Aedlik Nom P/L v DC Kingscote & Emu Bay Hol Homes No ERD-96-287 Judgment No OE393 [1997] SAERDC 393

"... the proposed development of two additional units at this site is considered to expand the use of the land outside of the parameters of small scale tourist accommodation and that the proposal is therefore regarded as a consent development which is required to be subject to the public notification process and considered by Council on merit."

The proposal, described as "tourist accommodation development two additional units", was then publicly notified on 15 April 1996. Representations in respect of the proposed development being the two holiday units were received from Aedlik Nominees Pty Ltd, Ms Margaret Conaghty, Ms Eleonora Antonietta Colpo and Ms Stephanie Davies. By its decision made on 3 July 1996, the Council granted provisional development plan consent to the proposed development being the two holiday cabins, subject to ten conditions, which are set out hereunder:

"1. The Development is to be carried out in accordance with the approved plan and to the satisfaction of Council.

2. Paint the exterior of the structure with suitable good quality paints in appropriate shades to blend with the existing native features of the surroundings and landscape. Such painting must be carried out as soon as possible but within a maximum period of 12 months from the date of this consent and must be maintained in satisfactory order to the satisfaction of Council.

3. All stormwater from roof and sealed areas to be discharged to the satisfaction of Council so that no nuisance or inconvenience will occur to neighbouring properties.

4. No on-site advertising shall take place without the prior consent of Council.

5. No unreasonable disturbance or pollution to the amenity of the locality shall be created by way of dust, pollution, noise, electrical interference or other means.

6. The site must be kept in a neat and tidy manner at all times.

7. The development must be connected to an approved waste control system. Applications for approval of a waste control system must be assessed by Council prior to commencement of any plumbing work.

8. The area between the finished floor level and the finished ground level shall be infilled with timber/masonry or similar to the satisfaction of Council.

9. Water Storage Facilities - Water storage facilities with a minimum capacity of 45,000 litres must be provided for the development.

10. The maximum number of persons accommodated at any one time must not exceed 36 persons. Further development of accommodation units or the like on the site will not be considered by Council."

By notice of appeal lodged on 16 July 1996, Aedlik Nominees Pty Ltd, Stephanie Davies and Eleonora Antonietta Colpo appealed against the decision of the Council to grant consent to the addition of two holiday cabins to the subject land. The appeal was specified to be against the granting of provisional development plan consent by the Council for the applicant to erect two additional units on the subject land for a tourist accommodation development. No mention was made therein of the proposed barbeque area development.

When the matter came on for hearing, Mr Costello, on behalf of the appellants, notwithstanding the contents of the notice of appeal filed in this Court, submitted that the appeal before the Court was in respect of the entire proposal for which development approval was sought in the development application form dated 22 February 1996. Having regard to the fact that the hearing was proceeding in Kingscote and that witnesses had been arranged from Adelaide for the hearing, some of whom were already present in the Court precincts, and with the parties agreement, I determined that the hearing should proceed on the assumption that it was in respect of both aspects of the proposal. The issue raised by Mr Costello would be the subject of submissions by counsel at the conclusion of the hearing, to be determined together with the planning merits of the proposal properly before the Court.

On the second day of hearing Mr Henry for the applicants advised that his clients no longer wished to proceed with the barbeque area proposal. To completely effect these new instructions, Mr Henry undertook to the Court that he or his clients would make application to the Kangaroo Island Council for cancellation of the provisional development plan consent granted in respect of the barbeque area proposal on 3 April 1996. That disposed of Mr Costello's foreshadowed submission.

Meanwhile, Mr Henry had foreshadowed that the making of a submission that the appellants were not properly before the Court, on the basis that there were no third party appeal rights in respect of the provisional development plan consent granted. It is appropriate to deal with this submission, which was duly made and argued, at the outset, for if there are no third party appeal rights in relation to the decision complained of, then the Court is without jurisdiction to hear this purported appeal.

Mr Henry referred me to Schedule 9 to the Development Regulations 1993, and in particular Part 1 which itemises category 1 developments. Developments designated as Category 1 developments do not require public notification : Development Act - Section 38(4). Pursuant to Section 86(1)(b) and Section 38(14) of the Development Act, a person who is entitled to be given a notice of a decision in respect of a Category 3 development has a right of appeal against the decision by a relevant planning authority with respect to the development the subject of the decision. Section 86 deals with appeal rights under the Development Act. There is no provision for an appeal by a person, not being the applicant, in respect of a Category 1 development.

The issue is whether the Council properly categorised the proposal to add two holiday cabins to the subject land as a Category 3 development, and whether, if it wrongly categorised the development, this Court has jurisdiction to entertain the appeal by the appellants.

Paragraph 2(a) of Part 1 of Schedule 9 lists as category 1 development the construction of a detached dwelling or a single storey dwelling or dwellings (except where the development is classified as non-complying in the Development Plan). Mr Henry submitted that the proposal fell within this sub-paragraph.

Having had regard to the definition of "detached dwelling" in Schedule 1 to the Development Regulations, I am certain that the holiday cabins cannot be described as such, regardless of whether each of them constitutes a "dwelling". Neither is to be situated on a site that is held exclusively with it and which has a frontage to a public road or proposed public road, which is a requirement for a dwelling to be described as a "detached dwelling" .

The buildings are each of a single storey. Are they to be properly described as "dwellings"? According to the Development Regulations:

"'dwelling' means a building or part of a building used as a self contained residence" (Schedule 1).

Mr Henry asserted that the proposed buildings were to be self contained, on the evidence. He also submitted that each constituted a "residence" and in support thereof referred me to a decision of the City of Adelaide Planning Appeal Tribunal, namely Margaret Lisantey trading as Linkeith Enterprises v. Corporation of the City of Adelaide, unreported, CAPAT No 13 of 1988. I did not find the discussion of the term "residential" in this determination to be support for Mr Henry's submission. If anything, the reasoning therein supports the conclusion of the Planning Appeal Tribunal in Vandeleur and Others v. District Council of Willunga and Another (1984-1986) 21 APAD 100 at 103:

"... From a reading of the Shorter Oxford English Dictionary we are of the opinion that the word residence implies a degree of permanence as a place of abode or at least a regularity in its use by a person who is described as being resident in it."

According also to The Macquarie Dictionary (second edition 1991) "residence" continues to imply a place of permanent or regular abode. I am satisfied that the proposed holiday cabins cannot be described, in common parlance, as "dwellings", even if they can be described as "self-contained". Neither will be a place of permanent or regular abode for any person. Accordingly the proposal by the applicants to erect holiday cabins cannot be described as Category 1 development within paragraph 2(a) of Part 1 of Schedule 9 to the Development Regulations. The proposal was correctly treated as a Category 3 development. I am satisfied that the appellants made representations in accordance with Section 38 of the Development Act and thus properly have a right of appeal to this Court. The Court has jurisdiction to hear this appeal.

The subject land is located in a Future Urban Zone within what was the area of the District Council of Kingscote. It is an allotment of some 2.22 hectares with a frontage to Bayview Road, which is unsealed, on the eastern boundary of the allotment. The land is elevated above the settlement of Emu Bay to the east and views of the subject land can be obtained from the settlement, the beach at Emu Bay and the road from Kingscote to the south.

Mr and Mr Watters occupy a house on the subject land, situated at approximately the highest point, towards the north-western corner. Their residence includes a guest wing providing accommodation for visitors. Towards the south-western corner of the allotment stands a holiday home which was erected pursuant to an approval granted in 1991. Between this holiday home located at a distance of 11.4 metres from the southern boundary and another holiday home also approved in 1991 which is located further east on the allotment at a distance of 20.5 metres from the southern boundary and 79.15 metres from the eastern boundary (Bayview Road) is the intended location for the proposed holiday cabins. The subject land rises generally from the southern boundary towards the north and west. Towards the northern boundary and located at a distance of 14.0 and 20.5 metres from that boundary and 64.15 and 86.15 metres respectively from the eastern boundary (Bayview Road) are two holiday cabins, approval for which was granted in 1993. These stand prominently on the subject land.

Since Mr and Mrs Watters purchased the subject land in 1990, they have carried out extensive planting and endeavoured reasonably successfully, to sustain that planting by hand watering. There has been extensive planting of eucalyptus, casuarina and acacia species along the boundaries generally, which has been carried out in stages, so that in some places it amounts to a screen of vegetation, while in other places the plantings are young and yet to grow, and in yet others, more planting is required to be carried out. There is an extensive garden area east of the residence which appeared to comprise mostly low-growing plants and shrubs. Other screen planting has been carried out or is proposed at strategic positions on the subject land, as part of an overall landscaping plan.

The subject land is supplied with electricity, but there is no water supply. A water tank is located close to each of the holiday homes and the existing cabins and three water tanks are located adjacent to the residence. It is proposed to erect a water tank south of the easternmost of the two proposed cabins.

The proposed cabins will increase the tourist accommodation capacity of Emu Bay Holiday Homes. The existing facilities could, if fully utilised, accommodate 30 guests. The proposed cabins will be capable of accommodating 6 guests, bringing the total capacity of the facility to 36 guests.

The cabins are to be constructed of hardiplank and colorbond, in colours to match the existing holiday homes and the Watters' residence. The colours of the existing holiday cabins are lighter shades of the same colours. It is proposed to bench the cabins on the site. The elevation plans show that the cabins would have a ridge height of 3.3 metres each.

The existing roadways, pedestrian pathways and parking areas on the subject land are gypsum surfaced. It is proposed that any new driveway, path or parking area to be constructed in association with the proposed cabins would be of the same material, although Mr Watters, in evidence, indicated that he would be prepared to consider the use of different surfacing material in any effort to minimise any dust nuisance.

The existing residence, holiday homes and cabins are presently serviced by septic effluent disposal facilities and this is intended also for the proposed cabins. Presently solid waste is collected and taken from the site by Mr Watters. It is proposed that this course would be continued, so that solid waste generated by any occupants of the proposed cabins would be dealt with in the same way.

The fuel used for cooking facilities in the existing accommodation facilities is bottled gas, which is delivered to the site. It is proposed that the new cabins would use the same fuel, to be delivered in the same way.

The allotment immediately to the south of the subject land is owned by one of the appellants, Stephanie Davies. The land is vacant. Mrs Kildea, who is a director of Aedlik Nominees Pty Ltd, one of the appellants, owns and occupies the allotment abutting immediately to the north. Erected on that land is a large, prominent two-storey house and a large shed. Further north, separated by one allotment from Mrs Kildea's land, is land owned by the third of the appellants, Ms Eleonora Antonietta Colpo. There is a residence on Ms Colpo's land, in which she lives from time to time; her primary residence and florist business being located in the suburbs east of Adelaide. Ms Colpo is also using her allotment for the growing of flowers for the floristry industry.

The land to the west of the subject land is used for grazing purposes. It is within the Future Urban Zone as is the subject land and the appellants' land, together with the land to the east between Bayview Road and the settlement of Emu Bay. This land to the east is partly conservation reserve, partly parkland and partly in private ownership. There are no structures on the land.

The settlement of Emu Bay comprises approximately 100 allotments of approximately 1,000 square metres each. It is zoned Holiday House. Further east incorporating the Esplanade and the coast is the Urban Coastal Zone. The land to the north and south of these areas is zoned Coastal.

All expert planning witnesses agreed that neither the proposed development nor the present use of the subject land accords with the objectives for the Future Urban Zone, which are:

"Objective 1: A zone comprising land to be used primarily for non-intensive farming purposes until needed for future urban expansion.

Objective 2: Retention of land within the zone as a buffer between relatively unrestricted farming activities and township areas."

However, the proposed development is clearly a use subject to consent, as it is neither a kind of development listed as non-complying in Principle of Development Control 12 for the Zone, nor of a kind listed as complying in Principle of Development Control 11 for the Zone.

I note here that I gave more weight to the planning evidence of Messrs Hutchison and Rumsby than to that of Mr Grinnell. I accept that the latter has some planning expertise through processing and advising on development applications in recent years; but he has insufficient experience to qualify him as an expert in the same degree as Messrs Hutchison and Rumsby, in the absence of formal academic planning qualifications.

Tourist accommodation is addressed by the Zone principles of development control; in particular Principle of Development Control 6, which refers to caravan parks and camping grounds being suitable in certain parts of the zone subject to the quality of the development. Future Urban Zones in the area of the former District Council of Kingscote are located at the perimeter of the Kingscote township and the Parndarna, Emu Bay and Brownlow settlements.

The only guideline specifically directed to residential-type development in the Future Urban Zone addresses residential flat building development. All planning witnesses seized on this principle (Principle of Development Control 5) as being of assistance in the assessment of the proposed holiday cabin development, in the absence of anything more specific. Although the principle does not specifically address holiday cabins of the nature proposed, it does, by its language, indicate what is desirable in terms of residential flat buildings and good planning logic dictates that it could be used as a guide for other building development. Parts of Principle of Development Control 5 could be said to be in amplification of Principle of Development Control 10 for the zone. It is relevant to have regard to, inter alia, Principle of Development Control 5 for the zone, in the assessment of the proposed development, bearing in mind that it is primarily a guide for residential flat buildings.

The background statement set out in the "Introduction" part of the Development Plan for Kangaroo Island acknowledges the importance of tourism to the economy of the Island:

"The economy is based on the production of wool, cereals and some beef canie (sic). Fishing and tourism are also important, the varied coastal scenery being the island's greatest tourist asset. Gypsum is mined at Salt Lake and at New Lake.

An increase in tourism could result in the employment of more people in service activities. A significant increase in this class of employment, however, would be dependent upon the island's capability of attracting large numbers of tourists all the year round rather than seasonally. Cheap and convenient access to the island is a prerequisite to this end."

One would thus expect the Development Plan to encourage tourist accommodation facilities in suitable parts of Kangaroo Island.

Tourism development is addressed specifically in the Development Plan for the area of the former District Council of Kingscote, in Principles of Development Control numbers 68 - 75 (inclusive). The Development Plan provides for a Tourist Accommodation Zone which encompasses a small area of land near Flinders Chase with its objectives suggesting development of a major integrated bushland village tourist facility. Tourist accommodation is envisaged in the Holiday House Zone in a principle of development control similar in wording to Principle of Development Control 6 in the Future Urban Zone, with the additional statement that development of this nature should be extensively landscaped to preserve and enhance the appearance of the locality. The principles of development control for the General Farming Zone also mention tourist accommodation, advocating that it be undertaken "only where it will be of small scale and supplementary to existing development, such as accommodation facilities on a farm property." Tourist accommodation facilities are discouraged in the Coastal Landscape Zone : Principle of Development Control 3. I find that tourist accommodation is not discouraged in the Future Urban Zone; indeed, it is a zone where some tourist accommodation could suitably be located, depending on the nature of the proposal.

Much time was spent at the hearing on whether the proposed development would take the existing accommodation facility into the category of "major tourist accommodation" or, at the other end of the scale, out of the category of "small scale" tourist accommodation. The Development Plan discourages major tourist accommodation outside existing townships, settlements or urban areas : Principle of Development Control 68. Principle of Development Control 5(d) for the Future Urban Zone, dealing with residential flat buildings, suggests that proposed development catering for tourist accommodation should be small scale.

The Court is being asked to consider whether two holiday cabins should be erected on the subject land as proposed. The Court must consider that proposal in the context of what is existing. There is support for that approach, albeit in a different context in Courtney Hill v. SA Planning Commission (1995) 59 SASR 259, but such an approach is nothing less than sensible and reasonable, in any event. The proposed development is not for a new tourist accommodation facility; it is merely to add to an existing one. The proposed additions will not result in a major tourist accommodation facility. Neither will it result in a small scale facility, as was agreed by all planning witnesses. The facility, with the addition of the proposed development, will provide accommodation for a maximum of 36 persons (in addition to the managers) in seven separate single storey buildings on an area of 2.22 hectares. Having regard to all aspects of the facility proposed and the nature and range of tourist accommodation facilities generally, I find that the result, should the proposed development be approved, will be a medium scale facility.

Principle of Development Control 5 for the Future Urban Zone, although relevant, carries less weight when applied to the proposed development than some other provisions of the Plan, because it is directed to residential flat building development. Thus, the suggestion that development catering for tourist accommodation should be small scale must be read in light of the criteria having been set out for residential flat buildings. It cannot be directly applied to the proposed development which comprises a number of separate, small buildings, except in a general sense.

Looking now at the proposed development, namely the erection of the two holiday cabins, I find that they will not detract from the character and amenity of the locality, as it exists presently. I accept the locality suggested by Mr Rumsby, which I understand was not disagreed with by the other planning witnesses. The fact is, a number of buildings already exist on the subject land. The addition of two cabins of the dimensions proposed, provided they are located as proposed on the low side of the subject land and benched in, and provided the finishes are such as to blend in with the surrounding landscape, will have an insignificant impact, visually, within the locality.

Although Mr Hutchison may not have disagreed with Mr Rumsby's locality, he was concerned that the subject land could be viewed from both the Kingscote Road and the settlement and beach at Emu Bay. I acknowledge that is so. However, while those facts would be important in the assessment of any new facility on the subject land, were it to be unimproved land at the present time, they are of less relevance now. Given what already exists, and the nature of what is proposed, I am satisfied that the proposed cabins, benched into the intended location, of themselves will not detract from the visual amenity of those persons driving towards Emu Bay from the direction of Kingscote, those in the Emu Bay settlement or those using the beach at Emu Bay.

I am even more fortified in my views by the evidence with respect to the proposed landscaping of the site. Not only will the landscaping, if carried out as proposed, provide at least partial screening of the view of the buildings from outside the subject land, but it will also enhance the amenity of the environment for those using the proposed cabins. I was impressed by the efforts Mr and Mrs Watters have made since their purchase of the subject land in 1990 with regard to the planting and nurturing of trees and shrubs on their land and have no reason to doubt that they will continue to carry out plantings as proposed, and to nurture and maintain the landscaping. However, should approval be granted, a condition to this effect should be imposed in my view, as the landscaping was not part of the proposal approved by the Council. I am mindful that it will take some time for screening to improve the view of the cabins from outside the subject land, but I accept that in the context of the existing development and landscaping on the subject land, and their intended location, the cabins will not have much visual impact.

With respect to impacts other than visual, on the locality, I am satisfied that they will be minimal. The clear evidence, which I accept, was that additional travelling to and from the subject land for the purpose of service deliveries and removal of rubbish, would be insignificant, in the context of the current arrangements, which I expect to continue. There will, of course, be additional traffic generated by additional tourists accessing the subject land, given the increased capacity that will be available with the addition of the proposed cabins, but I am satisfied that this will not result in a significant increase in traffic, such as to detrimentally affect the locality.

Dust was raised as an issue. I acknowledge that from time to time Mrs Kildea might find dust from the internal roads on the subject land to be a nuisance. The addition of the proposed cabins would not add, in any major way, to any dust nuisance that now exists. I note in this regard that Mr Watters did indicate that he would consider using surfacing material other than gypsum for the internal roads, in the future. Perhaps a condition to this effect would overcome any perceived future nuisance.

Mrs Kildea was also concerned with the noise that might be generated from the subject land with the potential for increased numbers of persons on the subject land. I am satisfied that the addition of the proposed cabins would not add significantly, if at all, to any noise problem that might presently exist. I should add that I am not persuaded that there is any present noise nuisance generated from the existing facility. There was no evidence of a present noise nuisance.

I am satisfied that consent should be granted to the proposed development namely the erection of two holiday cabins, as proposed, on the subject land, subject to conditions addressing at least landscaping, internal road surfacing and the external colours of the cabins.

The foregoing was posted to the parties in memorandum form, on 23 December 1996. On 23 January 1997, the parties appeared before me and made submissions as to conditions to be attached to a consent.

I was provided with a draft set of conditions prepared by the Kangaroo Island Council. There was substantial agreement on these conditions. Of course, it does not follow that because there is agreement, the Court will automatically impose the agreed conditions. It will only impose a condition where it is persuaded that it has power to do so.

On behalf of his client, Mr Costello sought the imposition of additional conditions. I am unable to impose a condition requiring the completion of the verandahs on existing holiday cabins 1 and 2. Those cabins were not the subject of the application now before this Court. If there is concern that they have not been completed in accordance with an existing development authorisation, then there are remedies available under the Development Act. To some extent it is necessary for conditions to address parts of the subject land aside from the site of the proposed holiday cabins, because use of the cabins will have impacts outside of the site. However, a condition of the nature sought, in relation to holiday cabins 1 and 2 cannot be said to be truly related to the proposed development.

I am not prepared, by way of condition, to vary the landscaping of the subject land proposed at the hearing and described in the site landscape plan being Exhibit B. My conclusions with respect to the proposed landscaping and the screening it is likely to provide for the proposed development are set out above.

I have considered whether the condition relating to proposed landscaping requires specific words to prevent the lopping, by the applicants, of trees planted in accordance with the landscape plan, which lopping might be undertaken to retain specific views from the subject land. Under cross-examination, Mr Watters stated that he would consider lopping the screen planting if the view from the cabins was being impeded. Given the importance of the landscaping for screening purposes, I have decided that the landscaping should be "maintained in good heart and natural condition at all times", notwithstanding that the premise underlying the landscaping plan in the circumstances of this matter, must have been that the species would grow naturally, without pruning or lopping (except for reasons of safety).

I am not prepared to impose a condition that all work with respect to the cabins be completed within twelve months of the date of consent, notwithstanding the parties' agreement. However, I agree that the proposed cabins should be properly finished prior to use. The consent sought is for the erection of two holiday cabins. There is power, pursuant to Development Regulation 48, in a relevant authority or this Court, to extend the period within which a development to which consent has been granted must be substantially completed, but no power to shorten that period. While the Development Act by Section 42, gives this Court and a relevant authority wide powers with respect to conditions, any condition imposed, inter alia, must not conflict with the legislation, if it is to be a lawful condition. Should the applicants wish to complete the development within the next twelve months, that is open to them, but they cannot be so restricted by condition.

An order will issue granting consent to the development being the erection of two holiday cabins, subject to the following conditions:

1. Other than as varied by these conditions, the proposed development shall be undertaken in accordance with the following plans:

(a) The proposed site landscape plan tendered and marked Exhibit B, save and except for the barbeque area marked "approved gazebo";

(b) The site plan tendered and marked Exhibit R1 at page 4, save and except for the barbeque area marked "BBQ";

(c) The elevation plans tendered and marked Exhibit A (rear view) and Exhibit R1 at page 38 (front view);

(d) The floor plan of the two bedroom holiday cabin tendered and marked Exhibit R1 at page 37;

(e) The floor plan of the one bedroom holiday cabin tendered and marked Exhibit R1 at page 36.

2. The holiday cabins shall be built on a concrete slab foundation.

3. The holiday cabins shall be finished as follows:

(a) Roof areas shall be painted Colorbond "Mist Green";

(b) External walls shall be painted Solver "Murray Cliffs";

(c) Window frames shall be of aluminium and be anodized brown.

The painting shall be carried out prior to use of the holiday cabins.

All work must be done to the reasonable satisfaction of the Council.

4. The site and buildings shall be maintained in a neat and tidy manner at all times, to the reasonable satisfaction of the Council.

5. Water storage facilities with a minimum capacity of 45,000 litres must be provided on the site for the holiday cabins prior to any use being made of the holiday cabins.

6. Prior to the use of the holiday cabins, the holiday cabins shall be connected to a waste disposal system approved by the Council.

7. All stormwater from roof and sealed areas associated with the holiday cabins shall be discharged in a manner that prevents nuisance or inconvenience to neighbouring sites and to the reasonable satisfaction of the Council.

8. All internal roads shall be covered with quarry fines or such other surfacing material as is necessary to provide a durable surface so as to minimise mud and dust to the reasonable satisfaction of the Council. Thereafter all internal roads shall be maintained in good condition to the reasonable satisfaction of the Council.

9. All landscaping shall be developed in accordance with the site plan tendered and marked Exhibit B and shall be maintained in good heart and natural condition at all times, with any diseased or dying plants being replaced wherever necessary.

10. No vehicle delivering water or gas supplies shall enter the subject land prior to 8.30 am on any day.

11. The maximum number of paying guests accommodated on the site at any one time shall not exceed 36 persons.