CITY OF MITCHAM v FUSCO & ANOR No. SCCIV-01-1199 [2002] SASC 423

DOYLE CJ: I would dismiss the appeal. I agree with the reasons given by Bleby J for so ordering.

LANDER J. I agree with Bleby J's reasons. The appeal should be dismissed.

This is an appeal against a judgment and order of the Environment Resources and Development Court ("the Environment Court") quashing an enforcement notice which had been issued by the appellant ("the Council") pursuant to s 84 of the Development Act 1993.

The respondents, Mr and Mrs Fusco, are the registered proprietors of the land comprised in Certificate of Title Register Book Volume 5687 Folio 947. The land is situated at 103 Sheoak Road, Belair. In 1998 Mr and Mrs Fusco planted about 300 olive trees on the land. The Council maintained that the appellants required development approval for the planting of these olive trees. Mr and Mrs Fusco considered that they did not.

Whilst reserving the right to argue that development approval was not required, on 19 May 1999 Mr and Mrs Fusco applied for provisional development plan consent to plant the olive trees. The Council refused this application by notice dated 21 December 1999. On 11 February 2000 Mr and Mrs Fusco lodged an appeal against that refusal with the Environment Court. On 23 February 2000 Mr and Mrs Fusco were served with an enforcement notice pursuant to s 84 of the Development Act 1993 dated 14 February 2000. The notice claimed that Mr and Mrs Fusco had breached the Act by establishing the olive grove without development approval, subsequent to a development application being refused. It required that the olive grove be removed from the property on or before 14 March 2000.

On 25 May 2000 the Environment Court determined that the planting of the olive trees by Mr and Mrs Fusco was a complying development for the purposes of s 35(1) of the Development Act 1993. Accordingly, the Environment Court directed the Council to grant provisional Development Plan consent to the development application.

That decision was the subject of an appeal to this Court: City of Mitcham v Fusco [2000] SASC 250; (2000) 110 LGERA 14. For the purposes of those two appeals, as the Full Court recorded (ibid at [7]), it was common ground between the parties that the planting of the olives constituted "development" within the meaning of s 4 of the Development Act. The only basis on which that concession could be made was that there was an acknowledged change in use of the land. The Full Court allowed the appeal and declared that the development was not a complying development under the relevant Development Plan, and the order directing the Council to approve the plan had to be set aside. However, that did not dispose of the appeal to the Environment Court. That appeal is still outstanding and remains unresolved.

Mr and Mrs Fusco also appealed to the Environment Court against the notice served on them pursuant to s 84 of the Development Act. On 1 August 2001 the Environment Court allowed that appeal and made an order quashing the s 84 notice. The Council now appeals to this Court against that decision of the Environment Court.

Mr and Mrs Fusco purchased the land in 1984. It has an area of between 14.5 and 15 hectares.

The previous owners lived in a house on the land, and engaged in a number of activities there. They maintained an apple and pear orchard, grew strawberries, maintained a nursery for young citrus trees, grew carnations for cut flower production, grazed sheep and cattle, ran horses and kept poultry. There were walnut trees and a few olive trees on the land, and also a swimming pool and a dam.

Mr Fusco is a native of Italy. He is a plumber by trade, and continued that occupation after purchasing the land. He liked to do things on the land, having been brought up on a farm in Italy. His intention was to continue growing trees, introduce some new varieties, and keep running the stock. He described himself as a hobby farmer.

Mr and Mrs Fusco eventually demolished the previous dwelling and built a new house on the land. Mr Fusco continued to work as a plumber. They planted a large number of new trees, including fruit and nut trees, and native trees. In about 1997, after receiving approval from the Council, they constructed a second dam on the property. They continued to run sheep and cattle, and kept chickens.

For practical purposes including stock management, the land has been divided into four paddocks, which have been numbered by Mr Fusco. Paddock No. 1 contains the dwelling, implement sheds, the poultry shed, two dams, most of the fruit and nut trees, a "woodlot" and grapevines. Paddock No. 2 has as part of its boundary a watercourse that runs across the property. It comprises land that rises towards paddock No. 3, which is the highest point of the property. Paddocks 2 and 3 are used mainly for grazing purposes, principally sheep, cattle or horses, or a combination of those.

Paddock No. 4 is the most northerly paddock, and is more than a third of the area of the whole of the land. It is in paddock 4 that the 300 olive trees were planted in 1998. At the time of the hearing of the appeal in the Environment Court, there were 119 trees remaining. This paddock had previously been used for grazing purposes only. A plan of the allotment in evidence before the Environment Court indicated that the 300 olive trees occupied approximately 20% of paddock No. 4, and less than 10% of the area of the whole allotment.

The Environment Court made the following further findings:

"We are satisfied from the evidence of Mr Fusco, that it was his intention, at the time he and his wife purchased the allotment, to use the land both for living and for the production of a number of primary products, albeit in a small way. They and their four children and their families enjoy the fruits of the allotment. The use of the allotment was not organised along commercial lines. Mr Fusco continued his trade as a plumber for some time after he and his wife purchased the property. According to the culture of the ethnic group into which he was born, he invites friends and family to assist him with tasks on the allotment, from time to time, and shares with them the fruits of the allotment. Surplus produce is sold.

The allotment has been operated as a whole. However, although it was not absolutely clear from the evidence, it appears that both Mr and Mrs Jones [the previous owners] and Mr and Mrs Fusco, have used paddocks 3 and 4 only for grazing and horse keeping. There was no evidence that any part of the allotment was leased to another person or used as a separate entity since 1984. There is no access to any part of the allotment, including the northern paddock (number 4) except by the single track which has as its starting point the dwelling, and which traverses the allotment, past the chicken shed, the implements shed and the dams, crossing the watercourse adjacent to the dams on the eastern side of the land, further traversing the allotment in a westerly direction across paddock 2, traversing paddock 3 at its western end and stopping at paddock 4 at the westernmost of the three gates in the east-west fence separating paddock 3 from paddock 4. While the evidence reveals that the northern paddock (4) is fenced off from the balance of the allotment, that fence was not in place at the time of purchase of the allotment by the Fuscos. The paddock appears to have been fenced for stock management purposes only.

It is clear from Mr Fusco's evidence, that from time to time various parts of the allotment have been given over to a new form of production; such that the carnation and strawberry plantations, and the apple and pear orchard, no longer exist (although remnants of the apple and pear orchard exist), but there is an increased number of fruit and nut trees of various kinds and a woodlot has been established. Some of the sheds that were existing on the allotment when Mr & Mrs Fusco purchased same, are no longer there. .... On the evidence, the "farm" has always been a family-run affair and will continue to be so. Mrs Fusco preserves olives, and other fruit from the allotment; produce from the allotment in the form of wine and olive oil for personal and family use, are stored on the allotment, in the dwelling house."

The basis of the appeal of Mr and Mrs Fusco against the enforcement notice was that, having regard to the true character of the existing use of the land prior to the planting of the olive grove, the planting of the grove was a continuation of an existing lawful use of the land and did not constitute a change in the use of the land. Alternatively, it was argued that the use of portion of the land for an olive grove could be regarded as reasonably incidental to the use of the whole allotment. That use would therefore fall within the parameters of cl 5 of Schedule 3 of the Development Regulations 1993, and would accordingly be excluded from the definition of "development" contained in the Development Act 1993. Lastly, counsel for Mr and Mrs Fusco submitted that the notice was bad for ambiguity.

The Environment Court upheld the appeal on the first ground. It made no relevant findings and expressed no conclusion on the second ground, and expressed no conclusion on the third ground.

On the appeal to this Court, the third ground was not argued and can be set aside. The second ground was the subject of a notice of contention by Mr and Mrs Fusco under r 95.05 of the Supreme Court Rules. However, the Court indicated during argument that, in the absence of any relevant finding of facts by the Environment Court, this Court would not deal with that question if, indeed, it arose at all. The appeal to this Court therefore involved only the correctness of the decision of the Environment Court that the planting of the olives was the continuation of an existing lawful use.

Applications for Development Plan consent are governed by the provisions of the Development Act 1993, by the Development Regulations 1993 and by the provisions of a relevant Development Plan published under the Act. For the purposes of the Development Regulations and Development Plans, Schedule 1 of the Development Regulations contains a number of definitions. Relevant to the Council's argument on this appeal are the following definitions:

"farming" includes the use of land for any purpose of agriculture, cropping, grazing, or animal husbandry, but does not include horticulture, commercial forestry, horse keeping, or any intensive animal keeping or the operation of a stock slaughter works or diary;

"horticulture" means the use of land for market gardening, viticulture, floriculture, orchards, wholesale plant nurseries or commercial turf growing;

Mr Hayes QC, for the Council, was constrained to accept that whether or not a change of use has occurred cannot be decided by reference to the provisions of a Development Plan or to terms defined in the Regulations for the purposes of that Plan. In Adelaide City Council v Frankham [2002] SASC 162 Doyle CJ, with whom Perry and Lander JJ agreed, said, at [40]:

"The submission fails because it wrongly assumes that the provisions of the Development Plan control the approach to the question of whether development has occurred. If the allegation is made that development, in the form of a change of use, has been undertaken contrary to s 32, the Court before which that allegation is made must decide whether development has occurred by examining the facts, and by reference to the case law that guides a court in determining whether or not a change of use has occurred. The issue that arises is one of fact and degree, requiring a careful assessment of the facts. The issue is not decided by reference to the provisions of a particular Development Plan, or of Development Plans generally, let alone by reference to the presence of definitions to be used when arriving at the meaning of a Development Plan. If the court concludes that a change of use has occurred, it then turns to consider, should it be relevant, what is required as a matter of procedure and as a matter of substance before a consent can be granted under s 33 of the Act. In that purpose it will have regard to the Development Regulations and to the Development Plan."

However, the description attributed by the Environment Court to the use of the allotment overall by Mr and Mrs Fusco was as a "hobby farm" or "mixed farm". The land was described as being used as a whole "for the purposes of a farm". The Council argued that because the existing use of the land by Mr and Mrs Fusco prior to the planting of the olives in 1998 was "farming", that excluded horticulture, by definition, for planning purposes. The growing of olives falls within the definition of "horticulture". There has therefore been a change of use which constitutes "development" for the purposes of s 4 of the Act for which approval is necessary. The Council also relies on the earlier decision of this Court in City of Mitcham v Fusco (supra) that the growing of olives is not "agriculture" for the purpose of the definition of "farming" in the Development Regulations.

I reject this argument, but before explaining why, some comment must be made about the earlier appeal in this Court (City of Mitcham v Fusco [2000] SASC 250; (2000) 110 LGERA 14) and the proceedings which gave rise to it. As I have noted, the Full Court proceeded on a particular premise, recorded as follows (ibid at [7]):

"It is common ground between the parties that the proposed activity constitutes "development" within the meaning of s 4 of the Development Act. The application by its nature therefore assumes that there will be a change in the use of land if the proposal be implemented."

That premise is now under successful challenge, rendering the previous decision of this Court no more than academic, and having the status only of an advisory opinion. It is not clear whether the Court was fully informed of the status of the concession being made and whether it stood to be challenged in the current proceedings. If the Court were fully informed, it would be surprising if the Court continued to entertain the appeal. Be that as it may, the Council now seeks to call in aid a decision of this Court for which there is no factual foundation.

However, there is no question about the correctness of that decision, and I am prepared to proceed on the basis that, for the purposes of the Development Regulations and the relevant Development Plan, the growing of olives is not agriculture, and that it is "horticulture" and is therefore not included in the definition of "farming"

In my opinion that is an irrelevant consideration. The use of definitions for the purpose of the Development Regulations and of the Development Plan is appropriate and necessary for determining whether a particular development, not an existing use, should be approved. What this case is about is whether the activity constitutes development at all by virtue of par (b) of the statutory definition, namely "a change in the use of land".

Although there is no direct statutory provision to this effect, as there has been in predecessors to the Development Act, [1] the effect of the present regime is still to protect the existing use of land. For an activity to constitute development, unless it comes within one of the other paragraphs of the definition, there must be a change in the use of the land. There is nothing to prevent existing non-conforming uses from continuing. Further evidence of that protection afforded by the Act is contained in par (h) of the definition of "development" which includes:

"(h) an act or activity in relation to land (other than an act or activity that constitutes the continuation of an existing use of land) declared by regulation to constitute development," (Emphasis added).

The principles for determining whether there would be a "continued" use of land for the purposes for which it was lawfully being used within the meaning of s 37 of the Planning and Development Act 1966 were considered in Prestige Car Sales Pty Ltd v Corporation of the Town of Walkerville and Shuttleworth (1979) 20 SASR 514. Wells J said, at 522:

"The principles for determining what is an existing use and whether there has been a change of existing use should be flexible. They are not convertible into hard and fast rules. Rather should they be treated as directing a comprehensive survey of the circumstances that obtained before the planning regulations in question came into force, and of the circumstances that would obtain if the proposed extensions or reconstructions were to be made or carried out. The object of the survey should be to decide whether, having regard to the purpose of the former use of the subject building, and to the purpose of the use that would be made of it after execution of the proposals, there would, as a matter of fact and degree, be a change in the essential nature of the existing use if consent were granted. It should be borne in mind that labels are not principles. No one factor is necessarily decisive. There should be no resort to convenient, but undiscriminating and over-simplified, formulae."

I respectfully adopt that approach as being the approach applicable to determining whether there has been a change in the use of land for the purposes of the Development Act.

That approach to the interpretation of that phrase is supported by the principles adopted in many other like cases. In Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 McHugh JA (as he then was), with whom Hope and Samuels JJA agreed, said, at 309 - 310:

"The object of 'existing use' provisions in town planning legislation is to permit the continuation of the use of land for any purpose for which it was used immediately before the passing of the legislation even though the terms of the legislation prohibit that purpose wholly or partly or upon conditions. The rationale of these saving provisions is that it is unjust to deprive an owner of the right to use his land for an existing purpose. Because 'existing use' provisions are incompatible with the main objects of the legislation of which they form part, the courts have had to develop principles which reconcile the right of owners to have the full benefit of the existing use of land with the right of the local authority to enforce the conflicting objectives of town planning legislation. The courts have done so by refusing to categorise an 'existing use' so narrowly that natural changes in the method of using the land or carrying on a business or industry will render an existing use right valueless. At the same time, the courts have been concerned not to categorise the purpose of an existing use so widely that the land or premises could be used for a prohibited purpose which was not part of its use at the commencement of the legislation. Accordingly, a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land.

After considering a number of other cases, including Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529 and Woollahra Municipal Council v Banool Developments Pty Ltd [1973] HCA 65; (1973) 129 CLR 138, McHugh JA continued, at 311:

"I see no reason why the principle upon which those decisions were based is not also applicable to a case where land is used for activities, processes or transactions of widely differing kinds. If the activities, processes or transactions are capable of being treated as all or the majority of the species of a genus, then that genus may properly be regarded as describing the purpose of the use of the land. If they are not, then it may be that the only conclusion is that the land has been used for more than one purpose. If that conclusion is drawn, then each purpose is to be characterised in accordance with the principles set out earlier in this judgment."

In North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 67 LGRA 344 Kirby P (as he then was), noted the conflict created in the legislation between the preservation of individual rights on the one hand and the protection of social interests represented by the planning law on the other. He too reviewed the same cases, including the Royal Agricultural Society case and concluded, at 353:

"From these authorities the following matters of approach emerge:

1. Defining the 'existing use' depends upon a detailed examination of the facts of each case. Inevitably there will be borderline cases where the characterisation of the use which is protected will be controversial and upon which minds may differ.

2. Nevertheless, the general approach to be taken is one of construing the 'use' broadly. It is to be construed liberally such that confining the user to precise activity is not required. What is required is the determination of the appropriate genus which best describes the activities in question.

3. In determining that genus, attention should be focused on the purpose for which the determination is being made. This is a town planning purpose. If therefore considers the use from the perspective of the impact of the use on the neighbourhood. ..."

There may be some debate about the third proposition. It is not necessary to resolve that for present purposes. Nevertheless, the approach taken by Kirby P is consistent with the approach taken by this Court in Prestige Car Sales and in subsequent cases which have considered it.

None of these cases suggest that the ascertainment of an existing use, and therefore of any change in that use, can only be in terms defined by the planning legislation or planning scheme against the implementation of which the relevant existing use is protected. Nor do they suggest that the categorisation of that use by a planning authority necessarily imports a statutory definition. As was pointed out in Frankham (supra), those definitions have a purpose, namely the classification of particular activities which constitute development for the purposes of the legislative scheme. The definitions will determine whether consent may be given to a particular development. However, what is a change of use does not depend on that type of categorisation. It depends on the proper analysis of the facts relating to an existing use and an assessment of whether the use proposed can be said to be within the same genus, in accordance with the application of the principles explained in the cases to which I have referred.

In this case, the Environment Court conducted that analysis and assessment. It made findings as to the nature of the various activities carried out on the land. It was those activities collectively which formed the genus of the existing use. It was a combination of their small scale and the purpose for which they were conducted that prevented a conclusion that the land had been used for more than one purpose. The Court classified the genus variously as a "hobby farm", "mixed farm", and "for the purposes of a farm". The sort of farming activities carried out included a variety of horticultural pursuits. The labels applied by the Environment Court to the activities did not refer to any terms defined in the Regulations. They were appropriate labels of the Court's own choosing as a matter of convenience and generic description. Those labels were not inappropriate.

The underlying findings of fact as to the existing use of the land were not challenged. Based on those findings, and indeed on some other evidence which was not referred to, it was open to the Court to conclude that the planting of olives on the scale adopted and for the purposes intended formed part of that same genus, which included a variety of horticultural activities. There is no basis on which this Court can or should interfere with that finding. Indeed, I have no reason to doubt its correctness.

If, at the same time, most of the other farming activities had ceased and the Court was able to conclude that the land was not being principally used for farming but for commercial olive production, the situation might well have been different. However, that was not the case, and the Court's findings cannot be criticised. The Court was therefore justified in holding that, in respect of the land as a whole, there had been no change in the use of the land.

However, the Council, by way of alternative submission, contended that the Court should have confined its consideration of the land in question to paddock No. 4 alone. Paddock 4 had only ever been used for grazing. The necessary cessation of grazing and the planting of approximately 20% of the area of the paddock to olives was therefore a change in the use of that land.

If the Court was justified in treating paddock 4 as a discrete piece of land for the purposes of the appeal, I would agree. However, in my opinion, it was not so justified.

A similar question as to whether a portion only of a larger land holding comprising several certificates of title could be considered for the purpose of determining whether there was a change in its existing use was discussed in Leverington v State Planning Authority and District Council of East Torrens [1970] SASR 387. Part of the land in question was used as a quarry. The balance was undisturbed. The question was whether, by extending the quarry into the undisturbed land, a change of existing use was being effected. The approach taken by Bray CJ, with whom Walters J generally agreed, is to be seen at 394 - 395:

"I think then that any parcel of land on which any quarrying operations or operations incidental thereto were actually being carried on on 4th April, 1968, was land which was, at that date, being lawfully put to the existing use of quarrying and that it can continue to be used for quarrying.

The effect of the proclamation was not to subdivide the operations of quarrying so as to stamp each area of land used for any particular type of quarrying operation with the brand of that type and to prevent it being used for any other type of quarrying operation for five years without the approval of the defendant. Its effect is not, for example, to provide that without that approval only areas already excavated could continue to be excavated, areas used as buffer zones could be used only as buffer zones, areas used for access roads could be used only as access roads, and so on. Any parcel of land which could properly be regarded as being used for any type of quarrying operation on 4th April can in my view be used during the currency of the proclamation for the same or any other type of quarrying operation or activity reasonably incidental thereto. I regard use for the purpose of quarrying as one generic type of purpose and one generic type of use and I think it is that generic type which is protected by the sub-section."

A similar question arose in The Council of the City of Parramatta v Brickworks Ltd [1972] HCA 21; (1972) 128 CLR 1. Gibbs J said, at 23 - 24:

"However, when cl 32 [of the relevant Planning Scheme Ordinance] speaks of 'an existing use of land' it refers to land which from a practical point of view should be regarded as one piece of land, and not to land contained within the boundaries of one subdivision, or described in one certificate of title. It is commonplace that in Sydney land which is devoted to one purpose, and generally treated as being in fact one piece of land - whether it be the site of a commercial building or industrial enterprise or the grounds of a dwelling house - frequently comprises various parcels which remain shown on separate title deeds. There is however nothing in the provisions of the Planning Scheme Ordinance that suggests a concern with conveyancing details rather than with actual use. In argument some reliance was placed by the appellant on the reference in cl 33(b) to 'adjoining land', but that phrase does not indicate that 'land' in cll 32 and 33 primarily means land within one subdivision. When cl 33(b) speaks of 'adjoining land', this plainly means land adjoining that on which the existing building or work was situated, provided it was and has remained in the same ownership, but whether it is within or beyond the boundaries of a particular subdivision is quite immaterial. ....... The evidence makes it abundantly clear that the new land was acquired and kept for the purpose of using it in conjunction with the old land. It became part of an entire area which was wholly devoted to the purpose of quarrying and brick-making and was used for that purpose immediately before the appointed day. It follows that in my opinion the respondent was entitled under cl 32 to continue to use the whole of the land for quarrying and brick-making."

Both those cases related to land contained in more than one certificate of title. It is apparent that allotment or title boundaries are not decisive in determining what is the relevant area of land the subject of an existing use. However, the fact that the land in question comprises only a single allotment may well be a relevant factor for the purpose of determining whether part of it can be singled out to determine whether there has been a change in the use of that part.

There may be a number of factors required to be brought to bear on whether a particular portion of a piece of land has an existing use different from some other portion. The factors relevant in this case include the fact that the land is comprised of one allotment only; that access to paddock 4 is only available through the other paddocks; that the fencing built for the creation of paddock No. 4 was not for the purpose of identifying a particular or different use but for the purpose of stock management; that the land was managed as an integrated whole; and that water for use on all paddocks was collected and stored in paddock No. 1. Given the way it was managed and the scale, nature and purpose of the activities, the land in question could not properly be sub-divided into different notional activities.

In my opinion the Environment Court was able to regard and properly regarded Mr and Mrs Fusco's use of the whole of the land as being for the one generic purpose.

It follows that in my opinion the Council's appeal must be dismissed. However, this conclusion should not be taken as any reflection of the desirability or otherwise of growing olives in the Hills Face Zone, in which the land is situated. It would appear that the Council's concern, in taking the action that it has, has been driven by perceived possible harmful environmental effects of carrying out that particular activity in that location. It is not appropriate for this Court in these proceedings to pass judgment on that. The considerations relevant to a determination of this appeal cannot be based on environmental or other planning considerations. These proceedings can only be concerned with whether or not Mr and Mrs Fusco's use of the land can properly be considered as a continuation of an existing use. If it is desirable to control particular activities for environmental, fire protection or other reasons in particular areas, it will be for Parliament to take appropriate steps to control those activities by other means.

[1] See, for example, s 37, Planning and Development Act 1966, s 56 Planning Act 1982