Wakefield Regional Council v Evans

[2010] SASC 68

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

WAKEFIELD REGIONAL COUNCIL v EVANS

[2010] SASC 68

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice White)

29 March 2010

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY - CONSIDERATION OF PARTICULAR PLANNING MATTERS

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY - GENERALLY - CONSIDERATION OF PLANNING SCHEMES

Appeal from decision of Supreme Court Judge reversing decision of Environment, Resources and Development Court upholding Wakefield Regional Council's refusal to give development consent - respondent sought approval for development involving conversion of existing residence on his farm to a manager's residence and the construction of a new residential dwelling on farm for his family - Judge held that Commissioner erred by misconstruing provisions of the Wakefield Council Development Plan and from proceeding on basis that there is implication in Development Plan that approval should not ordinarily be given for the construction of new or additional dwellings in the Primary Industry Zone - Judge remitted the matter to the Environment, Resources and Development Court - Wakefield Regional Council appealed this decision seeking to restore the decision of the Environment, Resources and Development Court - whether Development Plan disclosed limited policy intent supporting construction of new residential dwelling on farm - whether residence associated with the farming operations.

Held: appeal dismissed - factual findings of Judge supported by the evidence - proposed new dwelling principally associated with farming operations - Development Plan does not disclose any guiding principle mandating that there should not be more than one residence on a farming property - order remitting matter to Environment, Resources and Development Court set aside - order made by majority approving the respondent's application - any issue as to conditions of approval arising to be remitted to a Commissioner for consideration.

Development Act 1993 (SA) s 33(1); Planning Act 1982 (SA), referred to.
Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd & Anor (1985) 38 SASR 161; Town of Gawler v Impact Investment Corporation Pty Ltd (2007) 99 SASR 115; Telstra Corporation Ltd v Corporation of the City of Mitcham (2001) 79 SASR 509; District Council of Angaston v Hamilton (1995) 64 SASR 110; South Australian Housing Trust v Development Assessment Commission and Corporation of the City of Marion (1994) 63 SASR 35; Hickinbotham Blue Gum Pty Ltd v Corporation of the City of Campbelltown (1981) 29 SASR 93; Kouflidis and Jenquin Pty Ltd v Corporation of the City of Salisbury (1982) 29 SASR 321; City of Mitcham v Freckman (1999) 74 SASR 56; City of Mitcham v Terra Equities Pty Ltd [2007] SASC 244; City of Burnside v Build-Tec Services (No 2) [2005] SASC 72; City of Mitcham v ANSAAR [2006] SASC 78; Koker v Port Lincoln Council [2006] SASC 55, considered.

WAKEFIELD REGIONAL COUNCIL v EVANS
[2010] SASC 68

Full Court        Gray, Sulan and White JJ

GRAY and SULAN JJ.

1. This appeal concerns an application for development approval for the building of a residence on a rural property in the mid-North of the State.

2. The Wakefield Regional Council refused to give development consent.  The decision of the Council was upheld by a Commissioner of the Environment, Resources and Development Court.  The decision of that Court was overturned on appeal by a Judge of this Court.  The Council has now appealed to this Court seeking to restore the decision of the Environment, Resources and Development Court.

3. Peter John Evans, the applicant for consent and the respondent to this appeal, is the owner of a 132.3 hectare property close to the township of Owen in the mid-North of the State.  The property is within the Wakefield Regional Council area and is within a Primary Industry Zone. 

4. Mr Evans has a long association with the land.  His grandparents acquired the property following World War II and generations of the Evans family have since resided on the land.  Mr Evans’ parents also have a farming property and Mr Evans was brought up on that property.  However Mr Evans acquired the Owen property and has lived on that property with his wife and children for more than 11 years.  

5. Mr Evans has developed a number of farming businesses.  He is the owner of a property at Broken Hill, which is used for the purposes of grazing sheep.  These sheep are transported to the property at Owen for fattening in a feedlot operation.  Mr Evans with others also has interests in a rural fertilizer business and a rural trucking and carrier business.  Mr Evans has developed the feedlot business on the Owen property, and in addition to the sheep transported from Broken Hill, other sheep are purchased for fattening.  The feedlot business is very substantial.  In the year 2008, more than forty-eight thousand sheep were processed through the feedlot.  The feedlot is one of the largest in the State. 

6. Mr Evans, in addition to his farming activities, conducts a professional accounting practice in Port Adelaide.  As part of his practice, he oversees the financial operations of all his businesses.  He commutes from the Owen property to Adelaide to conduct his accounting practice.  On weekends and after hours on weekdays while at the Owen property, he directly oversees the farming operations, including the feedlot business.  A manager is employed with respect to the feedlot activities.  The manager presently lives in Owen. 

7. Mr Evans wished to build a new residence on the property for himself and his family.  The long-standing residence on the property, in which he and his family presently live, is planned to be used as a manager’s residence to enable the manager to live onsite.  The existing residence, apart from becoming the manager’s residence, is also to be used as an office, store, kitchen, laundry, toilet and bathroom.  It is intended that other employees working on the farm, as well as visitors attending the property for the purposes of the farming business, would access the existing residence.  This would include livestock owners, delivery drivers and shearers as well as others.  The proposed new residence is to be situated about four hundred metres from the existing residence. 

8. Mr Evans gave evidence that the farming business and in particular the feedlot operation requires close supervision.  There is a need to ensure that adequate water is available to stock at all times.  Mr Evans’ unchallenged evidence was that he has no intention to subdivide the land.  The positioning of the new residence and its proximity to the feedlot operation is intended to allow Mr Evans to oversee the feedlot operation.  In practical terms, the only change in use arising from the proposal is the conversion of the existing domestic residence into a manager’s residence with office facilities. 

9. There was unchallenged expert evidence that it was inefficient and unsafe not to have a resident manager onsite having regard to the size of the feedlot operation. It was also the evidence of the expert that the proposed development provided an important improvement to the agricultural efficiency of the farming business at Owen and that even when viewed in isolation, the presence of Mr Evans at the new residence would be beneficial.  It was noted that the proposed residence would take up an insignificant and immaterial portion of the farming property. 

10. As earlier observed, the Judge of this Court allowed Mr Evans’ appeal from the Environment, Resources and Development Court.[1]

    [1]    Evans v Wakefield Regional Council [2009] SASC 238.

11. The Judge commenced his reasons with what he described as the background facts.  These included: [2]

    [2]    Evans v Wakefield Regional Council [2009] SASC 238 at [10]-[18].

    The present arrangement is that Mr Evans resides in the existing residence, but his feedlot manager resides in Owen.  The manager works from 8:00 am to 4:00 pm on weekdays and on Saturday mornings.  A part time employee who works about ten hours per week is also engaged.

    The most important aspect of the feedlot’s operations which requires 24 hour monitoring is the provision of water.  Although automatic watering systems are used they are often damaged, and on occasion there can be excessive spillage.  A failure of the water system can result in livestock deaths, particularly in hot weather.

    Mr Evans testified that feeding regimes must also be monitored to guard against conditions like acidosis.  If the manager resided on site he would be in a better position to take delivery of stock feed, which can often occur out of ordinary hours.

    Mr Evans explained the desirability of his own continued residence in addition to the on site manager in this way:

    Even with a full time manager you can’t expect him to be there 24 hours a day, 365 days a year.  Really by having two bodies there at any one time we do cater for that.  Of course at the moment we do try and communicate but it doesn’t always work out in terms of making sure we do have the security presence and someone to monitor water 24 hours a day.  So we are open to risk at the moment and by having two people on site as such we do cover that risk and make it a lot better and more efficient operation.  So it’s probably originally when the feedlot was set up that low stocking numbers the risk isn’t as big but now with the stocking numbers that we do have through the facility the risk is certainly increased and hence the reason to really focus on this issue at this point in time.

    It was put to Mr Evans that his primary requirement was to have a caretaker on the site who was experienced.  He answered:

    Well it’s really – what I’m saying is we need two caretakers to ensure that we have 24 hour coverage of the risks involved with feedlot operation.

    In a report dated 4 March 2009, an agricultural consultant, Mr Ellis, criticised the residence of the manager away from the farm saying:

    This is an inefficient and unsafe situation.  In my experience in a feedlot situation it is normal for a workman or manager to live on site.

    Mr Ellis accepted that it was not standard practice in feedlot operations to have both a manager and the proprietor living on site.  However, he agreed that there were benefits in such an arrangement.  He testified:

    The benefits would be when animals are kept in an intensive situation, they’re more prone to all manner of issues arising, and I think in the previous evidence we were talking about the water situation – the same goes for feed and shelter.  And the other aspect is we were talking about theft; these are, by the nature of the fact that they’re in a feedlot, they’re prime stock, so they’re just about ready for market and they are all in a very accessible situation.  So having someone there all the time certainly would be a benefit.

    The substantial part of the farm, about 300 acres, is used for cereal crops.  Mr Evans has entered into a share farming arrangement with a nearby farmer to cultivate those crops.  Mr Evans explained that he had personal involvement in cropping in terms of setting out what will be sown and how it will be sown but he did not actually operate any machinery.  He also gave advice on how the crop should be managed in terms of fertilization and weedicide.  He agreed, however, that the cropping could continue even if he were not to reside on the property.

    Mr Evans was asked whether the proposed development would improve the layout of the land to make it more efficient for either the cropping or feedlot operation.  He answered:

    The first one, feedlot, yes.  The second in terms of cereal farming I’d say no, other than it would have minimal impact on the second part.  …

12. Although a number of these paragraphs were a recitation of the evidence given at the hearing before the Environment, Resources and Development Court, it is evident that the Judge was treating them as established fact.  Counsel for the Wakefield Regional Council accepted that this was the manner in which those paragraphs of the judgment were to be read and when pressed specifically disavowed any challenge to these findings.

13. The Judge reached the conclusion that the Commissioner erred in law by misconstruing individual provisions of the Wakefield Regional Council Development Plan and the implications that arose from the combined effect of those provisions.  In particular, the Judge concluded that the Commissioner erred in proceeding on the basis that there was an implication in the Development Plan that approval should not ordinarily be given for the construction of new or additional dwellings in the Primary Industry Zone.  The Judge observed:[3]

    The Commissioner’s view, evident in those passages, that the Development Plan does not envisage residential development and his references to it providing limited support for the development of new buildings appear to have led to the conclusion that an applicant must justify, in the sense of showing sufficient reason for, the development of a new home.  For the reasons I will now give, the Development Plan discloses no such presumption against the development of a home for the proprietor on farming land within the region.

    [3]    Evans v Wakefield Regional Council [2009] SASC 238 at [24].

14. The Judge subjected the relevant provisions of the Development Plan to close analysis, in the course of which he reasoned:[4]

    I will deal first with the Council Wide provisions of the Development Plan.  The strategic aim of the Development Plan emphasises the importance of employment opportunities and the consequential benefits for the area in terms of prosperity, retention of district youth and maintenance of township viability.  The Development Plan also recognises the challenge posed to the retention of the rural character of the Wakefield area by metropolitan urban pressures.

    Council Wide Objectives 9 to 12 deal with rural development.  They emphasise the maintenance and development of the rural economy.  Overall those objectives favour the approval of Mr Evans’ application.  Most obviously they do so because one aspect of his proposal is the provision of a residence for a full time manager for a large and intensive sheep feedlot.

    …

    Objective 18 provides that residential development and business, service and community facilities should be located and contained within defined townships and settlement areas.  That objective must be construed in its proper context.  It is not a reference to the construction of a single dwelling on a substantial farming property such as that proposed by Mr Evans.  It is directed to the mischief of the spread of urban or semi-urban residential developments outside of town limits.

    Objective 109 provides that animals should not be kept on land for commercial purposes unless there is a dwelling on the land that is permanently occupied.  In my view, Objective 109 does not apply to this proposed development.  It concerns the keeping of animals on land for a commercial purpose, such as breeding, boarding, training or sale, rather than a farming purpose.  In any event, Mr Evans has approval to operate the feedlot.  His application is for a change in use of the existing dwelling and the construction of a new dwelling.  Nonetheless, the Objective recognises the factual premise, on which much of Mr Evans’ case rests, that on site management of intensive animal operations can be both desirable and necessary.

    Objective 168 provides that development in rural areas should be principally associated with farming and be designed, sited and constructed to complement the rural character of the district.  There is no objection to the design and situation of the proposed development, nor to the nature of its construction.  In my opinion, the construction of a residence for the proprietor of farming land, is very obviously a development which is “associated with farming”.  There is no reason to read any further restriction or requirement into Objective 168.  In particular, a development may be “associated with farming” even though its direct contribution to agricultural production is relatively small.  There is therefore no reason to exclude from the developments denoted by the phrase “associated with farming” the dwelling of the farm proprietor if he or she does not actively engage in hands on farm work to a substantial degree.

    [4]    Evans v Wakefield Regional Council [2009] SASC 238 at [25]-[26], [28]-[30].

15. The Judge turned to discuss the relevant principles with respect to the Primary Industry Zone and observed:[5]

    [5]    Evans v Wakefield Regional Council [2009] SASC 238 at [31]-[35], [37]-[39].

    I turn now to the provisions of the Primary Industry Zone of the Development Plan.  It is a strategic aim of the Primary Industry Zone that it accommodate a wide range of farming practices which contribute to local employment and the local economy.  The introductory background discussion to the Objectives of the Primary Industry Zone notes that agricultural production within the region makes the most significant contribution to the regional economy and records that it is desirable that it continue to do so.  The discussion continues:

    To maintain the agricultural importance and stability of the zone, it is vital that the size of the landholdings is not significantly reduced, or densities increased, and that future pressures for development in the zone will not result in the conversion of agricultural land to less productive uses.

    Principle 169 elaborates on that aim by providing:

    Development liable to remove land from agriculture or reduce its overall productivity for primary production, should not be undertaken unless the removed land is required for public purposes, or will result in a development generating significant employment opportunities without creating significant environmental impacts, or for other uses consistent with the objectives for the Council area.

    The Commissioner found that “though relatively minor in degree the proposed new dwelling development is at variance with Principle 169”.[6]

    It should be immediately observed that Mr Evans’ application does not involve any real reduction in the size of landholding and that the loss of farming land is trivial.  The increase in density from one to two dwellings in an allotment of this size is minor.  The very purpose of the development is to increase the future viability of the feedlot operation.  As I earlier observed, refusal of Mr Evans’ application would, objectively, make the maintenance and development of the feedlot less attractive to Mr Evans and others in broadly similar circumstances.

    In my view the Commissioner was therefore wrong to have regard to this variance at all.  The loss of land was so trifling that the development could not be regarded as being inconsistent with Principle 169 at all.

    …

    Principle 2 of the Primary Industry Zone provides that building structures erected in the zone should be primarily those required for the proper and efficient management of farming activities.  The principle is qualified by the word “primarily”.  Too much should not be read into the word “required”.  It is not the purpose of the Development Plan to ensure that farming within the region is conducted in the most efficient way possible by denying approval to developments which do not incorporate world best farming practice.  It would not be appropriate to refuse approval of a development application on the ground that the farming activity could be more efficiently managed by another form of development.  Rather, the purpose of Principle 2 is to require a close connection between a proposed development and farming activity.  In my view it is sufficient to satisfy Principle 2 that the proposed development will in fact improve the management of a farming activity.  The development proposed by Mr Evans will do so.  Not only will a manager be able to reside next to the feedlot, which will benefit from his closer round-the-clock supervision, but the proprietor will also be in a position to contribute to the running of the feedlot and to superintend the work of his manager, and thereby monitor the proper management of his agricultural investment.

    Principle 3 provides that not more than one detached dwelling should be erected on an allotment.  The Commissioner found that the development proposed by Mr Evans would not result in more than one detached dwelling.  He found that the existing residence, which was proposed to be used as a manager’s residence, would not be a detached dwelling.  Wakefield does not, on this appeal, dispute that finding; it did not file a Notice of Alternative Contention.  In my opinion the Commissioner was right to find that the manager’s residence would not be a detached residence.  It is next to, and an integral part of, the feedlot operation.  Its designation and use as a manger’s residence implies that it will be available to, and used by, persons attending the feedlot for work or on business.  Those visitors will be allowed the use of the office and associated facilities.  The manager will no doubt retain some power to control that use within reasonable limits, but he will not be entitled to use the residence as one for his exclusive occupation.  It will be the working residence of the manager of the feedlot operation and dedicated to facilitate its efficient functioning.

    Importantly, the text of Principle 3 of the Primary Industry Zone necessarily implies that there may be, in addition to a single detached dwelling, other forms of dwelling on the same allotment.  Indeed, so much is recognised by that part of the background statement to the Primary Industry Zone which reads:

    The pattern of occupation with homesteads, ancillary buildings and paddocks enclosing crops and livestock dominate the environment and firmly establish an open, rural appearance.

    [6]    Evans v Wakefield Regional Council [2009] SAERDC 19 at [45].

1. Against this background, the Judge concluded:[7]

   [7]    Evans v Wakefield Regional Council [2009] SASC 238 at [42]-[44].

   I have already explained my view that the Commissioner erred in finding that the development directly contravened Principle 169 and was, by implication, inconsistent with Principles 25 and 26 of the Primary Industry Zone.  The primary finding of the Commissioner and the essential reasons for it are expressed in the following paragraphs:

   56    On careful consideration of the evidence, what I observed on the view, my own assessment of the proposal against the Development Plan and weighing up both the pros and cons of the composite proposal (both change of use conversion of a dwelling to feedlot manager’s residence; and new large dwelling for the appellant and his family) I conclude that this proposal does not sufficiently meet the spirit or intent nor key strategy aims and objectives of the Development Plan and is thus not worthy of Development Plan Consent.

   57    Whilst the Council did not detail the reasoning of its refusal, a number of the Development Plan clauses it referred to, particularly, Council Wide Strategic Aim (in my view para 2), Objectives 10, 18 and 20, and Principles 3, 168 and 169; and PIZ Strategic Aim (in my view para 6) and Objective 1 and Principle 2, are not sufficiently achieved by the development proposal and I find that the proposal is sufficiently at variance with the Development Plan as a whole to warrant that decision. I agree with and accept the conclusions of Ms Nolan, a most experienced urban, regional and environmental planner.[8]

   The reference to Ms Nolan’s conclusion is most probably a reference to the following paragraph of her report dated 3 March 2009:

   8.1     In my view, the construction of a new dwelling on the land is contrary to the overall intent of the development plan and to the specific intent of the primary industry zone to restrict dwellings on the land and to accommodate only activity/development which is directly associated with agricultural production.

   The reference in [56] – [57] of the Commissioner’s reasons to his view that the proposal did not “sufficiently meet” the spirit or intent of the aims and objectives of the Development Plan is not easy to understand.  In the ordinary course, if a proposal meets all the aims and objectives of a Development Plan and does not contravene any particular part of it, one would expect it to be approved, even if other alternative developments can be imagined that would better advance those objectives.  It is more likely, I think, that the Commissioner has proceeded on Ms Nolan’s premise that there is an implication in the Development Plan that in the ordinary course, the construction of new dwellings and any other buildings which are not “directly associated” with agricultural production will not be approved.  The concept of “directly associated” seems to be understood as including only those developments which make a direct and substantial contribution to agricultural production.  As I observed in [24] above, the consequence of that implication appears, from paragraphs [32], [33] and [44] of the Commissioner’s reasons, to be that an applicant for the construction of a new dwelling on substantial property in the Primary Industry Zone must “justify” the development in some way.  In my opinion, there is no such implication in the Development Plan.  The implication suggested by Ms Nolan and accepted by the Commissioner cannot be found in the text of the Development Plan itself, and is not supported by the contextual considerations to which I have referred.  It should be rejected.

   [8]    Evans v Wakefield Regional Council [2009] SAERDC 19 at [36]-[37].

2. This led the Judge to the ultimate conclusion:[9]

   The decision of the Commissioner is affected by errors of law and must be set aside.  It will be apparent from my reasons that in my opinion there are strong grounds for approving Mr Evans’ application.  It is nonetheless appropriate to adopt the usual practice and to allow the final planning judgment to be made by the Environment Court.  I allow the appeal and remit the matter to the Environment Court for consideration conformably with these reasons.

   [9]    Evans v Wakefield Regional Council [2009] SASC 238 at [45].

   The Appeal

3. On appeal, the Wakefield Regional Council contended that the Development Plan envisaged development in the Primary Industry Zone, a zone primarily for farming, with a diversified rural-based industry.  It was contemplated that the development should enhance the viability of the agricultural sector, which is primarily for agricultural production and livestock grazing.  It was said that the Development Plan, when read as a whole, sought to discourage buildings and uses which are not primarily intended to advance the above objectives.  It was then argued that the construction of the proposed new residence on the land did not meet the policy objectives of the Primary Industry Zone.

4. The Wakefield Regional Council contended that the Judge misapplied council-wide Objective 18 and council-wide Principles 109, 168 and 169.  It was further contended that the Judge failed to have proper regard to Primary Industry Zone Principle 26. 

5. It was submitted that the Judge had misconstrued the Commissioner’s reasons and that the Commissioner was correct to conclude that there was limited policy intent in the Development Plan to support Mr Evans’ proposed development.  It was argued that there was no evidence before the Commissioner to justify two residences on the property.  It was said that the proper interpretation of the evidence was that Mr Evans wished to have a new dwelling for his use as a residence in his role as a professional accountant, and that the residence was not principally associated with the farming operations. 

6. The Council went so far as to submit that Mr Evans was no more than a “hobby farmer”.  In our view, this submission should be rejected.  Mr Evans and his family have a long association with the land and Mr Evans, like his forebears, is a farmer.  His interest in farming as noted above is broad.  He has developed a number of farming businesses.  His farming business at Owen forms part of his overall business operations.  His work as a professional accountant includes the overseeing of the financial aspects of his farming businesses.  Mr Evans appears committed to the development of the rural economy.  On any view, he is much more than a hobby farmer.

7. Section 33(1) of the Development Act 1993 (SA) provides that a development can be an approved development “if, and only if, a relevant authority has assessed the development against, and granted a consent in respect of”, among other things, the provisions of the appropriate Development Plan. As a consequence, it is necessary to examine the Wakefield Regional Council Development Plan and the weight to be given to its terms.

8. The construction and application of Development Plans was considered in the case of Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd & Anor[10] where King CJ observed:

   The Development Plan is the focal point of the planning regime instituted by the 1982 Act.  Its central importance is emphasized by the disappearance of regulations from the scheme.  The Plan provides the objectives and principles upon which development planning is to be based.  It is the charter by whose guiding principles future development is to be planned.  The mandate “to have regard to” the provisions of the Plan requires the authority to give to the plan the weight which is due to it as the focal point of the planning regime.  I indorse what was said about the status purpose and importance of the Plan by Wells J in Hassen v District Council of Murray Bridge and Onsoy and by Jacobs J in the present case.  As was pointed out by Wells J in Hassen’s  case, however, the Plan is in the nature of a planning document and is couched in the language of planning objectives and principles rather than that of legal obligation.  Jacobs J in the judgment appealed from in this case described the language of the principles in the Plan as “advisory”.  Perhaps that word read out of context does not attach sufficient force to the language of the principles, but it is nevertheless language appropriate to the expression of goals and guiding principles rather than to the expression of legal mandates.  If the provisions of the Plan were understood as binding norms to which all planning decisions must conform, it would indeed “find action in the front line a responsibility for the discharge of which neither its language nor its structure is appropriate”.  That, however, is not its function, as the Full Court has indicated in Dorrestijn’s case.  For all the importance of the Plan, there is a discretion, ultimately unfettered, in the Planning Authority to take other considerations into account and to make decisions which are not in conformity with the Plan.

   The discretion of the Planning Authority, although unfettered, must, like all discretions, be exercised for the purpose for which it is given.  It must therefore be exercised for the purpose of attaining the planning objectives of the Act.  Although the authority, having given proper consideration and due weight to the provisions of the Development Plan, may depart from it in the exercise of its discretion, it may do so only upon grounds which are properly related to the planning objectives of the Act.  If the discretion were exercised arbitrarily or upon grounds not properly related to planning objectives, the exercise would miscarry. 

   [Footnotes omitted; emphasis added]

   It is to be observed that the above authority concerned the provisions of the Planning Act 1982 (SA). Those provisions mandated that the Planning Authority was “to have regard to” the provisions of the Development Plan. As was observed by Bleby J in Town of Gawler v Impact Investment Corporation Pty Ltd,[11] the obligation pursuant to section 33 of the Development Act to assess a development against, and to take into account the provisions of, the relevant Development Plan, does not confer the same width of unfettered discretion as the obligation pursuant to the former Act to make a decision having regard to the Development Plan.  However, as noted by Bleby J, the observations of King CJ contained in the second paragraph excerpted above are equally apposite to a consideration of development applications under the present Act.

   [10]   Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd & Anor (1985) 38 SASR 161 at 187.

   [11]   Town of Gawler v Impact Investment Corporation Pty Ltd (2007) 99 SASR 115 at [75].

9. More recently, the approach to be taken to construing a Development Plan was addressed in Telstra Corporation Ltd v Corporation of the City of Mitcham,[12] where Debelle J emphasised that a Development Plan is not to be construed like a statute: [13]

   The Court has repeatedly stated that the provisions of the Development Plan are not to be construed like a statute:  see, for example, St Ann’s College v Corporation of City of Adelaide [1999] SASC 479. A development plan is a planning document couched in the language of planning objectives and principles, rather than that of legal obligation. It uses language appropriate to the expressions of goals and guiding principles, rather than the expression of legal mandates: Walkerville Town Corporation v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 at 187 per King CJ approving observations of Wells J in both Claude Neon Ltd v City of West Torrens (1982) 29 SASR 260 at 270-271 and in Hassen v District Council of Murray Bridge (1984) 35 SASR 448 at 449…

   [12]   Telstra Corporation Ltd v Corporation of the City of Mitcham (2001) 79 SASR 509.

   [13]   Telstra Corporation Ltd v Corporation of the City of Mitcham (2001) 79 SASR 509 at [25].

10. Consistent with the notion of a Development Plan containing relevant Objectives and Principles rather than stating legal obligations, most Principles and Objectives expressed in the Wakefield Regional Council Development Plan are expressed in non-mandatory terms.  The extent of consideration to be given to non-mandatory Principles was discussed by Debelle J in District Council of Angaston v Hamilton:[14]

    In determining the effect to be given to it, the Tribunal should have noted that principle 43 is not mandatory in its operation.  It states, instead, a goal to be aimed at and the relevant planning authority must be guided by those standards in considering whether to grant planning consent:  South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35. Principle 43 is expressed in terms which, though not mandatory, are directory and persuasive and one would normally expect a planning authority, having proper regard to the Plan, to respect what it says unless, as a matter of planning judgment, there is some good reason to justify a different conclusion: Fimmell v District Council of Mount Gambier (1988) 143 LSJS 429 at 434. …

    These observations illustrate that although the Development Plan is a guide rather than a directive instrument, a plainly applicable Principle should only be departed from for good reason. 

    [14]   District Council of Angaston v Hamilton (1995) 64 SASR 110 at 117-8; See also South Australian Housing Trust v Development Assessment Commission and Corporation of the City of Marion (1994) 63 SASR 35 at 38 (Prior J).

11. Our review of the evidence has satisfied us that each of the factual conclusions reached by the Judge were fully supported by the evidence and were the appropriate findings on the evidence. 

12. Mr Evans proposes to continue to use the farm at Owen as a farm, maintaining both the feedlot and other farming operations.  At a time when the drift of people from country to city continues, it is refreshing to read of Mr Evans’ commitment to the development of the farming operations.  It is operations of this type that bring people and economic benefits to country areas.  It is difficult to understand why this would not be encouraged.  It is unsurprising that the operation of the farm would require both Mr Evans’ part-time input as well as an onsite, full-time manager.  The proper care of stock, the maintenance of water, the guarding against theft, all fully justify the need for the two residences. 

13. It is clear that the general thrust of the Development Plan is to maintain the rural character of the Primary Industry Zone.  The intent is to maintain farming land as farming land.  In our view, the Judge was correct in his interpretation of the relevant provisions of the Development Plan.  The earlier references to the authorities confirm that the Development Plan and the Objectives and Principles are not to be interpreted as though they were statutes.  They are intended to be flexible guidelines to indicate policy intent and to assist planning authorities with a common sense approach to land development.  We agree with the Judge of this Court that the Commissioner adopted a too literal approach to the Development Plan and the Objectives and Principles.  The Development Plan indicates no intention to preclude the building of a residence on a farm necessary for the proper operation of the farm.  There is no guiding principle that mandates that there should not be more than one residence on a farming property.  It may be accepted that residences which are not necessary for the proper operation of a farm should not be allowed as such residences may interfere with the rural character of a farming district.  However, that is not so in this case. 

14. Counsel for the Wakefield Regional Council approached the appeal on the basis that the interpretation of the Development Plan raised issues akin to those of statutory construction.  Submissions were advanced about the precise meaning and construction of provisions in the Development Plan and the Objectives and Principles.  These submissions were unhelpful.  They were directly at odds with the approach outlined by the above authorities. 

15. A common sense approach allows the conclusion that Mr Evans and his family should be entitled to build their new residence and that the existing residence remain as a manager’s residence with facilities, including an office, kitchen and toilet, to accommodate the needs of workmen and others visiting the property. 

16. The Judge concluded that in his opinion there were strong reasons for approving Mr Evans’ application.  The evidence led by and on behalf of Mr Evans before the Commissioner was essentially unchallenged.  However, the Judge remitted the matter on the basis that there was a usual practice of allowing final planning judgments to be made in the Environment, Resources and Development Court.  We do not consider that there is such “a usual practice”, or in any event, a practice that in any way impacts on the function or duties of the appellate court.  The appellate court has a responsibility, if practicable, to bring proceedings to a conclusion.

17. On a proper construction of the Development Plan and on consideration of the evidence supporting Mr Evans’ application for consent, the approach of the Environment, Resources and Development Court was in error.  Mr Evans has made out his case.  He is entitled to have his application approved.  He should not be put to further delay and expense because of a suggested usual practice. 

18. In Koker v City of Port Lincoln[15] the Full Court, on hearing an appeal from the Environment, Resources and Development Court, by majority, quashed the order of that Court and in lieu substituted an order that provisional Development Plan Consent be granted on conditions to be fixed by the Environment, Resources and Development Court and that the matter be remitted for that purpose.  A perusal of the reasons published in Koker discloses that no reference was made by any member of the Court to a “usual practice”.  Perry J, in agreeing with Layton J’s conclusion that the matter should not be remitted, observed: [16]

    A sufficient evidentiary foundation was established to lead me to agree with the conclusion expressed by Layton J that, apart from the question whether the premises can properly be characterised as a caretaker’s residence, the proposed development satisfied the requirement that it is “ancillary to the appropriate industrial activities in the zone”, within the meaning of Principle 4.

    Furthermore, I agree that given the long history of the matter, and the relatively insignificant effect that the proposed development will have on the general amenity of the zone, it is desirable that the proceedings be brought to a head with a minimum of further delay and expense to the parties.

    I would, therefore, make an order which would, effectively, confine any further hearing in the ERD Court to the question whether any, and if so what, conditions should be fixed with respect to the approval which, in my view, should otherwise be granted.

    [Emphasis added]

    [15]   Kokerv City of Port Lincoln [2006] SASC 55.

    [16]   Kokerv City of Port Lincoln  [2006] SASC 55 at [10]-[12].

19. Layton J observed: [17]

    I consider that the appeal should be allowed for the reasons set out above.  I have considered whether this Court should exercise the discretion which would otherwise have been exercised by the ERD Court if it had addressed itself to the correct interpretation of the principles.  I am also conscious that there is a need to have some finality for the parties on this proposed development. 

    Having regard to the facts in this case and its long history I think it is preferable for this Court to exercise its discretion.  There is sufficient information upon which I would conclude that the proposed development satisfies the requirement that it is “ancillary to the appropriate activities in the Zone” with a side benefit in being in part a “caretaker’s residence”.  The proposed development would not by itself fulfil the criteria of a “caretaker’s residence”.  For reasons discussed earlier, the proposed development is an important support for the appellant’s industrial activities and is not incompatible with other appropriate industrial activities in the Zone, particularly those in proximity to the appellant.  A person in residence on the premises is undoubtedly an additional benefit for the protection of valuable furniture and equipment.

    I would therefore allow the appeal and I agree with the orders suggested by Perry J.

    [17]   Kokerv City of Port Lincoln  [2006] SASC 55 at [88]-[90].

1. White J, although agreeing that the appeal should be allowed, concluded that the matter should be remitted for rehearing and observed:[18]

   …In this way the requisite findings of fact concerning the basis for the application can be made and the appeal determined by the specialist Court in the light of the reasons of this Court.

   [18]   Kokerv City of Port Lincoln [2006] SASC 55 at [23].

2. We consider that the approach adopted by the majority in Koker is entirely correct. 

3. Since preparing these reasons we have had the opportunity of perusing the reasons of White J, including his observations under the heading “Appropriate Orders on Appeal”.  We disagree that there is a “usual practice of this Court” which would lead to the remittal of this matter.  White J refers to the decision of City of Burnside v Build-Tec Services (No 2).[19]In that case, Besanko J observed, that he was not in a position to reach a conclusion as to whether provisional Development Plan Consent should have been granted or refused, and it was in this circumstance that the matter was referred to the Environment, Resources and Development Court for rehearing. Besanko J made no reference to any usual practice.  White J also refers to two decisions of Debelle J, City of Mitcham v Terra Equities Pty Ltd[20] and City of Mitcham v ANSAAR.[21]  In both decisions Debelle J declined to remit the matters and instead made final orders.  In both decisions, Debelle J spoke of a general rule that proceedings are often remitted to the Environment, Resources and Development Court to reach a decision on the application of correct principle.  It is axiomatic that in many cases, an appellate court will remit matters for further consideration, as the court is not able to fairly resolve factual disputes.  This approach accords with general appellate practice.  There is no special or usual practice. 

   [19]   City of Burnside v Build-Tec Services (No 2) [2005] SASC 72.

   [20]   City of Mitcham v Terra Equities Pty Ltd [2007] SASC 244.

   [21]   City of Mitcham v ANSAAR [2006] SASC 78.

4. As earlier observed, the Judge in the present proceeding concluded that in his opinion there were strong reasons for approving Mr Evans’ application.  The Judge addressed the evidence at trial and set out in his reasons the relevant facts.  When considering the relevant Objectives and Principles in the Development Plan, the Judge set out further relevant facts.  On the hearing of the appeal, both counsel addressed these findings and made a number of submissions in respect of the findings and the inferences to be drawn from those findings.  A detailed written summary of evidence was provided to this Court by the Wakefield Regional Council in support of its submissions.

5. In our view, the attack on the Judge’s reasons in respect and in regard to matters of fact and inferences from fact should be rejected.  The Judge’s findings were open to him having regard to the trial evidence.  We would go further - in our opinion, the findings were fully justified.  We do not consider it appropriate for the Wakefield Regional Council to have yet another opportunity to raise or agitate factual questions. 

6. Having regard to the foregoing, to the unchallenged and established facts, and to the lengthy history in this proceeding, this Court should exercise the discretion which would otherwise be exercised by the Environment, Resources and Development Court if it had addressed itself in accordance with correct principle.  The Judge under appeal had a clear view that the proposed development should be approved.  It was his expectation that on a remittal, the Environment, Resources and Development Court would follow that view.  We too are of the opinion that the proposed development should be approved and we see no reason to remit the matter.  There is a need after a hearing at trial and two appeals, to bring this matter to a conclusion with a minimum of further expense and delay.  This Court, in the exercise of its appellate jurisdiction should make an order approving the proposed development.

   Conclusion

7. We would order that:

   -the application for development plan consent be granted on conditions to be fixed by the Environment, Resources and Development Court.

   -the matter be remitted to the Environment, Resources and Development Court to make such further or other orders as may be necessary to carry into effect the judgment of this Court and to fix such conditions, if any, as the Environment, Resources and Development Court may think fit. 

   -otherwise the appeal be dismissed.

   We would hear the parties as to costs.

8. WHITE J: The respondent owns a 132 hectare farm near Owen bounded on its southern side by the Pinery-Owen Road and on its western side by the Balaclava-Mallala Road.  Most of the farm is used for cropping, but since 2005 the respondent has also conducted a commercial feedlot for sheep on one portion.

9. The respondent and his family live in a house on the farm.  However, the respondent’s full-time occupation is that of an accountant, working from an office at Port Adelaide.  He is also the principal of various other rurally based businesses conducted away from the farm.

10. The respondent wishes to build a substantial new home for himself and his family on the farm and to convert his existing home into a manager’s residence together with an office storeroom.  He would then arrange for the full-time manager of the feedlot, who presently lives in Owen, to live in the manager’s residence.  The respondent contemplates that part-time or short-term employees or contractors at the feedlot may also make use of the kitchen, laundry, toilet and bathroom in the manager’s residence. 

11. The respondent lodged a development application with the Wakefield Regional Council (the Council) which had two elements:  construction of a new dwelling, and conversion of his existing dwelling to a manager’s residence.  The application had to be considered against the relevant provisions of the Council’s Development Plan and had to be refused if it was seriously at variance with that Plan.[22]

    [22]   Development Act 1993 (SA) s 33(1)(a), s 35(4).

12. The Council refused to grant development approval for the construction of the new dwelling.  It considered that that part of the respondent’s proposal was at variance with a number of provisions in its Development Plan.  It did not determine that element of the application which concerned the conversion of the existing dwelling into a manager’s residence.

13. An appeal to the Environment, Resources and Development Court against the Council’s decision was dismissed by a Commissioner.[23]  However, the respondent’s further appeal to this Court was upheld by a single Judge.[24] 

    [23]   Evans v Wakefield Regional Council [2009] SAERDC 19.

    [24]   Evans v Wakefield Regional Council [2009] SASC 238.

14. The Council now appeals to the Full Court against that decision, and seeks to have the Commissioner’s decision restored.

    The Decision of the Commissioner

15. The Commissioner determined the appeal in the ERD Court by reference to seven separate considerations:  (1) the true nature of the development; (2) the main land use contemplated for the Primary Industry Zone by the Council’s Development Plan; (3) the effect of the respondent’s proposal on the character and visual amenity of the Primary Industry Zone; (4) the impact on traffic safety; (5) the impact on farm productivity and efficiency; (6) the effect on the land adjoining the respondent’s farm; and (7) the potential for fragmentation of the respondent’s land holding.

16. Of these, the Commissioner considered that the third, fourth and sixth matters (namely, the impacts on rural character and visual amenity, traffic safety and adjoining land) did not count against the application and, while saying that the seventh category (the potential for land fragmentation) was of “some relevance and should not be ignored”, said that he did not “place great weight or reliance” on it.[25]

    [25]   Evans v Wakefield Regional Council [2009] SAERDC 19 at [53].

17. It was the second and fifth considerations which the Commissioner held counted against approval of the respondent’s proposal.

18. In relation to the second category (the principles concerning intended land use), the Commissioner considered that the objectives and principles relating to the Council’s Primary Industry Zone did not contemplate development of residences “in a general sense” and contemplated in only a limited way development of dwellings which were ancillary to farm and feedlot uses.[26]  On this basis he concluded that there was insufficient “justification” for the construction of a second dwelling on the property.[27]

    [26] Ibid at [31] and [32].

    [27] Ibid at [33].

19. Similarly, in relation to the issue of farm productivity and efficiency (the fifth category), the Commissioner considered that the proposed new dwelling did not, given its primary purpose as a residence for the respondent’s family, “support rural production or facilitate, at least to any great degree, improved farm efficiency or productivity.”  He said:

    It does comprise a convenient location for the [respondent] owner to overview the work of the share farmer with respect to cropping activities and to provide a back-up and second “set of eyes” over the feedlot operations, but not much in the way of value add or improvement to rural productivity.

    The [respondent] could build a new building (if need be) or reside in an older dwelling within Owen some five minutes away (or elsewhere) and still achieve much if not most of these goals.  Alternatively he could choose to replace the existing dwelling with a new larger purpose designed one.  I find there to be little to justify an additional new large dwelling on the land while retaining/converting the existing one, though the latter is supportable and beneficial.[28]

    Finally the Commissioner considered that the respondents proposal:

    … aims and objectives of the Development Plan and is thus not worthy of Development Plan Consent. …

    I find that the proposal is sufficiently at variance with the Development Plan as a whole to warrant that decision.[29]

    [28] Ibid at [43]-[44].

    [29] Ibid at [56]-[57].

20. In summary, the Commissioner considered that the respondent’s proposal could not be “justified” by reference to the Council’s Development Plan and that it did not “sufficiently meet” the spirit or intent of that Plan.

    The Decision of the Single Judge on Appeal

21. The Judge considered that the Commissioner’s reasons revealed a number of errors of principle.  First, he considered that Development Control Principles 25 and 26 relating to the Council’s Primary Industry Zone upon which the Commissioner had placed reliance were irrelevant to the respondent’s application.[30]

    [30]   Evans v Wakefield Regional Council [2009] SASC 238 at [20]-[22].

22. Secondly, the Judge considered that the construction of a residence for the proprietor of farming land was a development “associated with farming” for the purposes of Council Wide Principle 168 in the Council’s Development Plan.[31]  He considered that the Development Plan did not, apart from prohibiting more than one detached dwelling on a property, evince an intention to exclude developments by which accommodation for persons other than the proprietor may be provided on farms.[32]

    [31] Ibid at [30].

    [32] Ibid at [40].

23. Thirdly, the Judge considered that the extent to which the new dwelling proposed by the respondent and its curtilage would reduce the amount of land available for agricultural purposes was so trifling that the Commissioner had been wrong to consider that there was a variance with Council Wide Principal 169.[33]

    [33] Ibid at [35].

24. Finally, the Judge considered that the Commissioner had been incorrect to proceed on the basis of an implication in the Council’s Development Plan to the effect that construction of new dwellings and other buildings not “directly associated” with agricultural production (in the sense of making a direct and substantial contribution to agricultural production) should not, in the ordinary course, be approved.[34]  He held that the Commissioner had been wrong in requiring the respondent to justify (in the sense of showing sufficient reason for) the development of a new home, because the Council’s Development Plan did not disclose any presumption against the development of a house for the proprietor of farming land.[35]

    [34] Ibid at [44].

    [35] Ibid at [24].

25. For those reasons, the Judge considered the Commissioner’s decision to be affected by errors of law and allowed the appeal. 

    Submissions on Appeal

26. On the appeal to the Full Court, the Council contended that the Judge had himself erred in his construction and understanding of the Council’s Development Plan.  In particular, the Council contended that the Judge had not applied correctly Council Wide Principles 109, 168 and 169 and contended that he should have found that the Development Plan, when read as a whole, does discourage developments which are not primarily intended to advance the Objectives and Principles of the Primary Industry Zone.

    Council Wide Objectives and Principles

27. It is appropriate to set out a number of the Council Wide and Primary Industry Zone Objectives and Principles to which the Commissioner, the single Judge and the parties on the present appeal referred.

    Council Wide Objectives

28. Under the heading “Rural Development”, Council Wide Objectives 9-12 provide as follows:

    Objective 9To sustain and further extend the rural economic base of the district as the fundamental basis for the character and quality of life of the area.

    Objective 10  Productive rural land retained in primary production.

    Objective 11  The retention of rural areas for agricultural and pastoral purposes, and the maintenance of the natural character and rural beauty of such areas.

    Objective 12  The development of rural industries that add value to primary production.

    In an important primary producing area, productive agricultural land should remain available for agricultural purposes and forestry, as the economy of the region largely depends on maintaining a high level of agricultural productivity.  The retention and protection of primary production in the Council area is therefore important and basic to the district’s economy in the long-term. …

    Objective 13  Prevention of further division of agricultural land, other than in the best interests of primary production in the long-term.

    Under the heading “Townships” Council Wide Objective 18 states:

    Residential development and business, service and community facilities located and contained within defined township and settlement areas.

    Council Wide Principles of Development Control

29. Council Wide Principles 109, 168 and 169 are particularly pertinent:

    109Keeping of animals on land for commercial purposes, such as breeding, boarding, training or sale should not occur unless a dwelling exists on the property where the animals are kept and the dwelling is permanently occupied by the person or persons caring for the animals.

    …

    168Development in rural areas should be principally associated with farming and be designed, sited and constructed to complement the rural character of the district.

    169Development liable to remove land from agriculture or reduce its overall productivity for primary production, should not be undertaken unless the removed land is required for public purposes, or will result in a development generating significant employment opportunities without creating significant environmental impacts, or for other uses consistent with the objectives for the Council area.

    Primary Industry Zone Objectives

30. The Council’s Development Plan relating to the Primary Industry Zone states that the Zone should be a place accommodating a wide range of farming practices which contribute to local employment and the local economy and in which sustainable farm management is practised.  It also identifies the pattern of occupation of the Zone as one of homesteads, ancillary buildings, and paddocks enclosing crops and livestock, which firmly establishes an open, rural appearance.  The statement of strategic aims then continues:

    Little intensification of the present extent of settlement is warranted.  In many ways, a proliferation of intensive development and occupation of the Zone would threaten its proper function and render the rural landscape susceptible to competing demands and undesirable change.  To maintain the agricultural importance and stability of the Zone, it is vital that the size of the land holdings is not significantly reduced, or densities increased, and that future pressures for development in the Zone will not result in the conversion of agricultural land to less productive uses.  [Emphasis added]

31. Objectives 1, 2 and 3 of the Primary Industry Zone provide as follows:

    Objective 1Development primarily for farming with a diversified rural-based industry which enhances the viability of the agricultural sector.

    A wide agricultural base is sound business practice which should be further encouraged.

    Objective 2   Reinforcement and enhancement of the rural character of the area.

    This Zone should continue to accommodate grazing and cropping and intensive animal keeping as the dominant land uses without restricting other forms of compatible development, including land-based agriculture, which contribute to agricultural productivity and the rural character.

    Objective 3Amalgamation of sections, allotments and settlements into farm holdings and their continued use for rural purposes.

    There are a number of small settlements and sections which exist throughout the Zone.  In many instances these remain in agricultural production or vacant.  Few have dwellings, however significant potential exists for the fragmentation of rural land and subsequent erosion of agricultural productivity.  Development of the closely divided areas for residential and non-agricultural purposes creates undesirable demands on public infrastructure, roads and resources that the community cannot afford.  Urban development should therefore occur within defined townships.

    Primary Industry Zone Principles

32. Finally, it is appropriate to refer to several of the Principles of Development control relating to the Council’s Primary Industry Zone:

    1.All forms of development should be primarily for agricultural production and livestock raising on large land holdings.

    2.Buildings and structures erected in this Zone should be primarily those required for the proper and efficient management of farming activities.

    3.Not more than one detached dwelling should be erected on an allotment.

    …

    25.Those kinds of developments listed in Table Wak/4, together with the following kinds of development are complying in the Primary Industry Zone, and are subject to compliance with conditions as described in Tables WakR/1.2 and 3 as appropriate:

    Agriculture

    Commercial forestry

    Farming (other than in the form of acquaculture)

    Farm building

    Horse keeping

    Horticultural development …

    Outbuilding

    Stables

    26.The following kinds of development are non-complying in the Primary Industry Zone:

    Dwelling on an allotment of less than 40 hectares

    …

    [Emphasis in original]

    Consideration of Appeal

    Principles 25 and 26

33. The Commissioner noted that Principle 25 does not include the construction of a dwelling as a complying development in the Primary Industry Zone.  He inferred that this indicated that the Development Plan did not encourage residential development in the Primary Industry Zone.  The Commissioner also noted that Principle 26 specified that the construction of a dwelling on an allotment of less than 40 hectares was a non-complying development and concluded that this evidenced a policy that there should be only limited residential development in the Zone.  These implications from Principles 25 and 26 seem to have been important in the Commissioner’s conclusion that the respondent had not established a “real or sufficient justification” for the new dwelling.

1. In my opinion the Judge was correct to hold that the fact that a dwelling is not a complying development for the Zone was not a relevant consideration.  The proper approach to be applied in these circumstances was stated by Jacobs J in Hickinbotham Blue Gum Pty Ltd v Corporation of the City of Campbelltown:[36]

   … [T]he author of the regulations has been able to designate that, within a particular Zone, some uses are clearly permitted and some are clearly prohibited.  In between, there is a whole range of uses which are thought not to be capable of such clear-cut demarcation.  It is therefore left to the appropriate planning authority to determine in each particular case whether such use will, or will not, be permitted.  That calls upon the planning authority to examine each application upon its merits, and to apply the relevant planning criteria in the exercise of its judgment and discretion.  In that context, to say that the applicant cannot go ahead unless he gets consent is to say no more than that he can go ahead if he does get consent, and the form of words chosen by the draftsman is a mere matter of drafting preference.  To hold otherwise, and to place some prima-facie prohibition upon a consent use, is likely to deflect the planning authority from its duty to examine each application upon its merits, and from a neutral base.  Because a proposed consent use is not within the primary or permitted use of land in a particular Zone does not mean that it is a non‑conforming use in respect of which the applicant carries a handicap or disability that calls upon him to demonstrate some special merit in order to gain consent.[37]

   Similarly, in Kouflidis and Jenquin Pty Ltd v Corporation of the City of Salisbury,[38] King CJ said:

   Uses requiring consent are permitted if consent is given and prohibited if it is not.  They are not to be looked upon as “primarily prohibited” any more than as “primarily permitted”.  It is an error, in my opinion, to approach the question whether consent should be given upon the basis that there is a presumption against the consent use.  An application for consent should be considered, without the burden of any presumption either way, having regard to all relevant matters and in the light of the specific planning criteria indicated in s 27(6) of the Act.[39]

   [36] (1981) 29 SASR 93.

   [37] Ibid at 104.

   [38] (1982) 29 SASR 321.

   [39] Ibid at 325.

2. These statements of principle have also been applied in relation to the Development Act 1993 (SA): see the judgment of Debelle J (with whom Doyle CJ and Duggan J agreed) in City of Mitcham v Freckman.[40]  Accordingly, the Judge was correct in concluding that the Commissioner should not have drawn the implication which he did from Principle 25.  The Commissioner should have determined whether development consent should be given to the respondent’s proposal by a consideration of all relevant issues and without any presumption for or against the proposed use.

   [40] (1999) 74 SASR 56 at 61-2.

3. I also consider that the Judge was correct in holding that Principle 26 to be of little relevance in the determination of the respondent’s application.  Insofar as Principle 26 prohibits the construction of dwellings on allotments of less than 40 hectares, it can be seen as a manifestation of a policy of minimisation of the intensification of settlement within the Primary Industry Zone as contemplated by the statement of its strategic aims.  However, the fact of the matter is that the respondent’s allotment, being some 132 hectares, well exceeds the 40 hectares to which Principle 26 refers, making the Principle inapplicable to a consideration of the respondent’s application. 

4. I did not understand the Council, on the present appeal, to challenge the correctness of the Judge’s reasoning in relation to Principles 25 and 26.

5. As noted earlier, the implications which the Commissioner drew from Principles 25 and 26 seem to have been important to his conclusion that the respondent had not established a sufficient justification for his proposed development.  Accordingly, for this reason alone, the Judge was correct to find that the Commissioner’s reasons disclosed errors of principle.

   Principle 109

6. The Judge concluded that Council Wide Principle 109 was inapplicable to the respondent’s application.  The Council contended that this conclusion was wrong.

   If Principle 109 is read literally, it can be understood as referring to both broad-acre grazing activities as well as to the more intensive activities of breeding, boarding, training or selling of animals.  Having sheep or cattle produce lambs or calves, as the case may be, in open paddocks is a form of breeding.  However, Principle 109 has to be understood in context.  It is a Council Wide Principle rather than a Primary Industry Zone Principle.  This makes it unlikely that it has broadacre grazing activities as its focus.  It is probably commonplace for some farmers to own blocks of land which are separate from, but close to, their home properties, and upon which they graze sheep or cattle.  They are able to monitor the stock quite satisfactorily by regular visits to the separate property.  It is not readily to be supposed that activity of that kind is intended to be inconsistent with Principle 109.  That understanding of the Principle is also consistent with the Judge’s construction of Principle 109, a construction which I consider to be correct.

7. Principle 109 is not to be applied as though it is a statute.  As was noted by Debelle J in Telstra Corporation Ltd v Corporation of the City of Mitcham:[41]

   A Development Plan is a planning document couched in the language of Planning Objectives and Principles, rather than that of legal obligation.  It uses language appropriate to the expression of goals and guiding principles, rather than the expression of legal mandates: …[42]

   [41] [2001] SASC 166; (2001) 79 SASR 509.

   [42] Ibid at 515-16.

8. Principle 109 was of course very relevant in 2005 when the respondent sought development approval to establish the feedlot.  At that stage, his present home satisfied the requirements of the Principle as the respondent himself contemplated that he would be the person caring for the sheep in the feedlot.  However, since then, the scale of the feedlot has grown and the respondent has regarded it as more practicable to employ a full-time manager.

9. The Judge went on to say that Principle 109 recognises the factual premise upon which much of the respondent’s case rests, namely, that on-site management of intensive animal operations is both desirable and necessary.  The Council contended that having concluded that Principle 109 was not relevant, it was inconsistent for the Judge to have made use of it in this way.  I do not agree.  Principle 109 does contain the recognition to which the Judge referred.  It was a relevant matter, albeit of only limited significance, for the Judge to take into account.

   Principle 168

10. The Commissioner considered that Principles 168 and 169 did not “envisage or encourage residential development or dwellings in a general sense” and further that they were intended “to minimise development pressures that may lead to diminished agricultural production or negative impacts on efficiency and productivity, or pressure for land division of rural holdings”.[43]

    [43]   Evans v Wakefield Regional Council [2009] SASC 238 at [31].

11. The Judge considered that the construction of a residence for the proprietor of farming land was obviously a development which is “associated with farming”.[44]  He considered that a development may be “associated with farming” even though its direct contribution to agricultural production is relatively small and accordingly considered it inappropriate to regard Principle 168 as excluding the construction of a dwelling for a farm proprietor who does not actively engage in hands-on farm work to a substantial degree.[45]  Although the Judge did not say so expressly, it does seem that he concluded that the respondent’s proposal was consistent with Principle 168 or, at least, not necessarily inconsistent with it.

    [44] [2009] SASC 238 at [30].

    [45] Ibid.

12. The Council contended that the principal use of the proposed new dwelling on the property would be that of a residence for “a professional accountant” and his family rather than being “principally associated” with farming.  That being so it contended that the development was at variance with Principle 168.

13. The effect of Principle 168, in my opinion, is that development on farming land such as that of the respondent should be mainly, but not necessarily exclusively, associated with farming activities.  It contemplates that there will be some connection between the development, on the one hand, and farming on the other.    The connection may lie in the contribution which the proposed development is likely to make to agricultural production and livestock raising (Zone Principle One) or to the proper and efficient management of forming activities on the property (Zone Principle Two).  The strength and nature of the connection is likely to vary according to the circumstances of each individual case. 

14. The proposed new dwelling for the respondent and his family does have some connection with the farming activities on the property.  By living on the property, the respondent will be better able to monitor, to some extent, the welfare of the sheep in the feedlot after hours and on weekends and, at a more general level, to supervise the work of the feedlot manager.  In a more indirect way, he will be able to monitor the activities of the share farmer who carries out cropping on the remainder of the property. 

15. In some cases, the capacity for monitoring or supervision by a proprietor who works off-site may be more theoretical than real, especially if the proprietor has no farming experience.  However, on the basis of the background circumstances accepted by the Judge, the respondent appears to be able to exercise some monitoring and supervision of the farming activities.  He has a real connection with the property.  It has been in his family’s hands for three generations.  He was brought up on an adjacent property.  The respondent has now lived in the existing residence on the farm for approximately 11 years and, when he first established the feedlot, attended himself to its care.  This was evidence which was capable of demonstrating that the proposed development had the requisite association with agricultural production and management.  Whether it does in fact have that effect is a matter for determination by the ERD Court.

    Principle 169

16. The Judge considered that the Commissioner had been wrong to regard the loss of land for agricultural purposes which would result from the construction of the new dwelling as indicating that the development was at variance with Principle 169.  He considered that the loss of land was so trifling that it could be ignored.

17. As I understand it, the new house and its curtilage will occupy approximately one per cent of the overall property.  That being so, the Judge was correct to characterise the loss of land for agricultural use as insignificant.  In fairness to the Commissioner, he had accepted that the loss of land was “relatively minor in degree” and, as I understand it, this was not a factor which was important to his decision.

    The Developments Intended in the Primary Industry Zone

18. As noted earlier, the Judge considered that the Commissioner had been wrong to determine the appeal to the ERD Court by reference to an implication in the Development Plan that the construction of new dwellings and other buildings not directly associated with agricultural production should not, in the ordinary course, be approved.

19. In my opinion, it is not necessary to resort to implications.  The Development Plan makes it reasonably plain that the Council intends the rural character of the Primary Industry Zone to be preserved and that development within the Zone should primarily be that associated with, and required for, agriculture.  This is stated explicitly in the Principles of Development Control for the Zone.  All forms of development should “be primarily for agricultural production and livestock grazing on large land holdings” (Principle 1), buildings and structures should be “primarily those required for the proper and efficient management of farming activities” (Principle 2), and not more than one detached dwelling should be erected on an allotment (Principle 3).  Other Principles also give effect to this underlying intention.  For example, Principle 4 limits the circumstances in which land in the Primary Industry Zone may be subdivided; Principle 8 limits industrial development unless such developments are (amongst other things) associated with the processing or handling of primary produce or of organic waste and add value to rural activity; and Principle 9 limits tourist and visitor accommodation to that in the form of farm hosting facilities.

20. These Principles are an implementation of the stated strategic aim for the Primary Industry Zone and of the Objectives for the Zone (in particular Objectives 1, 2 and 3) to which I referred earlier in these reasons.

21. The Development Plan make it reasonably plain, in my opinion, that developments within the Primary Industry Zone should primarily be those associated with farming purposes.  That does not mean that they must be only for farming purposes but, ordinarily, developments within the Zone are intended to be those which have an association with such purposes.  I agree with the Judge that the Development Plan is not to be construed as permitting only those developments which by themselves make a direct and substantial contribution to agricultural production.[46]  Instead what the Development Plan requires is that developments be primarily (ie, principally or chiefly) those with a direct association with agricultural production and livestock raising, or be required for the proper and efficient management of farming activities.  That association is to be determined by a consideration of matters going beyond the likely effect of the development on agricultural output.

    [46] [2009] SASC 238 at [44].

22. As noted earlier, the existence in any individual case of a relationship between the proposed development, on the one hand, and an agricultural purpose, on the other, will often be a matter of degree.  In some cases it will be obvious, for example, in the case of a shearing shed, or a hay shed, or a shed accommodating farm implements.  Accommodation for the farmer will usually be within the Principles even though, by itself, it will have little effect on agricultural output.  On the other hand, the construction of a house for an urban dweller seeking a rural lifestyle but while continuing to work in the city is more likely to be inconsistent with the Principles.  The link between other developments and agricultural production or the efficiency of farming practices is likely to fall some where in between those examples, and to be determined by considerations of fact and degree.

23. I agree with the Judge that the Commissioner appears to have proceeded in this case on the basis of an implication in the Development Plan which goes beyond that contemplated by the express words of the Development Plan itself. However, for the reasons I have indicated, I do consider that the Development Plan relating to the Primary Industry Zone does contemplate only a limited range of developments for the Zone.  Those limitations are to be found, in particular, in Zone Principles 1, 2 and 3.  I do not think that the Judge was intending to express any contrary view about these limitations.

24. In the present case the Commissioner himself accepted that the respondent’s proposed development had some association with farming.  He said:

    … I conclude that the development is for the erection of a new independent dwelling associated with farming and a feedlot and conversion-change of use of existing dwelling ancillary to farming to a dwelling ancillary to a feedlot (manager’s/caretaker’s residence).[47] [Emphasis added]

    That finding of fact is important to, but not decisive of, the acceptability of the respondent’s proposal.  That is because the Development Plan speaks of more than just some association.  Principles One and Two for the Primary Industry Zone require that the development be primarily for agricultural production and livestock raising and primarily those required for proper and efficient management of farming activities.

    [47] [2009] SAERDC 19 at [27].

25. In the proceedings in the ERD Court, the Council accepted that Principle 3 (not more than one detached dwelling should be erected on an allotment) was not infringed by the respondent’s proposal.  The Commissioner made a finding that the proposed development would not result in more than one detached dwelling on the property.  As the Judge noted, the Council did not, on the appeal to this Court, dispute that finding, nor did it file a notice of alternative contention.  It is by no means obvious to me that Principle 3 would not be infringed by the respondent’s application.  However, the Court received only limited submissions concerning this issue and it is inappropriate to express a more concluded view.

    Summary of Conclusions

26. For the reasons given above, I consider that the Judge was correct to find that the Commissioner had made the errors of law identified in these reasons.  I agree with the Judge that the Council’s Development Plan does not contain the implication upon which the Commissioner appears to have proceeded.  On the other hand, the Development Plan does make explicit its intention of avoiding a proliferation of development within the Primary Industry Zone which would detract from its rural character and does make explicit the kind of developments contemplated for the Zone.

    Appropriate Orders on Appeal

27. The Judge set aside the Commissioner’s orders.  He then said: 

    “It will be apparent from my reasons that in my opinion there are strong grounds for approving Mr Evans’ application.  It is nonetheless appropriate to adopt the usual practice and to allow the final planning judgment to be made by the Environment Court.  I allow the appeal and remit the matter to the Environment Court for consideration conformably with these reasons.”[48]

    [48] [2009] SASC 238 at [45].

28. I agree that the matter should be remitted to the ERD Court.  Given that the determination of the respondent’s application will involve issues of fact and degree, I would prefer not to express any view about the merits of the respondent’s application.  That is a matter which is properly determined in the ERD Court.

29. The historical connection of the respondent with the property, his involvement in the management and monitoring of the activities carried on on the property, the desirability of having an on-site manager of the feedlot, and the respondent’s association with other rural businesses may all be pertinent to the determination of his application.  However, those matters do not indicate that the application should necessarily be granted.  They are some only of the matters to be considered on the application of the Development Plan.  It is preferable that those factual issues are determined in the ERD Court, as the appeal to this Court was on a question of law only.

30. In deciding to remit the matter to the ERD Court, the Judge acted in accordance with the general rule or practice of this Court.  That practice is evident in a number of the authorities.  In City of Mitcham v Terra Equities Pty Ltd,[49] Debelle J said:

    This is not a case where it is appropriate to remit the matter to the Environment Court for hearing and determination in accordance with these reasons.  The Commissioner’s reasons for allowing the appeal are seriously flawed.  The proposed development falls so far short of the minimum site areas and fails to satisfy other provisions of the Development Plan to such an extent that the only proper course is to restore the decision of the Council.  The problems with the development stem from the fact that Terra Equities seeks to overdevelop the site, that is to say, the site is not sufficiently large to accommodate what is proposed.  The proposal is so inconsistent with so many prescribed standards in the Development Plan that it is apparent that development consent must be refused.  This is an unusual course for this Court to adopt.  The Court does not decide issues as to the planning merits of a proposal.  As a general rule, once it has corrected an error of law, it will remit the matter to the Environment Court for hearing and determination in accordance with its reasons.  However, the issues are so clear in this present case and depend so directly on the terms of the Development Plan that it is appropriate for this Court to decide the issue.[50] [Emphasis added]

    Similarly, in City of Burnside v Build-Tec Services (No 2),[51] Besanko J said:

    The two errors made by the Commissioner are errors of law.  The errors, and in particular the first, were clearly material to his decision to grant Provisional Development Plan Consent.  However, I am not in a position to say whether on proper approach Provisional Development Plan Consent should be granted or refused.  In those circumstances, the matter must be referred back to the ERD Court for a rehearing.[52]

    In City of Mitcham v ANSAAR,[53] Debelle J said:

    It is necessary to consider whether it is appropriate to restore the decision of the Council or remit the proceedings to the Environment Court to be determined in accordance with the principles expressed in these reasons.  Where the Environment Court has erred on a question of principle, proceedings are, as a general rule, often remitted to the Environment Court to be determined in accordance with the correct principles.[54]

    [49] [2007] SASC 244.

    [50] Ibid at [34].

    [51] [2005] SASC 72.

    [52] Ibid at [28].

    [53] [2006] SASC 78.

    [54] Ibid at [26]. See also Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton (1993) 62 SASR 165 at 173; Adelaide Hills Council v Gibson [2006] SASC 181 at [60]; Rivergum Homes Pty Ltd v The District Council of the Copper Coast [2004] SASC 376 at [78]; Allbound Pty Ltd v City of Onkaparinga [2009] SASC 358 at [48]; City of Adelaide v Environment Protection Authority [2005] SASC 221; AG Building and Developments Pty Ltd v City of Holdfast Bay and Tanti [2009] SASC 11; Gibbs v City of Charles Sturt [2010] SASC 26 at [50].

1. Of course, there are some cases in which, despite the general approach indicated by these authorities, it is appropriate for this Court to make its own determination.  This may be appropriate, for example, when all the relevant material is before this Court, there is a need to expedite the final determination of the matter and the planning issues are clear such that it is inevitable that the development application must be allowed or refused.  Examples are seen in City of Mitcham v ANSAAR;[55] Koker v Port Lincoln Council;[56] and City of Mitcham v Terra Equities Pty Ltd.[57]

   [55] [2006] SASC 78 at [26].

   [56] [2006] SASC 55 at [88].

   [57] [2007] SASC 244 at [34].

2. I do not consider that the planning issues involved in the respondent’s application to be clear and not all of those issues have been addressed at the planning level.  As noted earlier, the Council determined the respondent’s application by reference only to that part of the application concerning construction of a new dwelling.  Because of the identified errors of principle, the Commissioner has not made a complete planning decision.  A number of matters favouring the grant of the application have been identified but they are not the only relevant considerations.  As already noted, the appeal to this Court was on a question of law only.  It is appropriate that the planning decision be made in the ERD Court.

   Conclusion

3. For the reasons given above, I would dismiss the appeal.  I would direct that the matter be remitted to the ERD Court for reconsideration in accordance with the reasons of the single Judge and with these reasons.

4. I would hear the parties as to costs.