision of a planning authority derogates substantially from the rights of persons who hold interests in property. The statutory right to continue pre-existing lawful uses[16] would be substantially undermined if those rights were denied to proponents of developments which did not extend beyond that lawful use but were designed to allow its practical continuation by improving, replacing or adding to buildings, or by better adapting conditions attached to that use to contemporary conditions.
[16] I acknowledge that the protection is not to be found in any express provision of the Act. However, the exemption of a continuation of use from the definition of development in the Act, means that uses which predate planning controls, and uses in accordance with existing consents, may lawfully continue to be immune from existing or subsequently imposed development restrictions.
The ultimate statutory objective of sustainable development is difficult to achieve unless developers enjoy a reasonable level of certainty about the future operation of the development.[17]
[17] In Adelaide Hills Recycling Pty Ltd v Development Assessment Commission [2010] SAERDC 53 the ERD Court expressed the view that the Mercedes College principle did not apply to development subject to a statutory approval but only to land use which predated the application of planning controls. That contention was not put on this appeal. If that view were to be accepted proponents of non-complying development who obtained approval would face considerable uncertainty in the event that they subsequently required consent for building work, or a variation of conditions, in order to continue their land use. On the other hand, if the principle were so limited the control and phasing out of less desirable forms of development would be facilitated.
On the other hand, it would undermine the prospective objectives of development plans if existing uses became Trojan horses for the infiltration of new and additional non-complying uses.
In my view, this Court should hold that the “reasonable development” rule of construction applies only to developments which do not change the use of the land as a whole. A broader rule is not supported by the text and context of the Development Plan. The terms in which classes of development are designated as non-complying textually militates against any reading down of those classes. On the other hand, if building work or the variations of conditions attached to the existing use of land were treated as non-complying, the statutory protection of pre-existing uses would be largely undermined. In my view, the principle of construction established in Mercedes College reflects a negative implication drawn from the statutory protection of existing use rights which exempts from the prescribed “non-complying” classes of development those developments which are a continuation of that use.
I hold, therefore, that the development proposed by the respondent does not come within the reasonable development principle because it is a development constituted by a change from the pre-existing lawful use to a different use, which is a non-complying one. There is no need to remit the issue of reasonable development to the ERD Court even though it was raised, as a discrete issue, for the first time on appeal. That is so because I have decided that the reasonable development principle does not extend to a different use, and because the factual question whether the proposed development constitutes a different use was squarely litigated as part of the respondent’s contention that approval was not required. For the reason I have given in [45] that issue was correctly decided against the respondent.
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”.
Mr Davids also gave evidence in cross examination that neighbouring farmers had never expressed any interest in share cropping the area. He testified:
I think I can assure you that country people and farmers, and I’ve always lived pretty well in the country, they’ve got as good a nose for a dollar as anybody else. If a dollar could have been made, it would have been to be quite honest.
The evidence of Dr Schofield and Mr Davids does not appear to go as far as paragraph [39] of the reasons of the ERD Court suggests. However, the appellant does not seek leave to appeal against the factual conclusions of the ERD Court. Rather the appellant contends that there was no evidence to support the conclusion that the area on which the development was proposed could not be used for horticultural purposes. In my view, the evidence which I have summarised inferentially raises a probability that the area of the proposed development is not arable. Therefore, it is a sufficient basis for the conclusion reached by the ERD Court.
The failure to investigate and analyse the soil, and Dr Schofield’s and Mr Davids acceptance of the possibility that the land could be restored, affects the weight of their evidence but does not deprive it of all probative value. Nor does the circumstance that Mr Davids’ evidence was limited to his own family’s attempts to cultivate the land deny his evidence any capacity to support an inference that the land was not suitable for cultivation. The factual conclusion of the ERD Court was supported circumstantially by the evidence I have mentioned, even in the absence of the more direct and comprehensive evidence which might have been, but was not, led.
It follows that the appeal can not be upheld on this ground and that the application fell to be assessed on the basis that the site of the proposed development was not arable. However, for the reasons which appear in the following part of my reasons, that factual conclusion did not displace the objectives and principles of the PI Zone.
Planning merits assessed against development plans
In Paradise Developments Pty Ltd v The Nature Conservation Society of South Australia Inc[18] Jacobs J allowed an appeal brought by Paradise Developments against a decision of the Planning Appeal Tribunal which had refused planning consent on the ground that the type of tourist accommodation proposed by Paradise Developments was seriously at variance with the applicable Development Plan. Planning authorities were, at the time, prohibited from consenting to development which was “seriously at variance” with the provisions of the applicable development plan.[19] It was accepted that the appeal raised a jurisdictional question, namely, whether there was any power to approve the development. Therefore, the appeal raised the issue of whether the proposed development was, as a matter of fact, to be determined by Jacobs J, seriously at variance with the Development Plan. Jacobs J recognised that that question was one of fact and degree.[20]
[18] (1993) 59 SASR 239.
[19] Planning Act 1982 s 47(9) reproduced at Paradise Developments Pty Ltd v The Nature Conservation Society of South AustraliaInc (1993) 59 SASR 239 at 240.
[20] Paradise Developments Pty Ltd v The Nature Conservation Society of South AustraliaInc (1993) 59 SASR 239 at 242-3.
The proposed tourist accommodation fell within the General Farming Zone. The primary objective for the General Farming Zone was “a zone primarily accommodating agricultural and pastoral activities”. It was a principle of development control applicable to the General Farming Zone that only small scale tourist accommodation supplementary to existing development, such as accommodation facilities on a farm property, should be undertaken. Some particular components of the tourist accommodation proposed by Paradise Developments were in themselves developments which were prohibited by the Development Plan. Jacobs J accepted that the proposed development was at variance with those particular objectives and principles of the Development Plan in a “literal and narrow sense”. Jacobs J then referred to other provisions of the Development Plan which showed that tourist facilities were a desired development, particularly around the Flinders Chase area, an area which would be served by the proposed tourist accommodation. Tourist accommodation was expressly prohibited in the Coastal Zone of the Development Plan but the Development Plan was silent on the preferred location or locations of any tourist accommodation facility. It was a policy of the National Parks and Wildlife Service which had responsibility for the Flinders Chase Reserve under the National Parks and Wildlife Act 1972, that hotels, motels, cabins and tourist accommodation should be encouraged outside the boundaries of the Reserve.
Jacobs J referred to the factual finding made in the Planning Appeal Tribunal that the subject land, although in the General Farming Zone could not possibly be used for farming. The subject land was uncleared scrub abutting Flinders Chase Reserve which was unsuitable for grazing and could not be brought into farming use except by a massive program of land clearance which was unlikely to be permitted.
Although, strictly, it was unnecessary to do so, Jacobs J identified the following error of law in the decision of the majority of the Planning Appeal Tribunal:
In the first place, it is not appropriate to test the proposal by a strict and literal reference to the primary purpose of the zone when the plain and undisputed fact is that the Development Plan does not speak at all to the subject land in terms of that purpose. It is but one of many examples, to which this Court had drawn attention in other cases, of the fact that the Plan was superimposed upon a variety of existing land uses, and it would have been very much a “hotch-potch”, if not indeed impossible, to draw zone boundaries with specific zone objectives in a way which reconciled all existing uses with the specified objectives. The Plan is in essence a plan for future development, but within its framework there are of necessity many non-conforming uses which are unlikely to change. The Plan simply cannot speak to such land according to its tenor or its primary objectives, and simply to say that a non-conforming development of that land is inconsistent with the plan is really to say nothing unless it implies that any development on such land is sterilised. … [21] (Emphasis added).
[21] Paradise Developments Pty Ltd & Anor v The Nature Conservation Society of South Australia Inc & Anor (1993) 59 SASR 239 at 251.
Jacobs J then identified considerations beyond the primary purpose envisaged for the General Farming Zone by the Development Plan:
If however it is necessary to look beyond the primary purpose of the zone, that must still be done in the context of the Development Plan and any other relevant planning matters. …
The Plan moreover expressly prohibits a tourist accommodation facility, whatever that means, in a coastal zone. Where else is it to be placed within the purview of the Plan if not in the general farming zone or in the conservation zone, that is, the Flinders Chase National Park itself? Faced with that choice, the preferred policy of the National Parks and Wildlife Service, to locate it outside the perimeter of the park is not an irrelevant planning consideration.[22]
[22] Paradise Developments Pty Ltd & Anor v The Nature Conservation Society of South AustraliaInc & Anor (1993) 59 SASR 239 at 252.
Jacobs J concluded that the majority of the Planning Appeal Tribunal erred in principle when they declined to give any weight to the limited options available to accommodate facilities which the Plan contemplated.[23]
[23] Paradise Developments Pty Ltd & Anor v The Nature Conservation Society of South Australia Inc & Anor (1993) 59 SASR 239 at 253.
The difficulty faced in Paradise Developments was that the Development Plan contemplated tourist development but did not positively address where it should be located. The passages from the judgment of Jacobs J, which I have cited above, show that he reached the conclusion that the development was not seriously at variance with the Development Plan by the following steps:
a.The uses prescribed for the General Farming Zone were not exclusive;
b.Some provisions of the Development Plan contemplated developments of the kind proposed; and
c.In all of the circumstances, including the non-arable condition of the subject land and the planning merits of developing tourist accommodation at a location near the reserve, the development was not, as a matter of planning judgment, seriously at variance with the Development Plan.
The first step in that reasoning process is based on a principle of construction of development plans which continues to apply to development plans made under the Act. The principle is that in the absence of a contrary indication, the uses prescribed for zones by development plans are not exclusive. The pre-designation of particular uses for a zone is intended as a guide and not as a universal and immutable precept.[24] The principle arises out of the historical and statutory context of planning controls. That context includes the following: the preservation of the historical uses of land, the practical difficulties in defining with precision the boundaries of zones within development plans, the dynamic nature of development and planning considerations, and the practical impossibility of predicting the most appropriate development on every allotment within the zones. Whether the desired use or uses are expressly qualified by the word “primary”, or simply stated as desired uses without any further elaboration, the context to which I have referred demands the approach to construction identified by Jacobs J. It is, however, a principle of construction and can therefore be displaced by the text of the applicable development plan.[25] The Development Plan in this case does not manifest an intention to do so.
[24] See Town of Gawler v Impact Investment Corporation (2007) 99 SASR 115 at [81] – consideration 1 (reproduced in FN 28).
[25] Even the designation of a use as non-complying does not, of itself, displace the principle of construction. A non-complying development might not be seriously at variance with a plan and may therefore still be approved (Courtney Hill Pty Ltd v South Australian Planning Commission & Ors (1990) 59 SASR 259 at 261). Section 35(2) of the Development Act 1993 (the Act) provides that a development that is assessed by a relevant authority as being seriously at variance with the development plan must not be granted consent. Section 35(3) of the Act provides that a non-complying development may be granted development plan consent if either the DAC or the Minister concur. Furthermore, s 33(4a) of the Act provides that a relevant authority may refuse at any time to grant development authorisation with respect to a non-complying development. However, that very provision also assumes that a planning authority may conduct a merit assessment of the proposed development even though it is non-complying. It follows that the mere fact that a development is specified to be non-complying does not mean that it is seriously at variance.
The second step arises out of a common feature of development plans. Objectives and principles are generally stated on a council wide and zone basis, by reference to particular classes of developments, and on occasion by reference to particular sites. Moreover, the objectives and principles are directed towards a wide range of planning objectives. Therefore, there will necessarily be a degree of tension between the provisions of development plans. Some principles and objectives may militate for a development and others militate against it.[26] Nonetheless, a proposed development must be assessed against all of the provisions of a development plan which, on their terms, apply to that development. The reference in the passage from Paradise Developments, cited above, to a principle of development control not speaking to particular land should not be understood as suggesting the contrary. Subject to an exception mentioned in the next paragraph, it is erroneous to proceed on the basis that a principle or objective is irrelevant to a development, merely because the land on which the development is proposed is not, as a matter of fact, suitable for a development of the sort assigned by the development plan to that zone. That is because the prescription of a particular use or uses for a zone gives rise to both a positive and negative implication. The positive is that the zone is suitable for a particular use. The negative implication is that other uses should be located elsewhere, not only because they may interfere with the uses contemplated by a development plan, but also because a policy decision has been made that they are better located elsewhere. However, it must be remembered that those objectives are applied generally and may be departed from in a specific case.
[26] See Town of Gawler v Impact Investment Corporation Pty Ltd (2007) 99 SASR 115 at [81] – consideration 2 (reproduced in FN 28).
The exception to which I referred is this. It may appear expressly, or by implication from the text and context of a development plan, that a principle or objective is premised or conditioned on the existence of certain facts or circumstances. Where those facts are shown not to exist the principle, properly construed, can have no application. In Town of Gawler v Impact Investment Corporation Pty Ltd[27] Bleby J identified ten considerations which may justify the departure from a planning policy which appears in clearly, or strongly, expressed objectives or principles of a development plan.[28]
[27] (2007) 99 SASR 115.
[28] See Town of Gawler v Impact Investment Corporation Pty Ltd (2007) 99 SASR 115 at [81]. The considerations are:
1The language of the principle or principles concerned — whether it is direct or contemplates some flexibility in approach.
2Whether the relevant principle is in conflict with some other applicable planning principle. That is likely to happen only rarely, in which case the more specific principle may displace the more generally expressed principle.
3The evident purpose and objective of the policy expressed in the principle or principles concerned.
4The significance of the policy to this particular development. The clearer the policy in its application to a particular development, the more compelling the reasons for departing from the policy will need to be.
5Where the policy contemplates possible degrees of compliance, the extent of the development’s compliance with the policy.
6Consistency of the development with other objectives and purposes of the zone.
7Whether there is something unusual about the development or the land on which it is to take place which makes the policy inapplicable or inappropriate.
8Whether other events have happened since the Development Plan was adopted which make the policy redundant, either generally or in respect of this particular development.
9The probable effect of non-compliance with the policy on the planning objectives of the zone; and
10Whether non-compliance with the policy in this case is likely to encourage other non-complying developments in the zone.
I understand the eighth consideration to refer to those cases where, as a matter of construction, the objective or principle of a development plan is conditioned on a premise which, as a matter of fact in a particular case, has been falsified.
That is not the case here. The objective of limiting the use of land in the PI Zone to primary production is not premised on all of the land within the Zone being capable of that production. It will always be the case that by reason of natural geographical features, or degradation of those features by the built environment, that not all land in the PI Zone will be arable or suitable for other forms of farming. Plainly, if a use other than primary production will interfere with primary production in adjacent sites it will be more difficult to obtain approval in a PI Zone. However, that is not the limit of the relevance of the objective to encourage primary industry. Even where the proposed development will not adversely impact on nearby primary production the fact that there is a planning objective to limit the use of land in the PI Zone to primary production, and to locate other uses elsewhere, remains a relevant consideration. Where a development is not an expressly contemplated use for the zone in which it is proposed, but it is nonetheless consistent with other principles or objectives of a development plan, it is necessary to make a planning judgment about the merits of a proposal. It is that third and final step in the reasoning of Jacobs J in Paradise Developments to which I next turn.
The requirement to assess the development against a development plan[29] connotes an expert evaluation by the relevant planning authority, as an assessor, of the planning merits of the development.[30] The grant or withholding of consent to the development is a result of that expert assessment or judgment formed by the process of assessment. Planning is an area of expertise. Planning authorities, (and on appeal) the ERD Court, receive expert evidence on the question. Planning authorities and the ERD Court are also entitled to apply their planning expertise in assessing a proposed development against a development Plan.
[29] Development Act 1993 s 33.
[30] Section 35(5) of the Development Act 1993 provides that developments other than non-complying developments are merit developments and “must be assessed on its merit taking into account the provisions of the relevant Development Plan”.
I described that process of assessment in Lakshmanan & Anor v City of Norwood & Anor.[31] I did not intend to suggest that planning authorities are free to formulate their own objectives and principles. That approach would not be consistent with s 33(1) of the Act. Rather, I wished to emphasise that planning authorities do not apply the objectives and principles of development plans in a vacuum. First, as I earlier observed, there will often be tension between those objectives and principles. Most of the objectives and principles, as a matter of construction, apply as general rules and not as inviolable prescriptions; they are guidelines within which an expert planning judgment must be made. Most obviously, the particular factual circumstances of a proposed development will inform that planning judgment, and, in particular, affect which of the principles and objectives will predominate.[32] The fact that the subject land in Paradise Developments was not arable but ideally located for tourist accommodation explains the planning judgment made by Jacobs J in that case. The passage in which Jacobs J referred to the Development Plan not speaking to the land was concerned with the factual planning judgment and not a question of principle. Ultimately, an exercise of planning judgment within the ambit scope and purpose of the Act, Regulations and the applicable development plan is required.[33]
[31] (2010) 174 LGERA 428 at [48] – [52].
[32] Town of Gawler v Impact Investment Corporation Pty Ltd (2007) 99 SASR 115. I understand the considerations numbered 4, 5, 6, 7, 9 and 10 (reproduced in FN 28) refer to the exercise of planning judgment and the circumstances which may affect the relative weight of different provisions.
[33] Town of Gawler v Impact Investment CorporationPty Ltd (2007) 99 SASR 115 at [27].
Second, the statutory objectives of development plans, and the assessments of proposed developments made against them, is to advance the social and economic interests of the community by ecologically sustainable development which optimises the habitat of its citizens.[34] That objective must always inform the planning judgment which must be made.
[34] Development Act 1993 s 3.
Application to this case – no error in ERD Court reasons
For the reasons given in [71], above, even though the stated objective for the Primary Industry Zone: “a zone for farming on large properties” is unqualified, it should not be construed as stipulating exclusivity.
Objective 1(k)(l)(j) of the PI Zone contemplates the extraction of minerals in the zone. By providing that non agricultural development should be limited, Principle 2 of the PI Zone necessarily contemplates that some such development will be approved. Principle 6 of the PI Zone accepts the development of agricultural industries associated with the primary production of the zone. Moreover, the specific reference to agricultural industrial development in Principle 6 suggests that the non agricultural developments mentioned in Principle 2 are not limited to agricultural industries.
It follows that, on a reading of the Development Plan as a whole, the PI Zone is reserved as a zone predominantly, but not exclusively, for farming and other rural industry.
The existence of waste management facilities; which include landfill sites, is specifically contemplated by CWP 180. CWO 2(k) and (l) not only contemplate the existence of landfill facilities but set as a goal the orderly development of such facilities in a way which minimises their environmental impact. It is a necessary implication from the omission of the PI Zone from the collocation of Zones in which waste management facilities should not, as a general rule, be located that CWP 175 contemplates the location of waste management facilities in the PI Zone.
I acknowledge that general industry and landfill are non-complying developments, however, for the reasons given in [71], inclusion within the categories of a non-complying development does not require a construction of Objective 1 as an outright prohibition of those developments.
The assessment of the proposed development against the competing objectives and principles of the Development Plan, which I have just identified, was a matter of planning judgment.
The reasoning in [41] of the reasons of the ERD Court, which is impugned by the appellant, is addressed to that factual judgment. The fact that the land was not arable necessarily reduced the relative weight of the specified objectives for the PI Zone against the principles which govern the location of waste management facilities. The ERD Court correctly observed that it was not appropriate to assess the proposal strictly against the former objectives but that they nonetheless could not be disregarded. I take the observation of the ERD Court that the Development Plan did not speak to the subject land, which was in turn borrowed from the reasons of Jacobs J in Paradise Developments, to refer to the reduced weight the primary industry objective carried in the case of non-arable land where there was an alternative development which was consistent with other objectives or principles. I acknowledge, however, that the phrase is apt to mislead and is best avoided.
The factual circumstances considered by the ERD Court in [43] – [48] were relevant to the planning judgment it had to make. Any difference of opinion over the relative merits of locating the development in an industry zone instead of the subject land is factual and does not raise a question of law. In particular, the reasons of the ERD Court do not fall into the error identified by King CJ in Courtney Hill Pty Ltd v South Australian Planning Commission & Ors.[35] The development was not approved in order to remedy a failure in the Development Plan to allow sufficient scope for landfill development; it was approved because, on a proper construction of the Development Plan, and as a matter of planning judgment, the proposed site was suitable for the landfill development it contemplated.
[35] (1990) 59 SASR 259 at 262.
The circumstance that the landfill was an existing use was a relevant circumstance in that process for at least two reasons.[36] First, the impact of the proposed development on the locality can only be assessed against the existing conditions.[37] Second, the existence of the landfill affects the assessment of the efficiency and sustainability of the development at that location for the reasons given in [49] of the reasons of the ERD Court.
[36] See A & V Contractors Pty Ltd v Development Assessment Commission [2010] SAERDC 36 at [48], [49], [57].
[37] Courtney Hill Pty Ltd v South Australian Planning Commission & Ors (1990) 59 SASR 259.
Finally, the appellant contends that the ERD Court fell into error in approving the development subject to extensive conditions. It was submitted that the nature and extent of the conditions showed that the development was without merit.
It must be remembered that ten of the conditions were imposed at the direction of the EPA. Of course, that direction could not in any way affect the duty of the DAC to assess the proposal against the Development Plan[38] but the nature and extent of the conditions cannot, alone, be indicative of error.
[38] Cf Corporation of the City of Enfield v Development Assessment Commission (1997) 69 SASR 99 at 115.
In my view, the nature and extent of the conditions imposed do not manifest any of the errors identified and discussed in KIPA Freeholds Pty Ltd v Development Assessment Commission & Ors.[39]
[39] (1999) 101 LGERA 414.
First, the conditions here deal with the incidental aspects of the development and were calculated to protect the amenity of the locality.[40]
[40] KIPA Freeholds Pty Ltd v Development Assessment Commission & Ors (1999) 101 LGERA 414 at [39].
Second, the imposition of conditions is not futile. In KIPA Freeholds[41] the very nature of the hotel building approved was likely to attract many more than the permitted number of patrons. In this case there is nothing to suggest that the conditions cannot be achieved within the contemplated operation of the development.
[41] KIPA Freeholds Pty Ltd v Development Assessment Commission & Ors (1999) 101 LGERA 414 at [39]– [40].
Third, the conditions are capable of enforcement.[42]
[42] KIPA Freeholds Pty Ltd v Development Assessment Commission & Ors (1999) 101 LEGRA 414 at [40].
Finally, the conditions were imposed for planning purposes and not to achieve any collateral objective.[43]
[43] KIPA Freeholds Pty Ltd v Development Assessment Commission & Ors (1999) 101 LEGRA 414 at [37].
For the above reasons, if the appeal to the ERD Court was competent, and within its jurisdiction, I would have held that the ERD Court had not made the errors of law that were alleged by the appellant.
Conclusion
For the reasons given in [46-47] and [55] I would hold that the ERD Court did not have jurisdiction to hear the appeal from the DAC. I would allow the appeal and quash the decision of the ERD Court.
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