DISTRICT COUNCIL OF MOUNT BARKER v PALMA No. SCCIV-01-1656 [2002] SASC 104

Full Court: Doyle CJ, Mullighan and Williams JJ

1. DOYLE CJ: Mr Palma applied to the District Council of Mount Barker ("the Council") for provisional Development Plan consent ("the consent") to undertake a development described as "relocation of existing shop". The Council determined the proposed development to be:

"Conversion of a storage shed to a shop for the retail sale of fruit and vegetables, associated car parking and landscaping, and the use of the rear shed for storage purposes."

The Council classified the proposed development as a non-complying development for the purposes of s 35 of the Development Act 1993 ("the Act").

2. The Council resolved to grant the consent, subject to certain conditions and subject to the concurrence of the Development Assessment Commission ("the DAC"), which concurrence was required by s 35(3)(b) of the Act. The DAC resolved to decline to concur. Accordingly, the Council had to refuse the consent.

3. Mr Palma appealed to the Environment Resources and Development Court ("the ERD Court"). If the Council had correctly determined the proposed development to be a non-complying development, there was no right of appeal.

4. The ERD Court held that the proposed development constituted development as defined in s 4 of the Act. It held that the proposed development was not a non-complying development. Accordingly the appeal lay to the ERD Court. The Court remitted the application to the Council to be dealt with accordingly.

The appeal raises two issues. First, does the proposed development constitute development as defined in s 4 of the Act? Second, if the first question is answered in the affirmative, was the ERD Court correct in deciding that the proposed development was not a non-complying development? By a Notice of Contention Mr Palma claims that the ERD Court should have held that the proposed development did not constitute development under the Act, and that accordingly this Court should hold that the ERD Court lacked jurisdiction to entertain the appeal.

I take the following facts from the reasons of the Judge of the ERD Court. His factual findings were not challenged.

Mr Palma owns land with a frontage to Old Mount Barker Road. The land has an area of about 17.5 hectares. The land is about 900 metres from the edge of Hahndorf Township. The land is used for market gardening and associated agriculture. On the land are a dwelling and at least two sheds. One shed, the larger shed, is used to sell fruit and vegetables, some of which are produced by Mr Palma, and some of which come from elsewhere. Adjacent to the larger shed is a bitumen car park, which is connected to Old Mount Barker Road by a bitumen drive. There is a smaller shed which is closer to Old Mount Barker Road. This comprises a cool room and storage area. It is used to store farm equipment, fruit and vegetable cartons and boxes, to cut and to clean and to wrap vegetables, and for the storage of vegetables in the cool room. The buildings and their immediate curtilage occupy an area of about one hectare.

Mr Palma's proposal is to use the smaller shed to sell fruit and vegetables, and to use the larger shed to store equipment and boxes and cartons and, I assume, fruit and vegetables. In effect he proposes to swap his retail outlet from the larger shed to the smaller shed, and the storage and wrapping activities to the larger shed. He also proposes to construct a gravel car park with access to and from Old Mount Barker Road, quite close to the smaller shed.

There is no building work proposed. As is evident, there is no proposal to change the use of most of the land. The changeover of activities is confined to the larger shed and the smaller shed.

The Judge did not make any findings about the history of the use of the land. I gather that Mr Palma has used the land to grow and to sell fruit and vegetables for quite a few years. Reports in the Appeal Book indicate that he has made several unsuccessful applications for approval to use the smaller shed as his retail outlet.

Reports in the Appeal Book indicate that his proposal is considered to raise issues as to the impact of the proposal on the character of the historic town of Hahndorf, as to its impact on the definition between areas of urban and rural development adjacent to the town, to raise traffic issues and issues of water pollution. According to one of the reports the land is in a "highly water sensitive location."

In 1996 Mr Palma was granted provisional Development Plan consent to carry out a modest extension to the smaller shed, and some other improvements internally and externally. The proposed development was described by the Council as "alterations and extension to an existing shed." Attached to the consent were a number of conditions. Most relate to details of the improvements to the shed. Condition 6 is as follows:

"The building shall only be used for purposes as described in details accompanying the application. No sales of goods shall be undertaken within or about the building."

The purposes described in the accompanying details appear to be the storage of farm equipment, the storage of cartons and boxes, cutting and cleaning vegetables, storing vegetables in the cool room, and wrapping of vegetables.

The land is in the Historic Township (Rural Setting Heritage Area) Zone of the District Council.

For this zone, Principle 124 of the Principles of Development Control states:

"All kinds of development are non-complying in the Historic Township (Rural Setting Heritage Area) Zone (HT 4)) except the following ..."

The proposed development is not within any of the stated exceptions.

The effect of the ERD Court decision is that because the proposed development is not a non-complying development, the Council can decide whether the application should be approved, the concurrence of the DAC is not required, and an appeal lies against a refusal of consent, should the Council refuse its consent: see s 35(4). If the proposed development is a non-complying development, no appeal will lie if, as happened, the DAC refuses its concurrence.

The Judge held that the proposed development is development as defined in s 4 of the Act. The only part of the definition of development that might apply is sub-par (b) of the definition of "development", which provides that development means

The Judge said the proposed development involved a change of use because the proposed use of the smaller shed, unless approved, would contravene Condition 6 set out above. He applied the reasoning of the Full Court in Remove All Rubbish Co Pty Ltd v City of Munno Para [1991] SASC 2991; (1991) 56 SASR 254 ("Remove All Rubbish").

In deciding that the proposed development was not a non-complying development, the Judge applied a principle found in a number of cases decided by single Judges of this Court. Those cases were reviewed by Matheson J in Cutajar v Corporation of the Town of Thebarton (1991 ) 55 SASR 70. The Judge stated the principle which he derived from those cases as follows [at 12]:

"... [A] reasonable expansion of an existing non-complying development does not constitute a non-complying kind of development for the purposes of Section 35 of the Development Act, even though, in some cases, such expansion may go beyond the land currently being put to such use."

In the course of dealing with this second issue the Judge found that the proposal did not involve a change of use of the land as a whole, or of the curtilage surrounding the buildings. He came to this conclusion as a matter of fact and degree, applying the well known principles stated by Wells J in Prestige Car Sales Pty Ltd v Corporation of the Town of Walkerville (1979) 20 SASR 514 ("Prestige Car Sales"). There is a tension between his conclusion that the proposed development constitutes development, and his conclusion that it does not involve a change of use of the land.

Did the proposed development constitute "development"?

The Act now provides a process for the variation and revocation of conditions attached to a planning authorisation: see s 42(2)(b). The Act also makes provision for the variation of a development authorisation: see s 39(7). The effect of transitional provisions in the Act appears to be that these provisions apply to a condition imposed under the Planning Act 1982: see Appendix 1 to the Act, clause 24(7).

Under the Planning Act 1982, the question of how a condition attached to a planning consent might be varied gave rise to difficulty. There was no provision in the Act for the variation or revocation of conditions. The matter arose in Remove All Rubbish. There, a planning consent for a waste disposal depot had attached to it conditions regulating the hours of operation of the depot. The operator of the depot wanted to vary those hours. The Full Court held that the proposal to change the hours of operation could be regarded as a proposal for a change of use, and therefore as development, and therefore as properly the subject of an application for a fresh planning consent. By implication the Court accepted that if the fresh planning consent were granted, the existing planning consent could be abandoned. The principle applied was stated by King CJ as follows at 255:

"Generally speaking the hours during which a commercial or industrial operation is carried on on land do not affect the character of the use of the land. ... It seems to me that where the hours of operation are considered to be so much of the essence of the land use as to warrant the imposition of conditions restricting operations to certain hours, any variation of those hours can fairly be regarded as a change of use and therefore development. I think therefore that it is open to the respondent to apply for planning approval for a development consisting in the change of use of the land involved in altered hours of operation. Refusal of that application would, of course, leave the existing planning approval unaffected."

"Where, as here, a planning consent has been granted on terms that restrict the proposed development to stipulated periods, any substantial change in those periods will constitute a change in the use of the land and so amount to development within the meaning of s 4 and require a further planning approval. That is not to say that, as a general proposition, a change in hours will be a change in use. What makes all the difference is the existence of a consent condition as to operating hours that stamps a distinct character on the use of the land."

Neither counsel before us submitted that that decision was incorrect. Nor was it submitted that the reasoning is inapplicable under the Act. It might be argued that the decision rests on the absence of any mechanism in the Planning Act 1982 for the variation of a condition, and that the reasoning is not applicable under the Act. However, that submission was not put. The reasoning of the Full Court is not obviously inapplicable to the Act. The reasoning rests on the significance of the condition in a given case, and in particular on a conclusion that a particular condition is of such significance for planning purposes as to affect "the essence of the land use" or of such significance as to stamp "a distinct character on the use of the land." In the circumstances, I consider that it is appropriate to continue to apply the reasoning in Remove All Rubbish, even though I recognise that the application of that reasoning under the Act may require reconsideration.

The material in the Appeal Book supports the conclusion that Condition 6 was seen as an important condition when it was imposed in 1996. Accordingly, subject to two points I agree with the conclusion reached by the ERD Court.

Mr Hayes QC, counsel for Mr Palma, submits that the proposed development does not involve a change of use of the land taken as a whole. I agree, subject to the impact and significance of Condition 6. Mr Hayes submits that the reasoning in Remove All Rubbish would apply only if the application by Mr Palma were limited to the smaller shed. That is, limited to the particular building, or to that building and its curtilage, to which Condition 6 attaches. I disagree. The principle found in Remove All Rubbish rests on the impact of the condition in question on "the essence of the land use." In the present case it is easy to conclude that Condition 6 was seen as of high importance to the use of the land as a whole, and that the condition stamps a distinct character on the use of the land. That character may be said to be the use of a particular building for the sale of fruit and vegetables carried out on the land.

I recognise that the reasoning in Remove All Rubbish has a curious effect. But one must recognise that this effect rests on an assessment of the significance of the condition in question when determining the nature of the use of the land in question.

Mr Hayes' second point was that Condition 6 is invalid or ineffective, there being no basis for its imposition in 1996. He makes the point that the proposal in 1996 to renovate the smaller shed and to extend it did not include a proposal to undertake the sale of goods within the shed. Accordingly, he submits, it was not open to the Council to impose Condition 6.

I do not accept this submission. Until now, as far as I am aware, the validity of Condition 6 has not been challenged. It is not appropriate for this Court to pass on its validity in these proceedings, in which all of the circumstances surrounding its imposition are not before the Court. Nor do I necessarily accept the premise that the power to impose the condition arose only if the development proposed in 1996 included using the smaller shed for retail sales, or if there was reason to apprehend that the shed might be so used.

For those reasons I conclude that the ERD Court rightly decided that the proposed development constituted "development" for the purposes of the Act.

There were two other submissions made by Mr Roder in support of the conclusion by the ERD Court that the proposed development constituted "development" as defined. I propose to refer to them briefly.

(a) land as a physical entity ... including any building on, or fixture to the land ..."

Relying on that definition, Mr Roder submits that the proposed development involves a change of use of the smaller shed, hence a change of use of a building on the land, and hence a change of use of the land. He referred us to passages in the reasons of Wells J in Prestige Car Sales where, on occasions, the Judge referred specifically to the use of the building in question when considering whether there was a change of an existing use.

I do not accept this submission. In Prestige Car Sales the Court was concerned with an earlier statutory regime. At that time the planning controls used the concept of the use of land as the central mechanism for control. Now the central mechanism is the concept of development. As one would expect in such a planning regime, s 37 of the relevant legislation provided that no planning regulation was to be read as preventing the continued use of any land or building for the purpose for which the land or building was lawfully being used when the planning regulation took effect. As well, regulation 33(1) of the then regulations empowered a Council to consent to "the alteration, enlargement or extension of an existing building or structure for its existing use", subject to certain conditions.

In Prestige Car Sales the issue was whether proposed alterations to a building on land which had been used for selling used motor cars involved a change of use, or a continuing use of the land protected by s 37, and, as I understand the case, involved in particular the question of whether the alteration to the building was one which the Council could and should consent to under regulation 33.

It was in that context that Wells J made certain statements, often referred to with approval, about the interaction between the use of land and the use of buildings, when considering whether there has been a change of use. For example, he said (at 520):

"In every case, however, circumstances may readily be imagined in which the use of land will complement the principal use denoted by the character of the building named, or the erection of a building and its use will complement the principal use denoted by the character of the land use named."

"It seems to me that in every case the matter becomes one of fact and degree, and the test that must be applied is whether, having regard to the purpose of the business as a whole, the essential character and balance of the relevant land and buildings would be changed if the proposed extension were to be carried out."

I will not set out all of the relevant passages. In my opinion the context in which the case arose explains the focus, in some of the relevant passages, on the use of the building in question. The question was whether the alterations were an alteration of an existing building for its existing use.

The reasons of Wells J in Prestige Car Sales are not authority for the general proposition that a change in the use of a building is, as a matter of course and as a matter of law, "development" as defined in the Act. Nor is it authority for the general proposition that the change in the use of a building is necessarily, by operation of the definitions in the Act, a change of use of the land on which the building stands and so "development" as defined. I consider that Prestige Car Sales reinforces the general proposition that usually the issue will be whether there has been a change in the use of land. The point emphasised by Wells J is that the use of a building on the land is a significant matter for consideration, that the use of a building is likely to affect one's characterisation of the use of the land on which it stands, and that the use of the land is likely to affect one's characterisation of the use of the building. The case does not support the proposition that if one can identify a change of use of a building, considered in isolation, one has identified a change in use of the land, nor does it support the proposition that one can ignore the question of whether there has been a change in use of the land and focus solely on the use of the building.

In the present case the ERD Court has decided that Condition 6 was so important that it stamped a particular character on the use of the land. But for that, it seems clear that the Judge would have found, and I would have agreed, that there had been no change of use of the land as a whole and so no development.

Mr Roder's second point was that the application to the Council could and should be regarded as an application under s 39(6) of the Act for the variation of a development authorisation, or as an application under s 42(2)(b) of the Act for the variation of a condition attached to a planning authorisation. I assume that it is then said that such an application is deemed by the Act to constitute development. This submission relies on the fact that the application proposed a use of the smaller shed contrary to Condition 6.

"(6) Subject to subsection (7), a person may seek the variation of a development authorisation previously given under this Act.

(7) An application to which subsection (6) applies―

(a) may only be made if the relevant authorisation is still operative; and

(b) will, for the purposes of this Part, but subject to any exclusion or modification prescribed by the regulations, to the extent of the proposed variation, be treated as a new application for development authorisation (but, unless otherwise approved by the relevant authority, the application for variation cannot relate to any condition imposed with respect to the original authorisation nor extend the period for which the relevant authorisation remains operative."

Section 42(2)(b) deals with a condition imposed in relation to a development, and provides that such a condition:

"(b) may continue to apply in relation to the development unless or until it is varied or revoked by the relevant authority in accordance with an application under this Division."

The effect of these provisions is not clear. First, it is not clear whether there is any, and if so what, relationship between an application to vary a development authorisation and an application to vary a condition. Second, the Act does not identify the principles by reference to which such an application is to be decided. Third, it is unclear whether and when the holder of a development authorisation that is subject to a condition may apply for a new development authorisation (without the condition), allow the former development authorisation to lapse, and then be freed from the condition.

We did not hear full submissions on this matter, and having regard to the difficulty and potential importance of the issue, I consider that these matters should be left for another day, as it is not necessary to decide them in the present case. It suffices to say that I incline to the view that each section is intended to deal with a different matter - the former with an application to change the substance of an authorisation, the latter with an application to vary a condition attached to an authorisation. But I recognise that the distinction may be difficult to maintain. I also incline to the view that unless such an application constitutes development, applying general principles, it is simply to be dealt with as invoking the exercise of a discretion implicitly conferred by each of the relevant provisions. That discretion would be exercised consistent with the purposes of the Act, and in the light of the existence and provisions of the appropriate Development Plan. However, these are tentative views only. The third issue that I identified will have to be resolved in due course if, as I later conclude, the proposed development should be dealt with by the Council on the basis that it is not a non- complying development. A decision will have to be made about the status and effect of Condition 6.

There are some other procedural difficulties that have been identified by Williams J in his reasons. As he says, they were not argued before this Court, and do not appear to have been raised in the ERD Court. My impression is that there is force in his observations, but like him I am prepared to decide the issues presented to this Court for decision despite the difficulties that he identifies. It should not, however, be assumed that the procedure followed by Mr Palma is correct.

Is the proposed development a non-complying development?

The principle relied upon by the ERD Court in deciding this part of the case is clearly stated in a number of cases.

I will illustrate the principle by reference to the first of these cases, Wilson v Corporation of the City of Mitcham and Mercedes College (1986) 130 LSJS 31 ("Wilson"). Mercedes College was an existing primary and secondary school when the relevant Development Control Regulations came into force. It was situated in a residential zone. In that zone an "educational establishment", defined as follows:

"a secondary school, college, university or technical institute, but does not include a primary school or an institution for the care and maintenance of children"

was a prohibited use. The college applied for consent to a proposed development described as a "multi-purpose hall and swimming pool for educational purposes."

Jacobs J held that the proposed development was not a prohibited development. He said that the proposed development was not for an "educational establishment" as defined: at 39. He emphasised the fact that the Development Plan was "superimposed upon an existing state of development", and that while it might characterise a locality as residential, there would always be "non-conforming uses." He said (at 39):

"It would be a very strange Development Plan that sought to prohibit an existing and long-established school from expanding its facilities in order to provide the best possible education for its children. The purpose of designating an 'educational establishment' as a prohibited development is not to inhibit the reasonable development of existing schools, but to prohibit the intrusion into the area of a new 'secondary school, college, university or technical institute'."

"I would, however, prefer to rest my answer upon the broader view of the Development Plan which must be capable of adapting to development of existing non-conforming uses while at the same time inhibiting development by way of new secondary and tertiary (but not primary) educational establishments in a Residential 1A zone."

He took the view that the hall and pool were not to be treated as an educational establishment merely because they were to be used as part of such an establishment.

Two possible bases for the decision emerge. The first is a relatively narrow one, that the definition of "educational establishment" did not apply. The broader one is that provisions of a planning instrument that submit particular land uses to special restrictions on the basis of their incompatibility with the general character of a zone, or on the basis that they call for special controls, should not ordinarily be interpreted as applying to a proposal which is a reasonable development of an existing use. I am not able to state the broader principle with any more precision than that.

Both bases for the decision are to be found in the later decisions: Church of England Collegiate School of St Peter v Corporation of the Town of St Peters [No.1] (1990) 157 LSJS 401, (1990) 70 LGRA 34; Church of England Collegiate School of St Peter v St Peters Town Council [No.2] (1990) 71 LGRA 309; Cutajar v Corporation of the Town of Thebarton (1991) 55 SASR 70.

As Mr Hayes submitted, it is unlikely that the decision in Wilson rests upon the narrow basis. The relevant part of the reasons of Jacobs J suggests that he would have come to the same conclusion even if the proposed development had, literally, fallen within a use that was a prohibited use. The thrust of his reasoning was that a reasonable development of an existing prohibited use was not to be treated in the same way as an intrusion into the zone of a prohibited use for the first time. I consider that the broader basis for the decision in Wilson, and in the later cases, is the correct one.

Mr Roder rightly points out that in the present case the language of the Development Plan is not so easily read as subject to this approach. Principle 124 states that "All kinds of development are non-complying ... except the following."

I note, however, that the ERD Court has applied the broader basis to the Act and the Development Plan. In Morrow v Mitcham and Kirk and Development Assessment Commission [1994] EDLR 448, the Court held that:

"a reasonable expansion of an existing non-complying kind of use, albeit on land not part of the site of the existing use, does not constitute a non-complying kind of development."

It is important to bear in mind that what I have called the broader basis for the decision in Wilson is not a freestanding rule of law. It is a principle of interpretation. I have already attempted to express it as such. It calls for a particular approach when interpreting a provision of the Development Plan, that submits particular types of development to particular restraints, in its application to a use of land which was a lawful existing use when the Development Plan came into operation. The principle reflects the practical considerations identified by Jacobs J.

I consider that the principle can be applied to the existing Development Plan. But I readily acknowledge that the principle in question has the potential to have an unsettling effect. It should be applied with care.

I would go no further than to say that Principle 124 should be read as not applying to development which is a continuation of an existing lawful use of the land in question. I would leave for another day the issue of any wider application of the principle. In the present case I take the view, as I have explained above, that the proposal is for "development" because of the particular significance of Condition 6, but I also accept that, viewed more broadly, the proposal is for the continuation of an existing use, and therefore within the scope of the principle of interpretation that I have identified.

To the extent that there is a tension between the last two propositions, and I recognise that there is one, it results from the significance attributed to Condition 6, and from the difficulty of dealing with applications to vary conditions, which difficulty I have already touched on. If the reasoning in Remove All Rubbish were held to be inapplicable under the present Act, it may be that this case would properly be dealt with simply as an application under s 42(2)(b) of the Act, not involving development, and would be dealt with by the Council in the exercise of its discretion and in the light of the provisions of the Development Plan. However, as I have already indicated, that is a hypothesis that gives rise to a number of difficult issues, and is not a hypothesis appropriately pursued here.

For those reasons I conclude that the ERD Court rightly decided that the proposal was not for a non-complying development.

MULLIGHAN J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.

WILLIAMS J In my opinion Mr Palma's application to District Council of Mount Barker dated 19 February 2000 involves a change in use of a building by virtue of the restrictions which were imposed as a condition of the development authorisation in 1996. Until the relevant authority has modified or removed such condition in accordance with the statutory procedure (whether by way of variation or revocation of the earlier decision) that condition (limiting the land use) continues to bind the owners and occupiers of the land.

The Development Act 1993 has introduced a code governing applications for variation or revocation of conditions which have been imposed by the decision of a relevant authority with respect to a development authorisation. Subject to the regulations, if the application is for variation of a condition, it is to be treated as a new application for development authorisation but that application may only be brought with the leave of the relevant authority. Relief may also be obtained in some cases upon an application to cancel a development authorisation and to revoke the conditions previously imposed.

In this respect the Development Act 1993 differs from its predecessor (the Planning Act 1982) and addresses the shortcomings in the earlier legislation which were identified by the Full Court in Remove all Rubbish v City of Munno Para [1991] SASC 2991; (1991) 56 SASR 254. In that case Cox J at 256 observed that the Planning Act did not contain any general power for any authority to vary conditions imposed under s 47(7) in respect of a planning consent. That has now been remedied.

Mr Palma has not taken advantage of the procedure which is now available to apply for a variation of a condition previously imposed and which is still in force. In my opinion this is the source of the controversy agitated on this appeal.

On 11 July 1996 DC Mount Barker (in response to Mr Palma's development application dated 12 June 1996) notified its decision granting Provisional Development Plan consent for the alteration and extension of an existing shed to be used for "storage of equipment, storage of vegetable cartons and boxes, cutting and cleaning of vegetables and storage in existing coolroom and wrapping of vegetables in bundles". This shed is referred to as Mr Palma's "front shed". The development (which has now been carried into effect) involved recladding and extension of the front shed, erection of two verandahs and installation of an internal shed wall and doorway. The application was treated as being of a minor nature by the District Council (as the relevant authority). Mr Palma had previously made a number of unsuccessful planning applications to convert the front shed to a shop and the apparent incongruity in the proposed modifications to a storage and processing shed did not escape notice. A number of conditions were imposed including the following:

"6. The building shall only be used for purposes as described in details accompanying the application. No sales of goods shall be undertaken within or about the building."

This condition binds Mr Palma and continues to apply to the development unless or until the condition is varied or revoked by the relevant authority in accordance with an application under pt 4 Division 1 of the Development Act. (see s 42(2)(b)). The Act makes provision for variation of conditions (s 39(6)) and for cancellation of a development authorisation previously given by a relevant authority upon application to it (s 43). No such application has been made. Indeed no application for variation could be made without the leave of District Council of Mount Barker as the relevant authority which made the decision which imposed the original condition (see s 39(7)(b)). As Mr Palma has carried out the development which was authorised by the Council's decision of 11 July 1996 it would seem inappropriate (without some qualification) to cancel that development authorisation and to revoke the attached conditions. I have mentioned the procedure for cancellation of an authorisation only to identify how an application for revocation of a condition might be made. It is unnecessary now to pursue further the significance (if any) of the dichotomy drawn in s 42(2) between applications for "variation" and "revocation" of conditions.

Mr Palma has applied in terms of his application dated 19 February 2000 (which gives rise to this appeal) for the "relocation of existing shop" to the front shed from the rear shed. An accompanying letter says that:

"The purpose of the application is essentially to reverse the use of the buildings, enabling the larger shed at the rear of the house to be used for storage purposes and the building fronting Old Mount Barker Road as the fruit and vegetable shop."

"There is no change in the essential use of the land, simply a re-arrangement of land uses on the site within approved buildings."

The Council determined the nature of the proposal to be:

"Conversion of a storage shed to a shop for the retail sale of fruit and vegetables, associated car parking and landscaping, and the use of the rear shed for storage purposes."

For the purposes of s 35 of the Development Act the Council classified the development as "a non complying" development upon the footing that all kinds of development are "non complying" in the zone subject to certain exceptions (which are not now relevant) in terms of the development plan. Provisional development plan consent cannot be granted to this kind of development without the concurrence of the Development Assessment Commission (s 35(3)). As this was refused the council's support of the application is non effective. Under s 35(4) no appeal lies against the refusal of consent or concurrence in respect of a "non complying development".

However, by notice of appeal dated 17 September 2001 Mr Palma purported to appeal to the Environment Resources and Development Court against the Council's notification to him on 20 July 2001 of the refusal of provisional development plan consent. The grounds of appeal as contained in that notice were:

"1. The proposed development was not a non complying land use.

2. The proposed development was for the transfer of an existing use on the land and did not change the intrinsic nature of the existing use of the subject land.

3. Given the existing use of the land, the proposed development is not at variance with the zone provisions applicable to the land.

4. The development would lead to an improvement to traffic safety and amenity within the locality."

The first ground of appeal to the ERD Court was argued before that Court as a preliminary issue. This point of law has become the subject of the present appeal.

The question thus raised is whether the Council was correct in classifying the proposal as being for a "non complying" form of development. The point has been raised and argued without objection notwithstanding that Mr Palma apparently took no action to appeal against this classification before participating in the prescribed evaluation process with respect to a proposal notified as being "non complying". (See Development Regulations 16 and 17(3)(b) and applicant's statement of effect dated November 2000).

Upon appeal before the ERD Court, the Judge has recognised that by reason of Condition 6 to the Council's development authorisation given on 11 July 1996 the use of the front shed for retail selling constituted "development". The Judge said:

"...I am satisfied that it is a development as so defined, if for no reason other than the implementation of Mr Palma's proposals will, unless otherwise approved, constitute a contravention of a condition of an approval granted on 11th July, 1996, with respect to the present storage shed, which condition specifically precludes the sale of goods from that building".

However, His Honour determined that the proposed re-arrangement in the use of the buildings was a modification which did not affect the overall continuing use of the farm land of which the shed forms a part. His Honour said:

"...[Counsel] referred also to Wilson v Corporation of the City of Mitcham and Mercedes in Ercedes College [1986] 130 LSJS 31 and Church of England Collegiate School of St Peters v Corporation of the Town of St Peters [1990] 157 LSJS 401 and Cutajar v Town of Thebarton [1991] 55 SASR 70, all which authorities support the principle that a reasonable expansion of an existing non-complying development does not constitute a non-complying kind of development for the purposes of Section 35 of the Development Act, even though, in some cases, such expansion may go beyond the land currently being put to such use."

In my opinion the principle to be found in these cases cannot be applied to displace the requirements of the Development Act as regards the variation of development conditions attached under s 42. The cases to which the ERD Court Judge refers exemplify a principle of construction which recognises the need to allow some physical expansion in boundaries of existing non-conforming activities within the framework of the Development Plan. These cases do not deal with the different question of expansion (or modification) of activities in the face of an express blanket prohibition in terms of a condition of provisional development plan consent imposed under the current statutory regime.

In accordance with the principle in Wilson, it is arguable that the respective functions of the rear shed and the front shed may be exchanged to suit the exigencies without any planning implications in terms of restrictions arising from the Development Plan itself. However, when the exchange involves a breach of a condition imposed under s 42 of the Development Act then I consider that there must be recourse to the procedure provided in Part 4 Division 1 of the Development Act to obtain relief from the binding effect of the condition described in s 42(2)(a) of the Act.

It is not every proposed alteration to a condition imposed under s 42 which will necessarily result in a change of land use; a Court will have regard to the essence of the condition and the effect of its removal or modification. That topic is discussed in Remove all Rubbish by King CJ at 255 and by Cox J at 261-262 in the context of the repealed Act. However, the blanket prohibition contained in condition 6 leaves no room in the present case for reading down the effect of the condition which restricts the current use of the front shed and prohibits the sale of goods. Mr Palma's proposal involves a fundamental change in the lawful use of a building namely the front shed so as to over-ride the effect of condition 6.

Accordingly I disagree with the decision of the ERD Court. I consider that the proposed development is non-complying and the decision made thereon by the "relevant authority" is not subject to appeal. Having regard to the way in which the Council dealt with the application and the manner in which this appeal was argued, I do not consider that Mr Palma's application of 19 February 2000 should be treated as an application for variation of a condition or for leave to proceed in accordance with s 39(6) and (7). In the context of the decision notified on 11 July 1996, I have construed Condition No 6 as still "continuing to apply" in the absence of any procedural step to remove the current limitation as to how the development is used (see s 44(3)). By virtue of the width of the definition of "development authorisation" in s 4 I have treated the decision of 11 July 1996 as a "development authorisation" for the purposes of s 44 as well as a "decision" to which s 42 applies.

There are unanswered questions arising with respect to the construction of s 39(7) and s 42. In Remove all Rubbish Cox J (at 257) noted how under the Planning Act a power to revoke a condition had been construed as carrying with it the lesser power to vary. It may be necessary at some time to consider the extent of the power to vary contained in s 39(7) of the Development Act and the principles to be applied upon an application to vary a condition or to seek leave to bring that application. These matters have not been the subject of argument upon this appeal.

On 8 May 2000 in accordance with development Regulation 16 DC Mount Barker made a determination as to "the nature" of the development proposed in the application. The Council thereupon deemed its nature to be "non complying" and resolved that Mr Palma be informed in writing of that fact (see Development Regulation 16(2)).

This appears to be a "decision of a relevant authority in relation to an application for development authorisation" giving rise to a right of appeal pursuant to s 86(1)(a)(iii); subject to any extension of time such an appeal is required to be instituted within two months of notification of the decision. It appears that the appeal procedure was not followed in the present case although it was available. Instead the application has been allowed to proceed to assessment by the Council and by the Development Assessment Commission (which on 28 June 2001 declined to concur in the Council's decision of 5 March 2001 to approve the development).

Although Mr Palma has apparently taken no step to exercise his right of appeal against the council's decision of 8 May 2000 he now argues that the decision was wrong in law. In the absence of an appeal against the council's notification of 8 May 2000 the matter has been processed in accordance with the requirements of the Development Regulation 17 relating to a non-complying development and the procedure for seeking concurrence of the Development Assessment Commission in accordance with Regulation 25. On 16 October 2000 (after the time had expired for appeal against the decision of 8 May 2000) the Council resolved to proceed with an "assessment" of the application (Development Regulation 17(3)(b)) and sought from Mr Palma a "statement of effect" (as required by Development Act s 39(2)(d) and Development Regulation 17(4) in case of a "non complying" development).

Mr Palma then provided a statement of effect dated November 2000 upon which is endorsed:

"The application is proceeded with on a "Without Prejudice" basis to the applicant's rights to have the matter considered as a consent, rather than as a non-complying development."

Although the court has not heard argument on this point my provisional view is that this manner of proceeding gives rise to difficulty. The resolution of the question whether the proposal for development was correctly treated as "non-complying" affects the processing of the application and the availability of a right of appeal. My provisional view is that the status of the application for the purposes of s 35 should be resolved as the next step after the mandatory notification is given by the "relevant authority" under Regulation 16(2). That notification provides a basis and triggers the time limit for an appeal (see s 86(1)(a)(iii) and (4) of the Development Act). In the absence of an appeal the notification of a classification determines how the application will be dealt with. An appeal will enable the classification to be reviewed before the application is processed. It is inconvenient (and possibly impermissible in the circumstances of the present case) to postpone a challenge to the authority's classification decision until the application has been assessed as to merit by the Council upon the footing that it is dealing with a "non complying" development.

Generally speaking and within limits parties should be encouraged to mould procedure in order to minimise costs. However, in the present instance the statutory procedure (including that provided by the Development Regulations) is important as providing a framework which is fundamental to the operation of the system of development control. Parties should be aware of the difficulties which they may create by by-passing a step in the procedure. Mr Palma has not appealed against the Council's classification but has provided a "statement of effect" upon the footing that the Council (and the DAC) will assess and process the application as being for a "non complying" development. Having proceeded in this way I question whether Mr Palma should be allowed to reserve his rights as he has purported to do (by his agent's endorsement upon the statement of effect).

Nevertheless as the question of classification of the proposed development has now been fully argued I consider it to be useful to decide the point of law.

I would allow the appeal and determine that by virtue of s 35(4) of the Development Act the appeal to the Environment Resources and Development Court is incompetent in respect of this non-complying development.