Development Assessment Commission v Lawry - [2011] SASC 14

SUPREME COURT OF SOUTH AUSTRALIA

(Land and Valuation Division)

DEVELOPMENT ASSESSMENT COMMISSION v LAWRY & ANOR

[2011] SASC 14

Judgment of The Honourable Justice Bleby

16 February 2011

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONTROL OF PARTICULAR MATTERS - COMMERCIAL USES - TOURISM

ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - CONSENTS, APPROVALS AND PERMITS - CONDITIONS

REAL PROPERTY - STRATA AND RELATED TITLES

CREATION OF COMMUNITY TITLES - SCHEME DESCRIPTION AND BY-LAWS
Appeal from grant of Development Approval to subdivide existing allotment - allotment presently developed as caravan park - proposed creation of allotments by community plan under the Community Titles Act 1996 (SA) - allotments to reflect existing disposition of cabin and caravan sites - grant subject to conditions restricting rights of residence.
Whether consent accorded with proper construction of the relevant Development Plan - whether the subdivision of land consistent with Development Plan objectives and principles - meaning of tourist accommodation and visitor needs - whether proposed use of allotments was for "dwellings" - consideration of requirements of community scheme description and by-laws under Community Titles Act - effect of Community Titles Act 1996 (SA) - whether conditions contrary to requirements of Community Titles Act - whether a permissible use of conditions to achieve objectives and purposes of the relevant Policy Area in the Development Plan.
Appeal allowed: Proposed subdivision not in accordance with provisions of Development Plan - Development Plan contemplated tourism and not residential use of the land - Proposal could not be rendered compliant by any by-laws - conditions imposed by the Commissioner not valid under Community Titles Act 1996 (SA) - impermissible use of conditions under the Development Act 1993 (SA).
Community Titles Act 1996 (SA) s 11, s 12, s 14, s 30, s 34, s 37, s 41, s 43; Development Act 1993 (SA) s 4, s 32, s 33, s 35, s 36; Development Regulations 2008 (SA) reg 3, reg 16, reg 17, Sch 1, Sch 4; Environment, Resources and Development Court Act 1993 (SA) s 30, referred to.
Alexandrina Council v Strath Hub Pty Ltd (2003) 129 LGERA 389; Paradise Development (Investments) Pty Ltd v District Council of Yorke Peninsula & Anor [2008] SASC 139; Croser Brothers Pty Ltd v District Council of Yankalilla [2001] SAERDC 86; McKenzie Constructions Pty Ltd v Development Assessment Commission (1999) 74 SASR 539, applied.
Fox v Stirk and Bristol Electoral Registration Officer, Ricketts v Cambridge Electoral [1970] 2 QB 463, discussed.
The Strath Hub Pty Ltd v Alexandrina Council [2004] SASC 382; City of Mitcham v Freckman (1999) 74 SASR 56; Head v Head [1963] P 357; Foreman v Beagley [1969] 3 All ER 838; West v Coombes [1941] VLR 134; Re Application for Adoption of M (1992) 112 ACTR 39; Attorney General v Coote (1817) 4 Price 183; Stock-on-Trent Borough Council v Cheshire County Council [1915] 3 KB 699; Robertson v Federal Commissioner of Taxation (1937) 57 CLR 147; Gregory v Deputy Federal Commissioner of Taxation (WA) (1937) 57 CLR 774; Courtney Hill Pty Ltd v SA Planning Commission (1990) 59 SASR 259; Upham v The Grand Hotel (SA) Pty Ltd and the Development Assessment Commission (1999) 74 SASR 557, considered.

DEVELOPMENT ASSESSMENT COMMISSION v LAWRY & ANOR
[2011] SASC 14

Land and Valuation Division

BLEBY J.

Introduction

This appeal concerns an application for Development Approval to subdivide an existing allotment. It is presently developed as a caravan park on the banks of the River Murray at Punyelroo. The application seeks approval for the creation of a number of allotments by community plan under the Community Titles Act 1996 (SA). It raises four important issues:
1       The proper construction of the Mid Murray Council Development Plan and particularly those objectives and principles of the River Murray Zone-Recreation and Tourism Policy Area, in which the land is situated;
2       Whether the subdivision of the land in the manner proposed is consistent with those objectives and principles;
3       The effect on the application of relevant provisions of the Community Titles Act 1996; and
4       The permissible use of conditions to achieve the objectives and purposes of the Policy Area.
The Development Assessment Commission (“the DAC”), being the relevant authority under the Development Act 1993 (SA), refused to grant Development Plan consent. A Commissioner of the Environment Resources and Development Court (“the ERDC”) reversed that decision and granted Development Plan consent subject to a number of conditions. The DAC now appeals against that decision.
I have decided, for reasons which follow, that the appeal should be allowed, and that the orders of the ERDC should be set aside.

The facts

Punyelroo is on the western side of the River Murray approximately 9 kilometres south of Swan Reach. The land in question comprises 7.63 hectares with a frontage to the River Murray of some 200 metres. Approval was granted by the SA Planning Commission on 16 October 1984 for use of the land as a “caravan park”.
When the present owners purchased the land in 1998 there were 75 powered sites and 20 unpowered sites. There were 34 caravans with annexes and two cabins. Four caravans and the two cabins were hired out to casual hirers. I infer that the remainder of the 34 caravans were privately owned by individuals and were left on the site. There were therefore 41 powered sites and 20 unpowered sites available for casual hire. Although it is not entirely clear on the evidence, I infer that there was also the present ablutions/amenities building, a caretaker/manager’s residence with associated kiosk/shop, fuel bowser and LPG gas dispenser.
There are now 105 sites which contain 37 cabins, 48 caravans with annexes and two caravans without annexes. There are ten powered and eight unpowered vacant sites for casual hirers. It appears that they have relatively low annual usage.
The present owners have also installed relatively large sheds for boat storage. There is also a boat ramp, picnic areas and facilities, parking areas, water storage and supply facilities and sewerage treatment facilities. The sites are interspersed with a variety of trees providing shade and amenity.
The 50 permanent caravans are all owned by individual owners who pay the caravan park owners an annual fee to leave their caravans there.
The 35 additional cabins have all been built, with appropriate development approval, by the present owners of the facility. Five of the 37 cabins are retained by the owners for casual hiring. The remainder have all been sold to private individuals for the cost of construction and of any additional infrastructure. Those cabin owners are also charged an annual fee by the owners.
All the cabins have showers, toilet, cooking and washing up facilities and have connections for LP gas, supplied by the cabin owners, for heating and cooking purposes. At least one cabin, and possibly more, has clothes washing facilities. Approximately one third of the caravans are equipped with toilets and showers.
There is no evidence to suggest that the individual caravan owners or cabin owners make their facilities available for casual hire, although there is nothing to prevent them from doing so.
The principal use of the surrounding land is for grazing, viticulture and tourist accommodation. In an area to the south-east of the subject land is a group or 32 shacks or holiday homes known as Punyelroo North, with a further 100 shacks and holiday homes in an adjacent area known as Punyelroo South. Both those areas comprise community title land subdivisions under the Community Titles Act 1996. The Commissioner described those housing developments as follows:
Many are relatively small simple shacks and located on relatively small allotments of between 300-500 square metres in area with access provided to these dwellings via two relatively narrow unsealed public roads. Of these a number are of more recent construction, some are much larger and of two storeys in height and utilising more substantial building materials including masonry.
To the immediate north of the subject land is a rural residential property with a frontage to the River Murray and containing a dwelling and associated sheds. To the west and south-west is land used for broad-acre grazing with larger properties in the order of 30 and 37 hectares in size and also containing single dwellings and outbuildings.

The Development Application

The development application, as amended in final form on 14 August 2009, sought the creation of 110 primary community lots, one development lot and common property in accordance with the existing improvements on the land. Proposed lots 1-89 were to contain the existing sites for cabins or caravans. There was to be one unnumbered lot comprising three pieces. Piece 90 was to cover the existing manager’s residence and the associated kiosk/shop and fuel bowser. Piece 91 was to contain 14 existing powered sites, nine of which presently contain caravans. These 14 sites are below the 1956 flood level. Piece 92 was to comprise an existing storage shed for boats but which encroaches on a road reserve boundary. The encroachment is not relevant to the disposal of the appeal.
Lots 93-112 were to comprise storage bays within existing sheds used to store boats, vehicles and/or caravans. Lot 201 was designated a future development lot. It currently contains another boat storage shed which also partly straddles the road reserve boundary.
The balance of the land was to be common property comprising access roads, service infrastructure, the ablution block, the jetty and boat ramp, camping area, playground and water pump. It was to include an existing gravity feed water supply tank and proposed new effluent treatment plant, together with an area of open and steeper land to the west and north-west at the upper levels of the escarpment.
The size and dimensions of the proposed allotments varies according to the buildings and improvements they contain and their intended use. The boat and storage space (lots 93-112) each have an area of 30m². Lots 1-89 vary in size according to the size of their existing associated cabin or caravan. They range in area from 69m² to 652m². The common property has a total area of 5.46 hectares and is a substantial proportion of the whole.

Land subdivision and the obligations of the relevant authority

Section 32 of the Development Act requires that, subject to the Act, no development may be undertaken unless the development is an approved development. For the purposes of the Act “development” is defined to include:
(b)     a change in the use of land; or
(c)     the division of an allotment;[1]
[1]    Development Act 1993, s 4(1).
The expression “division of an allotment” is defined to include:
(a)the division, subdivision or resubdivision of the allotment (including by community plan under the Community Titles Act 1996 and by strata plan under the Strata Titles Act 1988);[2]
[2] Ibid.
A development of this nature therefore clearly requires development approval under the Development Act. However, the subdivision of land may not in itself effect a change of use or involve any physical development of the land. It may be said to involve no more than the drawing of lines on a plan. Immediately after Development Approval the land remains in the same form and ownership as it did before the subdivision was approved.
However, Development Approval enables the owner to sell and transfer all the allotments thus created, which was not possible before. It enables a number of individual owners to undertake permanent and exclusive use and occupation of the new allotments, which was not possible before the subdivision approval. Subdivision of land may or may not, according to the circumstances, necessarily imply a probable change of use of the land. A change of use of the land also constitutes development for which further Development Approval may be necessary. For example, subdivision of broad-acre farming land into allotments suitable for detached housing requires approval under the Development Act. Such approval in itself may not effect any change of use of the land. Subsequent physical activity on an allotment forming part of the subdivision may well constitute a change of use, in the example given, for use as a residence.
Such a probable change of use may therefore need to be assessed in accordance with the requirements of the Act as part of the process of deciding whether the subdivision should be approved. Depending on the extent of the existing development on the subject land, the subdivision itself may involve an immediate change of use from that which is permitted at the time of the application of the subdivision approval. In that event, the change of use will have to be assessed against the requirements of the Act as part of the process of determining the subdivision application. Such was the case in Alexandrina Council v Strath Hub Pty Ltd,[3] where an application for subdivision into housing allotments implied an almost certain change of use of the land from broad-acres to housing which, on that application had to be assessed against the provisions of the Development Plan. When it was found that such use would not be in accordance with the objectives and purposes of the Development Plan the subdivision was refused.
[3] [2003] SASC 382; (2003) 129 LGERA 389 affirmed on appeal: The Strath Hub Pty Ltd v Alexandrina Council [2004] SASC 382.
One of the reasons for including subdivision of land in the definition of “development” is that, in many cases, it will involve an ultimate change of use of the land. One of the matters that will need to be examined on any application for subdivision approval is the nature and extent of any actual or likely change of use that will be effected by the subdivision.
Section 33(1) of the Development Act requires that a development can only be an approved development if the relevant authority “has assessed the development against, and granted a consent in respect of,” each of the matters which follow in the subsection. So far as is relevant to this application, the first of those matters is contained in para (a), namely the provisions of the appropriate Development Plan. Of that process I repeat what I said in Alexandrina Council v Strath Hub Pty Ltd:[4]
True it is that a Development Plan is not a document setting out legal obligations: Hassen v District Council of Murray Bridge (1984) 35 SASR 448. It contains statements of planning objectives and principles to be applied sensibly and flexibly to particular circumstances. However, that does not mean that its objectives and principles may be ignored because it may seem convenient to do so in a particular case.
In Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 King CJ said, at 187:
“The Development Plan is the focal point of the planning regime instituted by the 1982 Act. Its central importance is emphasized by the disappearance of regulations from the scheme. The Plan provides the objectives and principles upon which development planning is to be based. It is the charter by whose guiding principles future development is to be planned.”
The Chief Justice was then speaking of a Development Plan under the Planning Act 1982. What he said then has even greater force under the Development Act 1993. It must be remembered that when King CJ wrote those words the only obligation of a planning authority under s 47(9) of the Planning Act was to “have regard to” the provisions of the Development Plan so far as they were relevant to the decision. That meant that a planning authority, having had regard to the Development Plan, could nevertheless depart from it: South Australian Planning Commission v Dorrestijn (1984) 36 SASR 355 at 370 – 371: Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (supra) at 187.
Under the Development Act a development can only become an approved development if “a relevant authority has assessed the development against” the provisions of the Development Plan and has granted consent: s 33(1)(a). That requirement means that the planning authority must form a judgment as to whether and the extent to which the development conforms to the Plan. If the assessment is that the development is seriously at variance with the plan, consent must be withheld: Ibid s 35(2). Between being seriously at variance with and complying in all respects with a Development Plan there will be a range of possibilities. In some cases the exercise of planning judgment will result in consent. In other cases it will not.
[4] [2003] SASC 382, [27]-[29]; (2003) 129 LGERA 289, 397-398. See also City of Mitcham v Freckman [1999] SASC 234, [18]-[21]; (1999) 74 SASR 56, 62-64.
The relevant Development Plan in this case is the Mid Murray Council Development Plan. I will return to consider the objectives, principles of development control and other relevant parts of the Development Plan.
The second relevant matter against which the development must be assessed and in respect of which consent must be granted is contained in s 33(1)(d) of the Development Act:
(d)in relation to a division of land under the Community Titles Act 1996 or the Strata Titles Act 1988 —the requirement that the following conditions be satisfied (or will be satisfied by the imposition of conditions under this Act):
(i) each lot or unit that would be created or affected by the development is appropriate for separate occupation;
…
(v) the division of the land in the proposed manner is, having regard to the relevant Development Plan, appropriate;
…
As this is a subdivision of land under the Community Titles Act, a relevant authority is also required to perform certain functions under that Act.
Section 11 of the Community Titles Act requires that a description of the scheme for the division, development and administration of the community parcel be filed with the plan of community division. The purpose of the scheme description is “to provide a brief description of the nature of the scheme to which the relevant development authority has given its consent for the benefit of persons considering purchasing or entering into any other dealing with a lot created by the scheme”.[5] The scheme description must describe the purpose or purposes for which the lots and common property may be used.[6] It must also set out in full any conditions imposed by the relevant development authority in granting its consent to the proposal,[7] and must set out any other important features of the scheme.[8]
[5] Community Titles Act 1996 s 11(3).
[6] Ibid s 30(1)(c).
[7] Ibid s 30(1)(h).
[8] Ibid s 30(1)(i).
Section 14(4) of the Community Titles Act provides that the matters which must accompany the application include the plan of community division and the scheme description “endorsed by the relevant authority”.[9]
[9] Ibid s 14(4).
Section 30(4) of the Act provides:
(4)Before endorsing a scheme description, the relevant development authority may require modifications to it—
(a)     to add any information that is necessary or desirable in the opinion of the development authority; or
(b)     to clarify any part of the description; or
(c)     to remove any unnecessary detail.

I will need to return to consider what constitutes the “endorsement” of the scheme by the relevant authority.

The scheme description is given effect under the Community Titles Act by the adoption of by-laws. The by-laws must be consistent with the scheme description.[10] Section 12 of the Act provides:
12—By-laws
(1)     By-laws may be used to regulate—
(a)     the use and enjoyment of the common property; and
(b)     the purpose or purposes for which community lots may be used; and
(c)     the design, construction and appearance of buildings on the common property and the community lots and the landscaping of community lots.
(2)The first by-laws are lodged with the application for division and may be varied from time to time by special resolution¹ of the community corporation.
[10] Ibid s 11(4).
Note—
1Except where the number of votes that may be cast in respect of each lot is to be changed in which case a unanimous resolution is required—see section 87(2).

The first by-laws of a community scheme are to be filed with the community plan.[11] Section 34(2) of the Act provides:
(2)     The by-laws of a community scheme must—
(a)     be in a form approved by the Registrar-General; and
(b)     provide for the administration, management and control of the common property; and
(c)     regulate the use and enjoyment of the common property; and
(d)     regulate the use and enjoyment of the community lots to the extent necessary to give effect to the scheme description; and
(e)     be endorsed with a certificate, in the form prescribed by regulation, from the person who prepared the by-laws certifying that the by-laws have been correctly prepared in accordance with this Act.

Of particular relevance to this appeal is s 34(2)(d).

[11] Ibid s 34(1).

By-laws are binding on the community corporation, the owners and occupiers of the community lots and the development lot or lots (if any) comprising the scheme and persons entering the community parcel.[12] There are relevant enforcement provisions, the detail of which is not necessary for these reasons.
[12] Ibid s 43(1).
I have already referred to the fact that the relevant authority must “endorse” the scheme description. The Act is silent as to what that involves. It has two possible meanings. One is that it merely means that the authority must attach an authorised signature or seal to the document in the same sense in which one might endorse a negotiable instrument. On the other hand, it may mean that the authority is to confirm, countenance and declare its approval of the scheme description. There would be little point in having a relevant authority merely attach its signature or seal to the scheme description. In my view it can only mean that the authority must apply its mind to the content of the scheme description, and that the proposed community title subdivision can only proceed if the relevant authority has given its approval to the scheme description. That gains support from s 30(4) of the Community Titles Act. A relevant authority will be unable to endorse the scheme description it if does not reflect the nature of the scheme to which the relevant development authority has given its consent,[13] or it if does not adequately describe the purpose or purposes for which the community lots and common property may be used.[14] In doing so it must also consider whether those purposes are consistent with the requirements of the Community Titles Act and could lawfully be given effect by relevant by-laws. It may also need to consider whether the scheme description is merely a collection of high sounding words with no means of enforcement, or whether it is adequately supported by proposed by-laws. These are all obligations placed on a relevant authority under the Community Titles Act.
[13] Ibid s 11(3).
[14] Ibid s 30(1)(c).
However, because this is a particular type of development governed by the Community Titles Act, the relevant development authority must be careful to ensure that any approval it gives or conditions it imposes are not inconsistent with the letter of or the clear policy behind the Community Titles Act, and would not negate or conflict with any relevant provisions with the Community Titles Act.

The intended nature and purpose of the allotments

Regulation 16 of the Development Regulations 2008 provides:
16—Nature of development
(1)If an application will require a relevant authority to assess a proposed development against the provisions of a Development Plan, the relevant authority must determine the nature of the development, and proceed to deal with the application according to that determination.
(2)If the relevant authority is of the opinion that an application relates to a kind of development that is described as non-complying under the relevant Development Plan, and the applicant has not identified the development as such, the relevant authority must, by notice in writing, inform the applicant of that fact.

Regulation 17 provides what is to happen where an applicant applies for consent for a non-complying development.

Because of the provisions of reg 16 and because it is necessary to ascertain the likely intended use of the several allotments for the purpose of ascertaining whether there is likely to be a lawful change of use effected by the subdivision, it was necessary for the DAC and the ERDC to enquire into the nature, intended purpose and likely future use of the proposed allotments. In this case that can be inferred in part from the nature of the subdivision itself and also from the community scheme description lodged with the application. There was no evidence of any proposed by-laws having been lodged.
Under the amended scheme description lodged it was proposed that community lots numbered 1-89 inclusive should be used “solely for tourist/holiday accommodation purposes”. Community lots numbered 93-112 inclusive were to be used “solely for storage of boats and caravans”. Piece 90 of the community lot could only be used as a residence for the occupancy of the tourist park operator and caretaker, together with a kiosk and fuel bowser for the sale of motor fuels. Piece 91 could only be used for the provision of temporary tourist accommodation for campers and caravaners. Piece 92 was developed for the provision of a storage shed for the storage of boats. Development lot 221 was stated to have been developed to comprise a shed which contains a further 10 areas which are currently used for the purpose of boat storage by the owners and occupiers of holiday/tourist accommodation facilities within the community parcel. The common property was stated to have been developed to provide ablution amenities for the occupiers of the tourist accommodation facilities, internal roadways and access ways for access to the lots within the community parcel, water supply infrastructure and an open space area providing frontage to the River Murray.
The expression “tourist/holiday accommodation” was defined in the community scheme description 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 person 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.
As mentioned above, there were no draft by-laws submitted with the application, but as will be seen, it would not be possible, under the Community Titles Act, to give effect to that definition by a valid by-law.
The nature and intended purpose of the community lots 1-89 can also be inferred from the nature of the developments already existing on those lots and from their present use and disposition.
It may reasonably be inferred that the proposed community title land division is designed, among other things, to give greater security of title to those existing “owners” of the cabins and to those who have “permanent” caravan sites which presently house their own caravans. The planning consultant retained by the respondent, in his submission to the DAC, said:
Currently, the cabin owners do not hold any form of secure tenure, having ‘purchased’ their cabins/caravans from the park operator through a basic financial transaction only. The proposal will be similar to the State Government’s shack freeholding policy, in that it provides security of tenure and facilitation of improved environmental outcomes.
…
The proposal will not intensify the current use of the land. The proposal simply formalises tenure for those currently using the park holiday purposes.
As the Commissioner of the ERDC, in his reasons, observed:
Approval to the proposal would facilitate, potentially, individual ownership of the community lots and would “regularise” owner occupancy for the improvements thereon, though it is the proposal and intention of the appellants that the land division is to reinforce the existing tourist accommodation/caravan park land use with the park continuing to be managed as a single entity by an on-site resident caretaker, whilst also ensuring that the cabins/caravans and camping areas would only be used for temporary tourist accommodation.
It may also be inferred that the cabins and caravans presently on those intended allotments will continue to be occupied exclusively by their respective owners, albeit principally at weekends and during periods of vacation, and that any future development or redevelopment on those allotments will be similarly used. It is unlikely that any cabin or caravan on such allotments will be available for casual hire, although that possibility cannot be excluded.

Relevant provisions of the Development Plan

As mentioned above, the relevant Development Plan is the Mid Murray Council Development Plan.
There are many provisions of the Development Plan relevant to a subdivision of this nature. It is not necessary for present purposes to refer to all of them. They were the object of consideration by the DAC and ERDC. It is sufficient to identify those which point to the objectives and purposes of the relevant zone and to the type of development contemplated by the zone provisions.
The land is located in the River Murray Zone - Recreation and Tourism Policy Area (“the Recreation and Tourism Policy Area”). However, in order properly to construe the provisions applicable to the Recreation and Tourism Policy Area, it is necessary also to consider the relevant provisions of the River Murray Zone - Shack Settlement Policy Area (“the Shack Settlement Policy Area”). Those provisions assume particular relevance because there are two such policy areas immediately to the southeast of the subject land and almost contiguous with it and with each other. They cover settlements known as Punyelroo North and Punyelroo South.
Objective 10 of the Council Wide Objectives is:
Division of land for purposes appropriate to the location and intended use of the land.

That objective reinforces the views I have expressed above as to what must be taken into account in considering development which consists of the subdivision of land.

By way of introduction to the Recreation and Tourism Policy Area the Plan provides:
Background
The Area is the prime location for recreation and tourism activities in the Murray Valley outside of the urban areas. The co-location of similar uses will assist in the economic provision of public infrastructure and services required to support tourism and recreation facilities. In addition the concentration of like facilities will minimise aesthetic and other impacts along the River and hence ensure considerable parts of the River are maintained in either a rural or natural character.
The visual impact of development from the River itself or adjoining land should be minimised through design treatments and landscaping, but it is recognised the Area is the location for potentially high densities of built form and residential occupancy.
[Emphasis added]
So far as is relevant the provisions relating to the desired future character of the Policy Area are:
…
Continuation of primary production in the Policy Area is appropriate, but this will need to have regard to managing land use practices to ensure tourism and recreation uses are not adversely affected.
Residential development required to manage recreation and tourism development is appropriate in the Policy Area.
…
Accommodation:
There should be a range of accommodation types to cater for visitor needs including:
·       Bed and breakfast: small-scale establishments providing basic bed and breakfast needs, often using existing character buildings;
·       Farm stay: farmhouse, cottage or bunkhouse style accommodation in a working farm atmosphere;
·       Guesthouse: small-scale owner-operated establishments;
·       Hikers huts: 4-6 person, small scale huts with limited services often in remote locations;
·       Nature retreats and eco-style tourist accommodation: low impact and designed to encourage and facilitate an appreciation of the natural environment; or
·       Serviced apartments: small to medium scale accommodation.
…
The following uses are acceptable in the Tourism and Recreation Policy Area:
·       marinas;
·       offices and shops associated with tourism development;
·       dwellings required for management of recreation and tourism development;
·       tourist accommodation including camp sites, caravan parks, hostel, bunkhouses, guest houses and farmstay;
·       infrastructure to support desired uses; and
·       water and land based recreation.
The following uses are unacceptable in the Tourism and Recreation Policy Area:
·       retail;
·       urban residential; and
·       industry.
…
[Emphasis added]
The relevant Objectives of the Recreation and Tourism Policy Area are as follows:
Environment
Objective 1:      Development and the use of land for recreation and tourism facilities which does not contribute to the degradation of the River Valley and Flood Plain, especially significant wetlands.
Recreation
Objective 2:      A range of recreational activities compatible with the local character of the River Murray.
Tourism
Objective 3:      Sustainable development of tourism enterprises consistent with the local character of the River Murray and/or to complement local primary production.
Objective 4:      Development of a range of accommodation types to meet visitors needs.
Objective 5:      Tourism and recreation uses developed in an orderly and economic manner.
[Emphasis added]

So far as is relevant the Principles of Development Control provide:
Form of Development
1Development should not be undertaken unless it is consistent with the Desired Future Character and Acceptable Uses for the Zone and Recreation and Tourism Policy Area.
…
Built Form and Design
…
16Residential development should be limited to that required for management and or supervision of tourism and recreation development.
…
Land Division
22Allotments should be located and be of size and configuration which:
(a)     takes account of environmental features and site constraints;
(b)     provides sufficient space in appropriate locations for the siting of buildings, structures and associated services and infrastructure; and
(c)     is able to satisfactorily accommodate an appropriate use of the land consistent with the site’s land capability and suitability.
Complying
26Complying forms of development are listed in Schedule 4 of the Development Act Regulations.
Non-complying Development
27The following kinds of development are non-complying in the Recreation and Tourism Policy Area.
Dwelling other than:
(a)     a detached dwelling on an allotment of 36ha or greater in size; or
(b)     required for the management or security of an authorised tourism or recreation use; and
…
[Emphasis added]
There are effectively no listed complying forms of development in Schedule 4 of the Development Regulations. The complying developments listed in Part 1 of Schedule 4 do not apply to development in the River Murray Zone,[15] of which this Policy Area forms part. Part 2 of Schedule 4 merely lists certain types of development which are declared to comply with the building rules for the purposes of s 36 of the Development Act. It does not list any forms of development which might be said to be complying developments for the purposes of s 35 of the Development Act.
[15] Development Regulations 2008, Schedule 4, Part 1, Item A1.
It will be noted from the passages I have emphasised the significance given to tourism and recreational activities and developments within the Policy Area, and also to the nature of short term casual visitor accommodation.[16]
[16] See especially “Desired Future Character – Accommodation” and Objective 4.
Mr Henry SC, counsel for the respondents, argued, by reference to other and much larger Recreation and Tourism Policy Areas covered by the Development Plan, that it was unlikely that in every such area not one property could be occupied by its owner because that would make it unavailable to casual renters. That argument ignores certain other aspects of the Policy Area provisions. They contemplate continuation of primary production, residential development required for management and supervision of tourism and recreation development,[17] and detached dwellings on allotments of 36 ha or greater.[18] That does not detract from the requirement of the Policy Area for smaller allotments, especially those having river frontages, to which the major objectives and purposes of the Policy Area will apply.
[17] Policy Area Desired Future Character and Principles of Development Control 16 and 27(b).
[18] Policy Area Principle of Development Control 27(a).
It will also be noted that Principle 27, subject to the two exceptions mentioned above, provides that a dwelling is a non-complying development. The Development Regulations define “dwelling” as meaning “a building or part of a building used as a self-contained residence”.[19] It does not have to be a self-contained residence, but merely has to be used as such. There is no evidence that any of the cabins erected on the proposed allotments are used as permanent residences. They are capable of being used as such, even though not all of them may have laundry facilities. The fact that laundry may be done in a common ablutions block does not prevent the cabins from being used as residences.
[19] Development Regulation 2008, reg 3(1) and Schedule 1.
The words “residence”, “resident” and “reside” may have different meanings according to their context. They will take particular colour if used, for example, in dealing with admission to mental hospitals;[20] in prescribing qualifications for electoral registration;[21] in residential tenancy legislation;[22] in liquor licensing legislation;[23] or in legislation relating to adoptions.[24]
[20] Head v Head [1963] P 357, 362.
[21] Fox v Stirk and Bristol Electoral Registration Officer, Ricketts v Cambridge Electoral Registration Officer [1970] 2 QB 463.
[22] Foreman v Beagley [1969] 3 All ER 838, 841-842.
[23] West v Coombes [1941] VLR 134, 137-138.
[24] Re Application for Adoption of M (1992) 112 ACTR 39, 46.
While permanency is often an essential ingredient, it is not necessarily so. The Shorter Oxford English Dictionary defines “residence” as including one’s “usual dwelling place or abode”, but it also includes “the fact of living or staying regularly at or in some place for the discharge of special duties”. It also defines “reside” as “to dwell permanently or for a considerable time, to have one’s settled or usual abode”. The Macquarie Dictionary defines residence as being “the place, especially the house, in which one resides; dwelling place; dwelling … the act or fact of residing”. It defines “reside” as meaning “to dwell permanently or for a considerable time; have one’s abode for a time”.
There is no doubt that a person can have two residences. Baron Wood in Attorney General v Coote[25] said:
It is no uncommon thing for a gentleman to have two permanent residences at the same time, in either of which he may establish his abode at any period, and for any length of time.

Ridley J in Stock-on-Trent Borough Council v Cheshire County Council[26] described the place of residence of a person as being “the place where he eats, drinks and sleeps”.

Australian authority[27] also supports the view that a person may reside in more than one place at any one time.

[25] (1817) 4 Price 183, 188.

[26] [1915] 3 KB 699, 706.

[27] Robertson v Federal Commissioner of Taxation (1937) 57 CLR 147, 163, Dixon J; Gregory v Deputy Federal Commissioner of Taxation (WA) (1937) 57 CLR 774, 777-778, Dixon J.

In Fox v Stirk and Bristol Electoral Registration Officer; Ricketts v Cambridge City Electoral Registration Officer[28] a question arose as to the entitlement of students at the Universities of Bristol and Cambridge respectively to be registered on the register of electors for the university towns, as they were not resident there on the qualifying date. In the course of his judgment Lord Denning MR said:[29]
I prefer to go by the ordinary meaning of the word “resident.” I follow Viscount Cave L.C. in Levene v Inland Revenue Commissioners [1928] A.C. 217, 222, where he said:
“… the word ‘reside’ is a familiar English word and is defined in the Oxford English Dictionary as meaning ‘to dwell permanently or for a considerable time, to have one’s settled or usual abode, to live in or at a particular place.’ ”
I would also take into account, as the statute says, the general principles formerly applied and have regard to the purpose and other circumstances of his presence at or absence from the address. Hence I derive three principles. The first principle is that a man can have two residences. He can have a flat in London and a house in the country. He is resident in both. The second principle is that temporary presence at an address does not make a man resident there. A guest who comes for the weekend is not resident. A short-stay visitor is not resident. The third principle is that temporary absence does not deprive a person of his residence. If he happens to be away for a holiday or away for the weekend or in hospital, he does not lose his residence on that account.
… People who have houses or flats in London and houses in the country can be on the register for both, because they are resident in both, but they can only vote at one. So also with students: they can be on the register for their homes and for their university towns, but they can only vote in one.
I think that a person may properly be said to be “resident” in a place when his stay there has a considerable degree of permanence.
[28] [1970] 2 QB 463.
[29] Ibid 475.

Whether a building is used as a self-contained residence will be essentially a question of fact. In this case the evidence points to the owners and likely future owners of the cabins retaining exclusive possession of the cabins, decorating and furnishing them with their own furniture and to their own taste, providing their own heating and hot water and equipping them for use as their own, albeit temporary, residences. A significant factor is and will be the occupation or exercise of the right to occupy the cabins by the owners to the exclusion of any other person. The evidence therefore suggests that the cabins at least will be used as self-contained residences, which use is a non-complying development in the policy area concerned. Although they were described as “cabin” in most of the development applications for their erection, where a number of owners have obtained approval for extensions they have been described in the Council decision notification as “Dwelling Extension”.
It is relevant to consider also the provisions of the Development Plan relating to the Shack Settlement Policy Area. The background to the creation of that Policy Area is stated in the Plan:
Background
The River is of high recreational and aesthetic value to all who use it. The shack areas along the River display an interesting physical and social character. This character stems from many factors, not the least of which is a close-knit built-form, high-density of development and the close physical relationship between individual residential buildings. This form has contributed to developing a strong community which regularly re-establishes itself year after year at holiday times.
Whilst the main purpose of the Area is to provide for existing shacks, restricted additional residential development is contemplated to ensure orderly and economic provision of the full range of physical infrastructure including common effluent disposal, public access, and in some cases, reticulated water.
The need to establish the Shack Settlement Policy Area has resulted from investigations and subsequent Government policy which determined that the tenure of existing shacks on Crown land could be converted to freehold providing specified pre-conditions were achieved. A similar approach to securing long-term tenure has been adopted on Private land, providing however environmental, access and liability matters relative to flooding. Notwithstanding these investigations, the Area is located in the flood plain and re-occurring flooding will occur from time to time. To minimise damage, building layout restrictions are specified.
As part of its desired future character the policy area “should derive a unique residential character and physical form” from various factors which are then set out, including the form of residential development which has evolved over a number of years. Acceptable uses for the policy area include residential development “as specified in conditions including new dwellings on vacant sites which can be adequately serviced and with floor levels elevated above ground level”.
Because the Shack Settlement Policy Area was originally Crown land on which shacks had been erected by their respective “owners” under licence, Objective 7 of the Policy Area provides:
Objective 7: Land division enabling security of tenure for identified dwellings sites.
The creation of an allotment to accommodate an existing dwelling and enable completion of development of existing shack areas, whether located on Crown land or Private land, is acceptable subject to meeting various criteria, including upgrading of waste control systems and effluent disposal, land division requirements, access to a public road, public access to the waterfront, the creation of waterfront reserves for conservation and water quality purposes, other environmental considerations, and acceptance of liability in respect of flooding.
The principles of development control applicable to the policy area include detailed provisions relating to waste disposal, built form and design, including the number, type and form of built development on a particular site. They include detailed provisions as to scale, roof height and type, verandahs and decks, roof and wall materials, treatment of windows and doors, use of particular materials and use of particular design techniques. Principle 14 provides:
14Caravans and garages or sheds or any other type of structure (other than an existing dwelling) shall not be used as a self-contained residence.

Each of the identified Shack Settlement Policy areas covered by the Plan has a limit to the number of dwellings which may be erected in that policy area.
Among the kinds of development listed in Principle 25 as non-complying is Shack Settlement Policy Area is that of a “caravan park”.
The contrast between the provisions of the two policy areas is immediate and obvious. The Recreation and Tourism Policy Area is not designed to become a residential area, whereas the Shack Settlement Policy Area is. Because of that there are detailed and comprehensive provisions contained in the Shack Settlement Policy Area relating to the type and placement of residential buildings in the area, provisions which are absent from those relating to the Recreation and Tourism Policy Area. The emphasis in the Recreation and Tourism Policy Area is on developments relating to recreation and tourism, including short-stay casual accommodation and caravan parks. The emphasis in the Shack Settlement Policy Area is on permanent residential development and separate ownership, with a caravan park being a non-complying development. Unlike Objective 7 of the Shack Settlement Policy Area, the Recreation and Tourism Policy Area has no objective providing for “land division enabling security of tenure for identified dwellings sites”.
The Shack Settlement Policy Area is an area of holiday house accommodation for use by the respective owners. There may be some permanent residents but relatively few. The proposed development would promote a use of cabins remarkably similar to that encouraged by the Shack Settlement Policy Area provisions but with none of the safeguards or restrictions imposed on such development by those provisions.

Assessment against the provisions of the Development Plan and s 33(1)(d) Development Act

(a) Tourist Accommodation

On the hearing of this appeal there was no argument directed to the suitability of the individual allotments for their intended purpose or the adequacy of layout or siting or provision of services. There was no argument that the proposal did not represent an orderly and proper physical planning outcome, or as to any other detailed planning objections. The argument related only to the assessment of the proposal against the relevant objectives and principles of the Development Plan and the matters referred to in s 33(1)(d) of the Development Act and the application of the relevant provisions of the Community Titles Act. I turn first to the Development Plan.
I have already referred to the consistent emphasis in the provisions of the Development Plan relating to the Recreation and Tourism Policy Area to the provision of recreation and tourism facilities, to the provision of accommodation types to meet visitors’ needs and to the discouragement of residential accommodation.
There is an undoubted emphasis on the provision of tourism and recreation facilities, tourism and recreation uses, tourism and recreation developments and on catering for visitor needs. Tourist and recreation developments will therefore cover a wide range of possible activities to accommodate the needs of tourists and visitors and those seeking recreational activities associated with the use of the River Murray. That includes “tourist accommodation” and “accommodation to meet visitor needs”. Both those expressions are used in the Policy Area provisions.
Tourist accommodation in its broadest meaning is not necessarily confined to the provision of lodgings for tourists. As Debelle J observed in Paradise Development (Investments) Pty Ltd v District Council of Yorke Peninsula & Anor[30] it is “that which supplies the wants or needs of tourists or is a convenience to tourists”. However, the expression takes its meaning from its context in the Development Plan.
[30] [2008] SASC 139, [33].
Apart from dwellings “required for management of recreation and tourism development”,[31] the provisions of the Development Plan describing the desired future character of the Policy Area indicate that the type of accommodation which is acceptable in the Policy Area is “tourist accommodation including camp sites, caravan parks, hostel, bunk houses, guest houses and farm stay”. The relevant provisions contemplate a range of accommodation types to cater for visitor needs, all of which provide only for casual visitor accommodation and short term hire. Nowhere do the provisions relating to the Policy Area contemplate permanent accommodation or residential accommodation of any kind other than for the purposes of servicing the tourist industry. This is in marked contrast with the provisions of the Development Plan relating to the adjacent Shack Settlement Policy Areas, where exclusive residential accommodation, albeit of a non-permanent nature, is encouraged.
[31] Recreation and Tourism Policy Area provisions, Desired Future Character, Acceptable Uses; Principle of Development Control 16.
I have already referred to Paradise Development (Investments) Pty Ltd v District Council of Yorke Peninsula. The proposed development in that case was a series of two-storey townhouses or row dwellings in what had been zoned as the “Commercial (Port Vincent Marina) Zone”. That zone, together with an adjoining zone known as the “Residential (Port Vincent Marina) Zone”, and which comprised largely residential allotments, covered the whole of the existing Port Vincent marina development. One of the principles of development control of the Commercial Zone provided that development “should comprise a mixture of tourist accommodation and waterfront commercial uses, with tourist accommodation uses located over commercial uses in appropriate locations”. That was held to exclude permanent dwellings of the type the subject of that application. Having reviewed the context in which the relevant provisions appeared, Debelle J said:[32]
Viewed objectively, the proposed development is not of the kind that falls under the heading of tourist accommodation, even if that expression, when used in the provisions in this zone, includes lodging for tourists. Tourist accommodation refers to the provision of lodgings by a hotel, motel, boarding house, backpacker’s hostel, holiday cabins or the like. It does not refer to substantial three bedroom apartments containing all the paraphernalia of a dwelling including kitchen, living area and dining room. Apartments of this kind might be used regularly or occasionally to provide lodgings for tourist but they are not tourist accommodation, no matter what meaning is given to that expression. …
[32] [2008] SASC 139, [37].
Similar views were expressed by his Honour Judge Bowering, the then senior judge of the ERDC, in Croser Brothers Pty Ltd v District Council of Yankalilla.[33] That decision concerned the interpretation of the Tourist Accommodation (Normanville) Zone as prescribed by the District Council of Yankalilla Development Plan. His Honour said:[34]
There is, I think, a distinction to be drawn between accommodation for tourists and travellers, on the one hand, and holiday houses or shacks, on the other. One would not generally regard people going to stay for a period in their holiday home as a tourists or travellers. Tourists and travellers are generally accommodated in dwellings or premises which they do not own, for example, motels, caravan parks, etc. …
For these reasons, I do not regard a land division the purpose of which is the creation of allotments upon which to construct holiday homes or shacks as being a division to provide allotments on which to place “development catering principally for tourists and travellers”. In so saying, I have not overlooked Mr Mellor’s submission that holiday houses are sometimes let out to tourists or travellers, but that can occur with any form of dwelling and it does not, in my view, detract from the distinction to which I have referred.

I respectfully agree with those observations.

[33] [2001] SAERDC 86.

[34] Ibid [24].

Debelle J, in the Paradise Development case, was concerned with the physical nature of the structure as proposed. As his Honour noted, holiday cabins would normally be included in the expression “tourist accommodation”. The proposal in this case includes the subdivision of land to accommodate existing and future holiday cabins. However, here we are concerned not with physical structures which are or which might be placed on the allotments and be properly described as holiday cabins. We are concerned with the likely use to be made of the allotments if the subdivision proceeds. All the evidence points to the use of such cabins and caravans as accommodation for the exclusive use of the owners of the allotments or their nominees, and to the exclusion of short-term casual visitor accommodation contemplated by the Policy Area provisions.
It is no answer to say that this contemplates no change of existing use. I accept, as did King CJ in Courtney Hill Pty Ltd v SA Planning Commission,[35] that the extent of variance from a Development Plan must be judged in the context in which the project under consideration will be implemented. In that case the context included the fact that the shopping complex in question, which was sought to be extended, was a protected existing use which would continue. The use which this proposed subdivision would encourage is not such a protected existing use. It is one which has evolved under the cover of development approval for construction of holiday cabins in a caravan park for what appeared to be tourist and visitor accommodation.
[35] (1990) 59 SASR 259, 263.
It is also no answer to say that, without the proposed subdivision, the owner could lease or license the use of the cabins and caravan sites for a period of five years and 364 days without the need to obtain development approval.[36] It will require development approval if such licensing is likely to involve a change of use from an existing lawful use.[37]
[36] See Development Act 1993 s 4, definition of “division of an allotment”, par (c).
[37] Ibid, definition of “development” par (b).
Although there was no evidence in this case as to the ownership of caravans in caravan parks generally, I am prepared to accept that a caravan park as contemplated by the Policy Area provisions includes a park in portion of which owners may, if the owner of the park permits, park their own caravans for their own exclusive intermittent use for long periods of time. 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.
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.

(b) Residential accommodation

I have already concluded that the evidence in this case pointed to the fact that most of the existing cabins and any cabins to be constructed or modified in the future on the proposed allotments will be used as self-contained residences or “dwellings”. That is a use not contemplated by the Policy Area provisions. Indeed, the only residential use contemplated in the Policy Area by the Development Plan is that required for the management of a recreation and tourism development.
For that reason also the proposal is not in accordance with the provisions of the Development Plan.

(c) Section 33(1)(d) Development Act

In its context I take the phrase “separate occupation” in s 33(1)(d)(i) of the Development Act to mean separate occupation by the owner of a community allotment under the Community Titles Act. While some or most of the allotments may be suitable in themselves for that purpose, I have said enough to indicate that in the Recreation and Tourism Policy Area such separate occupation is not consistent with the requirements of the Development Plan. If anything, the Policy Area provisions require the maintenance of single occupation of the whole area by a caravan park proprietor who has sufficient control to let out caravans and cabins for short-term hire.
The proposal is, having regard to the Development Plan, not appropriate and does not comply with s 33(1)(d).

(d) The Development Plan and the Development Act – post script

This conclusion may seem harsh on those who have spent possibly substantial sums of money in “purchasing” their own holiday cabins for their exclusive use. The erection of the cabins in itself, with Development Act approval, was not contrary to the Development Act. What appears to have occurred at the time was an additional undisclosed change of use to one of exclusive residential accommodation.
It may be that a caravan park in that particular location does not attract a large number of casual visitors seeking that type of accommodation. One can only speculate as to whether different marketing might change that. That reason in itself is not a reason to allow development inconsistent with the provisions of a Development Plan. If permanent accommodation of the type apparently sought on this site is to proceed, it will be necessary to effect an appropriate amendment to the Development Plan. I repeat what I said in Alexandrina Council v Strath Pub Pty Ltd:[38]
Nor is it any answer to ignoring the Objective and the Principles of Development Control to say that the Objective of the plan cannot be or is unlikely to be achieved. On the evidence before him it was not open to the Commissioner to make such a finding. But even if it were, it is not open to a planning authority to ignore the essential thrust and objective of the Plan. If the view is taken that for some reason the objective is not achievable, it is for the relevant planning authority to decide upon an amendment to the Plan after due preparation and consideration of a Plan Amendment Report in accordance with the requirements of Part 3 of the Development Act, and after the sort of consultation that the legislation requires. The perceived inability of the Development Plan to be carried out is no reason to ignore it in respect of a particular application for development.
[38] [2003] SASC 382, [39]; (2003) 129 LGERA 389, 400. The only qualification necessary is that this amendment now proceeds by a Development Plan Amendment by a Council or by the Minister: Development Act 1993, Part 3, Div 2, Subdivision 2. See also Courtney Hill Pty Ltd v SA Planning Commission (1990) 59 SASR 259, 262-263 King CJ.

Community Titles Act

I have already referred to the requirement under the Community Titles Act for the preparation of a community scheme description. The scheme description proposed for this subdivision contained a definition of “tourist/holiday accommodation” to which I have already referred. The effect of that definition was to limit the occupation of a community lot by the owner so as not to exceed four weeks at any one time, and to ensure that the rental of a community lot to another person could not exceed a period of two weeks. That definition was fundamental to a number of provisions of the community scheme description.

That description was also reflected in the conditions of the approval determined by the ERDC in granting its consent, a matter to which I will need to return.
As I have already observed, there were no draft by-laws to support the scheme description placed before either the DAC or the ERDC. It is a requirement of the Act that by-laws of a community scheme “must … regulate the use and enjoyment of the community lots to the extent necessary to give effect to the scheme description”.[39] Such a significant restriction as that contained in the definition is clearly one which would have to be the subject of a by‑law. Perhaps it is not surprising that no suggested by-laws were submitted, for it would be contrary to s 37(1)(c) of the Community Titles Act for any by-laws to give effect to the proposed definition of “tourist/holiday accommodation”. Section 37 of the Community Titles Act provides:
[39] Community Titles Act 1996, s 34(2)(d).

37—Restrictions on the making of by-laws
(1)     Subject to subsection (2), a by-law cannot—
(a)     prohibit or restrict the transfer, transmission, leasing (including the granting of a right of occupation) or mortgaging of, or other dealing with, a lot; or
(b)     impose a monetary obligation on the owner or occupier of a lot except where the by-law provides for the exclusive use of part of the common property; or
(c)     prevent access by the owner or occupier or other person to a lot; or
(d)     prevent an occupier of a lot who suffers from a disability from keeping a dog on the lot or restrict the use of a dog by the occupier if the dog is trained to assist the occupier in respect of that disability; or
(e)     prevent a visitor to the community parcel who suffers from a disability from using a dog trained to assist the visitor in respect of the disability.
(2)A by-law may prohibit or restrict the owner of a lot from leasing or granting rights of occupation in respect of the lot for valuable consideration for a period of less than two months.

Section 41 of the Community Titles Act provides:
41—Invalidity of by-laws
(1)Subject to this section, by-laws are invalid to the extent to which they are inconsistent with—
(a)     this Act or any other Act or subordinate legislation made under this or any other Act; or
(b)     the scheme description filed with the community plan; or
(c)     a development contract filed with the community plan; or
(d)     a development contract of a secondary or tertiary scheme that comprises part of the community scheme to which the by-laws relate; or
(e)     in the case of the by-laws of a secondary scheme—
(i)    the scheme description of the primary scheme; or
(ii)     the by-laws of the primary scheme; or
(f)    in the case of the by-laws of a tertiary scheme—
(i)    the scheme descriptions of the primary or secondary scheme; or
(ii)     the by-laws of the primary or secondary scheme.

(2)A by-law will be taken to be inconsistent with a scheme description, the by-laws of another scheme or a development contract if, and only if, there are no circumstances in which the by-law can operate consistently with the scheme description, by-laws or development contract.¹

Note—
1For instance if the scheme description provides that the community lots will be used for residential purposes without specifying the kinds of residential use, the by-laws may prohibit some kinds of residential use such as flats or boarding house accommodation but cannot prohibit all kinds of residential use.

It follows that a core element of the scheme description, and one which was crucial to rendering the scheme compliant with the provisions of the Development Plan, could not be given effect by any appropriate by-law. In these circumstances, it would not be reasonably possible for either the DAC or the ERDC, as a relevant planning authority, to have endorsed the scheme. For that reason also the scheme as proposed was bound to fail.

The Use of Conditions

The Commissioner of the ERDC published to the parties his reasons for an interim conclusion that there was likely to be sufficient compliance of the proposal with the Development Plan. Those reasons ultimately became his substantive reasons for the decision. In an accompanying memorandum to the parties he outlined “a few matters that needed to be resolved either before or as part of the approval process and part of the issue of new titles”. Those matters included:
· non-permanency of residential occupation of lots be detailed and confirmed (potentially as a condition or by a prior agreed Land Management Agreement, and reinforced by such reference in the Scheme Description) as intended, as it would be useful to assist the planning authorities in monitoring and if necessary, undertaking enforcement action to minimise or stop such occurrences; and
…
The Commissioner heard further argument and, by way of addendum to his previously published interim decision, granted Development Plan consent subject to a number of conditions.
In the course of that addendum the Commissioner said:
The DAC presented comprehensive draft conditions flowing from the contents of the Memorandum, the intent of the appellant, and the directed conditions of the EPA and the Minister. However, a strong note of caution was expressed by counsel for the respondent as to the unusual nature of the conditions and the proposal; with respect to one or two, their arguable legal validity; and that caution should be exercised as to any reliance on the ability of the planning authority to enforce the contents of the Scheme Description or the By-laws under the Community Titles Act 1996. I was encouraged to review my conclusions in the Memorandum.
Counsel for the appellant responded with an amended version of the draft conditions. In the main, they were generally agreed, subject to the cautionary note from counsel for the respondent. Counsel for the appellant also submitted that the submissions of the respondent were an overstatement of the position with regard to the potential validity or enforceability of the draft conditions and the usefulness of the material in the Scheme Description, at least as part of a warning/information mechanism for potential purchasers/owners/occupiers and the corporate body.
The conditions imposed by the Commissioner largely followed the suggestion of the DAC. They included the following:
2.No community lot, except for Piece 90, shall be used as a dwelling as defined under Schedule 1 of the Development Regulations 2008 or for the construction of a dwelling nor shall any community lot, except for Piece 90, be available for occupation on any permanent or regular basis as if it were a dwelling.
3.No community lot, except for Piece 90, shall be occupied by its owner for more than four weeks in any three-month period.
4.No community lot, except for Piece 90, shall be occupied by any person other than its owner for more than two weeks in any three-month period.
5.No building or caravan shall be permanently placed on any vacant community lot as at the date of this order/consent.
6.Community lots, together with any buildings and caravans thereon, shall be made available for rental when not being occupied by the owner of the community lot.
On the hearing of this appeal those conditions were the subject of criticism by the DAC. The respondents’ retort, in part, was that they were inserted at the suggestion of and were drafted by the DAC. Its opposition to the conditions was therefore disingenuous.
I reject that submission. It is clear that the DAC was unconditionally opposed to the application. It only prepared the suggested conditions after the Commissioner had made clear that he proposed to grant the application. It is not surprising in those circumstances that the DAC would then adopt, as it did, a fallback position, albeit one with which it disagreed. The Commissioner referred in the passage quoted to the “strong note of caution” expressed by counsel for the DAC, to the arguable validity of the conditions and to the fact that, even at that late stage, the Commissioner was being encouraged by the DAC to review the conclusions he had reached.
The reservations expressed by counsel for the DAC about the conditions were justified. Conditions 2-6 are severe restrictions on the use to which a community lot may be put. These are inconsistent with the very nature of the creation of an estate in fee simple in the community allotments. They seek to restrict occupation of the allotments by the respective owners and to compel the owners to deal with their respective allotments in a very specific way.
Condition 2 purports to regulate the use of the community allotments. Many restrictions on the use of land of that nature occur through Development Plan provisions. That is as it should be in a properly planned environment. However, to impose such severe restrictions by conditions attached to a Development Approval is to usurp the role of the Development Plan itself. The fact that such a condition was considered necessary is an indication that the proposed development will in itself give rise to a form of land use which the Development Plan seeks to proscribe in this Policy Area. It is also an indication that the condition is necessary for the purpose of ensuring compliance with the provisions of the Development Plan. I will return to the use of conditions for such a purpose.
Conditions 3 and 4 are contrary to the clear legislative policy behind s 37 of the Community Titles Act. They seek to qualify, by an unauthorised means, the operation of the Community Titles Act on which the respondents relied in order to obtain Development Approval for this project. They constitute an unauthorised restriction on the operation of the Community Titles Act. That Act, by s 37, manifests a clear Parliamentary intention that an owner’s right of access to a community allotment is not to be restricted. What cannot be lawfully achieved by by-laws cannot be achieved by the alternative means of the use of Conditions under the Development Act.
Condition 5 is a condition of such a restrictive nature that one is tempted to ask why such lots were included in the proposed subdivision at all.
Condition 6 is not authorised by the Community Titles Act. A by-law under s 37(2) of that Act may prohibit the leasing of an allotment for less than a two-month period. It does not authorise the imposition of a requirement to lease an allotment. The condition would be contrary to s 37 of the Community Titles Act. In any event, it is a condition which is quite unworkable in practice. There is no limit to the amount of rent which an owner may require. Merely nominating a prohibitive rental will ensure that the lot will not be rented. As an attempt to ensure compliance with the requirements of the Development Plan, that condition fails.
Section 30(1)(h) of the Community Titles Act requires that all conditions of a Development Approval be incorporated in the community scheme description. On doing so they therefore become part of the community scheme description. For the reasons already explained, those conditions cannot be given effect by valid by-laws. They encounter the same objection as the restrictions contained in the definition of “tourist/holiday accommodation” in the scheme description to which I have already referred. It is not possible for a relevant authority reasonably to condone such a restriction, let alone prescribe it.
While the ERDC also imposed a condition[40] requiring the operator and caretaker to keep records of all rentals and occupation of community lots for inspection by the DAC and the Mid-Murray Council “so as to ensure compliance with the foregoing conditions”, such a condition is of doubtful validity. It purports to impose a personal obligation on a person who has no interest in the land. Furthermore, it places no obligation on the community lot holder to make any information available to the operator and caretaker. In short, the ability to police and enforce any of the above conditions becomes impracticable, quite apart from the validity of some of them.
[40] Condition 7.
So far I have only addressed those conditions from the point of view of their validity under the Community Titles Act and their practicality. There is, however, a more serious issue concerning their validity under the Development Act.
As I have observed, this is a case about land use, not about the suitability of structures on the proposed allotments. The application deserved to be refused because its likely effect would be to frustrate the operation of the relevant provisions of the Development Plan and to allow the use of allotments contrary to those provisions. The only way of preventing what was likely to be obvious disconformity with the Development Plan was by way of conditions attached to the Development Approval. That was an impermissible use of conditions. I repeat the Full Court’s endorsement of the relevant principle in McKenzie Constructions Pty Ltd v Development Assessment Commission:[41]
[41] [1999] SASC 386, [40]; (1999) 74 SASR 539, 546-547, Bleby J, Doyle CJ and Wicks J agreeing. See also Upham v The Grand Hotel (SA) Pty Ltd and the Development Assessment Commission (1999) SASC 414, [178]; (1999)74 SASR 557, 587, Doyle CJ and Bleby J, Wicks J concurring.
The power to impose conditions on development plan consent is contained in s 42 of the Act. It is a wide power, but there are constraints on its use. It cannot be used to obscure the primary question which a planning authority must ask itself, namely having regard to the objectives and principles of the relevant development plan, is the proposal a suitable and appropriate use of the land. Having identified that primary question the trial judge in this case then said:
It is only after that question has been answered affirmatively that the planning authority should turn its attention to appropriate conditions. This court has repeatedly reminded planning authorities that this is the correct approach: see, for example, Beer v South Australian Planning Commission (1988) 142 LSJS 20 at 25 and, on appeal, Beer v South Australian Planning Commission (1988) 65 LGRA 159 at 162-163; 145 LSJS 284 at 289-290; Remove-All-Rubbish Pty Ltd v City of Salisbury (1989) 51 SASR 26 at 34; and South Australian Housing Trust v Lee (1993) 81 LGERA 378 at 390.

As Jacobs J said in Beer v South Australian Planning Commission (at 25):
The primary question with which planning authorities are concerned is the question of land use, whether a proposed development, including a change of use, is compatible with the relevant provisions in the Development Plan and the orderly and proper planning of the locality. It is only when that question has been answered in the affirmative that the authority should concern itself with questions of management, and indeed there has been an alarming trend on the part of some planning authorities to use planning conditions to bring the management of the land, once planning approval has been given, under planning control and in some cases thereby to usurp the functions of other government or semi-government authorities.

He made observations to like effect in Remove-All-Rubbish Pty Ltd v City of Salisbury (at 34):
The primary concern of a planning authority is to control land use and the first question to be addressed should always be whether in the circumstances the proposed development is at least prima facie a suitable and appropriate use of the subject land having regard to the provisions of the Development Plan. To approach a planning decision by framing conditions designed to make a proposal suitable and appropriate is to bypass the primary question.

This reasoning was followed in South Australia Housing Trust v Lee.
The power to impose conditions is vested in a planning authority for the purpose of enabling it to regulate incidental aspects of the development so that it does not have an adverse effect upon the amenity of the neighbourhood of the development, either in the course of construction or when the development is completed. And so it is that conditions frequently deal with such matters as landscaping, stormwater drainage, advertising and other signs, and fencing. Not infrequently, conditions will impose a constraint upon the use to be made of the proposed development in the form of a restriction upon hours of use or a limit as to the level of noise. But there is an important difference between conditions of that nature, which deal with incidental aspects of the proposed development and the intended use of the land, and conditions which restrain the very nature and essence of the development in a way which requires the development or the land to be used in a way significantly different from the use or uses intended. The power to impose conditions is not provided to enable a planning authority to alter the nature of the proposal and hedge it about with conditions which are unworkable, unenforceable, and seek to confine the development in a kind of strait jacket which will constrain the development from being used in the ordinary way. Resort to the use of such conditions is tantamount to an acknowledgment that the proposed development is inappropriate for the subject land."

These were not conditions which dealt with incidental aspects of the proposed development and the intended use of the land. They would constrain the very nature of the development. They would require a very different use from that which the proposed development would otherwise allow and which would allow the proposed development to be used in its ordinary way. Their imposition is tantamount to an acknowledgement that the proposed development is inappropriate for the subject land. They were beyond the power of the ERDC to impose.

The errors made by the ERDC

In conclusion, I should identify the errors which I consider were made by the ERDC.
The Commissioner failed to properly interpret the provisions of the Development Plan relating to the Recreation and Tourism Policy Area. He wrongly concluded that tourist accommodation and accommodation to cater for visitor needs included exclusive rights to occupy by the owner where the accommodation in question was not the owner’s principal residence, whereas in the context of the relevant provisions of the Development Plan, it means no more than casual hired accommodation. The development application was not consistent with the promotion of that type of development.
The Commissioner failed to properly appreciate that the application required an analysis not merely of the existing or likely improvements on the proposed community allotments, but the use to which they would be put and whether that use was consistent with the provisions of the Development Plan as properly construed.
The Commissioner did appreciate that the Policy Area was not intended to accommodate “dwellings” as defined in the Development Regulations 2008 and was concerned that the allotments should not be used for full-time residential purposes. However, he failed to appreciate that the present and proposed uses of the cabins on the allotments for exclusion owner accommodation constituted them dwellings for the purpose of the Regulations. He also erred in holding that the proposed use of the cabins was for tourist accommodation to cater for visitor needs.
In deciding that there was no change of use to be brought about by the development, the Commissioner failed to consider whether the existing use of the proposed allotments was a lawful use. I acknowledge that, in taking the course that he did, the Commissioner was influenced by the proposed scheme description which purported to limit the rights of occupation and access to the proposed community allotments. However, in doing so he failed to take account of the mandatory provisions of the Community Titles Act and of his own role in endorsing the scheme description.

Finally, in proposing the conditions he did, he did so contrary to requirements of the Community Titles Act and for a purpose which went beyond the permitted role of the conditions in granting Development Approval under the Development Act.
These are errors of law in respect of which an appeal lies as of right to this Court.[42] It is not necessary to consider whether permission to appeal should be granted.
[42] Environment, Resources and Development Court Act 1993, s 30(2).