Peter Jurkovic v Development Assessment Commission, City of Hindmarsh and Woodville, Elizabeth Gaffikin and Donald Partridge No. SCGRG 94/1987 Judgment No. 5243 Number of Pages 28 Building Control and Town..
[1995] SASC 5243
•5 July 1995
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA BOLLEN(1), OLSSON(2) AND LANDER(3) JJ
CWDS
Building control and town planning - town planning and subdivision of land - Consideration of definition of "special industry" in Development Control Regulations 1982 - held - definition not misconstrued by ERD Court - however incorrect application of the appropriate construction of the definition to the facts - failure to make a finding in respect of paragraphs (a) and (b) of definition - majority's reasons for their decision in respect of their finding as to "special industry" cannot be supported - held - Chairman and majority of ERD Court correct in arriving at conclusion that on the facts the development could not be categorized as a "special industry" - majority not in error in determining that even if development not a "special industry" - its impact upon the amenity of the locality such that, in land use terms, it is unacceptable on the subject land - appeal dismissed.
Development Control Regulations 1982 and The Planning Act 1982 s47. Ampol Road Pantry v Brighton (1993) 62 SASR 165; Transfield (Australia) Pty Ltd v Corporation of the City of Port Augusta (1982) 29 SASR 467; Australian Telecommunications Commission v Kreig Enterprises Pty Ltd (1975) 14 SASR 303; Boughey v R (1986) 65 ALR 609; Remove All Rubbish Pty Ltd v The Corporation of the City of Salisbury and Anor. (1989) 51 SASR 26 and South Australian Housing Trust v Lee (1993) 81 LGERA 378, considered.
HRNG ADELAIDE, 4 May 1995 #DATE 5:7:1995 #ADD 8:9:1995
Counsel for appellant: Mr B R Hayes QC
Solicitors for appellant: Jamie Botten and
Associates
Counsel for respondent DAC: Mr B M Selway QC
Solicitors for respondent DAC: Norman Waterhouse
Counsel for respondent City of Hindmarsh: Mr M J Roder
Solicitors for respondent City of Hindmarsh: Norman Waterhouse
Respondent Elizabeth Gaffikin: No Attendance
Respondent Donald Partridge: No Attendance
ORDER
Appeal dismissed.
JUDGE1 BOLLEN J The facts, the legislative provisions, the rival contentions and the conclusion of the majority of the ERD Court, and of the minority, have all been set out by Olsson J. So has the basis for the decision of the majority. His Honour has, if I may say so, clearly explained his reasons for proposing that the appeal be allowed. I venture to differ from His Honour only with diffidence.
2. I think that the majority of the ERD came to the correct conclusion. I do not say that I support all their reasoning. I, too, think that the proposed waste recycling and transfer facility is, or would be, a special industry. I will state my reasons in brief and sweeping manner. Olsson J has included in his description of the facts a full and thorough description of the work to be done to create the proposed development and the way in which the waste recycling and transfer facility would work. I do not repeat it. But for ease of reading I repeat the definition in the regulations of a "special industry":
"'special industry' means an industry where the processes
carried on, the methods of manufacture adopted or the
particular materials or goods used, produced or stored, are
likely -
(a) to cause or create dust, fumes, vapours, smells or
gases;
or
(b) to discharge foul liquid or blood or other substance or
impurities liable to become foul,
and thereby -
(i) to endanger, injure or detrimentally affect the life,
health or property of any person (other than any person
employed or engaged in the industry); or
(ii) to produce conditions which are, or may become,
offensive or repugnant to the occupiers or users of land
in the locality of or within the vicinity of the locality
of the land on which (whether wholly or partly) the
industry is conducted."
3. I concentrate on smells. I join, with respect, with Olsson J in thinking that the words "are likely" in the definition have two operations. Speaking of "smells" this means that if the processes etc are likely to cause smells which are likely to produce conditions which are offensive or repugnant... then the development is, or will be, a "special industry". With respect, I think the evidence did demand that the ERD Court should have held that the evidence did answer that test. The processes etc proposed were shown, in my opinion, to be likely to cause smells which were likely to be offensive or repugnant as contemplated by the definition. Accordingly, I respectfully differ from the conclusion reached by Olsson J and by Judge Bowering below.
4. I agree with Mr Selway QC, for the first respondent, that not much evidence was needed to satisfy the definition. The ERD Court was entitled, in my opinion, to use ordinary knowledge. A waste recycling facility is to the ordinary knowledge of mankind capable of producing offensive and repugnant smells. Here there was enough, albeit not much, evidence to prove what I call "the double likelihood" in the definition.
5. The most important evidence was given by the meteorologist, Mr C M Purton. He established that he had been "particularly involved and involved recently in the assessment, from a climatic point of view and an atmospheric dispersion point of view, of odours, fumes, smells, etc from waste disposal facilities". He was competent to speak of the emanation and the dispersal of, and the nature of, "smells".
6. Purton gave this, as I think, telling evidence:
"A. I think that certainly there is going to be the occasion
where the atmospheric conditions are such that an odour can
be transmitted over quite a long distance. The question is
how often does it happen.
Q. Is it going to happen in this situation.
A. My impression is, and the evidence I have given is that
the worst case scenario is restricted to morning hours for
the residences on Dixon Street, but certainly no more than
25% of all winter type mornings, or cool mornings. That is
the worst case scenario. Again, whether an odour was
actually detected would depend on what was actually being
processed in the transfer facility at that particular time,
or what was being loaded or unloaded.
Q. In a nutshell, does it come down to this. Sometimes they
may smell it, but more often, and on the overwhelming
majority of mornings, they won't.
A. I think so. I think that is probably what it is. The
worst case scenario for the people who live on Dixon Road,
you could say basically it is restricted to the cooler
months of the year, and on the wind statistics, it shouldn't
occur any more, at the most, than 25% of all mornings.
Q. What about the people on the other side of Old Port Road.
They are not as well blessed by the prevailing winds, are
they.
A. Yes, they are probably. For one thing, they will never
get these very light stable winds blowing from the south
west. Very occasionally, perhaps just after a front has
gone through, you might get a subsiding south-westerly, but
that is a much rarer occurrence when you look at the wind
statistics than the cold air drift. The winds that they do
get that are south-westerly are predominantly the summer
seabreezes which will be associated with very good
dispersion. In fact, I don't think I would like to live in
that area anyway, but if I was going to live there, I would
rather live on the north-east side of Old Port Road than
perhaps on the Dixon Street side."
7. In his submission, based on this evidence, Mr Selway QC said in a passage commenced by a question from Lander J:
"LANDER J: Is there evidence about what type of odours they
are?
MR SELWAY: The evidence was there would be household refuse,
ordinary household garbage, which would be picked up in the
ordinary council garbage collection and that garbage would
be dumped in these bins, that the garbage would then be
compressed, as I understand it, by having a tractor run over
it. It was accepted that the garbage bins, and other things
that were within the garbage bags that were within that
garbage, would be broken and that smells and other things
related to that would be released. I think it is fair to
say that it was thought that was likely to be the strongest
source of odour.
LANDER J: Is there evidence that the smells are likely to
produce conditions which are offensive or repugnant?
MR SELWAY: I think it is fair to say the evidence and the
whole case is based upon the assumption if the smell reaches
people, it is likely that the smell will be offensive and
repugnant. I think that's an understated piece of evidence.
I think the assumption is, whatever smells escape, given
everyone understands what ordinary garbage smells are about,
I think a couple of witnesses said 'We all know what garbage
smells like', and there is evidence about trucks going down
the street. 'We know what they smell like.' The premise
was that was what the smell was likely to be. And that the
household refuse was likely to be the stronger smell. It
was proposed there would be conditions put on that the toxic
waste wouldn't be delivered there. I think there was
evidence that a lot of the waste would be things like
prunings, building site waste and I think it was thought a
lot of that waste wouldn't have any particular odours
associated with it. There was also evidence, though not so
strong or compelling, about smells coming from trucks taking
waste to the site and odour emanating, and litter emanating
from the trucks. Those references are on para.10 of our
outline. The other thing I would ask the court to bear in
mind, is that the evidence on odour, was basically related
to whether odour would reach the residential areas which
are, I think the evidence was 60 metres away from the
facility, however, the evidence also was there were other
commercial premises much closer. I think I might be
thinking 25 metres away from the facility. The prospect of
those being affected seem greater. One of those was a
smallgoods producer who gave evidence of hanging his salami
outside to dry for two hours and expressing some concerns
about the effect of strong odours on him. I make the point
to the court, the amenity of the area is not limited to
people's front yards. It includes the roads and the streets
as well."
8. I agree with this submission.
9. There was some rather vague evidence about detection of smells at various distances from another waste disposal facility. That was Mr P Lightbody, a waste disposal engineer. I think, as Mr Roder, for the second defendant, submitted, that that evidence supported the view that smells from that other waste disposal facility would be, of their very nature, repugnant and offensive. Those that emanated from the present waste disposal facility would, I think, also be repugnant and offensive. But once the evidence of Purton is accepted not much evidence, if any, is, in my opinion, needed to hold that the smells would necessarily be repugnant or offensive (perhaps both). And if the smells will even on "a worst case scenario" (Mr Purton's words) travel away from the facility on 25% of all "winter type mornings, or cool mornings" then the likelihood of smells being caused by the processes etc of the facility is, in my opinion, established. And they will, by their very nature, be offensive and repugnant. I think that the nature of the smells which would emanate from a waste disposal facility of this type must be offensive and repugnant. I repeat my quoting of the submission of Mr Selway QC (supra) on this issue.
10. I would dismiss the appeal.
JUDGE2 OLSSON J This is an appeal against a majority decision of the Environment, Resources and Development Court (the "ERD Court"), whereby it affirmed the refusal of the South Australian Planning Commission to grant planning approval in respect of a development application, on behalf of the appellant, to establish a waste recycling and transfer facility on land situated at Old Port Road, Royal Park.
2. The land in question "the proposed site" comprises a total area of some 1.2 hectares. It is bounded by Tapleys Hill Road, Old Port Road and Dixon and Hardy Streets. The site lies within a Light Industry Zone and has, in years past, been utilised as a venue for a heavy engineering works, grit and sand blasting, welding and other industrial purposes. Portion of the Tapleys Hill Road frontage has been used for the display and sale of motor vehicles, with some associated motor wrecking and servicing facilities. The proposed site presently has erected on it sheds, workshops, offices and outbuildings. Areas behind existing buildings have been used for storage and manufacturing purposes. There are present entries from all four surrounding roads. It is recorded, in reasons of the ERD Court, that the existing structures are, in large measure, now obsolete and not particularly attractive.
3. The general locus abutting the site was severally described by members of the ERD Court in these terms:-
"The frontages of the land to the two main roads comprise
high buildings which are dominant features of the
intersection. The surrounding uses are of older type
industries. East of Tapleys Hill Road there is a smallgoods
manufacturer, crash repair workshop, billiard saloon, shop
for light fittings and a shed manufacturer and display area.
South of the property is Royal Park Salvage and houses along
the south side of Dixon Street. West of Hardy Street is an
auto wreckers yard, a heavy engineering manufacturing plant
and a crash repair workshop.
The subject land is within the Light Industry Zone. The City
of Woodville southern side of the Old Port Road is zoned
Special Use up to its boundary in the wide median strip with
the City of Port Adelaide northern part of the Road also
zoned Special Use. A little to the east of Tapleys Hill Road
is the Residential 2 Zone and the General Industry Zone to
the west of Hardy Road. The Light Industry Zone continues
some distance to the south of Dixon Street.
The Old Port Road reserve is about 68 metres in width
comprising both west bound and east bound carriageways of two
lanes in each direction and between these carriageways there
is a large reserve space and stormwater drainage channel.
The reserve of Tapleys Hill road is about 20 metres in width.
...
The subject land consists of a number of allotments. It
appears to have been developed for both industrial and
commercial purposes. It lies within a Light Industry Zone as
prescribed by the City of Woodville provisions of the
Development Plan. To the west and north-west lies an
extensive General Industry Zone which appears to have been
extensively developed for general industrial purposes. It
abuts two arterial roads, namely Old Port Road and Tapleys
Hill Road. It "enjoys" all of the noise, fumes and vibrations
of traffic passing along those roads. However, the amenity
improves as one moves away from the junction of those two
roads, be it towards the Residential 2 Zone lying generally
to the south or to the residential areas across the Old Port
Road lying within the area of the City of Port Adelaide."
4. The development application envisaged a substantial demolition of structures on and clearance of the site and the erection on it of a modern facility comprising:-
- an airconditioned plant for the sorting and recovery of
co-mingled recyclable materials collected from the kerbside,
which will then be for sale at markets.
- a solid waste transfer station enabling the
containerisation of:-
. non recyclable solid wastes for bulk haulage to a remote
land fill site
. bulk recyclable materials, including industrial scrap
metal and timber and garden wastes, for haulage to
processing facilities away from the site.
5. The scheme envisaged that all paper products would be kept separate and delivered elsewhere. It was not proposed that the facility would receive liquid, noxious, hazardous or radio active waste materials. Overall, an expert witness described what was proposed as a "state of the art" facility. The concept was based on best practice situations interstate.
6. It was a particular feature of the plan that all receipt and processing activities would be conducted undercover within new, enclosed, purpose built premises; and that all receivables would be transferred off site in closed containers within 24 hours of receipt. There was also to be landscaping along the whole of the Tapleys Hill Road frontage, most of the Old Port Road and Dixon Street frontages and portions of the Hardy Street frontage.
7. Evidence was called before the ERD Court to establish that the management plan for the facility was designed to ensure that the operations on the site would not generate dust, fumes, vapours, smells or gases or discharge foul liquids or substances. The majority of the ERD Court expressed some scepticism concerning that situation, notwithstanding that it was common ground that the proposed activities could only be conducted pursuant to an appropriate licence granted by the Waste Management Commission, subject both to such conditions as that body saw fit to impose and also continuous ongoing monitoring on its part. As Judge Bowering pointed out, that Commission has a statutory mandate to ensure that licences granted do not result in a nuisance or offensive condition, a risk to health or safety or damage to the environment.
8. It is beyond question that the operation of the proposed facility, which contemplated a seven day per week activity as to certain of its activities, would attract significant addition of vehicular traffic to the area, although the major roads on two frontages already bear high density traffic, at least during normal business hour periods. Some concern was expressed by the majority of the ERD Court as to the apparent "tight" internal traffic flow arrangements within the proposed facility and the possible repercussive "queuing" effect for vehicles which that might cause in the abutting streets. It must, however, be noted that certain of those design aspects had, apparently, not fully been developed, or at least finalised.
9. Finally, it should be noted that, as was pointed out by Judge Bowering, those residential premises remaining in the general area were there prior to the bringing into being of the current Development Plan and that, as he put it,
"residential developments lying within a light industry zone
cannot reasonably expect the same level of residential
amenity which they may expect were they in a residential
zone. This is the more so if they abut a general industry
zone".
10. Before addressing the specific legal issues arising on this appeal it is of assistance to note one general point developed by Judge Bowering in his reasons for decision. He identified the fact that, whilst matters relating to the proper handling or disposal of waste are dealt with in detail under the Waste Management Act, 1987, which establishes a licensing scheme in relation to them, such matters are, as he expressed the situation, "virtually ignored by the Development Plan". He went on to comment:-
"What does this mean in practical terms? It means that,
given that the adequate, appropriate and economic provision
of waste transfer and waste disposal facilities constitute an
essential part of our society, and given that the Development
Plan - apart from constituting them prohibited in various
areas - barely recognises their existence, such facilities
must invariably be located within zones or areas in which
their location is not envisaged by the terms of the Plan. To
rummage through the extensive provisions of the Development
Plan in the hope of finding a zone or area the objectives or
principles of development control of which make provision for
the establishment of such facilities is a fruitless task.
Thus, when one seeks to assess a proposal such as the present
one in the light of the relevant provisions of the
Development Plan, the task is not one of considering the
Development Plan to ascertain whether there are provisions
which positively support its establishment within a
particular area, but is rather one of looking carefully at
the relevant provisions of the Plan to see how strongly it
speaks against such establishment on the land the subject of
the proposal."
11. This is, I consider, an important part of the backdrop against which the present matter falls to be reviewed.
12. As already emerges, the members of the ERD Court were divided in their views as to the fate of the appeal to them.
13. As I understand their reasoning, the majority arrived at its conclusion on the following basis:-
- the activities intended to be conducted on the proposed
site "can possibly be described as an 'industry'", as defined
in Regulation 4 of the Development Control Regulations, 1982
("the Regulations").
14. That Regulation stipulates that:-
"'industry' means the carrying on, in the course of a trade
or business, of any process (other than a process in the
course of farming or mining) for, or incidental to -
(a) the making of any article, ship or vessel, or of part of
any article, ship or vessel;
(b) the altering, repairing, ornamenting, finishing,
assembling, cleaning, washing, packing, bottling, canning or
adapting for sale, or the breaking up or demolition, of any
article, ship or vessel;
or
(c) the getting, dressing or treatment of materials,"
15. Their reasoning was based on the proposition that the compaction of material before removal for sale could be said to be altering or adapting it for sale. (For myself, I would have thought that a safer basis for such conclusion, lay in subparagraph (c) above. Cf Remove All Rubbish Pty Ltd v The Corporation of the City of Salisbury and Another (1989) 51 SASR 26 at 29.)
- the proposed facility and the undertaking proposed to be
conducted within it do not meet the definition of "light
industry" contained in the Regulations. That definition is
expressed as follows:-
"'light industry' means an industry where the processes
carried on, the materials and machinery used, the transport
of materials, goods or commodities to and from the land on or
in which (wholly or in part) the industry is conducted and
the scale of the industry does not -
(a) detrimentally affect the amenity of the locality or the
amenity within the vicinity of the locality by reason of the
establishment or the bulk of any building or structure, the
emission of noise, vibration, smell, fumes, smoke, vapour,
steam, soot, ash, dust, waste water, waste products, grit,
oil, spilled light, or otherwise howsoever;
or
(b) directly or indirectly, cause dangerous or congested
traffic conditions in any nearby road."
16. The rationale of that conclusion was that the evidence revealed that the proposal contemplated the conduct of an industry on a scale which would, necessarily, directly or indirectly cause dangerous or congested traffic conditions in a nearby road.
17. In this regard the majority said:-
"We do not see how the proposal can be classed as light
industry as far as traffic around and on the site is
concerned. The evidence from the Management Plan is that
there could be between 230 and 350 vehicles on a Saturday and
on a Sunday coming to the site and then leaving the site
after depositing their rubbish. That is something between
460 and 700 vehicle movements on each of these days. The
amenity of those houses in Dixon Street facing north is not
high and if there was additional domestic traffic with
trailers rattling along on the Saturdays and Sundays they
would have much to complain about. The rubbish that those
private vehicles would be carrying could in many cases be a
week or more old with all the problems of unpleasant smell."
18. I, once more, pause to note that Judge Bowering, who was the dissentient member, arrived at a like conclusion, although for reasons somewhat differently expressed. He commented:-
"... I have not overlooked the fact that the proposed
development does not comply with either the objective or the
first principle of development control applicable to the
Light Industry Zone in which the subject land lies. Those
provisions are as follows:-
'Objective 1: A zone primarily accommodating industries which
manufacture on a small scale and which do not create any
appreciable nuisance or generate heavy traffic.
Principle 1: Development undertaken in the Light Industry
Zone should be, primarily, industries which manufacture on a
small scale and which do not create any appreciable noise,
smoke, smell, dust or other nuisance or generate heavy
traffic.'
I do not regard the proposed development as constituting
'Light Industry' as that term is defined by Regulation 4 of
the Regulations. Whilst it may have some of the
characteristics of industry, I do not think that it can be
properly regarded as constituting an industry as that term is
either generally understood or defined by the Regulations.
Furthermore, I do not think that it can be regarded as being
of "a small scale" as those words are used in the objective
and first principle of development control above quoted."
19. With respect, I consider that such reasoning is plainly correct.
- the proposed undertaking necessarily falls within the
category of a "special industry", which is defined in the
Regulations as under:-
"'special industry' means an industry where the processes
carried on, the methods of manufacture adopted or the
particular materials or goods used, produced or stored, are
likely -
(a) to cause or create dust, fumes, vapours, smells or gases;
or
(b) to discharge foul liquid or blood or other substance or
impurities liable to become foul,
the thereby -
(i) to endanger, injure or detrimentally affect the life,
health or property of any person (other than any person
employed or engaged in the industry); or
(ii) to produce conditions which are, or may become,
offensive or repugnant to the occupiers or users of land in
the locality of or within the vicinity of the locality of
the land on which (whether wholly or partly) the industry
is conducted."
20. In seeking to test the facts against that definition the majority made these points:-
"We come now to the question as to whether the proposal can
be categorised as a special industry. It could be argued
that the proposal falls within the definition of special
industry as the process of compaction carried on and the
materials or goods stored, even though for 24 hours, are
likely to cause or create dust, fumes, vapours, smells or
gases or to discharge foul liquid or other substances or
impurities liable to become foul and thereby endanger, injure
or detrimentally affect the life, health or property of any
person - in this case both the smallgoods factory across
Tapleys Hill Road and other small businesses to the east and
also the long established houses on the south side of Dixon
Street could all be detrimentally affected by the proposal.
The definition of special industry continues with the
provision that the materials or goods used, produced or
stored are likely to produce conditions which are, or may
become offensive or repugnant to the occupiers or users of
land in the locality of or within the vicinity of the
locality of the land on which (whether wholly or partly) the
industry is conducted.
Even though the evidence from the applicants for consent
attempts to allay any fears that the particular materials or
goods stored will be likely to cause or create dust, fumes,
vapours, smells or gases or to discharge foul liquid or other
substance or impurities liable to become foul and thereby to
endanger, injure or detrimentally affect the life, health or
property of any person or to produce conditions which are or
may become offensive or repugnant to occupiers or users of
land in the locality of or within the vicinity of the
locality of the land on which the industry is conducted, we
find that we cannot be satisfied that, unlikely as it may be,
it will not occur. We emphasise again that much of the
uncovered weekend rubbish from private vehicles may well be
at least a week old or more before it arrives at the Royal
Park site.
The test for a special industry is that the processes carries
on, the methods used, the passage of the refuse, its effect
on the surrounding premises, the way it is handled and the
impact of the vehicles carrying the refuse to or from the
site - all those factors taken together may be likely to
produce conditions which are or may become offensive or
repugnant to the occupiers or users of land in the locality
of or within the vicinity of the locality of the land on
which (whether wholly or partly) the industry is conducted.
So we find that the proposal is an industry and, because of
the particular nature of the materials brought to the site
and the number, type and complexity of vehicles and vehicular
movement, we find it is a Special Industry."
21. Having arrived at the foregoing conclusion the majority pointed out that a use categorised as a Special Industry is prohibited by the Development Plan within a Light Industry Zone and, thus, could not attract planning approval. They went on to say that, even if that conclusion was not accurate, the impact of the facility upon the amenity of the locality, as a non-conforming use, is such that, in land use terms, it is unacceptable.
22. The latter judgment was, in part, expressed to take into account the dominant height, bulk and scale of the proposed buildings, the tight area and its likely impact on traffic movement generally and internal traffic manoeuvre in particular. However, it must be said that a reading of the reasons expressed by the majority immediately reveals that the predominant basis of its thinking was that which is reproduced at pages 942-945 inclusive of the appeal book. With respect, that reasoning can only be categorised as muddled and, to adopt the expression of Mr Hayes QC, of senior counsel for the appellant, very much tainted by its conclusion related to whether or not the development proposal ought to be categorised as a Special Industry. I shall shortly return to that aspect.
23. Judge Bowering was unable to accept the proposition that the proposed facility envisaged a use which was properly categorised as "Special Industry".
24. Having adverted, at some length, to the provisions of the Waste Management Act and the licensing and supervisory role of the Commission pursuant to it, he was of opinion that the ERD Court was bound to proceed on the basis that, if a licence was issued to the appellant, it had to be accepted that the proposed waste transfer station would be required to meet the criteria set out in section 23 of that statute, to which reference has already been made.
25. He then went on to make these points:-
"It is beyond dispute that a waste transfer station of the
type now proposed is capable of producing "dust, fumes,
vapours, smells or gases" which may injure or detrimentally
affect the life, health or property of residents of the
locality or produce conditions which are, or may become,
offensive or repugnant to the occupiers or users of land
therein. There is no doubt about that. However, that does
not, of itself, mean that the waste transfer station falls
within the definition of Special Industry as set out in
Regulation 4 of the Development Control Regulations, 1982.
That definition is set out in the reasons of the majority in
this matter. The question is whether the processes carried
on or the particular materials stored therein are "likely" to
have that result. On the evidence before the Court, I am
satisfied that whilst, if things go wrong, the processes
proposed or the goods to be stored are such that such results
may occur, one cannot reasonably say that such results are
'likely'. This is particularly so given the licensing and
the ongoing supervisory role of the Waste Management
Commission and its staff. Hence I have come to the
conclusion that the proposed waste transfer station should
not be regarded as constituting a 'Special Industry' as
defined by the Regulations and thus a use prescribed as
"prohibited" in this zone."
26. On the hearing of the appeal it was strongly contended on behalf of the respondents that such a process of reasoning did not reflect a proper interpretation and application of the definition of "Special Industry".
27. As I understand their contention it was to the effect that the word "likely" only governs subparagraphs (a) and (b) to the definition. So it is, it was said, that once it be shown that the proposed use was likely, inter alia, to cause fumes, vapours or smells then, if it was made to appear that those, in turn, "May become offensive or repugnant to" relevant occupiers in the locality, then the definition was satisfied.
28. In my view such an approach is in plain discord with the intendment and proper construction of the definition. I consider that the verbiage which follows paragraphs (a) and (b) ultimately derives its flavour from the introductory wording of the definition. Properly paraphrased, it seems to me that, relevantly, the test to be applied in the instant case was - "Was the proposed use one which was likely to cause or create vapours or smells producing conditions which may become offensive or repugnant to (relevant) occupiers?"
29. I am firmly of the view that the definition quite plainly infuses in the test to be applied the need for it to be shown, not only that there is a positive likelihood that the proposed use will cause or create vapours or smells, but also that there is a real probability that these will produce conditions which may become offensive or repugnant. The words "may become", as used in the definition attach only to the word "conditions". The definition simply does not apply until it is first shown that the use is likely to create vapours or smells which will thereby produce the relevant conditions. It envisages the existence of a likelihood and real practical probability that conditions of the type postulated will be generated.
30. When one examines what fell from Judge Bowering in its context I think it was such a concept that he was really seeking to promote, despite the manner in which he expressed himself.
31. In my opinion his reasoning, so construed, is compelling and immediately demonstrates that the majority fell into error in adopting the approach espoused by them. The evidence, properly understood, was simply incapable of justifying a conclusion that the proposed facility was 'likely' to give rise to situations adumbrated in the definition of "Special Industry".
32. It is patently obvious that the practical situation adverted to by Judge Bowering was not really in discord with the conclusion arrived at by the majority. In the course of their reasons they had this to say:-
"Even though the evidence from the applicants for consent
attempts to allay any fears that the particular materials or
goods stored will be likely to cause or create dust, fumes,
vapours, smells or gases or to discharge foul liquid or other
substance or impurities liable to become foul and thereby to
endanger, injure or detrimentally affect the life, health or
property of any person or to produce conditions which are or
may become offensive or repugnant to occupiers or users of
land in the locality of or within the vicinity of the
locality of the land on which the industry is conducted, we
find that we cannot be satisfied that, unlikely as it may be,
it will not occur. We emphasise again that much of the
uncovered weekend rubbish from private vehicles may well be
at least a week old or more before it arrives at the Royal
Park site."
33. This seems to me, obviously, to incorporate an assessment that the risk of the problem referred to is, in practical terms, relatively minimal.
34. However, that excerpt from their reasons renders it quite apparent that the majority manifestly applied the wrong test as to whether the proposed use constituted a Special Industry. The majority reasoning appears to be to the effect that, despite the unlikely occurrence of a situation postulated by the definition, it simply could not be guaranteed that it will not occur. Such an approach reflected a misinterpretation and misapplication of the definition and, as such, constituted an error of law.
35. It follows that the primary basis of reasoning of the majority cannot be supported and that, insofar as their conclusion rested upon it, that conclusion cannot stand.
36. As Judge Bowering accurately identified, the real issue which required to be addressed was, accepting that the development application properly fell to be reviewed simply as a potential non-conforming use, did the evidence justify a grant of planning consent?
37. In this regard I am conscious of the secondary view expressed by the majority and the well established principle that, on what are essentially specialist planning questions, this Court ought not, ordinarily, to interfere, unless there is an identifiable, egregious blunder, or the ERD Court has misdirected itself in law, or the circumstances are, in some respect, quite exceptional (cf. Transfield (Adelaide) Pty Ltd v Corporation of the City of Port Augusta (1982) 29 SASR 467 at 480, Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton (1993) 62 SASR 165).
38. However, in the instant case, it seems to me that the reasoning of the majority, even as to this aspect of the case, has inappropriately been influenced and tainted, at least in significant degree, by the unjustified view which it took of the evidence as above adverted to, as well as what appear to be somewhat precipitate conclusions as to internal traffic conflict and other potential traffic problems - as to which the available evidence was, to say the least, somewhat inconclusive. This is particularly so when, on the face of the situation, much of the lastmentioned problems envisaged may well have been met by attaching appropriate conditions to any planning consent, as is often done.
39. In so saying I by no means ignore the argument advanced on behalf of the respondents, based on dicta contained in Remove All Rubbish Pty Ltd v City of Salisbury (supra) and in South Australian Housing Trust v Lee and Others
(1993) 81 LGERA 378 at 390, to the effect that questions of management plans and conditions should not even be considered until the fundamental question of the appropriateness of the development plan is first answered. There are two obvious ripostes to that contention. The first is that the statements made were obiter only, in the context of the cases to which they related. More importantly, even Jacobs J, in Beer v South Australian Planning Commission and Others (1988) 142 LSJS 20 at 26, conceded that "It may be acknowledged that the concepts of 'use' and 'management of the use' may often overlap". This seems to me the common sense of the matter and the present case is a classic illustration of that proposition. With respect, I have great difficulty in accepting the absolute proposition espoused by Debelle J in South Australian Housing Trust v Lee (supra), at least in the sense propounded by the respondents.
40. Be that as it may, a perusal of pages 943-5 of the appeal book reveals that, in considering non conforming use aspects, the majority were constantly pre-occupied with the concept of Special Industry and the prohibition of it in the general locality. It also focused on an objective for the nearby Woodville Light Industry Zone. In the event these were all irrelevant considerations - at least in the manner in which they were sought to be relied upon. They clearly deflected consideration from the real issues. The confusion of thought which existed is exemplified by statements such as -
"The concept of the proposal for a Waste Recycling and
Transfer Facility is to be commended. The general locality
has considerable industrial development to the west of the
proposal with minor light industry to the east and south.
But the locality is not suitable for a Special Industry.
...
Although the general appearance of the proposed development,
after the disruption of construction is completed, will be a
great improvement on what exists on the land at present, the
height, bulk and scale of the various buildings will be much
more dominant."
41. I am satisfied that, even in relation to the non conforming use aspects, the majority fell into error by allowing irrelevant and inappropriate factors to cloud their reasoning.
42. By way of contrast I find it impossible to impeach the obvious common sense observation made by Judge Bowering to the effect that, given that the proposed facility does not relate to a Special Industry or a Light Industry, the final issue resolves itself into a question of assessing the likely impacts of the proposed development upon the locality. As to that, having reviewed the overall characteristics of the locus and its environs, as I have earlier recited them, he said:-
"... In my view, if the proposed waste transfer station is
operated in the manner proposed, complies with the various
licence conditions imposed upon it pursuant to the Waste
Management Act and is subject to the ongoing monitoring and
(if necessary) supervision of the Waste Management
Commission, it is unlikely to have any significant effect
upon the amenity of its locality, and, in particular, upon
the residential portions of that locality. Given the nature
of the development proposed, it is, of course, both difficult
and unwise to be emphatic with respect to either the extent
or nature of the impacts. Were it not for the licensing
provisions of the Waste Management Act, the criteria to which
the Waste Management Commission is required to have regard
and, in particular, to the ongoing supervisory and monitoring
role of the Waste Management Commission, I think that I would
have grave reservations as to whether the proposed waste
transfer station warrants planning approval. However, given
the nature of the locality and the functions and
responsibilities of the Waste Management Commission, I am
inclined to the view that planning approval should be
granted.
In assessing the likely impact of the proposed depot as
acceptable within the locality, I have taken into account not
merely the existing development within and the character of
the locality, but also the fact that the residential parts of
the locality most likely to be affected lie within a light
industry zone and abut an extensive general industry zone.
Whilst the principal purpose of a light industry zone is to
accommodate industries which have little or no impact upon
adjacent residential areas, the inescapable fact is that
residential developments lying within a light industry zone
cannot reasonably expect the same level of residential
amenity which they may expect were they in a residential
zone. This is the more so if they abut a general industry
zone. These matters must be taken into account when
assessing whether the impact of the proposed depot is likely
to be acceptable within the locality.
In so saying, I have not overlooked the fact that the
proposed development does not comply with either the
objective or the first principle of development control
applicable to the Light Industry Zone in which the subject
land lies."
43. With respect, this seems to be the plain common sense of the matter.
44. In the circumstances I would allow the appeal and set aside the order of dismissal. The decision of the South Australian Planning Commission ought to be set aside and planning approval issued subject to such conditions as the ERD Court deems appropriate. I would remit the matter to that Court for the purpose of considering what conditions should be attached to an approval and then issuing it according. The approach to the consideration of such conditions espoused by Judge Bowering would seem to me the obvious strategy to adopt.
45. In arriving at that view I by no means ignore the admonition of counsel that it is generally inappropriate for this Court to assume the mantle of a specialist planning tribunal. However, in this regard, it seems to me that the submission of Mr Hayes QC is compelling. Quite apart from the enormous cost attendant upon a rehearing (particularly because it is impossible to reconstitute the former bench of the ERD Court), the necessary end result on the evidence is so obvious and Judge Bowering's reasoning is so patently correct that it would visit a serious injustice on the appellant to require him to commence his appeal to that Court virtually ab initio.
JUDGE3 LANDER J This is an appeal from a specialist Court the Environment, Resources and Development Court (ERD Court), which was constituted by a District Court Judge and two Commissioners. Those Commissioners require for their appointment, specialist knowledge.
2. In this matter the appeal to the ERD Court was decided by a majority, namely the two Commissioners of the Court, and the District Court Judge constituted the minority. Reasons for decision were given by both the majority and the minority.
3. The limitations of this Court in relation to appeals from a specialist Court, and in particular, the ERD Court were clearly expressed by Debelle J in Ampol Road Pantry v Brighton (1993) 62 SASR 165 at page 173. It is quite clear from what his Honour there said, and what has been said on earlier occasions, that this Court will only interfere in matters of this kind where there is a clear and demonstrable error of principle or where there has been a demonstrated error of fact, "or the circumstances are, in some respect, quite exceptional". Transfield (Australia) Pty Ltd v Corporation of the City of Port Augusta (1982) 29 SASR 467 per Wells J at page 480. This Court does not sit for the purpose of offering its planning opinion in substitution for the planning opinions of the specialist Court. So much was recognized by Mr Hayes, QC, who led for the appellant. He confined his argument to a claim that the majority in the Court appealed from had erred in principle in their interpretation of the definition of "special industry" and had thereby fallen into error, not only in respect of the categorization of this development as a special industry, but also in relation to the second aspect that was argued before the ERD Court, namely that if this proposed development is a non-conforming use, then it ought to be permitted.
4. He argued that a finding by the majority that this application constituted an application for permission for the development of a special industry could not, upon a true construction of the definition of "special industry" in the Development Control Regulations 1982 ever be made. He argued that the minority opinion expressed by the learned Judge reflected the proper construction of "special industry", and further, that his Honour was correct in finding that the proposed development ought to be allowed upon conditions. He argued that this Court ought to give consent to the proposed development and remit the matter to the ERD Court so that that Court might consider and impose whatever conditions it thought appropriate.
5. The facts have been set out in the reasons for judgment of Olsson J and I need not repeat them in detail. I shall only refer to those facts which explain the reasons that follow. The proposed development was within a zone designated "light industry zone", within the council area of the City of Hindmarsh and Woodville. Within that zone, light industry is, of course, a permitted use. There are other permitted uses, but none of those have any application to this development. Within the light industry zones there are a number of prohibited uses, for example, abattoirs, refuse destructors and "special industry".
6. The Planning Act 1982 provides for a Development Plan approved by resolution of both Houses of Parliament, which in some circumstances may be amended by a supplementary Development Plan prepared by the council for the relevant area, subject to approval being given by the Minister. Section 47 of the Planning Act prohibits a development without the consent of the relevant planning authority. It provides that the relevant planning authority in relation to a proposed development, when the development is proposed to be undertaken within the area of a council, subject to some exceptions which do not matter, is the council itself. Section 47 further provides that where the Development Plan expresses a use as "permitted", then that development may be undertaken without the consent of the council, but subject to any conditions imposed by the Development Plan itself. Where, however, the Development Plan provides that the use is prohibited, then such development is prohibited unless, pursuant to s47(6) the council and the South Australian Planning Commission (the Commission) concur in the granting of consent. It follows, therefore, that if a use is prohibited then the development cannot proceed without the approval of both the South Australian Planning Commission and the council. No appeal lies from a refusal of consent under s47(6). In this case the Commission did not refuse to consent to an application under s47(6). Indeed, the Commission did not proceed upon the basis that the development was "a special industry". It refused the application for the two reasons which I set out:
"1. The proposed development did not meet and was contrary to
the provisions of a 'Light Industry Zone' which primarily
accommodates industries which manufacture on a small scale
and which do not create any appreciable noise, smoke, smell,
dust or other nuisance, or generate heavy traffic.
2. That the proposed development was contrary to the
provisions of the Development Plan."
7. Where a proposed development is neither permitted nor prohibited, a council may consent to the development, but in giving that consent the council must have regard to the Development Plan insofar as it is relevant and must not make a decision that is seriously at variance with the provisions of the Development Plan (s47(9)).
8. The development was described by the majority in the following terms:
"The proposed facility, according to the preliminary draft
Management Plan (prepared for the purposes of an application
for a licence pursuant to the Waste Management Act, 1987) and
statements based on that Plan, comprises in part a sorting
plant for the sorting and recovery of co-mingled recyclable
materials collected from the kerbside which will then be for
sale at markets. It also comprises a solid waste transfer
station which enables both the containerisation of non
recyclable solid wastes for bulk haulage to a remote landfill
site, and in addition the containerisation of bulk recyclable
materials, including industrial scrap metal and timber and
garden wastes, for haulage to processing facilities away from
the site."
9. The majority considered the development and reached the conclusion that it could not be categorized as a general industry, junk yard, light industry, major public service depot, or a store. It is not necessary to consider their reasons in relation to their conclusion that the development did not fall within any of those categories. They had regard to the definition of industry and reached the conclusion that the proposal "can possibly be described as an industry, as the material on the site is to be compacted before being removed". I would have thought that the development was an industry because I think the process to be carried on would satisfy the definition of industry. That, however, is not a matter that has to be decided for the purpose of this appeal.
10. The majority, having decided that this development did not fall within any of the categories to which I have referred, turned their attention to whether or not it was a "special industry". As I have mentioned, a "special industry" is a prohibited use within the area in which the development is contemplated. "Special industry" is defined within the Development Control Regulations 1982 as:
"'Special industry' means an industry where the processes
carried on, the methods of manufacture adopted or the
particular materials or goods used, produced or stored, are
likely -
(a) to cause or create dust, fumes, vapours, smells or gases;
or
(b) to discharge foul liquid or blood or other substance or
impurities liable to become foul,
and thereby:-
(i) to endanger, injure or detrimentally affect the life,
health or property of any person (other than any person
employed or engaged in the industry); or
(ii) to produce conditions which are, or may become,
offensive or repugnant to the occupiers or users of land in
the locality of or within the vicinity of the locality of
the land on which (whether wholly or partly) the industry
is conducted."
11. It was contended by the appellant that the majority fell into error in their construction and understanding of the definition of "special industry" and thereby erred in finding that the proposed development was a special industry.
12. All parties agreed that the words in placita (i) and (ii) qualified both paragraphs (a) and (b). That is to say, no party suggested that placita (i) and (ii) only applied to paragraph (b). The structure of the definition is not entirely easy to follow, but I think the parties are right, and that the legislature intended that the words in the placita apply to both paragraphs (a) and (b). I think that follows from the positioning of the words "and thereby".
13. I believe that the construction of the definition requires that for a development to be a "special industry", there must be proof that any one of the matters in the introductory words of the section are likely, that is, probable to cause or create any one of the matters in paragraph (a), or to discharge the substances in paragraph (b). In Australian Telecommunications Commission v Kreig Enterprises Pty Ltd (1975) 14 SASR 303, Bray CJ described the words 'likely' and 'probable' as being "synonymous, one being of Anglo-Saxon and the other of Latin origin". See also Boughey v R (1986) 65 ALR 609 at 611.
14. Once the likelihood or probability has been established, the next matter to be considered is whether that which has been caused or created, or that which has been discharged, is going to have any of the consequences in placita (i) or (ii). "Thereby" would be understood to mean 'by that' or 'because of that'. If it is established that the method of manufacture will be likely to cause fumes, the next consideration is as I have stated it, because of those fumes will any of the matters in placita (i) or (ii) occur? If one is considering the matters in placitum (i), one would need to determine whether the probabilities of these events will occur because of the matters in (a) or (b). So again it is a test of the probabilities. Mr Selway QC, who led for the first respondent, argued that in respect of placitum (ii), the test was different. One did not have to be satisfied on the probabilities, but only, because of the words "may become", as a possibility. He argued that it was sufficient to determine that a development was a "special industry" if there was a probability of (a) or (b) occurring and a possibility that conditions may become offensive or repugnant to the occupiers or users of land in the locality or vicinity. I do not agree with that argument. I believe that the words "may become" are used in a timing sense, i.e. to indicate something in the future rather than as words suggesting some lower sense of satisfaction of a fact. I think that follows from a reading of placitum (ii) itself. If the construction contended for by Mr Selway was right, it would not be necessary to include "are, or" before the words "may become". Those words on his contention would be superfluous. If one has regard to the whole of the definition it seems unlikely that some very serious matters such as a danger to life or health would need to be made out on the balance of probabilities, but that an alternative whereby something was offensive or repugnant to occupiers or users of land need only be made out as possibility. That would make the definition internally inconsistent. I therefore believe that a development is a "special industry" if because of any of the matters in the introductory words, those matters are likely to cause or create any of the matters in paragraph (a) or to discharge any of the substances in paragraph (b), and because of any of those matters, any of the events in placita (i) and (ii) are likely or probable to occur. I therefore agree with both Bollen and Olsson JJ in the construction of the definition.
15. I do not think that the majority in the ERD Court construed the definition contrary to the opinion of the members of this court. The majority said in their reasons:
"We come now to the question as to whether the proposal can
be categorised as special industry. It could be argued that
the proposal falls within the definition of special industry
as the process of compaction carried on and the materials or
goods stored, even though for 24 hours, are likely to cause
or create dust, fumes, vapours, smells or gases or to
discharge foul liquid or other substances or impurities
liable to become foul and thereby endanger, injure or
detrimentally affect the life, health or property of any
person - in this case both the smallgoods factory across
Tapleys Hill Road and other small businesses to the east and
also the long established houses on the south side of Dixon
Street could all be detrimentally affected by the proposal.
The definition of special industry continues with the
provision that the materials or goods used, produced or
stored are likely to produce conditions which are, or may
become offensive or repugnant to the occupiers or users of
land in the locality of or within the vicinity of the
locality of the land on which (whether wholly or partly) the
industry is conducted."
16. I do not believe therefore that the construction upon which the majority proceeded was in error. However the majority went on to say:-
"Even though the evidence from the applicants for consent
attempts to allay any fears that the particular materials or
good stored will be likely to cause or create dust, fumes,
vapours, smells or gases or to discharge foul liquid or other
substance or impurities liable to become foul and thereby to
endanger, injure or detrimentally affect the life, health or
property of any person or to produce conditions which are or
may become offensive or repugnant to occupiers or users of
land in the locality of or within the vicinity of the
locality of the land on which the industry is conducted, we
find that we cannot be satisfied that, unlikely as it may be,
it will not occur. We emphasise again that much of the
uncovered weekend rubbish from private vehicles may well be
at least a week old or more before it arrives at the Royal
Park site."
17. The test that they there applied is not the test that ought to have been applied upon the construction at which they arrived. The test rather suggests that they have reached the conclusion that it will be unlikely, but that, as it may occur, that is, as there is a possibility that it will occur, then that is sufficient to bring the development within the definition. That is an incorrect application of the appropriate construction of the definition to the facts.
18. In the next paragraph of their reasons they said:
"The test for a special industry is that the processes
carries (sic) on, the methods used, the passage of the
refuse, its effect on the surrounding premises, the way it is
handled and the impact of the vehicles carrying the refuse to
or from the site - all those factors taken together may be
likely to produce conditions which are or may become
offensive or repugnant to the occupiers or users of land in
the locality of or within the vicinity of the locality of the
land on which (whether wholly or partly) the industry is
conducted."
19. That test is closer to the appropriate test. However, the majority do not identify what is it which, in their opinion on the probabilities, is likely to occur by reason of the matters stated. They have not made a finding in respect of paragraphs (a) or (b) of the definition. They do not identify what it is that may be produced which may be likely to produce conditions which are or may become offensive or repugnant to occupiers or users of land in the locality. In that regard they again fell into error.
20. For all of those reasons, in my opinion, the majority's reasons for their decision in respect of their finding as to "special industry" cannot be supported.
21. Mr Selway argued that whilst there was sufficient evidence to support a finding that the development was a special industry and consequently a prohibited use, even without that evidence the nature of the activity would be sufficient to categorize the activity as a special industry even in the absence of such evidence. He relied for that proposition on Remove All Rubbish Pty Ltd v The Corporation of the City of Salisbury and Anor. (1989) 51 SASR 26.
22. In that case Jacobs J said at page 29:
"... however that may be, it is very difficult to believe
that the definition of 'special industry', with its
wide-ranging application to activities which might generally
be regarded as noxious, was not intended to include waste
disposal. If that is so, it must come within the definition
of 'industry', for 'special industry' itself is, by
definition, an 'industry'. Alternatively, it may be
necessary, in order to bring waste disposal within the broad
concept of special industry, to give the word 'industry' in
the definition of 'special industry' a wider and more
flexible meaning than it bears in the statutory definition of
'industry'."
23. I cannot agree with that submission. Jacobs J did not intend by what he said to say that all developments of this kind had to be a special industry, irrespective of the evidence called in support or opposition. Whether or not the development is a special industry must be decided on the evidence.
24. As indicated, the respondents argued in the alternative that there was sufficient evidence to support a finding that the development was in fact a special industry.
25. The Chairman of the Court said this:-
"It is beyond dispute that a waste transfer station of the
type now proposed is capable of producing 'dust, fumes,
vapours, smells or gases' which may injure or detrimentally
affect the life, health or property of residents of the
locality or produce conditions which are, or may become,
offensive or repugnant to the occupiers or users of land
therein. There is no doubt about that. However, that does
not, of itself, mean that the waste transfer station falls
within the definition of Special Industry as set out in
Regulation 4 of the Development Control Regulations, 1982.
That definition is set out in the reasons of the majority in
this matter. The question is whether the processes carried
on or the particular materials stored therein are 'likely' to
have that result. On the evidence before the Court, I am
satisfied that whilst, if things go wrong, the processes
proposed or the goods to be stored are such that such results
may occur, one cannot reasonably say that such results are
'likely'. This is particularly so given the licensing and
the ongoing supervisory role of the Waste Management
Commission and its staff. Hence I have come to the
conclusion that the proposed waste transfer station should
not be regarded as constituting a 'Special Industry' as
defined by the Regulations and thus a use prescribed as
'prohibited' in this zone."
26. He has, in my opinion, taken a correct view of the construction of the definition. He has reached a view, based on the evidence, that it was not established that it was probable that any of the matters in placita (i) and (ii) of the definition would be made out. Therefore it followed that he reached the view that this development was not a special industry. That understanding of the evidence is not inconsistent with the reasoning of the majority when they said, "... we find that we cannot be satisfied that, unlikely as it may be, it will not occur".
27. It is not wrong, I think, to understand that the majority believed that on the probabilities, none of the matters in placita (i) and (ii) were made out. It follows that all members of the Court were agreed, on the facts, as to the likelihood of any of the events occurring in placita (i) and (ii). Upon the construction that I would place upon "special industry", it would follow that as a matter of fact this development is not a special industry. As I have said, however, the respondent, notwithstanding those observations, argued that there was evidence to support a finding that this development was a special industry.
28. There was, as all members of the Court have found, no doubt that this development would create dust, fumes, vapours, smells or gases. The question before the Court was whether they would produce conditions which are or may become offensive or repugnant to occupiers in the locality. The evidence rather suggested that provided the development was well managed the emission of dust and odours would be unlikely to extend much beyond the buildings in which the development was carried on. The evidence of interstate experience was that if the development was well managed, odours would not escape from the site. That was the evidence-in-chief of Mr Hall, Consulting Engineer. It was also the evidence of Mr Tonkin, Planning Consultant. He said inter alia:
"Well, my experience is that odours don't extend beyond,
really, the boundaries of the walls of these enclosed
buildings."
29. The evidence of Mr Lightbody, Waste Management Engineer, is not quite as clear, but it is to the same effect. Mr Baker, Chief Environment Officer, who was called by the respondent, agreed in cross-examination with the evidence of Mr Tonkin, and in particular, the observation by Mr Franklin that one does not notice smells on transfer stations in buildings. In particular, he was then asked these questions:-
"Q. He (Mr Tonkin) said inside the building at the tip face,
yes, there was an odour. Do you agree with that.
A. Yes.
Q. He said he couldn't notice any odour because the odours
don't extent 'beyond the boundaries of the walls of these
enclosed buildings', would you agree with that.
A. That's right. They work on a negative pressure with the
air being expressed through the roof.
Q. In so far as the odours are concerned, would you agree
essentially with the observations which Mr Tonkin made in
relation to the transfer stations in enclosed buildings
interstate.
A. Yes.
Q. I think that was the same or similar to evidence given by
Mr Hall of his experiences, do you recall that.
A. That's right.
Q. In essence, the experience interstate where there is an
enclosed building, it does not appear to emit odours beyond
the boundaries of the building walls."
30. He went on to say that he was concerned because of the different treatment, there would be an odour outside the building, but how far outside would depend upon the calmness or strength of any breeze which is evident at the time. He deferred to Mr Purton's evidence in relation to atmospheric conditions affecting the transmission and disposal of odours. He was further cross-examined by Mr Hayes.
"Q. Let's assume that we accept your understanding of the
volume and your appreciation of the volume and your
experience interstate of the nature of the odours emitted
because of that volume. what I am putting to you is that the
odour which will emanate beyond the boundaries of the
building itself, realistically speaking, will not be great.
I know that's a value judgment.
A. Once you disperse the odours in the building, they are
confined. The dispersal occurs in the building itself, gated
by the walls being there, and it has to be concentrated to
come back out through the doors. Therefore, the amount of
odour that you have there, as it percolates, will be
significant.
Q. It is most significant just outside the door.
A. Yes.
Q. It will diminish in its significance as you get further,
depending on the atmospheric conditions. That's been your
experience.
A. Yes. If you are a mile away, you probably wouldn't pick
it up. Between that, you get varying degrees of odour.
Q. From that point on, you have to just guess how much at
what point.
A. That's right. There is no way of measuring that odour,
only by a sense of appreciation."
31. Bollen J has referred in some detail to the evidence of Mr Purton, a meteorologist employed by B.C. Tonkin and Associates. A statement was tendered and he gave oral evidence. Whilst I appreciate the force of the evidence that Bollen J has referred to, in my opinion, that evidence is based upon assumptions not otherwise proved. It was not established, in my opinion, that dust and odours would escape. Mr Purton's evidence was given upon the basis that there would be such an escape. He was not an expert on waste management. His evidence was limited to what might happen if odours were to escape. His evidence, in my opinion, is not decisive of the issues. Even if one accepted the evidence of Mr Purton, it does not go far enough, in my opinion, to bring this development within a special industry. The evidence does not establish that dust, fumes and odours will produce conditions which are or may become offensive or repugnant to the occupiers in the locality. I believe, therefore, that his Honour the Chairman, was right and the majority were right to arrive at the conclusion they did on the facts, although as I have already said, the majority erred in the construction of the definition of special industry. It follows, in my opinion, that the development, on the facts that were before the ERD Court, ought not to have been categorized as a special industry.
32. Of course that does not dispose of the appeal. The ERD Court considered the alternative contention put by the appellant and that was that if the Court found that the proposed development was not a special industry and therefore not prohibited, that the development, notwithstanding that it was non-conforming use, ought to be allowed. That required a consideration of the appropriate planning principles, and of course, a consideration of the Development Plan as required by s47(9). As already mentioned, no decision could have been given which was seriously at variance with the provisions of the Development Plan.
33. The majority found that even if the development was not a special industry, the proposal was impermissible, because as they said:
"Even if the classification of Special Industry is not
correct, what is proposed to be established in this Light
Industry Zone is unacceptable. Its impact is not envisaged
by the Development Plan. The amenity to which residents are
entitled in a Light Industry Zone would be detrimentally
affected and the proposal is not acceptable in planning
terms. Its impact is too great. The development is
inappropriate in land use terms and both goes against, and is
in conflict with, what the Council is seeking to achieve by
means of the Development Plan."
34. "Light industry" is defined in the Development Control Regulations 1982:
"'Light industry' means an industry where the process carried
on, the materials and machinery used, the transport of
materials, goods or commodities to and from the land on or in
which (wholly or in part) the industry is conducted and the
scale of the industry does not -
(a) detrimentally affect the amenity of the locality or the
amenity within the vicinity of the locality by reason of the
establishment or the bulk of any building or structure, the
emission of noise, vibration, smell, fumes, smoke, vapour,
steam, soot, ash, dust, waste water, waste products, grit,
oil, spilled light, or otherwise howsoever; or
(b) directly or indirectly, cause dangerous or congested
traffic conditions in any nearby road."
35. The majority determined that this development "even if, properly classified, it does not constitute a Special Industry, its impact upon the amenity of the locality is such that, in land use terms, it is unacceptable on the subject land."
36. In making that determination the majority had regard to a number of planning criteria which they said made it inappropriate for this development to be allowed to proceed in this area. The appellant did not seek to argue that there was no evidence upon which the majority could not have reached their decision. Rather, the appellant argued that error had been demonstrated in respect of the reasoning process in relation to special industry which permeated and undermined the reasoning process in respect of the second aspect of the inquiry. It would therefore be appropriate it was said that this Court grant approval and remit the matter back to the lower Court to impose whatever conditions are appropriate.
37. For the reasons expressed earlier I do not think this court can do that. That would be to substitute a planning decision of this Court for a planning decision of a specialist Court in circumstances where there has not been demonstrated an error of principle or significant error of fact. Where there is evidence to support the conclusion arrived at, it is not for this Court to substitute its own opinion for an opinion arrived at by a specialist court.
38. In my opinion the majority approached their task correctly and in conformity with the approach suggested by Jacobs J in Remove All Rubbish v The Corporation of the City of Salisbury and Anor. (1989) 51 SASR 26, who said at page 30:
"... a planning authority ought not to be satisfied that a
non-conforming use is appropriate and deserving of planning
approval unless it is also satisfied that its impact upon the
locality will not be detrimental and that there are no other
serious or significant planning objections to the proposal."
39. I identify some, but by no means all of the matters that were and could be arrived at for the conclusion to which the majority came. Firstly, the proposed development does not comply with either the objective or the first principle of development control for a Light Industry Zone.
40. 'Objective' is defined as:
"A zone primarily accommodating the transition of existing
land uses to industries which manufacture on a small scale
and which do not create any appreciable nuisance or generate
heavy traffic."
41. The first principle is defined as:
"Development undertaken in the Light Industry Zone would be,
primarily, industries which manufacture on a small scale and
which do not create any appreciable noise, smoke, smell, dust
or other nuisance or generate heavy traffic."
42. The proposed development cannot be described as being of a small scale. Indeed, the development is anything but a small scale. It was submitted by the respondent that the size scale and use of the premises would affect the amenity of the local area. That was the view of the majority and I cannot say it was wrong.
43. Moreover, the proposed development will, contrary to the first principle, generate heavy traffic. The evidence was that on weekends there could be between 460 and 700 vehicle movements on each day. The majority found that there would be difficulties with the traffic congestion, not only on weekends, but also on weekdays. The traffic problems will not only affect the flow of traffic in the area, but also internally. The proposed development is a large complex which will generate traffic problems.
44. It seems to me that the appellant is not able to identify any error on the part of the majority which would require the interference of this Court. The appellant argued that this Court ought to grant approval to this development and send the matter back for the imposition of conditions. However, that does not appear to me to be appropriate. There are two basic planning principles applicable to this area which the proposed development offends.
45. In Remove All Rubbish v The Corporation of the City of Salisbury and Anor. (supra) Jacobs J said at page 34:
"The primary concern of a planning authority is to control
land use and the first question to be addressed should always
be whether in the circumstances the proposed development is
at least prima facie a suitable and appropriate use of the
subject land having regard to the provisions of the
development plan. To approach a planning decision by framing
conditions designed to make the proposal suitable and
appropriate is to bypass the primary question."
46. In South Australian Housing Trust v Lee (1993) 81 LGERA 378, Debelle J said at page 390, after having cited the dictum of Jacobs J referred to above:
"It is only when it has been decided that a proposed
development is compatible with the relevant provisions of the
Development Plan and the orderly and proper planning of the
locality that a planning authority should consider the
question whether conditions should be imposed: Beer v South
Australian Planning Commission (1988) 142 LSJS 20 at 25 and,
on appeal, (1988) 145 LSJS 284 at 289-290."
47. It would not be appropriate for this Court to reach the conclusion that notwithstanding that this development offends two basic planning principles, the ERD Court ought to have granted consent and fashioned conditions designed to minimize the disruption caused by the giving of consent. There are circumstances where conditions should be imposed to allow a development to go forward, even though the development as proposed does not precisely come within the permitted use, but these circumstances do not, in my opinion, exist in a situation such as this, where the proposed development does not comply with two underlying assumptions in the first principle applicable to the locality.
48. For these reasons the appeal ought to be dismissed.
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