Potter v City of Holdfast Bay - [2005] SASC 354

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POTTER v CITY OF HOLDFAST BAY
Judgment of The Full Court
(The Honourable Justice Debelle, The Honourable Justice Besanko and The Honourable Justice White)
16 September 2005
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL
Application to council for development consent to use land as a car park – car park to service adjoining premises used for sale of new and used cars – whether proposed use was a non-complying development – council had not adopted procedure for assessing an application for a non-complying development – relevant principles – held, proposed use was a non-complying development with consequence that council had not adopted the correct procedure – further held, no reason to interfere with alternative basis of decision of Environment, Resources and Development Court, namely, that the proposal did not warrant consent by reference to the planning merits - appeal dismissed.
Development Act 1993 s 4, s 33, s 35; Development Regulations 1993 reg 16, reg 17; Planning Act 1982 s 47, s 56, referred to.
City of Mitcham v Feckmann (1999) 74 SASR 56, applied.
Cutajar v Thebarton Town Corporation (1991) 55 SASR 70, not followed.
Adelaide City Mission v South Australian Planning Commission (1993) 60 SASR 178, discussed.
City of West Torrens v McDonald's Properties (Australia) Pty Ltd (1985) 38 SASR 467; Papadopoulos v Corporation of the City of Woodville (1985) 39 SASR 569; Wilson v City of Mitcham & Mercedes College Springfield Inc (1986) 130 LSJS 31; Church of England Collegiate School of St Peter v Corporation of the Town of St Peters (1990) 70 LGRA 34; Church of England Collegiate School of St Peter v Corporation of the Town of St Peters (No 2) (1990) 71 LGRA 309; Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton (1993) 62 SASR 165; Kipa Freeholds Pty Ltd v Development Assessment Commission (1999) 101 LGERA 414; District Council of Mt Barker v Palma (2002) 120 LGERA 182, considered.

POTTER v CITY OF HOLDFAST BAY
[2005] SASC 354
Full Court: Debelle, Besanko and White JJ

DEBELLE J: The appellant operates a business selling new and used cars on land on the northern side of the junction of Bath Street and Brighton Road, Glenelg. The appellant seeks to develop adjoining land at 39 Bath Street by demolishing a house on that land and establishing in its place a car park for customers, employees and visitors associated with the appellant’s new and used car business on Brighton Road. The land is within the area of the respondent City of Holdfast Bay (“the Council”).
The appellant applied to the Council for provisional development plan consent to undertake the proposed development. The Council refused the application. The appellant appealed to the Environment, Resources and Development Court (“the Environment Court”) against the decision. The Environment Court dismissed the appeal. The appellant now appeals to this Court.
The Land and its Locality
The following description of the subject land and its locality is taken from the reasons of the Environment Court.
The land is a conventional rectangular shaped residential allotment. A cream brick dwelling in fair condition is erected on it. The appellant’s business occupies an extensive area of land with a frontage to Brighton Road, north of the junction of Bath Street and Brighton Road. The appellant’s land is within a Commercial Zone. The subject land adjoins the land on which the appellant conducts his business. The subject land is situated within the Historic Conservation Zone – Residential (New Glenelg) (“the Historic Conservation Zone”).
The Historic Conservation Zone is a relatively large zone bounded on the north by Pearce Street, on the east by Brighton Road, on the south by Boundary Road and on the west by the coast. Within its bounds are two Local Commercial Zones. One of those zones is a short distance west of the subject land and comprises a number of small shops catering for the day‑to‑day needs of local residents. Land to the south of Bath Street is predominantly zoned residential. Immediately to the west of the subject land are five residential units located at 37 Bath Street. Further west is Penzance Street which has been almost entirely developed for residential purposes. Opposite the subject land on the southern side of Bath Street are three dwellings, each of which is listed as a contributory place within the Historic Conservation Zone. Bath Street is a predominantly residential street running east‑west between Brighton Road and Moseley Street.
On the southern corner of the junction of Bath Street and Brighton Road are commercial premises. On the eastern side of Brighton Road and north of the immediate locality is another new and used car business, Eblen Subaru, which occupies a number of allotments with a frontage to Brighton Road near its intersection with Lapthorne Street. To the east of the business of Eblen Subaru is residential development. Brighton Road is a busy arterial road carrying some 26,000 vehicles per day.
The Environment Court defined the locality as including the development on the eastern side of Brighton Road between Lapthorne Street and Melton Street and the corresponding western side of Brighton Road as far south as Boundary Road and extending west to Partridge Street. There is no appeal against that finding.
The Proposed Development
The appellant proposes to demolish the existing buildings on the subject land and develop the land as a car park providing spaces for 26 cars. The purpose of the development is said to be to relieve congestion in the car storage area of the existing car yard and to reduce the need for visitors and staff to park in Bath Street. The appellant proposes that four of those spaces will be available for visitors, eight for staff and the remaining 14 for vehicles of customers which are being serviced at the adjoining car yard. A ramp will provide access from the land to the land occupied by the appellant’s existing business. It is proposed to establish landscaping on the southern and western boundaries of the land. A brush fence 1.8 metres high will be erected on the Bath Street boundary. Colourbond fencing will be erected on the western and northern boundaries.
The Decision of the Environment Court
The Environment Court dismissed the appeal from the Council’s decision on two grounds. The first was that the proposal represented an extension of the service trade premises and motor repair station operated by the appellant. The expression “service trade premises” is defined by the Development Regulations 1993 to mean
premises used primarily for the sale, rental or display of … boats, caravans, domestic garages, sheds, outbuildings, motor vehicles, tents, trailers … or similar bulky articles or merchandise.
The Development Regulations define “motor repair station” to mean
any land or building used for carrying out repairs (other than panel beating or spray painting) to motor vehicles.
The appellant’s business consists of both service trade premises and a motor repair station. Both forms of development are non‑complying developments in the Historic Conservation Zone. The Environment Court held that, as the proposed development represented an extension of the appellant’s business on to the subject land, it represented a change of use to a non‑complying development. The Environment Court held that, because the Council had not implemented the procedures prescribed in s 35(3) of the Development Act for assessing whether to grant development consent to a non‑complying development, it had no jurisdiction to hear the appeal. In addition, the Court was prevented by s 35(4) of the Development Act from hearing an appeal in relation to a refusal of consent to a non‑complying development.
In case it had erred in reaching that conclusion, the Environment Court also considered the planning merits of the application. Its planning assessment constituted the second ground for refusing the appeal. The Court held that the proposal was clearly at odds with the objectives of the Historic Conservation Zone. The Court concluded that the proposal is so fundamentally in conflict with the intent, purpose and desired character of the Historic Conservation Zone that the decision of the Council refusing development consent was correct.
The Appellant’s Contentions
Mr Hayes QC, who appeared for the appellant, challenged both of the grounds relied on by the Court. He contended that the Environment Court had erred in its consideration of the question whether the proposed development was a non‑complying development, submitting that it did not constitute a non‑complying development. He also contended that the Environment Court had placed undue weight on Objective 1 of the Historic Conservation Zone and so had erred as a matter of law in finding that the proposal was so fundamentally in conflict with the intent, purpose and desired character of the zone.
A Non-Complying Development?
The development of a car park, whether or not it is associated with any other form of development, is not a complying development in this Historic Conservation Zone. It was necessary, therefore, for the appellant’s development application to be assessed against the provisions of the Development Plan: s 33 of the Development Act 1993.
Where an application for development consent requires the proposed development to be assessed against the provisions of a development plan, the relevant planning authority must determine the nature of the development and deal with the application according to that determination: reg 16(1) of the Development Regulations 1993. Thus, the task confronting the Council as the relevant planning authority (and later the Environment Court) was to determine the nature of the development proposed by the appellant. The determination of that question would enable the Council and the Environment Court to determine by reference to the Development Plan and the Development Regulations whether the proposal was a non‑complying development. If it was determined that the application was for a non‑complying development, the application would have to be assessed in accordance with the procedures prescribed by s 35(3) of the Development Act 1993 and by reg 16(2) and reg 17 of the Development Regulations. If it was not, it had to be assessed in accordance with s 33 of the Development Act.
Mr Hayes QC relied on a number of decisions of this Court and contended that the nature of the proposed development was that of a car park and that the nature of the development was not affected by the fact that the car park was associated with the appellant’s business.
The nature of a development is primarily to be determined by examining its characteristics. Mr Hayes relied on a number of decisions of this Court in relation to what under the Planning Act 1982 were called prohibited uses of land and, since the Development Act 1993, have been called non‑complying developments. To all intents and purposes, a prohibited use under the Planning Act 1982 is the same as a non‑complying development under the Development Act 1993. Those decisions held that, as a general rule, the nature of a proposed development is not to be determined by reference to the type of development with which it is to be intended to be used or by the nature of the business or other activity in which the applicant for development consent engages on the subject land or on land adjoining the subject land.
A distinguishing feature of these decisions is that they were decided under the Planning Act 1982 which established a régime relating to the continuance of existing prohibited uses of land different from the present régime. That régime was established by s 56 of the Planning Act. Section 56 was amended from time to time. For a while the operation of s 56 was suspended. This led to a degree of uncertainty as to its operation. One of the uncertainties concerned the question of further development of an existing prohibited use. The enactment of the Development Act 1993 removed most of those uncertainties. It does not contain a provision in terms which are similar to s 56 of the Planning Act. With those observations in mind, it is necessary to examine the decisions on which Mr Hayes relied.
In West Torrens City Corporation v McDonald’s Properties (Aust) Pty Ltd (No 2) (1985) 38 SASR 467, McDonald’s Properties had applied for planning approval under the Planning Act 1982 to erect a substantial freestanding advertising pylon to hold what was euphemistically described as a “sky sign” on land occupied by a shop. The sign was intended to advertise the shop. The land was in a Residential 2 Zone where use of land as a shop was a prohibited use. The question was whether the advertising pylon was to be characterised as a shop. The Court held that it should not be so characterised. Jacobs J, with whom the other members of the Court agreed, said (at 471 - 472):
It is beyond dispute that the respondent is conducting a shop, as defined, on the subject land, but it is contrary to the plain meaning of the language to say that a proposal to erect an advertising pylon is a proposal for a shop. The appellant seeks to meet this difficulty by asserting that there is but one use of the development of the subject land, namely for the purposes of a shop, and that the proposed advertising sign is a development so closely identified with that use that it takes on the character of that use. That may be so in some cases, but as in every case, it is a question of fact and degree. It may well be that, although it is unnecessary to decide, that a development on the subject land by a new kitchen or toilets or storeroom may take on the character of the primary use of the existing development, but I am quite unable to assign the character or characteristics of a shop to a freestanding pylon advertising the existence of the shop. Nor does it suffice to say that the sign is an accessory used reasonably incidental to the principal use.
So, the use of the land was held to be as an advertising pylon (not a prohibited use) and not as a shop. The application for planning approval was to be determined on that footing. It is to be noted that Jacobs J left open the question whether a proposed development might take on itself the character of the primary use of the existing development or use of the land. However, it is clear that, as a general rule, the nature of the development will be determined by the characteristics of the proposed development. It will be a question of fact and degree in each case. The decision turns on its own facts. It differs from the decisions to which I now refer in that the sign did not add a further use to the land except to the extent that it might attract additional custom.
A different aspect of this question was addressed in Papadopoulos v City of Woodville (1985) 39 SASR 569. Mr Papadopoulos owned a shopping complex on land zoned for commercial purposes. The use of the land for shops was not a prohibited development but required the consent of Council. Mr Papadopoulos had obtained development consent for that use. He later sought to develop adjoining land in a residential zone as a car park to service the shopping centre. A shop and a car park were neither a complying nor a non‑complying development in the residential zone. However the use was characterised, it had to be assessed against the Development Plan for the purpose of determining whether planning approval should be granted. On appeal, the Planning Appeal Tribunal approached the question whether planning approval should be granted by treating the development of the car park as an intrusion of a shopping development into a residential area. Jacobs J held that this approach was flawed. In his view, the development was for a car park. The question whether planning approval should be granted was to be determined not by considering the development as a non‑conforming use in a residential zone. The development was, he said, for a car park, which was a use neither permitted nor prohibited in a residential zone, so that the only question was whether the car park should be permitted having regard to the Development Plan and other relevant issues. Jacobs J said:
All that intrudes into a Residential zone is a small parking lot, and the only planning issue that the Tribunal had to consider was whether that small parcel of land on the perimeter of the Residential zone can, in all the circumstances, properly be given over to a use, i.e. off-street car-parking – which is not a prohibited use in a Residential 2 zone – after paying due regard to the relevant principles of development control in such a zone and the legitimate and reasonable expectations of its inhabitants.
Although Jacobs J did not expressly refer to McDonald’s Properties, it is clear that his reasoning is grounded on the principles expressed in that decision.
In my view, the decision in Papadopoulos is expressed in terms which are too absolute. While it was correct to characterise the development as a car park, it was, nevertheless, a car park for a shopping centre. Except in the case of a large multi‑storey car park, a car park usually serves a particular land use. One is used to seeing a car park for a shopping centre, for a hotel, for a school, for an office or for other kinds of uses. The nature and extent of the use of a car park will vary according to the nature of the use it is intended to serve. For example, the extent of the use of a car park for a school is likely to be less than that for a shopping centre trading for long hours every day in each week. When determining whether planning approval should be granted, it is necessary, therefore, to have regard to the use which the car park is intended to serve. The decision in Papadopoulos should be qualified in that way.
This conclusion is consistent with the fact that the Development Plan requires certain kinds of development be provided with adequate car parking. In the case of some kinds of development, such as residential flat buildings and offices, the Development Plan prescribes the amount of car parking. In other cases, the amount of car parking will be resolved by reference to other standards and an assessment of the size, nature and likely use of the proposed development: see, for example, Kipa Freeholds Pty Ltd v Development Assessment Commission (1999) 101 LGERA 414. What is clear is that the required amount of car parking will vary according to the nature and size of the development. The question whether the whole development, including car parking, should be granted planning approval will depend upon an examination, among other things, of the adequacy of the car parking, the hours and extent of use, the likely amount of traffic and, as well, the provisions of the zone in which the proposed development will be located. In other words, the issues relating to the use of the car park are examined by reference to the nature of the development it is intended to serve. There is no reason why the determination of the question whether a new car park intended to serve an existing use should not be assessed in a like manner. Expressed another way, there is no logical basis for considering whether to grant planning approval to the establishment of a new car park to serve an existing use of land differently from the manner in which car parking forming part of the initial proposal would be considered. The reasoning in Papadopoulos allowed for a different approach in relation to the additional car park. Whatever the merits of that decision, the approach to the issue was, in my respectful view, in error.

In Wilson v City of Mitcham & Mercedes College Springfield Inc (1986) 130 LSJS 31 the question was whether the nature of the development was to be determined by the use of the land on which the development was proposed. Mercedes College is a school catering for children from pre‑primary reception level to matriculation level. It had applied to develop part of its land for a multi‑purpose hall and a swimming pool. The City of Mitcham granted development consent. In 1984 the land occupied by the school was located in a residential zone as prescribed by the Development Plan for the City of Mitcham. The school was an educational establishment as defined by the Development Control Regulations 1982. An educational establishment was a prohibited use of land in the residential zone. An application for a prohibited use had to follow a procedure similar to that which now applies for non‑complying developments under s 35(3) of the Development Act. It was contended that a development consent granted by the City of Mitcham was invalid because the prescribed procedure had not been followed. Jacobs J dismissed that contention, adopting an approach similar to that in the McDonald’s Properties case. He said (at 39):
The Development Control Regulations define an “educational establishment” to mean “a secondary school, college, university or technical institute, but does not include a primary school or an institution for the care and maintenance of children”. This definition is fatal to the argument. The proposed development is for a multi‑purpose hall and swimming pool and is not by any stretch of the imagination an “educational establishment” as defined, i.e. it is not a secondary school, college, university or technical institute. This is not a matter of mere semantics, but involves a proper perception of the Development Plan and the Principles of Development Control.
Thus, the fact that the hall and swimming pool were to form part of the school facilities did not cause the nature of either to be characterised as an educational establishment and so constitute a prohibited development.
In Church of England Collegiate School of St Peter v St Peter’s Town Council (1990) 70 LGRA 34 Jacobs J applied like reasoning. In that case, the land sought to be developed was in a residential zone in which an educational establishment was a prohibited use. St Peter’s College was an educational establishment as defined by the Development Control Regulations 1982. The proposed development was a swimming pool to be used by schoolboys of primary school age. Jacobs J held that the development should be characterised as a swimming pool and associated facilities and not as an educational establishment. See also Church of England Collegiate School of St Peter v St Peter’s Town Council (No 2) (1990) 71 LGRA 309.
I respectfully believe that the process by which the decision to grant planning consent was made in the Mercedes College case and in the two St Peter’s College cases was wrong. While the Court was correct to state that the nature of the development is to be determined by the inherent characteristics of the development and not by the overall use of the land, it erred when deciding that the development was not part of a prohibited use and so not subject to the régime for determining applications for prohibited uses.
The flaw in the reasoning is that it fails to give due weight to the fact that the Planning Act contained a régime for determining whether planning approval should be granted to an application for a prohibited use which differed from the régime for determining whether planning approval should be granted to other forms of development. Unlike an application for planning consent for other kinds of developments, an applicant for planning consent for a proposed development which constituted a prohibited use was required by s 47(6) of the Planning Act to obtain both the consent of the council and the concurrence of the Development Assessment Commission in the grant of that consent where the relevant planning authority was the council. Where the relevant planning authority was the Commission, the applicant had to obtain concurrence of both the Minister and the council in whose area the development was proposed to be undertaken. In addition, s 47(8) provided that no appeal would lie from a refusal of a consent or a concurrence under sub-s (6) or from a condition attached to a consent under sub-s (6).
An application might be made to establish either a prohibited use or to establish an additional facility for an existing use of land defined by the Development Plan as a prohibited use. The fact that a different régime had been established for prohibited uses of land was a clear indication that differing planning factors might apply in respect of an application to develop a prohibited use, either as a new use or as a further development of an existing use, from those which apply to other forms of development. In the case of land already used for a purpose which constituted a prohibited use, there will be additional factors to be considered when determining whether to grant planning approval which would not apply in the case of other kinds of development. For example, there may be questions whether it is desirable to allow any further intensification of the use or whether the intended development should be located at a different part of the subject land from that chosen by the applicant for planning approval.
In the passage quoted above, Jacobs J expressed the view that “a proper perception of the Development Plan and the Principles of Development Control” required the decision he reached. A little later in his reasons he returned to the issue. He said:
It would be a very strange Development Plan that sought to prohibit an existing and long-established school from expanding its facilities in order to provide the best possible education for its children. The purpose of designating an “educational establishment” as a prohibited development is not to inhibit the reasonable development of existing schools, but to prohibit the intrusion into the area of a new “secondary school, college, university or technical institute”.
With respect, the reasoning is grounded on a misconception of the Development Plan. There was nothing in the Development Plan, nor in the terms of s 56 of the Planning Act as they then stood, which prevented an existing school from expanding its facilities. It could do so if the proposed development merited planning approval and that approval had been granted pursuant to s 47(6). Indeed, there was nothing in the Development Plan which denied the ability to establish a new school as a non‑conforming prohibited use if approval were granted pursuant to s 47(6). Furthermore, if the reasoning of Jacobs J is correct, it enables a person using land for a prohibited use to establish additional facilities and so intensify the use in a manner contrary to the intention of the Development Plan.
The decision in Cutajar v Thebarton Town Corporation (1991) 55 SASR 70 is an example of how the approach in Mercedes can lead to error. In that case the appellant conducted a motor repair station in four buildings on one parcel of land. The four buildings comprised one main building towards the front of the land and three older buildings at the rear. The use of the land as a motor repair station was a prohibited use of the land. The appellant proposed to demolish the three older buildings and erect a new building in their place. Both the main building and the new building were to be used for the purpose of a motor repair station. The Council refused the application. The appellant appealed to the Planning Appeal Tribunal. The Tribunal had no jurisdiction if the development related to a prohibited use. It stated a case for the consideration of this Court. The Court held that it was not a prohibited use, relying on the approach in Mercedes. On any view of the matter, the new building was part of the motor repair station and was to be used as a motor repair station and, as such, constituted a prohibited use.
The decisions in Mercedes and St Peter’s College have the capacity to erode a critical feature of the planning régime, namely, that an application for the grant of planning approval for a development which will constitute a prohibited use or a further development of an existing prohibited use is subject to particular planning considerations which do not apply in the case of other forms of development or land use. The fact that the development application must be subject to a different régime does not have the consequence that it will necessarily be rejected. Instead, the decision whether to grant or refuse planning approval will be made according to all the relevant planning principles.
In my view, the decision which the Court should have reached in Mercedes and in St Peter’s College was that the nature of the development had to be determined by a consideration of its inherent characteristics and how the land would be used but, nevertheless, be considered to be part of a use which is a prohibited use. So in Mercedes, the decision should have been that the application was to develop part of the land as a multi‑purpose hall and swimming pool and those uses were to be considered as part of an educational establishment which was a prohibited use in the relevant zone.
The unsatisfactory nature of these decisions can be illustrated in another way. Assume a school which is a non‑complying development in its particular zone applies for development consent to construct a dining hall. A dining hall appears to fall within the definition of a restaurant in the Development Regulations, which define a restaurant to mean “land used primarily for the consumption of meals on the site”. However, it is plainly unrealistic for planning purposes to assess a dining hall for use by students in the same way as a restaurant used by members of the public. Most development plans contain parking requirements for a restaurant. They would be wholly inappropriate for a school dining hall. In such a case, the fact that the dining hall would be used by school students prevents it from being regarded as a restaurant. If it is suggested that this is the kind of development identified by Jacobs J in the McDonald’s Properties case as one which takes on the primary use of the existing development, then the question is why did not the hall and swimming pool in Mercedes or the swimming pool in St Peter’s College also take on the character of the primary use as an educational establishment?
Although it was correct in Mercedes to characterise the hall as a hall and the swimming pool as a swimming pool, each development, nevertheless, constituted part of a prohibited use. The question in each case was, not whether each development was an educational establishment, but whether each was a hall or swimming pool which was to form part of an educational establishment. Because the hall and the swimming pool were intended to be part of a prohibited use, the question whether there should be a grant of development consent had to be assessed pursuant to the prescribed procedure for prohibited uses. The fact that each development was to be characterised as either a hall or a swimming pool was not a sufficient ground for exempting the development from being subject to the provisions of the Act relating to prohibited development.
The decisions in Mercedes and in St Peter’s College have led to what I respectfully believe to be an erroneous statement of principle. In District Council of Mt Barker v Palma (2002) 120 LGERA 182 the decision in Mercedes was examined by the Chief Justice who expressed the view that there were two possible bases for the decision. He said at [44]:
Two possible bases for the decision emerge. The first is a relatively narrow one, that the definition of “educational establishment” did not apply. The broader one is that provisions of a planning instrument that submit particular land uses to special restrictions on the basis of their incompatibility with the general character of a zone, or on the basis that they call for special controls, should not ordinarily be interpreted as applying to a proposal which is a reasonable development of an existing use. I am not able to state the broader principle with any more precision than that.
Later he said at [49]:
It is important to bear in mind that what I have called the broader basis for the decision in Wilson is not a freestanding rule of law. It is a principle of interpretation. I have already attempted to express it as such. It calls for a particular approach when interpreting a provision of the Development Plan, that submits particular types of development to particular restraints, in its application to a use of land which was a lawful existing use when the Development Plan came into operation. The principle reflects the practical considerations identified by Jacobs J.
With respect, the principle of interpretation identified by the Chief Justice does not exist. Indeed, to suggest that it does is to erode planning principle. It is not correct to suggest that there is a principle of interpretation that the special controls upon non‑complying developments do not apply “to a proposal which is a reasonable development of an existing use”. There is no basis for such a principle in the legislation or the Development Plan. The so-called principle creates a presumption in favour of a prohibited use of land which has never existed. Such a principle is not only not justified but it also erodes the principles which apply in the case of non‑complying developments. Instead, the correct approach is that, once the nature of a proposed development has been identified, the proposal will be assessed as part of a non‑complying development and the decision whether development consent should be granted will be made having regard to the provisions of the relevant Development Plan, the nature and extent of the proposed use and its effect upon the character and amenity of the locality, the location of the proposed development, the extent to which the proposal intensifies the existing prohibited use and other relevant factors. In short, the question will be whether the proposal merits development consent. If the proposal constitutes a reasonable development and satisfies relevant planning factors, it might well be approved. But there is no principle of interpretation creating a presumption in favour of a further development of an existing non‑complying development. In short, the so-called principle purports to state what is in fact a conclusion which might be reached but only after the planning merits have been assessed. To elevate such a conclusion to the status of a legal presumption applicable to all circumstances is to weaken the effect of the provisions of the Development Plan relating to non‑complying development. It ignores the balancing task that a planning authority must undertake in respect of an application concerning non‑complying development.
The decisions in Papadopoulos, Mercedes, and St Peter’s College have created difficulty for the Environment Court and its predecessor, the Planning Appeals Tribunal. That is apparent from the decisions to which the Environment Court has referred in its reasons, which it described as “the apparent maze of authorities”. They have led to some apparently inconsistent decisions. These difficulties can be avoided by approaching the issues in the manner outlined above.
In those instances where the proposal is for a development within the bounds of an existing non‑complying development, it is unlikely that there will be any difficulty in determining the nature of the development and concluding that the proposal will form part of an existing non‑complying development. There may be occasions when it is a question of fact and degree. McDonald’s Properties may be an instance of that. But as a general rule there should be little difficulty.
An instance of the nature of a development being determined by the activity to be conducted in the proposed development and not by the nature of the applicant’s business activities is Adelaide City Mission v South Australian Planning Commission (1993) 60 SASR 178 where the South Australian Housing Trust applied for development consent to construct two multiple dwellings and a detached dwelling. The Trust intended to lease the development to the Adelaide City Mission, a welfare institution. The Mission intended to use the two larger buildings to accommodate young people who are homeless or unable to live at home. It intended to use the third building as a cottage for a caretaker or manager of the development. The Planning Appeal Tribunal held that the proposed development was a welfare institution and, as such, constituted a prohibited use in the zone. The Tribunal’s decision was grounded on the nature of the activities conducted by the Adelaide City Mission. The decision was reversed on appeal, the Court holding that the proposal was either a boarding house or a hostel but, not a welfare institution. The Court said (at 183):
The difficulties inherent in the fact that both benevolent and non‑benevolent institutions might use land in the same way can be illustrated in another way. Let me assume that both a benevolent institution and a non‑benevolent institution seek to establish a nursing home of identical size, shape and construction and providing the same services. From a town planning point of view, the implications of each proposal are the same. They do not alter merely because the user will be a benevolent institution in one case but not in the other.
There is another aspect of the same point. A benevolent institution will often, if not as a general rule, provide its services at no cost or at a substantially reduced cost … Yet, it might be providing the same kind of services or using land or buildings in the same way as another organisation which charges fees which reflect the full cost of the services provided. The nursing home is nonetheless a nursing home because services or accommodation are provided at no cost or at a reduced cost or at full cost.
Thus, the fact that the activities engaged in by the Adelaide City Mission were those of a welfare institution was irrelevant. The nature of the development was to be determined by the manner in which the land and buildings were to be used.
When an application is made for a proposed development of an existing non‑complying development, the planning authority in compliance with reg 16 must determine its nature. However, whatever the nature of the development proposal, the proposal will constitute further development of a non‑complying development. However characterised, the proposal is in respect of a non‑complying development and, as such, should be subject to the procedures which apply in respect of a non‑complying development. The clear intent of the Development Plan is that a non‑complying development should be subject to close scrutiny. That is clearly implicit in the fact that s 35 of the Development Act requires that a non‑complying development must be approved by both the Council and the Development Assessment Commission where the Council is the relevant planning authority and, by the Minister with the concurrence of the Development Assessment Commission when the relevant planning authority is the Development Assessment Commission, except in instances listed in s 35(3a).
What then is the position when, as here, the applicant for development consent is using land for a purpose which is not a non‑complying development in the zone in which that use is conducted and seeks development consent for a development on adjoining land located in a zone where the extension of the existing use would constitute a non‑complying development? In that case, it is necessary first to determine the nature of the development and then to determine whether the proposed development is intended to be an extension of the adjoining use on to the land, the subject of the development application. In determining the latter question, it is not necessary to decide whether the proposed use is integral to the use of the adjoining land. It will be sufficient if it is an accessory use, that is to say, a use which is ordinarily regarded as, and is in fact, reasonably incidental to the use of the adjoining land. The use may also be for the benefit of the person using the adjoining land but I do not think that that is a necessary criterion for determining an accessory use in this context. If the development application is for a development which will be accessory to an existing non‑complying development, the development application will have to be assessed according to the procedure prescribed for assessing non‑complying developments.

The Environment Court held that the test for determining whether the use constituted an extension of the use conducted by the appellant on the adjoining land was whether the use would be integral to the appellant’s use of the adjoining land. It then held that the extended use was integral to the use of the adjoining land. The finding was justified on the evidence. However, for the reasons already expressed, the Environment Court has adopted a test which is too rigorous. On any view of the evidence, the proposed development constituted a use which is reasonably incidental to the appellant’s use of the adjoining land. It was, therefore, a use accessory to the use on the adjoining land. That is the preferable basis on which to decide the issue. Although the nature of the development is not determined by reference to the type of development the car park is intended to serve, the nature of the development it is intended to serve will be a relevant consideration when assessing the proposal against the Development Plan and determining whether to grant or refuse development consent with or without conditions. The nature of the proposed development is, therefore, a car park which is to be used for the purposes of service trade premises and a motor repair station. As such, it is a non‑complying development in the Historic Conservation Zone. The Environment Court was, therefore, correct in concluding the development was a non‑complying development. Not only have the procedures prescribed by s 35(3) of the Development Act not been followed but, by reason of s 35(4), no right of appeal existed to the Environment Court.
The Planning Assessment
The Environment Court examined the planning merits of the proposed development and held that it “is fundamentally in conflict with the intent, purpose and desired character of the zone”. It therefore concluded that the Council’s decision refusing provisional development plan consent was correct.
Mr Hayes QC criticised these conclusions, asserting that as the Environment Court was unable to identify any other provision of the Development Plan which spoke against the proposal, it had little justification to support the Council’s decision. He contended that the Environment Court had failed to assess the use by reference to the fact that it was on the edge of the Historic Conservation Zone with the proposed use providing a buffer from the adjoining commercial development. He added that the Environment Court had erred in that it had treated Objective 1 as a mandatory provision and had erroneously rejected the evidence of the appellant’s planning expert.
The Development Plan spells out in the clearest terms that the intent of the Plan is to preserve the residential character of the zone, the preferred development being of detached or semi‑detached dwellings complementing the late Victorian and early 20^th Century housing predominant in the zone. That is clearly apparent from Objectives 1 and 2 and from Principles 4 and 7 of the Principles of Development Control for this zone which provide:
OBJECTIVES
Objective 1: An area of heritage value where the heritage character and integrity of the zone is conserved and reinforced.
Objective 2: Accommodation of detached and semi-detached dwellings, primary single storey, complementing the late Victorian and early 20^th Century residential development predominant in the zone.
PRINCIPLES OF DEVELOPMENT CONTROL
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4Development of buildings, or in the vicinity of buildings, constructed in the late Victorian and early 20^th Century periods should conserve and enhance their distinctive features including their wall heights, roof forms, scale, external detailing, external materials and fencing.
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7Development within the zone should conserve and enhance the cohesive streetscapes of the zone, particularly those east of Moseley Street, having regard to predominant building setbacks, scale, external materials, fencing and appearance of existing dwellings in the locality.
These statements of the intent of the Plan for development in this Historic Conservation Zone complement other principles of development control elsewhere in the Plan. It is sufficient to refer to Principles 49 and 54 to which the Environment Court referred in its reasons.
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49Development in a residential zone should not impair its character or the amenity of the locality as a place in which to live.
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54Expansion of existing non‑residential developments, such as retail, commercial, industrial or other non‑conforming developments, should not be undertaken in residential zones unless residents are adequately protected from adverse noise, air pollution, traffic disturbance or other harmful effects to health or amenity, and unless expansion is undertaken in a manner which minimizes any impairment of the residential character or amenity of the area.
In addition, there is the clear statement that a motor repair station and service trade premises are both non‑complying developments in the Historic Conservation Zone. There were, therefore, a number of provisions in the Development Plan which spoke against the proposal.
The Environment Court correctly identified that its task was to determine the overall intent, purpose, and desired character of the zone and to determine the consistency of the proposed development with that intent, purpose, and character: City of Mitcham v Freckmann (1999) 74 SASR 56. It concluded that Objective 1 unequivocally sought to conserve and reinforce the heritage character of the zone. The conclusion is entirely consistent with, if not required by, the terms of the Development Plan.
The Court then continued:
The subject proposal is clearly at odds with that Objective. We acknowledge that the dwelling on the land is not a contributory item within the zone, but it is a detached dwelling in fair condition, and one which, consistent with Zone Objective 2, complements the older buildings within the zone in as much as it evidences a residential rather than commercial character … Demolition of the dwelling and its replacement with a car park can in no sense be viewed as conserving or reinforcing that desired character, and in all likelihood will foreclose that occurring in the foreseeable future.
In the course of reaching that conclusion, the Court had found that there would be no adverse effects upon the locality by reason of noise and traffic as a result of the development. The Court also weighed the evidence of the two town planners called by each of the parties. When determining whether the development was consistent with the Objectives of the Historic Conservation Zone, the Court acknowledged that it may lead to a more efficient use of the appellant’s existing site and would remove some vehicles parked in Bath Street by staff and visitors. However, it believed those advantages were outweighed by the adverse consequences of removing the existing dwelling thereby foreclosing the opportunity for development consistent with the Objectives of the zone and the establishment on the land of a development more consistent with commercial than residential development.
Mr Hayes’ criticism that the Court had failed to consider the fact that development was at the edge of the Historic Conservation Zone is not justified. While the Environment Court did not expressly refer to that question, it is implicit in the manner in which it addressed the question whether the development was consistent with the Objectives of the Historic Conservation Zone that it had regard to that question. In addition, the Environment Court had weighed the evidence of the planning experts and had preferred that of the Council’s expert. It expressly rejected the appellant’s expert who, when expressing the view that the development should be permitted, had relied on the fact that it was at the edge of the zone. I am satisfied that the Environment Court had regard to the issue.
These are all plainly findings upon planning issues. They are the findings of a specialist tribunal with which this Court will be slow to interfere. It has not been demonstrated that the court has made any error of law. As has been frequently stated, this Court will interfere with the conclusions of the Environment Court upon essentially planning issues in exceptional cases only, that is to say, if the Environment Court has plainly made an identifiable and a grievous blunder, has made a demonstrable error of fact or principle, or the circumstances are in some other respect quite exceptional. In short, this Court is reluctant to substitute its planning opinion for that of the Environment Court and will be minded to do so only where the appellant is able to demonstrate some fundamental departure from proper planning principles: see Ampol Road Pantry Pty Ltd v City of Brighton (1993) 62 SASR 165 at 173 and the cases there cited.
When stripped to their essence, Mr Hayes’ contentions were in truth arguments upon planning issues, seeking to persuade the Court to interfere with the assessment of the Environment Court, a specialist tribunal. There is no ground on which this Court could justifiably interfere with the planning assessment of the Environment Court.
Mr Hayes was also critical of the grounds upon which the Environment Court had rejected the evidence of the appellant’s planning expert. The criticism is misplaced. It is grounded on remarks made by the expert in his evidence in cross‑examination. The Environment Court had the advantage of seeing and hearing the expert giving evidence. There is no ground upon which this Court should interfere with the Environment Court’s assessment of his evidence.
For these reasons, I would dismiss the appeal.
BESANKO J:The facts are set out in the reasons for judgment of Debelle J. I will repeat the facts only where it is necessary to do so in order to explain my reasons.
It is convenient at the outset to identify the proposed development on the subject land, the use to which the adjoining Dave Potter Motors land is put, and the relationship between the two.
The proposed development consists of the demolition of an existing detached dwelling and garage, the establishment of a bitumen-sealed and line‑marked car parking area providing a total of 26 car parking spaces and the creation of a semi-circular ramp, providing access between the existing Dave Potter Motors land and the subject land. The car park is to be laid out as follows:
1.Four visitor parking spaces, accessed from Bath Street, with bollards preventing access between the visitor parking area and the remainder of the car park;
2.Eight designated staff car parking spaces at the southern end of the balance of the car park; and
3.Fourteen spaces for customer vehicles undergoing servicing on the site.
Other aspects of the proposed development relate to landscaping and fencing, the details of which I need not set out. The proposed development is development within the definition in s 4 of the Development Act 1993 because it involves a change in the use of land.
The use of the Dave Potter Motors land, which for convenience I will call the existing use, involves used car display and sales, new car display and sales (Honda and Daihatsu), a service and repair workshop, offices, a spare parts division, and a new-car detailing and storage area. It does not seem to be disputed that the existing use is a motor repair station and service trade premises as those terms are defined in Schedule 1 to the Development Regulations 1993. A “motor repair station” is there defined to mean:
… any land or building used for carrying out repairs … to motor vehicles.
A “service trade premises” is defined to mean (relevantly):
… premises used primarily for the sale, rental or display of … motor vehicles.
The other use which may be relevant is that of a store. A “store” is relevantly defined in Schedule 1 to mean:
… a building or enclosed land used for the storage of goods, and within or upon which no trade (whether wholesale or retail) or industry is carried on …
The primary purpose of the proposed development is to enable the operator of the business on the Dave Potter Motors land to store vehicles which are either awaiting service or have been serviced in the workshop on the Dave Potter Motors land. The facility of storing vehicles on the subject land will ease the pressure on the Dave Potter Motors land, particularly in the vicinity of the workshop area. In addition to this primary purpose, employees of the Dave Potter Motors business will be able to park their vehicles (including demonstration vehicles) off the public roads, and a small number of visitor car parking spaces will be available for those who visit the Dave Potter Motors land from time to time either for trade purposes or as prospective customers.
The subject land is within an Historic (Conservation) Zone – Residential (New Glenelg) Zone. For ease of reference, I will simply refer to this zone as the Residential Zone. In the Residential Zone, there are no complying developments for the purposes of the Act and Regulations. A motor repair station, service trade premises and store are non-complying kinds of development. A car park is not specified as a non-complying kind of development. The Dave Potter Motors land is within a Commercial Zone. The use of land as a motor repair station or service trade premises is neither a complying nor non-complying kind of development in the Commercial Zone.
The order appealed from is an order that the appeal to the Environment, Resources and Development Court (“the ERD Court”) be dismissed.
In processing the application the City of Holdfast Bay (“the council”) determined that the nature of the development was as follows:
Demolition of dwelling and establishment of a customer/employee/visitor car park associated with an existing new/used car yard.
The council did not determine that the nature of the proposed development was a motor repair station, service trade premises or store and, therefore, a non‑complying kind of development and it did not adopt the procedure specified in the Act and Regulations for non-complying kinds of development. The council processed the appellant’s application for consent on the basis that it was for neither a complying nor a non-complying kind of development. The council refused the application by reference to the planning merits, and in the notification of decision document sent to the applicant, stated that the ground of refusal was as follows:
That after consideration of the provisions of the Development Plan the application be refused provisional development plan consent for the reasons [sic] that it is contrary to the provisions of the City of Holdfast Bay Development Plan.
At some stage in the course of the appellant’s appeal to the ERD Court, a question arose as to whether the proposed development had been correctly characterised by the council and whether it had been correctly processed. It was suggested by the council that the proposed development should have been characterised as a non-complying kind of development being a motor repair station and service trade premises. If that contention were correct, then the appeal to the ERD Court was incompetent because the application had not been correctly processed by the council and because s 35(4) of the Development Act 1993 provides that no appeal lies against a refusal of consent in relation to a non-complying development. It would have been preferable for this contention to have been raised earlier. However, it is a matter which goes to the jurisdiction of the ERD Court and the Court was required to consider it.
The ERD Court considered both the question whether the proposed development was for a kind of development which was non-complying in the Residential Zone and, assuming it was not, whether it warranted approval having regard to the planning merits. It decided both issues against the appellant. It made an order dismissing the appeal although it observed that another form of order might have been made. I assume the ERD Court had in mind an order declaring the appeal incompetent, or declining jurisdiction.
Was the proposed development a non-complying kind of development?
The question here is whether the council’s initial characterisation of the proposed development as the demolition of a dwelling and establishment of a customer/employee/visitor car park associated with an existing new/used car yard is correct, or whether, because of its close connection to the existing use, it should be characterised as a motor repair station and service trade premises. It was also suggested on appeal that the existing use included use as a store, but, as the ERD Court determined the matter on the basis that the existing use was a motor repair station and service trade premises and as I can determine the appeal without deciding the submission, I will put it to one side.
I must first consider the relevance to the characterisation issue of two decisions of a single judge of this Court: Wilson & Ors v Corporation of the City of Mitcham & Mercedes College Springfield Inc (1986) 130 LSJS 31 (“Mercedes College”) and Church of England Collegiate School of St Peter v Corporation of the Town of St Peters (1990) 70 LGRA 34 (“St Peter’s College”).
In Mercedes College, the applicant for consent was a school which catered for children from very young pre-primary reception level to matriculation level. The school applied for consent to a proposed development on the school property described as a “multi-purpose hall and swimming pool for educational purposes”. The local council approved the development over objections from neighbouring residents. The residents appealed to the Planning Appeal Tribunal. They were unsuccessful. They brought a further appeal to this Court and one argument which they raised was that the consent was invalid because the application was for a development which was prohibited and the council had not complied with the statutory procedure applicable to prohibited developments. An “educational establishment” was a prohibited form of development in the relevant zone and the submission was that the application was for an educational establishment. Jacobs J rejected that argument and said (at 39):
It must never be forgotten, as I am afraid it sometimes tends to be, that the Development Plan was superimposed upon an existing state of development, and whilst it sought as best it could to characterise various localities by reference to their predominant or preferred land use, e.g. residential or commercial or industrial, it is an inescapable fact that within such areas there are non-conforming uses. Mercedes College has been established on its present site in what is now designated as a Residential 1A zone, for more than 30 years. The map which forms a part of the Development Plan shows it as a large unsubdivided area in that zone. It would be a very strange Development Plan that sought to prohibit an existing and long-established school from expanding its facilities in order to provide the best possible education for its children. The purpose of designating an “educational establishment” as a prohibited development is not to inhibit the reasonable development of existing schools, but to prohibit the intrusion into the area of a new “secondary school, college, university or technical institute”.
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I would, however, prefer to rest my answer upon the broader view of the Development Plan which must be capable of adapting to development of existing non-conforming uses while at the same time inhibiting development by way of new secondary and tertiary (but not primary) educational establishments in a Residential 1A zone.
In St Peter’s College, a school wished to construct a swimming pool within its grounds. The school had existed on the site for many years. Most of the site fell within a special use zone, but a small portion, including the area in which the swimming pool was to be constructed, was within a residential zone. The local council characterised the proposed development as “a swimming pool and associated facilities” and refused consent. On appeal by the school, an issue arose as to whether the proposed development was for an educational establishment, which was a prohibited use in a residential zone. That argument succeeded before the Planning Appeal Tribunal which dismissed the appeal as incompetent. Under the then Planning Act 1982, no appeal lay against a refusal of consent in relation to a prohibited use. Jacobs J allowed the appeal, and he referred to his decision in Mercedes College. He said (at 36):
In the decision that is now under appeal the learned judge in the Planning Appeal Tribunal purported to distinguish the decision in the Mercedes College case, partly by reason of the changed definition of “an educational establishment”, and partly by reference to changes in the legislation with respect to the protection afforded to existing uses under s 56 of the Act. Prior to its amendment that section spoke to the proposed development in the Mercedes College case more favourably than s 56 in its present form applies to the present case, but the decision in this case does not in any way depend upon the statutory protection of existing uses, any more than did the decision in the Mercedes College case, when properly understood. The decision in that case simply declined to treat a proposal to build “a hall and a swimming pool” as if it were a proposal for an “educational establishment” as defined, and I see no reason whatever to take a different view in this case.

After referring to the decision in The Corporation of the City of West Torrens v McDonald’s Properties (Australia) Pty Ltd (1985) 38 SASR 467 (“McDonald’s Properties”), Jacobs J said (at 36 - 37):
It is true that there are dicta in the West Torrens case which suggest, but without deciding, that there may be cases in which a proposed development would take upon itself the character of a statutory definition by reference to its use in conjunction with the use contemplated by the statutory definition, but in my opinion, and for the reasons stated in the Mercedes College case, it would in the circumstances of this case, be a quite unwarranted distortion and extension of the relevant prohibition.
Jacobs J made an order remitting the school’s appeal to the Tribunal. On the further hearing the Tribunal again dismissed the appeal and the school appealed to this Court a second time ((No 2) (1990) 71 LGRA 309). Jacobs J made some important comments as to the effect of his earlier decision (at 311 ‑ 312):
All that was decided in the earlier appeal was that a proposal to build a swimming pool for the use of students on the existing campus of a lawfully established school was not, within the meaning of the Development Plan, a prohibited development.
The commissioner has wrongly interpreted that as denying that a school is a single functional entity. He went on to say, in elaboration of what was said to be a “deconstructionist” approach that “in the instance of the special use zone, pulling apart the notion of an educational establishment as an entity and dealing with its component parts could lead, among other things, to the dilemma that key parts of the school – for example, the boarders’ dormitory houses, the memorial hall and possibly some sporting facilities – could fall within the list of kinds of development that are prohibited”. That is precisely what the earlier decision did not say: it said the opposite. It was because the school, as an entity, is a lawful existing use, that it would be wholly unrealistic to characterise a new school building as a prohibited use upon the footing that such a building is itself “an educational institution”.
The Full Court of this Court considered the scope of the principle in Mercedes College and St Peter’s Colleges in Mt Barker District Council v Palma (2002) 120 LGERA 182 (“Palma”). Two passages from the reasons for judgment of the Chief Justice (with whom Mullighan J agreed) are relevant. In discussing the decision in Mercedes College, the Chief Justice said (at [44]):
Two possible bases for the decision emerge. The first is a relatively narrow one, that the definition of “educational establishment” did not apply. The broader one is that provisions of a planning instrument that submit particular land uses to special restrictions on the basis of their incompatibility with the general character of a zone, or on the basis that they call for special controls, should not ordinarily be interpreted as applying to a proposal which is a reasonable development of an existing use. I am not able to state the broader principle with any more precision than that.
A little later, the Chief Justice said (at [49] and [50]):
It is important to bear in mind that what I have called the broader basis for the decision in Wilson is not a freestanding rule of law. It is a principle of interpretation. I have already attempted to express it as such. It calls for a particular approach when interpreting a provision of the Development Plan, that submits particular types of development to particular restraints, in its application to a use of land which was a lawful existing use when the Development Plan came into operation. The principle reflects the practical considerations identified by Jacobs J.
I consider that the principle can be applied to the existing Development Plan. But I readily acknowledge that the principle in question has the potential to have an unsettling effect. It should be applied with care.
I do not understand Jacobs J to have said in Mercedes College or St Peter’s College that an application for a multi-purpose hall or a swimming pool is not a prohibited use or, to use the terminology in the present Act, a non‑complying development, because it is properly characterised as an application for a multi-purpose hall or swimming pool. Rather, if the application is for a reasonable development of an existing use, the particular principle in the Development Plan referring to a prohibited use or a non‑complying development will not apply to it because it is presumed that it is only directed at new forms of the relevant development. As the remarks of the Chief Justice in Palma make clear, that is a principle of interpretation rather than a freestanding rule of law. There are two steps in the application of the principle, namely, the characterisation of the application as embodying a reasonable development of an existing use, and then the interpretation of the relevant principle or provision in the Development Plan.
I do not think the principle of interpretation applies where the proposed development is not to take place on the land which is the subject of the existing use. In my opinion, there is no reason to think that those who drafted the Development Plan did not intend its provisions relating to non-complying developments to apply in the case of an expansion of an existing use beyond the boundaries of the land which is the subject of the existing use. In my opinion the principle of interpretation does not apply in such a case.
In this case the subject land has a dwelling on it, and it is not part of the land which is the subject of the existing use by the appellant. It follows that there is no room for the application of the principle of interpretation referred to in Mercedes College and St Peter’s College. I would not overrule those decisions and in fact the principle of interpretation which they embody was recognised by this Court in Palma. However, the principle of interpretation is not relevant in this case.
The critical reasoning of the ERD Court is contained in two passages in its reasons. The first contains the Court’s findings of fact as to the relationship between the proposed development and the existing use. The relevant passage is as follows:
The use proposed on the subject land is the parking of motor vehicles. It is clear from the evidence of Mr Chris Potter, the managing director of the business of Dave Potter Motors, that this will be to the great advantage of the business of Dave Potter Motors given the congestion on the existing site. Insofar as portion of the subject land would be reserved for the parking of vehicles either awaiting service or repair, or awaiting collection by their respective owners following service or repair, the subject land would be used as an integral part of the operation of the motor vehicle service and repair activities of Dave Potter Motors. The staff vehicles which it is intended would be parked on the subject land during the day would largely be demonstration vehicles according to the evidence. This also would be for the benefit of the business, in particular the new car business conducted by Dave Potter Motors on its existing site.
In considering the proper characterisation of the proposed development, the ERD Court said:
It is our concluded view that the application is to use the subject land for the purposes of Dave Potter Motors’ business in the same way as it was accepted that the pool was to be used for school purposes in St Peters. Unlike the situation in Papadopoulos, the subject land would become an integral part of the business of Dave Potter Motors, in the sense that the latter wants to be able to use the storage capacity of the subject land for its service and repair activities. Thus, we have concluded that the proposal represents an extension of the service trade premises/motor repair station use of the existing Dave Potter Motors site and therefore would be a change of use to a kind of development which is prohibited in the zone. There is nothing before us to justify the application of the principle of interpretation applied by Jacobs J in Wilson and St Peters, to the provisions of the relevant development plan describe a motor repair station and service trade premises as non-complying in the zone, mindful as we are of the need to be careful with its application, given the comments of Doyle CJ in Palma .
Although I agree with the conclusion of the ERD Court, I do not agree with all of its reasoning. First, for the reasons I have already given, the principle of interpretation referred to in Mercedes College and St Peter’s College is not relevant in this case. I do not think those cases are helpful on the characterisation issue bearing in mind that the nature of the characterisation issue in those cases is simply whether the proposed development is a reasonable development of the existing use. Secondly, I do not think the test is appropriately formulated in terms of whether the proposed development will become an integral part of the business conducted on the David Potter Motors land. In fairness to the ERD Court that may be its conclusion on the facts rather than its formulation of the relevant test. In my opinion the relevant test can only be stated in general terms and that is because of the nature of the issue which is being considered. In McDonald’s Properties, Jacobs J (with whom King CJ and O’Loughlin J agreed) said (at 472):
The appellant seeks to meet this difficulty by asserting that there is but one use of the development of the subject land, namely for the purposes of a shop, and that the proposed advertising sign is a development so closely identified with that use that it takes on the character of that use. That may be so in some cases, but as in every case, it is a question of fact and degree. It may well be, although it is unnecessary to decide, that a development on the subject land by way of a new kitchen or toilets or storeroom may take on the character of the primary use of the existing development, but I am quite unable to assign the character or characteristics of a shop to a free-standing pylon advertising the existence of the shop.
It seems to me that as general as it might be, this passage contains the relevant test, namely, whether, as a matter of fact and degree, the proposed development is so closely identified with the existing use that it takes on the character of the existing use. Although a variety of factors will be relevant depending on the circumstances of the particular case, the relevant test is as I have stated it. In this case the proposed development would take on the character of the existing use. The same person will conduct the activities on the two blocks of land and there will be direct access between the two blocks of land. An activity previously conducted on the Dave Potter Motors land, namely, the storage of vehicles awaiting service or repair or, awaiting collection after service or repair, would be conducted on the subject land. There is a real sense in which this would amount to “spreading out” of the use on the existing site to relieve congestion on that site. Employees of Dave Potter Motors would park on the subject land and there would be a benefit to the existing business insofar as those employees drove demonstration vehicles. There would be parking on the subject land for visitors to the existing business. All of these factors lead to the conclusion that the proposed development would take on the character of the existing use and therefore is a non-complying kind of development in the Residential Zone.
The appellant placed considerable reliance on the decision of Jacobs J in Papadopoulosv Corporation of the City of Woodville (1985) 39 SASR 569. I think that case is distinguishable. A shopping complex was erected on land zoned as District Commercial A and there was provision for off-street parking of vehicles. Abutting the land upon which the shops were erected was an allotment of land situated at the extremity of an area zoned Residential 2. Approval was sought to subdivide the allotment into two halves and to incorporate one half into the existing parking area at the shopping complex so as to provide more off-street parking for customers of the shopping complex. The decision of the council to refuse planning approval for the proposed new car park was upheld by the Planning Appeal Tribunal. There was a further appeal to a single judge of this Court.
A shop was not a prohibited use in a Residential 2 zone so that the case did not involve an issue as to the appropriate characterisation of the use for the purpose of considering if it was a prohibited use. The issue was the appropriate characterisation of the proposed development for the purposes of assessing the planning merits. Jacobs J decided that the Tribunal had not applied the correct test in planning terms. He said (at 576):
Whether "the intrusion of a so clearly non-conforming use" is a reference to the shops vis-à-vis the District Commercial A zone, or a reference back to the "intrusion of shopping facilities of the size proposed in a Residential 2 zone" is immaterial. If the former, it is, as the Tribunal itself acknowledged, of no consequence that the shopping centre might itself be perceived to be a non-conforming use in a District Commercial A zone, for it has received planning approval; if the latter, and more importantly, it cannot be said that there is any intrusion of "shopping facilities of the size proposed into a Residential 2 zone". Those shopping facilities are, and will be, almost wholly located in a non-residential zone. All that intrudes into a Residential zone is a small parking lot, and the only planning issue that the Tribunal had to consider was whether that small parcel of land on the perimeter of the Residential zone can, in all the circumstances, properly be given over to a use, i.e. off-street car-parking—which is not a prohibited use in a Residential 2 zone—after paying due regard to the relevant principles of development control in such a zone and the legitimate and reasonable expectations of its inhabitants. The whole structure of the Development Plan clearly contemplates a range of unspecified consent uses, being uses which are neither expressly permitted nor expressly prohibited. In the present case, some of the relevant principles of development control to which I referred earlier, would appear to speak in favour of the present proposal, others may appear to speak against it. It is for the Tribunal to strike the balance, but without resorting to the extraneous planning issues which it appears to have invoked.
I would not interpret these remarks as saying that a car park could never be characterised as part of the use which it serves. On the one hand, a car park might be characterised as part of the use it serves for the purpose of determining if the proposed development is for a non-complying kind of development. On the other hand, even if the car park takes on the characteristics of the existing use, it must not be overlooked when assessing the planning merits of the proposed development that what will actually go on the land is a car park and not a shop. That is clearly a relevant consideration in assessing the planning merits. I would interpret his Honour’s remarks as going no further than that and they are not inconsistent with the conclusion that in this case the proposed development would take on the character of the existing use.
The above conclusion is sufficient to dispose of the appeal because it means that there was no right of appeal to the ERD Court. However, like the ERD Court, and for sake of completeness, I will consider the appeal on the basis that the council’s initial determination of the nature of the development was correct, and the proposed development is not for a non-complying kind of development.
The planning merits
An appeal to this Court on the planning merits faces well-known obstacles. There is no appeal on a question of fact without leave (no leave has been granted in this case), and this Court will not interfere with the conclusions of the ERD Court upon essentially planning issues unless the case is an exceptional one: Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton (1993) 62 SASR 165. The appellant submitted that the ERD Court erred because although it said it would consider the planning merits of the application on the basis that it did not involve a non-complying development, it had not, in fact, done so. In other words, it was submitted that the ERD Court had assessed the planning merits on the basis that the proposed development was for a motor repair station and service trade premises. It is true that in discussing the planning merits the ERD Court referred to Principle of Development Control 9 and the fact that it provides that motor repair station and service trade premises are non-complying developments within the Residential Zone, but I think when the reasons of the ERD Court are read as a whole it is clear that the Court considered the proposal on the correct assumption. For example, in considering the effect of Objective 1 in the Residential Zone, the ERD Court referred to the present use being replaced by a car park. The Court said (at [64]):
When assessing a development proposal, it is the responsibility of planning authorities, and on appeal, this Court, to determine the overall intent and purpose and desired character of the zone in which that development is proposed, and to determine the consistency of the latter with that intent, purpose and desired character: City of Mitcham v Freckmann and Ors (1999) 74 SASR 56. Zone Objective 1 is unequivocal in seeking to conserve and reinforce the heritage character and integrity of the zone. The subject proposal is clearly at odds with that objective. We acknowledge that the dwelling on the subject land is not a contributory item within the zone, but it is a detached dwelling in fair condition, and one which, consistent with Zone Objective 2, complements the older buildings within the zone inasmuch as it evidences a residential rather than commercial character. Its low front fence is also in keeping with the general character of the area. Furthermore, while the use of the subject land remains residential, the opportunity exists for upgrading or replacement of that dwelling to achieve even greater consistency with the zone’s desired character. Demolition of the dwelling and its replacement with a carpark can in no sense be viewed as conserving or reinforcing that desired character, and in all likelihood will foreclose that occurring in the foreseeable future.
The other major submission made by the appellant in relation to the planning merits was that the ERD Court had erred in not taking into account, or sufficiently taking into account, the fact that the subject land is on the edge of the Residential Zone and abuts the Commercial Zone. This criticism cannot be sustained. It is clear that the ERD Court was aware of, and paid regard to, the fact that the subject land is on the edge of the Residential Zone and abuts the Commercial Zone.
Leaving aside these particular challenges, it seems to me that the appellant’s complaints about the ERD Court’s decision on the planning merits are in effect complaints about the Court’s assessment of those merits. Although I think there were a number of matters in favour of the proposed development, the decision of the ERD Court that consent be refused was open on the evidence and there is nothing to warrant the intervention of this Court.
Conclusion
The appeal to this Court should be dismissed.
WHITE J: In my opinion, this appeal should be dismissed. I agree with the reasons of Besanko J. There is nothing which I wish to add.