• Environment Resources and Development Act 1993 s30;
• Development Act 1993 s34;
• Development Regulations 1993 , referred to.
• City of Mitcham v Freckmann & Ors [1999] SASC 234; (1999) 74 SASR 56, discussed.
• St Ann's College v Corporation of the City of Adelaide and Anor [1999] SASC 479;
• Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389;
• Corporation of the City of Marion v Kassere Pty Ltd Full Court Judgment No S 4909.1 delivered 23 December 1994;
• of South Australia Inc and Anor (1992-93) 59 SASR 239;
• (1992-93) 59 SASR 259;
• Ampol Road Pantry Pty Ltd v City of Brighton (1983) 62 SASR 165, considered.

Counsel: MR J F COSTELLO - Solicitors: SYBELLA BLENCOWE

Judgment No. [2002] SASC 143

On Appeal from ENVIRONMENT RESOURCES & DEVELOPMENT COURT (COMMISSIONER

[2002] SASC 143

BESANKO J This is an appeal by the City of Unley pursuant to s 30 of the Environment Resources and Development Court Act 1993.

The appellant as the relevant planning authority under s 34 of the Development Act 1993 ("the Act"), received an application for Provisional Development Plan consent from a Mr T Routley. The application was for development taken to be Category 3 development (see s 38 of the Act). It was advertised as required by the Act and Regulations. Various people lodged representations in writing against the granting of consent including Dr V Hall, H Harrod, B Harrod, J Maxwell, T Maxwell, A Blanche, D Blanche, D Richardson, H McLeay, B McLeay, T Wilde and M Wilde. I refer to those people I have named as "the objectors". The appellant granted a Provisional Development Plan consent. The objectors exercised their right of appeal to the Environment Resources and Development Court ("ERD Court") under s 86 (1)(b) of the Act. The respondents to that appeal were the City of Unley and Mr Routley. The appeal came on before a Commissioner of the ERD Court. Each party was represented and each called evidence including evidence from a planning expert.

The Commissioner allowed the appeal and reversed the decision of the appellant.

The appellant has appealed to this Court and has named the objectors as respondents. At a preliminary hearing the objectors indicated that they did not wish to be heard on the appeal and that they would abide the event.

Mr Routley was not made a party to the appeal. He did not seek to be made a party or to appear on hearing of the appeal. When the appeal was called on, I was told by counsel for the appellant that Mr and Mrs Routley were in Court and that they supported the submissions being made by the appellant.

In the result, I had the benefit of submissions in support of the appeal, but no submissions in opposition to the appeal.

The appeal to this Court lies as of right on a question of law and by leave on a question of fact.[1] The appellant filed and served a notice of appeal and applied for leave to appeal on questions of fact to the extent that leave might be necessary. The application for leave came on for hearing before Debelle J. His Honour said that none of the three grounds of appeal raised a question of fact. His Honour said that they purported to raise questions of law. His Honour said that the facts in the case were clear and that there was no ground on which it was suitable to grant leave to appeal on questions of fact. His Honour refused leave to appeal on any question of fact.

The land which is the subject of the application is at 339 Unley Road, Malvern, in the State of South Australia. The land is described in three Certificates of Title being Register Book Volume 5456 Folios 196, 197 and 198 ("the subject land"). The subject land is on the corner of Unley Road and Austral Terrace, Malvern.

The subject land is vacant land. Some years ago there was a single storey nursing home complex with a floor area of approximately 950 square metres on the subject land. The use of the building as a nursing home ceased several years ago, and for a time, the building was used for residential purposes. The building was demolished in late 2000. The subject land has a frontage to Unley Road of some 51.82 metres and a frontage to Austral Terrace of some 48.82 metres. The combined site area is approximately 2,530 square metres.

The subject land is situated in a Mixed Use 3 Zone as shown on Map 9 (UN/9) of the Development Plan for the City of Unley.

There is an existing Provisional Development Plan consent in relation to the subject land. This consent is for the construction of six two storey dwellings fronting Austral Terrace and three single storey dwellings fronting Unley Road. The consent was granted on 4 May 1999. There have been two extensions of the consent. The existing extension expires in May 2002.

Mr Routley lodged his development application with the appellant on 3 May 2001. The appellant processed the application and on 27 June 2001 granted a consent subject to sixteen conditions. The appellant determined that the nature of the development was "New building with mezzanine for use as a service trade premises, car park at rear".

In very general terms the proposal involves the construction of a building of some 1580 square metres in area for use for the display and sale of plumbing supplies and fixtures.

Mr Routley made the application in order to consolidate two existing operations. The first operation, Routley's Plumbtec, is located within the same zone as the subject land. It is on the eastern side of Unley Road and is approximately 200 metres north of the subject land. The premises at that location have a floor area of approximately 432 square metres. The second operation is a trade sales facility at Goodenough Street, Mile End.

The Commissioner described the principal elements of the proposal as follows:

"1. a primarily single-storey building incorporating extensive glazed shop fronts, rendered masonry quoins and columns, rebated masonry parapets and splayed corner shop front entry. The northernmost section, facing Unley road, would be recessed behind the retained Elm trees on the subject land and a verandah would flank the whole of the Unley Road and Austral Terrace frontages.

2. Additional storage would be provided by means of an upper level mezzanine floor, having an area of 260m2.

3. The front of the building would accommodate a display area of some 530m2 for bathroom fittings and an office of some 114m2. The rear of the building would comprise a storeroom and trade sales section comprising a storage area of around 440m2, trade sales area of approximately 175m2 and the mezzanine floor to which I have already referred. Ablutions and staff amenities would total some 85m2, producing a total floor area in the vicinity of 1,580m2.

4. The building would have a height of approximately 4.2m on its Unley Road frontage, rising to a maximum height of 7m on its rear elevation.

5. In the vicinity of the retained Elm trees on the northern end of the Unley Road elevation, the building would be set back 4.5m from the Unley road boundary of the subject land but would extend to within 2m of that boundary south of the trees. It would be set back 1.8m from the Austral Terrace boundary. A verandah 1.8m in depth would extend to the Austral Terrace boundary and to within 200mm of the Unley Road boundary, other than in the vicinity of the aforesaid trees, where it would be set back approximately 2.7m from the trunks of those trees.

6. 33 carparking spaces would be provided in a single pooled area at the rear of the building, accessed via a 6.0m wide crossover from Austral Terrace, providing two-way access for all vehicles which may be expected to use the site. Service access would be gained from the carpark to a dedicated loading bay. The carpark would be secured by an open steel fence, set back behind landscaping, with gates that would be shut outside normal trade hours.

7. Service access to the development would be limited to normal trading hours and trade waste bins would be stored inside the building for collection during trading hours by a contractor.

8. Although more extensive trading hours were approved by the Council, trading hours sought by the second respondent are as follows:

− Monday to Wednesday and Friday, 7.30am to 5.30pm

9. It is not proposed that the facility trade on Saturday.

10. Trade sales would be largely limited to normal trading hours, ie 7.30am to 5.00pm within the above operating hours, with call and trade sales representing about ten percent of total trade business, the remainder being conducted by phone or fax. No trade sales would occur on either Saturday or Sunday.

11. It is anticipated that approximately 15 deliveries would be made to or from the premises daily, the majority by courier van but some by larger vehicles up to five tonnes, the latter comprising small fixed tray trucks.

12. Up to 15 full and part-time staff would be employed on site.

13. 1m wide landscaping beds would be located along the eastern wall of the building, the eastern property boundary and to the street frontage of the carpark."

The Commissioner held that the proposed use fell within the definition of "service trade premises". That term is defined in Schedule 1 of the Development Regulations 1993 as follows:

"means premises used primarily for the sale, rental or display of basic plant, equipment or machinery used in agriculture or industry, boats, caravans, domestic garages, sheds, outbuildings, motor vehicles, tents, trailers, swimming pools, building materials, landscaping materials or similar bulky articles or merchandise."

Use of land as a service trade premises is neither a complying nor a non-complying use in the Mixed Use 3 Zone.

Use of land as a shop or group of shops with a gross leasable floor area of greater than 250 square metres is a non-complying use in the relevant zone. A shop is defined to include a retail showroom. A "retail showroom" is defined as follows:

"means premises used primarily for the sale, display or offer by retail, of furniture, floor coverings, household appliances or electronic equipment for domestic use, but does not include premises for the sale, display or offer by retail of foodstuffs, clothing, sporting goods and personal effects goods;"

It was argued in the ERD Court that the proposed development fell within the definition of a retail showroom and was therefore a non-complying kind of development. That argument was rejected by the Commissioner. This aspect of the Commissioner's reasons was not challenged on appeal.

I proceed on the basis that the proposed development was correctly characterised as a service trade premises, and that it is neither a complying nor a non-complying kind of development in the Mixed Use 3 Zone.

The definition of the locality was the subject of evidence from each of the planning experts. There was no significant difference in terms of the definition of the locality between the witnesses. Each witness's locality included properties on both sides of Unley Road between Cross Road to the south and Dover Street or Winchester Street to the north. The locality included residential properties in Austral Terrace from Unley Road east to Rugby Street. Within that locality the properties fronting Unley Road on the eastern side are used for commercial purposes whilst the properties fronting Unley Road on the western side are used for a mixture of commercial and residential uses.

The Commissioner described the locality in the following terms:

"Allotments fronting Austral Terrace, between the rear of the subject land and Rugby Street are all occupied by detached dwellings, generally substantial single-storey stone and brick structures, most dating from the late 19th or early 20th Century.

Within the locality are a number of substantial retail and service trade developments, including a Mitre 10 Hardware Store, Solver decorator Centre and Claridge Holden, which has new car sales rooms, a roofed used car lot, mechanical service centre and crash repair centre straddling the northern side of the intersection of Cross Road and Unley Road. Other substantial businesses along this section of Unley Road include a drive-in dry cleaners and medical centre on the western side of that road, and, on the eastern side, a chiropractic consulting clinic, antique shop and existing service trade premises of Routley Trading the second respondent in this matter, which premises have an area of some 432 square metres and are located a short distance to the north of the subject land.

With the exception of Claridge Holden and the Mitre 10 premises, the locality comprises, in the main, specialised retail, service industry and medical and professional consulting practices, generally between 30 square metres and 300 square metres in area. The Solver Decorator Centre has an area of 363 square metres."

The Commissioner described Unley Road as a significant feature of the locality. Unley Road is a busy arterial road. He also referred to the proximity of the subject land to the Unley Road and Cross Road intersection. Cross Road is also a busy arterial road.

The Relevant Provisions of the Development Plan

The Commissioner referred to a number of objectives and principles of development control. I do not propose to set them all out. It is sufficient if I set out the objectives and principles of development control which the Commissioner considered the most important.

Objective 1: Accommodation of small-scale office and consulting room development of up to 250 square metres total floor area per individual building, small-scale specialty goods outlets and residential development of up to two-storeys at medium densities.

1. Development should be primarily, small scale offices and consulting rooms, preferably in converted dwellings, with a limited extent of small scale specialty goods outlets, and residential development of up to two storeys at medium densities.

2. Development involving offices, consulting rooms and specialty goods outlets, together or individually should not exceed 250 square metres of total floor area per individual building.

3. Development should not exceed two storeys in height.

4. Development should result in low traffic generation and direct vehicular access to arterial roads should be limited.

5. Development should maintain the residential scale and appearance of existing development in the Zone and complement development in adjacent residential Zones by:

(a) providing building set-back from roads typical of existing residential development in the Zone, with the set-back area accommodating substantial landscaping;

(b) locating car parking to the rear of the buildings, or behind screen walls and landscaping, so as not to be readily visible from adjacent public roads; and

(c) be of a mass, scale, form and design which is compatible with existing residential development, and incorporate second storeys within pitched roofs."

Four kinds of development are complying in a Mixed Use 3 Zone, namely, advertisements, detached dwelling, row dwelling and semi-detached dwelling. There are a number of kinds of development which are non-complying. For present purposes, the following are relevant:

"A building containing an office, consulting room or bank,

(a) in which the total floor area of the office, consulting room or bank individually or together exceeds 250 square metres; or

(b) comprising a podium which supports two or more roofed areas, each of which roofed area has the appearance of being a separate building, the total floor area of an office, consulting room or bank, individually or together, within any one of the roofed areas exceeds 250 square metres.

Shop or group of shops with a gross leasable floor area of greater than 250 square metres."

The Commissioner referred to the fact that the subject land was about 350 metres south of the southern boundary of a Specialty Goods Centre Zone and about 1.25 kilometres south of the southern boundary of the Unley District Centre. A Specialty Goods Centre Zone "encourages 'small scale' specialty goods outlets within the northernmost part of that Zone, and designates offices, consulting rooms and banks individually or collectively totalling more than 450 square metres in area as non-complying development".

The Commissioner also noted that a Mixed Use 2 Zone seeks to accommodate:

"medium-scale offices and consulting rooms of up to 450 square metres total floor area per individual building, service industries, warehouses and retail showrooms which result in low traffic generation."

A Mixed Use 1 Zone seeks to accommodate primarily:

"small office and consulting room development of up to 250 square metres of total floor area per individual building, with limited small scale specialty goods outlets and retail showrooms and small entertainment facilities ....".

The Commissioner also referred to the provisions in the Development Plan dealing with Centre Zones and Office Zones and Unley (City) Objective 5 and Principle of Development Control 17.

The Commissioner said that although use of land as a service trade premises was an on-merit or consent use in the Mixed Use 1, 2 and 3 Zones and in the Specialty Goods Centre Zone, the scale of development envisaged in the Mixed Use 1 and 3 Zones was less than that envisaged in a Mixed Use 2 Zone and Specialty Goods Zone.

The Commissioner found that the access and parking arrangements of the proposed development were acceptable and that the minor increase in vehicle movements within Austral Terrace was likely to have minimal, if any, impact on the residential amenity in that street. He found that the traffic, overflow parking and noise generated by the proposed development were unlikely to impair the residential amenity of Austral Terrace.

The Commissioner asked himself the question whether the overall intent and purpose and the desired character of Mixed Use 3 Zone was supportive of, or at least consistent with, the proposed use. The Commissioner held that the Development Plan placed great emphasis on development in the zone being "small scale" and "of a mass, scale, form and design which is compatible with existing residential development".

The Commissioner rejected the argument that the only uses which needed to be small scale were offices, consulting rooms, banks, shops and specialty goods outlets because these uses generated significant traffic and required high levels of parking provision. He did so by reference to the carparking requirements for shops, banks, offices, consulting rooms and retail showrooms set out in Table UN/4 of the Development Plan for the City of Unley. He noted that service trade premises and retail showroom were similar uses. The carparking requirements for banks, offices, consulting rooms and retail showrooms were similar.

The Commissioner also rejected the argument that residential development within the Mixed Use 3 Zone was not required to be small scale and that therefore other unspecified uses were not restricted in terms of their scale. He did so by reference to Objective 1 Principles of Development Control 3, 5 (a) and (c) of the Mixed Use 3 Zone.

The Commissioner expressed his conclusions in the following paragraphs:

"While I do not accept the view proffered in evidence by Mr Rumsby that the wording of Objective 1 is exhaustive of the range of land uses sought in the Mixed Use 3 Zone, I have concluded, from a close examination of the Zone provisions and a comparison of those provisions with those for the Specialty Goods Centre Zone, the Mixed Use 1 and Mixed Use 2 Zones, and more generally, with those for Centre and Office Zones within the City of Unley, that there is evident in the Mixed Use 3 Zone provisions a clear intent to retain, where possible, existing dwellings, whether in residential use or converted for office or consulting rooms use, and to ensure that new development is compatible with those dwellings in its scale and appearance.

In land use terms, service trade premises may well be an appropriate use in the Mixed Use 3 Zone. However, there is a strong and consistent emphasis in the Zone provisions on new development being either 'small scale' or 'of a mass, scale, form and design ... compatible with existing residential development'. The proposal the subject of these proceedings is of a scale and appearance which is completely at odds with these provisions, as well as with Unley (City) Objective 5 and Principle 17, and while I do not consider it likely that resultant externalities such as traffic, overflow parking or noise are likely to impair the residential amenity of Austral Terrace, I am unable to conclude that a building of the scale and appearance proposed is consistent with the overall intent, purpose and desired character of the Zone."

The Commissioner noted that there are several large scale developments within the locality. However, as to the significance of such developments, he said,

"Claridge Holden, predates the current zoning by many years and the other, Mitre 10, on the evidence of Mr Rumsby replaced a major car dealership."

Although the Commissioner gave detailed reasons, I think his essential reasoning can be briefly stated. He interpreted the provisions of the Development Plan which he considered relevant as leading to the conclusion that the overall intent, purpose and desired character of the zone was that new development should be either small scale or "of a mass, scale, form and design ... compatible with existing residential development".

He then found that the proposed development was not consistent with that overall intent, purpose and desired character. He referred to the following three passages from the judgment of Debelle J (with whom Doyle CJ and Duggan J agreed) in City of Mitcham v Freckmann and Ors[2]:

"First, it is a non sequitur to conclude that the absence of a form of development from the list of non-complying developments for a zone means that there are parts of the zone where such a use may be permitted.

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 check list 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.

Once the relevant provisions of the Plan have been identified and the purpose and intent and desired character of the zone have been ascertained, the planning authority must proceed to assess the proposal by reference to those factors."

The Commissioner concluded that the appellant's decision to approve the proposed development was incorrect.

"1. That the Commissioner erred in law in failing to give sufficient weight to the development and evolution of the Mixed Use 3 Zone in the locality of the subject land of larger scale development in applying the provisions of the Zone to the assessment of the proposed development.

2. That the Commissioner erred in law in his consideration and application of the Mixed Use 3 Zone provisions whereby he required that development be of 'residential scale and appearance' having previously found that the proposed development had no detrimental impacts on the locality.

3. Having found that the proposed land use of service trade premises may well be an appropriate use within the Mixed Use 3 Zone, the Commissioner erred in relying solely on Principle 5 (c) as the basis for rejecting the development."

The grounds of appeal were refined or refashioned in the argument on the appeal. Counsel for the appellant submitted:-

1. The Commissioner erred in his description of various uses in the locality. This in turn affected, or may have affected, his interpretation of the provisions of the Development Plan. In addition, he placed no weight on the presence of large scale developments in the locality and this was an error.

2. The Commissioner erred in his interpretation of the provisions of the Development Plan. He was wrong to hold that development, other than the kinds of development specifically referred to in the objectives and principle 1 of the Mixed Use 3 Zone, should be small scale.

Counsel for the appellant identified the following finding as incorrect.

"With the exception of Claridge Holden and the Mitre 10 premises, the locality comprises, in the main, specialised retail, service industry and medical and professional consulting practices, generally between 30 square metres and 300 square metres in area. The Solver Decorator Centre has an area of 363 square metres."

It was submitted that this was an incomplete adoption of evidence given by the planning expert called by the objectors (Mr Rumsby) who said in his report (Exhibit A1):

"The balance of the Mixed Use 3 Zone within the locality comprises in the main, specialised retail, service industry, medical and professional consulting practices, generally of between 30 square metres and 300 square metres, and also up to 500 square metres in floor area, excepting the substantial Mitre 10 site."

Counsel argued that the Commissioner had neglected to mention in his description of the locality that there are specialised retail, service industry and medical and professional consulting practices "up to 500 square metres in floor area".

Mr Rumsby did not provide details of the uses which were up to 500 square metres in floor area, and counsel for the appellant said that the details were not contained in the other evidence. I note that two uses (other than Claridge Holden and Mitre 10) each of which had a floor area in excess of 300 square metres were mentioned by the Commissioner, namely, Mr Routley's existing premises and the Solver decorator centre.

It was argued that the Commissioner may have relied on the finding of fact I have quoted as supporting or reinforcing his interpretation of the Development Plan as requiring development to be small scale.

I reject this argument. First, I am not satisfied that the Commissioner was rejecting the evidence that there were uses which were up to 500 square metres in floor area. He uses the word, "generally". In the passage in which he makes the finding he refers to Mr Routley's existing premises and the Solver decorator centre. Secondly, even if there was an error it was an error of fact and the appellant has not been given leave to appeal on a question of fact. The fact that the leave has not been given is not fatal because I would be prepared to give leave even at this stage if I was satisfied that the error was material in terms of the Commissioner's ultimate conclusion. However, I do not think the Commissioner relied on this finding when he came to interpret the provisions of the Development Plan, nor did he rely on it in any other material way.

The other point raised by the appellant was that the Commissioner erred in placing no weight on the presence in the locality of Claridge Holden and Mitre 10. The Commissioner said,

"I acknowledge that there are several large-scale developments within the locality. However, one of those developments, Claridge Holden, predates the current zoning by many years and the other, Mitre 10, on the evidence of Mr Rumsby, replaced a major car dealership."

It seems to me that the Commissioner placed no weight on the presence of the large scale developments to which he referred. In my opinion, he erred in taking that approach. The fact that existing forms of development inconsistent with the primary objective of the zone predate the zoning may affect the weight that is placed on the presence of those forms of development but it does not mean that they become irrelevant. Such existing forms of development are relevant because they contribute to the character of the zone and to the assessment of how the proposed development will affect the character and amenity of the zone.

In my opinion the Commissioner erred in excluding from his consideration of the merits or otherwise of the proposed development the fact that there were two large scale developments in the zone. The error is an error of law because the Commissioner has failed to take into account a relevant consideration. Before discussing the consequences of this error I will deal with the appellant's second argument.

Counsel for the appellant argued that the Commissioner erred in his interpretation of the provisions of the Development Plan. An error of interpretation is an error of law.[3] Counsel argued that the requirement or emphasis on development being small scale only applied to those kinds of development specified in the Objective and Principle of Development Control 1 within the Mixed Use 3 Zone, namely, offices, consulting rooms and specialty goods outlets. Whilst service trade premises was not a use within the objective or primary purpose of the zone, and that is a consideration against the proposed development, it was argued that there was no further requirement in the Development Plan that service trade premises be small scale.

As a general proposition it is correct to say that simply because the objectives and principles provide that the primary purpose of the zone refers to certain specific forms of development of a particular size does not mean that the Development Plan is necessarily saying anything about the size of other forms of developments. The conclusions to be drawn about whether the objectives and principles bear upon the size of other forms of development will depend upon the nature of the uses referred to in the objectives and principles, the similarities between those uses and the other forms of development, and the interpretation of the relevant provisions of the Development Plan as a whole.

I do not think the Commissioner erred in his interpretation of the provisions of the Development Plan. The objective and first two principles of development control emphasise that the primary form of development in the zone other than residential development is to be small scale, and in the case of offices and consulting rooms preferably in converted dwellings. Residential development should not exceed two storeys at medium densities. Principle 5 is important because it provides that new development should maintain the residential scale and appearance of existing development and should complement development in adjacent residential zones. Principle 5 (c) provides that new development should be of a mass, scale, form and design which is compatible with existing residential development. I think the provisions of the Mixed Use 3 Zone by themselves are sufficient to justify the conclusions of the Commissioner as to the overall intent, purpose and desired character of the zone. The other provisions he referred to, namely, the provisions relating to Specialty Goods Centre Zone, Mixed Use 1 and Mixed Use 2 Zones and Centre and Office Zones support his conclusion in a general way. The Commissioner did not say there was an express statement against large scale service trade premises. Rather he reached a conclusion about the overall intent, purpose and desired character of the zone. In my opinion, the conclusion he reached was correct.

The Effect of the Error as to the Relevance of the Large Scale Development

The decision in City of Mitcham v Freckmann and Ors does not suggest that a conclusion that the proposed development is not consistent with the overall intent, purpose and desired character of the zone is necessarily decisive of the matter. There may be a number of other relevant factors. For example, the existing characteristics of the land may mean the objectives and principles of development control have very little relevance.[4] Furthermore the proposed development must be judged in its historical and factual context.[5]

In this case there were a number of factors which supported the appellant's decision to grant consent.

The subject land is vacant. It has not been used for detached dwellings for some time. There is currently an approval for a fairly intensive residential development on the land.

The subject land is a large area of land described in three certificates of title.

The access and parking arrangements are acceptable and any increase in vehicle movements within Austral Terrace will have minimal, if any, impact on residential amenity in the street. The traffic, overflow parking and noise generated by the proposed development are unlikely to impair the residential amenity of Austral Terrace.

There are a number of existing developments in the locality and zone which are not small scale, in particular, Claridge Holden and Mitre 10.

The Commissioner took into account the first three matters and any complaint about the weight he placed on them is probably a question of planning opinion. This Court is reluctant to substitute its planning opinion for that of the ERD Court, and will only do so where the appellant is able to demonstrate some fundamental departure from proper planning principles.[6] As far as the Commissioner's approach to the first three matters is concerned there is no fundamental departure from proper planning principles.

The Commissioner erred in failing to take into account the fourth matter. Although there is much to be said in favour of the appellant's decision to grant consent I do not think that I should make a decision on the planning merits. I have not seen the subject land and locality. Although I have read much of the evidence and submissions I did not hear and see the witnesses nor have I had the benefit of detailed submissions from counsel as to the effect of the evidence.

I have considered whether the error is a material error. If it is not a material error then I would make an order dismissing the appeal. However, I think the error is material because the decision on the planning merits is otherwise finely balanced.

In my opinion this matter should be remitted to the Commissioner for him to reconsider his decision having regard to the matters he has identified in his reasons and the presence of the large scale developments in the locality. The Commissioner may hear further submissions from the parties. It will be for the Commissioner to determine if he should hear any further evidence.

1. The appeal is allowed and the decision of the Commissioner is set aside.

2. The matter is remitted to the Commissioner for him to reconsider it having regard to the matters mentioned in his reasons and the large scale developments in the locality.

[1] S 30 (2) Environment Resources and Development Court Act 1993

[2] [1999] SASC 234; (1999) 74 SASR 56 at 61 and 62 - 63

[3] St Ann's College v Corporation of the City of Adelaide and Anor [1999] SASC 479. The position may be different if the question is one of the ordinary meaning of a word or its non-legal technical meaning. Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 394 - 398. See also Corporation of the City of Marion v Kassere Pty Ltd (Full Court Judgment No S 4909.1 delivered 23 December 1994).

[4] Paradise Developments Pty Ltd and Anor v The Nature Conservation Society of South Australia Inc and Anor (1992 - 93) 59 SASR 239 at 249 - 252.

[5] Courtney Hill Pty Ltd v South Australian Planning Commission and Ors (1992-93) 59 SASR 259 per King CJ at 263

[6] Ampol Road Pantry Pty Ltd v City of Brighton (1983) 62 SASR 165 at 173