Mount Barker District Council v Palma - [2002] SASC 104

DISTRICT COUNCIL OF MOUNT BARKER v PALMA
[2002] SASC 104
Full Court: Doyle CJ, Mullighan and Williams JJ

DOYLE CJ: Mr Palma applied to the District Council of Mount Barker (“the Council”) for provisional Development Plan consent (“the consent”) to undertake a development described as “relocation of existing shop”. The Council determined the proposed development to be:
“Conversion of a storage shed to a shop for the retail sale of fruit and vegetables, associated car parking and landscaping, and the use of the rear shed for storage purposes.”
The Council classified the proposed development as a non-complying development for the purposes of s 35 of the Development Act 1993 (“the Act”).
The Council resolved to grant the consent, subject to certain conditions and subject to the concurrence of the Development Assessment Commission (“the DAC”), which concurrence was required by s 35(3)(b) of the Act. The DAC resolved to decline to concur. Accordingly, the Council had to refuse the consent.
Mr Palma appealed to the Environment Resources and Development Court (“the ERD Court”). If the Council had correctly determined the proposed development to be a non-complying development, there was no right of appeal.
The ERD Court held that the proposed development constituted development as defined in s 4 of the Act. It held that the proposed development was not a non-complying development. Accordingly the appeal lay to the ERD Court. The Court remitted the application to the Council to be dealt with accordingly.
The Council has appealed to this Court.
The appeal raises two issues. First, does the proposed development constitute development as defined in s 4 of the Act? Second, if the first question is answered in the affirmative, was the ERD Court correct in deciding that the proposed development was not a non-complying development? By a Notice of Contention Mr Palma claims that the ERD Court should have held that the proposed development did not constitute development under the Act, and that accordingly this Court should hold that the ERD Court lacked jurisdiction to entertain the appeal.
Facts
I take the following facts from the reasons of the Judge of the ERD Court. His factual findings were not challenged.
Mr Palma owns land with a frontage to Old Mount Barker Road. The land has an area of about 17.5 hectares. The land is about 900 metres from the edge of Hahndorf Township. The land is used for market gardening and associated agriculture. On the land are a dwelling and at least two sheds. One shed, the larger shed, is used to sell fruit and vegetables, some of which are produced by Mr Palma, and some of which come from elsewhere. Adjacent to the larger shed is a bitumen car park, which is connected to Old Mount Barker Road by a bitumen drive. There is a smaller shed which is closer to Old Mount Barker Road. This comprises a cool room and storage area. It is used to store farm equipment, fruit and vegetable cartons and boxes, to cut and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] SASC 104
Decision Date: 16 April 2002

CaseChat Overview and Summary

The appellant, Mount Barker District Council, appeals against a decision of the Environment, Resources and Development Court (ERD Court) which found that the proposed development by the respondent, Mr Palma, constituted development but was not a non-complying development under the Development Act 1993 (SA). The appeal raises two primary issues: whether the proposed development constitutes development as defined in section 4 of the Act and, if so, whether the ERD Court was correct in determining that the proposed development was not a non-complying development. The ERD Court had found that the proposed development did constitute development under the Act, but it was not a non-complying development. This finding allowed the Council to decide whether to approve the application, and an appeal against a refusal of consent could be lodged if the Council declined consent. Conversely, if the development were deemed non-complying, the District Advisory Committee's refusal of concurrence would be final and no appeal would lie.

The Court examined the definition of "development" in section 4 of the Act, specifically focusing on the change of land use. The ERD Court held that the proposed development involved a change of use, as the intended use of the smaller shed would contravene a specific condition attached to a previous consent. This reasoning aligns with the precedent set in Remove All Rubbish Co Pty Ltd v City of Munno Para, where it was established that varying the hours of operation, subject to consent conditions, constituted a change of use and thus development. However, the ERD Court also determined that the proposal did not involve a change of use of the land as a whole or its immediate curtilage, applying principles from Prestige Car Sales Pty Ltd v Corporation of the Town of Walkerville. This conclusion created a tension with the finding that the development was, in fact, a change of use.

The Court concluded that the proposed development did constitute development under the Act because it involved a change of use of the smaller shed, which would contravene a specific condition attached to a previous consent. However, the Court also agreed with the ERD Court's determination that the proposed development was not a non-complying development. The Court found that the proposed development did not involve a change in the use of the land as a whole or its immediate curtilage, and therefore did not fall within the exceptions outlined in Principle 124 of the Principles of Development Control for the Historic Township (Rural Setting Heritage Area) Zone.

ORDER:
The appeal is dismissed. The Court upheld the ERD Court's decision that the proposed development constitutes development under the Act but is not a non-complying development. Consequently, the Council can decide whether to approve the application, and an appeal lies against a refusal of consent.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The appeal raises two issues. First, does the proposed development constitute development as defined in s 4 of the Act? Second, if the first question is answered in the affirmative, was the ERD Court correct in deciding that the proposed development was not a non-complying development? By a Notice of Contention Mr Palma claims that the ERD Court should have held that the proposed development did not constitute development under the Act, and that accordingly this Court should hold that the ERD Court lacked jurisdiction to entertain the appeal.Facts I take the following facts from the reasons of the Judge of the ERD Court. His factual findings were not challenged. Mr Palma owns land with a frontage to Old Mount Barker Road. The land has an area of about 17.5 hectares. The land is about 900 metres from the edge of Hahndorf Township. The land is used for market gardening and associated agriculture. On the land are a dwelling and at least two sheds. One shed, the larger shed, is used to sell fruit and vegetables, some of which are produced by Mr Palma, and some of which come from elsewhere. Adjacent to the larger shed is a bitumen car park, which is connected to Old Mount Barker Road by a bitumen drive. There is a smaller shed which is closer to Old Mount Barker Road. This comprises a cool room and storage area. It is used to store farm equipment, fruit and vegetable cartons and boxes, to cut and to clean and to wrap vegetables, and for the storage of vegetables in the cool room. The buildings and their immediate curtilage occupy an area of about one hectare. Mr Palma’s proposal is to use the smaller shed to sell fruit and vegetables, and to use the larger shed to store equipment and boxes and cartons and, I assume, fruit and vegetables. In effect he proposes to swap his retail outlet from the larger shed to the smaller shed, and the storage and wrapping activities to the larger shed. He also proposes to construct a gravel car park with access to and from Old Mount Barker Road, quite close to the smaller shed. There is no building work proposed. As is evident, there is no proposal to change the use of most of the land. The changeover of activities is confined to the larger shed and the smaller shed.Existing authorisations The Judge did not make any findings about the history of the use of the land. I gather that Mr Palma has used the land to grow and to sell fruit and vegetables for quite a few years. Reports in the Appeal Book indicate that he has made several unsuccessful applications for approval to use the smaller shed as his retail outlet. Reports in the Appeal Book indicate that his proposal is considered to raise issues as to the impact of the proposal on the character of the historic town of Hahndorf, as to its impact on the definition between areas of urban and rural development adjacent to the town, to raise traffic issues and issues of water pollution. According to one of the reports the land is in a “highly water sensitive location.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

WILLIAMS J (dissent)

The effect of the ERD Court decision is that because the proposed development is not a non-complying development, the Council can decide whether the application should be approved, the concurrence of the DAC is not required, and an appeal lies against a refusal of consent, should the Council refuse its consent: see s 35(4). If the proposed development is a non-complying development, no appeal will lie if, as happened, the DAC refuses its concurrence.The ERD Court decision The Judge held that the proposed development is development as defined in s 4 of the Act. The only part of the definition of development that might apply is sub-par (b) of the definition of “development”, which provides that development means“(b) a change in the use of land”. The Judge said the proposed development involved a change of use because the proposed use of the smaller shed, unless approved, would contravene Condition 6 set out above. He applied the reasoning of the Full Court in Remove All Rubbish Co Pty Ltd v City of Munno Para (1991) 56 SASR 254 (“Remove All Rubbish”). In deciding that the proposed development was not a non-complying development, the Judge applied a principle found in a number of cases decided by single Judges of this Court. Those cases were reviewed by Matheson J in Cutajar v Corporation of the Town of Thebarton (1991 ) 55 SASR 70. The Judge stated the principle which he derived from those cases as follows [at 12]:“… [A] reasonable expansion of an existing non-complying development does not constitute a non-complying kind of development for the purposes of Section 35 of the Development Act, even though, in some cases, such expansion may go beyond the land currently being put to such use.” In the course of dealing with this second issue the Judge found that the proposal did not involve a change of use of the land as a whole, or of the curtilage surrounding the buildings. He came to this conclusion as a matter of fact and degree, applying the well known principles stated by Wells J in Prestige Car Sales Pty Ltd v Corporation of the Town of Walkerville (1979) 20 SASR 514 (“Prestige Car Sales”). There is a tension between his conclusion that the proposed development constitutes development, and his conclusion that it does not involve a change of use of the land.Did the proposed development constitute “development”? The Act now provides a process for the variation and revocation of conditions attached to a planning authorisation: see s 42(2)(b). The Act also makes provision for the variation of a development authorisation: see s 39(7). The effect of transitional provisions in the Act appears to be that these provisions apply to a condition imposed under the Planning Act 1982: see Appendix 1 to the Act, clause 24(7). Under the Planning Act 1982, the question of how a condition attached to a planning consent might be varied gave rise to difficulty. There was no provision in the Act for the variation or revocation of conditions. The matter arose in Remove All Rubbish. There, a planning consent for a waste disposal depot had attached to it conditions regulating the hours of operation of the depot. The operator of the depot wanted to vary those hours. The Full Court held that the proposal to change the hours of operation could be regarded as a proposal for a change of use, and therefore as development, and therefore as properly the subject of an application for a fresh planning consent. By implication the Court accepted that if the fresh planning consent were granted, the existing planning consent could be abandoned. The principle applied was stated by King CJ as follows at 255:“Generally speaking the hours during which a commercial or industrial operation is carried on on land do not affect the character of the use of the land. … It seems to me that where the hours of operation are considered to be so much of the essence of the land use as to warrant the imposition of conditions restricting operations to certain hours, any variation of those hours can fairly be regarded as a change of use and therefore development. I think therefore that it is open to the respondent to apply for planning approval for a development consisting in the change of use of the land involved in altered hours of operation. Refusal of that application would, of course, leave the existing planning approval unaffected.”Cox J said at 262:“Where, as here, a planning consent has been granted on terms that restrict the proposed development to stipulated periods, any substantial change in those periods will constitute a change in the use of the land and so amount to development within the meaning of s 4 and require a further planning approval. That is not to say that, as a general proposition, a change in hours will be a change in use. What makes all the difference is the existence of a consent condition as to operating hours that stamps a distinct character on the use of the land.”

Ratio Decidendi

Legal Principle Established

Established by:

In 1996 Mr Palma was granted provisional Development Plan consent to carry out a modest extension to the smaller shed, and some other improvements internally and externally. The proposed development was described by the Council as “alterations and extension to an existing shed.” Attached to the consent were a number of conditions. Most relate to details of the improvements to the shed. Condition 6 is as follows:“The building shall only be used for purposes as described in details accompanying the application. No sales of goods shall be undertaken within or about the building.”The purposes described in the accompanying details appear to be the storage of farm equipment, the storage of cartons and boxes, cutting and cleaning vegetables, storing vegetables in the cool room, and wrapping of vegetables.Planning considerations The land is in the Historic Township (Rural Setting Heritage Area) Zone of the District Council. For this zone, Principle 124 of the Principles of Development Control states:“All kinds of development are non-complying in the Historic Township (Rural Setting Heritage Area) Zone (HT 4)) except the following …”The proposed development is not within any of the stated exceptions. The effect of the ERD Court decision is that because the proposed development is not a non-complying development, the Council can decide whether the application should be approved, the concurrence of the DAC is not required, and an appeal lies against a refusal of consent, should the Council refuse its consent: see s 35(4). If the proposed development is a non-complying development, no appeal will lie if, as happened, the DAC refuses its concurrence.The ERD Court decision The Judge held that the proposed development is development as defined in s 4 of the Act. The only part of the definition of development that might apply is sub-par (b) of the definition of “development”, which provides that development means“(b) a change in the use of land”. The Judge said the proposed development involved a change of use because the proposed use of the smaller shed, unless approved, would contravene Condition 6 set out above. He applied the reasoning of the Full Court in Remove All Rubbish Co Pty Ltd v City of Munno Para (1991) 56 SASR 254 (“Remove All Rubbish”). In deciding that the proposed development was not a non-complying development, the Judge applied a principle found in a number of cases decided by single Judges of this Court. Those cases were reviewed by Matheson J in Cutajar v Corporation of the Town of Thebarton (1991 ) 55 SASR 70. The Judge stated the principle which he derived from those cases as follows [at 12]:“… [A] reasonable expansion of an existing non-complying development does not constitute a non-complying kind of development for the purposes of Section 35 of the Development Act, even though, in some cases, such expansion may go beyond the land currently being put to such use.” In the course of dealing with this second issue the Judge found that the proposal did not involve a change of use of the land as a whole, or of the curtilage surrounding the buildings. He came to this conclusion as a matter of fact and degree, applying the well known principles stated by Wells J in Prestige Car Sales Pty Ltd v Corporation of the Town of Walkerville (1979) 20 SASR 514 (“Prestige Car Sales”). There is a tension between his conclusion that the proposed development constitutes development, and his conclusion that it does not involve a change of use of the land.Did the proposed development constitute “development”?