Ikkaj Pty Ltd v District Council of the Copper Coast - [2010] SASC 38

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
IKKAJ PTY LTD v DISTRICT COUNCIL OF THE COPPER COAST
[2010] SASC 38
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice Layton)
25 February 2010
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY - CONSIDERATION OF PARTICULAR PLANNING MATTERS - HERITAGE
Appeal from decision of the Environment, Resources and Development Court of South Australia dismissing appeal by Ikkaj against decision of District Council of Copper Coast refusing Ikkaj permission to demolish wall and other structures - whether Court erred in interpretation of phrase “economically renovated” - consideration of relevant objectives and principles in development plan - consideration of approach to interpretation of development plans.
Held: appeal dismissed - Environment, Resources and Development Court correctly approached the issues on the application for approval for demolition of wall and other structures and correctly applied all relevant development and planning objectives and principles - the Court reached the appropriate conclusion that the application for development approval should be refused.
Development Act 1993 (SA) s 4(1), s 32 and s 33; Planning Act 1982 (SA), referred to.
Ikkaj P/L v District Council of the Copper Coast [2009] SAERDC 36; Walkerville Town Council v Adelaide Clinic Holdings Pty Ltd & Anor (1985) 38 SASR 161; Town of Gawler v Impact Investment Corporation Pty Ltd [2007] SASC 356; Telstra Corporation Ltd v Corporation of the City of Mitcham (2001) 79 SASR 509; Shackley v Town of Gawler [2005] SAERDC 108, considered.

IKKAJ PTY LTD v DISTRICT COUNCIL OF THE COPPER COAST
[2010] SASC 38
Full Court: Gray, White and Layton JJ
GRAY J:

This is an appeal from a decision of the Environment, Resources and Development Court of South Australia dismissing an appeal against the District Council of the Copper Coast’s refusal to grant development approval.
Introduction
Background Facts
Ikkaj Pty Ltd is the registered proprietor of land, being a portion of land described as allotment 11, with street frontage to both George and Henry Streets, in Moonta. A stone wall stands on the allotment at the boundary of Henry Street. The wall was built in or about the year 1859. A substantial portion of the stone wall is on the land of which Ikkaj is the registered proprietor. Ikkaj wishes to demolish the wall and attached structures and has sought development approval to do so.[1]
[1] Ikkaj P/L v District Council of the Copper Coast [2009] SAERDC 36.
Allotment 11 is an irregular shaped parcel of land with an overall area of 1,185 square metres. The street frontage to George Street is 13.41 metres and the frontage to Henry Street is 27.82 metres. Structures on the site comprise an existing shop front in George Street, and the stone wall the subject of the application for demolition. The stone wall structure includes outbuilding walls which form a carport and enclosed garage, also the subject of the demolition application. The main stone wall is nearly four metres in height and forms a continuum along Henry Street, together with the frontage of an adjoining bed and breakfast establishment. One of the internal wing walls at the south-western edge of the site is also a common wall with the adjoining bed and breakfast establishment. The wall and attached outbuildings were previously the stables of the Waters Butcher Shop, now a café, located at the corner of Henry and George Streets.
The appellant, the applicant for development approval, Ikkaj, purchased the land in 2006. At that time the land was within a zone that had been identified as a retail core zone. In late 2007 Ikkaj sought development approval to demolish the stone wall and attached structures. Apparently this was in anticipation of a possible plan to build a residential premises on the site. This Court was informed that an application for approval to build residential premises has not been lodged with the District Council of the Copper Coast.
Demolition of a building or structure is a development within the meaning of the Development Act 1993 (SA) and consequently requires development approval from the relevant planning authority.[2]
[2] See section 4(1) “development”, “building work”, and “building” and section 32 of the Development Act1993 (SA).
On 16 April 2008, the District Council of the Copper Coast refused to grant development approval. Ikkaj appealed to the Environment, Resources and Development Court against the refusal. That appeal was dismissed. Ikkaj has now appealed to this Court. At issue is whether approval should be given for the demolition of the wall.
The subject land was situated in the Town Centre (Moonta Historic Conservation) Zone of the District Council of the Copper Coast. The relevant development plan is the Copper Coast (DC) Development Plan, Consolidated 28 June 2007.
According to Zone Objective 5(f) and the Moonta Town Centre Concept Plan, the land is situated in the Retail Core Area and in Policy Area 1 of the zone. The desired future character for this zone is expressed in Objective 5 as follows:
A desired future character in which:
(b)the historic character and integrity of the zone is maintained and enhanced;
…
(e)new buildings are developed, and old buildings are renovated in accordance with the conservation guidelines contained in Table CoCo/1;
The Zone principles of development control include Principle 4, which is in the following terms:
Demolition of buildings which contribute to the heritage character of the Policy Area should not be undertaken unless the item is proven to be structurally unsound and cannot be economically renovated.
There are provisions in the Development Plan that address demolition. Principle 6 of the Council-wide provisions, under the heading Conservation and Heritage, is relevant and is in the following terms:
Buildings or structures should be conserved where they are of:
(a)historical significance (refer to the 1998 Heritage Survey of Yorke Peninsula[)]; or
(b) particular architectural merit or significance.
The land on which the café and bed and breakfast establishment stand, was once part of a parcel of land that included the portion of land the subject of the present appeal. As earlier observed, it appears that the stone wall is a remnant of the stables that were associated with the old butcher shop formerly known as Waters Butcher Shop and, prior to that, Roach’s Butcher Shop.
The old shop and the wall and structures comprising the former stables are identified in the Yorke Peninsular Survey and were recommended for inclusion as Local Heritage items. However, the structures have not been formally listed. The old shop is not part of the site the subject of the demolition application.
A heritage architect described the structure that was sought to be demolished as follows:
The development application is for the demolition of a 32m long outbuilding facing Henry Street, Moonta. The building is described as “stables and outbuildings” in the Heritage of the Yorke Peninsula Heritage Survey. The building consists of open shedding to the central section (currently used as a carport), an enclosed storage room at the northern end, and small rooms at the southern end. A new steel framed roof has been erected over the open central section, possibly replacing the original skillion roof. It appears that some dividing walls have been removed, possibly to for [sic] the existing open carport facing east.
The western side of the building facing Henry Street is a continuous masonry wall with narrow slit windows typical of a stable structure. Doors and windows facing Henry Street are present at the southern end of the building and access small rooms at the southern end of the Stables.
The Stables are constructed in a coursed limestone with brick quoins and lime mortar, typical of older buildings throughout the region. Inappropriate cement rich repairs to cracking and rising damp have been undertaken over time.
If Ikkaj is successful in obtaining development consent and demolishing the wall and associated structures, it is under no obligation to proceed with its planned residential development. Counsel for Ikkaj accepted that in this event, Ikkaj would be free to develop the site with a clear frontage to Henry Street in accordance with the Moonta Town Centre Concept Plan and as part of the Retail Core Area.
The Environment, Resources and Development Court
In determining the application for demolition, the Environment, Resources and Development Court assessed the historical significance of the stone wall:
There is no doubt that the building is of historic interest, being the remnant of the stables that were associated with the old butcher shop, and having a strong visual presence in the central part of the town of Moonta, within a Historic Conservation Zone where a number of historic buildings give the zone a historic character. The approximately 23m long and 3.8m high wall, along with other historic items in the zone, contributes to the historic character of the zone. One issue is whether the historic character of the zone would be diminished by the demolition of the wall.
There are many buildings of a historic nature within the zone, in good or reasonable condition, that together constitute the historic character of the zone. While the historic character of the zone would not be lost if the wall were to be demolished, it would be diminished, simply because one of the elements that contribute to the historic character would be lost. This outcome is directly contrary to the policy expressed in Zone Objective 5(b).
Principle 4 of the zone provisions must be considered to provide strong guidance for the assessment of the kind of application that is now before the Court. If a building contributes to the heritage character of the Policy Area, it should not be demolished unless it is both proven to be structurally unsound and cannot be economically renovated.
We have already concluded that the building contributes to the historic character of the zone. The subject land is in Policy Area 1, also known as the retail core area of the Town Centre (Moonta Historic Conservation) Zone: see Objective 5(f) and Fig TCe (M)(HC)/1. The walls have been identified as remnants of the stables that were attached to, and used as part of, the business originally known as Roach’s Butcher Shop, located at the corner of George and Henry Streets. The wall abutting the Henry Street boundary, which is a continuation of the wall of the adjacent bed and breakfast facility, is prominent not only from Henry Street, but from the intersection of Henry and George Streets, and the southern portion of the Queens Square Reserve. Policy Area 1 has a heritage character, evidenced by the buildings therein that evoke the heritage of the town of Moonta. The structure contributes to the heritage character of Policy Area 1.
Council-Wide Principle 6 under the “Conservation and Heritage” heading encourages the conservation of structures where they are of historical significance, by reference to the 1998 Heritage Survey of Yorke Peninsula (the 1998 Survey). We do not agree that the structure, of itself, is of historical significance. However, it is worthy of that description because it was part of an outbuilding (stables) used in conjunction with Roach’s Butcher Shop, which is identified and described in the 1998 Survey.
The Court addressed the issue of structural soundness of the wall following an extensive review of the expert evidence led before it:
Both engineers agree that the structure needs repair work. Neither engineer is of the opinion that it is beyond repair and requires demolition. They agree that the structure needs work to make it sound. The issue between them is as to the extent of the work needed. Thus, it can be said that the structure is unsound and needs rectification or repair work.
We agree with [the engineer called by the District Council] that buttressing of the northern wall is not required to strengthen the wall against overturning. We accept his approach, given the long existence of the wall, that it can be repaired with the effect of increasing its mass, and that allowance may be made for some shielding. Engineering outcomes although science-based, depend on calculations derived from the application of formulae to variables. The selection of the appropriate variable may depend on opinion, which may be driven by values, or policy. Engineering is not an exact science.
The major issue between the engineers was as to whether the northern wall needs buttressing, to avoid the risk of being overturned in a strong wind. In the end, this decision turns on value judgments by the engineers; value judgments as to the factors to put into the calculation in the context of the wall being an existing structure, instead of a proposed construction, as well as the level of risk of failure of the wall that is acceptable in the circumstances. Even if the issue of the need for buttressing goes to the stability of the wall, it does not, of itself, determine the question of whether the wall is structurally sound. That has been determined by the agreed view that the wall needs rectification work, as this work will be of a structural nature, rather than a cosmetic nature.
Thus, presently the structure is not a sound structure, but can be made to be sound. It is presently structurally unsound.
The Court turned its attention to the meaning of “economically renovated”. In that respect the Court addressed the difficulties confronting Ikkaj:
The question is whether the structure cannot be economically renovated.
At a minimum, the structure needs the following work done in order to make it structurally sound:
·Repairs to cracks in walls.
·Treatment of damp affected areas of walls.
·(if the structure is to become part of a habitable building) insertion of a damp proof membrane.
The method of undertaking work to achieve the above and the likely cost was the subject of evidence.
There is a difficulty for the appellant, posed by the development plan. [Ikkaj] does not want the existing structure to remain. [It] has no plans to use it or incorporate it into a proposed building. The relevant provisions of the development plan evince a policy that seeks the retention or conservation of structures which contribute to the heritage character of the relevant policy area (Zone Principle 4) or are of historical significance (Principle 6, Council-Wide Provisions “Conservation and Heritage”). Indeed, as earlier identified, Zone Principle 4 strongly discourages the demolition of structures that contribute to the heritage character of the policy area.
A planning authority and this Court has to assess a proposed development against the relevant provisions of the appropriate development plan: see s 33 Development Act 1993. Although the provisions of the development plan are not mandatory, it will assist an applicant seeking consent for development, and faced with a provision such as Zone Principle 4, if he can show that the item meets the criteria that the authority (and this Court) should consider.
In this matter, [Ikkaj] has no interest in renovation, economic or otherwise. The evidence is that renovation would cost more than $15,000-$20, 000, but the figures themselves do not tell us whether that expenditure would amount to economic renovation.
The term “economically renovated” can only have meaning in a context. In Shackley v Town of Gawler & Anor [2005] SAERDC 108, the applicant applied to demolish a building that was of an historic character. In large part, the decision turned on whether the building was so structurally unsound that it represented a risk to public safety and in addition, was beyond economic repair. An important part of the applicant’s case was that he was able to construct a new building sufficient for his purposes in place of the existing building, at a much smaller cost than the cost of repairing the existing building. In the circumstances, the Court concluded that the existing building was beyond economic repair. The Court said in that case that the test for “beyond economic repair” is an objective test and continued at paragraph 34 of the judgment, as follows:
Ultimately, the issue is whether it is economic to repair the building or in other words, whether the cost of repairing the building to a standard that will enable it to be used is less than the cost of replacing the building with another that is suitable at the location, for the use desired.
The Court concluded:
In the absence of any evidence to show that the structure could not be economically renovated for the purposes of a use encouraged in the zone, we are not satisfied that the structure is both structurally unsound and cannot be economically renovated, as is desired by the zone provisions of the development plan for demolition of structures in the zone which contribute to the heritage character of the policy area.
There are no other zone provisions that address demolition.
We have considered all the relevant provisions of the Copper Coast (DC) Development Plan, Consolidated 28 June 2007 and have made a planning assessment of the appellant’s proposed development, namely the demolition of the structures on the subject land, and have concluded that the decision of the Council should be affirmed. The appeal will be dismissed.
The Appeal
What is in issue on this appeal is whether or not the Environment, Resources and Development Court correctly interpreted Zone Principle 4, which provides “[d]emolition of buildings which contribute to the heritage character of the Policy Area should not be undertaken unless the item is proven to be structurally unsound and cannot be economically renovated”. The evidence suggested that renovation of the wall would involve an expenditure of $15,000.00-$20,000.00, however that does not determine whether such expenditure would amount to economic renovation.
The particular question arising on this appeal is the proper interpretation of the phrase “cannot be economically renovated”.
The Submissions of the Parties
On the hearing of the appeal, Ikkaj did not challenge any of the primary findings of fact of the Environment, Resources and Development Court. The appeal challenged the Court’s reasoning on the meaning attributed to the phrase “economically renovated” in Zone Principle 4. It was contended that the Court should have addressed the question of the economy of renovation against the proposed use of the land by Ikkaj. As it intended to build a residential property and there was simply no use for the wall, the cost of renovation would necessarily be uneconomic. In particular, it was said that the Environment, Resources and Development Court erred in concluding that the economy of renovation should be assessed in the context of the encouraged uses in the Retail Core Zone.
Ikkaj contended that the words “cannot be economically renovated” are to be interpreted having regard to the use which Ikkaj seeks to put the property and, in this instance, the wall and other structures are not suitable to the development which Ikkaj has in mind. Thereafter, it was argued that whether or not it can be economically renovated must be viewed solely in the context of Ikkaj’s plan for the development of the property.
It was submitted on appeal that Ikkaj had led unchallenged evidence as to the proposed use of the land and the absence of any need for the wall. It was said that no evidence had been led before the Court by the District Council as to the economy of renovating the wall in the context of other possible developments. Counsel for Ikkaj argued that the District Council had failed to present any evidence as to the hypothetical uses of the land and that in those circumstances the Environment, Resources and Development Court erred in reaching the conclusion that Ikkaj had not established that the wall could not be “economically renovated”.

The District Council contended that the Environment, Resources and Development Court had acted correctly in addressing the issues arising before it. It was pointed out that the appeal to this Court could only be advanced with respect to legal error and that no such error had occurred. In particular it was submitted that Ikkaj had not demonstrated that the wall could not be economically renovated.
The District Council submitted that the words “economically renovated” are to be interpreted objectively and in the context of the applicable zone – the Retail Core Zone. As noted, the proposed building of residential premises is not one of the encouraged uses within the zone. The construction of residential premises requires consent.
The Legal Approach
The construction and application of Development Plans was considered in the case of Walkerville Town Council v Adelaide Clinic Holdings Pty Ltd & Anor[3] where King CJ observed:
The Development Plan is the focal point of the planning regime instituted by the 1982 Act. Its central importance is emphasized by the disappearance of regulations from the scheme. The Plan provides the objectives and principles upon which development planning is to be based. It is the charter by whose guiding principles future development is to be planned. The mandate “to have regard to” the provisions of the Plan requires the authority to give to the plan the weight which is due to it as the focal point of the planning regime. I indorse what was said about the status purpose and importance of the Plan by Wells J in Hassen v District Council of Murray Bridge and Onsoy and by Jacobs J in the present case. As was pointed out by Wells J in Hassen’s case, however, the Plan is in the nature of a planning document and is couched in the language of planning objectives and principles rather than that of legal obligation. Jacobs J in the judgment appealed from in this case described the language of the principles in the Plan as “advisory”. Perhaps that word read out of context does not attach sufficient force to the language of the principles, but it is nevertheless language appropriate to the expression of goals and guiding principles rather than to the expression of legal mandates. If the provisions of the Plan were understood as binding norms to which all planning decisions must conform, it would indeed “find action in the front line a responsibility for the discharge of which neither its language nor its structure is appropriate”. That, however, is not its function, as the Full Court has indicated in Dorrestijn’s case. For all the importance of the Plan, there is a discretion, ultimately unfettered, in the Planning Authority to take other considerations into account and to make decisions which are not in conformity with the Plan.
The discretion of the Planning Authority, although unfettered, must, like all discretions, be exercised for the purpose for which it is given. It must therefore be exercised for the purpose of attaining the planning objectives of the Act. Although the authority, having given proper consideration and due weight to the provisions of the Development Plan, may depart from it in the exercise of its discretion, it may do so only upon grounds which are properly related to the planning objectives of the Act. If the discretion were exercised arbitrarily or upon grounds not properly related to planning objectives, the exercise would miscarry.
[footnotes omitted].
It is to be observed that the above case concerned the provisions of the Planning Act 1982 (SA). The obligations mandated by those provisions differed in their expression to the obligation pursuant to section 33 of the Development Act; that is, to assess a development against and to take into account the provisions of the relevant Development Plan. However, the observations of King CJ maintain relevance.[4]
[3] Walkerville Town Council v Adelaide Clinic Holdings Pty Ltd & Anor (1985) 38 SASR 161 at 187.
[4] See discussion in Town of Gawler v Impact Investment Corporation Pty Ltd [2007] SASC 356 at [75] (Bleby J).
More recently, the approach to be taken to construing a Development Plan was addressed in Telstra Corporation Ltd v Corporation of the City of Mitcham[5] where Debelle J observed:
The Court has repeatedly stated that the provisions of the Development Plan are not to be construed like a statute: see, for example, St Ann’s College v Corporation of City of Adelaide [1999] SASC 479. A development plan is a planning document couched in the language of planning objectives and principles, rather than that of legal obligation. It uses language appropriate to the expressions of goals and guiding principles, rather than the expression of legal mandates: Walkerville Town Corporation v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 at 187 per King CJ approving observations of Wells J in both Claude Neon Ltd v City of West Torrens (1982) 29 SASR 260 at 270-271 and in Hassen v District Council of Murray Bridge (1984) 35 SASR 448 at 449.
[5] Telstra Corporation Ltd v Corporation of the City of Mitcham (2001) 79 SASR 509.
It is relevant to note that the Environment, Resources and Development Court did not measure the question of economic renovation against hypothetical uses at large. In accordance with the observations of King CJ and Debelle J, the Court addressed the objectives of the Town Centre (Moonta Historic Conservation) Zone and the terms of the relevant Zone Objectives and Zone Principles. The land uses promoted in the relevant Zone include “…shopping, administrative, cultural, office, commercial, entertainment and recreational facilities…”. The land uses do not include residential development within the relevant “Retail Core Area”. The terms of Zone Principle 2 are also relevant, providing that “… [d]evelopment should maintain and enhance the existing character of the zone which is established by narrow fronted shops and offices, concave or convex verandahs to or over the footpath and development close to the street alignment”.
The land uses promoted by the objectives in the Development Plan are a relevant consideration. In the circumstances of the present proceeding they provide an appropriate context and basis for assessing the economics of renovation. However, none of these uses were relied on or addressed by Ikkaj.
Consideration of the Appeal
Planning legislation promotes the retention of heritage properties because to do so is in the public interest. The public interest is not to be overridden simply on the ground that the public interest may conflict with the private interests of the owner.
The rationale for requiring the retention and renovation of heritage properties is to prevent owners from demolishing such heritage properties merely because they do not form part of the owner’s plans for development. The proper context of economic renovation is not, on a correct construction of the Development Plan, limited to what an owner may wish to do with a property. It is to be objectively interpreted having regard to the applicable zone and any use which a council may permit having regard to the application for development of the property. This interpretation would include having regard to the development concept of the owner, but that would not be the final determination
The finding of fact made by the Environment, Resources and Development Court was that the wall and attached outbuildings were structures of the necessary heritage character. That finding was appropriate on the evidence and was not the subject of appeal.
The Environment, Resources and Development Court was correct in holding that the onus was on the party seeking approval to undertake demolition, to prove that a structure which has heritage character is both structurally unsound and cannot be economically renovated.
Zone Principle 4 is prima facie applicable to the wall and other structures the subject of these proceedings. It was common ground on the evidence of experts that the wall is to varying degrees structurally unsound. The Full Court of the Environment, Resources and Development Court so found, but also took the view that the wall and attached outbuildings could be made sound.
In the present proceedings, the application for development approval and the interpretation of Zone Principle 4 should be considered having regard to the terms of the relevant zone. Having regard to the encouraged uses, an expenditure of $15,000.00-$20,000.00 on renovations would not meet the criterion of “cannot be economically renovated”. It is to be observed that the Environment, Resources and Development Court found that Ikkaj had not led evidence to show that the wall and attached structures could not be economically renovated, even in the context of its intended use for a private residence. This possible use was only the subject of a general description and as earlier observed not the subject of any application for development approval.
Conclusion
The Environment, Resources and Development Court was correct in concluding that Ikkaj had not established that the stone wall and attached structures could not be economically renovated. Ikkaj did not attempt to address any of the encouraged uses of the Retail Core Zone. It advanced its case on the basis of a residential development. No detailed plans of that development were presented. There was at the time, and there remains, no application for development approval for a residential premises.
The Environment, Resources and Development Court correctly approached the issues on the application and correctly applied the relevant objectives and principles to the application for approval for the demolition of the wall and attached structures.
I would dismiss the appeal.
WHITE J: The appellant sought development approval to demolish a 19^th Century stone wall built on the George Street boundary of a property it owns in Moonta. The District Council of the Copper Coast (the Council) refused to grant the approval. An appeal against that refusal was dismissed by the Environment, Resources and Development Court (the ERD Court).[6]
[6] Ikkaj Pty Ltd v District Council of the Copper Coast [2009] SAERDC 36.
The appellant now appeals against that decision, contending that the ERD Court made two errors of law. Those alleged errors will be identified shortly.
Details concerning the wall, the appellant’s property and of its application are set out in the reasons of Gray J. It is not necessary to repeat them.
The Objectives and Principles in the Council’s Development Plan
The appellant’s property is within the Town Centre (Moonta Historic Conservation) Zone established in the Council’s Development Plan. The statement of Objectives in the Development Plan indicate that the Zone is intended to accommodate a range of shopping, administrative and commercial facilities,[7] but at the same time to maintain and enhance its heritage character. Thus, for example, Objective 3 for the Zone provides:
The renovation and development of old shops and other buildings in a manner which is in sympathy with the architecture, history, character and scale of the adjoining properties so as to ensure compact development and to avoid intrusion into adjoining residential areas.
Objective 5(b) states a desired future character for the Zone as being that in which:
(b) the historic character and integrity of the zone is maintained and enhanced.
[7] Objective 1 of the Town Centre (Moonta Historic Conservation) Zone Objectives states that it is to be
“a Zone accommodating a range of shopping, administrative, cultural, office, commercial, entertainment and recreational facilities”.
The Principles of Development Control for the Zone build upon these Objectives. Principles 2, 3 and 4 provide:
2Development should maintain and enhance the existing character of the zone which is established by narrow fronted shops and offices, concave or convex verandahs to or over the foot path and development close to the street alignment.
3Development in localities dominated by 19^th and early 20^th century buildings should have regard to the conservation guidelines contained in Table CoCo/1 and adopt building and design characteristics of those buildings, with emphasis on rectangular ground plans, traditional construction materials, single gable hipped roof or parapets and verandahs.
4Demolition of buildings which contribute to the heritage character of the Policy Area should not be undertaken unless the item is proven to be structurally unsound and cannot be economically renovated.
It is Principle 4 which was the main focus of the appellant’s submissions. The effect of that Principle is to preclude the demolition of buildings “which contribute to the heritage character” of the Zone unless the building is “proved to be structurally unsound and cannot be economically renovated”.
The Decision of the ERD Court
The ERD Court accepted that the wall contributed to the historical character of the Zone[8] and that the historic character of the Zone would be diminished if the wall was demolished.[9] Principle 4 was therefore engaged. The appellant did not challenge those conclusions. Principle 4, being part of the Development Plan is not to be construed as a statute:
A Development Plan is a planning document couched in the language of planning objectives and principles, rather than that of legal obligation. It uses language appropriate to the expression of goals and guiding principles, rather than the expression of legal mandates.[10]
The ERD Court recognised this, and described Principle 4 as “a relevant consideration in the assessment of the application”.[11]
[8] Ikkaj Pty Ltd v District Council of the Copper Coast [2009] SAERDC 36 at [14].
[9] Ibid at [15], [17].
[10] Telstra Corporation Ltd v Corporation of the City of Mitcham [2001] SASC 166 at [25]; (2001) 79 SASR 509 at 515-6.
[11] Ikkaj Pty Ltd v District Council of the Copper Coast [2009] SAERDC 36 at [19].
The ERD Court held that it was for the appellant to show that the wall was structurally unsound. On the basis of the evidence of two consulting engineers, the Court concluded that the wall was presently structurally unsound, but considered that it could be made sound.[12] There was evidence that the cost of the renovation may exceed $15,000-$20,000.[13]
[12] Ibid at [53].
[13] Ibid at [60].
The ERD Court also held that it was for the appellant to show that the wall could not be renovated economically,[14] and noted that the application of the “economic renovation test” can be difficult. It identified the test to be applied in general terms as follows:
It really amounts to whether the cost of repairing a structure, that is of bringing it to structural soundness so that it may be used (as part of a complete building or as a wall) is so unreasonably expensive having regard to the end result, as to be undesirable.[15]
[14] Ibid at [19], [20].
[15] Ibid at [66].
The ERD Court considered that that test may be applied in three circumstances. First, where an owner wishes to replace the building to be demolished with another. Secondly, where the owner wishes to develop the land for another purpose for which the subject building cannot be used. Thirdly, the ERD Court considered that the test which it had articulated may be applied by considering whether the structure in question could be renovated economically for any reasonable land use contemplated for the Zone, whether or not that was the use contemplated by the owner.
The first circumstance was inapplicable in the appellant’s case as it did not intend to replace the wall. The second circumstances was directly applicable in the appellant’s case as it proposed constructing a dwelling on the land in relation to which it said the wall was of no use. The ERD Court considered that in that context the test was to be applied by enquiring whether the wall could be economically renovated so as to form part of a dwelling or be used in conjunction with a dwelling.
The Court considered that the appellant’s application should be assessed by reference to both the second and third circumstances. It noted that the appellant had not adduced evidence as to the possibility of economic renovation in either of those circumstances. The Court then concluded:
In the absence of any evidence to show that the structure could not be economically renovated for the purposes of a use encouraged in the zone, we are not satisfied that the structure is both structurally unsound and cannot be economically renovated, as is desired by the zone provisions of the development plan for demolition of structures in the zone which contribute to the heritage character of the policy area.[16]
[16] Ibid at [69].
The Questions of Law Raised on the Appeal
Against that background, the two errors of law for which the appellant contended can now be identified. The appellant contended first that the ERD Court had erred by applying an objective test to Principle 4. The Principle required, he submitted, an assessment of the “economic considerations” of the owner of the land “in the light of the intentions expressed by [the owner] as to his proposed use of the land”.
Secondly, the appellant argued that given that he wanted to demolish the wall with a view to building a dwelling on the land, the ERD Court had erred by basing its finding on his failure to adduce evidence as to the cost of renovation of the wall in the case of hypothetical other uses of the land.
These two contentions can conveniently be considered together.
Consideration
As noted, the appellant contended that the possibility of economic renovation of a building contributing to the heritage character of the Zone is to be determined by reference to the land owner’s economic circumstances and intentions for the use of the land. This meant that once a building was proven to be structurally unsound, development approval for its demolition should be granted if the current owner had no use for it in any development of the site which it proposed. This was so even if use could be made of the structure in some alternative development by that owner or a later owner of the land.
The appellant contended, first, that the fact that it would be a proposal for demolition by a particular applicant which would be the occasion for application of Principle 4 suggested that the proposal should be considered in the light of that applicant’s circumstances.
I do not accept that submission. Even if the premise for the submission is accepted, the conclusion does not follow. There are many instances of legislation, regulation or guidelines requiring the application of an objective standard in the context of proposals by particular applicants. The fact that it is a particular application for development approval which is to be considered does not have the effect that it is only the particular applicant’s personal circumstances which are to be considered. The present appellant’s application had to be considered by reference to a number of matters, including those to which s 33 of the Development Act 1993 (SA) refers.
The appellant also sought assistance in the decision of the ERD Court in Shackley v Town of Gawler.[17] In that case the Court considered a Development Principle stating that “a local heritage place” should not be demolished unless it was “so structurally unsound it represents a risk to public safety and is beyond economic repair”. The structure to be demolished was the former coach house in the yard of a substantial dwelling upon which the owner had spent a large amount of money on renovation. The owner wished to replace the former coach house with a more modern garage adapted to his needs. The ERD Court dismissed an appeal against the Council decision permitting the demolition. In relation to the question of economic renovation, the Court said:
The test is an objective test. It is not appropriate to determine the test on the stated means of the applicant. Ultimately, the issue is whether it is economic to repair the building or in other words, whether the cost of repairing the building to a standard that it would enable it to be used, is less than the cost of replacing the building with another that is suitable at the location, for the use desired.[18]
In deciding the case, the ERD Court took into account that an appropriate (in terms of appearance) building “suitable for the owner’s purposes” could be constructed in place of the coach house at a significantly lower cost than the likely minimum cost of repairing the coach house so as to make it usable.[19]
[17] [2005] SAERDC 108.
[18] Ibid at [34].
[19] Ibid at [37].

To the extent that the ERD Court did refer to “the owner’s purposes”, Shackley provides some support for the present appellant’s submissions. However, it can also be seen that the Court applied an objective test and thought it inappropriate to have regard to the stated means of the land owner. Further, Shackley was a case, unlike the present, in which the owner did intend to replace the demolished building with another. It was therefore an example of the first kind of circumstance in which the question of economic renovation is to be considered. Further again, the Court in Shackley expressly said that the owner’s purposes were not the only relevant matters to be considered, noting that the necessary considerations would depend upon the facts and circumstances of each case and include a consideration of other relevant provisions of the Development Plan.[20] When these matters are understood, the decision in Shackley does not suggest error by the ERD Court in the present case.
[20] Ibid at [35].
I do not find any support in the Development Act, the Regulations made under it, or the Council’s Development Plan to support the appellant’s contention that a building which is structurally unsound can be said to be beyond economic renovation simply because it does not fit in with the current owner’s plans for the property. On the contrary, when the Objectives and Principles of Development Control for the Zone are read as a whole, they indicate an intention to prevent the owners of heritage properties demolishing them merely because they no longer suit the owner’s purpose.
In my opinion, Principle 4 is to be understood as having an operation in the context of a number of features about heritage buildings. These include the fact that many buildings contributing to the heritage character of the Zone may have been built for a purpose which has long since been superseded, for example, stables, a blacksmith’s workshop or a milling shed. It is the nature of such buildings that they are no longer required for their original purpose, and often, they can be difficult to adapt for a modern purpose. Principle 4 evidences an intention that such buildings should be retained, despite those limitations. The objective of preserving such buildings would be capable of easy circumvention if, once they became structurally unsound, the only question was whether the owner had any continuing use for them. It would be a curious result if the idiosyncratic plans of a current owner meant that a heritage item could not be economically repaired even though the item could be used appropriately in a number of other kinds of developments favoured in the Zone.
Another feature is that in some circumstances a structure may continue to contribute to the heritage character of the Zone even if it is run down, or possibly derelict.
Bearing in mind that Principle 4 is not to be construed as though it is a statute, I do not think that it is possible to state the test to be applied in the application of Principle 4 any more precisely than did the ERD Court in the present case. The question to be considered is whether the cost of repairing the structure, that is, of bringing it to structural soundness so that it may be used (whether as part of new building or separately), is so large having regard to the end result that it is not reasonable to require that amount to be expended.
The application of that test will ordinarily require an evaluation of a number of matters. First, the estimated cost of renovating the structure to a state of structural soundness is an obvious starting point. That cost is then to be compared with the uses which could reasonably be made of the structure once renovated. There may be some uses for which a structure once renovated may be quite suitable. There may be some developments which would be enhanced by the renovation and retention of the structure. The evaluation at this stage is of a utilitarian nature, ie, enquiring as to the reasonable uses which could be made of the structure once renovated. The result of that enquiry may indicate that renovation of the structure is quite justifiable on a strict cost/benefit analysis.
The evaluation of whether a structurally unsound building can be economically repaired for the purposes of Principle 4 will also usually require an evaluation of a number of other matters. Those matters include the nature and extent of contribution which the structure makes to the value (including the heritage value) of the property on which it is located, or to its neighbouring properties, or to the heritage character of the Zone generally. If the structure in question is of particular historical significance, or is, for example, of iconic status in its street or in the Zone generally, the conclusion may more readily be reached that its renovation, despite the expense, can be reasonably expected. Conversely, it may not be reasonable to require the expensive renovation of a structurally unsound building which contributes in only a minor way to the heritage character of an area.
I do not intend that statement of the relevant matters to be exhaustive. I agree with the ERD Court in Shackley that the necessary considerations will depend upon an evaluation of all the facts and circumstances in each case.
One matter is plain in my opinion and that is that the question of economic renovation is not to be determined simply by reference to the land owner’s economic circumstances, and by the consideration that the present land owner has no use for the building. Depending upon the circumstances of a particular case, these may be relevant matters, but they are not the only matters to which Principle 4 requires reference.
It follows, in my opinion, that the ERD Court did not make either of the errors of law which the appellant imputed to it. The appellant’s application failed because it did not adduce any evidence addressing the considerations which Principle 4 makes relevant.
Accordingly I would dismiss the appeal.
LAYTON : I agree that the appeal should be dismissed, for the reasons given by Gray and White JJ.