Evans v Wakefield Regional Council - [2009] SASC 238

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
EVANS v WAKEFIELD REGIONAL COUNCIL
[2009] SASC 238
Judgment of The Honourable Justice Kourakis
13 August 2009
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONTROL OF PARTICULAR MATTERS - RURAL AND AGRICULTURAL - PARTICULAR CASES
The appellant sought approval for a development which involved the conversion of the existing residence on his farm to a manager’s residence and the construction of a new dwelling on the farm for his family – the Wakefield Regional Council refused the appellant’s application – the appellant appealed to the Environment, Resources and Development Court, where a Commissioner of that Court dismissed the appeal – the appellant appealed the Commissioner’s decision – whether the Commissioner erred in dismissing the appellant’s appeal.
Held: The Commissioner erred in law by misconstruing individual provisions of the Wakefield Council Development Plan and the implications which arise from the combined effect of those provisions – in particular the Commissioner erred in proceeding on the basis that there is an implication in the Development Plan that approval should not ordinarily be given for the construction of new or additional dwellings in the Primary Industry Zone – appeal allowed – matter remitted to the Environment, Resources and Development Court.
Environment, Resources and Development Court Act 1993 s 30, referred to.
Evans v Wakefield Regional Council [2009] SAERDC 19, considered.

EVANS v WAKEFIELD REGIONAL COUNCIL
[2009] SASC 238

KOURAKIS J: The appellant is the owner of a 132 hectare allotment of land (the farm) near the intersection of the Balaclava/Mallala and Pinery/Owen roads, near Owen in the Mid North of South Australia. The appellant and his family reside in an existing house on the farm. Most of the land is used for cropping, however there is a sheep feedlot in the north-western corner of the farm. Mr Evans proposes to increase the production and improve the efficiency of the feedlot by engaging a manager who will reside on the farm. In March 2008 Mr Evans sought approval for a development which involved the conversion of the existing residence into a manager’s residence and the construction of a new dwelling for his family approximately 500 metres south of the existing residence.
The Wakefield Regional Council (Wakefield) refused the application on 9 October 2008. Mr Evans appealed the decision to the Environment, Resources and Development Court (the Environment Court). A Commissioner of that Court dismissed the appeal on 20 April 2009.[1] On 8 May 2009 Mr Evans appealed to this Court. The appeal is brought pursuant to s 30 of the Environment, Resources and Development Court Act 1993.
[1] Evans v Wakefield Regional Council [2009] SAERDC 19.
I have concluded that the Commissioner erred in law by misconstruing individual provisions of the Wakefield Regional Council Development Plan (Development Plan) and the implications which arise from the combined effect of those provisions. In particular, the Commissioner was wrong to proceed on the basis that there is an implication in the Development Plan that approval should not ordinarily be given for the construction of new or additional dwellings in the Primary Industry Zone. There is no implication in the plan that, generally, construction of a dwelling will only be approved if it directly and substantially enhances the productive capacity of the land within the Primary Industry Zone. In my view, approval of such a development in the Primary Industry Zone depends on a balancing of all of the relevant planning considerations. An applicant for development does not need to justify the construction of a dwelling as an exception to a general rule of the sort postulated by the Commissioner. My reasons for so concluding are given below.
Background facts
The farm has been in Mr Evans’ family’s hands for about three generations. His grandparents bought the farm shortly after World War II. Mr Evans was brought up on his parents’ property which was located near the farm. His parents later moved to Eyre Peninsular where they undertook broad acre farming and also maintained a feedlot operation. Mr Evans left his parents property to complete his tertiary education in Adelaide.
Mr Evans has lived in the existing residence on the farm for about 11 years. Mr Evans still feels an affinity to the Owen community. He referred in his evidence to “some of the old families which I am part of there”.
Mr Evans now works as an accountant in suburban Adelaide and commutes for that purpose during the working week. He also has a number of business interests. He is involved in a fertilizer importation, transport and spreading business which employs about 60 workers. Mr Evans also holds property near Broken Hill. His initial intention was to use the feedlot on the farm to prepare livestock from Broken Hill for market. However, Mr Evans has expanded the feedlot to take on lambs bought from other sources. In 2008 about 48,000 lambs were processed through the feedlot. There are very few sheep feedlots of that size in South Australia.
The Development
The farm is situated within the Primary Industry Zone of the Development Plan. By his application for development approval Mr Evans proposed to alter the existing residence into a manager’s residence. The existing home office would be converted into a dedicated office for the management of the feedlot. The manager’s residence would also provide for persons visiting the property to work (such as contract shearers) or on business. Shower and toilet facilities would be made available for those visitors.
The floor area of the proposed new dwelling is 386 square metres with a verandah extending around its perimeter and a 67 square metre garage.
Mr Evans explained why he decided upon the proposed development in this way:
Well what we were finding from a management perspective is we need to have somebody there at all times, hence the reason for seeking to have two people located on the property, is really to allow for that. …
It really comes down to 24 hour monitoring of stock. The issue that we have at the moment, which isn’t ideal, if I’m away which frequently I am during the day of course but also if I want to go away on a weekend we don’t have somebody resident on site.
The present arrangement is that Mr Evans resides in the existing residence, but his feedlot manager resides in Owen. The manager works from 8:00 am to 4:00 pm on weekdays and on Saturday mornings. A part time employee who works about ten hours per week is also engaged.
The most important aspect of the feedlot’s operations which requires 24 hour monitoring is the provision of water. Although automatic watering systems are used they are often damaged, and on occasion there can be excessive spillage. A failure of the water system can result in livestock deaths, particularly in hot weather.
Mr Evans testified that feeding regimes must also be monitored to guard against conditions like acidosis. If the manager resided on site he would be in a better position to take delivery of stock feed, which can often occur out of ordinary hours.
Mr Evans explained the desirability of his own continued residence in addition to the on site manager in this way:
Even with a full time manager you can’t expect him to be there 24 hours a day, 365 days a year. Really by having two bodies there at any one time we do cater for that. Of course at the moment we do try and communicate but it doesn’t always work out in terms of making sure we do have the security presence and someone to monitor water 24 hours a day. So we are open to risk at the moment and by having two people on site as such we do cover that risk and make it a lot better and more efficient operation. So it’s probably originally when the feedlot was set up that low stocking numbers the risk isn’t as big but now with the stocking numbers that we do have through the facility the risk is certainly increased and hence the reason to really focus on this issue at this point in time.
It was put to Mr Evans that his primary requirement was to have a caretaker on the site who was experienced. He answered:
Well it’s really – what I’m saying is we need two caretakers to ensure that we have 24 hour coverage of the risks involved with feedlot operation.
In a report dated 4 March 2009, an agricultural consultant, Mr Ellis, criticised the residence of the manager away from the farm saying:
This is an inefficient and unsafe situation. In my experience in a feedlot situation it is normal for a workman or manager to live on site.
Mr Ellis accepted that it was not standard practice in feedlot operations to have both a manager and the proprietor living on site. However, he agreed that there were benefits in such an arrangement. He testified:
The benefits would be when animals are kept in an intensive situation, they’re more prone to all manner of issues arising, and I think in the previous evidence we were talking about the water situation – the same goes for feed and shelter. And the other aspect is we were talking about theft; these are, by the nature of the fact that they’re in a feedlot, they’re prime stock, so they’re just about ready for market and they are all in a very accessible situation. So having someone there all the time certainly would be a benefit.
The substantial part of the farm, about 300 acres, is used for cereal crops. Mr Evans has entered into a share farming arrangement with a nearby farmer to cultivate those crops. Mr Evans explained that he had personal involvement in cropping in terms of setting out what will be sown and how it will be sown but he did not actually operate any machinery. He also gave advice on how the crop should be managed in terms of fertilization and weedicide. He agreed, however, that the cropping could continue even if he were not to reside on the property.
Mr Evans was asked whether the proposed development would improve the layout of the land to make it more efficient for either the cropping or feedlot operation. He answered:
The first one, feedlot, yes. The second in terms of cereal farming I’d say no, other than it would have minimal impact on the second part. …
Reasons of the Environment Court
The Commissioner characterised the application in this way:
27Hence, I conclude that the development is for the erection of a new independent dwelling associated with farming and a feedlot and conversion – change of use of the existing dwelling ancillary to farming to a dwelling ancillary to the feedlot (manager’s – caretaker’s residence). ...[2]
[2] Evans v Wakefield Regional Council [2009] SAERDC 19 at [27].
The Commissioner then referred to the relevant Council Wide provisions of the Development Plan which I have discussed in detail below, and said:
31These clearly do not envisage or encourage residential development or dwellings in a general sense and they seek to minimise development pressures that may lead to diminished agricultural production or negative impacts on efficiency and productivity, or pressure for land division of rural holdings. Further, Principle 25 (complying development) for the Zone, includes no residential development or use opportunities and the policy expression implicit within Principle 26 (non-complying development) provides limited opportunity, but via analogy/comparison with other zone non-complying list guidelines in the Development Plan, it also does not expressly envisage the concept of a manager’s or a caretaker’s residential either.[3]
[3] Evans v Wakefield Regional Council [2009] SAERDC 19 at [31].
It is convenient to immediately express my view that in the context of this application, Principles 25 and 26 are irrelevant. First, and perhaps most obviously, the fact that a form of development is not prescribed to be a complying development does not entail any implication that an application for such a development has “limited” support or that the applicant must show good reason for it to be approved.
Secondly the Commissioner’s reliance on the list of non-complying developments in Principle 26 is also misplaced. It appears to be a reference to the prescription of dwellings on an allotment of less than 40 hectares. However, Mr Evans’ farm covers more than three times that area. True it is that on 40 hectare allotments all dwellings are prescribed without exception by Principle 26, but in other parts of the Development Plan, where dwellings are non-complying, exceptions are sometimes made. For example, the development of dwellings is non-complying in the Tourist Accommodation Zone, except in the case of altering or replacing an existing dwelling.[4] In the Industry (Bowmans) Zone dwellings are prescribed as non-complying developments, but there is an exception in the case of managers’ residences.[5] However, there is no reason to provide for such an exception in the case of dwellings on allotments of more than 40 hectares in the Primary Industry Zone, because dwellings on farms of that size are not non-complying.
[4] Principle 14 Tourist Accommodation Zone.
[5] Principle 24 Industry (Bowmans) Zone.
The Commissioner continued:
32Hence, I conclude there to be limited policy intent supporting residential development or the development of new dwellings and only limited support to dwellings ancillary to farming and feedlot uses for the likes of say a caretaker’s/manager’s residence. In-principle, the new additional dwelling is borderline, whilst there is greater policy logic, substance and support for a caretaker’s residence/use/designation of the existing dwelling to support the efficiency, productivity and security of the intensive, high value add, feedlot use (PIZ Principle 2 and others).
33I also find that Principle 3 is not technically offended as the proposal does not include a new detached dwelling (as defined) and there is justification for the use or development of a dwelling to be used as the residence of the feedlot manager. However, I find no real or sufficient justification for the new second dwelling – essentially for residential land use. It is the choice of the owner as to whether he chooses to live in the existing dwelling with his caretaker residing in the local township of Owen less than 5 minutes away or vice-versa with the appellant residing in Owen nearby (or elsewhere), either in an older or new dwelling and with the feedlot caretaker residing in the existing dwelling.
…
44The appellant could build a new dwelling (if need be) or reside in an older dwelling within Owen some 5 minutes away (or elsewhere) and still achieve much if not most of these goals. Alternatively he could choose to replace the existing dwelling with a new larger purpose designed one. I find there to be little to justify an additional new large dwelling on the land whilst retaining/converting the existing one, though the latter is supportable and beneficial.[6]
[6] Evans v Wakefield Regional Council [2009] SAERDC 19 at [32]-[33], [44].
The Commissioner’s view, evident in those passages, that the Development Plan does not envisage residential development and his references to it providing limited support for the development of new buildings appear to have led to the conclusion that an applicant must justify, in the sense of showing sufficient reason for, the development of a new home. For the reasons I will now give, the Development Plan discloses no such presumption against the development of a home for the proprietor on farming land within the region.
The Development Plan
I will deal first with the Council Wide provisions of the Development Plan. The strategic aim of the Development Plan emphasises the importance of employment opportunities and the consequential benefits for the area in terms of prosperity, retention of district youth and maintenance of township viability. The Development Plan also recognises the challenge posed to the retention of the rural character of the Wakefield area by metropolitan urban pressures.
Council Wide Objectives 9 to 12 deal with rural development. They emphasise the maintenance and development of the rural economy. Overall those objectives favour the approval of Mr Evans’ application. Most obviously they do so because one aspect of his proposal is the provision of a residence for a full time manager for a large and intensive sheep feedlot.
However, in my view, approval of the application to build a new dwelling away from the feedlot is also calculated to encourage the maintenance and development of the rural economy of the region. Proprietors who live on their farm are less likely to choose to introduce, or expand, intensive farming operations if those operations will impact adversely on the quality of their home and family life because of the proximity of their home to those operations. The strategic aim of the Development Plan is to encourage, not discourage, the investment of capital in rural industries. There would appear to be little reason to force, in practical terms, a choice on proponents of more intensive farming practices to either remain living next to the development or leave the farm altogether. The promotion of greater productivity on small farms will increase the value of agricultural land. Both the existence of intensive farming operations and the increased value of the land may operate as bulwarks against the metropolitan urban pressures against which the Development Plan warns.
Objective 18 provides that residential development and business, service and community facilities should be located and contained within defined townships and settlement areas. That objective must be construed in its proper context. It is not a reference to the construction of a single dwelling on a substantial farming property such as that proposed by Mr Evans. It is directed to the mischief of the spread of urban or semi-urban residential developments outside of town limits.
Objective 109 provides that animals should not be kept on land for commercial purposes unless there is a dwelling on the land that is permanently occupied. In my view, Objective 109 does not apply to this proposed development. It concerns the keeping of animals on land for a commercial purpose, such as breeding, boarding, training or sale, rather than a farming purpose. In any event, Mr Evans has approval to operate the feedlot. His application is for a change in use of the existing dwelling and the construction of a new dwelling. Nonetheless, the Objective recognises the factual premise, on which much of Mr Evans’ case rests, that on site management of intensive animal operations can be both desirable and necessary.
Objective 168 provides that development in rural areas should be principally associated with farming and be designed, sited and constructed to complement the rural character of the district. There is no objection to the design and situation of the proposed development, nor to the nature of its construction. In my opinion, the construction of a residence for the proprietor of farming land, is very obviously a development which is “associated with farming”. There is no reason to read any further restriction or requirement into Objective 168. In particular, a development may be “associated with farming” even though its direct contribution to agricultural production is relatively small. There is therefore no reason to exclude from the developments denoted by the phrase “associated with farming” the dwelling of the farm proprietor if he or she does not actively engage in hands on farm work to a substantial degree.

I turn now to the provisions of the Primary Industry Zone of the Development Plan. It is a strategic aim of the Primary Industry Zone that it accommodate a wide range of farming practices which contribute to local employment and the local economy. The introductory background discussion to the Objectives of the Primary Industry Zone notes that agricultural production within the region makes the most significant contribution to the regional economy and records that it is desirable that it continue to do so. The discussion continues:
To maintain the agricultural importance and stability of the zone, it is vital that the size of the landholdings is not significantly reduced, or densities increased, and that future pressures for development in the zone will not result in the conversion of agricultural land to less productive uses.
Principle 169 elaborates on that aim by providing:
Development liable to remove land from agriculture or reduce its overall productivity for primary production, should not be undertaken unless the removed land is required for public purposes, or will result in a development generating significant employment opportunities without creating significant environmental impacts, or for other uses consistent with the objectives for the Council area.
The Commissioner found that “though relatively minor in degree the proposed new dwelling development is at variance with Principle 169”.[7]
[7] Evans v Wakefield Regional Council [2009] SAERDC 19 at [45].
It should be immediately observed that Mr Evans’ application does not involve any real reduction in the size of landholding and that the loss of farming land is trivial. The increase in density from one to two dwellings in an allotment of this size is minor. The very purpose of the development is to increase the future viability of the feedlot operation. As I earlier observed, refusal of Mr Evans’ application would, objectively, make the maintenance and development of the feedlot less attractive to Mr Evans and others in broadly similar circumstances.
In my view the Commissioner was therefore wrong to have regard to this variance at all. The loss of land was so trifling that the development could not be regarded as being inconsistent with Principle 169 at all.
The very first Objective of the Primary Industry Zone is that any development be primarily for farming and diversified rural based industries which enhance the viability of the agricultural sector. Mr Evans’ application falls squarely within that objective for the reasons that I have already given.
Principle 2 of the Primary Industry Zone provides that building structures erected in the zone should be primarily those required for the proper and efficient management of farming activities. The principle is qualified by the word “primarily”. Too much should not be read into the word “required”. It is not the purpose of the Development Plan to ensure that farming within the region is conducted in the most efficient way possible by denying approval to developments which do not incorporate world best farming practice. It would not be appropriate to refuse approval of a development application on the ground that the farming activity could be more efficiently managed by another form of development. Rather, the purpose of Principle 2 is to require a close connection between a proposed development and farming activity. In my view it is sufficient to satisfy Principle 2 that the proposed development will in fact improve the management of a farming activity. The development proposed by Mr Evans will do so. Not only will a manager be able to reside next to the feedlot, which will benefit from his closer round-the-clock supervision, but the proprietor will also be in a position to contribute to the running of the feedlot and to superintend the work of his manager, and thereby monitor the proper management of his agricultural investment.
Principle 3 provides that not more than one detached dwelling should be erected on an allotment. The Commissioner found that the development proposed by Mr Evans would not result in more than one detached dwelling. He found that the existing residence, which was proposed to be used as a manager’s residence, would not be a detached dwelling. Wakefield does not, on this appeal, dispute that finding; it did not file a Notice of Alternative Contention. In my opinion the Commissioner was right to find that the manager’s residence would not be a detached residence. It is next to, and an integral part of, the feedlot operation. Its designation and use as a manger’s residence implies that it will be available to, and used by, persons attending the feedlot for work or on business. Those visitors will be allowed the use of the office and associated facilities. The manager will no doubt retain some power to control that use within reasonable limits, but he will not be entitled to use the residence as one for his exclusive occupation. It will be the working residence of the manager of the feedlot operation and dedicated to facilitate its efficient functioning.
Importantly, the text of Principle 3 of the Primary Industry Zone necessarily implies that there may be, in addition to a single detached dwelling, other forms of dwelling on the same allotment. Indeed, so much is recognised by that part of the background statement to the Primary Industry Zone which reads:
The pattern of occupation with homesteads, ancillary buildings and paddocks enclosing crops and livestock dominate the environment and firmly establish an open, rural appearance.
Principle 3 must therefore be read with an understanding of the types of farm buildings that are found in South Australian regional areas. In addition to the proprietor’s home, one often finds other dwellings providing accommodation for both seasonal and permanent workers, managers, and other family members. The ancillary dwellings may include separate accommodation for an adult son or daughter on the one hand, or an aged parent on the other. It is important, in my view, that the Principles of the Development Plan be understood against the traditional way in which farming operations have been undertaken in this State. Proprietors of farming land have traditionally resided on that land even where much of the day to day work has been undertaken by others. Moreover, the nature of family holdings has meant that parents have continued to reside on the land even after a child or children have undertaken the management of the family farm. The Development Plan does not evince an intention to exclude developments which accommodate others on farms other than by prohibiting any more than one detached dwelling.
Moreover, many dwellings on farming properties were built in times of economic adversity and would now not be regarded as comfortable or desirable forms of accommodation. There is nothing in the plan which suggests that there is a general rule against constructing new dwellings in place of old. Nor is there anything in the plan which suggests that the construction of dwellings should only be approved for persons who are engaged on a full time basis, or at least on some substantial basis, in the day to day farming operations. On the contrary, in my view the efficiency of farming operations will often be improved by allowing a proprietor who undertakes some supervision of the farming operations to reside on the land. In those cases, investment in agricultural production will be encouraged if the proprietor of an agricultural operation is permitted to reside on site. Furthermore, where a farm proprietor seeks approval to replace an existing dwelling with a new one, the interest of the proprietor to continue to reside on his or her farm in appropriate accommodation is a relevant factor in assessing his or her application.
Conclusion
I have already explained my view that the Commissioner erred in finding that the development directly contravened Principle 169 and was, by implication, inconsistent with Principles 25 and 26 of the Primary Industry Zone. The primary finding of the Commissioner and the essential reasons for it are expressed in the following paragraphs:
56On careful consideration of the evidence, what I observed on the view, my own assessment of the proposal against the Development Plan and weighing up both the pros and cons of the composite proposal (both change of use conversion of a dwelling to feedlot manager’s residence; and new large dwelling for the appellant and his family) I conclude that this proposal does not sufficiently meet the spirit or intent nor key strategy aims and objectives of the Development Plan and is thus not worthy of Development Plan Consent.
57Whilst the Council did not detail the reasoning of its refusal, a number of the Development Plan clauses it referred to, particularly, Council Wide Strategic Aim (in my view para 2), Objectives 10, 18 and 20, and Principles 3, 168 and 169; and PIZ Strategic Aim (in my view para 6) and Objective 1 and Principle 2, are not sufficiently achieved by the development proposal and I find that the proposal is sufficiently at variance with the Development Plan as a whole to warrant that decision. I agree with and accept the conclusions of Ms Nolan, a most experienced urban, regional and environmental planner.[8]
[8] Evans v Wakefield Regional Council [2009] SAERDC 19 at [36]-[37].
The reference to Ms Nolan’s conclusion is most probably a reference to the following paragraph of her report dated 3 March 2009:
8.1In my view, the construction of a new dwelling on the land is contrary to the overall intent of the development plan and to the specific intent of the primary industry zone to restrict dwellings on the land and to accommodate only activity/development which is directly associated with agricultural production.
The reference in [56] – [57] of the Commissioner’s reasons to his view that the proposal did not “sufficiently meet” the spirit or intent of the aims and objectives of the Development Plan is not easy to understand. In the ordinary course, if a proposal meets all the aims and objectives of a Development Plan and does not contravene any particular part of it, one would expect it to be approved, even if other alternative developments can be imagined that would better advance those objectives. It is more likely, I think, that the Commissioner has proceeded on Ms Nolan’s premise that there is an implication in the Development Plan that in the ordinary course, the construction of new dwellings and any other buildings which are not “directly associated” with agricultural production will not be approved. The concept of “directly associated” seems to be understood as including only those developments which make a direct and substantial contribution to agricultural production. As I observed in [24] above, the consequence of that implication appears, from paragraphs [32], [33] and [44] of the Commissioner’s reasons, to be that an applicant for the construction of a new dwelling on substantial property in the Primary Industry Zone must “justify” the development in some way. In my opinion, there is no such implication in the Development Plan. The implication suggested by Ms Nolan and accepted by the Commissioner cannot be found in the text of the Development Plan itself, and is not supported by the contextual considerations to which I have referred. It should be rejected.
The decision of the Commissioner is affected by errors of law and must be set aside. It will be apparent from my reasons that in my opinion there are strong grounds for approving Mr Evans’ application. It is nonetheless appropriate to adopt the usual practice and to allow the final planning judgment to be made by the Environment Court. I allow the appeal and remit the matter to the Environment Court for consideration conformably with these reasons.