Wong v Metcash Trading Australasia Ltd

WONG v METCASH TRADING AUSTRALASIA LTD
[2003] SASC 314
Land and Valuation Division
BLEBY J:

This is an appeal against a decision of the Environment Resources and Development Court (the “ERD Court”) constituted of a Commissioner. By his decision the Commissioner ordered that provisional Development Plan consent be granted for an extension to an existing warehouse facility subject to a number of conditions.
The subject land and the proposed development
The subject property is located at 414-450 Findon Road, Kidman Park. It has a total area of approximately 111,300 square metres, and currently contains a distribution and warehouse facility including warehouses, offices, stores and cool rooms. The existing warehouses store both liquor and other goods for distribution to retailers.
The eastern boundary of the property is a frontage of about 450 metres to Findon Road. The southern boundary is an irregular frontage to the River Torrens Linear Park Reserve. The western side of the property abuts a series of residential culs-de-sac. These culs-de-sac generally run in an east-west direction with their heads closest to the western boundary of the land. To the north the site adjoins the rear of three commercial premises with frontages to Valetta Road and which extend from Findon Road in a westerly direction along Valetta Road to the eastern boundary of an undeveloped portion of the subject land which also has a northern frontage to Valetta Road.
There are five vehicle access points to the land from Findon Road. These access points vary in width. The main entrance point provides access via a main gatehouse (“the main entrance”). This is the sole access for most deliveries to and dispatch from the existing stores and warehouses on the land.
Provisional Development Plan Consent was sought for the construction of an additional warehouse on the land, including associated loading area, office, battery charging area and additional car parking. The proposed warehouse is to be used exclusively for liquor wholesaling. It is to be located on the western side of the land, and would be separated from Findon Road by the existing buildings and warehouses. The proposed new loading bay is about 200 metres from Findon Road and is totally hidden from view from Findon Road by substantial warehouse buildings. A number of measures are proposed to minimise the noise associated with the new warehouse along the western boundary of the land, including a buffer of vegetation, and sound insulated walls.
The proposal includes an enclosed loading dock associated with the new warehouse. Access to this loading dock continues to be from the main entrance, with proposed variations to that entrance to allow semi-trailers and B-Doubles (vehicles comprising a semi-trailer attached to a goods-carrying prime mover) to exit the land to the north without crossing the centre line of Findon Road. The main entrance will therefore continue to be the only access point for trucks delivering to and dispatching from both the existing facilities and the proposed new warehouse.
The proposed hours of operation for the new warehouse are as follows:
§   6.00 am to 6.00 pm Monday to Friday;
§   8.00 am to 4.00 pm Saturday;
§   Nil Sunday; and
§   8.00 am to 4.00 pm public holidays (with prior written notification to     the Council).
It would appear that existing warehouses and stores will continue their present hours of operation which are more extensive and in respect of which there are no legal restrictions.
Previous proceedings
Consent for the development was previously refused by the Council of the City of Charles Sturt, being the relevant planning authority. The respondent appealed against that refusal to the ERD Court. The ERD Court joined as parties to the appeal a number of persons who had objected to the proposal before the Council. One of those was the present appellant. By the time of the hearing of the appeal in the ERD Court the Council had withdrawn its opposition to the proposal, having negotiated some amendments to the plan and the imposition of certain conditions. The hearing of the appeal nevertheless proceeded, the development being opposed by the original objectors.
The present appellant is the only objector to appeal to this Court. His residence is located on the eastern side of Findon Road, almost opposite the main entrance to the subject land.
Issues before the Council and before the ERD Court
Much time was spent before the Council and in the ERD Court on the effect of the proposed development on residential areas to the west of the subject land. With that I am not now concerned. The present appellant was and still is concerned with increased traffic and associated noise, and with the parking and manoeuvring of large vehicles on Findon Road associated with the existing and proposed development.
The appellant’s objection
The appellant’s house is part of a residential area comprising predominantly detached dwellings at low densities which are generally well maintained. This area extends north along Findon Road from the Linear Park Zone on the eastern side of Findon Road, a short distance south of the main entrance. The appellant claims that the existing warehouse already negatively impacts upon his amenity. In particular, there are a number of problems associated with the heavy vehicles which enter and leave the site. Both semi-trailers and B-Doubles use the main entrance opposite the appellant’s residence. He complains of heavy vehicles parking in no parking zones on the eastern side of Findon Road, trucks parked in front of driveways and on the footpath, and noise in the early hours of the morning from trucks arriving before the gates to the premises are opened. There are complaints relating to traffic safety, including trucks crossing the centre line of the Findon Road when leaving the site intending to travel north. He also complains of noise emanating from the premises, particularly from refrigeration plants, from vehicle movements during the day, from forklifts moving around the premises and from alarm bells left ringing. All these are existing problems. The appellant’s objection to the development is that it will exacerbate those problems.
Evidence before the ERD Court
Findon Road on the eastern border of the site is a two-lane arterial road. The kerb to kerb width of the road is approximately 12 metres. Access to the site is unrestricted at each access point with the exception of B-Doubles. These vehicles are restricted to entering and leaving the site at the main entrance. Most semi-trailers also enter and leave through the main entrance. Vehicles other than B-Doubles may approach the site from any direction. B-Doubles are not permitted south of the Torrens River, and can therefore only approach the site from the north along Findon Road.
On the eastern side of Findon Road in front of the appellant’s property is a no parking zone. However, the truck drivers park there whilst waiting for the site to open in the morning. The truck drivers are contracted to the respondent’s suppliers, and as such, the respondent does not have control over the drivers’ conduct outside its facility. However, the respondent does exercise some control as to when vehicles may enter the site. Apart from when the gates are closed during non-operating hours, vehicles entering the site by the main entrance are controlled by a pre-arranged booking schedule which results in a regulated flow of traffic into the site and to the various unloading points.
Mr Weaver, a traffic engineer who was called by the respondent before the ERD Court, estimated that the proposed development would result in a 5% increase in delivery vehicle movements to and from the site. I will refer in more detail to his evidence in due course. The Commissioner appears to have accepted his evidence. No qualified traffic engineer was called by the appellant. However in his statement tendered before the ERD Court, the appellant estimated a larger increase in truck movements.
There was evidence from a Mr Dobson who gave evidence of truck movements associated with the business of a company trading as SA Liquor Distributors which is located at West Torrens. However, the Commissioner found that his evidence was of little assistance for reasons that he gave. Those reasons appear to be sound, and I have no basis on which to challenge that rejection by the Commissioner.
The ERD Court decision
When dealing with the question of noise emanating from the site as a result of the development the Commissioner referred to noise levels generally on Findon Road not being increased to any measurable degree by the relatively small increase in total vehicle movements on Findon Road as a result of the proposed development. The appellant complained not only of noise levels generally arising from traffic movements along Findon Road, but also specifically of noise associated with vehicles parking illegally on the eastern side of Findon Road in the early hours of the morning, awaiting the opening of the gates or the rostered entry time. I infer that the Commissioner’s finding as to the lack of a material increase in noise generated as a result of the proposed development applied to noise levels of both types.
The Commissioner described the appellant’s and others’ concern about traffic conditions as a concern that:
“ …. the increase in the number of large vehicles (semi-trailers and B-Doubles) entering and leaving the subject land as a consequence of the proposed development would exacerbate what they saw as already hazardous conditions on Findon Road, arising principally from such vehicles queuing to enter the subject land on (sic) crossing the centre line on the road when leaving it.”
It appears that the word “on” should read “and”.
The Commissioner then went on to consider the evidence relevant to the question of traffic conditions. First, there was the evidence of Mr Weaver, the traffic expert, who forecast the increase in traffic movements associated with the new warehouse on the basis of a doubling of the liquor related business conducted by the respondent, the worst-case scenario that was proposed. He forecast a 5% increase in the average level of traffic movements resulting from the development. That would be a percentage less than the present daily variation in delivery movements. Mr Weaver was of the view that such an increase would have a negligible impact on the adjacent road network.
Mr Weaver observed that the traffic movements would occur during the day and therefore would not affect residential amenity late at night. Mr Weaver also observed that the proposed changes to the main entrance point on the site would ensure that trucks would be able to leave the site without crossing the centre line of Findon Road. The increase in staff traffic movements would be well within the capacity of the road network. Mr Weaver was of the view that even if there were a doubling of the existing liquor-related truck movements, this would not give him any concern in relation to traffic movements on Findon Road or safety issues associated with vehicles entering or leaving the site.
Having rejected the evidence of Mr Dobson as being of little assistance, the Commissioner continued at par [38]:
“Having regard to all the above, I have concluded that the increase in truck movements onto and off the subject land likely to be occasioned by the proposed development will not be such as to create hazardous conditions on Findon Road. I am further satisfied that the proposed modifications to the main entry/exit point on Findon Road will ensure that vehicles up to and including the size of a B-Double will be able to leave the subject land without crossing the centreline of Findon Road. While there is some evidence of occasional queuing, on Findon Road, of trucks waiting to enter the subject land, it was not established that unacceptable traffic congestion or hazard was occasioned by that queuing. Occasional unlawful or foolhardy driver behaviour, such as that referred to by the Second Respondents [including the current appellant], is not susceptible to control by planning conditions, nor can it form a basis for rejecting development proposals which do not, of themselves, create traffic movements or conditions which conflict with the relevant provisions of the Development Plan.”
Grounds of Appeal
The appellant appeals against the Court’s decision on the following grounds:
“That the learned Commissioner:
1.Erred as a matter of law in applying a test based on ‘hazardous conditions on Findon Road’ in paragraph 38. Consideration of Industry Zone Objectives 1, 2 and 10, Principle 8(d) Interface Policy Area DFC Statement, Principles 2 and 10 required the Commissioner to have regard to the impact of traffic movements on amenity generally, which he failed to do
2.Erred as a matter of law in paragraph 38 in failing to have regard to the previous history of operations on the site regarding the behaviour of drivers, contrary to Industry Zone PDC 51(d).
3.Erred as a matter of law in failing to have regard to Industry Zone Objectives 10 and 12, Principles 8 and 51, and Interface Policy Area Principle 10 in making his decision.”
At the hearing of the appeal in this Court, the appellant focused upon the second ground. However all grounds allege a similar error, and address the same part of the Commissioner’s reasons.
The Development Plan
The subject land is located within the relevant Interface Policy Area of the relevant Industry Zone in the Council’s Development Plan. The appellant’s property is in the Residential A Zone immediately east of the Industry Zone. The Commissioner referred specifically and had regard to a number of relevant provisions of the Development Plan. In particular he referred to those provisions which required regard to be had to the amenity of the area and of adjoining zones. He referred to Objectives 1 and 2 of the Industry Zone, which provide:
“Objective 1: A wide range of industrial, business, commercial, warehouse and storage activities together with transport distribution services, including industries and activities dependent on a rail and a port side location, which collectively foster employment within the region and which have appropriate regard for the amenity, safety and environmental quality of the area.”
Objective 2: A secure environment where industry, business and commercial activities can be located and developed in an orderly and proper manner and which will not adversely affect the amenity of urban and non urban areas.” (Emphasis added).
He referred to Principle 2 of the Principles of Development Control for the Interface Policy Area:
“Land uses which demonstrate minimal off-site impacts, such as noise, air, water and waste emissions, traffic generation and movement or minimal detrimental impacts on the amenity of properties in residential or similar environmentally sensitive zones, are appropriate.” (Emphasis added)
He referred to the Desired Future Character Statement for the Interface Policy Area as including the following:
“The area should accommodate a wide range of industrial and service activities which protect the amenity and safety of adjoining residential areas. The area should accommodate activities that do not create any appreciable nuisance, that have minimal off-site impacts, such as noise, air, water and waste emissions, traffic generation and movement and which do not have a detrimental impact on the amenity of properties in residential or similar environmentally sensitive zones. Appropriate activities include service, light manufacturing, warehousing and distribution and commercial premises.” (Emphasis added).
The Commissioner also included, in a list of Principles of Development Control relevant to the Interface Policy Area, Principle 12:
“12. Development located adjacent to residential or similar environmentally sensitive zones should incorporate design features which minimise off site impacts.” (Emphasis added).
The appellant complains that the Commissioner did not specifically refer to the following provisions of the Development Plan:
“INDUSTRY ZONE
Objective 10:   The provision of a buffer separation distance for industrial, business and commercial activities so that they will not adversely affect the amenity of surrounding areas.”
“Principles of Development Control
8.Development abutting or immediately opposite a boundary of the Industry Zone with another Zone should:
(a)    ……………..
(b)    …………….
(c)    …………….
(d)    Provide service or delivery vehicle access points to and from the site which minimises the impact of industrial vehicles on the amenity of residential or similar environmentally sensitive zones.”
“INTERFACE POLICY AREA
Principles of Development Control
10.   Road transport terminals or site/s used for activities serviced by large     or articulated vehicles should be conducted in a manner which will not       detrimentally affect the amenity of a residential or similar     environmentally sensitive zone.”
I will not refer in detail to Objective 12 or Principle 51 of the Principles of Development Control of the Industry Zone, being provisions of the Development Plan which the appellant also alleges were not taken into account.
The relevant Principles not specifically mentioned by the Commissioner all related in one form or another to the need to consider the effect of the proposed development on the amenity of the adjoining locality. They were largely repetitive of those parts of the Development Plan to which the Commissioner did have specific regard. The adverse effects on the amenity complained of by the appellant related principally to vehicle noise of the types which I have mentioned emanating from Findon Road, and to obstructions caused by articulated vehicles parking illegally on Findon Road adjacent to the appellant’s premises. They were matters which required consideration under the relevant provisions of the Development Plan. They were considered by the Commissioner. It was a matter of his planning judgment that the proposed development would not materially adversely affect the existing amenity. That was a judgment which he was entitled to make. It is not for this Court to interfere with it.
Those parts of the Development Plan to which I have referred and which relate to the Interface Policy Area all contemplate that there will be some off-site impacts from a development in the Industrial Zone. It merely provides that they should be kept to a minimum. The Commissioner’s findings indicate that such impacts caused by this development, whatever may be the present position, will be minimal. Accordingly, I would reject grounds 1 and 3 of the Notice of Appeal.
The principal arguments on the appeal related to ground 2 and the appellant’s complaint relating to articulated vehicles parking illegally on Findon Road, causing obstruction to residential access points and creating noise in the early hours of the morning.
The appellant argued that the Commissioner had failed to consider and to examine alternative steps that could have been taken by the developer by way of off-street parking or holding areas for delivery vehicles awaiting access to the premises for unloading. It was argued that the appeal should be remitted to the Commissioner to explore those alternatives.
The possibility of such alternative arrangements was raised during the course of the hearing before the Commissioner, but there was no evidence as to the practicability of such a proposal, where such areas might be located or how they would be managed. The appellant, who was unrepresented before the Commissioner, alleges that this was because the Commissioner prevented him from exploring such factual issues.
In my opinion, the Commissioner was correct in taking that course. He was required to consider the proposal as it had been submitted and rejected by the Council as the planning authority. The incorporation of holding areas would have involved a substantial alteration to the proposal, such that it would have been a rather different proposal from that which was before the Council and before the Commissioner. Even if the Commissioner had wished to investigate the possibility of incorporating such areas, had done so and had decided that it was a desirable course to follow, a change of that magnitude could not have been implemented merely by imposing conditions on the approval: see McKenzie Constructions Pty Ltd v Development Assessment Commission (1999) 74 SASR 539 at 546-547 [40] and the authorities cited therein.

If it had been possible for the Commissioner to impose some sort of condition relating to the parking or holding of heavy vehicles which had the effect of ameliorating the appellant’s concerns, the evidence did not justify the imposition of such steps. The appellant’s concerns related to existing practices of heavy transport drivers – practices which had been existing for some time and which related to the use of the warehouse complex in its existing form. I assume for present purposes, although this may not necessarily be the case, that they are practices caused by some inadequacy in the planning of the existing development.
Where such inadequacies occur, a developer who seeks approval for a variation to the existing development cannot be required by the imposition of conditions, to make good the inadequacies brought about by previous approvals. That is established in this jurisdiction by City of Woodville v Horbelt (1980) 42 LGRA 286. That case concerned extensions to a hospital which had an existing deficiency in on-site parking, creating problems in the locality of the hospital. The application concerned was for consent to extend the hospital. The application for extension provided for sufficient additional on-site parking to cater for the parking generated by the extension, but did not provide for the curing of the existing problem. The contention by the Council that approval should not be granted unless the existing parking problem was overcome was rejected. In discussing the role of the then Planning Appeal Board Jacobs J said, at 290:
“It had to balance what it saw as the intrinsic merit of the present proposal with other planning considerations. In concluding that it was only necessary to ensure that the proposal did not aggravate the existing parking problem, it must be taken to have concluded that the existing problem, whatever its magnitude, was tolerable from a planning point of view.”
That decision does not stand for the proposition that, where there is a problem associated with an existing development, approval for an extension which otherwise complies with other planning requirements will necessarily be granted if it does not aggravate the existing problem. There remains a balancing requirement. There may be some circumstances where the existing problem is no longer tolerable from a planning point of view, and where an extension of the existing development, even if it does not aggravate the problem, must be denied on that account. Jacobs J merely decided that past inadequacies cannot be rectified by imposing additional conditions on the approval of an extension. Therefore, that process was not open to the Commissioner on this occasion.
Even if it could have been shown that the proposed extension would materially aggravate the problems experienced by the appellant, Mr Henry, counsel for the appellant, conceded in argument that the obligation on the developer would only extend to accommodate the aggravation. It could not be required to provide a cure for the existing problem.
There remains, however, the question whether the approval should have been refused either:
(1)because the existing detrimental effect on the amenity of the adjoining Residential Zone caused by the existing development was so great that the extension should be denied, or
(2)because the existing problem would be exacerbated to an unacceptable level.
I deal with the second of those questions first. I have already referred to the evidence in general terms of Mr Weaver, apparently accepted by the Commissioner, as to the anticipated increase in vehicle movements on Findon Road as a result of the proposed development. It must be remembered that the appellant’s principal concern was not with all such additional movements. His main concern was with some semi-trailers and B-Doubles approaching the premises, particularly when the premises were closed, and some B-Doubles having to cross the centre line at Findon Road when leaving the premises to the north. The latter problem will be overcome by a redesign of the entrance.
Mr Weaver’s written evidence included the following:
“The number of vehicles transporting liquor into the site is expected to increase from an average of approximately 9 vehicles per day to 14 vehicles per day. Based on all of these vehicles exiting the site empty, then there would be an increase of approximately 10 trips associated with such vehicles. Most of these additional vehicle movements will be made by semi-trailers or rigid body trucks and there should be a negligible increase in the number of B-doubles movements associated with deliveries of liquor into the site.
The number of vehicles making deliveries of liquor from the site is expected to increase from an average of 15 vehicles per day to 22 vehicles per day. Assuming, that all of these vehicles are empty when accessing the site, then this would be equivalent to an increase of 14 trips per day, ie two trips per day associated with each vehicle. All of these additional trips will be made by rigid body trucks.
………….
The above additional traffic movements will occur during daytime periods. Hence, there will not be an issue in respect to impact on residential amenity late at night as a result of the forecast increase in traffic movements associated with the proposed development.”
Those of principal concern to the appellant are the five additional inward vehicle movements per day, most of which will be made by semi-trailers or rigid body trucks, very few of which, if any, would be likely to arrive out of opening hours.
While I do not doubt the seriousness and inconvenience to the appellant of the existing problems, the evidence falls far short of suggesting that the problem, as it affects the appellant, will be aggravated in any material way. It was not argued that the Commissioner’s conclusions as to the effect of the proposed development on noise and traffic safety generally on Findon Road were erroneous. The findings of the Commissioner did not justify refusing consent to the application on this ground.
I return to the first question, namely whether consent should be denied because of the existing detrimental effect on the amenity of the residential zone. It was put by the appellant that, if the consequences of the development cannot be controlled by way of conditions, it is all the more important that the proposal be closely scrutinized and consent refused if those adverse consequences could not be so controlled.
In one sense it can be said that any detriment to the appellant’s amenity is a consequence of the existing development and its present form and layout. The appellant argues that that detriment will not be abated and may be aggravated by the proposed extension. That is because, without the development, there would be no semi-trailers and B-Doubles parking adjacent to the Residential Zone on Findon Road. However, the respondent’s facility as a warehouse and store is located in the zone most appropriate to that use. It is one which necessarily attracts large goods carrying vehicles on the adjoining roads. The drivers of those vehicles may exhibit a variety of lawful and unlawful behaviour. The behaviour is not caused by the existence and location of the facility.
The drivers of vehicles which park on Findon Road, being those who cause the problems, are committing an offence by parking there. Their conduct off the premises of the respondent cannot be controlled by the respondent. They are not employees of or contractors to the respondent. In a real and direct sense the problem is not caused by the development but by others acting in breach of the law.
Planning authorities making planning decisions are entitled to assume compliance by members of the public with the law. There may be situations where compliance becomes almost impossible or is plainly incompatible with the proposed development. In that case the planning authority might well have to consider whether the development will induce non-compliance with the law such that consent should be refused, or whether it should not be granted while the law remains as it is.
However, that is not this case. The parking restrictions were no doubt imposed because of the existing development and its proximity to the Residential Zone. That is consistent with the Desired Future Character Statement and Principles of Development Control relating to the Interface Policy Area. The parking restrictions are not incapable of being observed. The fact that they appear not to be adequately policed does not affect the merit of the proposed extension. To the extent that the Council has a policing role it reflects poorly on the Council. However, that is another issue, and cannot dictate the merits of a decision on a legitimate development application.
There is no incompatibility between the law, in the form of parking restrictions, and the development. Indeed, they complement each other. Accordingly, the fact that there may be frequent breaches of the parking laws should not be an influencing factor in determining the fate of the current application. In my opinion, ground 2 has not been made out.
It follows that the appeal must be dismissed.

[2003] SASC 314

1 October 2003