CITY OF MITCHAM v FUSCO & ANOR No. SCGRG-00-508 [2000] SASC 250

2 WILLIAMS J. This is an appeal by the City of Mitcham against a decision of the Environment Resources and Development Court (the ERD Court) constituted by a Judge alone. The appeal is brought pursuant to s 30(1)(e) of the Environment Resources and Development Court Act 1993.

3 The question at issue is whether for the purposes of the City of Mitcham Development Plan the establishment of an olive grove is a "complying development" within the Hills Face Zone.

4 By a decision given on 25 May 2000 the ERD Court determined that a proposed development by the respondent Fusco was a complying development. The Court held that commercial olive growing is "agriculture" within the meaning of Principle 25 of Development Control for the Zone (which lists the kinds of development which relevantly are "complying"). Upon this basis the ERD Court directed the City of Mitcham pursuant to s 35(1) of the Development Act 1993 to grant provisional Development Plan consent to Mr Fusco's development application. That decision is now challenged upon this appeal by the City of Mitcham. The Conservation Council of SA which was joined as a party to the proceedings before the ERD Court did not participate in the present appeal.

5 Principle 25 is quoted below together with other relevant extracts from the Development Plan and Regulations.

6 The respondent Fusco made a development application with respect to a proposed olive grove which will occupy approximately 1.125 hectares on land situated at 103 Sheoak Road Belair within the area of the City of Mitcham. The land is part of certificate of title Volume 2185 Folio 053 which itself covers 14.96 hectares. For the purposes of the Development Plan for the City of Mitcham the land is within the Hills Face Zone. However, the land is not within the Mount Lofty Ranges watershed; this fact has assumed some significance in argument.

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.

8 The development application was accompanied by an explanation of the intended activity. The development proposal involves the planting of olive trees in rows which will be watered by irrigation from two dams located on the property. The applicant has described the intended pruning and manuring arrangements, the intended harvesting methods and the anticipated employment of bird scaring devices and the fox and weed control programmes. The proposal is that crops will be generally transported off the site for processing.

9 Subject to the provisions of the Act, s 32 of the Development Act prohibits development unless it is an approved development. Section 33 provides that a development is an approved development if and only if a relevant authority (in this instance the City of Mitcham) has assessed the development against and granted consent in respect of a series of requirements. Included in these requirements are "the provisions of the appropriate Development Plan"; the consent of the relevant authority in this respect is called "provisional development plan consent" (s 33(1)(a) and s 4(1)).

10 The scheme of Development control applicable to the City of Mitcham was explained by Bleby J in City of Mitcham v Heathhill Nominees Pty Ltd [2000] SASC 46. His Honour identified four levels or tiers of development contemplated by the Development Act and their legal significance. In summary, in terms of the regulatory scheme, a development may fall to be assessed at one of four levels upon application for provisional consent to a particular development. These four assessment levels involve differing degrees of difficulty in obtaining provisional Development Plan consent depending upon the degree of compliance or non-compliance with the Development Plan.

11 In Heathhill Nominees Bleby J describes these four levels or tiers as follows:

"The first level is what the Act describes as a "complying development". The Regulations under the Act and the relevant Development Plan specify what is a "complying development". Such a development must be granted a provisional Development Plan consent, subject only to such conditions or exceptions as may be prescribed by the Regulations or the relevant Development Plan: s 35(1).

The next level is a development which is neither a complying development nor a non-complying development. Such a development must be considered by the planning authority against the provisions of the Development Plan. When such an application is refused or conditions are imposed, the applicant may appeal to the Environment, Resources and Development Court: s 86(1)(a). Whether a third party may be given a right to make representations to the planning authority in opposition to the application will depend upon whether the Regulations or a Development Plan assign the particular development to Category 2 or Category 3. In the case of a Category 3 development a person who made representations may appeal against the granting of the application: see generally s 38.

The third level of development is a "non-complying development". This class of development is prescribed under the relevant Development Plan. Where the relevant planning authority is a Council, the application cannot be granted provisional Development Plan consent unless the Development Assessment Commission concurs in the granting of the consent. For all practical purposes no appeal lies against a refusal of consent or of concurrence or against a condition attached to a consent or approval which applies by virtue of the non-compliance under the Development Plan: see s 35(3) and s 35(4). As in the case of the second level described above, whether third party representations can be made in respect of the application and whether there can be an appeal against the granting of the application by a third party will depend on whether the development is a Category 2 or Category 3 development: see s 38.

The fourth and final level or tier of development dealt with by the Act is a development which is assessed by the planning authority as being "seriously at variance" with the relevant Development Plan. Such a development must not be granted consent: s 35(2). Provided that the decision of the planning authority on this topic does not result from a mistake of law, from reliance upon an irrelevant matter, from a failure to take into account a relevant matter and is not one which no reasonable authority could properly have reached, then the decision of the planning authority to refuse an application on this ground is not reviewable."

12 An appreciation of the system as described by Bleby J is crucial for the purposes of construing the Development Plan.

13 The City of Mitcham Development Plan for the Hills Face Zone contains a statement of the Zone Objectives and Principles of Development Control.

A zone in which the natural character is preserved and enhanced or in which a natural character is re-established in order to:

(a) provide a natural backdrop to the Adelaide plains and a contrast to the urban area;

(b) preserve and develop native vegetation and fauna habitats close to metropolitan Adelaide;

A zone accommodating low-intensity agricultural activities and public/private open space and one where structures are located and designed in such a way as to:

(a) preserve and enhance the natural character or assist in the re-establishment of a natural character in the zone;

(b) limit the visual intrusion of development in the zone, particularly when viewed from roads within the zone or from the Adelaide plains;

15 The Zone Objectives include as footnotes the following:

"The western slopes of the Mount Lofty Ranges in metropolitan Adelaide are an important natural asset to both the population of the urban area and the tourism industry. Development which is undertaken in this zone should not only preserve but should also enhance the natural character of the zone or assist in the re-establishment of a natural character.

The term "natural character" refers to the natural topography, native vegetation and colours, such as greens and browns of non-reflective earthen tones, normally associated with a natural landscape. Additionally, natural character refers to the open character of the land in those areas of the zone where open grazing currently predominates. Thus, existing buildings should not be seen as setting a precedent when assessing the impact of a proposed development. Each development should be assessed on the extent to which it preserves and enhances the natural character or, more importantly, assists in the re-establishment of a natural character, rather than on the basis of a comparison with existing development in its locality.

Some of the land in the Hills Face Zone is located in Zones 1 or 11 of the Mount Lofty Ranges watershed proclaimed under the Waterworks Act. Development on such land will need to comply with additional policies relating to the watershed."

16 The Principles of Development Control for the Hills Face Zone include the following:

(a) it is associated with a low-intensity agricultural activity, a public open space area or a private use of an open character, or is a detached single-storey dwelling, including outbuildings and structures normally associated with such dwellings, on a single allotment; and

(b) together with associated native landscaping, it preserves and enhances the natural character of the zone or assists in the re-establishment of a natural character.

(a) be kept to a minimum so as to preserve the natural form of the land and the native vegetation;

(b) only be undertaken in order to reduce the visual impact of buildings, including structures, or in order to construct water storage facilities for use on the allotment; and

(c) result in stable scree slopes which are covered with top soil and landscaped so as to preserve and enhance the natural character or assist in the re-establishment of the natural character of the zone.

Development should not be undertaken if the operation and management of such development are likely to result in:

(b) unnecessary loss or damage to native vegetation;

(g) the introduction of or an increase in the number of pest plants or vermin."

Development should only be undertaken if it can be located and designed in such a way as to maximize the retention of existing native vegetation and, where possible, increase the extent of native vegetation.

The following kinds of development are complying in the Hills Face Zone:

(b) the construction of roads, tracks and thoroughfares;

(c) the erection, construction or alteration of, or addition to, any building or structure;

(e) market gardening within the Mount Lofty Ranges watershed."

17 Principle 26 sets out (in an extensive list) the kinds of development which are non complying. The list is too long now to quote verbatim. However, it includes "Intensive Animal Keeping but not including horse keeping" and "Use of land for the reception, storage, treatment or disposal of waste, within Mount Lofty Ranges watershed".

18 The Table Mit/1 referred to in Principle 25 is a schedule which prescribes the conditions which apply to a complying development - as now relevant the table sets out the circumstances under which advertising signage may be erected, the size of advertising posters and period during which the signage may be maintained. (Development Act s 35(1) permits conditions to be imposed in this way).

19 In its reference to "agriculture" Principle 25 specifically excludes five classes of activity (a) - (e) from the list of complying kind of development. For convenience I will refer to these five classes collectively as the "nominated activities".

20 The ERD Court reached its decision by concentrating its attention upon the language of Principle 25. As "agriculture" is not itself defined the Court treated that expression as extending at least to the growing of crops (including fruit and vegetable crops) and leading to the conclusion that the cultivation of an olive grove is a complying kind of development within the zone. The ERD Court was reinforced in its conclusion by the reference to "market gardening" in Principle 25 which suggested to the Court that agriculture extended to that type of activity.

21 In my view the decision of the ERD Court is flawed in three ways. Firstly, I consider the ERD Court's approach is too restrictive in that it ignores the assistance to be gained from an appreciation of the Zone Objectives and a study of the Principles of Development Control for the Hills Face Zone. Secondly, the ERD Court did not recognise the limited meaning given to "agriculture" in other parts of the Plan and the significance of the definitions contained in the Development Regulations as an aid to construction. Thirdly, the ERD Court made an error of logic when it drew upon the reference to "market gardening" (quoted below) as an aid to construction in circumstances where some of the nominated activities (of which market gardening was one) had no apparent association with agriculture. I will explain my criticisms.

22 There is no definition of "agriculture" in the Development Regulations or in the Development Plan but "Farming" and "Horticulture" are each defined in Schedule 1 to the Regulations:

"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 dairy;

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

3(1) In these regulations and in any Development Plan, the terms set out in schedule 1 have, unless inconsistent with the context, or unless the contrary intention appears, the respective meanings assigned by that schedule."

24 The Development Regulations disclose a dichotomy between "agriculture" and "horticulture". This is exemplified by Schedule 22 to the Regulations where, in a list of activities, "agriculture or horticulture" are separately identified in cl 3(4)(l). If "agriculture" were intended as a generic term to include "horticulture" then the separate specific mention of that latter expression would be unnecessary. In the definition of "farming" in the regulations this limited meaning to be given to agriculture (but not including horticulture) is also apparent.

25 "Farming" is not mentioned in the Development Plan in relation to the Hills Face Zone but it is mentioned in other parts of the Plan. For example, it is a non-complying development in the Light Industry Zone and the General Industry Zone. Both horticulture and farming (as defined) are non-complying developments in the residential zones.

26 In my view this material suggests that horticulture and agriculture are to be treated as separate and distinct categories of development activity for the purposes of the Development Plan. Consistent with this approach "agriculture" when specifically mentioned should be given the same limited meaning as it bears in the definition of "farming". Strong indications may be seen in the Development Plan that horticulture is not within the ambit of "agriculture" as used in Principle 25. It was not in dispute upon this appeal or before the ERD Court that olive growing for the cropping of the fruit amounts to horticulture.

27 The argument for excluding olive growing from agriculture becomes even more persuasive when the Zone objectives and the relevant Principles of Development Control as a whole are brought to account. The Development Plan seeks to maintain the pristine character of the Hills Face Zone. A policy of preservation and enhancement of the natural character of the Zone is clearly declared. The establishment of a new olive plantation is inconsistent with this policy.

28 The ERD Court commented upon the nominated activities (as I have called them) as follows:

"It is an agreed fact that the proposed development is not excluded from being a complying kind of development because the development will include one of those acts set out in paragraphs (a), (b), (c) and (d) in Principle of Development Control 25, which would remove a proposed agricultural development from the complying category, in the zone."

"In the context of the principles of development control for the Hills Face Zone, "agriculture" has a limited meaning in that it does not here include the raising of livestock insofar as that activity may also be described as "agistment", "holding of stock" or "intensive animal-keeping". However, as the term is used in Principle of Development Control 25, "agriculture" must be taken to include market gardening, because the latter is expressed to be a form of agriculture which is excluded from the category of complying kinds of development, where it is proposed on Hills Face Zone land which is also within the area of the Mount Lofty Ranges watershed."

29 The assumption underlying the ERD Court's reasoning must be that the five nominated activities would (apart from their specific exclusion in Principle 25) fall within the meaning of "agriculture". However, the five nominated activities are of a diverse nature, some of which have no direct connection with agriculture. These are activities which a landowner might commonly pursue whether in the course of exploiting some agricultural interest or in furthering some other business. Earthmoving, road construction and building work (pars (a) - (e) of the nominated activities) may themselves be example of "development" but their elements have no particular association with agriculture. Bearing in mind the significant damage to the Zone (in terms of maintaining its pristine condition) which may be associated with these nominated activities, the manner of expression of Principle 25 is understandable as a precaution. The Zone plan puts beyond doubt that the authorisation of agriculture does not carry with it any right to engage in earthmoving or other of the nominated activities.

30 Significantly, the nominated activities have not been treated in the Plan as non-complying nor has it been considered appropriate to include them in the Table Mit/1 abovementioned as conditions in accordance with s 35(1) of the Development Act. The Plan for the Hills Face Zone enables the nominated activities to be considered within the second procedural tier to which Bleby J refers as abovementioned. Generally speaking, the nominated activities by their nature will be at variance with the Zone Objectives and Principles of Development Control to some degree. The Council, as Planning authority retains control - in particular by virtue of its power to assess whether the variance is serious.

31 A footnote to the Zone objectives confirms that it has been found convenient to make provision for a particular localised problem of market gardening associated with watershed protection under the Waterworks Act 1932 in Zones 1 and 11 of the proclaimed watershed_._ It should not be concluded from this that any of the five nominated activities themselves fall within the notion of agriculture - the diverse and unconnected nature of the nominated activities belies this conclusion. As a matter of logic each of the nominated activities would have to have a natural and demonstrable association with "agriculture" before a conclusion as drawn by the ERD Court could be based upon the list of nominated activities. I therefore reject as lacking in logic the respondent's reliance upon the reference to market gardening as a guide as to the meaning of "agriculture".

32 The respondent Fusco submits that the defined terms "farming" and "horticulture" are not used in the Development Plan with reference to the Hills Face Zone and suggests that it is impermissible to use the definitions to control the meaning to be given to other undefined words. The short answer to this submission is that one would expect to find throughout the City of Mitcham Development Plan a consistency. Both the Regulations and the Plan deal with horticulture separately from farming (which embraces agriculture in a limited sense). Agriculture should be given the same meaning in Principle 25 as it receives as one of the elements of "farming" in other parts of the Mitcham plan . I consider that consistency is to be expected in the treatment of the same activities for the purposes of different parts of the Plan and in the Regulations. I am satisfied that horticulture is not to be treated as a type of agriculture for the purposes of Principle 25, but as a separate category of development which is not specifically mentioned in the Plan for the Hills Face Zone.

33 When one considers the Planning objectives it is apparent that Principle 25 has been drawn in such a way as to limit the type of complying development to that which is compatible with the Zone objectives. Accordingly "agriculture" in this context is to be given a limited meaning and does not include the working of an olive grove.

34 An historical survey undertaken by counsel was useful in identifying the common origins of the Hills Face Zone Plan of each of the councils having responsibility for an area of land within the Zone. This Plan has been adopted upon the initiative of the Minister. If the regulatory scheme is to be effective there should be consistency in interpretation of individual parts of the Plan. In case of doubt this objective will be promoted by giving to the defined terms their assigned meanings.

35 I would allow the appeal; I would set aside the judgment of the ERD Court and in lieu thereof declare that the proposed development is not a "complying development" for the purposes of the Development Plan.

36 MARTIN J. I agree that the appeal should be allowed for the reasons given by Williams J and with the order he proposes.