Dicker v Kingston District Council - [2011] SASC 193

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
DICKER v KINGSTON DISTRICT COUNCIL
[2011] SASC 193
Judgment of The Honourable Justice Kourakis
10 November 2011
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONTROL OF PARTICULAR MATTERS - RURAL AND AGRICULTURAL - GENERALLY
The respondent refused the appellants' application for development approval of a proposed sub-division - appellants' appealed to the Environmental, Resources and Development Court (Environment Court) - Commissioner of the Environment Court dismissed appeal - appellants' appealled to a single Judge of the Supreme Court pursuant to ss 30(1)(b) and 30(2) of the Environment Resources and Developmet Court Act 1993 - whether the Commissioner erred in its construction of provisions of the Kingston District Council Development Plan (Development Plan) - whether the Commissioner ultimately erred in dismissing the development application.
Held: Appeal dismissed - no sufficiently arguable error of primary fact, or of reasoning in the evaulation of primary facts identified - Commissioner's evaluation of the facts and making of its planning judgment was a proper exercise of the function of the Environment Court - no error in the construction of the Development Plan which would have affected the Commissioner's ultimate conclusion
Town of Gawler v Impact Investment Corporation Pty Ltd (2007) 99 SASR 115, discussed.

DICKER v KINGSTON DISTRICT COUNCIL
[2011] SASC 193
Civil

Kourakis J: On 19 November 2009 the appellants, the Dickers, lodged an application with the respondent, Kingston District Council (Kingston Council), for development approval of a proposed sub-division of a, roughly rectangular, 57.75 hectare parcel of land (the subject land) on the northern outskirts of Kingston in the southeast of the State. The Dickers reside in a house on the land and the remainder is used as low intensity grazing land and to mine sand. The Dickers propose to sub-divide the land into 14 housing allotments of between 1 hectare and 1.5 hectares, leaving 38.33 hectares for their residence and for grazing a reduced number of stock. The mining operations would move onto adjacent land, also owned by the Dickers, further to the north of the subject land.
Kingston Council refused the development application on 9 February 2010. The Dickers appealed to the Environment Resources and Development Court (the Environment Court). A Commissioner of the Environment Court (the Commissioner) dismissed the appeal on 20 July 2010.
The Dickers complain that the Commissioner made many errors. In essence, however, the grounds of appeal can be condensed to two complaints, which comprise, as particulars, the multiplicity of grounds which are pleaded.
First, it is complained that the Commissioner misconstrued the applicable provisions of the Township Fringe Policy Area 3 (the Fringe Policy Area) of the Kingston District Council Development Plan (the Development Plan). The Dickers contend that the reference to “detached dwellings on large allotments” in Principle of Development Control (Principle) 1 of that policy area, includes large housing blocks. It is contended that the “semi-urban or urban-related uses” mentioned in Objective 3 of the Fringe Policy Area includes “rural living” residential uses. Generally, they argue that the Objectives and Principles for the Fringe Policy Area must be read subject to the implication arising from the very title of the policy area, and in a way which supports the division of farming land into residential sub-divisions comprising residences in rural settings. Those contentions should be rejected. On a proper construction of the Objectives and Principles of the Fringe Policy Area, the reference to large allotments is a reference to allotments of a size comparable to holdings associated with primary production. Equally, “semi-urban or urban-related uses” does not mean close residential developments. The name of a policy area, on occasion, may assist in the construction of otherwise ambiguous Objectives and Principles, but it cannot displace them.
The second of the Dickers’ complaints is that the Commissioner gave insufficient weight to the prevailing conditions on the ground. They point to the previous approval of similarly sized allotments adjoining, and in the vicinity of, the subject land. The Dickers also emphasise the poor quality of the subject land as agricultural land. It is contended that these environmental circumstances justify approval, even if there be some variance from terms of the Development Plan. In my view, those grounds complain of errors of fact in the making of a planning judgment. The assessment of a development against a Development Plan, properly construed, is a factual exercise resulting in an evaluative planning judgment. The planning judgment made by the Commissioner is precisely the sort of judgment the Environment Court was established to make. There was much to support the conclusion to which he came.
The appellants have not clearly identified a sufficiently arguable error of primary fact, or of reasoning in the evaluation of primary facts. Rather, the Dickers hope, on this appeal, to obtain a fresh assessment of the proposal against the Development Plan by this Court, which is an appellate court and not the expert tribunal dedicated by the legislature to perform that task. Permission should be refused.
I explicate my reasons below.
The locality
The subject land in its longest dimension runs north-south, roughly parallel with the coast which lies to the west and with the Princes Highway to the east. The Fringe Policy Area is within the Primary Production Zone of the Development Plan. The township of Kingston lies to the south. To the south, the subject land is bound by Toops Road. To the east, and between the subject land and Princes Highway, there are two grazing properties, of 31 and 40 hectares, with a single dwelling on each. To the south-east, and south of Toops Road, there are some smaller dwellings and allotments in a Rural Living Zone. South of Toops Road there are also some smaller allotments within the Primary Production Zone which were created many years ago as part of a development of an area which was to be known as Rosetown. However, those allotments have since been amalgamated into three larger parcels and are now used for pasture. The subject land is bounded on its western side by Toops Road North. To the west of Toops Road North there are three existing allotments, with dwellings, located within the Coastal Open Space Zone. There is no further development between those allotments and the coast itself; the allotments are separated from the shore by sparsely vegetated sand dunes.
On the south-western boundary of the subject land are ten allotments created as a result of an earlier sub-division undertaken by the Dickers and approved in 2005. These ten allotments are comprised within an L shaped parcel of land which runs down Toops Road North and then along Toops Road. To the north of the subject land is another rural allotment owned by the Dickers.
Primary production on the Subject Land
The Dickers run about 18 cattle and calves and five crossbred rams on the subject land. In his evidence, Mr Dicker estimated that if the sub-division were to proceed he might need to cull his herd by one to three cows. He described the subject land as “below average” land.
An agricultural consultant, Mr Ellis, testified that the land was being farmed well below its potential. Much of the pasture on the land was weeds, and soil fertility was low. With weeding and the application of superphosphate, Mr Ellis estimated that the area of the proposed sub-division was capable of supporting 14 Angus cows and calves or 107 Merino ewes and lambs. That evidence was contradicted in general terms by the testimony of a farmer, Mr Howe, who had grazing properties close to Kingston. He described the Dickers’ land as poor farming land and the loss of the land to development as insignificant. Mr Howe has known Mr Dicker for about 23 years. The Commissioner placed little weight on his evidence.
The Dickers complain, on this appeal, that the Commissioner placed too much weight on Mr Ellis’s evidence and, in particular, failed to have regard to the extent that he modified his opinions in cross-examination. I refuse permission to appeal on this quintessentially factual ground. No clearly arguable error has been identified. There is no question of general importance. The cross-examination shows that whilst Mr Ellis accepted certain propositions put to him based on Mr Dicker’s current farming practices, he maintained that the sub-division would permanently and substantially detract from the productive capacity of the Fringe Policy Area.
Development Plan Provisions
In my opinion the most relevant provisions of the Development Plan to the assessment of the proposed development are as follows:
Primary Production Zone
OBJECTIVES
1    Economically productive, efficient and environmentally sustainable primary production.
2    Allotments of a size and configuration that promote the efficient use of land for primary production.
3    Protection of primary production from encroachment by incompatible land uses and protection of scenic qualities of rural landscapes.
4    Development that contributes to the desired character of the zone.
…
PRINCIPLES OF DEVELOPMENT CONTROL
Land Use
1     The following forms of development are envisaged in the zone:
▪ commercial forestry
▪ dairy farming
▪ diversification of existing farming activities through small scale tourist accommodation within existing buildings; or in the form of farm stay, guesthouse, rural or nature retreat, or bed and breakfast accommodation as an integral part of the farm buildings complex
▪ farming
▪ horticulture
▪ intensive animal keeping.
…
5     Buildings should primarily be limited to farm buildings, a detached dwelling associated with primary production on the allotment and residential outbuildings that are:
(a) grouped together on the allotment and set back from allotment boundaries to minimise the visual impact of buildings on the landscape as viewed from public roads
(b) screened from public roads and adjacent land by existing vegetation or landscaped buffers.
6     A dwelling should only be developed if:
(a)there is a demonstrated connection with farming or other primary production
(b)the location of the dwelling will not inhibit the continuation of farming, other primary production or other development that is in keeping with the provisions of the zone
(c) it is located more than 500 metres from an existing intensive animal keeping operation unless used in association with that activity
(d) it does not result in more than one dwelling per allotment.
Land Division
14     For land not within a policy area, land division, including boundary realignments, should only occur where it will promote economically productive, efficient and sustainable primary production and not create any allotment less than 40 hectares in area.
15     Land division involving boundary realignments should only occur where the number of resulting allotments of less than 40 hectares is not greater than the number that existed prior to the realignment.
Township Fringe Policy Area 3
OBJECTIVES
1     A policy area primarily for low-intensity primary production compatible with the adjoining urban areas.
2     Preservation of rural character and scenic features as a backdrop to the town.
3     A policy area containing primarily rural development but also special semi-urban or urban-related uses which do not impair the predominantly open farmland character of the policy area and which provide an attractive entrance, and edge, to       the urban area.
4     Retention of the open character of the land in the policy area to provide an attractive setting for the township and a buffer between urban activities and the rural area.
5     Development that contributes to the desired character of the policy area.
DESIRED CHARACTER
This policy area provides a buffer between the open rural and the urban or proposed urban areas. The land is primarily used for agricultural purposes although it includes the parklands and a number of small rural allotments north of Rosetown.
The policy area also includes the airfield and the septic tank effluent lagoons. Some areas east of the town are subject to seasonal inundation. Some of the land is low-lying adjacent to the coast and may be affected by coastal flooding; development will need to be built to specific levels to minimise the risk from coastal flooding.
PRINCIPLES OF DEVELOPMENT CONTROL
Land Use
1    The following forms of development are envisaged in the policy area:
▪       detached dwellings on large allotments
▪       farming
▪       low-intensity primary production.
…
Form and Character
5     Development should not be undertaken unless it is consistent with the desired character for the policy area.
6     Dwellings should be confined to a detached dwelling associated with primary production on the same allotment.
…
8     Existing vegetation should be retained and development of structures should include landscaping adjacent to roadside boundaries to provide an attractive entrance to towns as viewed from public roads and to enhance the scenic contrast between urban development and rural areas.
9     This policy area should accommodate farming and development which services the township, and includes the site for the Kingston SE township septic tank effluent lagoons at Section 580 Hundred of Lacepede, and the airfield.
10     The intensity of development should be such that it does not have an adverse impact on the amenity of the policy area or adjacent urban development.
…
Land Division
16    Land should not be divided unless:
(a)no additional allotments are created
(b)the number of resulting allotments of less than 40 hectares is not greater than the number that existed prior to rationalization
(c)each allotment is capable of providing a site for a dwelling and suitable access
(d)the land is not subject to inundation.
General Section
Interface between Land Uses
OBJECTIVES
1     Development located and designed to prevent adverse impact and conflict between land uses.
2     Protect community health and amenity and support the operation of all desired land uses.
…
Land Division
OBJECTIVES
1     Land division that occurs in an orderly sequence allowing efficient provision of new infrastructure and facilities and making optimum use of existing under utilised infrastructure and facilities.
…
4     Land division restricted in rural areas to ensure the efficient use of rural land for primary production and avoidance of uneconomic infrastructure provision.
…
PRINCIPLES OF DEVELOPMENT CONTROL
…
18     Rural land should not be divided if the resulting allotments would be of a size and configuration likely to impede the efficient use of rural land for any of the following:
(a)primary production
(b)value adding industries related to primary production
(c)protection of natural resources.
19     Rural land should not be divided where new allotments would result in any of the following:
(a)fragmentation of productive primary production land
(b)strip development along roads or water mains
(c)uneconomic costs to the community for the provision of services
(d)prejudice against the proper and orderly development of townships
(e)removal of native vegetation for allotment boundaries, access roads, infrastructure, dwellings and other buildings or firebreaks
…
Orderly and Sustainable Development
OBJECTIVES
…
2     Development occurring in an orderly sequence and in a compact form to enable the efficient provision of public services and facilities.
3     Development that does not jeopardise the continuance of adjoining authorised land uses.
…
PRINCIPLES OF DEVELOPMENT CONTROL
1     Development should not prejudice the development of a zone for its intended purpose.
2     Land outside of townships and settlements should primarily be used for primary production and conservation purposes.
…
6     Development should be located and staged to achieve the economical provision of public services and infrastructure, and to maximise the use of existing services and infrastructure.
…
8     Vacant or underutilised land should be developed in an efficient and co-ordinated manner to not prejudice the orderly development of adjacent land.
Construction of the Development Plan
Even though the Fringe Policy Area is governed by its particular Objectives and Principles, it remains part of the Primary Production Zone (the Zone). The proposed development is inconsistent with the Objectives of the Zone. Indeed, Objective 3 of the Zone is generally opposed to the proposed development. Moreover, Principles 5 and 6 of the Zone contemplate only housing development which is associated with primary production.
Importantly, many of the Objectives and Principles of the Development Plan warn against the infiltration of rural zones by uses which are not related to primary production.[1]
[1] See Principle 10 of the Fringe Policy Area; Land Division Objectives 1 and 4 and Principles 18 and 19; Orderly and Sustainable Development Objectives 2 and 3 and Principles 1 and 2.
Overall, the purposes manifested by the Objectives and Principles of the Fringe Policy Area are twofold. The first is to moderate the intensity of rural production within it so that it does not interfere with adjoining urban residential uses. The second is to make some of the land available for uses ancillary to the urban areas to the south.
It is in that sense which the appellation “Township Fringe” is to be understood, and so understood it carries no implication that the area is to be put to more town like uses than rural ones. The Development Plan expressly delineates the Fringe Policy Area from the nearby Rural Living Zone where, for example, allotments of one to two hectares are expressly allowed.
In my view, the phrase “special semi-urban or urban-related uses” in Objective 3 of the Fringe Policy Area should be read compendiously. The nature of those uses is to be gauged from the remainder of Objective 3; they are uses which do not impair the farmland character of the policy area and provide an attractive entrance to the urban area. It is not necessary, and almost certainly unwise, to be prescriptive about the meaning of the term. However, in my view, its denotation includes such things as water, electricity and other like infrastructure, sporting clubrooms and recreational facilities. The Kingston airfield and effluent lagoons are located within the Fringe Policy Area. It will be a question of fact in each case whether the development is a semi-urban or urban related use and whether it has planning merit. Plainly, however, what is envisaged are uses which have some connection with the township of Kingston to the south but which will not ultimately incorporate the Fringe Policy Area into the township. That position is reinforced by Principle 6 of the Fringe Policy Area, which provides that the construction of dwellings should be confined to detached dwellings associated with primary production on the same allotment, and by Principle 9, which specifically refers to “development which services the township”.
In the context of the Objectives and Principles to which I have referred, the reference to large allotments in Principle 1 of the Fringe Policy Area does not include even quite large housing blocks. I accept that large allotments are not restricted to allotments of more than 40 hectares, as is perhaps suggested at paragraph [41] in the reasons of the Commissioner. There may be existing allotments, or allotments created in the future, which, for good reason, are less than 40 hectares notwithstanding the nature of the Fringe Policy Area. The construction of a detached dwelling on such an allotment may not always be inconsistent within Principle 1. However Principle 16, which proscribes sub-divisions which increase the number of allotments of less than 40 hectares, shows that the housing blocks between 1 and 2 hectares, should, in the context of the Fringe Policy Area, be characterised as small, not large.

The circumstance that the proposed development of allotments of less than 40 hectares is not a non-complying development means no more than that in the Fringe Policy Area, such developments must be assessed on their merits against the Development Plan. It also has the statutory consequence that an adverse assessment can be reviewed by the Environment Court on an appeal brought by the proponent. A sub-division which results in an increased number of allotments of less than 40 hectares might, in its particular circumstances, have sufficient planning merit to be approved even though it is inconsistent with Principle 16. However, the failure to specify such a development as a non-complying development does not mandate an unduly wide construction of the other Objectives and Principles of the Development Plan which would greatly facilitate the approval of much smaller sub-divisions.
On a proper construction of the Fringe Policy Area Objectives and Principles, appeal grounds 1.1, 1.2, 1.3, 1.5, 1.7, 1.8 and 6 must be dismissed.
Continued relevance of the Development Plan to changed conditions on the ground
Appeal ground 1.10 complains that the Commissioner did not properly apply the statement of principle in Town of Gawler v Impact Investment Corporation Pty Ltd (Town of Gawler).[2]
[2] (2007) 99 SASR 115.
In Town of Gawler,[3] Bleby J identified the following matters which might affect the weight to be given to particular Objectives or Principles in a Development Plan:
[3] (2007) 99 SASR 115 at [81].
1The language of the principle or principles concerned — whether it is direct or contemplates some flexibility in approach.
2Whether the relevant principle is in conflict with some other applicable planning principle. That is likely to happen only rarely, in which case the more specific principle may displace the more generally expressed principle.
3The evident purpose and objective of the policy expressed in the principle or principles concerned.
4The significance of the policy to this particular development. The clearer the policy in its application to a particular development, the more compelling the reasons for departing from the policy will need to be.
5Where the policy contemplates possible degrees of compliance, the extent of the development’s compliance with the policy.
6Consistency of the development with other objectives and purposes of the zone.
7Whether there is something unusual about the development or the land on which it is to take place which makes the policy inapplicable or inappropriate.
8Whether other events have happened since the Development Plan was adopted which make the policy redundant, either generally or in respect of this particular development.
9The probable effect of non-compliance with the policy on the planning objectives of the zone; and
10Whether non-compliance with the policy in this case is likely to encourage other non-complying developments in the zone.
The Objectives and Principles of Development Plans are generally specified for council wide zones and policy areas, by reference to particular classes of developments, or particular planning issues, and, on occasion, by reference to particular sites. Moreover, the Objectives and Principles are directed towards a wide range of planning objectives. There will necessarily be a degree of tension between the provisions of a Development Plan. Some Objectives and Principles may militate for a development and others militate against it.[4] Nonetheless, a proposed development must be assessed against all of the provisions of a Development Plan which, on their terms, apply to that development. Subject to an exception mentioned in the next paragraph, it is erroneous to proceed on the basis that an Objective or Principle is irrelevant to a development merely because the land on which the development is proposed is not, as a matter of fact, suitable for a development of the sort assigned by the Development Plan to that zone. That is because the prescription of a particular use or uses for a zone gives rise to both a positive and negative implication. The positive is that the zone is suitable for a particular use. The negative implication is that other uses should be located elsewhere, not only because they may interfere with the uses contemplated by a Development Plan, but also because a policy decision has been made that they are better located elsewhere. However, it must be remembered that those objectives are applied generally. There may be reason, as a matter of planning judgment, to approve a development despite some variance from the Development Plan, in the circumstances of a specific case.
[4] See Town of Gawler v Impact Investment Corporation Pty Ltd (2007) 99 SASR 115 at [81].
The exception to which I referred above is this. It may appear expressly, or by implication from the text and context of a Development Plan, that an Objective or Principle is premised or conditioned on the existence of certain facts or circumstances. Where those facts are shown not to exist, the principle, properly construed, can have no application. I understand the eighth consideration mentioned by Bleby J In Town of Gawler v Impact Investment Corporation Pty Ltd[5] to refer to those cases where, as a matter of construction, an Objective or Principle of a Development Plan is conditioned on a premise which, as a matter of fact in the particular case, has been falsified.
[5] (2007) 99 SASR 115 at [81].
There is no such express or implied precondition to the Objectives and Principles to which I have referred, which would render them inapplicable to the proposed development. The productive capacity of the subject land is not such as to diminish, in any material respect, the weight and force of those Objectives and Principles in their application to the proposed development. In particular, even though there are undoubtedly more fecund holdings than the subject land in the area, it is still being exploited for primary production and that production can probably be improved with better farm management.
Nor were the sub-divisions in the vicinity of the subject land which had already been approved of such a nature as to diminish the weight to be attributed to the Objectives and Principles in their application to the proposed development. The Commissioner was not satisfied that those nearby allotments had “changed the character of the policy area or locality to such an extent that the desired character sought is no longer attainable.”[6] The approval under an earlier plan of residential sub-divisions is not a significant factor in favour of approval. Indeed, on balance, the existing approved allotments emphasise the importance of guarding against an incremental creep which would undermine the provisions of the Development Plan.
[6] Dicker v Kingston District Council [2011] SAERDC 30 at [47].
The duty of the Commissioner was to assess the development against the applicable Development Plan. If, as is implicitly suggested by some of the evidence in this matter, there is policy merit in amending the Objectives and Principles of the Fringe Policy Area, there is a statutory process available to do so. It is not a reason to ignore or give a strained meaning to, the existing Objectives and Principles of the Development Plan.
The proposed development was plainly repugnant to the terms of Principles 6 and 16 of the Fringe Policy Area. There is no clearly identified reason to doubt the Commissioner’s assessment of the proposed development against the other extant provisions of the Development Plan. The sub-division of land within the Fringe Policy Area for housing developments would reduce the amenity of the Kingston Township by reducing space for supporting infrastructure for the township and by diminishing the visual amenity of its outskirts. It would also put pressure on the remaining farming and low intensity primary production within the Fringe Policy Area and on farming generally in the adjacent zones.
Permission should not be given to agitate on appeal the factual soundness of the Commissioner’s planning judgment on the merits of the development. Accordingly, appeal grounds 1.4, 1.9, 1.10, 2, 3, 4, 5 must also be dismissed.
Conclusion
The appeal is dismissed