Gawler and Barossa Jockey Club v Corporation of Town of Gawler No. SCGRG 95/742 Judgment No. 5241 Number of Pages 5 Building Control and Town Planning (1995) 64 Sasr 598

[1995] SASC 5241

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA DOYLE CJ(2), BOLLEN(3) AND DEBELLE(1) JJ

CWDS
Building control and town planning - advertisements - Advertisements mounted on trailers - trailers to remain indefinitely at one location on racecourse - whether a development as declared by regulation - whether a use in relation to land - whether a free standing structure on land - HELD to be a development as declared.

Development Act, 1993s4(1)(h); Development Regulations reg 6 and Schedules 2 and 3, referred to. Corporation of City of Noarlunga v Fraser (1986) 42 SASR
450; Keane v Kleem (1988) 50 SASR 66, distinguished.

HRNG ADELAIDE, 10 August 1995 #DATE 8:9:1995 #ADD 28:11:1995

Counsel for appellants:     B R Hayes QC

Solicitors for appellants:    Steven M Clark Pty Ltd

Counsel for respondent:     M J Roder

ORDER
Appeal dismissed

JUDGE1 DEBELLE J. This is an appeal from the Environment Resources and Development Court.

2. The Gawler and Barossa Jockey Club Inc ("the Jockey Club") seeks to supplement its income from racing by revenue from advertising. It erected three sets of advertising signs on the Gawler Racecourse. The Corporation of the Town of Gawler ("the Council") informed the Jockey Club that the signs were development as defined by the Development Act 1993 and required the Jockey Club to apply for planning consent for the erection of the signs. The Jockey Club applied for planning consent under protest. The Council then refused the application. The Jockey Club appealed to the Environment Resources and Development Court ("the ERD Court"). The ERD Court heard argument on a preliminary question, namely, whether the proposed advertisements constituted development as defined by the Development Act and the Regulations made thereunder. It decided that the signs were a development. The Jockey Club appeals to this Court from that decision.

3. The proposed signs were described in the development application as "three double sided trailerable advertising signs". That cumbersome expression refers to three trailers on which a frame is mounted with the frame supporting an advertising sign on each side of the frame. The trailers themselves comprise a frame which is designed to be towed. The frame is low to the ground and is of a rectangular shape. The advertising frame which is attached to the trailer will support an advertisement some 4.9 metres long with a minimum height of 1.2 metres. It is not clear to what height the frame can be extended. There will be two advertising signs on each of the three trailers, making six signs in all. The Jockey Club intends to position the trailers at a point so that the advertisements are adjacent to and visible from the Adelaide Road. The trailers will be moved to another location on the racecourse on three days in each month when race meetings are held. They will also be moved when the area on which they are located requires mowing.

4. Section 4(1) of the Development Act 1993 defines "development". The definition includes
    "(b) a change in the use of land; or ...
    (h) an act or activity in relation to land (other than an
    act or activity that constitutes the continuation of an
    existing use of land) declared by regulation to constitute
    development."

5. Regulation 6 of the Development Regulations 1993 and Schedule 2 of those Regulations together declare that certain activities constitute development. Regulation 6 provides:
    "An act or activity in relation to land specified in
    Schedule 2 is declared to constitute development".

6. The act or activities which Schedule 2 declares to constitute development include advertising signs. The relevant provision is para 7 which provides:
    "7. Other than within the City of Adelaide, the commencement
    of the display of an advertisement, but not including a
    change made to the contents of an existing advertisement if
    the advertisement area is not increased."

7. Advertising signs within the City of Adelaide are regulated by para 8 of this Schedule. The ERD Court held that, as the three sets of advertisements mounted on the three trailers were advertisements which the Jockey Club intended to commence to display, they were a development as defined by the Act and Regulations. The Court added that it would, if necessary, have decided that the commencement to advertise in this way constituted a change of use of land and was thus a development as defined in para (b) of s4(1) of the Act.

8. The proposed use of these advertising signs will constitute development as defined only if the use is an act or activity in relation to land. That is a necessary consequence of the fact that the power in s4(1)(h) to make regulations declaring what constitutes development applies only in respect of acts or activities in relation to land. Regulation 6 expressly picks up that requirement.

9. The Jockey Club's advertising trailers are intended to be used on the race course. They will remain at a particular point every day for an indefinite period and will be moved only on race days or to cut the grass beneath them. Although the trailers can be moved from point to point they are intended to be used on the race course. The placing of the trailers on the racecourse for an indefinite period is a use of the land for that purpose. There are many forms of land use which do not involve creating fixtures to land. The requirement in s4(1)(b) that an act or activity will only be a development if it is an act or activity in relation to land does not require that something be affixed to land. The proposed use of the advertising trailers is, therefore, an act or activity in relation to land. The Jockey Club intends to commence to display the advertisements and that is an act or activity in relation to land which falls within the terms of para 7 of Schedule 2 of the Regulations. The display of the advertisements, therefore, constitutes a development and the Jockey Club is required to seek planning consent pursuant to the DevelopmentAct 1993. The ERD Court was, therefore, correct in holding that the three sets of advertisements were a development as defined by the Act and Regulations.

10. Mr Hayes QC, who appeared for the Jockey Club, sought to avoid the effect of para 7 by invoking the definition of "advertising display" in Schedule 1 of the Regulations. The expression "advertising display" is defined in these terms:
    "advertising display" means an advertisement depicted on an
    advertisement area on -
    (a) a free standing structure on land; or
    (b) a structure attached to a building; or
    (c) a structure similar to a building on land; or
    (d) any surface of a building or structure."

11. Mr Hayes submitted that the expression "the commencement of the display of an advertisement" in para 7 is synonymous with the expression "advertising display" and thus it was proper to have regard to the definition when construing the paragraph. The reasoning is false. Had the draftsman intended that result, he could so easily have used in para 7 the expression "the commencement of an advertising display". To use the definition in this way would restrict the operation of para 7 and could, therefore, defeat the intention of the draftsman. Further, the expression "advertising display" is used in Schedule 3 of the Regulations which defines acts and activities which are not development. There is, therefore, quite a deal of work for the definition of "advertising display" to do without seeking to write it into a provision such as para 7 which does not use the expression. Although it may be desirable to rationalise the relationship between paras 7 and 8 in Schedule 2 and para 1 of Schedule 3, that should only be done after all aspects of the regulation and control of advertisements are considered and a scheme is prepared. It is not for this Court, in the absence of such a scheme, to allow the effect of para 7 to be altered by incorporating into it an expression not used in it.

12. Even if the definition of "advertising display" were incorporated in para 7, each of the proposed advertisements would, nevertheless, constitute a development within the meaning of the Act and Regulations. The word "structure" refers to that which has been constructed and is capable of connoting a wide range of objects. Often, the word is used in the context "building or structure" and denotes something in the nature of a building. An example of such a use is Corporation of City of Noarlunga v Fraser (1986) 42 SASR 450 and see also South Wales Aluminium Co v Neath Assessment Committee
(1943) 2 All ER 587, 592-3. On other occasions, the context does not require that the structure be in the nature of a building. A movable stand placed at the appellant's racecourse to enable spectators to view different parts of the racecourse would be a structure. In the context of the control of advertisements, the word structure in the expression "free-standing structure" does not require that the structure be in the nature of a building. That conclusion is reinforced when paragraphs (a) and (d) of the definition of "advertising display" are read as a whole. Paragraphs (a) and (b) refer to structures as distinct from buildings while paras (c) and (d) refer to structures in the nature of buildings. Each of the three trailers and the frames erected on them to support the advertisements is a structure and constitutes a free-standing structure on land. Each trailer would, therefore, constitute an advertisement depicted on an advertisement area of a free-standing structure on land and thus fall within the definition of "advertising display". The expression "a free-standing structure on land" is wide enough to include structures which are moveable as well as those which are fixed to land. It is well known that advertisements are placed on both permanent fixtures as well as moveable structures. The most obvious form of movable structure are sandwich boards placed outside many kinds of shops and other retail premises. The conclusion that the Regulations intend to include moveable signs is reinforced by the fact that certain types of moveable signs are exempted from the Development Act by Schedule 3 of the Regulations. They are exempted by reason of the fact that they are controlled pursuant to s370 of the Local Government Act 1934. It is possible to think of other forms of free standing structure which are not permanent fixtures which are, nevertheless, capable of supporting quite substantial signs. The effect of Mr Hayes' argument would be to exclude these from the operation of the Development Act. That would fly in the fact of the clear intention to regulate and control advertisements which is expressed in the Act and Regulations and in particular in paras 7 and 8 of Schedule 2 of the Regulations. The control and regulation of advertising has for a long time been a well recognised feature of planning legislation.

13. Mr Hayes called in aid the decisions of this Court in Corporation of the City of Noarlunga v Fraser (1986) 42 SASR 450 and in Keane v Kleem (1988) 50 SASR 66 but those decisions are clearly distinguishable. In Corporation of the City of Noarlunga v Fraser, the Court had to consider whether the construction of a 38 foot steel hulled yacht in the backyard of a house was a building and thus a development capable of control by a municipal corporation. A building was defined in the relevant legislation to mean "a building or structure". The Court had regard to the purpose of planning legislation and held that the legislation was concerned to regulate what was "sensibly part of the land". The Court in that case was concerned with the meaning of structure in the context of what constituted a building. Similarly in Keane v Kleem, the question was whether a removable greenhouse was a building which required planning approval. Again, the Court was concerned with what constituted a building. In both cases the Court interpreted the legislation as requiring a relative permanence and was assisted by the law relating to fixtures: see Cox J in Keane v Kleem (supra) at 78. In neither case did the Court have to consider the meaning of the expression "a free standing structure on the land", an expression which is far wider than the expression "a building or structure". Further, the expression "a free standing structure on the land" must be considered in the context of the control and regulation of advertisements. It is thus intended to catch a wider range of structures than the expression "a building or structure" used the context of the control and regulation of buildings.

14. Given the conclusion that the Act and Regulations declare that the proposed use is a development, it is unnecessary to determine whether the ERD Court was correct in holding that the commencement of advertising in this way constituted a change of use of the land and was thus a development as defined in para (b) of s4(1) of the Act.

15. For these reasons I would dismiss the appeal.

JUDGE2 DOYLE CJ I concur.

JUDGE3 BOLLEN J I have had great difficulty in regarding this contraption as a structure. But I suppose it is. I, therefore, agree with the reasons of Debelle J.

2. In the end I join in dismissing the appeal.