Harrison & Anor v DC of NTHN Yorke Peninsula & Ors No. Scgrg-97-672 Judgment No. S6483

[1997] SASC 6483

HARRISON AND HARRISON V DISTRICT COUNCIL OF NORTHERN YORKE PENINSULA

Full Court
Coram:  Cox, Prior and Williams JJ

Cox J

Appeal relating to issues arising under the Development Act.

The following statement of facts is taken with minor changes from the judgment of Matheson J from whom this appeal is brought.

The second appellant Papps Nominees Pty Ltd ("Papps") applied to the first appellant, the District Council of Northern Yorke Peninsula ("the Council") for Provisional Development Plan Consent for what Papps described in its application as "proposed tourist accommodation and associated facilities" on land situated at the junction of South and West Terraces, Port Hughes in the State of South Australia ("the subject land"), being the land comprised and described in Certificate of Title Register Book Volume 4244 Folio 383. The subject land was located within a Tourist Accommodation Zone in the Council’s Development Plan. The Council was required by Regulation 16 of the Development Regulations to determine the nature of the development. At its meeting held on 3 March 1997 the Council resolved, inter alia, to assign to the application a category called a "Category 2 Development".

The first respondents Mr and Mrs Harrison ("the respondents") owned land adjacent to the subject land, but it was land that was located within a Residential Zone in the Council’s Development Plan.  As owners of adjacent land they were entitled to receive, and did receive, notice of the Papps application, and they were entitled to lodge, and did lodge, a representation to the Council opposing the application.  However, on 18 April the Council resolved to grant the consent sought, subject to a number of conditions.

The proposed development would extend over a good proportion of the subject land, the area of which was 9,949 sq m.  It would include twenty-one so-called tourist cabins (comprising bathroom, kitchen, living/bedroom area and large balcony), a large complex at the front of the subject land consisting of a lobby, a conference room, a club lounge measuring approximately 130 sq m serviced by a liquor servery and toilets, a dining room consisting of approximately 320 sq m serviced by a large liquor servery and a food servery located at the kitchen entrance, an outdoor dining area of approximately 250 sq m located on a deck adjacent to the main dining room, a gaming area of approximately 120 sq m, a bottle shop of approximately 100 sq m with customer access independent of the main premises, a separate manager’s residence, a tennis court and a swimming pool, and car parking providing seventy-eight parking spaces.  The respondents complained that the proposed development would make "for a large hotel complex even by Adelaide Metropolitan standards".

The respondents submitted to this Court that the planning procedures miscarried because the Council had wrongly categorized the development application with the result that the respondents’ rights under the legislation were improperly limited.  Matheson J upheld their claim and made orders against the Council.  Both the Council and Papps now seek to have those orders reversed.

Sub-sections (1) and (2) of s38 of the Development Act 1993 read -

1. There will be three categories of development for the purposes of this section -

(a)     Category 1 development;  and

(b)     Category 2 development; and

(c)     Category 3 development.

1. Subject to subsection (2a), the following provisions apply in relation to the assignment of developments to those categories:

(a)     the regulations or a Development Plan may assign a form of development to Category 1 or to Category 2 and if a particular form of development is assigned to a category by both the regulations and a Development Plan, the assignment provided by the Development Plan will, to the extent of any inconsistency, prevail within the area to which the Development Plan relates;  and

(b)     any development that is not assigned to a category under paragraph (a) will be taken to be a Category 3 development for the purposes of this section."

Sub-section (2a) is not applicable to this case.  The section goes on to specify certain rights and obligations with respect to the different categories.  What is most important to the respondents is that there is a right of appeal against a Council decision on a Category 2 development but there is not with respect to a Category 3 development. 

Sub-section (2) of s38 envisages categories being assigned to a form of development by regulation or by the appropriate Development Plan. Evidently the Development Plan in this case is silent on the matter but the subject is dealt with in Schedule 9 of the Development Regulations 1993. Part 1 of the schedule specifies different forms of Category 1 development including the following -

"6.(1) Any development which consists of any of the following, other than where the site of the development is adjacent land to land in a zone under the relevant Development Plan which is different to the zone that applies to the site of the development:

(k)     the construction of, or a change of use to, tourist accommodation (and accessory activities) in a Tourist Accommodation zone as delineated in the Development Plan; .."

Part 2 of Schedule 9 specifies Category 2 development and includes -

1. Except where the development falls within Part 1 of this schedule, is within the City of Adelaide, or is classified as non-complying development under the relevant Development Plan, any development which consists of the construction of the following, or a change of land use consequent on the construction of the following:

(a)     a building of two storeys comprising dwellings;  or

(b)     a building in a situation referred to in clause 6 of Part 1 of this schedule where the site of the proposed development is adjacent land to land in a zone under the relevant Development Plan which is different to the zone that applies to the site of the development."

Because the land that Papps wants to develop is adjacent to land that is differently zoned, clause 6 of Part 1 cannot apply to it directly. It therefore cannot be Category 1 development. However, clause 1 of Part 2 of the schedule brings the proposed development into Category 2 if the development consists of "a building in a situation referred to in clause 6 of Part 1 of the schedule." The Council held that this condition was satisfied, evidently relying upon sub-par(k) of clause 6(1) of Part 1 - "tourist accommodation (and accessory activities) in a Tourist Accommodation zone as delineated in the Development Plan." It therefore treated the development as falling within Category 2 and gave planning consent subject to certain conditions. That, as I have said, meant that the respondents could not appeal against the Council’s decision. Their case before Matheson J was that the development did not answer the description "tourist accommodation (and accessory activities)" and so could not be put into Category 2, with the result that, by virtue of s38(2)(b) of the Act, it was to be taken to be a Category 3 development. Matheson J agreed with them and gave them the relief they sought. He made a declaration that the Council’s consent to the Papps development was ultra vires and void, and he quashed the decision. The question is whether his Honour was right.

The expression "tourist accommodation" in cl.6(1)(k) is not a term of art.  It refers to accommodation for tourists, and "accommodation", in my opinion, denotes sleeping quarters of some sort - anything from a five star hotel to a canvas tent.  There may be more to it than that, but the sleeping component is essential.  No sleeping quarters, no accommodation. 

This accords with the standard dictionary definitions. Thus the Macquarie Dictionary (1981) - "lodging, or food and lodging", and the New SOED (1993) - "Room and provision for the reception of people, lodgings; living premises." There is no reason to think that "accommodation" is used in any other sense in Schedule 9. It is noteworthy that Papps’ architect acknowledged this meaning of the word when, in forwarding the application for development approval to the Council, he described the "tourist accommodation" as consisting of the twenty-one self-contained cabins, and then grouped under the heading "Conference Centre" the other buildings including the club lounge and dining area.

All of this means, in my view, that a restaurant standing alone could not be described as "accommodation", but a complex consisting of sleeping quarters and a restaurant could be.

There was evidence before the Council, in the form of a licensing inspector’s report, from which it could be concluded that the different sections of the proposed convention centre had the following capacities - club lounge 130 persons, dining area 320 persons and outdoor dining area 250 persons.  There was a gaming area capable of accommodating forty gaming machines, and also a bottle shop.  There were two car parks said to provide seventy-eight places in all, the smaller car park designated as being for residents only.

It is obvious that the proposed dining areas, as well as the car parks, go far beyond the needs of those occupying the twenty one cabins.  (So, I expect, do the bottle shop and the gaming room.)  While tourist accommodation may include the provision of food, there must be a reasonable correlation in scale between the two facilities.  For instance, one could not sensibly describe as "tourist accommodation" a restaurant holding four hundred people which had a couple of bedrooms attached to it.  I do not say that the dining provision must be geared to the residents to the exclusion of everyone else, but that must be its dominant purpose.

It is true that par (k) uses the expression "tourist accommodation (and accessory activities)." The New SOED definition of "accessory" is "Of a thing: additional; subordinately contributing, dispensable " The Macquarie Dictionary says - "contributing to a general effect; subsidiary " Compare Federal Commission of Taxation v Kentucky Fried Chicken Pty Ltd (1988) 81 ALR 35. The emphasis is on subordination. Such things as car parking and staff quarters would be typical accessories to tourist accommodation. If a dining room could be regarded as an accessory to accommodation, it could not possibly be a dining area of this wholly disproportionate size. But it is better, I think, to regard any provision for eating, in a composite development such as this, as part of the accommodation itself, and that means, as I have said, that there must be a reasonably close correlation between the dining area and the lodging to which it is an adjunct.

The Papps development must be looked at as a whole.  What it envisages is something like a hotel, catering for the public at large but without the conventional bars and with its relatively small sleeping quarters detached from the main building.

In my opinion, the proposed development could not possibly be described as the construction of "tourist accommodation (and accessory activities)" within the meaning of Schedule 9. It was therefore not open to the Council to designate it a Category 2 development. It should have been taken to be a Category 3 development in accordance with section 38(2)(b).

It was put to us, however, that it is not for this Court to interfere with a planning decision such as this, involving a question of fact and degree. It should be left to the judgment of the Council as the relevant planning authority. We were referred to the leading case on this subject, R v City of Munno Para; ex parte Weekes (1987) 46 SASR 400, where the Full Court indicated its reluctance to interfere by way of judicial review with planning decisions that involve a large element of planning judgment. See also the recent decision of the Full Court in City of Enfield v DAC and Collex Waste Management Services Pty Ltd (25 July 1997). As it happened the Court did interfere in the first of those cases, but both of them were in fact very different cases from this. The question here is primarily one of interpreting a legislative definition. The Council’s decision cannot be defended on the ground that it was simply exercising a planning judgment or discretion. The meaning and proper application of par.(k) of the regulation are matters of general importance, and the appellant’s rights stand to be affected materially according to the way the development is categorized. The Court has not usually shown any reluctance to exercise its supervisory jurisdiction in cases of this sort. See, for example, R v City of Tea Tree Gully; ex parte Concrete Systems Pty Ltd (1986) 65 LGRA 67. Certainly any error must be clearly demonstrated, but I am satisfied that the appellants have done that here.

There is one other matter I should mention. The Development Application Form and related documents described the Papps development as "proposed tourist accommodation and associated facilities" (my italics). The minutes of the meeting of 18 April 1997, at which the Council considered the application and resolved that it would be treated as a Category 2 development, recorded the relevant item heading as "Proposed Port Hughes Tourist Accommodation and Associated Facilities - Papps." When the Council gave the appellants notice of the application by letter dated 6 March 1997, it described the nature of the development as "Tourist Accommodation and Associated Facilities." On 18 April 1997 the Council gave public notice of its provisional consent and that document described the development in the same terms. Schedule 9, however, refers not to "associated activities" but "accessory activities". I agree with Matheson J that "associated" has a wider meaning than "accessory". It lacks the restrictive element of subordination. The only material before us that sheds any light upon the Council’s understanding of par.(k) is the documents to which I have referred together, of course, with the Council’s decision. It is by no means inconceivable that the Council misunderstood the terms of par.(k) and that this played a part in its decision. Be that as it may, there was every justification for the Court making an order in this case.

I would dismiss the appeal.

Prior J

I agree.

Williams J

I agree.