CITY OF MITCHAM v FRECKMAN & ORS No. SCGRG-98-1399 Judgment No. S234 [1999] SASC 234

CITY OF MITCHAM v FRECKMAN & ORS No. SCGRG-98-1399 Judgment No. S234 [1999] SASC 234 - SASC 1999 case summary — Zoe

[32]

"Zone Principle 11, which designates those forms of development which are non-complying in the Colonel Light Gardens Suburb Zone, is extremely restrictive. It lists not only those forms of commercial and industrial activity which are typically excluded from residential zones in metropolitan Adelaide, but also all forms of residential development other than a detached dwelling and group dwellings. Significantly, however, it does not include the parking of a vehicle in excess of 3000kg in weight. That being the case, it follows that, at least in some parts of the Colonel Light Gardens Suburb Zone, the parking of such a vehicle in association with a residential use of land may be acceptable. Whether it is acceptable in any particular instance will depend on the nature of the locality and the particular characteristics of the land on which it is proposed to park the vehicle, and whether it might be in conflict with other relevant provisions of the Development Plan. We accept the evidence of Dr Garnaut as to the special qualities which inhere in Charles Reade's design for Colonel Light Gardens. We also agree with the position stated by Judge Roder in his decision in Isaacson, that: 'changes which involve alterations to the basic roots of the concept behind the zone should perhaps only be undertaken with extreme caution so that what is already there and which has a lasting value is not in a position to be nor is in fact undermined.' Will the subject proposal involve 'alterations to the basic roots of the concepts behind the zone?' It is important to note that this statement was made in Isaacson in the context of a proposed division of one of the allotments forming part of the original Reade subdivision layout. In this instance that layout will be unaffected, as will the space around buildings that is also a key feature of Reade's plan. We acknowledge that the vehicle which the appellant wishes to park on his land is larger than vehicles typically associated with the residential use of land, although we note that it is by no means uncommon for other large vehicles, such as caravans, mobile homes, and boats on trailers, to be parked on residential land. The fact that the appellant's truck has a manifestly commercial function, in contrast to the recreational function associated with caravans or boats, does not alter the fact that the parking of any large vehicle on residential land affects, to some degree, the appearance of that land. Inasmuch as it is necessary to obtain planning consent for the parking of any vehicle weighing more than 3000kg on residential land, the question to be resolved then becomes whether the effects on the locality of the parking of the truck on the land is such as to conflict, to a material degree with the relevant provisions of the Development Plan."

[44]

Section 33 of the Development Act 1993 states the task for a planning authority when determining whether to grant development consent to a change in the use of land. It is to assess the proposed development against the provisions of the appropriate Development Plan. That simple statement obscures the complexity of the task. It is first necessary for the planning authority to examine the proposal and determine its nature: see reg 16 of the Development Regulations 1993. Having done so, the planning authority must assess the proposal against the appropriate provisions of the Development Plan_._ That will require the authority to identify the provisions which are relevant to the particular proposal and to determine whether they speak for or against the proposed development. The relevant provisions will, of course, vary from proposal to proposal. The task does not consist only in identifying relevant provisions of the Development Plan as a kind of checklist against which the proposal must be assessed. That is one aspect of the task. But it is important also 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 provision 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 that it might merit planning approval. In addition, as was noted in South Australian Housing Trust v Lee (1993) 81 LGERA 378 at 388, there may be occasions when the planning authority must resolve inconsistencies within the Development Plan_._ Those inconsistencies will often be resolved by considering the desired character and amenity of the zone.

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