R v Miller - [2000] SASC 101

CITY OF MITCHAM v FRECKMANN & ORS (NO 2)
[2000] SASC 101

Full Court: Doyle CJ, Debelle and Nyland JJ

DOYLE CJ. I would dismiss the appeal and I agree with the reasons to be given by Debelle J.
DEBELLE J. This is the second occasion on which these parties have been before this court concerning Mr Freckmann’s application for development consent to enable him to park a large furniture removal truck on his residential property. The truck weighs 4.95 tonnes. Each occasion has been an appeal from the Environment Resources and Development Court which I will call (“the Environment Court”).
Mr Freckmann owns a house at 7 Rochester Avenue, Colonel Light Gardens. The land is within the area of the City of Mitcham, which I will call the “Council”. It forms part of the Colonel Light Gardens Suburb Zone, as prescribed by the Development Plan for the Council area. Colonel Light Gardens is a suburb which is significant in the history of town planning in this State. It was planned along garden-city lines by Charles Reade, South Australia’s first government town planner.
Mr and Mrs Freckmann reside in the house. They conduct a furniture removal business from the house. Mrs Freckmann provides secretarial assistance. Another person is employed on a casual basis. That person does not reside in the house.
Mr Freckmann seeks to park the truck along one side of the house. The parking of the truck requires development consent. The parking of the truck in the manner proposed is neither a complying nor a non-complying use of land in this zone. Thus, the land can be used to park the truck only if the Council (or the Environment Court on appeal) should decide to grant the relevant consent.
Mr Freckmann’s house adjoins a neighbourhood centre area. The area consists of shops with frontages to Goodwood Road. Those shops include a supermarket, takeaway food shop, video hire shop, pizza bar, a chemist and an automatic teller machine. The neighbourhood centre is separated from Mr Freckmann’s house only by a lane.
Mr Freckmann applied for grant of development consent. The Council refused the application. Mr Freckmann then appealed to the Environment Court which allowed the appeal and granted development consent. The Council appealed to this Full Court on 27 July 1999. The Full Court upheld the appeal and set aside the decision of the Environment Court. The court then remitted the matter to the Environment Court for further hearing and determination in accordance with the principles expressed in its reasons.
The Environment Court again heard the matter on 8 September 1999. It heard further evidence on 18 November 1999. The Environment Court published its decision upholding Mr Freckmann’s appeal and granting development consent subject to the following condition:
“The truck shall be parked only in a position adjacent to the western wall of the dwelling shown generally in Exhibit R4, so that:
1.it may be driven onto Rochester Avenue in a forward direction; and
2.no portion of the truck,…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Miller

Details

AGLC: R v Miller [2000] SASC 101
Case: [2000] SASC 101
Decision Date: 7 April 2000

CaseChat Overview and Summary

The case of City of Mitcham v Freckmann & Ors (No 2) [2000] SASC 101 concerns Mr Freckmann's application for development consent to park a large furniture removal truck on his residential property. The City of Mitcham, referred to as the Council, denied the application, but the Environment Resources and Development Court granted the consent. The Council appealed to the Full Court, which remitted the matter to the Environment Court. The Environment Court again heard the matter and granted the development consent, subject to conditions. The Council then appealed to the Full Court again.

The primary legal issues the court had to address were whether the Environment Court had correctly applied the Development Plan and whether it had made an error of law in granting the development consent. The court also had to consider the compatibility of the proposed development with the residential character of the Colonel Light Gardens Suburb Zone.

The court held that the Environment Court had not erred in granting the development consent. The court noted that the Environment Court had changed its approach from the first hearing, focusing on the effects on the amenity of the locality and the subject land caused by the activities in the neighbourhood centre. The Environment Court found that the parking of the truck in the proposed position would not have any further detrimental effect upon the land in the immediate neighbourhood of the neighbourhood centre. Although the court noted some criticisms of the Environment Court's reasoning, they did not affect the final outcome. The Full Court was reluctant to interfere with the Environment Court's conclusions on essentially planning issues and would only do so if there was a fundamental departure from proper planning principles.

The Full Court dismissed the appeal and agreed with the reasons provided by Debelle J. The court found that the Environment Court had made a planning judgment and had taken into account the relevant provisions of the Development Plan and all relevant factors. The Environment Court's decision was based on the need to preserve the amenity of the Colonel Light Gardens Suburb Zone and the conflicting objectives expressed in the Development Plan. The court also noted that it was a borderline case, and the Environment Court might have equally decided to refuse the development consent.

Orders