The Opal Inn P/L v DC of Coober Pedy & Anor No. Scciv-00-941

THE OPAL INN PTY LTD v DISTRICT COUNCIL OF COOBER PEDY & STONEYMEDE PTY LTD
[2001] SASC 190
Full Court: Prior, Debelle & Wicks JJ

PRIOR J. I agree with the reasons prepared by Justice Debelle. The appeal should be allowed only for the purpose he proposes, the parties being heard as to the terms of the conditions to be added to the orders made by the Environment Court, as varied by the first order now proposed by Debelle J.
DEBELLE J. This is an appeal from the Environment Resources and Development Court.
The appellant, The Opal Inn Pty Ltd (“Opal Inn”), appealed to the Environment Resources and Development Court (“the Environment Court”) against a decision of the District Council of Coober Pedy (“the Council”) granting provisional development plan consent to the respondent, Stoneymede Pty Ltd (“Stoneymede”), to develop an underground motel complex at Coober Pedy. The Environment Court dismissed the appeal and upheld the Council’s decision but substituted different conditions in place of those imposed by the Council. Opal Inn appeals from that decision to this Court.
Opal Inn has a right to appeal to this Court from the Environment Court on questions of law but may appeal by leave only on questions of fact: s 30(2) of the Environment and Resources Development Court Act 1993. Opal Inn has not applied for leave to appeal on questions of fact. This appeal, therefore, is limited to questions of law.
The Proposed Development
The proposed motel is to be located in the Mixed Use 1 Zone as prescribed by the Development Plan which applies to Coober Pedy. It will be about a quarter of a mile from the main street of Coober Pedy.
The land is not flat. Part of the land has a fairly substantial cliff face ranging from 7 to 10 metres in height. The land was first used for mining and that resulted in a number of tunnels in the land. Later, further tunnels were made so that, at present, a portion of the cliff face has been extensively tunnelled. It is intended to incorporate the existing tunnelling into the proposed motel. The construction of the motel will require further tunnelling.
The proposed development will comprise:
·A motel comprising a reception and foyer, office, 48 underground bedrooms, bar facilities, a dining room, kitchen, laundry and storage facilities.
· Three shops.
· One underground residence to accommodate the hotel manager and family.
·An external forecourt area containing six car parking spaces, a space for parking a bus, and space for manoeuvring vehicles. In addition, there are facilities for storage or removal of refuse. This area also includes a swimming pool.
·A car park at an upper level over the bulk of the motel rooms which will provide spaces for 102 cars.
·A ramp six metres wide connecting the upper car park and the lower forecourt area. A pedestrian ramp is also to be provided alongside the car ramp.
Structural Safety
The first and second grounds of appeal involve the same issue, namely, soil stability and structural safety.
Two provisions of the Development Plan which apply to Coober Pedy concern soil stability and structural safety. Both are principles of development control. The first is Principle 7 of the policies for the Far North of South Australia. It provides:
“Land for development (including land division) should be suitable for the proposed use. Factors to be taken into account should include: location, affects on amenity, slope, stability, erosion, drainage, flood hazard, size and shape of allotment(s), mode of land division, adequacy of roads, access to roads, water supply, disposal of effluent, provision of service easements, use of adjoining land, subsequent development, future development of adjoining land, timing of development and likely damage to significant natural or man-made features.”
The second is Principle 6 of the principles of development control which apply generally to Coober Pedy. It reads:
“Building development should be located and take place with reasonable and effective precautions against the risk of damage and the possibility of ground instability.”
A central issue on the hearing in the Environment Court was whether, because of the nature of the ground on which the motel was to be constructed, the motel would be structurally sound. It was contended by Opal Inn that the proposed motel was not located in ground which was sufficiently stable to permit the construction to proceed in accordance with the proposed plans.
Evidence concerning this issue was given on behalf of Opal Inn by Mr Pocius, an engineer. The evidence was designed to show that the proposed motel could not be constructed to an adequate standard of safety. The Council and Stoneymede both objected to this evidence. The Environment Court admitted the evidence for the limited purpose of determining whether the question of structural safety would require a substantial variation to the plans of the proposed motel. The effect of the court’s ruling was that, if the question of structural safety required a substantial variation of the plans, that variation might be relevant to the question whether development consent should be issued. In the result, however, the Environment Court held that structural safety was a matter which more properly should be assessed under the Building Rules when Stoneymede applied for provisional building rules consent.
Opal Inn contends that the Environment Court erred in law in its interpretation of the provisions of the Development Plan by concluding that matters of structural safety and soundness are not matters which can properly be taken into account when determining whether the development warrants provisional development plan consent. It is also contended that the Environment Court erred in failing to pursue the question of the extent to which the procedures adopted by the Council complied with the requirements of Part 4 of the Development Act 1993. In order to understand these issues it is necessary to examine the provisions of Part 4 of the Development Act.
Obtaining Development Approval
Section 32 of the Development Act provides that no development may be undertaken unless the development is an approved development. Thus, those who propose to undertake development must obtain approval to do so. Part 4 of the Act sets out the steps by which development approval is to be obtained. A development which involves building work requires the developer to obtain three approvals. They are :
1.     Provisional development plan consent. This consent will be issued by the relevant planning authority after it has assessed the development against the provisions of the appropriate Development Plan: s 33(1)(a) of the Development Act.
2.     Provisional building rules consent. This consent will be issued after the relevant authority has assessed the development against the provisions of the Building Rules: s 33 of the Development Act. The Building Rules relate to the structural strength of the building and other issues.
3.     Development approval. A development will be taken to be an approved development when all relevant consents have been granted and the relevant planning authority has, in accordance with the Development Act, indicated that the development is approved: s 33(4) of the Development Act. Thus, development approval for a building cannot be obtained unless both provisional development plan consent and provisional building rules consent have been granted.
Section 34 of the Development Act prescribes who will be the relevant planning authority.
When must Principle 6 be Applied?
This appeal concerns a grant of provisional development plan consent. The question whether that consent should have been issued requires an assessment of the proposed motel against the provisions of the Coober Pedy Development Plan. Shortly stated, it involves an examination of the relevant planning issues. By contrast, the question whether provisional building rules consent should be issued will turn on an assessment of the proposed building against the Building Rules. In the course of that assessment, questions concerning the structural safety and soundness of the building will be determined. In other words, one consent is concerned with planning issues and the other with building and construction issues. That much is common ground. The issue in this appeal is whether the Environment Court erred in deciding that issues arising under Principle 6 need not be determined until Stoneymede applied for provisional building rules consent.
The Environment Court expressed its reasons in these terms:
“Put another way, provisional development plan consent relates to the appropriateness, in planning terms, of the land use proposed, whilst provisional building rules consent relates to the adequacy and the structural soundness and safety of both the building itself and its component parts.
In our view, the Development Act envisages that, when a development is being assessed for the purpose of determining whether it should be granted either provisional development plan or provisional building rules consent, the assessment of the development will relate directly to the consent under consideration. When the question is whether a proposed development should be granted provisional development plan consent, only matters relevant to that consent should be considered. A development which warrants provisional development plan consent should not be refused that consent on the basis that it may fail to meet one or more of the criteria applicable to its assessment for building rules consent. Matters which fall for consideration under the Building Rules have no relevance to the assessment of whether a development should be granted provisional development plan consent. Although the two fields of inquiry to which we have referred are separate and distinct, we acknowledge that there may, in some cases, be areas of grey in which there may be difficulty in determining into which field of inquiry a particular matter falls. It is not inconceivable that it may fall into both. This is particularly so if the development plan contains provisions relating to matters falling within the Building Rules: see, for example, Principle 6 of the Council wide provisions of the Coober Pedy Development Plan which provides:-
‘6 Building development should be located and take place with reasonable and effective precautions against the risk of damage and the possibility of ground instability’.
However, even where provisions such as this occur, the essential thrust of the Development Act remains the same - the provisions of the Development Plan cannot be applied in such a way as to bring within the assessment for provisional development plan consent matters which properly fall for consideration under the Building Rules.”
A little later, the Environment Court added that structural safety and soundness were matters which fell for assessment under the Building Rules and should not be taken into account when determining whether development plan consent should issue.
Mr Hayes QC, who appeared for Opal Inn, contended that, although as a general rule the issues involved in granting development plan consent were different from those in granting building rules consent, that was not so in this case because of Principle 6. In this case, he said, the manner of construction raised issues as to ground stability so that the court had erred in concluding that structural safety and soundness are matters which do not fall for assessment when granting development plan consent. In developing this argument, Mr Hayes criticised the practice of the Council when determining whether to grant building rules consent to developments to be constructed underground as failing to accord with the requirements of Part 4 of the Development Act. Before dealing with these arguments, I examine the evidence.
Mr Pocius had prepared a written report in which he had stated that the proposed motel would involve an excavation which is substantially larger in area than other commercial developments in Coober Pedy. He said that the nature of the ground was quite variable and a significant departure from the intended excavation would, in all likelihood, be required to accommodate bad ground. In the result, Stoneymede would not be able to achieve its intended layout and a substantial variation to the plan would be required. Thus, he said, there were serious structural problems with the proposed motel development and it was unlikely that it could be built as intended. In his view, the risk of soil instability was not acceptable in the case of a commercial development of this kind to be occupied by members of the public. He recommended investigation by a geotechnical engineer to provide guidance as to the reasonable levels of excavation and alternative measures to be used if unsuitable ground is encountered. He said that four to six bore holes would provide a reasonable indication of where excavation could occur and to what extent. The cost of the bore holes, he said, would be in the order of $5,000 to $10,000.
Mr Pocius did not dispute that the ground is suitable for excavation. His concern was directed to the size of the excavation. He said that there was sufficient evidence to suggest that instability of the ground would substantially reduce the number of bedrooms in the proposed motel to about 25. He conceded that he did not know that that would occur. Later, he admitted that he was guessing how many rooms could be achieved. Mr Pocius had not conducted any tests to determine the position. He said that wider walls would be required between bedrooms in order to support the excavations with a consequent decrease in the number of bedrooms. To summarise, where he identified areas of concern, Mr Pocius was not prepared to state that the proposal could not proceed as planned or in a modified manner.
Mr Riches, who was the Council’s building surveyor, gave evidence that, even if core samples are taken by vertical drilling, there is still uncertainty about the nature of the ground in which the excavation will occur. In his view, it is impossible to know exactly what the nature of the ground will be until tunnelling has been conducted and the ground examined. Thus, even if a geotechnical survey were to be undertaken, tunnelling may have to deviate from plans in order to find stable ground. It was for this reason that the Council’s practice is to impose a condition that permits tunnelling to be undertaken for the purpose of locating stable ground. When granting provisional development plan consent to Stoneymede, a condition to that effect had been imposed. It was condition 11 which read:
“Prior to the commencement of any development consent other than excavation of the subject land, provisional Building Rules consent and development approval must be obtained from the Council.” (Emphasis added.)
The Council requires a suitably qualified person to report on the nature of the ground and that is to be done before provisional building rules consent and development approval is granted. The tunnelling may disclose that structural support is necessary, that a variation of the proposal is required, or that the proposal may have to be abandoned. Sometimes it is a consequence of the procedure that most of the tunnelling work is completed before building rules consent and the development approval is issued.
That was the evidence against which the Environment Court reached the following conclusions:
“· The Building Rules do not specify any objective standards or specifications against which dugouts, be they for dwellings, churches, motels or some other accommodation, can be assessed. The structural safety or soundness of such developments (we hesitate to call them ‘buildings’) depends upon a number of things, one of which is the nature of the rock (or, in the local vernacular, the ‘ground’) into which they are placed.
·With respect to many developments, the nature of ‘the ground’ may be unknown prior to the commencement of digging. Although, as with the land the subject of this appeal, earlier tunnelling (including air shafts) may give some indication of whether one is in good or bad ground, the element of the unknown nevertheless looms large.
·We accept the evidence of Mr Pocius that the drilling of bore holes from the surface and the removal and proper testing of a core sample will do much to reduce the element of the unknown, although it is unlikely to totally eliminate it. However, we also accept the evidence of Mr Riches and Mr Falting to the effect that, by and large, local developers do not pursue such a course. Having gained provisional development plan consent, it is the practice of local developers to proceed with the development by undertaking the necessary tunnelling. If, perchance, they run into bad ground, they simply avoid it. In many cases, such avoidance will involve a departure, to a greater or lesser extent, from the plans with respect to which development plan consent has issued. The more bad ground they strike the greater presumably, will be the extent of such departures. If too much bad ground is struck, the venture may have to be abandoned.
·Once the tunnelling has been completed, a geotechnical survey of the rock thus exposed is undertaken by an appropriately qualified person at the behest of the Council Building Surveyor, in this case, Mr Riches. It is at that stage that the structural soundness of the proposed development is assessed for the purpose of the Building Rules. Building rules consent will either be granted or refused. If granted, development approval generally follows and the project is completed. If such approval is not given - well it is not: such is the risk that the developer takes.
·The consequence of such procedures may be that the layout of the resulting tunnels and other voids will be different - perhaps significantly different - from the plans approved for provisional development plan consent purposes. Where this occurs - and we were advised that it often does to some extent - the developer simply files an amended plan as part of the building rules consent application and the matter proceeds from there. We gained, from Mr Riches, the impression that this is the way that underground development commonly proceeds in Coober Pedy.
·We see little purpose, in these proceedings, of pursuing the question of the extent to which such procedures comply with the requirements of Part 4 of the Development Act.
·The practical effect of all of this is that it may not be possible for Stoneymede to construct the proposed motel fully in accord with the plans approved by the District Council. Indeed, the overwhelming probability is that there will be some deviation. The extent of the deviation is difficult, if not impossible, to foresee. If the extent of the variation is such that ‘the essential nature of the proposed development is not changed’, as those words are used in subsection 39(4)(a) of the Act, it is open to the Council to accept a variation of the approved plan at the building rules stage, whereas should the extent of the deviation extend beyond this, it may be necessary for Stoneymede to commence the development approval process afresh.
·Whilst the evidence of Mr Pocius satisfies us that it may have been prudent for Stoneymede to have undertaken a surface core drilling programme prior to preparing the plans of the motel, the most that can be said of such a programme is that it may reduce the extent of deviation from the approved plans rather than prevent it. This is especially so in this case, given that the extent of tunnelling already undertaken on the subject land - including a substantial air shaft of nearly two metres in width - gives some indication of the nature of the ground in which the motel is proposed. However, at the end of the day, the question of whether a core drilling programme should have been undertaken does not determine the extent of any deviation from the approved plans which may be found to be necessary once tunnelling commences.
·The evidence of Mr Pocius and Mr Riches was admitted for the purpose of determining whether the construction of the motel is likely to result in changes to the approved plans which will have planning ramifications. Whilst the evidence of Mr Pocius satisfies us that there is a possibility that such changes will be necessary, we have come to the conclusion that it is unlikely that such changes as will probably be necessary are unlikely to be changes having planning ramifications. Given that the kitchen, reception and office area has already been excavated, the most likely consequence of any change will be a reduction in the number of motel bedrooms, which reduction, unless it is substantial, is unlikely to have planning ramifications.
·For these reasons, the evidence relating to the structural safety of the proposed motel, the impact of the discovery of ‘bad ground’ and what preliminary steps should be taken to ascertain the extent of such ground are not matters relevant to the granting or refusal of provisional development plan consent. They are thus not relevant to these proceedings.”
Those conclusions are fairly open on the evidence. They were not challenged. There is no cause to depart from them. All that was challenged was the Environment Court’s method of dealing with Principle 6.

It is apparent from that part of the reasons of the Environment Court first quoted above, that the court was aware of Principle 6. It is apparent also from the rest of its reasons that the court took the view that a development underground at Coober Pedy presents its own idiosyncratic difficulties in determining issues such as that which are presented by Principle 6. The court has taken the view that, in this case, the most appropriate means of proceeding is to grant provisional development plan consent and require questions of soil stability and structural safety to be addressed when the Council is considering whether to grant provisional building rules consent. In reaching that conclusion, it has relied on the evidence of Messrs Pocius and Riches. In effect, the Environment Court approached the issue in much the same way as the Council. All that is missing is a condition on the grant of development plan consent in the same or like terms to condition 11 which had been imposed by the Council. That is a significant omission. But as the omission is capable of being readily cured, I do not think the decision of the court should be overturned. Instead, all that is necessary is to impose a condition in the same or similar terms to condition 11.
The effect of Mr Hayes’ argument was that Principle 6 could only be addressed by requiring a developer to proceed in the way suggested by Mr Pocius before any grant of development plan consent could issue. I do not agree. Given the somewhat unusual nature of the proposed construction and the particular difficulties which exist at Coober Pedy, it is appropriate to address the issues raised by Principle 6 by a condition which requires issues of soil stability and structural safety to be addressed when considering the grant of provisional building rules consent. In reaching this conclusion, I do not in any sense qualify what this Court has repeatedly said about the care which must be exercised when imposing conditions and the warnings against trying to render a proposed development compatible with the amenity or with a development plan by a series of conditions: see Remove All Rubbish Pty Ltd v City of Salisbury (1989) 51 SASR 26 at 34 and SA Housing Trust v Lee (1993) 81 LGERA 378 at 390; Kipa Freeholds Pty Ltd v Development Assessment Commission (1999) 101 LGERA 414 at 422 – 424. It is only when it has been decided that a proposed development is compatible with the relevant provisions of the Development Plan and the orderly and proper planning of the locality that a planning authority should consider the question whether conditions should be imposed: Beer v South Australian Planning Commission (1998) 142 LSJS 20 at 25 and, on appeal, (1998) 145 LSJS 284 at 289 – 290. In this case, it is apparent that the Environment Court has decided that the proposed development is compatible with the relevant provisions of the Development Plan and believes that it is sufficient if the issues raised by Principle 6 are considered when Stoneymede applies for provisional building rules consent. There is no reason why it should not adopt that approach. It is an approach which recognises that in some instances, I suspect very few, there will be special or exceptional circumstances in which it is proper to address an issue arising under a Development Plan when deciding whether provisional building rules consent should be granted. This conclusion is reinforced by the terms in which Principle 6 is expressed. Although Principle 6 has not been carefully drafted and its intention is not entirely clear, I think it can be said that one of its purposes is to ensure that reasonable and effective precautions are taken against the risk of ground instability. The question of how to address the risk of ground instability is a matter more appropriate to be considered when granting provisional building rules consent. The fact of the matter is that it would not be possible to determine what was required to ensure structural safety until the tunnels had been dug. The adequacy of Stoneymede’s proposals to ensure structural safety could not be determined at any earlier stage. It would have been futile for the Environment Court to examine the issue.
It is implicit in the reasons of the Environment Court that it has accepted the evidence of Mr Riches that the taking of several samples from core drilling as suggested by Mr Pocius will not rule out the existence of “bad ground”. Thus, some deviation in the tunnelling may be necessary or, alternatively, some structural support provided. That only serves to underline the commonsense in addressing the issue of structural safety when considering whether to grant provisional building rules consent. Furthermore, this was not a case where it was known that the ground was so unsuitable that the development could not proceed. Instead, it was a case where there was evidence to the effect that serious concerns existed whether the motel could be constructed as proposed without causing the ground to fall in. However, the evidence did not go so far as to assert that the development could not be safely constructed.
It is apparent also that the Environment Court was satisfied, after hearing the evidence, that even if issues of structural safety required an amendment to the proposal, the amendment would not be so significant as to change the essential nature of the proposal.
In support of his submission, Mr Hayes QC relied on the decision of Wells J in District Council of Clare v Hallett (1984) 53 LGRA 103 where the issue was whether the Planning Appeal Tribunal had erred in holding that approval for a piggery could be approved without the Tribunal examining proposed arrangements for disposal of effluent. Holding that the Tribunal had erred and that it should have examined the proposed method of disposing of effluent, Wells J said at 107:
“Either the proposal is, finally and unequivocally, satisfactory and should receive consent, or (it may be) consent subject to specified lawful conditions; or consent should be refused. If one feature of the proposal has not been shown to be satisfactorily met, the tribunal cannot, in my opinion, give an absolute consent, and simply intimate that the applicant for consent is expected to desist from the approved use if he fails to make good the unsatisfactory feature. There must be an absolute consent, or a consent to which are annexed specified conditions; there cannot be an amorphous tertium quid.”
However, that is a decision where the disposal of effluent was integral to the development and the issue would not be examined when building consent was granted. By contrast, in this case, the question of structural safety will be examined when building consent will be granted. For that reason, the decision has no present application.
It is unnecessary to consider the implications of Principle 7 since it is reflected in Principle 6. No separate argument was adduced in relation to it.
Grounds one and two of the appeal must therefore fail.
The Council’s Practice
In the course of his argument, Mr Hayes QC questioned whether, in permitting tunnelling to occur prior to the grant of building rules consent, the Council was acting in accordance with the procedures prescribed in Part 4 of the Development Act. Since the Council expressly permitted tunnelling as a term of the grant of development plan consent but required the developer to obtain building rules consent, there is no departure from the requirements of Part 4. The Council had to include condition 11 in the grant of provisional development plan consent to enable the tunnelling lawfully to be undertaken. If it did not, a developer who caused tunnels to be dug before obtaining provisional building rules consent would be undertaking development as defined by the Act without a grant of development consent and thus, he would be acting in breach of s 32 of the Development Act. Questions might exist as to the wisdom of permitting exploratory tunnels of this kind. However, that is an environmental issue and not a matter of law. Furthermore, the wisdom of the practice lies entirely outside the issues in this appeal, if not also outside the court’s jurisdiction to deal with matters under the Development Act.
A Suitable Use in this Zone?
The third ground of appeal concerns the Environment Court’s interpretation of the Coober Pedy Development Plan. The court held that tourist accommodation, whatever its scale, is suitable as a generic land use in the Mixed Use 1 Zone. While it acknowledged that the Development Plan clearly stated that the Town Centre Zone is the primary focus for tourist development, the Environment Court considered that other facilities for tourists such as hotels and motels could be located in the Mixed Use 1 Zone to support and supplement such facilities in the town centre. The court concluded this part of its reasoning in these terms:
“Thus tourist accommodation, whatever its scale, is suitable as a generic land use in the Mixed Use Zone as long as it aligns with other provisions of the plan dealing with the impact of development on localities and with site planning matters.”
Opal Inn asserts that, in reaching this conclusion, the court has erred in law in its interpretation of the Development Plan. It is implicit in the submission that this development should have been located in the Town Centre Zone.
Mr Hayes QC submitted that the Development Plan envisages in Objective 1 of the Town Centre Zone that the Town Centre should be the focus for the major commercial or tourism developments. Objective 1 provides:
“The accommodation of the main retail facilities, business, services and cultural, community, entertainment, religious and recreational facilities providing for the needs of the community, including visitors. The principles of development control the kinds of development which may be permitted. It includes motels as well as other kinds of facilities for tourists.”
According to Mr Hayes, as the proposed 48 room motel would be virtually equal to the second biggest motel in the town centre and more than twice the size of the biggest motel outside the town centre, it would detract from the objectives of the Plan to permit this development in the Mixed Use 1 Zone.
The Mixed Use 1 Zone adjoins the Town Centre Zone. The first objective for the Mixed Use 1 Zone states:
“The accommodation of:
(a)    dwellings and associated uses of land in dugouts or above ground.
(b)    offices and other facilities for public administration, public health, education, recreation, resident tourists and other facilities and services for the travelling public; and
(c)    commercial and industrial activities that do not conflict with residential use of land which, in any case, are small in scale.”
The Plan also lists principles of development control. These principles spell out means whereby the objectives might be fulfilled. The first principle for this Zone states that development may be for a number of facilities which serve both local inhabitants and tourists. It is convenient to list them.
Caravan Park  Offices for public administration
Community Centre  Parking Area
Dwelling, including dugout dwelling Petrol Filling Station
Educational Establishment  Pre-school
Hospital  Recreation Area
Hotel  Service Industry
Indoor Recreation Centre  Shop providing primarily local
Motel   convenience services
Nursing Home  Welfare Institution
It will be noticed that the list includes both hotels and motels. Principle of Development Control 2 seeks to promote the purposes of para (a) of Objective 1. It provides:
“Development should provide for a satisfactory standard of residential amenity and preserve the attraction of the zone as a place in which to live.”
The Environment Court considered all of these provisions.
The Environment Court has referred to all of the relevant provisions of the Development Plan. Mr Hayes QC did not point to any which had been overlooked. The court’s conclusion that, although the Plan clearly stated that the Town Centre was the primary focus for tourist development, facilities for tourism such as hotels and motels could be located in this zone was clearly open to it. That is reinforced by the fact that this Mixed Use 1 Zone adjoins the Town Centre Zone and the proposed motel will be only a quarter of a mile from the main street of Coober Pedy. There is nothing in the Plan, nor is there any planning principle, which requires larger motels to be in the Town Centre. Furthermore, the clear intent of Objective 1 and Principle 1 in this Zone is to permit tourist facilities such as motels.
Furthermore, I do not believe that the use of the expression “whatever its scale” indicates any error on the part of the court. At first blush, it appears that the court might have overlooked the requirements of Principle of Development Control 2. However, I think that the second part of the court’s conclusion shows that it has not. The words “as long as it aligns with other provisions of the Plan dealing with the impact of development on localities and the site planning matters” seem to be directed to the terms of Principle of Development Control 2 which requires development to provide for a satisfactory standard of residential amenity and to preserve the attraction of the zone as a place in which to live.
For these reasons, this ground of appeal must fail.
An Amended Proposal
The fourth ground of appeal asserts that the court erred in law in concluding that, if Stoneymede amended the proposal to the satisfaction of a qualified traffic engineer, it would be prepared to approve the proposal. In the course of its examination of the proposal, the court concluded that the proposed development was suitable for the subject land. However, it took the view that a proposed ramp was too steep and it was a necessary consequence for the upper level car park abutting the ramp to be redesigned. The court also considered the arrangement of the forecourt to be unacceptable in the form proposed. It believed that both could be acceptable once they had been redesigned. The court allowed Stoneymede an opportunity to amend its plan. The court said:
“Having regard to the provisions of the Development Plan and the circumstances of the locality, we find that the proposed development is generically suitable and that with 48 rooms (and ancillaries) it is of a size that is suitable on the subject land. However, we also accept Mr Weaver’s view as to the desirability of a 1:8 gradient for the ramp and the consequential redesign of that part of the upper level carpark abutting the ramp. We consider the arrangement of the forecourt unacceptable in its present form. That said, it is obvious that a redesign of the ramp and the forecourt could well make the proposal acceptable in terms of the Development Plan. If the second respondent amends the proposal in these respects, to the satisfaction of a qualified traffic engineer, we would be prepared to approve it in its amended form. Amendments to the forecourt would, at the very least, involve deletion of the roundabout and pool and may also require the redesign and/or relocation of parking spaces, the rubbish enclosure and the grease trap.”
Mr Hayes QC submitted that the Environment Court had erred in providing Stoneymede with this opportunity to amend its plans.
The court did not err in proceeding in this way. The court has not tried to make the development conform to the Development Plan or otherwise render the development suitable by imposing conditions in a manner contrary to the views expressed in Kipa Freeholds Pty Ltd v Development Assessment Commission. Instead, it has stated that it was prepared to uphold the decision of the Council but, having identified matters which required attention, it adjourned the appeal to allow Stoneymede an opportunity to amend its proposal. In other words, unless the proposal were to be amended, it would not be approved. Furthermore, the court retained discretion to approve or reject the amendments proposed by Stoneymede. Mr Hayes QC also submitted that the amendments to the forecourt and the consequential need to redesign the ramp and control vehicular access to the subject land were integral to the court’s consideration of the suitability of the subject land for the proposal. I do not agree. They were matters of relative detail. An applicant may vary his application: see s 39(4) of the Development Act and Reg 20 of the Development Regulations. However, if the variation should change the essential nature of the proposed development, the application as varied will be treated as a new application: see s 39(4)(a) of the Act and Reg 20(4) of the Regulations. The amendments to the ramp was an amendment of a matter of detail. The amendments did not in any respect alter the essential character of the proposed motel development. Further, they are matters which are within the expertise of this specialist court. The court was entitled to proceed in this way, notwithstanding the evidence of Mr Weaver. The Environment Court has not erred in permitting the developer to amend its proposal in this way.
This ground of appeal must therefore fail.
The Proposed Ramp
The next two grounds of appeal concerned the proposed ramp. First, it was said that the Environment Court had erred in not accepting the evidence of Mr Weaver, a traffic engineer called by Opal Inn, to the effect that the proposed ramp would not comply with the Australian Standard. The other ground of appeal asserted that condition 5, one of the conditions attached to the consent which had been ordered by the Environment Court, was contrary to the views expressed in the court’s decision. Condition 5 is in these terms:
“Forthwith upon the completion of the construction of the ramp, Stoneymede shall provide to the Council a certificate (in appropriate form) from a licensed surveyor certifying that:-
(a)The length of the ramp between the lower end of the transition at the top of the ramp and the upper end of the transition at the bottom end of the ramp is not less than 52 metres, and
(b)The difference in height between the two points referred to in (a) above does not exceed 6.5 metres.”
There was evidence from another witness, Mr Bower called by Stoneymede, to the effect that the ramp satisfied the Australian Standard. Mr Weaver’s doubts that it was possible to comply with the Standard were based on the fact that the finished levels between the forecourt and upper level car park may not accord with the levels shown on the plans of the proposed motel. Having noted his evidence, the court said:
“To some extent, Mr Weaver’s concerns are justified. The plans of the proposed development are not of a particularly high standard and contain a number of deficiencies. One of those deficiencies relates to the depiction of surface and other levels across the site. There is nothing on the plans to show what the height differential between the bottom and the top of the ramp is. Mr Falting told us that the site has been surveyed and that the height differential between the top and bottom of the ramp is only 6.5 metres. He is prepared to produce a surveyor’s certificate to that effect. In our view, the appropriate resolution of this matter is that the Court accept that offer. Accordingly, we do not think that the proposed development should proceed until Stoneymede has produced to the Council a surveyor’s certificate, in proper form, certifying that the height differential at the lower end of the transition grade at the top of the ramp and the upper end of the transition grade at the bottom of the ramp does not exceed 6.5 metres.”
In reaching that conclusion, the court has effectively adopted Mr Weaver’s evidence. It seeks certainty by requiring the surveyor’s certificate. The first of these two grounds of appeal must therefore fail. However, it will have been noticed that the terms of condition 5 are not consistent with the passage just quoted. Whereas in the body of its reasons the Environment Court has required the surveyor’s certificate as a condition precedent to the development proceeding, the terms of condition 5 require the certificate at the completion of the construction of the ramp. This error is capable of being readily cured by amending condition 5 to make it accord with the court’s reasons.
Conditions 2 and 8

The last ground of appeal is that the Environment Court erred in law in imposing conditions 2 and 8 which, it was asserted, were both unworkable and unenforceable. Those conditions read:
“2.Buses exceeding 12.5 metres in length shall not either enter upon or stand on any part of the land the subject of this approval.
...
8.The grade of the lower level car parking area and forecourt shall be such as to enable disabled persons in wheelchairs to move from a disabled person’s car park to the reception area of the motel without assistance.”
The focus of the appellant’s attack was upon condition 2. There was evidence from more than one witness on this topic. This is not a large motel. It has only 48 rooms. The evidence showed that at most only one or two buses would call at the motel each day. The witnesses, including Mr Weaver, proceeded on the footing that those buses were 12.5 metres long. The Environment Court was aware that a bus exceeding 12.5 metres in length could not be accommodated at this development. It has therefore imposed the condition. It is apparent from the evidence that it is unlikely that buses which are longer than 12.5 metres will visit the motel. It is plainly in the interests of the motel to limit the size of the buses. All of these facts point to the conclusion that the assertion that condition 2 is unworkable and unenforceable cannot be maintained. No argument was addressed to show how condition 8 could not be enforced. The Council is able to enforce condition 8 by taking steps at the time of construction to ensure that the grade of the lower level car parking area and forecourt is constructed in a way which accords with the requirements of condition 8. Moreover, as the condition is dealing with a relatively rare event, it is capable of enforcement. In any event, self-interest on the part of the proprietor of the motel would lead to compliance with the condition. This ground of appeal therefore fails.
Conclusion
The appellant has failed to establish any of the grounds on which it relies. However, argument on this appeal has demonstrated that it is desirable to amend the orders made by the Environment Court. I would therefore allow the appeal for the purpose only of making the following orders:
1.That condition 5 imposed by the Environment Court be varied by deleting the words “forthwith upon completion of the construction of the ramp” and substituting therefor the following, “before proceeding with the construction of the proposed development”.
2. By adding the following conditions:
12.Before the commencement of the development the subject of this consent other than excavation of the subject land, the provisional building rules consent and development approval must be obtained from the Council.
13.When applying for provisional building rules consent, Stoneymede shall provide a report from an appropriately qualified civil engineer as to the structural soundness of the proposed development.
I will hear the parties as to the terms of these conditions.
WICKS J. I agree.

[2001] SASC 190

12 June 2001