The Strath Hub Pty Ltd v Alexandrina Council - [2004] SASC 382

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
THE STRATH HUB PTY LTD v ALEXANDRINA COUNCIL
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Anderson)
25 November 2004
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - SUPREME COURT - ERRORS OF RELEVANT AUTHORITY
The appellant sought development approval from the respondent council - development was for residential allotments within a Residential (Golf Course) Zone - council refused approval on grounds that the objective in the development proposal did not meet the Zone Plan requirement that the provision of housing and tourist accommodation be 'in assocation' with a golf course - no golf course proposed in plan - a Commissioner of the Environment, Resources and Development Court granted provisional consent - decision reversed by single Judge of Supreme Court - whether Commissioner erred in finding that the proposal was not at variance with the Plan - whether single Judge should have interfered with Commissioner's finding - held: Commissioner did err in his finding and single Judge correct in reversing decision - appeal dismissed.
Development Act 1993 (SA) section 35(2), referred to.
City of Mitcham v Freckmann (No.2) (2000) 76 SASR 145, applied.

THE STRATH HUB PTY LTD v ALEXANDRINA COUNCIL
[2004] SASC 382
Full Court: Doyle CJ, Duggan and Anderson JJ

DOYLE CJ The issue in this appeal is whether, in the decision under appeal, a Judge of this Court was right in deciding that a Commissioner of the Environment, Resources & Development Court had erred by failing to conclude that a proposed development was seriously at variance with the relevant Development Plan. If the Commissioner had so decided, that would have led to a conclusion that the decision of the Council in question to refuse provisional development plan consent was correct.
The outcome of the appeal turns on an assessment of the proposed development against the provisions of the relevant Development Plan. In the end a planning judgment is involved, and this Court will usually not interfere with such a judgment unless there has been a significant departure from proper planning principles.
I agree with Anderson J that in his reasons the Judge under appeal has demonstrated that the decision of the Commissioner does involve a fundamental departure from proper planning principles. I agree with the reasons of the Judge under appeal for so concluding, and I agree with the reasons given by Anderson J for dismissing the appeal.
DUGGAN J In my view the appeal should be dismissed for the reasons given by Anderson J.
ANDERSON J In this matter, the appellant appeals from a decision of a Judge of this court sitting as the Land and Valuation division which, in turn, was an appeal from the Environment, Resources and Development Court (“the ERD Court”). The ERD Court reversed the decision of the respondent council when the council refused approval of a proposed development because it was at variance with both Objective 1 of the Development Plan (“the Plan”) and also the principles of Development Control 1 and 2.
Background
The area of the land in question is approximately 57 ha and lies within the Residential (Golf Course) Zone of the respondent council. It actually abuts the township of Strathalbyn to the south and east, and is adjacent to another Residential (Strathalbyn) Zone, and a Rural Living (Strathalbyn) Zone further to the east.
At the moment, the land is mainly used for farmland and grazing but there are some dwellings and outbuildings on the land.
The proposal rejected by the council was to divide the land into 143 residential allotments with various areas of reserve proposed along the Angas River and Middle Creek which run through the property. The proposal as modified and approved by the Commissioner of the ERD Court was for 149 allotments.
The Residential (Golf Course) Zone came about following an amendment to the zoning some time earlier.
Objective 1, which is the only objective of the Residential (Golf Course) Zone within the Plan states:
“Housing and tourist accommodation development in association with a golf course, conservation area and public linear parks along the Angas River and Middle Creek…”
Principle 2 of Development Control for the zone states:
“Development of residential allotments should not occur unless integrated with the provision of an eighteen-hole golf course.”
Principle 3 states:
“Residential development should not be commenced north of the Stage 1 Development line shown on the Concept Plan Fig R (GC)/1 until all eighteen holes of the golf course have been developed and are in use.”
Principle 8 states:
“Where residential allotments directly adjoin the golf course, dwellings should be designed to address both the golf course and the access street.”
There are various other references within the Plan to the golf course in conjunction with residential allotments. In Policy Area B it is stated:
“A golf clubhouse, tourist accommodation, restaurants, conference facilities and small-scale retailing development should only be located in Policy Area B on Concept Plan Fig R (GC)/1.”
And likewise in Policy Area C it is stated:
“Development in Policy Area C on Concept Plan Fig R (GC)/1 should be for residential and golf course purposes.”
As the learned Judge appealed from said in his reasons at [1]:
“It is an unusual zone, not merely providing for a limited range of possible development for which consent is likely to be given, but requiring a substantial degree of co-ordination and integration of various developments throughout the Zone.”
His Honour described the Plan as follows at [11]:
“…the golf course, conservation area and public linear parks are intended as the centrepiece or feature of the Zone, with housing and tourist accommodation developments associated with and orientated towards those features...”
The planner who gave evidence supporting the council’s decision, said:
“The key aspect of the objective that is not being achieved by the proposed development is that there is no golf course proposed. The words ‘in association with’ disclose the intent of the zone that there be a residential development integrated with a golf course in order to provide a parkland setting for the development as well as a green entry to the Strathalbyn township.”
She went on to say:
“In essence the objective follows on from the zone name in which the word ‘golf course’ is included. Part of the justification for the zone being allowed was the supply and demand analysis that was undertaken that relied on the golf course to attract a certain market, hence why the golf course is so integral to development on the site.”
That same sentiment is contained in a letter dated 9 January 2003 written to the council by the then Minister, Mr Weatherill. The history of the matter shows that a rezoning to include a Residential (Golf Course) Zone was earlier approved, but then there was a further application made to remove the requirement for the development of the golf course from the zone. The Minister, in his letter, in reference to that request, said:
“The removal of the link to the golf course enabling residential development in the zone removes context and important aspects of the justification for the Ministerial amendment which put the zone in place. The Ministerial investigations were dependent on market data and supply and demand information for forecasting that relied on the golf course as an attraction for a certain niche market. Without the golf course, the justification for the residential development envisaged is significantly affected and therefore the extent of residential development should be reviewed along with any proposed changes to the zone in the context of the Country Planning Strategy.”
I include these statements as useful summaries which, in my opinion, encapsulate the paradox of an application within this unusual Residential (Golf Course) Zone which does not include a golf course.
Council Decision
The respondent council gave particulars of its grounds for refusal, and there were various other aspects involved in the decision, but insofar as the golf course is concerned, in particular No.3, the council said:
“The proposal does not satisfy Objective 1 for the Zone provision in that the plan of division is principally for residential development and is not being undertaken in concert with tourist accommodation and/or more particularly, a golf course.”
It can be seen therefore that whereas this area was previously zoned differently; following representations the zoning was changed to its current status. Then an application, including a golf course, was made and approved by the council, but then that approval lapsed. Finally this current application was made without a golf course.
The developer was clearly aware of the importance of the golf course in that it subsequently applied, after the refusal of the land division application, for an 18-hole par-3 golf course over part only of proposed allotment 1 in its efforts to have the proposal approved.
As the planner for the council said in relation to the separate application for the par-3 course:
“…the proposal does not address the intent of the zone given that it is isolated from the residential development and it is not a golf course in the sense that it is not of a competition standard. The concept plan for the zone demonstrates how a golf course should be integrated throughout the development site. This would allow residents to enjoy the golf course / open-space outlook as well as creating a ‘green’ outlook due to the dominance of trees rather just a typical urban area.”
ERD Court
In the hearing in the ERD Court, the Commissioner considered that the fact that the proposed subdivision was not integrated with an 18-hole golf course was not fatal to the appeal.
It was argued that the learned Judge should not have interfered with the assessment of the Commissioner of the ERD Court by substituting his conclusion because it could not be shown that the ERD Court had done anything other than apply all the relevant provisions of the Plan, and in the end, made a planning judgment.
In my view, the Commissioner erred because he did not consider the proposal put forward as being seriously at variance with the Plan. As such, it was appropriate for the learned Judge to interfere because there was a sufficient departure from proper planning principles to enable him to do so. It is my view that the proposal was seriously at variance with the Development Plan for these reasons:
1the zoning was unusual;
2there was only one objective in the Plan;
3it was intended that residential development be integrated with an 18-hole golf course;
4the timing of the development required that a large section of the zone could only be developed after the golf course was completed and in use;
5Policy Area B includes the clubhouse, tourist accommodation, restaurant and conference facilities;
6The proposal finally approved by the Commissioner even after amendment contains no reference to a golf course.
Considerations in this Appeal
There are other different residential zones in the Alexandrina Council area, but in this instance, because of the specific zoning, the provision for residential development is very specific, namely, that such residential development should be in association with a golf course as emphasised in the principles of development. No golf course at all was proposed as part of this application. It is therefore difficult to see how any residential development could proceed in association with it because of the lack of any proper planning as to how the golf course and other open spaces would be utilised as part of the overall development.
The Commissioner placed weight on the fact that different owners of different parts of the land were not in agreement and that therefore there may be an unfairness which could be alleviated by allowing the residential development now and with golf course plans to follow in the future. I consider this to be an error by the Commissioner which was appropriately corrected by the learned Judge appealed from.
The Commissioner must have believed that, unless he approved some form of residential development, there was a danger of no development at all because of the view that he took about the financial feasibility of the golf course proposal. It was this reasoning which made the separate application for the par-3 golf course attractive to the Commissioner. However, as the learned Judge says at [21]:
“…approval of this residential development proposal was not conditional upon approval for a development of that facility.”
I agree with the learned Judge when he says at [35]:
“To consent to a sub-division of more than one-third of the area of the Zone without any certainty as to whether, where or when a golf course might be created is to compromise the whole objective of the Zone and to render that objective less likely to be achievable.”
This identifies the error made in the ERD Court by the Commissioner which was merely a hopeful expectation that one day a golf course may, in some way or other, fit in with the residential development which had preceded it. It was to this end that the Commissioner reasoned that it did not have to be a full-size 18-hole golf course, and that a par-3 golf course would suffice.
In my view, the concept as envisaged by the Plan did not allow for this because the whole complex including associated tourist facilities was related to the drawing power of a full-size competition 18-hole golf course.
I agree again with the learned Judge in his comments regarding the par-3 golf course, and in particular, where his Honour held that there was no mandate for the Commissioner in the ERD Court to substitute the full-sized 18-hole golf course for the par-3 golf course proposed in a subsequent application.
Conclusions
As I have indicated, the Commissioner, in my view, was in error in not finding the proposed development as being seriously at variance with the Plan – see s 35(2) of the Development Act (1993) SA.
This court should be reluctant to interfere with a planning judgment. See Debelle J in City of Mitcham v Freckmann (No.2) (2000) 76 SASR 145 at 148 where it is said:
“…It will interfere only where the court has made an identifiable and egregious blunder, has made a demonstrable error of fact or principle, or the circumstances are in some other respect quite exceptional … 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: Ampol Road Pantry Pty Ltd v Brighton City Corporation (1993) 62 SASR 165 at 173.”
The error in this case was, in my view, such a departure from the Development Plan that the learned Judge was well within the principles set out above when he reversed the decision of the Commissioner.
His Honour, correctly in my view, identified the errors of the Commissioner in his reasons when he said about those errors at [34]:
“He considered the Zone primarily as a residential zone in which a golf course could appropriately be located, but not as providing for residential and tourist accommodation in association with a golf course and related open spaces.”
The proposed development was seriously at variance with the Plan and I would therefore dismiss the appeal.