Yasser Shahin v City of Unley No. Scciv-03-284

YASSER SHAHIN v CITY OF UNLEY
[2003] SASC 298
Land and Valuation Division

DEBELLE J This is an appeal from a decision of a Commissioner of the Environment Resources and Development Court.
The appellant owns land on the north-east corner of Goodwood Road and Le Hunte Street, Wayville. The land is within the area of the City of Unley (“the Council”). It is within a Mixed Use 2 Zone as prescribed by the Council’s Development Plan. The relevant version of the Development Plan is dated 25 October 2001.
The appellant applied to the Council for development consent to construct what was called an integrated service station complex. The complex was to comprise fuelling facilities, a retail outlet, a car wash and associated signs, landscaping and car parking. On 14 August 2002 the Council refused the application. The appellant appealed to the Environment Resources and Development Court (“the Environment Court”). On 19 February 2002 a Commissioner of that court dismissed the appeal. The appellant now appeals to this court.
The Existing Use
When the appellant purchased the land, it was used as a service station. The evidence as to the previous use was vague but the Commissioner accepted that it had six pumps which included one kerosene pump. The service station had included a small shop of some 250 square metres which sold motoring goods such as oil, coolant, and car polish as well as cigarettes, milk, drinks, confectionery and flowers. The service station is now closed to the public but is still licensed to sell fuel. It appears that small quantities of fuel have been dispensed from the one pump which remains on the site to employees of the appellant. The trading hours of the former service station were 7.30am to 5.00pm on Monday to Friday and 7.30am to 2.00pm on Saturday. It was closed on Sunday. As will be seen, those hours were considerably shorter than the proposed development which will operate for 24 hours per day for all seven days of the week.
The Commissioner inspected the site. The service station building is in poor condition. On the Goodwood Road frontage is an open canopy and paved forecourt. At the rear of the service station several sheds are erected. They were previously used in association with motor repair activities. The existing service station is one crossover from Goodwood Road and two from Le Hunte Street.
The Proposal
The appellant had purchased the site in order to redevelop it and continue trading. The proposal involved the demolition of all existing structures and construction of the integrated service station complex which will comprise:
1.A shop and an administrative area of 450 square metres. The building will incorporate a shop selling a variety of retail convenience goods, a product display area, an office, cool rooms, ancillary storage and toilets. Purchases of fuel will be made from this shop.
2.Six multi-product fuel pumps servicing 12 fuelling positions. A protective canopy will be erected some six metres above the pumps.
3.A building towards the rear of the allotment comprising four car wash bays in a row. The building will be just over five metres high. A narrow rectangular plant room will be situated to the north of the workshop and six vacuum bays will be sited – some to the east and others to the west of the wash bays.
4.Three areas be set aside for car parking for 36 cars in all in addition to vehicles at the fuel pumps. One parking area adjoins the shop and administrative area, a second is between the shop and the car wash and a third is on the eastern boundary of the development.
5.Landscaping on the frontages to Goodwood Road and Le Hunte Street as well as landscaping on the eastern boundary.
6.The site will be serviced by three crossovers permitting traffic to move in each direction. One will be off Goodwood Road and the other two off Le Hunte Street.
7.The appellant proposes that sales of fuel and sales from the retail shop will be made 24 hours in each day on every day of the week. The wash bays will be open from 7.00am to 11.00pm on Mondays to Thursdays, from 7.00am to 12.00 midnight on Fridays and Saturdays and from 9.00am to 10.00pm on Sundays.
8.Deliveries of fuel and waste collection will be made between the hours of 7.00am and 10.00pm.
It will have been noticed that this proposed development is a much larger enterprise than the earlier one. There will be more than twice as many pumps. The convenience store is substantially larger and will sell a wider variety of goods. The hours of operation will be significantly longer.
The Development Plan
The development will be located in the Mixed Use 2 Zone which states one objective for this zone, namely:
“Objective 1: Accommodation of a mixture of commercial land uses including medium-scale offices and consulting rooms of up to 450 square metres total floor area per individual building, service industries, warehouses and retail showrooms which result in low traffic generation.”
Principle 1 of the Principles of Development Control for the zone is complementary to it. It provides:
“Development should be, primarily, medium-scale offices and consulting rooms, service industries, warehouses, retail showrooms and development associated with the motor trades, which result in low traffic generation.”
It will be noticed that both the Objective and Principle 1 clearly state the desired character of the zone and express the intent that development in the zone should generate low volumes of traffic. This part of the zone is a strip along the eastern side of Goodwood Road. The central issue in the Environment Court, and on the appeal in this Court, turned on the question whether the proposed development satisfies the intent that development within the zone should be of a kind which results in low traffic generation.
The Decision
The Commissioner held that the clear intent of the Mixed Use Zone 2 was that development within the zone should be of a kind which resulted in “low traffic generation”. The terms of the Objective and of Principle of Development Control 1 show that he was correct reaching this conclusion. The main issue before the Environment Court, and on this appeal, is whether the proposed development would satisfy that objective and the extent to which regard should be had to the ability to intensify the existing use.
The Commissioner noted in his reasons that it was common ground that a complex including a service station, a retail outlet and a car wash of the kind proposed was a high traffic generator. On the hearing of the appeal, Mr Hayes QC objected to the Commissioner’s summary of the issues stating that what in truth was common ground was that the proposed development was not a low traffic generator. His quibble is belied by the evidence. It is also inconsistent with his own concession in his closing submissions in the Environment Court that the proposal “is a high generator of traffic.” I find that the proposal was a high generator of traffic. It was also common ground that the existing use of the subject land was as a service station and that that use could continue. The parties differed as to the weight to be given to the existing use when assessing the proposal.
The Commissioner held that the Council had adopted a clear policy when framing the Objective and Principle 1 for this zone which was directed towards limiting the generation of additional traffic within the zone. The Commissioner expressed his conclusion in these terms:
“³³There is a clear policy thrust in the Development Plan for the City of Unley to restrict the growth of traffic on Goodwood Road. It follows that unless it can be demonstrated that the proposal would result in a modest increase over the level of traffic generation achievable on the subject land without a further planning consent, to argue its acceptability on the basis of moving from high traffic generation to substantially higher traffic generation is to fly in the face of that clearly-expressed policy. It is established law that the reality of an existing land use which is in conflict with the objective or objectives for a zone has to be accepted when dealing with a proposed extension or intensification of that use: Courtney Hill Pty Ltd v South Australian Planning Commission and Others (1990) 59 SASR 259. That principle, however, does not, in my view, extend to support for development which results in a substantial worsening of the existing conflict, measured against the zone objective. The evidence of Mr Foley, which was not challenged in any serious way, was that the proposal was likely to result in traffic movements more than double those likely to be generated by optimisation of the existing lawful capacity of the site, with attendant effects on traffic flow and an increased risk of rear end collisions. Having regard to that evidence, and to the proposed introduction of a carwash activity, it seems to me that the proposed intensification of what can now lawfully occur on the subject land goes well beyond the latitude created by Courtney Hill, in which view I am reinforced by the unequivocal wording of the zone objective and Principle 1, considered in the light of the comments of Debelle J in City of Mitcham v Freckmann and Others (1999) 74 SASR 56, at 62:
‘…. it is important … to distil from the relevant provisions of the plan the overall intent and purpose and the desired character of the zone in which it is sought to place the proposed development, a task which is often assisted by reference to the stated objectives of the zone and the principles of development control. Given that it is manifestly impossible to make provisions in the Development Plan for every kind of development, the ultimate criterion by which a proposal might have to be judged is whether it is conducive to the desired character and amenity of the zone. The less conducive it is, the less likely it might merit planning approval.’
³⁴In the light of the above conclusion, I have further concluded that the subject proposal is in fundamental conflict with the clearly-expressed planning intent for the Mixed Use 1 Zone.”
He then considered what he called “site planning issues”.
The site planning issues arose out of the dimensions of the site and the nature of the development proposed. The Commissioner found that the site is unusually narrow for a service station. There is a good deal of planning evidence to that effect and there is no challenge to that finding. The Commissioner identified four site planning issues, namely,
•the potential for conflicting movements in the forecourt of the proposed service station;
•the potential for discharge of significant amounts of traffic into Le Hunte Street which, in turn, had a potential to create a noise nuisance at a point opposite dwellings then under construction within the adjoining Residential B300 Zone;
•the necessity, for reasons of noise attenuation, to incorporate into the development a three metre high masonry wall, and
•the need to erect a substantial portion of the building over the Keswick Creek culvert which would cause a partial closure of that culvert.
The Commissioner said that he had concerns as to the potential for conflicting traffic movements in the forecourt and as to the potential impact of noise on occupants of nearby dwellings and Le Hunte Street. He was less concerned about the visual impact of the proposed wall and did not believe that the Development Plan justified a refusal to allow the erection of a building over the Keswick Creek culvert.
The Commissioner concluded his reasons in these terms:
“⁴³Neither of the above issues, taken separately or together, would be sufficient to persuade me that the proposal was unacceptable, provided it was otherwise generally consistent with the relevant provisions of the Development Plan. Having already concluded, however, that the proposal is in fundamental conflict with the planning intent for the zone, they merely add weight to the conclusion that the proposal does not warrant Provisional Development Plan Consent. In reaching that conclusion I have taken into consideration all that was put before me, and all the relevant provisions of the Development Plan, and have not overlooked the Appellant’s entitlement to continue to use the subject land for service station purposes. Those existing use rights which do subsist, however, are constrained by the existing layout of, and improvements on, the subject land, and I note that there was no attempt made by the Appellant to argue that those existing use rights extended to accommodate a development of the scale now proposed.”
It is readily apparent from the Commissioner’s reasons that he correctly identified the objective for this zone and its desired character, that he had regard to the existing use as a service station, and that he grounded his conclusion on the evidence of Mr Foley that the proposal was likely to double the traffic movements likely to be generated by optimisation of the lawful capacity of the site with the consequence that the proposal conflicted with the planning intent for this zone. Although other planning issues existed, and in particular two, none of them, whether taken separately or together, were, he believed, sufficient to persuade him that development consent should not be granted. However, as he had concluded that the proposal was in fundamental conflict with the objective for this zone, they added weight to the conclusion that he should refuse development consent.
The Issues on the Appeal
Although the appellant listed a number of grounds in his notice of appeal, the arguments pressed on the hearing of the appeal to this Court were
1.that the Commissioner had wrongly applied the reasoning in Courtney Hill Pty Ltd v South Australian Planning Commission (1990) 59 SASR 259;
2.that the Commissioner had erred in finding that the proposal would result in the substantial worsening of existing traffic;
3.that the Commissioner had treated the Objective and Principle 1 of the Mixed Use 2 Zone as mandatory in operation as if the development was proposed on a green field site with no previous or existing use; and
4.that, when contrasted with the provisions of Mixed Use Zones 1 and 3, the Mixed Use 2 Zone recognises that development which will generate traffic.
The first two of those grounds were the main planks in the appellant’s case. I will deal with each contention. It is convenient to deal first with the Commissioner’s findings as to increased volumes of traffic.
An Increase in Traffic?
Mr Hayes QC attacked the finding in para 33 as to traffic movements and, in particular, the finding that the proposed development would result in a substantial worsening of existing traffic movements and that the proposal was likely to result in traffic movements more than double what was likely to be generated if the existing lawful capacity of the site was put to its best use. He submitted that the Commissioner had misapplied the evidence of Mr Foley and in consequence had fallen into error when assessing the amount of traffic that would be generated by the proposal. A correct assessment, he said, was that the proposed development would cause no more than a modest increase in traffic. An examination of the evidence demonstrates that the submission is entirely without foundation and that leave should not be granted.
The evidence as to the amount of traffic likely to be generated by the proposed development was given on behalf of the appellant by Mr Weaver and on behalf of the respondent by Mr Foley. Both are qualified and experienced traffic engineers. The other planning experts who were called effectively deferred to their evidence.
The effect of Mr Weaver’s evidence was that the proposal would generate 150 trips per hour in the evening peak period and about 1500 trips over the whole week. He acknowledged that it was not a low generation of traffic, adding that it was a higher traffic generator than other forms of development which were encouraged in this zone. He said that it would not be dissimilar to the volume of traffic generated by the use which had formerly existed at the site. His comparison with the earlier use of the site was not convincing as he did not know the numbers of pumps which had formerly existed on the site and he did not make any calculation to assess the likely amount of traffic to be generated by the former use. Another weakness in his evidence was that he had not made any allowance in his estimate for the fact that the proposed convenience store was larger and would sell a wider range of goods than the store which formed part of the earlier use. Mr Weaver believed that the amount of traffic generated at the peak period was the yardstick by which to assess the level of traffic generated by the proposal.
Mr Foley’s evidence was that the traffic generated by the proposal at peak periods was between 150 and 297 trips per hour. In his view, 150 trips per hour represented a high level of traffic generation for this site. He added that both the convenience store and the service station would generate high volumes of traffic, pointing out that studies in New South Wales had demonstrated that, in developments of this kind, the convenience store is likely to generate more traffic than the service station. He acknowledged that the last proposition depended on the site and the time of day.
Mr Hayes QC relied on an estimate made by Mr Foley as to the volume of traffic generated in peak periods by the former service station. Mr Foley’s evidence was that 60 to 80 customers would have used the site in one hour during the peak period, that is to say, there would be 60 to 80 trips per hour in peak periods. That is about one-half of Mr Foley’s lowest estimate of the traffic to be generated by the proposed development. Furthermore, the estimate of 80 vehicles per hour assumes that the five petrol pumps on the site were used to their maximum capacity, that is to say, that there was a very quick turnaround of vehicles and all pumps were being constantly used. Neither Mr Foley nor Mr Weaver specified the precise hours of the peak period. It is apparent from their evidence it is the usual evening peak period. If one adopts the lowest estimate made by Mr Foley, the Commissioner’s conclusion that the proposal was likely to result in traffic movements more than double those likely to be generated by an optimisation of the existing site might be a little overstated. But in broad terms it is correct. If one adopts the higher estimates the conclusion is amply justified.
Mr Foley also concluded that the proposal would generate a substantially higher volume of traffic during the day than the previous use. He estimated it to be 2000 vehicles per day. For his part, Mr Weaver agreed that the daily volume would be higher, estimating it to be 1500 vehicles per day. Thus, Mr Foley’s evidence was that the proposed development would generate a high volume of traffic at peak hours and a substantially higher volume during the day.
The Commissioner has preferred the evidence of Mr Foley. It was not demonstrated that there is any ground for disagreeing with his decision to do so. He had the advantage of seeing the experts give their evidence. Furthermore, Mr Weaver’s evidence suffered from the fact that he had not had regard to the fact that the retail shop in the proposed development was substantially larger than the shop in the earlier development. In addition, unlike Mr Foley, Mr Weaver had not had regard to the experience in New South Wales which showed that convenience stores in developments of this kind generate more traffic than the service station side of the business. Overall, Mr Foley’s evidence is more persuasive than that of Mr Weaver and that is no doubt why the Commissioner decided to accept Mr Foley’s evidence.

Like Mr Weaver, Mr Foley agreed that an important yardstick by which to assess traffic generation was the peak hour period. In addition, he had had regard to whether there is a significant increase in the daily volume of traffic. It is not entirely clear what the Development Plan is seeking to achieve when it refers to commercial land uses which result in low traffic generation. Plainly, there are a number of land uses which generate more traffic than others. It is also plain that the Development Plan seeks the establishment of uses which generate low volumes of traffic rather than those which generate high volumes. What is not clear is whether the objective is addressing peak hour volumes or the total volume in each day or both. This issue was not argued and, in the particular circumstances of this case, it is not necessary to determine the question. That is because Mr Foley’s evidence addresses both peak hour volumes and the total daily volumes. Each results in very high traffic volumes.
Mr Shahin gave evidence on three topics which related to the volume of traffic and the intensification of the existing use. The first concerned the earlier operations at this site. He asserted that large volumes of fuel had been sold in the ‘60s, ‘70s and ‘80s. There was no supporting evidence of any kind for this assertion. If they were to have any probative value, those assertions had to be supported by trading figures or the like. The evidence is vague and little reliance can be placed upon it.
Mr Shahin then gave evidence as to some trading figures at service stations operated by his companies. That evidence added little to the evidence of Messrs Weaver and Foley.
The third topic concerned the capacity to intensify the existing use of this site. Mr Shahin said that it would be possible simply to reinstate the six pumps which had earlier operated at this site and use the existing building with its small shop. Reference has already been made to Mr Foley’s evidence that if the six pumps did operate, this would result in about 60 to 80 trips per hour during peak periods. There was no evidence of any kind of intensification of the existing use other than the proposed redevelopment, the subject of this appeal.
For these reasons, the argument of Mr Hayes that the Commissioner had misapplied the evidence of Mr Foley is without foundation and must fail. It is apparent, therefore, that there is no basis for interfering with the Commissioner’s conclusions as to the volume of traffic.
The Courtney Hill Principle
Mr Hayes QC submitted that, although the Commissioner had in his reasons correctly stated the principle in Courtney Hill, he had not correctly applied that principle to the facts and circumstances of this case. It is apparent from the extracts from the Commissioner’s reasons which have already been quoted that this argument must fail. It fails also for the following reasons.
The Development Plan was superimposed on existing development. That has the consequence that the Development Plan must tolerate some expansion of existing uses in the zone: Courtney Hill Pty Ltd v South Australian Planning Commission (1990) 69 LGRA 351 per Jacobs J at 357 approved on appeal (1990) 59 SASR 259 at 262. As already noted, the Commissioner expressly recognised this principle in his reasons, when he said:
“It is established law that the reality of an existing land use which is in conflict with the objective or objectives for a zone has to be accepted when dealing with a proposed extension or intensification of that use: Courtney Hill Pty Ltd v South Australian Planning Commission and Others (1990) 59 SASR 259. That principle, however, does not, in my view, extend to support for development which results in a substantial worsening of the existing conflict, measured against the zone objective.”
The first sentence in that passage correctly states the effect of the decision in Courtney Hill, as Mr Hayes QC acknowledged.
The second sentence in that passage also is a correct statement of principle. What the principle expressed in Courtney Hill requires is that regard be had to the reality of existing development which conflicts with the Development Plan and thereafter an assessment must be made of the extent to which it is proper to allow an expansion of the existing use. That is apparent from the following extract from the reasons of Jacobs J at first instance which was upheld by the Full Court:
“Accordingly, it was open to the tribunal to hold, as a planning judgment, that expansion of an existing use in this area does not seriously disrupt or distort the implementation of the plan in other places designated for expansion of this kind, because by reason of established existing use in those other areas the plan speaks in vain to those other areas. In short a proposal for further development of existing use on the subject land, which does not change the genuine use of that land — it will still be as heretofore a supermarket and shopping centre with off-street carparking — would not be seriously at variance with the Development Plan in the sense that it would frustrate the implementation of the plan in other areas, if implementation of the Plan in those terms is not possible. In such circumstances, if the Plan tolerates, as it must, the existing use of the subject land, a use which was in existence and had received planning approval before the plan was promulgated, it can tolerate some expansion of that use which is not generically different from the existing use.”
In the Full Court (1990) 59 SASR 259 at 263 King CJ, with whom Duggan and Mullighan JJ agreed, expressed the same view in these terms:
“It seems to me that the extent of the variance from the Plan involved in the project must be judged in the context in which the project will be implemented. That context must include the fact that the existing shopping complex is a protected existing use which will continue. The impact upon the development of the town in accordance with proper planning objectives, of an extension to a shopping complex which is already there, appears to me to be quite different from the impact of a new complex of equal size. The Planning Authority cannot be precluded, as it seems to me, from assessing the reality of the extent of the variance from the Plan and that reality can only be assessed if the proposal is seen for what it really is, namely an extension of an already existing facility.”
Although the issues in Courtney Hill concerned the criterion that a proposal must not be seriously at variance with the Development Plan, the principle has an application in this case. The principle in Courtney Hill cannot be pressed too far. As the reasons of Jacobs J show, some expansion of the existing use can be permitted but it is a question of planning judgment as to how much expansion can be tolerated. In other words, the existing use does not enable the intending developer to expand the existing use without constraint.
It was implicit in the argument of Mr Hayes that there are few limits on the appellant’s ability to intensify the existing use. There are two reasons why that is not correct. The first is that the intensification of the existing use in a lawful manner would involve development as defined by the Development Act. That might be constituted by demolition or erection of new facilities or both. In that event, the appellant would have to obtain development consent. When considering whether to grant development consent, the Council could decide to limit the extent of the intensification so as to ensure that the intensification does not result in an undue amount of traffic being generated from the site. More importantly, there is nothing in the remarks of either Jacobs J or King CJ in Courtney Hill which implies that there can be unlimited intensification of an existing use. Indeed, as already mentioned, the effect of the remarks of their Honours is that there is a limit. What that limit will be is a matter of planning judgement.
For these reasons, the Commissioner has not wrongly applied the reasoning in Courtney Hill.
It is convenient to refer at this stage to the third ground of appeal listed above. Mr Hayes contended that the effect of the Commissioner’s reasoning was to treat the Objective and Principle 1 for this zone as mandatory in operation and as if the development was proposed on a green field site. The submission is without foundation. It is readily apparent from the Commissioner’s reasons that the Commissioner has expressly recognised that regard must be had to the existing use. He refers to that principle on several occasions. Furthermore, he has not in any sense treated the Objective and Principle 1 for this zone as mandatory. He has simply noted the stated objective for this zone and considered the proposal against it. The Commissioner approached the issues correctly and according to proper principle.
Different Provisions in Other Zones
I turn to the fourth ground which was based on a contract between Principle 6 of this Mixed Use Zone 2 and Principles in Mixed Use Zones 1 and 3. Principle 6 of the Mixed Use 2 Zone provides:
“Development within the Mixed Use 2 Zone should:
(a)    restrict direct vehicular access from the development site to South Road;
(b)    result in consolidation of allotments fronting South Road; and
(c)    present a substantial landscaped frontage to adjacent streets and roads.”
Mr Hayes drew attention to the fact that Principle 6 is concerned only to restrict direct vehicular access from the development site to South Road. He compared that principle with principles in two other Mixed Use Zones in the Council Development Plan, namely, Principle 5 of the Mixed Use 1 Zone and Principle 4 of the Mixed Use 3 Zone. Those two principles are in the same terms, namely,
“Development should result in low traffic generation, and direct vehicular access to arterial roads should be limited.”
He submitted that a comparison of these principles leads to the conclusion that the zone intends to restrict the generation of traffic on South Road only. The submission is misconceived. Unlike the Objective for Mixed Use Zone 2, the objectives for Mixed Use Zones 1 and 3 do not express the intent that development in those zones should result in low traffic generation. Instead, the intent is expressed only in the two principles of development control which have just been quoted. Further, it is quite apparent that Principle 6 in the Mixed Use 2 Zone has an especial concern, among other things, with direct vehicular access from a proposed development to South Road. It seeks to achieve that objective by restricting access to South Road as well as by consolidation of allotments. In short, Principle 6 deals with particular planning objectives for the South Road only and does not assist in the resolution of the issues in this appeal.
Conclusion
It is apparent from the Commissioner’s reasons that he has correctly identified the relevant planning issues and the relevant planning principles and that he has not misapplied the evidence. In the end, the Commissioner had to make a planning judgment as to whether the proposed development so offended the Objectives for this zone that it should not be permitted and, in making that judgment, he had to have regard to the capacity to intensify the existing use. He had regard to the principle in Courtney Hill but was not prepared to allow such a degree of intensification or optimisation of the existing use as was proposed. That is the exercise of a planning judgment with which this Court has repeatedly said it will not interfere: Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton (1993) 62 SASR 165 at 173 – 174. The Commissioner has recognised that the Development Plan can tolerate some expansion at this site but has determined that the proposal goes too far. In other words, the Commissioner had to decide where the line should be drawn. He has done so and there is no proper basis for interfering with that decision.
For these reasons, the appeal must be dismissed.

[2003] SASC 298

28 August 2003