CITY OF MITCHAM v FRECKMANN & ORS

[2000] SASC 101

DOYLE CJ. I would dismiss the appeal and I agree with the reasons to be given by Debelle J.

DEBELLE J. This is the second occasion on which these parties have been before this court concerning Mr Freckmann's application for development consent to enable him to park a large furniture removal truck on his residential property. The truck weighs 4.95 tonnes. Each occasion has been an appeal from the Environment Resources and Development Court which I will call ("the Environment Court").

Mr Freckmann owns a house at 7 Rochester Avenue, Colonel Light Gardens. The land is within the area of the City of Mitcham, which I will call the "Council". It forms part of the Colonel Light Gardens Suburb Zone, as prescribed by the Development Plan for the Council area. Colonel Light Gardens is a suburb which is significant in the history of town planning in this State. It was planned along garden-city lines by Charles Reade, South Australia's first government town planner.

Mr and Mrs Freckmann reside in the house. They conduct a furniture removal business from the house. Mrs Freckmann provides secretarial assistance. Another person is employed on a casual basis. That person does not reside in the house.

Mr Freckmann seeks to park the truck along one side of the house. The parking of the truck requires development consent. The parking of the truck in the manner proposed is neither a complying nor a non-complying use of land in this zone. Thus, the land can be used to park the truck only if the Council (or the Environment Court on appeal) should decide to grant the relevant consent.

Mr Freckmann's house adjoins a neighbourhood centre area. The area consists of shops with frontages to Goodwood Road. Those shops include a supermarket, takeaway food shop, video hire shop, pizza bar, a chemist and an automatic teller machine. The neighbourhood centre is separated from Mr Freckmann's house only by a lane.

Mr Freckmann applied for grant of development consent. The Council refused the application. Mr Freckmann then appealed to the Environment Court which allowed the appeal and granted development consent. The Council appealed to this Full Court on 27 July 1999. The Full Court upheld the appeal and set aside the decision of the Environment Court. The court then remitted the matter to the Environment Court for further hearing and determination in accordance with the principles expressed in its reasons.

The Environment Court again heard the matter on 8 September 1999. It heard further evidence on 18 November 1999. The Environment Court published its decision upholding Mr Freckmann's appeal and granting development consent subject to the following condition:

"The truck shall be parked only in a position adjacent to the western wall of the dwelling shown generally in Exhibit R4, so that: 1. it may be driven onto Rochester Avenue in a forward direction; and 2. no portion of the truck, when parked, shall extend south of the alignment of the rear of the front verandah of the dwelling."

The Council appeals from that decision to this court.

In its reasons for judgment, the Full Court held that the Environment Court, when first considering the proposal, had erred in a number of respects. It held that the Environment Court had wrongly made a presumption in favour of the proposed development and had wrongly stated the issue it had to determine by assuming that the proposal should be allowed, unless it was possible to identify a relevant provision of the Development Plan with which the proposal conflicted to a material degree. As the court said in para 18 of its reasons:

"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."

When reconsidering this application the Environment Court has adopted a different approach from that which it adopted when it first examined the proposal. There was also further evidence on the extent to which the amenity of the locality and of the subject land is affected by the activities carried out in the neighbourhood centre, and the Environment Court has focused on those effects. Some of the shops in the centre are open seven days in each week. The automatic teller machine operates 24 hours in each day. The operating hours of the shops are:

3. Takeaway food shop - 11.30 am to 8.00 pm and to 8.30 pm on Thursdays; and

The Environment Court also found that large trucks weighing between approximately 2.5 and 15 tonnes regularly visit this group of shops on weekdays and on Saturday and Sunday mornings. They use the car parking area and lane from the early hours of the day. Although, generally speaking, there are fewer truck movements on Saturdays and Sundays than on weekdays, there is a greater movement of motor vehicles within and to and from the car parking area on those days. The lane serves the supermarket and all deliveries are made to the rear entrance of the supermarket building which abuts the lane. Unloading takes place in the lane. Waste is stored in receptacles located in the lane and waste is collected from the supermarket by a truck which uses the lane.

Other factors which the Environment Court found detrimentally affect the subject land were noise from a compressor plant attached to the rear of the supermarket building, noise from motor vehicles and trucks, and noise from shop and car alarms and from persons using, visiting or servicing the shops. In addition, odours are emitted from the takeaway food shop and the rubbish collection area.

The Environment Court noted that the Objectives for the Colonel Light Gardens Suburb Zone seek to preserve the residential amenity of that zone in Objectives 1 and 2 but also, in Objective 4, seek to preserve existing shopping development in neighbourhood centre areas. The Development Plan thus preserves the neighbourhood centre adjoining Mr Freckmann's land. The court also noted that the Development Plan does not provide any buffer or transitional area between the activity situated within the neighbourhood centre and the residences immediately to the east of the centre which are in the Colonel Light Gardens Suburb Zone.

Noting the incompatibility between the extensive use of the neighbourhood centre and the immediately neighbouring residential development, and the likelihood of some conflict between authorised uses at the interface between these two zones, the court concluded that there should be some gradation level of amenity which would not be adversely affected if the truck was permitted to park in a position which the Environment Court identified as a preferred position. The court said:

"Alternatively, a reasonable observer in the present case, might expect to see the conflict manifest in some gradation of the level of amenity between the subject land and land further east in the same street - even the adjoining allotment. Both the land user and visitors to the area would be affected. Given this inevitability, the proposed development introducing as it does an element of commercial use to the subject land, would be of little consequence in amenity terms, having regard to its nature, and provided the truck is always parked in the preferred position on the subject land. The use of the subject land will remain primarily residential. The existing dwelling conforms with the desired residential character. No new building is proposed. While the non-residential development cannot be said to complement the heritage character of the zone, neither is it of such nature that, in the circumstances it will detract from the 'garden suburb' character of the zone. The parking of the truck, in the preferred position, and by this, the additional, commercial use of the subject land, will not affect materially, the amenity of the locality whether the locality is that described by Ms McConnell or Mr Tutte, the expert planning witnesses who assisted the Court."

In reaching this conclusion, the Environment Court had regard to the need to preserve the amenity of the Colonel Light Gardens Suburb Zone. The preferred position of the parking of the truck is that stated in the condition for the grant of development consent.

Shortly stated, the effect of the Environment Court's decision is that, while the parking of this truck is inconsistent with the objective of preserving the residential character of the Colonel Light Gardens Suburb Zone, the amenity of the neighbourhood immediately adjoining the neighbourhood centre is affected by the activity in that centre and those activities are preserved by Objective 4 of the objectives for the zone. The parking of this truck in the preferred position will not have any further detrimental effect upon the land in the immediate neighbourhood of the neighbourhood centre. This decision concerns only this parcel of land affected, as it is, by the activities at the neighbourhood centre. The situation would be quite different if the subject land were not at the border of this zone. It is an element of commercial use which one might fairly expect to find at the interface between the residential part of the Colonel Light Gardens zone and this neighbourhood centre in that zone.

The Council has not been able to demonstrate that in any respect the Environment Court has made an error of law. That court had to make a planning judgment whether consent should be granted. In making that judgment on this second occasion, it has had regard to the relevant provisions of the Development Plan and to all relevant factors. It has not had regard to irrelevant factors. Although, as I will note shortly, there are some features of the Environment Court's reasoning which might be criticised, they do not affect the final outcome. This court is reluctant to interfere with the Environment Court's conclusions upon essentially planning issues. It will interfere only where the court has made an identifiable and egregious blunder, has made a demonstrable error of fact or principle, or the circumstances are in some other respect quite exceptional. None of those conditions apply in this case. This court is reluctant to substitute its planning opinion for that of the Environment Court and will be minded to do so only where the appellant is able to demonstrate some fundamental departure from proper planning principles: Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton (1993) 62 SASR 165 at 173. This is a borderline case. The Environment Court might equally have decided to refuse the development consent. That only serves to emphasise that this court should not interfere. This is a special case resulting from the problems at the interface between these two zones.

Mr Henry, who appeared for the Council, contended that the Environment Court had not identified any positive feature of the development which speaks, even in a small sense, in favour of the development and therefore the Environment Court ought to have refused development. While it might be appropriate, on occasions, to identify planning advantages in the proposal, this is not such an occasion. This particular kind of development is not addressed in the plan. The plan is silent as to any relevant aspect. The Environment Court was required, as it did, to have regard to the conflicting objectives expressed in Objectives 1 and 4 for the Colonel Light Gardens Zone.

There are two aspects of the Environment Court's reasoning which should not pass unnoticed. First, the court expressed the view that, with the passage of time and the inevitable changes, for example, in modes of travel, the provision and nature of services, and the demands of the community, there has been a modification of the nature of the original garden suburb. It seems that the Environment Court was calling these facts in aid of a departure from the principles which underline the garden city concept and which the Development Plan seeks to preserve. Certainly, with the passage of some 70 years since the garden suburb was first created, there have been changes. However, it cannot be overlooked that the Development Plan, which has been prepared in relatively recent times, expressly seeks to protect and preserve the concept of the garden suburb in the manner stipulated in the plan. Notwithstanding this defect in its reasoning, it is not appropriate to interfere with the decision since the comments which the court made appear to have been directed more particularly to the neighbourhood centre to emphasise this change to the amenity of the land immediately adjoining the neighbourhood centre.

The second criticism concerns the condition imposed by the court. The condition requires the truck to be reversed into the driveway so that, when parked, no part of it extends beyond the front of the dwelling. The court concluded that in this position the truck will not materially affect the amenity of the locality. It is not clear what the court's conclusion would have been if the truck were not reversed into the driveway to the stated position. The court appears to be imposing a condition to make the development appropriate. This court has repeatedly reminded planning authorities, including the Planning Appeal Board and the Planning Appeal Tribunal, predecessors of the Environment Court, that it is undesirable to approach a planning decision by framing conditions desired to make the proposal suitable and appropriate. See Remove All Rubbish Pty Ltd v City of Salisbury [1989] SASC 1286; (1989) 51 SASR 26 at 34, and South Australian Housing Trust v Lee (1992) 81 LGERA 378 at 390.

"If an attempt is made to render a proposed development compatible with the amenity of the surrounding locality by hedging it about with a series of conditions, it must be seriously doubted whether the proposal should be permitted at all. First, it is reasonable to anticipate that enforcement of the conditions could prove difficult. The breach must not only be detected by also be capable of proof in enforcement proceedings. While the enforcement proceedings are being prosecuted, those immediately affected might have to endure the effects of non-compliance. Secondly, and perhaps more importantly, planning authorities must take care to ensure that the power to impose conditions does not obscure the real question, namely, whether the proposed development is appropriate in that location. The correct approach was described by Jacobs J in Remove All Rubbish Pty Ltd v City of Salisbury [1989] SASC 1286; (1989) 51 SASR 26 at 34: 'The primary concern of a planning authority is to control land use and the first question to be addressed should always be whether in the circumstances of the proposed development is at least prima facie a suitable and appropriate use of the subject land having regard to the provisions of the Development Plan. To approach a planning decision by framing conditions designed to make the proposal suitable and appropriate is to bypass the primary question.' It is only when it has been decided that a proposed development is compatible with the relevant provisions of the Development Plan and the orderly and proper planning of the locality that a planning authority should consider the question whether conditions should be imposed: Beer v South Australian Planning Commission (1988) 142 LSJS 20 at 25 and, on appeal, (1988) 145 LSJS 284 at 289-290."

These observations have an immediate application to this proposal. Obviously it will be difficult for the Council to enforce the condition as to the manner in which this truck should be parked. Nevertheless, I do not think that the condition is of sufficient concern to warrant a departure from the reasons of the Environment Court.

For all of these reasons I would dismiss the appeal.

NYLAND J. I also agree the appeal should be dismissed for the reasons given by Debelle J.