District Council of Coober Pedy v Aboriginal Family Support Services
[2014] SASCFC 133
•28 November 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
DISTRICT COUNCIL OF COOBER PEDY v ABORIGINAL FAMILY SUPPORT SERVICES
[2014] SASCFC 133
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Parker)
28 November 2014
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL
The Aboriginal Family Support Services Inc (AFSS) established community support facilities on residential land in Coober Pedy and applied for development approval. The Panel found that the proposed development, which comprised both offices and consulting rooms, was non-complying under the Coober Pedy Development Plan. The District Council of Coober Pedy (Coober Pedy) now appeal against a decision of the Environment, Resources and Development Court of South Australia (the ERD Court) which set aside its decision refusing to approve the development proposed by AFSS. The ERD Court determined that the proposed application was not a non-complying development.
Held by Kourakis CJ (Vanstone and Parker JJ agreeing) allowing the appeal:
In describing the true nature and character of the Giles Street house as a community support facility, the ERD Court failed to recognise the use of Rooms 2, 3 and 7 as offices. The rooms used as offices are not an insignificant portion of the house and as such, the proposed development is a non-complying office development (Kourakis CJ at [40]).
The ERD Court considered whether the development should be approved on its merits, finding that it should. It is not necessary to resolve this issue given the finding that the development is non-complying. No appeal lay to the ERD Court against the Panel’s refusal. The appeal on this issue is upheld (Kourakis CJ at [42]).
The ERD Court made an error of law in its construction of the Development Plan or gave weight to an irrelevant consideration (Kourakis CJ at [43]. The appeal is allowed, the orders of the ERD Court are set aside and the AFSS’s appeal to the ERD Court is dismissed (Kourakis CJ at [46]).
Development Act 1993 (SA) s 4; Acts Interpretation Act 1915 (SA) s 14; Development Regulations 2008 Schedule 1, referred to.
Chappel Investment Company Pty Ltd & Anor v The City of Mitcham (2009) 103 SASR 184, applied.
Aboriginal Family Support Services Inc v District Council of Coober Pedy [2014] SAERDC 18, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"Non-complying development"
DISTRICT COUNCIL OF COOBER PEDY v ABORIGINAL FAMILY SUPPORT SERVICES
[2014] SASCFC 133Full Court: Kourakis CJ, Vanstone and Parker JJ
KOURAKIS CJ: This is an appeal brought by the District Council of Coober Pedy (Coober Pedy) against the decision of the Environment, Resources and Development Court of South Australia (the ERD Court) setting aside its decision refusing to approve a development proposed by the respondent, Aboriginal Family Support Services Inc (AFSS). The development proposal was to establish community support facilities on residential land in Giles Street, Coober Pedy (the Giles Street land).
AFSS provides a range of social services to Aboriginal people in regional South Australia, including Coober Pedy. AFSS had previously operated from two locations in Coober Pedy. AFSS’s administrative centre was located in offices at the rear of a Housing SA building in Hutchison Street. AFSS also occupied a house in Cook Street, in residential Coober Pedy, from which it provided various social welfare programs. AFSS moved both operations into a house on the Giles Street land (the Giles Street house) which had previously been used as a domestic residence. AFSS commenced to operate on the Giles Street land before applying for development approval in December 2012.
On 6 April 2013, the Coober Pedy Development Assessment Panel (the Panel) determined that the proposed development comprised offices and consulting rooms, both of which uses were non-complying developments under the Coober Pedy (DC) Development Plan (the Development Plan). Coober Pedy’s determination was challenged by AFSS on the ground that Coober Pedy should have determined that the proposed development was to change the use of the Giles Street land to a community support facility. Nonetheless, AFSS supported its application on the basis that the development comprised offices and consulting rooms. On 10 October 2013, the Panel refused approval. AFSS appealed against that refusal to the ERD Court.
It is common ground that if AFSS’s proposed development was non‑complying it had no right to appeal against Coober Pedy’s refusal to approve its application. The ERD Court determined that the proposed application was not a non-complying development and heard the appeal.[1] Coober Pedy appeals against that decision. I will refer to that issue as the jurisdictional issue.
[1] Aboriginal Family Support Services Inc v District Council of Coober Pedy [2014] SAERDC 18.
The ERD Court went on to consider whether, on the premise that the development was not non-complying, it should be approved on its merits and found that it should. Coober Pedy also appeals against the decision on that issue on the ground that the ERD Court misconstrued the Development Plan. I will refer to that issue as the planning merits issue.
For the reasons appearing below, I would allow Coober Pedy’s appeal and set aside the ERD Court’s decision on the jurisdictional issue. Having so decided, it is not strictly necessary to decide the planning merits issue. However, in my view, Coober Pedy has also made good its complaint on that issue, and if the development was not non-complying, I would have remitted the matter to the ERD Court to determine in accordance with the proper construction of the Development Plan.
The subject land and locality
Giles Street is located immediately to the south of the Coober Pedy town centre. The land, which comprises 1,906 square metres, has a 69.5 metre frontage to Giles Street and 19.37 metre frontages to Eyre and Ferrall Streets.
The land is located within an essentially residential area, with houses developed over the majority of the large lots in the area. It was accepted that the locality was of “a mixed residential character of modest quality only with many undeveloped sites and poorly developed streetscapes.”
The Giles Street house comprises 10 rooms.
The operations of AFSS
AFSS’s operations were described in a statement of its senior manager, Mr Guppy, as follows:[2]
Aboriginal community’s members from across South Australia access AFSS services for a range of reasons, depending on their personal and family circumstances:
- Essentially, AFSS services are utilised by Aboriginal people across South Australia at various stages of their life. For example, some may be clients who are referred to AFSS through statutory requirements as per child protection legislation, where they have no choice but to participate in an AFSS program to ensure that their children either remain in their care or are placed back into their care.
- Over 130 Aboriginal families across South Australia are foster carers. They rely on AFSS to support them with the placement of foster children in their care. AFSS employs Carer Liaison Officers across most sites whose role is to support Aboriginal carer households in the care that they provide for children and young people under Guardianship of the Minister. Collectively, the carer households support over 120 Aboriginal children and young people who have been placed in care. AFSS’s foster carers play an important role in ensuring that Aboriginal children who have been removed from their families are placed in out of home care options which include extended family or an Aboriginal family from another area or with a non-Aboriginal family who will assist to ensure the children in their care maintain their connection to their own culture.
- AFSS Stronger Families program is also offered across most AFSS sites. A minimum of 70-80 Aboriginal families are assisted each year. The program is a referral only service where Families SA refer Aboriginal families directly to AFSS. The aim is to work with families to ensure their children are not removed due to neglect or abuse. AFSS also work with the family where the children or young people have been removed. The aim of this work is to address the issues which led to the removal with the ultimate aim of reuniting the family.
- AFSS Community Wellbeing suite of programs (e.g. Positive Parenting, Bonding with Children, Nutrition and Budgeting) are preventative in nature and are utilised by Aboriginal parents and families who, while not at risk of having their children removed, come to the attention of Families SA and others through early warning signs which if the families do not address, will increase the risk of their children being removed.
- The AFSS Gazetted role includes the provision of a Cultural Representative (an Aboriginal staff member) at each and every Family Care Meeting held across South Australia. The AFSS Cultural Representative attends as a support person to Aboriginal families whose children are subject to care and protection orders. AFSS ensure that the families are aware of the process and of their rights within the process.
- AFSS also provide a formal Court Response to each and every application presented to the Courts by Families SA for a Guardianship order. AFSS role here is to seek to ensure that every attempt has been made to keep Aboriginal children with their birth families and where this is not possible with their extended family.
- Aboriginal community members will also utilise AFSS services for financial problems, gambling and related matters and emergency assistance, advocacy and support (e.g. for housing, rental assistance, Centrelink payments, etc).
[2] Aboriginal Family Support Services Inc v District Council of Coober Pedy [2014] SAERDC 18 at [11].
Mr Guppy’s statement elaborated on the nature of the programs offered by AFSS. The Stronger Families program involves AFSS staff working with families who have had children removed from their care to develop a case plan that achieves reunification. The service is provided predominantly in the family’s own home.
The Family Based Foster Care program is one in which AFSS recruits, assesses, trains and supports Aboriginal and non-Aboriginal households to become carers. Carers are assessed over a period of time of up to five months. The assessment generally takes place in the carer’s home.
The Safe Pathways program focuses on family violence education, awareness and referrals. It includes the following group sessions:
·The women’s group, through which structured sessions develop, deliver information on domestic violence and related issues. The women are engaged in crafts to beautify their homes.
·The Active Boys group and the Active Girls group are used to provide information and access to services to young Aboriginal people. The activities include information sessions on the effects of alcohol and drug abuse, and family violence.
·Emergency relief – AFSS distributes grocery vouchers.
·Financial counselling is provided to members of the Aboriginal community and includes basic budgeting skills, advocacy with debtors, assistance with finalising debt repayments and other matters aimed at reducing the burdens of financial stress.
Mr Guppy explained that clients of AFSS who require counselling services are generally referred to a specific agency where appropriately qualified individuals are able to provide this service.
Mr Guppy was also called to give evidence. He testified that the incumbent financial counsellor had no professional qualifications but was undertaking further studies. He described the financial counsellor’s role as follows:
ACertainly; I guess that the position is called 'financial counsellor' because historically that's what those positions are about. They also can be known as 'low-income support program' which is more commonly used to describe this type of service. Essentially we're provided with small amounts of money, in fact $5,000 per annum by the Commonwealth Government to assist people who may be experiencing hardship, and so a part of that role assesses clients who come to the facility in terms of their need and ultimately that results in the provision of food vouchers for a local food store for community members who are waiting for payments from Centrelink and at that point in time have no other resources and they have children to feed. So the role is really meeting very basic needs and it involves some basic advocacy and liaison with perhaps Housing SA if there are rent arrears involved, with Centrelink if there are troubles - they're having difficulty providing information in order for Centrelink to make an assessment about their eligibility, some community education and awareness programs, perhaps some advice around basic budgeting.
QDoes the person who performs that role need to have professional qualifications.
ANo, that would be useful but the person in the role at the moment does not have any professional qualifications.
Mr Guppy testified that much of the work of AFSS included referrals to other agencies but that its staff also provided practical support:
AYes, certainly. Essentially with the families that we're working with Families SA, who are the statutory body who are able to remove children from families, would refer a family to us and tell us very clearly what this family needs to work on. Our role is to link them in with the relevant services who can support them, for example if they require drug and alcohol counselling then we would link them to an appropriate service. In some ways our staff who work with those families facilitate their access to relevant services.
QAnd where there's no service for a particular issue, would your staff provide some basic tools, some basic guidance and education.
ATo some extent. Our staff would provide very practical support to those families. If it's, for example, an issue around nutrition, the children are going to school and not eating, have no lunch, have no lunch money, so they might talk to them about basic budgeting, making sure they've got food for the children. But beyond that, if they're identified, if the case plan and the goals from Families SA require they have specific counselling and we are unable to provide it then we would close that case and refer it back to Families SA because we're unable to provide that level of support.
I turn now to the particular uses made by AFSS of the Giles Street house. I will refer to each room of the house by the number assigned to it in documentary evidence placed before the ERD Court.
Room 1 is a large L-shaped room which includes a reception area through which the public access the facility. In the corner of the L-shaped space is a kitchen. Room 1 is sometimes used as a staff meeting area and as a work space in which staff plan programs and services for clients. Some programs, including the nutrition and food preparation programs, are provided from Room 1.
Room 2 abuts the reception area and accommodates a single staff member who is assigned to the Family Based Care program. The staff member starts his or her working day in Room 2 by logging into a computer and checking diary appointments. The staff member then conducts home visits before returning to the room to complete forms associated with those home visits. That work includes scanning documents into electronic databases and sending them to other government agencies.
Room 3 abuts Room 2 and is also adjacent to the reception area. It houses two AFSS staff members who work on AFSS’s Safe Pathways program. The staff members convene the Active Boys group, the Active Girls group and other playgroup sessions which are held in Room 1, Room 10 or at other venues around Coober Pedy. At the end of the day the staff members complete reports on their work in Room 3.
Room 4 is accessed from a passageway which leads off from Room 1. It is the office of the single financial counsellor. At the beginning of the day the financial counsellor logs in and checks diary appointments. Clients sit in the room with the counsellor who then assesses their eligibility for food vouchers or helps them with budgeting and financial planning, Centrelink payments, rent arrears, and other financial issues. The client contacts are recorded on an electronic database.
Room 5 is a communication room which houses electronic hardware.
Room 6 is a spare supplies room which houses stationery, consumables, promotional pamphlets and other materials.
Room 7 abuts the second kitchen area of the Giles Street house. It houses two AFSS staff members who work in the Stronger Families program. At the beginning of each day they log into their computers and check diary appointments. The appointments include meetings with clients in the Giles Street house, in their homes, or at another service location. They undertake case planning in the room. Their clients are taught basic cleaning skills and food hygiene in either of Rooms 1 or 10.
Room 8 is adjacent to the second kitchen area. It is a confidential meeting room that is used as required across any of the programs. Clients are taken into the room to protect their privacy.
Room 9 is also adjacent to the second kitchen. It houses the facility manager who has overall responsibility for the delivery of services. The manager supervises and supports sessions for staff and liaises with head office. The manager also coordinates funding body reports and meets with guests from other service providers.
Room 10 is the second major kitchen in the building. Staff gather there in the morning to discuss their daily work schedules. It is used for team meetings and the sharing of information. It is also used to train AFSS staff. The Child Safe Environments and Infant Safe training programs are also carried out in Room 10 and sometimes in Room 1, for staff and clients who have young children or for potential or current foster carers.
The Development Plan
I set out below the applicable provisions of the Development Plan:
RESIDENTIAL ZONE
Introduction
The objectives and principles of development control that follow apply to the Residential Zone shown on Maps CoP/5, 6, 8 and 9. They are additional to those expressed for the whole council area.
The Residential Zone encourages residential development including medium-density housing forms within the Zone and facilitates the continuing development of existing institutional, community based and short term accommodation land uses.
The Zone recognises current land uses including caravan parks, motels, residential clubs and the hospital and accommodates the potential for expansion and/or redevelopment. There is however, the possibility of the eventual closure of such land uses accordingly. It is important that the Zone accommodates these current land uses and also recognises the potential use for residential purposes and other forms of tourist accommodation.
In considering the redevelopment of all or part of any of these sites, a comprehensive planning approach should be adopted to ensure well designed and integrated residential development is achieved. Any development on these sites must also give due consideration to the retention of heritage items.
It is not intended that hotel type development occurs within the Zone. Given the residential nature of the surrounding locality it is also not intended to allow the development of facilities that incorporate entertainment venues or other non‑accommodation uses that may generate excessive levels of noise and traffic.
OBJECTIVES
Objective 1: A zone accommodating institutional, community based and short term accommodation land uses.
Objective 2: A zone accommodating detached and semi-detached dwellings, row dwellings, group dwellings, residential flat buildings and aged persons accommodation.
...
Objective 6: The accommodation of non-residential development that provides a range of community services and facilities for residents that is compatible in scale to the existing or intended residential development does not have an adverse affect on the amenity of the locality.
Objective 7: Large scale hotel type uses should not be located within the Zone. It is also not intended that development of facilities that incorporate entertainment venues or other non-accommodation uses be undertaken within the zone.
PRINCIPLES OF DEVELOPMENT CONTROL
Form of Development
1. Development undertaken in the Residential Zone should be for the purposes of institutional, community based and short term accommodation land uses, nursing homes, rest homes and retirement villages.
2. Residential development including detached and semi-detached dwellings, row dwellings, group dwellings, residential flat buildings and aged persons accommodation is appropriate within this zone.
...
Existing Institutional, Community Based and Short Term Accommodation Land Uses
26. Development undertaken should ensure that the existing institutional, community based and short term accommodation land uses remains complementary to adjoining land uses.
27. Institutional and short term accommodation facilities should not incorporate entertainment venues or other uses which may generate excessive volumes of traffic or noise.
...
29. Small scale retail development in the form of kiosks, shops and food outlets that are ancillary and subordinate to and in association with existing short term accommodation and institutional land uses is appropriate.
…
32. Development should not cause a nuisance or disturbance to occupants of residential buildings in the locality by:
(a)the generation of excessive noise;
(b)the generation of excessive traffic movement;
(c)the creation of excessive glare from external lighting or building materials; or by
(d)a loss of privacy or solar access from sitting of buildings and facilities.
...
34. Development should provide sufficient off-street parking to accommodate demand generated by customers, visitors, employees and service vehicles.
35. Car parking areas should be located and designed in such a way as to ensure safe and convenient traffic circulation and minimal conflict between pedestrians and vehicles.
Non-complying Development
37. The following kinds of development including:
(a)the erection, construction, alteration or addition to a building or buildings for any of the following uses; and
(b)change in use of land to the following uses, are non-complying in the Residential Zone.
...
Consulting Room
...
Office with a gross leasable area greater than 50 square metres
...
Schedule 1 of the Development Regulations 2008 (SA) defines a number of planning terms for the purposes of the Regulations and Development Plans.
A ‘consulting room’ is defined to mean:
... building or part of a building (not being a hospital) used in the practice of a profession by a medical, veterinary or dental practitioner, or a practitioner in any curative science, in the provision of medical services, mental, moral or family guidance, but does not include a building or part of a building in which animals are kept for fee or reward.
‘Office’ is defined to mean:
... building used for administration or the practice of a profession, but does not include consulting rooms or premises where materials or goods are stored for sale or manufacture.
Section 4 of the Development Act 1993 (SA) (the Act) defines a building to include a portion of a building. By force of s 14 of the Acts Interpretation Act 1915 (SA), that definition applies to Development Plans unless a contrary intention appears.
The decision of the ERD Court
The ERD Court’s reasons for holding that the proposed development was not non-complying were as follows:[3]
Whilst it is clear that administration-type work will take place in these premises, when [the] proposal is looked at as a whole, the true nature and character of the development comprises far more than simply administration. The services to be provided include activities properly characterised as community meetings, education and training sessions and general community programs.
Understood in this way, we are of the view that the proposal is properly characterised as a form of institution or community support facility offering services primarily to the local Aboriginal community. As such, it is an undefined kind of development falling for consideration on merit.
[3] Aboriginal Family Support Services Inc v District Council of Coober Pedy [2014] SAERDC 18 at [55]-[56].
In its consideration of the planning merits of the proposed development, the ERD Court reasoned as follows:[4]
[4] Aboriginal Family Support Services Inc v District Council of Coober Pedy [2014] SAERDC 18 at [58]-[63].
As we have observed the subject land is situated within the Residential Zone. In the ‘Introduction’ to the Zone the authors of the Plan acknowledge that the Zone is intended to inter alia facilitate ‘the continuing development of existing institutional, community based ... land uses’.
It also identifies a limited number of specific types of community type uses, namely hotel type development, facilities incorporating entertainment venues and non‑accommodation uses generating excessive levels of noise and traffic, which are not intended.
Both Objective 1 and Principle of Development Control 1 adopt language which encourages institutional, community based land uses.
Furthermore, the language of Objective 6 appears to contemplate the type of development under consideration here or something very close to it when it refers to non residential development that provides a range of community services for residents compatible in scale to the existing or intended residential development and which does not have an adverse effect on the amenity of the locality.
In our view, the ‘overall intent and purpose and desired character of the zone’ is for:
·A range of different types of residential accommodation; and
·A range of non-residential development of an institutional or community service based nature, both existing and proposed, to serve the local community, save and except that any such community type use should not include facilities like hotels or entertainment venues.
When the intent and purpose of the Zone is understood in this way, subject to questions of impact on the amenity of the locality, the proposal is appropriately located in the Residential Zone.
The Jurisdictional Issue
The proper approach to the characterisation of a development for the purposes of ascertaining whether it falls within a prescribed use was described in Chappel Investment Company Pty Ltd & Anor v The City of Mitcham[5] as follows:[6]
[5] (2009) 103 SASR 184.
[6] (2009) 103 SASR 184 at [17]-[20], [27].
Construction of s 35 of the Act
Section 35(4), in its terms, requires nothing more nor less than a comparison of the proposed development to the kinds of development described as non-complying by the Development Plan. If the proposed development fits the description of one or more of the non-complying developments, the Environment Court has no jurisdiction to hear an appeal from the decision of a planning authority which has refused consent. Conversely, if the proposed development fits one of the kinds of development listed as complying, then s 35(1) of the Act will apply and the planning authority must grant its consent even though the development may also be described in another way. If the development “does not fall” into either category, it must be subjected to a merit assessment in accordance with s 35(5). It follows, subject to one qualification to which I will refer shortly, that the question asked by Bleby J is derived from both the text and structure of s 35 of the Act.
The manifest purpose of s 35 of the Act also supports the approach taken by Bleby J. A particular kind of development will be listed as complying or non-complying on the basis of a decision to encourage or discourage developments of that kind. The planning reasons for including a kind of development as one or the other are unlikely to be materially affected merely because a development which falls within the kind prescribed might also attract a different description under the Development Plan. Indeed, as a matter of semantics it will almost always be possible to describe a development in a number of different ways. Only minor differences of emphasis in the purpose, operation or marketing of a development may allow it to be classified in a variety of ways, even though the actual use of the land is, for all practical purposes, the same.
The purpose behind denying a planning authority the power to refuse consent for a complying development would be frustrated if that authority could refuse planning approval for a proposed development that was of a kind listed as complying on the grounds that the development could also be described in a way that was not listed as a complying development. Similarly, developers could walk around the listing of an obnoxious form of development as non-complying if the proposed development could also be described as a kind of development that was not proscribed. The object of the Act to promote proper, orderly and efficient planning would be frustrated if planning authorities were required to undertake semantic and metaphysical enquiries into the “true” character of proposed developments.
The appellants did not articulate any clear limit on where planning authorities or the courts could look to find legitimate alternative descriptions for developments. In this case the competing description was a form of development recognised in the Retirement Villages Act 1987. However, it is not clear to me why the construction and application of s 35 of the Act should be affected by quite unconnected legislation. It could not, for example, be suggested that the Act and the Retirement Villages Act 1987 should be read in pari materia. The appellants also referred to the use of the description “retirement villages” in other parts of the Development Plan and in the development plans of other municipalities. However, unless a development plan expressly, or by necessary implication, provides that a kind of development listed as complying or non-complying is to be understood as excluding developments of a kind mentioned elsewhere in the plan, there is no warrant in s 35 or any other provision of the Act to do so. It seems to me that the appellants’ approach necessarily leads to the position that if there is any form of words that better describes the proposed development than the descriptions of the prescribed complying and non-complying developments, then that development must be assessed pursuant to s 35(5) of the Act. That approach would frustrate the manifest purpose of s 35, which is to provide for a greater degree of certainty for prescribed developments than is the case for developments which are subject to a merits assessment pursuant to s 35(5) of the Act. ...
It should not be thought that an assessment of the development as a matter of practical reality has no part in the application of s 35 of the Act. A realistic appraisal of what the development entails is as important in deciding whether it is complying or non-complying as it is when assessing its merits. That is, I think, just another way of emphasising that it is the substance of the development for which approval is sought that is important, and not the mere form of the application or applications.
(footnotes omitted)
Turning to the uses of the Giles Street house, it appears to me that Rooms 2, 3 and 7 are offices. The completion of paperwork, converting the hard copy to digital electronic form, and then transmitting and storing it, is clerical work of an administrative nature. The connection between that work and the consultations with clients both within and outside of the Giles Street house reinforces the characterisation of the work as administrative. For example the room resorted to by a salesperson, or a consultant, after visiting clients on their premises, to prepare, record and transmit associated documents would generally be described as an office. The room in which the financial counsellor works readily answers the description of an office. Similar use of a room by a person providing financial planning advice on investment and superannuation matters or providing business advisory services would undoubtedly characterise that room as an office. The circumstance that the advice provided by AFSS is as a community welfare service and not commerce cannot alter the nature of the land use.
On the other hand, I doubt that running the AFSS programs in Rooms 1 and 10 renders those rooms offices or consulting rooms. Running the programs is not administrative work. Nor am I satisfied that the rooms are used as consulting rooms. Even if it be accepted that the programs provide family guidance, I am not satisfied that the AFSS employees who deliver the programs are practitioners in a curative science. Persons who share with others their family living skills, which are commonly acquired as part of daily life, are not aptly described as practitioners in a curative science.
The use of Rooms 5, 6, 8 and 9 are ancillary to the program and office uses of the other rooms. The administrative work undertaken by the facility manager would not render Room 9 an office if the use of the Giles Street house was limited to the delivery of the programs in Rooms 1 and 10.
In describing “the true nature and character” of the Giles Street house as a community support facility, the ERD Court failed to recognise the use of Rooms 2, 3 and 7 as offices. In so doing, the ERD Court made the error described in [19] of Chappel Investment Company Pty Ltd & Anor v The City of Mitcham.[7] The relevant question was not whether the use of the Giles Street house or a significant part of it is better described as a community support facility. The question was, whatever other description might also be given to the Giles Street house, whether it fell within the scope of an office or consulting room as defined by the Development Plan.
[7] (2009) 103 SASR 184.
Even though rooms 2, 3 and 7 are not used when the AFSS employees concerned are in the field the rooms are dedicated exclusively to them for performance of their administrative tasks. Together with room 4 they comprise a significant portion of the Giles Street house. I would therefore hold that the proposed development is a non-complying office development.
I acknowledge the force of the respondent’s submission that by taking a narrow approach to the uses which fall within the definitions of land uses more applications will fall for an assessment on the merits. Of course the assessment of matters on their merits is a desirable objective in planning regulation as it is in most fields. However, there are competing values in all aspects of public administration. Certainty and objectivity are two such values. Development Plans attempt to balance these competing values. Too narrow an approach to the denotation of the descriptors of land use commonly used in planning instruments would upset that balance.
The Planning Merits Issue
It is not strictly necessary to resolve the planning merits issue because on my finding, that the development was non-complying, no appeal lay to the ERD Court against the Panel’s refusal.
Nonetheless, I would uphold Coober Pedy’s appeal on this issue too.
The ERD Court construed the “Introduction”, Objective 1 and Principle 1 of the Residential Zone of the Development Plan as supporting approval of the development proposed by AFSS. However, those parts of the Development Plan only encouraged the continuing development of “existing institutional … land uses”. I accept that the institutional uses referred to are not limited to “accommodation” uses and that it is probable that the term refers to the hospital. Be that as it may, the use of the Giles Street house by AFSS was not an existing use. It follows that the ERD Court made an error of law in its construction of the Development Plan or alternatively gave weight to an irrelevant consideration in relying on those parts of the Development Plan to support AFSS’s application for a new use.
On the other hand, I accept that the ERD Court was correct to find that Objective 6 supported the proposed development. The assessment of the merits of the proposed development, having regard to Objective 6 in particular, is a matter within the special expertise of the ERD Court. Had I found that the development was not non-complying, I would have remitted the assessment of the planning merits of the proposed development to the ERD Court.
Conclusion
I would allow the appeal. I would set aside the orders of the ERD Court. I would order instead that AFSS’s appeal to the ERD Court be dismissed.
VANSTONE J: I agree with the orders proposed by the Chief Justice and with the reasons he has given.
PARKER J: I agree with the reasons of the Chief Justice and the orders he has proposed.
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