Development Assessment Commission v Lawry

Case [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)…

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AGLC
Development Assessment Commission v Lawry [2011] SASC 14
Case
[2011] SASC 14
Decision Date

CaseChat Overview and Summary

The Development Assessment Commission appealed against the granting of development approval by the council to subdivide an existing allotment into community title lots, with the appeal focusing on the appropriateness of the subdivision within the Recreation and Tourism Policy Area. The allotment was presently developed as a caravan park, and the proposed subdivision was to be governed by a community title scheme under the Community Titles Act 1996 (SA), with conditions restricting the right of residence. The appeal raised issues concerning the compatibility of the subdivision with the Development Plan, the meaning of tourist accommodation and visitor needs, the interpretation of the Community Titles Act, and the validity of the imposed conditions.

The court examined whether the consent granted by the council was in accordance with the proper construction of the Development Plan and whether the subdivision was consistent with its objectives and principles. The court found that the Development Plan contemplated tourism and not residential use of the land, and that the proposed subdivision did not align with the objectives of the Recreation and Tourism Policy Area. The court held that the subdivision could not be rendered compliant by any by-laws and that the conditions imposed by the Commissioner were not valid under the Community Titles Act 1996 (SA). The court further concluded that the use of conditions to achieve the objectives and purposes of the relevant Policy Area in the Development Plan was impermissible.

The appeal was allowed, and the grant of development approval was set aside. The court's decision emphasised the importance of adhering to the Development Plan and the objectives of the Recreation and Tourism Policy Area in approving developments within the area. The court held that the proposed subdivision was not in accordance with the provisions of the Development Plan, and that the conditions imposed by the Commissioner were not valid under the Community Titles Act 1996 (SA). The decision serves as a reminder to councils and applicants of the need to carefully consider the compatibility of proposed developments with the Development Plan and the objectives of the relevant Policy Area.

Orders

Orders of the court

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Background

Background to the litigation

By way of introduction to the Recreation and Tourism Policy Area the Plan provides:BackgroundThe 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:EnvironmentObjective 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.RecreationObjective 2: A range of recreational activities compatible with the local character of the River Murray.TourismObjective 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]

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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