Koker v City of Port Lincoln
[2006] SASC 55
•2 March 2006
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 55Full 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 amenities associated with it must logically be similarly so characterised.
The existing occupation of the premises by Mr Koker and his daughter is in part explicable by reason of their concern about security. While evidence of actual break-ins is limited to two, which occurred some years apart, Ms Koker said in evidence, without objection, that according to the Chief of Police, Mr Schluter, the road (upon which the premises are situated) has a “reputation for high crime”, and elsewhere she said “the road is notoriously bad for crime anyway”.
The relatively low incidence of break-ins in the subject premises over the years may fairly be regarded as a consequence of the Koker family’s continued occupation of the premises.
If the standard of residential accommodation is lower than might be expected in a residential zone, this is not surprising. Certainly, that would hardly justify refusal of an application designed to improve the amenities of the residential accommodation, viewed either as a caretaker’s residence or as a residential development “ancillary to the appropriate industrial activities in the zone”. Pertinent to this issue are the comments in his evidence given by the planner, Mr Rolfe, about the standard of caretaker’s premises.
Insofar as the Environment Resources and Development Court (“the ERD Court”) seem to have placed some store on the fact that there was a degree of friction between the occupiers of the subject premises and the occupiers of surrounding business premises, that does not seem to me to be a relevant consideration. Apparently that friction exists, and will continue to exist, whether the application is granted or not.
I agree in general with the criticisms expressed by Layton J of the reasoning of the ERD Court.
A sufficient evidentiary foundation was established to lead me to agree with the conclusion expressed by Layton J that, apart from the question whether the premises can properly be characterised as a caretaker’s residence, the proposed development satisfied the requirement that it is “ancillary to the appropriate industrial activities in the zone”, within the meaning of Principle 4.
Furthermore, I agree that given the long history of the matter, and the relatively insignificant effect that the proposed development will have on the general amenity of the zone, it is desirable that the proceedings be brought to a head with a minimum of further delay and expense to the parties.
I would, therefore, make an order which would, effectively, confine any further hearing in the ERD Court to the question whether any, and if so what, conditions should be fixed with respect to the approval which, in my view, should otherwise be granted.
To that end, I would make the following order:
1. To the extent necessary, giving leave to appeal to this Court.
2. Quashing the order under appeal.
3. Substituting for the order under appeal an order:
(a) that the appeal to the ERD Court be allowed;
(b)that the refusal by the City of Port Lincoln to grant provisional development plan consent be quashed;
(c)that provisional development plan consent be granted on conditions to be fixed by the ERD Court;
(d)that the matter be remitted to the ERD Court to fix such conditions, if any, as the ERD Court may think fit, and to make such further or other orders as may be necessary to carry into effect the judgment of this Court.
WHITE J: I agree that this appeal should be allowed and I agree generally with the reasons of Layton J. As the facts and circumstances giving rise to the appeal are set out fully in the judgment of Layton J, I can set out briefly my reasons for that conclusion.
The reasons for the refusal of the application for development approval given by the Development Assessment Panel of the Port Lincoln Council were as follows:
The Development Assessment Panel does not condone the ongoing illegal residential use of 44 Proper Bay Road and that development of this nature does not meet the objectives of the Industry Zone within the Port Lincoln (City) Development Plan.
The development had to meet the objectives set out in the Port Lincoln (City) Development Plan relating to an Industrial Zone. Those objectives are set out in the judgment of Layton J. Principle 4 provides:
There should be no residential development, unless it is ancillary to the appropriate industrial activities in the Zone, or a caretakers’ residence.
There are two limbs to this Principle. Residential development should not occur in an Industrial Zone unless it is either ancillary to the appropriate industrial activities in the Zone, or it is a caretaker’s residence. In determining whether the development proposed by the appellant met the objectives of the Development Plan, it was necessary, in my opinion, for it to be determined whether the proposed development was for a caretaker’s residence, or ancillary to the appropriate industrial activities in the Zone, or both.
The ERD Court regarded the application as being one for approval to add a caretaker’s residence. It determined the appeal to it on that basis. The ERD Court proceeded in that way because it took the view that a letter from the appellant’s solicitors to the Port Lincoln Council dated 5 May 2003 “made it apparent that the application was to add a caretaker’s residence to the use of the land for the making of fine wooden furniture”.
Contrary to the view taken by the ERD Court, the letter of 5 May 2003 made it plain that the appellant sought to bring himself within both limbs of Principle 4. This is apparent from the following extracts from the letter:
Planning consent is sought for residential status as ancillary to the existing industrial use, and as a caretaker’s residence.
…
We respectfully submit that this development is ancillary to the appropriate industrial activities conducted by our clients and is to be a caretaker’s domicile.
The building at Constantia houses expensive and fine furniture along with a great deal of exotic and valuable wood supplies. There have been previously security issues in regards to the building and for these reasons we submit it entirely appropriate that the Council approve the development application on the grounds that:
1. it is ancillary to the authorised activities conducted on the premises; and
2. it is for a caretaker’s domicile. [Emphasis added.]
The letter then went on to give reasons for the view of the author that the development was “ancillary to the existing appropriate industrial use of the premises”. Having given those reasons, the letter continued “the application is also made on the basis of it being for a caretaker’s residence for Bernhard Koker and daughter Summer Koker”.
Because the ERD Court considered the application on the basis that it was for a caretaker’s residence, it did not consider the application for development approval against the first limb of Principle 4, viz, whether the proposed residential development was ancillary to appropriate industrial activities in the Zone. Nor did it make the findings of fact necessary for that consideration. The matters upon which the appellant relied in support of the submission that the development was ancillary to appropriate industrial activities in the Zone are set out in the judgment of Layton J.
Not only did the ERD Court not consider appropriately the basis upon which development approval was sought, it took, in my respectful opinion, an unduly stringent interpretation of Principle 4. The ERD Court said:
Principle 4 contemplates a caretaker’s residence as the only possible form of residential development which might be approved in the Industry Zone. [Emphasis added.]
For the reasons given by Layton J, this interpretation of Principle 4 is, in my opinion, incorrect. In addition, the ERD Court followed the passage quoted above with the following:
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. [Emphasis added.]
In my opinion, that conclusion gives the provisions of the Development Plan a meaning which is unduly narrow. It implies that any compromise at all of the objectives of the Zone should lead to an application being rejected. While it is no doubt very relevant to consider whether or not a proposed residency may compromise the objectives of the Industrial Zone, it is inappropriate to construe the Principle as meaning that residency should be approved “only” where there was no compromise. It is implicit in the Principles that there may be some forms of residential development which are compatible with the objectives of the Zone. Further, almost any intrusion of a residential development is likely to have the potential of producing some compromising effect on the objectives of the Zone.
In short, my opinion is that the appeal to the ERD Court miscarried. The ERD Court misapprehended the basis of the application and took an unduly stringent view of the relevant principles in their determination of the appeal. For these reasons, the appeal to this Court should be allowed. I would order that the matter be remitted to the ERD Court for rehearing before a differently constituted Court. In this way the requisite findings of fact concerning the basis for the application can be made and the appeal determined by the specialist Court in the light of the reasons of this Court.
LAYTON J: This appeal concerns a decision of the Environment, Resources and Development Court (“the ERD Court”) upholding the refusal by the City of Port Lincoln (“the Council”) to grant Provisional Development Plan Consent to the appellant to modify existing premises for residential use ancillary to the existing industrial use and as a caretaker’s residence. The appeal involves considerations of the proposed development, and whether the ERD Court erred in its interpretation of the Development Plan as it applied to the proposed development.
Background
The proposal
The appellant, Mr Koker, by application dated 29 April 2003 applied to the respondent Council for provisional development approval for a “modification to existing residence” situated at 44 Proper Bay Road, Port Lincoln. This was a fresh application lodged by the appellant as an earlier application was withdrawn. The application of 29 April 2003 indicated that the existing use of the site was as “residence/workshop/gallery”.
A letter dated 5 May 2003 from the solicitors for the appellant to the Council, in clarification of the application, indicated that the planning consent was sought for “residential status as ancillary to the existing industrial use, and as a caretakers (sic) residence”.
Since 1975 or 1976 the land has been used by a family business for the production of fine furniture or “art investment furniture” under the name of “Constantia”. In about 1994 the business expanded into the design and construction of speaker systems for hi-fidelity equipment as well as for sound recording activities in the workshop under the name of “Leisure Pleasure Audio”.
The premises have also been used for residential purposes for the appellant’s family at various times since the 1980’s following the break up of the appellant’s marriage.
The site at 44 Proper Bay Road, Port Lincoln (being the whole of the land comprised in Certificate of Title Register Book Volume 5333 Folio 514) and consisting of lots 7 & 8, is a rectangular allotment of approximately 6375 square metres.[2] On the site there is a large single storey building of 735 square metres set back on the land. The building contains a workshop area of some 500 square metres and the front of the building contains a display and office area. Within the workshop portion of the building there is a kitchen; an area containing a washing machine; a bathroom and toilet. There is evidence that at least two of the rooms were being used as bedrooms. The adjacent allotment to the building is used for car parking in association with the furniture business.
[2] There was also a reference in the material to the allotment being a total area of 3175 square metres.
The neighbouring land to the north, west and south is used for a mixture of light industrial activities and to the east, recreation facilities. Sekol Farmed Tuna Pty Ltd is situated to the west of the proposed development site and comprises an office building and two large sheds used primarily for the storage of frozen pilchards. Other fish storage facilities include the businesses Ajka Pty Ltd and MG Kallis Tuna which are both to the west of the site. To the south of the site, is the seafood processing plant of Australian Southern Seafood and further to the south is a National Parks and Wildlife service depot.
The letter of 5 May 2003 from the appellant’s solicitors to the Council indicated that the application was to change the nature of some rooms with the main changes being:
1. the deletion of the need for the four existing bedrooms, reverting to two;
2. the provision of one new bedroom, after conversion of two existing bedrooms into studios;
3. the incorporation of a firewall between the workshop and residential areas.
The Council processed the application as a Category 3 type of development which was neither complying nor non-complying.
On 3 August 2004, the Development Assessment Panel of the Council considered a report of the proposal prepared by an Independent Planning Consultant, Mr Rolfe. The report concluded:
Significantly, Principle of Development Control 4 in the Industry Zone clearly envisages residential development provided that is ancillary to the appropriate industrial activities in the zone or caretakers’ residences. The proposed development appears to satisfy the intent of this provision in land use terms. It is also considered that the proposed development provides an appropriate amount of car parking, while the associated landscaping and appearance of development is generally compatible with other existing development in the locality. Therefore, Provisional Development Plan Consent is recommended.
A number of recommended conditions to which the consent would be subject to were then indicated. The report continued:
Any ongoing issues regarding the impact of industrial activities in the locality upon future residents of the subject site should be resolved separately to the assessment of this Application using the relevant EPA guidelines.
On 3 August 2004, the Council refused to grant the Provisional Development Plan Consent to the proposed development. The reason given for the refusal was that the Development Assessment Panel did not condone the ongoing illegal residential use of the premises and held that it did not meet the objectives of the Industry Zone within the Port Lincoln (City) Development Plan.
On 29 September 2004, the appellant appealed against the refusal to grant Provisional Development Plan Consent. Various objectors were joined as parties to the appeal (“the second respondents”) which was heard before the ERD Court on 16 December 2004. The ERD Court proceeded to hear the preliminary issue as to whether the development applied for was non-complying. The second respondents argued that the development applied for was non-complying on the basis that it was an application to establish a “dwelling” which, based on Principle 7 of the Industry Zone, was a non-complying kind of development.
A Judge of the ERD Court sitting on this preliminary point decided on 14 January 2005, that she did not consider the plan showed a “dwelling”. Her Honour based her conclusion on the fact that the living quarters were not self-contained, as the bathroom and kitchen facilities were shared by all users of the building and therefore the development application was not for a kind of development that was non-complying.[3] For the purposes of deciding the preliminary point, her Honour assumed that the application for development was to change the land use to “industry/caretaker’s residence rather than merely being an application to undertake internal alterations to a building for the continuation of an existing use”. Her Honour made no findings of fact or determination of law on the point and also assumed that the rooms labelled “upholstery”, “material storage”, “studio” and “loud speaker testing laboratory” as well as the bathroom and separate toilet, were all available for those working in the building and were accessible for all users of the building.
[3] Koker v City of Port Lincoln [2005] SAERDC 3, [5].
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.
Given that this appeal involves a consideration of the interpretation of Principle 4 and how the term “ancillary” is to be applied to this planning context, and considering the difficulty in separating the questions of fact and law, I would approach this appeal in a similar manner to the approach in MOL. I would order that leave to appeal be granted on any questions of fact, particularly those identified in grounds 7, 8, 9, 10, 12, and 13 in the appellant’s Notice of Appeal dated 21 July 2005.
Development Plan
The Development Plan which is the subject of interpretation in this appeal concerns land which is within the Industry Zone of the City of Port Lincoln Development Plan (2003). The following objectives and principles identified in the Plan are relevant to the application:
OBJECTIVES
Objective 1: A zone primarily for industrial activities.
Objective 2: A zone in which industrial activities are protected from adverse impacts of other forms of land use and encroachment of incompatible uses.
Objective 3: Development capable of meeting contemporary environmental standards.
…
PRINCIPLES OF DEVELOPMENT CONTROL
1 Development should be primarily for industrial activities.
…
3Development should be located and designed to mitigate the effects of impacts, such as noise, dust, odour and traffic uses in adjacent zones.
4There should be no residential development, unless it is ancillary to the appropriate industrial activities in the Zone, or a caretaker’s residence.
…
The land is also within Proper Bay Road Policy Area 14 which has one objective:
Objective 1: An area for industrial development.
The area is suitable for a mixture of light and general industries with light industry located at the northern end and special or noxious industries at the southern end.
Principle 2 of Policy Area 14 provides:
Light industries should be developed in the northern portion of the area whilst general, special or noxious industries should be developed in the southern portion.
Grounds of appeal
In practical terms, there are five grounds upon which the appellant submitted that the ERD Court erred as a matter of law and/or fact. As indicated previously, the major argument of the appellant concerned the interpretation of Principle 4 of the Principles of Development Control by the ERD Court.
A second criticism of the decision concerned the alleged failure of the ERD Court to make specific findings as to whether the proposed development was either in whole or in part an application for a “caretaker’s residence”.
A third ground concerns the observation by the ERD Court as to circumstances in which a proposal for residential development in an industry zone should not be approved because of its “lower amenity” or “substandard residential accommodation” in comparison with the development being in a residential zone.
A fourth concern raised by the appellant is the statement by the ERD Court to the effect that development should not be granted unless a decision maker is satisfied that the development does not compromise the objectives of the industrial zone; and further, that the Development Plan did not necessarily guarantee that future development in the northern portion of the Area would be light industry.
A fifth argument relates to the concerns expressed by the ERD Court as to the possible issue of personal security of any inhabitants of the residence.
Interpretation of Principle 4
Principle 4 contained in the Port Lincoln Industry Zone Development Plan “Principles of Development Control” provides:
There should be no residential development, unless it is ancillary to the appropriate industrial activities in the Zone, or a caretaker’s residence.
In [33] of the reasons for decision, the ERD Court stated:
Principle 4 contemplates a caretaker’s residence as the only possible form of residential development which might be approved in the Industry Zone.
The appellant submitted that the ERD Court was incorrect in its interpretation. The wording of Principle 4 indicates that residential development is permissible if it is either “ancillary to the appropriate industrial activities in the Zone”, or “a caretaker’s residence”. The two permissible forms of residential development are disjunctive.
The respondent submitted that the words “ancillary to the appropriate industrial activities in the Zone” referred not to the particular industrial business but to the Zone as a whole and the industrial activities which were permitted within the Zone. Counsel for the respondent submitted that the ERD Court, in so expressing itself, was endeavouring to ensure that residential development did not take place within an industrial zone where it adversely impacted on the industrial zone. Further that this concern as to adverse impacts was reflected in Objective 2 and it was a matter of judgment which was properly within the specialist knowledge of the ERD Court.
Although not expressed precisely in these terms, essentially what counsel for the respondent was submitting on this point, was that the ERD Court was correct in concluding that a caretaker’s residence was specifically identified as “the only possible form of residential development” which was exempted by Principle 4. This was because the other exemption was expressed more generally and required the residential development to be “ancillary” to the broader industrial activities of the Zone. It was therefore argued that a caretaker’s residence, being a residential development for an individual business, was by its nature not “ancillary” to the broader notion of appropriate industrial activities of the Zone, hence the ERD Court was essentially correct.
I do not agree that the ERD Court was correct in its approach to the interpretation of Principle 4 on this point nor do I agree with the respondent’s interpretation. Principle 4 is expressed disjunctively. To put the proposition in another way, the Principles of Development Control first anticipates residential development in an industrial zone, and Principle 1 states that the development should be “primarily” for industrial activities. Secondly, Principle 4 is indicating a limit on the nature of the residential development requiring it to be either “ancillary to the appropriate industrial activities” in the Industrial Zone, or alternatively, a “caretaker’s residence”. Thirdly, Principle 4 would not exclude a residential development which was both a caretaker’s residence and also ancillary to the appropriate industrial activities in the Zone or alternatively, a development that was in part a caretaker’s residence and in part ancillary to the appropriate industrial activities in the Zone. It would therefore be possible for a particular residential development within the Zone to be permitted under either or both aspects of the permissible residential development set out in Principle 4.
Principle 4 refers to the development being “ancillary to the appropriate industrial activities in the Zone”. However this does not mean that when considering whether the proposed development fulfilled this requirement that a decision maker should not have regard to the particular industrial activity which is the subject of the proposed development and whether the proposed development is ancillary to that activity. In this case the appellant was conducting an “appropriate industrial activit[y] in the Zone”. It was not merely a furniture making shop, but was a fine furniture making shop with special requirements because of the nature of that industry. It was also designing and constructing speaker systems with related sound recording activities.
In relation to Principle 4, it is relevant to have regard to whether the proposed development is ancillary to that particular industrial activity within the Zone, but at the same time to have regard to the broader appropriate industrial activities in the Zone, especially those in proximity to the development. Both considerations are relevant and the emphasis on one or the other may vary according to the nature of the proposed development.
In this case it was submitted that it was necessary to combine the residence and the business due to the nature of the business being undertaken. This was because there were overseas clients who often needed to contact the business at all hours; and access was needed to files kept in the business. It was submitted that the appellant often starts working at early hours for artistic thought and for recording and needed ready and easy access to the business. Further the amenities such as the bathroom and kitchen in the business were connected and used both by employees, visitors and the inhabitants of the residence.
Whilst individualistic ways in which someone may wish to run his or her business cannot dictate whether something should be regarded as “ancillary” to the appropriate industrial activities, at the same time, the particular nature and style of the industrial activity and the way in which the industrial activity is being conducted, should not be ignored. This is a matter of balance.
Some support for this approach can be found in the case of Warringah Shire Council v Raffles,[6] in which the New South Wales Supreme Court held that the “purpose of the use” is the test and in determining the purpose this could include individual ways of doing things. For example, a helicopter being used as transport to and from work requiring a landing site on privately owned land, so also the setting up of a residence ancillary to an industrial business for the purpose of accessing files and other materials out of hours.
[6] [1979] 2 NSWLR 299.
In my opinion, on this aspect of the argument, the ERD Court was not correct in its interpretation of Principle 4. The ERD Court appeared to limit its consideration to the issue of the development as an application for a “caretaker’s residence” without considering whether it could be regarded as ancillary to the appropriate industrial activities in the Zone. In my view the failure to consider this development as ancillary led the ERD Court into error in reaching the decision.
Counsel for the respondent, Mr Hayes QC, submitted a further argument to the Court on the matter of the interpretation of Principle 4. He argued that the word “ancillary” meant not merely “subsidiary” or “subordinate”, but that the proposed residential development should be “necessary” for the industrial activities of the zone.
The ordinary meaning of the word “ancillary” can be derived from The New Shorter Oxford Dictionary on Historical Principles (3rd ed 1993). There appear to be two approaches. The first indicating “subservience, subordinate; auxiliary, providing support”. This approach appears to be given some support in different contexts by a number of cases in the planning jurisdiction, namely, “subordinate to” or “reasonably incidental to” in the cases of Bishop & Bishop v District Council of Mallala;[7] The University of Sydney v South Sydney City Council;[8] Baulkham Hills Shire Council v O’Donnell;[9] or “subservient to” in the case of Upton v Yarrowlumla Shire Council.[10]
[7] [1997] SAERDC 425.
[8] (1998) 97 LGERA 186.
[9] (1990) 69 LGRA 404.
[10] (1999) 101 LGERA 435.
There is some support for the word “ancillary” being interpreted as “necessary” also in a planning context in the decision of Wistow Park Pty Ltd v District Council of Mt Barker.[11]
[11] [2003] SAERDC 126.
In Wistow, Principle 129 of the Rural (Mt Barker) Zone provided for all types of development which were non-complying. One of these was a winery in which the principle provides that “at least one of the following activities associated with the making of wine takes place” and then a reference follows to activities such as crushing and bottling. It then continues, that it “may include ancillary activities of administration, sale or promotion of wine product and dining”.
The Court in Wistow when reaching its decision cited, at [23], the Oxford English Dictionary (2nd edition) as being the definition, which in its view, suited the development applications before it namely, that the term “ancillary” meant:
[d]esignating activities and services that provide essential support to the functioning of a central service or industry.
It is to be noted that the context in which the word ancillary was interpreted was specifically related to activities which were expressed and, in addition, examples of such ancillary activities were specified. It was therefore appropriate in the context of the Wistow case to take a narrower approach rather than a broader approach to the meaning of ancillary.
In my view, the context in which the word “ancillary” is used in Principle 4 does not suggest that the residential development must be an “essential” development for the appropriate industrial activities in the Zone as in Wistow. Such an interpretation would seem to be inconsistent with the distinction which is drawn between industrial activities and residential activities within Principle 4 and Objective 2. It would be hard to envisage a requirement that a residential development had to be shown to be “essential” before it could be approved, as distinct from demonstrating that the residential development would provide support to the industrial activities. The interpretation of “ancillary” advanced by Mr Hayes puts the test too high and adds a very prescriptive dimension to Principle 4 which is not suggested by the wording.
I therefore consider that the appropriate interpretation of the meaning of “ancillary” in Principle 4 is that the residential development is required to be subservient, subordinate, auxiliary, or providing support to the industrial activities in the Zone.
Findings of fact
A second alleged error of the ERD Court was a failure to make appropriate findings on the specific matter before it. It was submitted that the ERD Court did not address whether the proposed development was or was not solely or in part a “caretaker’s residence”. It was submitted that at the very least the ERD Court should have made findings one way or the other as to whether the proposed development was indeed appropriately characterised as a “caretaker’s residence”.
There are some aspects of the reasons for decision which suggest that the ERD Court proceeded on the assumption that the characterisation of the development sought was indeed a “caretaker’s residence”, being the way in which the argument was addressed by the parties before the ERD Court. However, there was no specific finding made by the ERD Court on this point. Such a finding was a necessary precursor to a decision as to whether the development fell appropriately within the meaning of Principle 4 as referred to above. When coupled with the incorrect interpretation of Principle 4 the failure to make the necessary factual finding contributed, in my view, to the ERD Court falling into error.
Lower amenity and sub-standard residential accommodation
A third alleged error concerned the statement contained in the reasons at [34] in which the ERD Court stated:
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.
It was submitted that the ERD Court fell into error in failing to take into account the fact that Principle 4 anticipated that “residential development” was a form of development which was contemplated in the Industry Zone. It could reasonably be anticipated that the amenity which would be available for a residential development within an Industry Zone is, by its very nature, likely to be of a lower amenity than a residential property in a residential zone.[12]
[12] M J Rolfe Report, 3 June 2005; Transcript of Proceedings 14 June 2005, 66, line 34.
I agree that this paragraph of the decision suggests erroneous reasoning for the refusal. The refusal to consent to the appellant’s Provisional Development Plan for a “caretaker’s residence” on the basis that it would experience a lower amenity as it was in an industrial zone, appears to ignore the express allowance for a caretaker’s residence contained in Principle 4 itself.
It was also submitted by counsel for the appellant that there was another related error, namely the statement in the reasons for decision that, “substandard residential accommodation should not be approved”. It was submitted that this statement failed to set out in what manner the residential accommodation was to be regarded as “substandard”. Immediately following that sentence contained within [34] is the following statement:
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.
In my view [34] appears to reflect the foundation for the statement that the residential accommodation was “substandard”. So far as the existing land uses are concerned, the evidence clearly demonstrated that the problems of “noise, dust and odour” were not circumstances which concerned the residential character of the development. The evidence, which is reflected in [21] to [26] of the reasons for decision demonstrated that the noise, dust and odour which the appellant complained of concerned the use of the premises for its industrial purposes during working hours and not its residential purposes. Therefore, it was inappropriate of the ERD Court, so far as existing use is concerned, to advert to those complaints as indicating that the residential accommodation should not be approved. A different issue arises as to “future industrial land uses in the locality” which I will address hereafter.
Compromising objectives of the Industrial Zone
A fourth error which was submitted by the appellant, concerns the statement contained in the reasons for decision at [33]:
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.
In my view this statement overstates the particular principles. It is clear that Principle 4 anticipates “residential development” within an industrial zone. Taken too far, it could be said that any residential development in an industrial zone would compromise the objectives of the zone in that such residential development could lead to complaints made by residents regarding the nature and effect of the industrial activities in that area. In my view there is nothing about this particular proposed residential development which could be said to “compromise” the objectives of the Zone. It is a limited development, it is not free standing but is incorporated and integrated within the furniture business and sound system and recording activities, with many facilities jointly used.
There will always be some tension with activities in an industrial zone by the very fact that residential development is permitted to be within an industrial zone. This tension and the need for balance is reflected in Objectives 1 and 2. It seems to be a matter of weighing up these factors, rather than saying that merely because complaints may occur, that it would render this a ground in itself for refusing residential development.
Future industrial use
At [33] the ERD Court rejected the relevance of Principle 2 of Policy Area 14. The Court did not consider that the Development Plan necessarily guaranteed that future development in the northern portion of the Area would be light industry rather than general industry. The Court was also of the opinion that the division between the northern and southern portions of the Area in terms of the type of authorised industries were less clear-cut than was submitted in the report of the Independent Planning Consultant Mr Rolfe. The appellant criticises this opinion of the ERD Court as being contrary to Principle 2 which for convenience I will set out again. It states:
Light industries should be developed in the northern portion of the area whilst general, special or noxious industries should be developed in the southern portion.
The appellant endorsed the view expressed by Mr Rolfe that the locality of the proposed development was in the northern portion of Policy Area 14 which was to be developed for light industry and not general industry.
The opinion of the ERD Court expressed in [33] appears to rely at least in part on the opinion expressed by Mr David Bills in a report of Hassell Pty Ltd dated 7 June 2005. Mr Bills stated:
It is my opinion that whilst the Policy Area [14] Principle of Development Control 2 contemplates a suggested location for various industries, it does not prevent the establishment of a light industry in the southern portion nor does it prevent a general industry in the northern portion.
Mr Hayes submitted that the ERD Court was correct. He also submitted that when considering a proposed development of a residential nature and when deciding whether it was ancillary to the appropriate industrial activities of the Zone, it is important to pay heed to Objective 2. This, in his submission, is to ensure that residential development did not adversely impact on the industrial zone, not just at the time but also with regard to future use.
In addition, Mr Hayes submitted that the present use of the premises and the proposed “caretaker’s residence” might change and subsequent occupiers of the “residential premises” might have a different attitude to their level of amenity in a zone which permits industry to create noise, dust, smell and traffic 24 hours a day.
In my view both arguments place far too much weight on the unknown future. These may indeed be appropriate factors to be taken into account but they do not of themselves override the known present factors when there is no evidence to suggest such changes to the present industrial use are likely. Again, this is a matter of balance and judgment of the ERD Court exercising its experience and expertise, and the ERD Court did not appear to rely on such potential future use in reaching its conclusion, as a reading of the whole of [33] demonstrates. I therefore do not consider this point on future use to be a sustainable ground of appeal.
Security concerns
A fifth error complained of by the appellant relates to the last sentence in [35] in which the ERD Court found:
We note, in addition, that if a high risk of break-ins exists in the area, personal security must also be a concern.
The appellant argued that this was erroneous and without foundation. I do not consider this factual assumption to give rise to a matter of principle or significance such as to demonstrate an error of the Court.
Conclusion
I consider that the appeal should be allowed for the reasons set out above. I have considered whether this Court should exercise the discretion which would otherwise have been exercised by the ERD Court if it had addressed itself to the correct interpretation of the principles. I am also conscious that there is a need to have some finality for the parties on this proposed development.
Having regard to the facts in this case and its long history I think it is preferable for this Court to exercise its discretion. There is sufficient information upon which I would conclude that the proposed development satisfies the requirement that it is “ancillary to the appropriate activities in the Zone” with a side benefit in being in part a “caretaker’s residence”. The proposed development would not by itself fulfil the criteria of a “caretaker’s residence”. For reasons discussed earlier, the proposed development is an important support for the appellant’s industrial activities and is not incompatible with other appropriate industrial activities in the Zone, particularly those in proximity to the appellant. A person in residence on the premises is undoubtedly an additional benefit for the protection of valuable furniture and equipment.
I would therefore allow the appeal and I agree with the orders suggested by Perry J.
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