Development Assessment Commission v Lawry - [2011] SASCFC 80

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
DEVELOPMENT ASSESSMENT COMMISSION v LAWRY & ORS
[2011] SASCFC 80
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Peek)
10 August 2011
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONTROL OF PARTICULAR MATTERS - COMMERCIAL USES - TOURISM
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS - SUBDIVISION APPROVALS
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - CONSENTS, APPROVALS AND PERMITS - CONDITIONS
Application for division of land under the Community Titles Act 1996 (SA) - Development Plan consent was refused by the respondent - the appellant appealed to the Environment, Resources and Development (ERD) Court which granted Development Plan consent subject to a number of conditions - the respondent appealed to a single judge of the Supreme Court of South Australia who allowed the appeal and set aside the orders of the ERD Court - the appellant appealed to the Full Court of the Supreme Court of South Australia against that decision.
In 1984 the South Australian Planning Commission gave approval for use as a "caravan park" - proposed division by the appellant would create a number of primary community lots within the existing caravan park capable of individual ownership - as "development" under s 4(1) of the Development Act 1993 (SA) includes "the division of an allotment" the proposed division required development approval - a consequence of fragmentation of ownership could be that the caravan park will not provide suitable accommodation for tourists if lots were occupied predominantly by their owners - whether in assessing the proposed division of land against the Development Plan one should have regard to a use of the land that might be facilitated by the proposed division and creation of community lots - whether such an assessment of the proposed division of land against the Development Plan leads to the conclusion that approval should be refused - whether the proposed division does not comply with the provisions of the CTA and for that reason should be refused approval - whether certain conditions imposed by the ERD Court when it approved the proposed division are valid or appropriate conditions.
Held: appeal dismissed.
Community titles Act 1996 (SA) s 3(1), s 6, s 7, s 10, s 11(3), s 12, s 14, s 14(3), s 14(4), s 14(4)(d), s 14(5a), s 16, s 22(1), s 22(2), s 30, s 30(4), s 34, s 34(2)(d), s 37, s 37(1), s 37(1)(a), s 37(1)(c), s 37(1)(h), s 41, s 43(1), s 75; Development Act 1993 (SA) s 4(1), s 33(1)(a), s 33(1)(d); Strata Titles Act 1988 (SA); Real Property Act 1886 (SA), referred to.
Lawry & Anor v Development Assessment Commission [2010] SAERDC 30; Development Assessment Commission v Lawry & Anor [2011] SASC 14; Hall & Anor v City of Burnside and City Apartments Pty Ltd [2005] SASC 343, (2005) 95 SASR 579

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.

Continue reading Development Assessment Commission v Lawry

Details

AGLC: Development Assessment Commission v Lawry [2011] SASCFC 80
Case: [2011] SASCFC 80
Decision Date: 10 August 2011

CaseChat Overview and Summary

The Development Assessment Commission (DAC) appealed to the Full Court of the Supreme Court of South Australia against a decision of a single judge of that court. The dispute concerned an application for the division of land under the Community Titles Act 1996 (SA) within an existing caravan park. The DAC had initially refused Development Plan consent for the proposed division, but the Environment, Resources and Development (ERD) Court subsequently granted consent subject to conditions. The single judge of the Supreme Court had allowed the DAC's appeal, setting aside the ERD Court's orders.

The legal issues before the Full Court included whether the proposed division of land, which would create community lots for individual ownership within the caravan park, was consistent with the relevant provisions of the Development Plan. Specifically, the court had to consider whether the potential for fragmentation of ownership to lead to the lots being occupied predominantly by their owners, rather than being available for tourist accommodation, was a relevant consideration for Development Plan consent. The court also had to determine if the proposed division complied with the Community Titles Act and whether the conditions imposed by the ERD Court were valid and appropriate.

The Full Court reasoned that the subject land was designated as a "Recreation and Tourism Policy Area" under the Development Plan, which emphasised tourism and recreational activities, including short-term casual visitor accommodation. The court agreed with the single judge that the relevant provisions did not envisage permanent residential development and separate ownership, and that the proposed division would encourage the use of cabins for purposes inconsistent with the Development Plan's objectives for that area. The court also considered the definition of "tourist/holiday accommodation" within the proposed scheme description, noting that the ERD Court had proposed adding a condition to exclude permanent or regular abode. However, the single judge had found that the proposed limitation on use within the scheme description could not lawfully be implemented under the Community Titles Act, rendering it inappropriate to grant Development Plan consent.

The Full Court dismissed the appeal, upholding the decision of the single judge. The court concluded that the proposed division of land did not accord with the provisions of the Development Plan, as it would likely promote a form of occupation inconsistent with the intended use of the land for recreation and tourism. Furthermore, the court found that the proposed scheme description contained limitations on use that were contrary to the Community Titles Act, meaning that the development authority could not properly endorse the proposed scheme.

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

Full text does not contain this section.

Decision

Reasons for decision

I understand that in the present case no application has been made to the Registrar-General as yet. But the material before the ERD Court included the proposed scheme description. The scheme provided that proposed lots 1-89 (the sites of the cabins and caravans) “shall be solely used for tourist/holiday accommodation purposes”. The scheme description included a definition of “tourist/holiday accommodation” as follows:“Tourist/holiday accommodation” means the non-permanent occupation of a Community Lot by a Lot Owner whereby any single period of occupation must not exceed four (4) weeks, and the rental of a Community Lot to any person or persons by a Lot Owner or the Community Corporation or any manager or operator appointed to operate a tourist accommodation business within the Community Parcel for a single period of time which does not exceed two (2) weeks.In its decision, the ERD Court proposed that the following words be added to this definition:… and does not include a place of permanent or regular abode by any person (including the Owner of the Land) nor does it include a dwelling as that term is defined under Schedule No 1 of the Development Regulations 2008.This part of the scheme description is central to the scheme.Previous Decisions Application for the grant of Development Plan consent was first made to the DAC, which refused its consent. Its reasons were that the relevant part of the Development Plan did not “support the creation of separate allotments over buildings and structures established for temporary tourism accommodation in the form of a caravan park”. It also said that the proposal created “a land division lay out and security of tenure envisaged for the Shack Settlement Policy Area not the Recreation and Tourism Policy Area”. (The site is in the Recreation and Tourism Policy Area.) The appellant appealed to the ERD Court which granted Development Plan consent, subject to a number of conditions. The Commissioner who decided the case noted that the division did not involve a change of use of the land and found that the relevant provisions of the Development Plan supported tourist accommodation, which by implication he treated as the use that was being made of the site and would be made of the site: Lawry & Anor v Development Assessment Commission [2010] SAERDC 30 at [73]. He added that he could understand a concern that the division “could give rise to a greater likelihood of increased permanency of occupation of cabins and caravans”, but said that the evidence did not establish that and that “it could be a current tendency in any event”: at [75]. The DAC appealed to this Court, and a Judge of this Court allowed the appeal and set aside the order of the ERD Court. The Judge gave two main reasons. First, the proposed division of land did not accord with the provisions of the Development Plan. He said:[80]… Caravans by nature are moveable. Placing a caravan on land is not development for the purposes of the Development Act. A caravan is, by nature, not a permanent structure attached to land. Because of that, I am prepared to accept that the use of an area in a caravan park for the long-term parking of a caravan is consistent with popular understanding of the functions of a caravan park. However, subdivision into allotments for the placement of such caravans, given their likely mobility, is not shown in this case to be necessary or desirable. There would be nothing to prevent the development of such sites, either alone or in combination, being used for the development of permanent accommodation.[81]Permanent structures, such as shacks and cabins, require different considerations. While they can be used for purposes consistent with the Policy Area provisions, the evidence shows that their intended use as a result of this proposed subdivision is for purposes inconsistent with the desired future character of the Zone, and that such use does not accord with the type of accommodation contemplated by the Policy Area provisions.The Judge also said that the relevant provisions of the Development Plan contemplated the use of land for “casual hired accommodation”, rather than for accommodation occupied exclusively by an owner, and that the use to which the allotments would be put was not consistent with the Development Plan: [110]-[111]. The Judge also held that the scheme description for the purposes of the CTA defined the proposed use of the land (the definition is set out above) in terms that could not lawfully be implemented under the CTA, because the proposed limitation on use was contrary to s 37(1)(c) of the CTA (set out above). Accordingly, it was not appropriate to grant Development Plan consent because the relevant development authority could not properly endorse the proposed scheme.

Ratio Decidendi

Legal Principle Established

The appellant has appealed to this Court against that decision.Consideration of Development Plan The hearing before the ERD Court proceeded on the basis that the ERD Court was not asked to consider whether the current use of the land was as “a caravan park”, the term used in the 1984 planning approval. The issue of whether the suggested tendency towards exclusive use of caravans and cabins by owners had occurred, and had brought about a situation in which the site was no longer used as “a caravan park” was put to one side as being an enforcement issue, rather than an issue relevant to Development Plan consent. On occasions the Judge has expressed himself in his reasons as if he was determining that the current use of the land is unlawful because of the degree of owner occupation “to the exclusion of short term casual visitor accommodation” contemplated by the relevant provisions of the Development Plan: for example, at [77]. It is not clear that the Judge was making a finding about the lawfulness of the existing use. Arguably what he said on this point was an aspect of his consideration of the use that would be facilitated and encouraged if Development Plan consent was given. It is appropriate, in light of the approach taken in the ERD Court, to decide the matter on the basis that the issues are whether the approval of the proposed division would facilitate and encourage the use of the site predominantly for occupation by the owners of the respective sites, to the exclusion of casual visitors and tourists; whether that is relevant to Development Plan consent, and whether, if the first two questions are answered in the affirmative, the use of the sites predominantly for owner occupation to the exclusion of casual visitors and tourists is a use consistent with the relevant provisions of the Development Plan. The provisions of the Development Plan have been considered by the ERD Court and by the Judge. There is no need to traverse the detail again. The relevant provisions allow scope for differences of opinion as to their effect. I agree with two central conclusions reached by the Judge, after his consideration of the Development Plan. The subject land is situated in an area of the plan designated “Recreation and Tourism Policy Area”. The Judge said that provisions in this part of the Development Plan emphasised tourism and recreational activities, and the provision of “short term casual visitor accommodation”: at [54]. The Judge also said that the relevant provisions did not envisage “permanent residential development and separate ownership”: at [68]. He said that the proposed development would promote the use of cabins of the latter kind, something not encouraged by the relevant provisions of the Development Plan but encouraged by the provisions relating to another area (the Shack Settlement Policy Area), although subject to careful safeguards: at [69]. That led the Judge to the conclusion that the proposed division would encourage a use of the land in a manner that did not accord with the provisions of the Development Plan relating to the relevant area, because those provisions contemplated developments for the purposes of recreation and tourism, including short term casual accommodation, and that was not consistent with this proposal.