Frankham v Adelaide City Council

Frankham, the appellant, applied to the Adelaide City Council, the respondent, for approval to develop a parcel of land as a shop. The respondent determined that the proposed development involved a change of use to an adult products and services premises, which was a non-complying development in the relevant precinct. The respondent refused development plan consent, concluding that the proposed development was non-complying without assessing the application. Frankham appealed this decision to the Environment, Resources and Development Court.

The primary issue before the court was whether the respondent’s determination that Frankham’s proposed development was a change of use to an adult products and services premises was incorrect. The court also considered whether the definition of "adult products and services premises" in the schedule of the relevant development plan applies to the type of development referred to as "adult products and services" in the Principles of Development Control. Additionally, the court examined whether the judge erred in holding that the proposed use fell within the definition of "adult products and services premises" in the relevant development plan. The court also had to determine whether the relevant development plan, insofar as it provides that adult products and services is a non-complying development, exceeded the power to specify such developments as non-complying.

The court rejected Frankham’s argument that the relevant part of Principle 26(a) was ultra vires. The court held that the respondent's determination that the proposed development was a change of use to an adult products and services premises was correct. The court also found that the definition of "adult products and services premises" applied to the type of development in question. The court further held that the judge did not err in determining that the proposed use fell within the definition. Finally, the court concluded that the relevant development plan did not exceed its power in specifying adult products and services as a non-complying development. As a result, the appeal was dismissed.

The court did not make any orders beyond dismissing the appeal.