CITY OF UNLEY v HALL & ORS No. SCCIV-02-1293 [2002] SASC 337

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

On 3 May 2001 Mr Trevor Routley lodged an application for development plan consent with the City of Unley ("the Council") for a proposed development on land at 337 - 339 Unley Road, Malvern, in the State of South Australia. The subject land is vacant land, and Mr Routley applied for consent to erect a new building (including mezzanine) to be used as a service trade premises and to establish carparking at the rear of the building. The proposed development was neither a complying nor a non-complying use in the Mixed Use 3 Zone in which the subject land is situated. The proposed development was for a category 3 development, and it was advertised in accordance with the requirements of s 38 of the Development Act 1993. There were a number of objectors.

On 25 June 2001 the Council granted a provisional development plan consent. The objectors appealed to the Environment Resources and Development Court. A Commissioner of that Court upheld the objectors' appeal and ordered that the decision of the Council be reversed.

The Council appealed to this Court. 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, although when the appeal was called on before me, I was told by counsel for the Council that Mr and Mrs Routley were in Court and that they supported the submissions being made by the Council.

On 6 May 2002 I made an order allowing the appeal and setting aside the decision of the Commissioner. I made an order remitting the matter to the Commissioner for him to reconsider it in light of several large-scale developments in the locality. My reasons of 6 May 2002 set out in detail a description of the proposed development, the history of the application and the relevant Development Plan provisions.[1] I refer to those reasons.

The matter was reconsidered by the Commissioner who, on 4 September 2002, confirmed his earlier decision and made orders whereby the appeal to the Environment Resources and Development Court was upheld and the decision of the Council reversed.

This is a second appeal by the Council in this matter. The appeal is against the decision made by the Commissioner on 4 September 2002. Again, the objectors appeared before me and indicated that they did not wish to participate in the appeal, and that they would abide the event. On this occasion, Mr Routley appeared by counsel who made submissions in support of the appeal.

Once again I did not hear 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 (s 30(2) Environment, Resources and Development Court Act 1993). No leave to appeal on a question of fact was sought.

"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 (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). Furthermore the proposed development must be judged in its historical and factual context (Courtney Hill Pty Ltd v South Australian Planning Commission and Ors (1992-93) 59 SASR 259 per King CJ at 263).

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 (Ampol Road Pantry Pty Ltd v City of Brighton (1983) 62 SASR 165 at 173). 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."

Matters that have occurred since the Previous Decision

The proposed development involves the erection of a new building with a total floor area of approximately 1,580 square metres for use as a service trade premises.

Since my previous decision, two consents to erect a building on the subject land for use as a service trade premises have been granted. The first consent is for an L-shaped building which, when viewed from Unley Road and Austral Terrace, would have an identical appearance (or nearly identical appearance) to the proposed development, but which would have a total floor area of 732 square metres. The consent for that development was the subject of an appeal by objectors to the Environment Resources and Development Court. On 13 May 2002 that Court, constituted of her Honour Judge Trenorden and Commissioner Hamnett, dismissed an appeal against the decision of the Council to grant consent.[2] In the course of its reasons, the Court said:

"However, it can also clearly be argued that the southern part of the Mixed Use 3 Zone no longer derives its character primarily from converted dwellings and that it is reasonable that the design of new buildings should have regard to the existing character of neighbouring, modern, commercial buildings - as the current proposal does, for example, in relating its form, height, verandahs and setbacks to those of the Crowhurst (Solver Paints) building on the opposite corner of Unley Road and Austral Terrace. Both the Crowhurst building and the subject proposal are of approximately the same height as adjoining residential development to the east along Austral Terrace.

In the case of the subject proposal, it is important to note that the opportunity to make use of converted dwellings does not exist, since the subject land is a large vacant site. In this context development can only take the form of a new, purpose-built structure. The zone provisions would allow for the construction of three buildings, each of up to 250m2 on the subject land. Having regard to all relevant provisions of the Plan, we are satisfied that an appropriately designed building of some 750m2 is suitable on the subject land."

I do not read the Court's reasons as saying that only a building of some 750 square metres is suitable on the subject land.

The other consent is for two separate buildings, one accommodating trade sales and offices and the other building accommodating a display area. The combined floor area of the two buildings is approximately 752 square metres. That approval was the subject of appeals by objectors, but those appeals were subsequently withdrawn.

No development has been implemented or carried out under these consents.

When the Commissioner came to reconsider the matter by reason of the directions of this Court, he heard further planning evidence from the expert planning witness engaged by Mr Routley. The expert planning witness, Mr Hutchinson, made the following comments about the subject land.

"So this is one of those sites that in some respects I guess can slip through the net in terms of design criteria and what have you. It's three properties together, it's become available as three sites, I think as I indicated in my recent statement I guess it's relatively unique. I would see it as probably being the last of this type of site that's going to become available within the locality because certainly the remainder of the land within the zone is taken up by small developments predominantly with existing houses on them that have been converted to commercial use and I would have thought the cost of aggregating those sites, demolishing what appear to be good buildings and replacing them with something like this is probably not warranted."

The Commissioner put to Mr Hutchinson a concern that developers might find it attractive to amalgamate sites if approvals are to be forthcoming for developments twice the floor area referred to in the provisions of the Development Plan. The Commissioner was referring to the fact that the subject land comprises three titles and the Development Plan in a number of places refers to a total floor area per individual building of 250 square metres. Mr Hutchinson said:

"So the incentive may still be there and so I certainly understand what you're saying. I'm not sure that I would see that as being something that would necessarily arise as a result of this having been approved and again, as I said, it's a unique site and I think the chances or likelihood of someone being able to aggregate a number of sites and doing something similar I would have thought is pretty remote."

The Commissioner's Reasons and the Grounds of Appeal

The Commissioner said that he was unable to conclude that the proposed development was in sufficient conformity with the relevant provisions of the Development Plan to warrant consent. He identified a number of reasons for reaching this conclusion.

First, he referred to the fact that the Development Plan made no specific reference to existing large-scale developments within the Mixed Use 3 Zone. He said that there was no notion of a gradation from the existing large-scale developments to the small-scale developments sought within the zone. In those circumstances, he said he could accord little weight to the large-scale developments in assessing the suitability of the subject proposal.

Having regard to my reasons in the previous appeal, I think that there is an error in this reasoning. Although the Commissioner uses the words, "little weight", the overall thrust of his reasons of 4 September 2002 is again to suggest that the absence of any reference to large-scale developments in the Development Plan means that the existing large-scale developments are to be ignored.

The Commissioner went on to say that the scale of development sought by the zone provisions is sufficiently prevalent to suggest that the number of developments which could properly be described as "large-scale" is not such as to suggest that the zone objective is incapable of realisation. That may well have been a conclusion that the Commissioner was entitled to reach. However, it does not follow from that conclusion that the large-scale developments are to be ignored. As I said in my reasons in the previous appeal,

"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.

Furthermore the proposed development must be judged in its historical and factual context."[3]

Secondly, although the Commissioner accepted the views expressed in Blanche & Ors v City of Unley and Routley[4] he said that,

"To allow more that (sic) twice that floor space on the land, however, would create an expectation of disproportionately higher development yields from large sites than would be the case with existing smaller allotments, thereby encouraging site amalgamations to accommodate large-scale developments rather than the maintenance of the prevailing small-scale development characteristic of the zone ...".

As I have said, Mr Hutchinson gave evidence on that topic which I have set out.

In my opinion, Mr Hutchinson was right to conclude that the subject land is a unique site. It is a large area of land, it is vacant, there are now two existing consents for service trade premises in relation to the land and an existing approval for a fairly intensive residential development on the land.

"To accept the proposition that, notwithstanding the clear emphasis on small-scale development expressed by the zone provisions, the proximity of a development site to an existing large-scale development represents a basis upon which large-scale development could occur on the former, would also be to accept that, over time, small-scale development within the zone could progressively be replaced by large-scale development, contrary to the clear intent of the zone provisions;"

I think that this is a similar point to the second reason referred to above, and I make the same comments.

Fourthly, the Commissioner said the planning merits were not, at the time of his original decision, finely balanced. The proposal was (he said) of a scale which was "completely at odds" with the relevant provisions of the Development Plan. There are two errors in this approach. First, the Commissioner has failed to proceed in conformity with the reasons of this Court. It is true that I did not direct the Commissioner to reverse his previous decision. However, he was required to act in accordance with the reasons of this Court. Secondly, his reasons suggest he simply reaffirmed his previous decision and did not approach his reconsideration of the matter in the manner directed by this Court.

Fifthly, the Commissioner said that the undesirable precedents (ie., the large-scale developments) did not justify approval of a proposal which is at odds with the thrust of the relevant zone provisions. So far as it goes, this proposition is correct. However, it is not a matter of the large-scale developments justifying approval; it is a matter of whether the existence of those large-scale developments, together with a number of other relevant matters, mean that the balance is in favour of granting approval.

The Commissioner concluded his reasons with the following comments:

"Nor is it the case in this matter. The reality of existing development which is not in accord with the directions sought for the zone has to be acknowledged. However, in the absence of any acknowledgment in the zone provisions that some gradation between the floor area of such developments and that sought elsewhere in the zone is anticipated, little weight can be accorded the few existing large-scale developments in the zone in assessing new proposals. If the Council believes that the Development Plan provisions for the Mixed Use 3 Zone are no longer appropriate, it is open to it to seek to amend those provisions.

Having regard to all the above, I have concluded that the proposal the subject of these proceedings is of a scale inconsistent with the overall intent, purpose and desired character of the Mixed Use 3 Zone. Having so concluded, I have further concluded that there is no basis upon which I should vary my earlier finding in this matter, namely, that the subject proposal conflicts with a number of key provisions of the Development Plan, in particular, Zone Objective 1 and Principles 1, 2 and 5 and Council Wide Principles 17 and 86, and therefore does not warrant consent."

In my opinion, the errors identified in relation to the first, fourth and fifth reasons of the Commissioner are errors of law and sufficient to justify an order that the decision made on 4 September 2002 may be set aside. It is unnecessary for me to consider if the errors in relation to the second and third reasons are errors of law.

The Approach that should now be taken by this Court

In my reasons in the previous appeal I said that I did not think I should make a decision on the planning merits. I reached that conclusion because the error by the Commissioner was a failure to take into account a relevant matter.

I think the circumstances now before me are sufficiently exceptional that I should make a decision on the fate of the appeal from the Council's decision.

Mr Routley lodged his application for development plan consent with the Council on 3 May 2001. The matter remains unresolved after some 16 months, and there have been two hearings before the Commissioner and two appeals to this Court. There is every reason to try and resolve the matter now. Furthermore, I think I am now in a position to express an opinion on the fate of the appeal from the Council's decision.

In my opinion, the appeal to the Environment Resources and Development Court should be dismissed. I have already set out the matters which I think are in favour of the proposed development. At the time of the previous appeal I thought there was a good deal to be said in favour of the proposed development. Since then the Environment Resources and Development Court has held that a proposal for a service trade premises with a floor area of approximately 732 square metres is appropriate for the land. I appreciate that in the case of the proposed development, the total floor area is approximately 1,580 square metres, but to my mind it is important in the context of Development Plan provisions which place some emphasis on the appearance of buildings that the proposal for a building with a floor area of approximately 732 square metres will have a similar, possibly identical appearance, when viewed from Unley Road and Austral Terrace, to the proposed development. A combination of that matter, the other matters referred to in my reasons in the previous appeal, and the evidence given by Mr Hutchinson, as summarised above, is sufficient to persuade me that the proposed development should be approved.

2. The orders made by the Environment Resources and Development Court on 4 September 2002 are set aside and the decision of the Council is restored.

3. The appeal to the Environment Resources and Development Court is dismissed.

City of Unley v Hall & Ors [2002] SASC 143.

Blanche & Ors v City of Unley and Trevor Routley [2002] SAERDC 48.

City of Unley v Hall & Ors [2002] SASC 143 paras 49 and 54.

[2002] SAERDC 48.

[1] City of Unley v Hall & Ors [2002] SASC 143.

[2] Blanche & Ors v City of Unley and Trevor Routley [2002] SAERDC 48

[3] City of Unley v Hall & Ors [2002] SASC 143 paras 49 and 54.

[4] [2002] SAERDC 48.