Koker v City of Port Lincoln - [2006] SASC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
KOKER v CITY OF PORT LINCOLN
Judgment of The Full Court
(The Honourable Justice Perry, The Honourable Justice White and The Honourable Justice Layton)
2 March 2006
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - MATTERS FOR CONSIDERATION BY COUNCIL
Appeal from the decision of the Environment, Resources and Development Court upholding the decision of the Council to refuse provisional development plan consent to modify existing premises - whether ERD Court erred in its interpretation of the Development Plan as it applied to the proposed development - interpretation of Principle 4 of the Principles of Development Control - consideration of development for a residential use ancillary to the existing industrial use and as a caretaker's residence - Held: The proposed development satisfies the requirement that it is "ancillary to the appropriate industrial activities in the zone" - leave to appeal granted - appeal allowed - order of the ERD Court quashed - provisional development plan consent granted on conditions to be fixed by the ERD Court - matter remitted to the ERD Court for the purpose of fixing conditions.
Environment, Resources and Development Court Act 1993 s 30(2), referred to.
Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404; Bishop & Bishop v District Council of Mallala [1997] SAERDC 425; City of Mitcham v MOL Pty Ltd (2003) 225 LSJS 273; Koker v City of Port Lincoln [2005] SAERDC 3; Kouflidis v City of Salisbury (1982) 29 SASR 321; The University of Sydney v South Sydney City Council (1998) 97 LGERA 186; Upton v Yarrowlumla Shire Council (1999) 101 LGERA 435; Warringah Shire Council v Raffles [1979] 2 NSWLR 299; Wistow Park Pty Ltd v District Council of Mt Barker [2003] SAERDC 126, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Ancillary"

KOKER v CITY OF PORT LINCOLN
[2006] SASC 55
Full Court: Perry, White and Layton JJ

PERRY J: I agree in general with the reasons of Layton J.
The application was for provisional planning consent for modifications to a building which housed an existing industrial use and in which there were existing residential facilities. The application was predicated on the basis that the modifications could properly be characterised within the terms of Principle 4 of the relevant Principles of Development Control as a residential development “ancillary to the appropriate industrial activities in the zone, or a caretaker’s residence”.
The process of determining whether the proposed modifications answer to that description, could clearly be assisted by reference to the nature of the existing use, whether that use is lawful or unlawful. This was not an issue canvassed either in the ERD Court or on the hearing of the appeal, no doubt as it was a strictly irrelevant consideration: see Kouflidis & Jenquin Pty Ltd v City of Salisbury.[1]
[1] (1982) 29 SASR 321.
If the existing residential development may properly be described in terms of either or both of the limbs of Principle 4, modifications designed to enhance the…

Details

AGLC: Koker v City of Port Lincoln [2006] SASC 55
Case: [2006] SASC 55
Decision Date: 2 March 2006

CaseChat Overview and Summary

The appellant, Koker, appealed against the decision of the Environment, Resources and Development Court (ERD Court) which upheld the Council's decision to refuse provisional development plan consent to modify existing premises. The modification involved developing a residential use ancillary to the existing industrial use and as a caretaker's residence. The appellant contended that the ERD Court erred in its interpretation of the Development Plan as it applied to the proposed development and the application of Principle 4 of the Principles of Development Control.

The legal issue at the heart of this appeal was whether the ERD Court had correctly interpreted the Development Plan and Principle 4, particularly in relation to the proposed residential use being ancillary to the industrial activities. The appellant argued that the court should have considered the proposed development in light of Principle 4, which contemplates a caretaker’s residence as a possible form of residential development in the Industry Zone, provided it did not compromise the objectives of the zone which favour industrial use. The appellant also argued that the court failed to properly weigh the need for the proposed development against the objectives of the Development Plan, particularly Objective 2 which seeks to protect industrial activities from adverse impacts of other land uses.

The court found that the ERD Court had indeed erred in its interpretation of the Development Plan and Principle 4. The court held that the proposed development did satisfy the requirement that it be "ancillary to the appropriate industrial activities in the zone." The court acknowledged that the existing residential use was in conflict with the industrial activities on the site, particularly in relation to noise. However, it found that the proposed development, as a caretaker’s residence, would not compromise the objectives of the zone and could be approved as it did not introduce a substandard residential accommodation into an industrial zone. The court also noted that the proposal did not incorporate measures to protect the residents from the industrial impacts nor did it protect the industries from potential pressure from the residents. Ultimately, the court concluded that the need to protect property could not override the provisions of the Development Plan. The appeal was allowed, the order of the ERD Court was quashed, and the matter was remitted to the ERD Court for the purpose of fixing conditions for the provisional development plan consent.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The matter then came on for hearing on the merits and the joined parties were no longer parties to the appeal. The decision of the ERD Court On 5 July 2005 the ERD Court consisting of a Judge and two Commissioners dismissed the appeal and upheld the decision of the Council to refuse the application for Provisional Development Plan Consent. The appellant submits that the reasoning of the ERD Court from which it now appeals, is essentially contained in [33] - [35] of the reasons for decision.We do not consider that the Development Plan necessarily guarantees that future development in the northern portion of the Area will be light industry rather than general industry, and the division between the northern and southern portions of the Area are less clear cut than Mr Rolfe believes. However, in our assessment, the impacts being experienced from the Sekol site are not out of keeping with what can be expected from the lawful use of the land for light industry. The history of this matter illustrates very clearly that those impacts are in conflict with the residential accommodation provided on the land at present. This is particularly so in relation to the noise generated on the Sekol site in the early mornings. The proposal does nothing to address this conflict. The locality is set aside for industry. Objective 2 dictates that industrial activities are to be protected from adverse impacts of other land uses. Principle 4 contemplates a caretaker’s residence as the only possible form of residential development which might be approved in the Industry Zone. However, it is the intention of the relevant provisions, read together, that this should occur only where it does not compromise the objectives of the zone, which strongly favour industry. Wherever it was situated within the Industry Zone, it is likely that the occupier of a caretaker’s residence would experience lower amenity than the occupier of a residential property in a residential zone. However, substandard residential accommodation should not be approved. This proposal does not incorporate any measures to protect the inhabitants of the caretaker’s residence from the noise, dust or odour which could reasonably be expected from the existing and future industrial land uses in the locality. The other side of that coin is that it does nothing to protect the industries from pressure likely to be exerted by the residents arising from that conflict.We appreciate Ms Koker’s dilemma with respect to the security of the premises. However, there are many ways of protecting industrial premises. The need to protect property cannot prevail against the provisions of the Development Plan. We note, in addition, that if a high risk of break-ins exists in the area, personal security must also be a concern.Preliminary point on appeal There is no question that the appellant has a right of appeal on a question of law. However at the hearing of the appeal the respondent argued that the appellant had not obtained leave to appeal against the findings of fact.[4] The appellant’s major submission was that the Court had erred on a question of principle in failing to properly interpret Principle 4 of the Development Plan. Counsel for the appellant Mr Swan referred to City of Mitcham v MOL Pty Ltd[5] where Besanko J considered whether a failure to interpret relevant provisions of a Development Plan involved questions of law and the difficulties raised in planning applications when there are mixed questions of law and fact. In [8] of the City of Mitcham, Besanko J was of the opinion that:it is open to question as to whether an argument that the ERD Court has misinterpreted a word or provision in the Development Plan involves a question of law. The issue of whether the word or principle is used in its ordinary sense or has a technical meaning is a question of law. However, if it is clear that the word or principle has been used in its ordinary sense then the interpretation of the word or principle, and the application of that word or principle to the facts, will not ordinarily involve a question of law. I say “ordinarily”, because an argument that it was not reasonably open to the decision maker to make the decision it did does involve a question of law.[4] Environment Resources and Development Court Act 1993 s 30(2).[5] (2003) 225 LSJS 273.

Ratio Decidendi

Legal Principle Established

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