Tavitian v City of Playford

[2014] SASCFC 82

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

TAVITIAN v CITY OF PLAYFORD

[2014] SASCFC 82

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)

21 July 2014

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - EXISTING USES - CONTINUANCE OR CHANGE OF USE - PARTICULAR CASES

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - RESIDENTIAL AREAS - POWERS IN RESPECT OF RESIDENTIAL AREAS - OTHER JURISDICTIONS - WHAT USES PROHIBITED

REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - POWERS OF ACQUISITION - GENERALLY

The appellant, Mr Tavitian, purchased a house at Elizabeth Vale in 1988.  He subsequently brought onto the land used vehicle bodies and parts, used building materials and other items which collectively resulted in a change of use of the land from residential, being a complying use, to a scrap yard, being a non-complying use.

The respondent Council brought proceedings in the Development, Resources and Environment Court under section 85 of the Development Act 1993 (SA) seeking orders that Mr Tavitian cease using the land as a scrap yard and remove the scrap material from it. Mr Tavitian contended that the Council’s making of the Development Plan or the Council’s actions under the Development Plan amounted to an unlawful acquisition by the Council of an interest in his land in contravention of the Land Acquisition Act 1969 (SA).

The Judge found that there had been a change of use of Mr Tavitian’s land from residential to a scrap yard. The Judge rejected Mr Tavitian’s contention that there had been an acquisition by the Council of an interest in his land within the meaning of the Land Acquisition Act 1969 (SA). The Judge ordered that Mr Tavitian cease using the land as a scrap yard and that he remove scrap material from the land by 21 December 2012.

Mr Tavitian appeals against the Judge’s orders on the grounds that the Judge erred in rejecting his contention that there had been an unlawful compulsory acquisition of an interest in his land and further that the order for removal of scrap material was too wide.

Held:  By Kourakis CJ (Blue and Stanley JJ agreeing):

1. The Development Plan and the Council’s actions under it did not confer upon the Council or anyone else an interest in Mr Tavitian’s land within the meaning of the Land Acquisition Act 1969 (SA). The Council did not contravene or act unlawfully by reason of the Land Acquisition Act 1969 (SA) (at [26]-[32]).

2.  While the Judge had power to make the removal order which he did if it was reasonably appropriate and adapted to remedying the breach, Mr Tavitian should be given an opportunity to co-operate with the Council in defining a list of items which collectively may be stored on the land as part of or incidental to its ordinary residential use (at [40]).

3.  Subject to 2, appeal dismissed (at [41]).

Development Act 1993 (SA) s 4, s 25, s 26, s 32, s 44, s 78, s 85, s 86; Development Regulations 2008 (SA) Division 1, Part 3 cl 5(2), Schedule 3; Land Acquisition Act 1969 (SA) s 3, s 6; Local Government Act 1999 (SA) s 190, s 191; Planning and Development Act 1966 (SA), referred to.
Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490; Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480; British Medical Association v Commonwealth (1949) 79 CLR 201; Commissioner for Main Roads (NSW) v North Shore Gas Co Ltd (1967) 120 CLR 118; Commonwealth v Tasmania (1983) 158 CLR 1; Durham Holdings Pty Ltd v State of New South Wales (2001) 205 CLR 399; Hall and Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 All ER 1; Harada v Registrar of Titles (Vic) [1981] VR 743; Hornsby Council v Roads and Traffic Authority (NSW) (1997) 41 NSWLR 151; JT International SA v Commonwealth (2012) 86 ALJR 1297; Minister of State for the Army v Dalziel (1944) 68 CLR 261; Spencer v ACT [2007] NSWSC 303; William Street Pty Ltd v City of Melbourne (1975) 31 LGRA 189; North Sydney Municipal Council v Allen Commercial Constructions Pty Ltd (1969) 18 LGRA 1; Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155, applied.
Minister of State for the Army v Dalziel (1944) 68 CLR 261, discussed.

TAVITIAN v CITY OF PLAYFORD
[2014] SASCFC 82

Full Court:  Kourakis CJ, Blue and Stanley JJ

1. KOURAKIS CJ:   Between 1985 and 1988 the house and land at 14 Shaftesbury Road, Elizabeth Vale (the Shaftesbury Road land) was owned and occupied by Ms Savva and her husband.  Ms Savva kept the yard “spotless”.  Other houses in the locality were also generally kept neat and tidy and had established, landscaped, yards.  The appellant, Mr Tavitian, purchased the Shaftesbury Road land on 29 August 1988 and has used the yard of the land as a scrap yard much to the consternation the local Council, the City of Playford (Playford).

2. On 24 October 2011, Playford brought an application against Mr Tavitian in the Environment, Resources and Development Court (ERD Court) complaining that he had contravened s 32 and s 44(1) of the Development Act 1993 (SA) (the Development Act) in that he had undertaken development, namely a change in the use of the Shaftesbury Road land from its use as a residence to its use as a scrap yard or a residence and scrap yard. The application alleged that Mr Tavitian did not have approval to change the use to that of a scrap yard. Playford sought orders pursuant to s 85 of the Development Act that Mr Tavitian cease using the Shaftesbury Road land as a scrap yard within 60 days of the date of the order and that Mr Tavitian remove the scrap material from the Shaftesbury Road land.

   The Trial

3. The Shaftesbury Road land is located in the residential zone of the Playford Council Development Plan (the Development Plan).  The Development Plan prescribes a scrap yard as a non-complying development.

4. Since at least 1996 Playford has received complaints about the storage of vehicle bodies and other materials in the yard of the Shaftesbury Road land.  In September 2006 a senior planner with Playford inspected the Shaftesbury Road land.  He saw about 19 vehicles and an assortment of car parts in various states of disrepair in the yard.  Other material stored in the yard included:

   •used building materials including pallets, a water heater, paint tins, timber, corrugated sheeting, guttering, steel tubes, a screen door, concreting mesh, PVC tubing, electrical wiring, steel framing and scrap steel;

   •bicycles;

   •machinery including air conditioners, computers and          a lawnmower;

   •furniture, a toaster, microwave and other white goods;

   •hoses.

5. In support of its application, Playford relied on a report of an expert planner, Ms Barnes. After inspecting the Shaftesbury Road land, Ms Barnes reported that the current use of the land is not residential, nor is it reasonably incidental to such a use. Ms Barnes expressed the opinion that the land was being used as a scrap yard in ordinary town planning terms and that the use of the land did not satisfy the definition of a home activity found in the Development Act. Ms Barnes concluded that there had been a change in the use of the land. There was no evidence to the contrary.

6. The Judge found that there had been a change of use.  He delivered his reasons for so finding and invited the parties to make submissions as to final orders.  On 10 September 2012 the Judge ordered that Mr Tavitian cease using the land as a scrap yard and that he remove scrap material from the land on or before 21 December 2012.  However, the Judge prescribed items which were exempt from his order.  The Judge ordered:

   1.On or before 21 December 2012 the Respondent cease and thereafter refrain from using, or causing, suffering or permitting the use of, the land at 14 Shaftesbury Road, Elizabeth Vale (hereafter called “the Land”) for:

   (a)     the collection of scrap or junk; or

   (b)     the storage of scrap or junk (including temporary storage); or

   (c)     both (a) and (b) above,

   unless a development approval for such use is obtained.

   2.On or before 21 December 2012 the Respondent remove from the Land (and thereafter not return to the Land) all items, goods and materials stored on the Land including, but not limited to vehicles, timber, pallets, bicycles, water heaters, tins, machinery, air conditioners, household appliances (including refrigerators, clothes dryers, toasters, and microwave ovens), car parts, corrugated sheeting, guttering, steel tubes, screen doors, concreting mesh, computers, lawn mowers, baby strollers/pushers, PVC tubing, electrical wiring and cabling, wheel trims, furniture, hoses, metal drums, car/truck batteries, steel framing, and scrap steel, except for:

   2.1    any such items, goods or materials stored wholly within any enclosed building on the Land (including the dwellinghouse on the Land), where such building exists on the Land as at the date of this order;

   2.2    any such items, goods or materials permanently affixed to, and forming part of the dwellinghouse;

   2.3    any plants growing in the soil of the Land or within a plant pot in reasonable repair;

   2.4    any vehicle which:

   (a)does not exceed 3,000 kg in weight, or is a caravan or motorhome; and

   (b)is substantially whole and complete; and

   (c)can at all times be driven from the Land under its own power (except in the case of a trailer or caravan); and

   (d)when present on the Land, is parked rather than stored on the Land; and

   (e)is not itself used for the storage or scrap or junk;

   2.5    any outdoor furniture in reasonable repair which is able to be used, and which in fact is used, as outdoor furniture by any person ordinarily resident on the Land;

   2.6    any clothes drying line affixed to the Land which is capable of being used, and is in fact ordinarily used, as a clothes drying line;

   2.7    any clothing pegged to any such line, which clothing is ordinarily worn by any person ordinarily resident on the Land;

   2.8    no more than two bicycles per person ordinarily resident on the Land, where each such bicycle is in reasonable repair and which is able to be used, and which in fact is used, by a person ordinarily resident on the Land;

   2.9    one functioning barbecue in reasonable repair, which is able to be used, and which in fact is used, as a barbecue by any person ordinarily resident on the Land;

   2.10  up to three pairs of shoes per person ordinarily resident on the Land, which shoes are in reasonable repair and which are able to be used, and which in fact are used, by a person ordinarily resident on the Land; and

   2.11  one ordinary “wheelie bin” used for domestic rubbish, one ordinary “wheelie bin” used for recyclables, and one ordinary “wheelie bin” used for green waste.

   3.The Respondent pay the Applicant’s costs of and incidental to these proceedings, such costs to be agreed or assessed against the scale applying from time to time to civil actions in the District Court.

   The appeal

7. Mr Tavitian appeals against the Judge’s orders on two broad grounds.  First, he complains that the effect of the orders is to acquire an interest in his land without the payment of compensation contrary to the provisions of the Land Acquisition Act 1969 (SA) (the Acquisition Act). He contends that s 85 of the Development Act must be read down by reference to the Acquisition Act. Secondly, he contends that the orders go beyond what is reasonably necessary to ensure that the Shaftesbury Road land is used for residential purposes.

   The Development Act 1993 (SA)

8. Section 32 of the Development Act provides that no development may be undertaken unless it is an approved development. Section 44 of the Development Act proscribes the undertaking of a development without approval. Development includes a change in the use of land.[1]  The offence is punishable by a maximum fine of $120,000.

   [1]    Development Act 1993 (SA), s 4.

9. Section 85 of the Development Act relevantly provides:

   85—Applications to Court

   (1)Any person may apply to the Court for an order to remedy or restrain a breach of this Act or a repealed Act (whether or not any right of that person has been or may be infringed by or as a consequence of that breach).

   …

   (6)If—

   (a)     after hearing—

   (i)the applicant and the respondent; and

   (ii)any other person who has, in the opinion of the Court, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings,

   the Court is satisfied, on the balance of probabilities, that the respondent to the application has breached this Act or a repealed Act; or

   (b)     the respondent fails to appear in response to the summons or, having appeared, does not avail himself or herself of an opportunity to be heard,

   the Court may, by  order, exercise any of the following powers:

   (c)     require the respondent to refrain, either temporarily or permanently, from the Act, or course of action, that constitutes the breach;

   (d)     require the respondent to make good the breach in a manner, and within a period, specified by the Court, or to take such other action as may appear appropriate to the Court;

   (e)     cancel or vary any development authorisation (other than an authorisation granted by the Governor);

   (f)     require the respondent to pay to any person who has suffered loss or damage as a result of the breach, or incurred costs or expenses as a result of the breach, compensation for the loss or damage or an amount for or towards those costs or expenses;

   (g)     if the Court considers it appropriate to do so, require the respondent to pay an amount, determined by the Court, in the nature of exemplary damages—

   (i)if the applicant is a council and the Crown has not become a party to the proceedings—to the council;

   (ii)in any other case—into the General Revenue of the State.

   …

   (17)The Court may, if it considers it appropriate to do so, either on its own initiative or on the application of a party, vary or revoke an order previously made under this section.

   (17a)The Court may make such orders in relation to costs of proceedings under this section as it thinks fit.

10. The Acquisition Act was enacted to provide for the acquisition of land on just terms.[2]  Land is defined to include an interest in land which, in turn, is defined to mean:[3]

    (a)     a legal or equitable estate or interest in the land; or

    (b) an easement, right, power, or privilege in, under, over, affecting, or in connection with, the land; or

    (c)native title in the land.

    [2]    Land Acquisition Act 1969 (SA), s 3.

    [3]    Land Acquisition Act 1969 (SA), s 6.

11. A government agency, authorised by a special Act to acquire land (an Authority), may do so in accordance with the procedures set out in Part 3 of the Acquisition Act. After an acquisition, the Authority may cause the Registrar to alter or make an endorsement on an instrument of title to the land as a consequence of the acquisition.

12. The Development Act is a successor to the Planning Act 1982 (SA) (the Planning Act) which in turn was a successor to the Planning and Development Act 1966 (SA) (the Planning and Development Act). The statutory regulation of land use in South Australia has its origin in even earlier legislative instruments. Local governments were given extensive powers to make bylaws with respect to the use of land within their municipalities and districts in the nineteenth century. The controls on the use of land imposed by the Development Act are broadly similar to the controls imposed by its immediate predecessors.

13. It has long been recognised that planning laws authorise interference with the proprietary rights of land owners.[4]  There is no common law or constitutional right to compensation when a person is deprived of property by State law.[5]

    [4]    Spencer v ACT [2007] NSWSC 303, [25]; 271 William Street Pty Ltd v City of Melbourne (1975) 31 LGRA 189; North Sydney Municipal Council v Allen Commercial Constructions Pty Ltd (1969) 18 LGRA 1 at 6 (affirmed in Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council  (1970) 123 CLR 490); Hall and Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 All ER 1.

    [5]    Spencer v ACT [2007] NSWSC 303, [29]; Durham Holdings Pty Ltd v State of New South Wales (2001) 205 CLR 399.

    The land acquisition issue

14. When Mr Tavitian purchased the Shaftesbury Road land in August 1988, it was subject to the planning restrictions imposed under the Planning Act. It became subject to the requirements of the Development Act from 1 January 1994.

15. Playford submits that, if there ever was a relevant acquisition of an interest in the Shaftesbury Road land by reason of the operation of the Planning and Development Act, the Planning Act or the Development Act, then it was an acquisition from Ms Savva, the previous registered proprietor of the land. For reasons which I will shortly give, the Development Act does not in any way involve an acquisition of an interest in land for the purposes of the Acquisition Act and there is therefore no need to consider whether statutory planning restrictions operate in derogation from the title that is conveyed by a vendor of land to a purchaser.

16. Development plans are made and amended in accordance with the procedures set out in Division 1 of Part 3 of the Development Act. A Development Plan may be made or amended at the initiation of a Council or by the Minister. In either case, the amendment or plan is ultimately made by the Minister through the publication of his approval in the Government Gazette.[6]  Plainly enough, in making or amending a Development Plan which imposes restrictions on land use, neither the Minister nor the relevant Council acquires a right to do anything on the land.

    [6]    Development Act 1993 (SA) ss 25-26.

17. I accept that the right to store on land such materials as the owner of that land sees fit is a right, power or privilege affecting the land.  Easements and encumbrances may restrict the right of a registered proprietor of a fee simple to build and maintain structures, or to keep goods, on that land as he or she sees fit.  The legal effect of such easements or encumbrances is to confer on the registered proprietor of the dominant tenement a power or privilege over, affecting, or in connection with the land of the subservient tenement.

18. Easements are recognised as a legal interest in relation to both the benefitted and burdened land.[7]   Positive easements are commonly given for such services as access, drainage, utility connections and the like.  Negative easements generally entitle an adjoining land owner to prevent a neighbour from engaging in particular acts.  Common negative easements are those associated with light, air and lateral support.  Broader restrictive covenants have received statutory recognition, in varying degrees, under the Torrens system legislation of the States.[8]  A restrictive covenant is a promise between parties in which one land holder agrees to restrict the use to which he or she puts his or her land in order to enhance the uses which may be made of other land.

    [7]    Commissioner for Main Roads (NSW) v North Shore Gas Co Ltd (1967) 120 CLR 118 and Harada v Registrar of Titles (Vic) [1981] VR 743.

    [8]    LexisNexis, Halsbury’s Laws of Australia [28.14.10].

19. A right, power or privilege over land is broader than a legal or equitable interest in land but it must still be a “jura in re aliena proprietary or quasi proprietary right”.[9] Nonetheless it can be accepted that the right, power or privilege of a registered proprietor to exercise one or more of the bundle of rights comprised in an estate in land, such as those granted and acquired by easements or restrictive covenants, are interests in land for the purposes of the Acquisition Act.

    [9]    Hornsby Council v Roads and Traffic Authority (NSW) (1997) 41 NSWLR 151 at 155 per Meagher JA.

1. The observations of Rich J in Minister of State for the Army v Dalziel[10] are apposite:

   Property, in relation to land, is a bundle of rights exercisable with respect to the land.  The tenant of an unencumbered estate in fee simple in possession has the largest possible bundle.  But there is nothing in the placitum to suggest that the legislature was intended to be at liberty to free itself from the restrictive provisions of the placitum by taking care to see something short of a whole bundle owned by the person whom it was expropriating.  Possession vout titre in more senses than one.  Not only is a right of possession a right of property, but where the object of proprietary rights is a tangible thing, it is the most characteristic and essential of those rights.

   [10] (1944) 68 CLR 261 at 285 per Rich J.

2. A Development Plan, like an easement or other covenant, also restricts the rights, powers or privileges of a registered owner in interests in land within the area it regulates.  An easement or other covenant does so as a consequence of a right, power or privilege granted to a third party but a Development Plan does not grant private rights.

3. The interest, power or privilege which Mr Tavitian claims has been acquired is his power to keep such possessions on his land as he sees fit. Playford contends that an interest so defined lacks the certainty required for the identification of an interest in land. However, Mr Tavitian’s particular challenge is to that part of the Development Plan that prohibits him from maintaining a scrap yard. In my view, the power and privilege, if so defined, is sufficiently certain to be the subject of a negative easement or restrictive covenant. It is capable of constituting an interest in land for the purposes of the Acquisition Act.

4. Be that as it may, for there to be an acquisition under the Acquisition Act, it is essential that an acquirer obtain an interest in land. In the Tasmanian Dam Case Mason J (as he then was) explained:[11]

   In terms of its potential for use, the property is sterilized, in much the same way as a park which is dedicated to public purposes or vested in trustees for public purposes, subject, of course, to such use or development as may attract the consent of the Minister.  In this sense, the property is 'dedicated' or devoted to uses, i.e., protection and conservation which, by virtue of Australia's adoption of the Convention and the legislation, have become purposes of the Commonwealth.  However, what is important in the present context is that neither the Commonwealth nor anyone else acquires by virtue of the legislation a proprietary interest of any kind in the property.  The power of the Minister to refuse consent under the section is merely a power of veto.  He cannot positively authorize the doing of acts on the property.  As the State remains in all respects the owner the consent of the Minister does not overcome or override an absence of consent by the State in its capacity as owner.

   [11] (1983) 158 CLR 1 at 145-146.

5. In Mutual Pools & Staff Pty Ltd v The Commonwealth[12] Deane and Gaudron JJ said:

   Nonetheless, the fact remains that s 51(xxxi) is directed to 'acquisition' as distinct from deprivation.  The extinguishment, modification or deprivation of rights in relation to property does not of itself constitute an acquisition of property.  For there to be an 'acquisition of property', there must be an obtaining of at least some identifiable benefit or advantage relating to the ownership or use of property.  On the other hand, it is possible to envisage circumstances in which an extinguishment, modification or deprivation of the proprietary rights of one person would involve an acquisition of property by another by reason of some identifiable and measurable countervailing benefit or advantage accruing to that other person as a result.

   (footnotes omitted)

   [12] (1994) 179 CLR 155 at 185.

6. In JT International SA v Commonwealth French CJ explained that acquisition “involves receipt of something seen from the perspective of the acquirer” and is something more than the mere extinguishment of rights:[13]

   Taking involves deprivation of property seen from the perspective of its owner.  Acquisition involves receipt of something seen from the perspective of the acquirer.  Acquisition is therefore not made out by mere extinguishment of rights.  In an observation quoted and approved by the majority in Australian Tape Manufacturers Association Ltd v The Commonwealth, Mason J said in the Tasmanian Dam case:

   To bring the constitutional provision into play it is not enough that legislation adversely affects or terminates a pre-existing right that an owner enjoys in relation to his property; there must be an acquisition whereby the Commonwealth or another acquires an interest in property, however slight or insubstantial it may be."

   Importantly, the interest or benefit accruing to the Commonwealth or another person must be proprietary in character.  On no view can it be said that the Commonwealth as a polity or by any authority or instrumentality, has acquired any benefit of a proprietary character by reason of the operation of the TPP Act on the plaintiffs' property rights.  In this respect I agree with the reasons of Gummow J and the reasons of Hayne and Bell JJ.

   (footnotes omitted)

   [13]   JT International SA v Commonwealth (2012) 86 ALJR 1297, [42].

7. In no sense has the Development Plan’s abrogation of some of Mr Tavitian’s rights as a holder of the fee simple resulted in the acquisition of a correlative right or power by either Playford or the Minister. They are not landholders who in any way benefit from Mr Tavitian’s loss.  Moreover, the regulation of land use by a Development Plan operates in a coherent way so that the various restrictions on all land within the area to which it applies optimise the use of all other land falling within that area.  The land controls imposed by a Development Plan impose and confer common burdens and benefits on all land holders.[14]

   [14]   British Medical Association v Commonwealth (1949) 79 CLR 201 at 270-271 per Dixon J; Commonwealth v Tasmanian (Tasmanian Dam case) (1983) 158 CLR 1 at 145-146 per Mason J, at 181-182 per Murphy J, at 247-248 per Brennan J, at 283 per Deane J; Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480 at 528 per Dawson and Toohey JJ.

8. The detailed scheme for making Development Plans leaves no room for the procedures required by the Acquisition Act. If Development Plans were to be treated as effecting acquisitions of interest, the transfers of interests would be from each holder of an interest in land within the area of the Development Plan to all other holders of interests in land within the area benefitted by the controls. Plainly the private owners of interests in land are not authorities for the purpose of the Acquisition Act. Moreover, it is absurd to suppose that Parliament intended to burden the public purse with the cost of compensating landholders for the restrictions on land use imposed by the Development Act when, as a whole, the regulation of land use optimises the use of all land for the benefit of all landholders within the area benefitted by the controls. It would be an impossible task to weigh the loss to an individual landowner arising from the burdens imposed by a Development Plan against the benefits accruing to the land from the restrictions imposed on other land within the area regulated by it.

9. Mr Tavitian relies on several particular provisions of the Development Act and the Acquisition Act to overcome the difficulty in identifying an acquirer of an interest in his land. Mr Tavitian contends that those provisions manifest a statutory intention to treat the restrictions on land use as an acquisition for the purpose of the Acquisition Act. For the reasons which follow, Mr Tavitian’s reliance on those provisions is misplaced.

10. First Mr Tavitian relies on s 78 of the Development Act. That provision authorises the Minister to make a compulsory acquisition of land, subject to the provisions of the Acquisition Act. The existence of that power which is exercisable independently of the making of a Development Plan and which is expressly made subject to the Acquisition Act strongly contraindicates the construction for which Mr Tavitian contends. When the Acquisition Act and the Development Act are read together, it is plain that Development Plan controls were not intended to constitute an acquisition for the purposes of the Acquisition Act.

11. Mr Tavitian also relies on ss 190 and 191 of the Local Government Act 1999 (SA) (the LG Act). Section 190 provides that a Council may acquire land by agreement. Section 191 provides that a Council may, with the Minister’s written approval, acquire land compulsorily. Section 191(2) provides that Ministerial approval is not required for compulsory acquisitions of land for purposes prescribed by the regulations. Section 191(3) applies the Acquisition Act to acquisitions made pursuant to the LG Act.

12. Section 191 of the LG Act on its own terms applies to acquisitions and, for the reasons given earlier, limitations on the use of land made for planning purposes are in no relevant sense an acquisition. Even if Development Plans effected an acquisition, they are made by the Minister and not by Councils. It follows that s 191 of the LG Act is not engaged.

    Width of the orders

13. Mr Tavitian’s complaint on this ground is that Order 2 (the removal order) extends to the removal of individual items that might be kept on a house property without changing the use of the property from a residential one. Aside from what is or is not encompassed in the concept of a change of use from residential use, regulation 7 of and clause 5 of Schedule 3 to the Development Regulations 2008 (SA) (the Development Regulations) exclude from the definition of development:

    1.a use reasonably incidental to the use of land and lawfully-erected buildings for the substantial benefit of the occupants or other users;[15]

    2.a use of residential land for a home activity, namely use by a resident not detrimentally affecting the amenity of the locality and not requiring extensive use as defined by five criteria specified in the Development Regulations.[16]

    [15]   Development Regulations 2008 (SA) reg 7 and Schedule 3 clause 5(1).

    [16]   Development Regulations 2008 (SA) reg 7 and Schedule 3 clause 5(2)(a) and definition of “home activity” in Schedule 1.

14. The removal order in terms requires, subject to defined exceptions, the removal of all items, goods and materials stored on the Shaftesbury Road land. Mr Tavitian contends that the removal order commands the removal of items that, when considered in isolation, could be kept in the yard of domestic premises consistently with their residential use or under clause 5(1) or clause 5(2)(a) of Schedule 3 of the Development Regulations. For example, the removal order commands removal of a wheelbarrow or a garden gnome even though such items are commonly kept outside at residential premises and are ordinarily regarded as reasonably incidental to the use of residential premises. On the other hand, storing numerous wheelbarrows or wrecked wheelbarrows would not ordinarily be regarded as reasonably incidental to the residential use of premises.

15. Clause 5(2)(b) to (d) of Schedule 3 to the Development Regulations excludes four specific types of use from the definition of development involving electricity supply, domestic live-stock keeping, light vehicle parking and parking by the occupant of a caravan or motor home. The Judge attempted to cater for the vehicle and caravan or motor home exceptions by the exemption contained in paragraph 2.4 of the removal order, although that paragraph departs from the definition of the exclusions contained in clause 5(2)(d) and (e) of the Development Regulations.

16. The Judge attempted to define what is reasonably incidental to the residential use of the land or comprised in carrying on a home activity by the other 10 exemptions contained in the removal order.  However, it is not possible for a limited number of specific exemptions of the type crafted by the Judge to encompass all uses that are reasonably incidental to residential use.  In addition, many of the exemptions to the removal order are conditioned on the exempted items belonging to a person ordinarily resident on the Shaftesbury Road land.  It is commonplace for householders to allow others, for example, friends or relatives, to leave some items of property on their land.  To that extent too, the order requires Mr Tavitian to remove from the yard of the Shaftesbury Road land items of property that in the ordinary course could be kept there without changing its use from a residential one.

    Power to make the order

17. It does not follow that the removal order is invalid merely because it prohibits uses by Mr Tavitian that, considered in isolation, would fall within the residential use of the Shaftesbury Road land. Mr Tavitian’s contention to that effect fails to give full meaning and effect to the power conferred on the Court by s 85(1) and (6)(d) of the Development Act.

18. Section 85(1) confers on the Court a power to make an order to remedy a breach of the Development Act and s 85(6)(d) empowers the Court to require the respondent to make good the breach in a manner and within a period specified by the Court or to take such other action as may appear appropriate to the Court. Mr Tavitian’s use of the Shaftesbury Road land breaches the Development Act because the combined storage of all of the material currently in the yard has resulted in its use as a scrap yard. It is the collective nature, quantity, volume, condition and location of that material that results in the premises being used as a scrap yard as opposed to residential use. It would be an impossible task to define individually what materials in what condition, number, volume and location could be kept at the premises as part of residential use and without it continuing to be used as a scrap yard.

19. If the removal order is reasonably appropriate and adapted to remedying the present use of the Shaftesbury Road land as a scrap yard and to restraining such use in the future, it is within power even though it prohibits some activity falling within the permitted residential use. It would not be to the point that some of the items that, in combination with other items, have turned the premises into a scrap yard might individually have been kept on the property consistently with the Development Plan. An order remedying a breach must be expressed with sufficient certainty to allow for its compliance and enforcement. An order that simply required Mr Tavitian to change the use of the land back to residential purposes would be both uncertain and unhelpful. An order requiring the removal of all of the items that, in combination, have resulted in a breach of the Development Act is capable of being authorised by s 85(6)(d) of the Development Act.

20. The relevant question is whether the removal order as crafted by the Judge is reasonably appropriate and adapted to remedying the present use of the Shaftesbury Road land as a scrap yard.  At the invitation of the Court, the respondent provided written submissions on the width of the removal order and proposed the following order as an alternative:

    2By no later than [insert date] (and if completed earlier then continuing until the said date)[17] the respondent, David Tavitian must make good the breach of the Development Act found to exist, namely, use of the land at 14 Shaftesbury Road, Elizabeth Vale for the storage of scrap materials (including junk materials), by either:

    (a)     removing from the land; or

    (b)     storing wholly within a building existing upon the land,

    All materials (including items, goods and vehicles) stored on the land except for:

    (i)    any materials already stored wholly within a building existing upon the land;

    (ii)     any plant pot in reasonable repair which contains a living plant; and

    (iii)    three “wheelie bins” comprising one used for domestic rubbish, one used for recyclables, and one used for green waste.

    [17]   This affords the Council a certain date upon which to inspect the land, namely, the nominated date for compliance with the Order.

21. Because of the large quantity of material presently located at the Shaftesbury Road land and the almost infinite permutations of combinations of items, some of which would be encompassed within residential use and others of which would be encompassed in use as a scrap yard, the only viable alternative form of order to the order made by the Judge would be dependent upon reasonable co-operation between the parties in defining specific items which Mr Tavitian wishes to retain and which in combination are incidental to residential use.  It is appropriate to afford to Mr Tavitian an opportunity to attend at the premises with a Council officer for Mr Tavitian to nominate specific items which he seeks to retain and which it might be accepted in combination are incidental to residential use.  In that event, it would be appropriate to vary the removal order to adopt a form of order based upon the alternative order proposed by the Council but incorporating specific items in the exemptions based on the outcome of the co-operative process between Mr Tavitian and the Council.  However, if that cannot be achieved, there is no practical alternative to a form of order along the lines of that crafted by the Judge. 

    Conclusion

22. I would give to the parties an opportunity to co-operate in crafting a list of specific exemptions to the removal order on the basis that collectively the exemptions involve a use of the land as residential.  I would otherwise dismiss the appeal.  I would hear the parties as to costs.

    BLUE J:        I agree.

    STANLEY J:        I agree.