Henderson v Adelaide City Council & Arts SA No ERD-03-52 [2003] SAERDC 59

Judgment No. [2003] SAERDC 59

[2003] SAERDC 59

This matter comprises a third party representor appeal against the decision of the City of Adelaide ("the Council"), to conditionally approve Development Application No. 0655/02, by Arts SA, on behalf of the Minister of Arts, seeking the erection of artworks, landscaping, signage and lighting in the Park Lands at Sir Donald Bradman Drive, Adelaide. The Council's approval was subject to a standard condition ensuring the development was undertaken in accordance with the plans and details submitted. In making this decision, and pursuant to section 33(3) of the Development Act, 1993, ("the Act") the Council reserved for later decision, details of all signage and lighting proposed. Hence, subject to an amendment accepted during these proceedings as a minor variation to the proposal to include in-ground lighting, the interpretive and directional signage and above ground lighting are not for consideration in these proceedings.

A summary of some of the relevant details in this matter is as follows:

Subject land address: Sir Donald Bradman Drive, Adelaide (Parks 23 & 24)

Proposal: The erection of twenty-five sculptured artwork structures comprising building work, associated landscaping and in-ground lighting

Appropriate Development Plan: Adelaide (City) consolidated version 20 June 2002

Relevant Precinct: PL14 - Cemetery and PL25 - West Parks (refer Index Map B)

A pre-trial conference was held on 6 March 2003 but no settlement was achieved and the matter proceeded to hearing.

The appellant gave evidence of her own views on the development, the impact and consequences of it and its degree of compliance with the Development Plan. She is a lay person holding no legal, town planning or other qualifications of relevance to assist the Court in this matter. She proffered many arguments against the proposal, several of which were not relevant or of assistance to the Court in determining the matter.

Evidence was also provided by Mr M Wohlstadt MPIA and Mr A Lieschke MPIA both experienced town planners (refer Exhibits C and R5), and by Mr V Cielens, an experienced landscape designer and planner (refer Exhibit E). The co-respondent also called Ms J Layther, Manager Public Art and Design, employed by the proponent Arts SA, to give evidence regarding the project history and rationale. Mr K Walker, a person with special knowledge of aboriginal culture, particularly the Ramindjeri, and recognised by the Department of State Aboriginal Affairs as a traditional owner for Ramindjeri culture through descent on his father's side, was the only other witness to be called by the appellant to give evidence (refer Exhibit A2).

The two town planners and Mr Cielens were unequivocally in support of the proposed development and their professional opinions were not challenged or found wanting in any significant way. Mr Walker's main issue was as he saw it, the failure of the Council and the Kaurna-Meyunna to consult with the Ramindjeri people and the Peramangk (who he said also had an historical and cultural interest in the land), the inaccuracy of the "wurley" shape, not being historically correct for shelters built by the Kaurna, Ramindjeri or Peramangk (but used by the Riverland and other aborigines), which would lead to misunderstanding of aboriginal culture by the public, and the inappropriate use of materials (stone) obtained from other lands without permission of those traditional owners.

The Court viewed the subject land and the locality on Tuesday 29 April 2003 in the presence of the parties.

The subject land is located on the western edge of the West Park Lands in two parts, one on either side of Sir Donald Bradman Drive (refer to plans in Exhibit A).

The southern part of the subject land is part of Park 23 (Wirranendi). It is positioned against Catholic Cemetery Road on the west and extends eastward for approximately 75 metres with a maximum depth of 26 metres. This area is estimated by Mr Wohlstadt to be 1300 square metres. This part of the subject land has an open park-like character with a semi-grassed surface (exotic and minor indigenous) and scattered planting of trees of mixed ages and type and none being remnant. Views across the site southward are relatively open and the view of this part of the subject land from Sir Donald Bradman Drive is contained by denser plantings along the railway corridor and toward the West Terrace Cemetery.

The northern part of the subject land is part of Park 24 (Tambawodli) and it extends for a distance of approximately 50 metres with a maximum depth of 15 metres and an area estimated by Mr Wohlstadt to be 500 square metres. It is generally opposite the southern piece but slightly to the east. The northern side also has a park-like character but it is strongly defined by tall, dense plantings (known as the Jewish plantings) and this forms a backdrop to the site generally curtailing views beyond. Land just to the north-east comprises active recreational playing fields (Ellis Park) and beyond, Adelaide High School. This part of the subject land has a more highly managed, exotic grass surface than the parcel on the southern side and it appears as part of a wide road verge.

The proposed artwork, landscaping and in-ground lighting are to be located on both sides of Sir Donald Bradman Drive and comprises a total of twenty-five identical stone, domed, abstract "wurley" like, solid structures, each of 1.8 metres in height, 2.0 metres in diameter at the ground level base and with an approximate area of 3 square metres (giving a total area covered by the structures of some 75 square metres (refer Exhibit A)). Eleven of the proposed artwork structures are to be located on the northern side of the road in Park 24 and Precinct PL15, and fourteen of the artwork structures are proposed to be located on the southern side in Park 23 - Precinct PL14.

Each of the two parts of the subject land will be defined by on-flat stone edging and landscaped with the planting of "Kangaroo Grass" an indigenous grass (in total, 85 plants in clumps of 2-3) and the establishment of some 28 indigenous trees of the specie Eucalyptus porosa, to be located around the outer edge of the artworks, away from the road verge (refer Exhibit B map 3 and attached plan to Exhibit E). To do so, certain non "significant trees" as defined under the Act and surface fill material and exotic grasses are to be removed, and granitised sand mulch is to replace them. Most of the tree removal (not comprising "development") has already been undertaken.

As an amendment submitted during the hearing, lighting of the artwork structures is proposed through the installation of fifty two in-ground, (approximately two per structure), low-voltage bulbs, proposed to be electronically moveable in slow or "rapid and playful" movement. Underground cabling, trenching and a control box are associated with such lighting.

The proposed structures are located irregularly, either in front of, between or behind certain existing or proposed trees, with a minimum setback from the road kerb line of some 6 metres and maximum setback of some 20 metres.

The proposed stone is described as "Kanmantoo blue stone" and the appearance is shown in a photograph marked Exhibit D which indicates relatively dark, earthy tonings.

The repetitive form, identical detailing and massing of each of the proposed structures means that the majority of the viewing and general appreciation of them, will be by persons using vehicles (cars, buses or cycles), and to a lesser extent people passing on foot or attending the site for that purpose. The layout and design enables public access in and around the structures, but the location is relatively isolated from any major recreation or other activity such that it is unlikely to be viewed close up, to any significant degree.

The purpose of the proposed artwork generally, is to enhance the western gateway entrance through the Park Lands for persons entering (or leaving) the City of Adelaide from the west including those travelling to and from Adelaide Airport, and for general viewing and appreciation by a range of other people.

The locality is that part of the surrounding area of direct influence on the subject land and that the proposal is likely to impact on, to a notable degree. In this case, it is to be based primarily on visual considerations. I agree generally with the extent of the locality as defined by Mr Lieschke (refer Exhibit R5) noting that it is slightly more extensive than that of Mr Wohlstadt. It incorporates on both sides of Sir Donald Bradman Drive further park areas, road verge and the fringe of active recreational playing grounds. It extends for a distance of some 160-180 metres to the west, some 180-200 metres to the east, some 20-30 metres to the north and some 50-80 metres to the south.

Sir Donald Bradman Drive is a major arterial entry road in to the City of Adelaide from the west and Adelaide Airport. It dominates the locality both visually and in terms of traffic noise, fumes and vibration. The balance of the locality comprises a small portion of the Adelaide Park Lands.

The Adelaide Park Lands are historically significant to Adelaide as part of its heritage, and of recreational benefit, visual enjoyment and appreciation for its people and visitors alike.

Both portions of the subject land have a park-like character although the northern portion appears more like a road verge. The southern portion is relatively open, comprising scattered, mature and young trees and grassed open spaces whilst the northern portion is similar, but the backdrop is a dense linear planting of native trees that runs parallel to the roadway. This planting forms a hedge-like appearance which restricts views from the road except for a minor view through to the playing fields and Adelaide High School (State Heritage Place) in the distance to the north-east. There is a general absence of buildings and structures in the locality although there are quite dominant light poles along both sides of the road and in the western part, with banners adorning them. Other localised structures include typical parking control and bus stop designation signage. Sir Donald Bradman Drive carries some 32,000 vehicles per day (according to Mr Wohlstadt), the road has a 2-3 metre wide median dividing a four lane vehicle carriageway (two in each direction) with a bicycle lane on either side and with parallel parking bays and bus stops on either side.

Amenity levels in terms of public appreciation and enjoyment are moderate, particularly relative to the localised, very high qualities of some other parts of the Park Lands. The general character is of an open, relatively natural, woodland and grassland park-like area.

I have considered the various provisions referred to by the expert town planners and to submissions by the appellant and by counsel and I find the following to be the relevant provisions in the Development Plan for the assessment of this matter. These provisions are found in the Adelaide (City) Development Plan, consolidated version 20 June 2002.

1, 2, 5, 12, 13, 27, 30, 31, 33, 40, 42, 43, 45, 49, 53 and 54:

P1, P2, P21, P32, P33, P36, P61, P62, P64, P65, P66, P69, P70, P72, P75, P77 P78, P80, P82.

All provisions on pages 431 and 433 except paragraphs 1, 5 and 7 (noting an absence of principle numbering).

All provisions on pages 434 and 435 but omitting paragraphs 1, 5, 6, 9 10, 12, and 13 (noting again the absence of numbering of the principles).

Those provisions of greatest relevance to consideration of the proposal are quoted below under the heading Part B - Planning Assessment - Merits .

The proposal was categorised by the Council pursuant to the Act, as a Category 3 development and it undertook the relevant public notification and received one formal representation from the appellant. This aspect, and the appellant's standing is discussed below under the heading Part A -Jurisdiction.

There was no requirement for formal referral of the application to any statutory bodies pursuant to Development Regulations, 1993 ("the Regulations"), Schedule 8.

The question of jurisdiction of this Court to hear and determine the appeal was raised by counsel for the Council and supported by counsel for the co-respondent applicant Arts SA. The argument was that the proposed development should have been afforded a Category 1 designation pursuant to Section 38(1) and (2) of the Act, and therefore, given Section 38(3) and Section 86(1)(b), the appellant has no appeal right and hence this Court has no jurisdiction to hear the merits appeal.

I was encouraged to determine that point at the outset and if so found, not to proceed to hear the merits appeal. That course was not followed, as I sought to hear the views of the expert town planners regarding a planner's interpretation and understanding of the phrase "passive outdoor recreation", which is used in the Regulations, and in the Adelaide (City) Development Plan 20 June 2002, but not defined under the Act, the Regulations or the relevant Development Plan and of the existing use of the land.

I conclude that the proposed development is a Category 1 development. Hence it flows that the appellant has no appeal right or standing and the Court no jurisdiction to hear the matter and to review the merits decision of the Council. I will set out the reasoning hereafter. However, if I am wrong in that, I have also heard the evidence and submissions and assessed the planning merits of the proposal and make a general finding on the merits appeal also. That is contained in Part B - Planning Assessment - merits of this judgment.

I set out the reasoning in coming to this conclusion.

It was agreed that the "wurley" structures comprise "building work" having regard to Section 4, of the Act, and are therefore "development" requiring Provisional Development Plan Consent, Building Rules consent and finally Development Approval. They are not exempt from the definition of "development" by Schedule 3, paragraph 2(1), (e), (f) or (g), of the Regulations.

On the evidence of the expert town planners, with which I agree, the existing use of the subject land is for a park. A park falls within the defined term "recreation area" (Schedule 1 of the Regulations), and the land is used casually and irregularly by the public for passive outdoor recreation (that is for viewing, listening, lying on, sitting on, walking or cycling over, general appreciation and recreation in the broadest sense). It includes elements such as the gardens, trees, grasses, paving, kerbing and edging and (as exists to the east in and near Kingston Gardens) seats, bins, shelters, toilets, fencing, directional signage, flood-lit trees and other landscape elements.

The subject land will remain an open park with vegetation, with change to the surface of the new beds, and with stone artwork structures to be viewed by persons using the park or passing through or by it, on footpaths, the adjacent roadway or other random routes. Pedestrian, cycle and wheelchair access will remain unrestricted through, between and around the individual structures. As a visual embellishment and an ornament, the proposal would be an addition to the general scene and appearance of the park, and the passive outdoor recreation area but not in my view, a change in land use.

Though the term Park Lands or parkland may have a different legal meaning under other legislation, as asserted by the appellant, or is the title, generally to that land surrounding the Adelaide and North Adelaide urban development it is not a land use as such. If it were, it would then embrace a very wide range of uses and activities such as a golf course, a clubhouse, a race track, a boating lake, a bandstand, a zoo, railway yards and stations, car parking areas, restaurants and cafes and the like, and such a gross generalisation would not fit well with the usual and town planning meaning of the use of land concept and terminology.

The appellant referred the Court to Adelaide City Council v Lester & Parkfast (Aust) Pty Ltd [2002] SAERDC 91, in support of her argument. However, whilst the Adelaide City Council's charge referred to "a change in the use of land .... from parklands to land use for parklands and car parking", Her Honour Judge Cole found (at paragraph 27) that:

"... a change of the use of the access track occurred ... from a use which could be conveniently characterised as parkland access track to parkland access track and commercial car park".

Hence, I consider that to be consistent with the approach that individual uses and activities within the Park Lands need to be attributed their own land use, subject to Section 6 of the Act. The Park Lands clearly vary in land use (and character), from area to area.

I also do not think it to be an "advertisement" pursuant to the Act, as submitted by the appellant. There are no goods or services or events advertised by the artwork structures.

However, having come to the above conclusions, if there were to be any change of use (such as of the land area under each piece of artwork or within the edged zone of artworks), I find that it is, in the terms of Section 6(6) of the Act, trifling and insignificant in the context of the wider park and passive outdoor recreation areas, and accordingly is to be disregarded. Hence, I find that in terms of Section 6 of the Act there is no change in the use of land. Whether that is so under other legislation (valuation, local government or other), as asserted by the appellant, is not relevant to these proceedings.

Section 38(2)(a) of the Act, specifies that:

"the regulations or a development plan may assign a form of development to category 1 or to category 2 and if a particular form of development is assigned to a category by both the regulations and a Development Plan, the assignment provided by the Development Plan will, to the extent of any inconsistency, prevail within the area to which the Development Plan relates."

Firstly, in terms of the relevant Development Plan, Adelaide (City) 20 June 2002, Principle of Development Control P77 - Public Notification, relevant only to the Park Lands District as a whole, sets out the only assignment to be considered:

For the purposes of public notification in accordance with the procedures and rights established by the Development Act, 1993, development in the Park Lands District is assigned to the specified categories as follows:

(a) Category 1, public notification is not required:

(i) development which, in the opinion of the relevant planning authority, is of a minor nature only and is unlikely to be the subject of reasonable objection from the owners or occupiers of land in the locality of the site of the development.

(b) Category 2, public notification required, third parties may, at the discretion of Council, appear before Council on the matter. Third parties do not have appeal rights:

(i) development within the Park Lands District which comprises an alteration of, or an addition to, an existing outdoor recreation facility;

Note: For Category 3 development, public notification is required. Third parties may make written representations, appear before the relevant authority on the matter, and may appeal against a development consent. This includes any development designated non-complying and any other development not classified as either Category 1 or Category 2."

In terms of clause (a), the proposal is not of a minor nature only. In terms of clause (b), this is not relevant as no artworks exist to be altered or added to, and nor are they a "facility", as they are not useable or functional, though counsel for the Council asserted that they were a passive outdoor recreation facility. Unlike public notification provisions in other Precincts set out in the Development Plan, Principle 77 is not expressed to cover all development. Hence, as there is no relevant assignment by the Development Plan to the proposal in question, there is no opportunity for any inconsistency to arise.

Secondly, in terms of the Regulations, Schedule 9, Public notice categories, Part 1- Category 1 development, paragraph 8 states:

"Except where the development is classified as non-complying under the relevant Development Plan, any development which comprises -

(a) intensive outdoor recreation of a temporary nature only; or

within the Parklands District of the City of Adelaide."

Hence there are three further tests to be considered.

The development is located in the Park Lands District of the City of Adelaide.

The development is for twenty five artwork structures, not a change in the use of land, in a park which is considered by the expert town planners, with whom I agree, to come within the phrase passive outdoor recreation. While such phrase is not currently defined in the Act, the Regulations, or the relevant Development Plan, it was defined in the Development Plan Adelaide (City), 12 December 1996 version, and prior, at the time the Regulations were formulated and is of assistance. It was defined as:

"The use of land for a park, garden, children's playground, picnic ground or other outdoor leisure purpose of a non-sporting or passive nature. It includes toilet facilities or a kiosk ancillary to such activity." (my underlining)

Even on a common meaning, or a town planner's interpretation or meaning of the phrase, the development of artwork structures in a large park, with a leisure purpose of a passive nature, comfortably and squarely fits within the terminology of paragraph 8(c), Schedule 9. Part 1, Category 1 development.

Finally, is the proposal non-complying in the Precinct(s), (as asserted by the appellant)?

The relevant part of the Development Plan to answer this question is found under PL14 Cemetery Precinct (south side of the subject land) and under PL15 West Parks Precinct (north side of the subject land) and in each case, under the heading Non-complying Development:

"The following kinds of development are non-complying in the Cemetery [or West Parks] precinct:

All uses other than those described as being appropriate in the Principles of Development Control for this Precinct." (my underlining)

An examination of the unnumbered principles of development control referring in Precinct PL14 to "passive outdoor recreation activities", and "passive outdoor recreation" and in Precinct PL15 to accommodating an area for "passive recreation activities", and "passive recreational purposes" are considered to be one and the same on the basis of loose phraseology. (Refer below on pages 21 - 24 for the full quotation of each.)

As discussed, the proposed artwork structures are embellishing features within an overall generic phrase of passive outdoor recreation, or the other variances used in the principles. Whilst they are not useable facilities, I find that they are not a use of land in their own right.

It is also apparent that other "development" and "structures" are contemplated by the balance of the principles of development control in each Precinct listing non-complying development (such as temporary or directional advertising displays) and with reference to expansion of existing buildings in PL14, or in PL15 to additional buildings, under the heading Permanent Structures. Finally, the relevant clause in each Precinct does not list artwork structures as non-complying development.

I find that the development is not a "non-complying development" (and nor does it comprise "complying development"). Hence, I find that all three tests are met and the proposal is for a Category 1 development. It falls for assessment on its merits by the Council and requiring Provisional Development Plan Consent, Building Rules Consent and Development Approval.

It is also to be remembered that in the Park Lands District, such land is under the care and control of government, not private ownership and wearing a separate hat from its planning authority role, the City of Adelaide is able to decide what works and structures are, from time to time, undertaken and whether they accord with other management plans for the Park Lands or other Council policies. Many of these are exempt from being "development" pursuant to the Regulations, Regulation 7, and Schedule 3 cl.2(1) and (2). As much as the appellant may wish, every such endeavour is not "development" or a Category 2 or 3 form of development, requiring and enabling general public consultation and public representations thereto, and in terms of the latter, appeal rights.

It follows that the initial categorisation of the development proposal by the Council as Category 3 and the administrative processing that followed, was incorrect. Whilst a representation was made by the appellant and considered by the Council, she has no right of appeal against a decision on a Category 1 development and hence no standing, and this Court has no jurisdiction to hear the appeal and make a decision on the planning merits. If I am wrong on that question, I have proceeded to make a planning assessment of the merits.

In accord with case law as I understand it, noting there to be some variation, I have approached the planning merits assessment, and if it had been or is required, decision making, in this matter mindful of the following:

considering the Development Plan as a whole and all relevant provisions to the matter in question;

considering the Development Plan as a flexible, advisory planning policy document, not as a mandatory, legal statute; as a practical guide for practical application, superimposed upon an existing state of development;

considering the merits of the proposal as a whole, the pros and cons (points of clear compliance with guidelines or departures from them) and the position that scarcely any proposal however good, is likely to meet every provision such that no legitimate objection can be taken to it;

considering the proposal in question and its alignment with the Development Plan, not comparing it with or testing it against other alternatives or a so called ideal design solution or planning outcome;

integrating the various criteria, reconciling inconsistencies between them and not considering them in isolation of each other;

distilling the overall intent, purpose and desired character of the Precinct sought to be achieved via the Development Plan and the context of the characteristics and facts about the locality and the subject land (both historical and current) as well as the proposal details and whether it is conducive to achievement of the desired character and amenity of the Precinct; and

assessing the proposal on the above basis, balancing up all relevant considerations, including the evidence, what is seen on the view and the public and private interests, in determining, on a fact and degree basis in each case, whether the proposal is sufficiently in accord with the Development Plan to warrant consent.

The most relevant provisions of the Development Plan for the planning assessment of the merits in this matter are as follows:

The Park Lands are an essential feature of Adelaide's heritage, identity and charm, and an important element in the environmental quality of metropolitan Adelaide. The Park Lands comprise approximately 690 hectares of landscaped open space and provide for a balance of both formal and informal recreation activities including sporting clubs, walking and cycling trails, formal gardens, and passive recreation areas. They also provide the setting for a variety of special events such as festivals and sporting events.

Objectives and Principles of Development Control seek to maintain open public access to the Park Lands, to restore alienated areas to Park Lands use, provide public sporting and cultural facilities which enable the fullest use of the Park Lands and to enhance landscape quality and environmental management."

Objective 13: Enhance the City of Adelaide as a major focus for tourism, conventions, leisure, entertainment, sport and recreation, education, cultural development and the arts.

Objective 30: Conserve and enhance those places and areas which contribute to the heritage of the City in recognition of the distinctive contribution they make to the character of the City.

Objective 40: Encourage development which contributes to the quality of the public realm as a safe, secure and attractive environment for pedestrian movement and social interaction.

Objective 42: Maintain a distinctive Adelaide streetscape identity through the use of street furniture, graphics, signs, lighting and landscaping, recognising existing visually significant buildings and trees.

Objective 43: Conserve and enhance the Park Lands as a publicly accessible landscaped space of an open character available for a diversity of leisure, sport, recreation and environmental activities to serve the City's residents, workers, the metropolitan population and visitors.

Objective 45: Establish leisure, sport and recreation facilities which encourage the use and enjoyment of appropriate areas of the Park Lands.

Development should contribute to the quality and complement the design and character of the public environment of its locality and should provide activity and interest at street level where possible. Inclusion of appropriate elements of public art is desirable.

Development on, over, encroaching upon, or opening on to public spaces should not endanger public safety or cause undue inconvenience to either pedestrians, including persons with disabilities, or users of vehicles, and should ensure adequate alignment of building levels to surface levels in public space.

Public spaces should allow good visibility into and across the space to promote security and safety and should provide opportunities for citizens to meet and socialise.

The Park Lands should be conserved and enhanced for the relaxation, enjoyment and leisure of the City's workers, residents and students, the metropolitan population and visitors. The Park Lands should provide an open publicly accessible landscaped park setting for the built-form of South Adelaide and North Adelaide, and should separate the built areas of the City from the surrounding suburban areas. Park Lands area which has been alienated from the public should be returned to public recreation and leisure use.

The Park Lands should be used for a diversity of outdoor recreation uses, the nature of which is specified in the Principles of Development Control for the relevant Precinct. Indoor recreation is considered to be contrary to the open character desired for the Park Lands and should be restricted to existing, specified or proposed buildings as set out in the Principles of Development Control for the relevant Precinct. Unless otherwise described as being appropriate in the Principles of Development Control for the relevant Precinct, all other uses are considered to be incompatible with the character desired for the Park Lands District, and are inappropriate.

Development should ensure that the desired environment of the Park Lands District is enhanced and reinforced by:

(a) the maintenance of a diversity of landscape within a large informal woodland of mixed exotic and indigenous trees;

(b) the establishment and maintenance of a continuity of land character within and across Precinct boundaries;

(e) a high quality of buildings, structures, utilities, roads, artificial land surfaces and service facilities;

(g) the maintenance of the maximum possible area of the Park Lands as a natural land surface, by restricting the amount of enclosed artificial or paved land surface.

The number and extent of buildings in the Park Lands should be minimized. Additional buildings and structures should only be established, and existing buildings should only be enlarged if the development rationalises or improves the appearance of undesirable or intrusive existing buildings or uses, or provides facilities which are in accordance with the Principles of Development Control for the relevant Precinct.

P78 PRECINCTS AND STATEMENTS OF DESIRED FUTURE CHARACTER

The Park Lands District comprises the following Precincts as indicated on Index Map B.

The Principles of Development Control for the above Precincts form the basis for the managing and coordinating of the process of change in the Park Lands. The aim of these Principles is to achieve the Desired Future Character by means of guiding and controlling development, whether by private individuals or bodies, the Council, or government agencies. Specific and detailed controls are contained in the Principles of Development Control relating to the four main aspects of development: Precinct image, activities, environment and movement.

The Precinct should be developed with a continuity of character which reflects its historical importance, and its significance as an entry into the City of Adelaide from its western approaches and the Adelaide Airport. It should accommodate both active and passive outdoor recreation activities.

This Precinct should be used for active sporting and passive outdoor recreation. Open grassland areas should be retained.

A woodland theme should be established for most of the Precinct. Peripheral woodland planting should define grassed sporting areas and enhance the overall visual quality of the Precinct.

Additional buildings should only be permitted to provide facilities for approved sporting activities and passive recreational purposes. Expansion of existing buildings should be restricted. Advertising hoardings should not be permitted.

Public access through the Precinct should be continuous and unrestricted. A pedestrian and cycle link should be constructed to the west of and through the Cemetery to link with paths in adjacent Precincts. Car parking within the Parks should only be permitted to support activities in the Precinct. On-road cycle lanes on Burbridge Road should be maintained.

No kinds of development are complying in the Cemetery Precinct.

The following kinds of development are non-complying in the Cemetery Precinct:

All uses other than those described as being appropriate in the Principles of Development Control for this Precinct.

Advertising displays other than temporary advertising displays promoting events in the Park lands or interpretative or directional advertising displays relating to features and facilities within the Park Lands.

Within the Cemetery Precinct, the following are State Heritage Places, the location of which is indicated on Precinct Map PL14. Refer Council Wide Principle 62.

Roman Catholic Chapel, West Terrace Cemetery, off West Terrace;

The West Parks Precinct should be maintained as an area for active and passive recreation activities within an open woodland setting. Alienated land should be returned to Park Lands usage.

The parks in the Precinct should be used for a diverse range of sporting activities.

The Precinct should retain its open woodland character which should be extended to screen buildings, the railway area to the west, and to define playing fields within the Precinct. The existing open space grassland along the railway corridor should be planted with native woodland.

Additional buildings should only be permitted to provide facilities for approved sporting activities and passive recreational purposes.

No kinds of development are complying in the West Parks Precinct.

The following kinds of development are non-complying in the West Parks Precinct:

All uses other than those described as being appropriate in the Principles of Development Control for this Precinct.

Advertising displays other than temporary advertising displays promoting events in the Park Lands or interpretative or directional advertising displays relating to features and facilities within the Park Lands.

Within the West Parks Precinct, the following is a State Heritage Place the location of which is indicated on Precinct Map PL15. Refer Council Wide Principle 62.

Adelaide High School, corner West Terrace/Glover Avenue." [my underlining].

Turning to understanding the intent and meaning of various relevant provisions of the Development Plan, the proposed artwork structures are "development" as they are "building work", but that does not make them, in the specifics of their characteristics, to be buildings in the common and town planning sense of that word. They are objects to view, not usable or functional buildings. Hence many provisions referring to "buildings" should not be construed to include reference to the proposed artwork structures.

Silence in, or an absence of, a reference to public artwork or "artistic endeavours" (as referred to only in Precinct I1 - Riverbank), in Precincts PL14 and PL15, does not mean that they are inappropriate on the subject land or elsewhere in those or other precincts. As has been the approach before by the courts, with a multitude of types and forms of development, it is not surprising that the Development Plan is silent or relatively so, on many of them. That is the same position, on the evidence, of all but one other precinct in the whole of the Council area, namely Precinct I1. Council Wide Principle 32 (refer above), envisages such works, generally in public places, so it is necessary to determine whether the specific proposal is conducive to achievement of the broad desired future and character of each precinct as expressed in its provisions, on the guidance set out in City of Mitcham v Freckmann & Ors [1999] SASC 234; (1999) 74 SASR 56, and in its locality.

The Precinct PL14 and PL15 provisions envisage or enable buildings and structures to be developed whereas, by comparison, other Park Lands precincts such as PL3 and PL4 do not envisage any. PL14 and PL15 make no reference to artworks, but both envisage passive outdoor recreational activities and use in an open woodland, grassland setting. For the reasons enunciated above, the development, which is quite commonly found in public places, is a type falling under the broad phrase of "passive outdoor recreation" and is potentially viewable by thousands of people whether in vehicles passing along Sir Donald Bradman Drive or on foot or bicycle. Such artwork and associated landscaping, complements the open woodland and natural (though not remnant or pristine) grassland character of the relevant parts of PL14 and PL15, and is conducive to achievement and maintenance of that character. It is not massive or huge as asserted by the appellant, particularly in the context of a large park setting. In addition, paving is negligible, except for the stone edging, the land is not to be enclosed, and according to Mr Cielens, with which I agree, the new granitised sand mulch will be of natural materials and not have an 'artificial' appearance. Hence, I consider Council Principle 64 and the Precinct character provisions are met.

Distinct from an overall fit with the existing and desired broad character of the relevant precincts, is an assessment of the likely visual appearance of the proposal and consequences for visual amenity of the locality as defined above.

The artwork structures are of human scale and are relatively small in size, compared to most useable buildings and to trees and light poles in the locality. They are of subdued colours, blending with a natural landscape (vegetation, landform and surface). They will be located and spread irregularly, with trees and grasses (existing and proposed) between and as a backdrop. Those on the southern side will sit marginally lower than those on the northern side, due to the levels of the land after filling and road works.

The proposed landscaping will complement and enhance both the proposed structures and the existing visual appearance of the open woodland, grassland appearance of the locality. Completion of removal of minor, non-significant trees, will be more than offset by replacement trees. The loss of some elements from an informal avenue of "lemon scented gum" trees, is not significant as it was semi-regular only and not successful in comprising a strong visual element in the landscape. I agree with Mr Cielens on this aspect.

The in-ground lighting, softly illuminating the proposed structures and vegetation, is consistent with the generally illuminated arterial road environment and would not make them obtrusive or dominant. However, I have reservations about the lights providing a movement of light and "rapid and playful" as described in the proposal. Whilst vehicle lights provide moving artificial light, that is foreign and out of character with a natural woodland landscape and the general mood of such an area, and to my mind, would unduly attract attention to the structures.

Visual amenity of the locality is no more than moderate at present and the proposal will visually enhance its appearance, its pleasantness and enjoyment by the general public.

Whilst I have personal views on the proposed structures aesthetically, as works of art, or philosophically - their multi-cultural housing derivation, level of historical accuracy, contemporary interpretation, and cultural sensitivity, these are not valid town planning considerations based on the Development Plan guidelines. There are no guidelines of any specificity other than Council Wide Principle 32 (quoted above). That guideline is met in that the artwork structures will contribute to the quality and complement the character of the public environment in this locality and will provide interest at street level. However, it is difficult to assess whether the public art proposed comprises "appropriate elements". That is certainly for the State Government agency Arts SA to judge, as they have done, following the due process of consideration of alternative proposals, which on the evidence of Ms Layther, has all occurred. The Council has obviously agreed. On that basis and given its appropriateness in the relevant precincts and the locality as discussed above, I find that the artwork meets that criteria.

Turning to the historical significance of Precinct PL14 referred to in the second paragraph of its provisions, and the heritage value of the Park Lands as a whole, I agree with counsel for the Council, that reference to the former in PL14 but not PL15 (or PL13), infers its intent related to the West Terrace Cemetery and Roman Catholic Chapel, both listed State Heritage Places, and covering perhaps two thirds of the precinct area (though I note that Precinct PL15 also has one State Heritage Place, being the Adelaide High School). The proposal is removed from those Places, and with intervening screening vegetation, will have no effect on them.

With regard to the heritage value of the Park Lands as a whole (refer to the Preface paragraphs in the Development Plan on the Park Lands District), though not a listed heritage place in the Development Plan, it is of both European and Aboriginal heritage significance. In an overall sense, that significance is not diminished by the proposed artwork. In a localised, subject land sense, there is nothing more specific or particular about the subject land in terms of heritage value, even allowing for possible archaeological finds under the filled layer on the subject land (with the Museum of Adelaide apparently recording that an aboriginal artefact, a stone flake, was found somewhere in the West Parklands - Exhibit A1. Pg. 56). All of the Adelaide Plains are, on the evidence of Mr Walker, significant to at least three groups of aborigines, however the subject land has been changed by man-made filling, planting (trees and grasses) and roads/infrastructure works and structures, and the artwork would be incidental to the park and these existing features and not be detrimental to its general heritage value or significance.

The issue of the origins of the material (stone) to be used and aboriginal custom with respect to obtaining permission from the traditional (aboriginal) owners, before it is taken and used, raised by Mr Walker, cannot be given weight in a town planning sense. This would apply to many if not most buildings and construction materials used across the whole of the Council area and the metropolitan area. In any event it is not a planning merits issue, but rather one of consultation protocol or administrative procedure.

Mr Walker's dissatisfaction with the lack of consultation between the Kaurna-Meyunna and his people and others, who also hold the general area as being significant, is also of no great relevance to the merits assessment. That is for the proponent and other protocols or procedures, rather than a pre-requisite for making a planning decision under the Act. So too, are the obtaining of any other required approvals or clearances under other legislation.

It appears to me that the shape, appearance, and rationale behind, the artwork sculptural structures is a conceptual artistic endeavour with, apparently, a contemporary symbolic reference to housing for people, including indigenous people and is not intended and nor need it be, culturally or archeologically accurate and authentic. That is the case with a large percentage of art. I cannot give weight to the reservations held by Mr Walker in that regard.

Hence, I find nothing that is negative to the historical significance of Precinct PL14 or the Park Lands as a whole, or there to be a negative impact on the "heritage value" of any State Heritage Place, to dictate rejection of this proposal.

With respect to completion of the removal of minor trees, and the potential for "tree damaging activity" impact to several nearby "significant trees" from the construction work to erect the structures and install cabling and underground lighting, I accept the evidence of Mr Cielens, which was unchallenged. Little risk is foreseen, subject to appropriate management practices and conditions of consent. Further, the appropriateness of the replacement trees and grasses and granitised sand mulch as recommended or supported by Mr Cielens, is also agreed.

Finally, I turn to the safety of pedestrians who may seek to cross Sir Donald Bradman Drive moving from one part of the artworks to another, and adequacy of parking for persons expressly coming to the subject land to view the works. It is expected that only small numbers of persons interested in art will expressly visit the site and cross from one side to another given the identical nature of each structure. A key feature is the group of artwork structures and their setting and that can be appreciated from a removed short or intermediate distance. Hence, on-street parking is likely to be adequate (except for perhaps an occasional one-off event), and pedestrian crossings low and with a broad width median and traffic lights to the east and west, ensuring breaks in traffic flow, public safety is not likely to be compromised. I accept and agree with the professional opinions of Messrs Wohlstadt and Lieschke in this regard.

On the jurisdictional question I conclude that the proposal is a Category 1 development under the Act, the appellant has no standing and this Court no jurisdiction to hear the appeal. In the alternative, I proceeded to hear the merits of the matter.

On the merits, considering together all relevant aspects of the proposal (as amended by the landscaping and in-ground lighting), against the relevant provisions of the Development Plan as a whole, I conclude that it sufficiently accords with it. I consider there to be marginal variation only, including against Principle 65 which discourages any additional structures unless they comprise facilities in accord with the principles of development control for the precinct (on the basis that the proposed structures are not facilities), but in the context of the nature and characteristics of the artwork and the precincts and locality context, this is not significant and does not make the proposal seriously at variance with the Development Plan in a legal sense.

I conclude that the proposal warrants Provisional Development Plan Consent, subject to conditions limiting ground level lighting to fixed non-moveable lights, and guiding management of work with regard to tree and root protection and excavation surveillance for possible archaeological material.

The Court finds that as the proposed development is a Category 1 development, the appellant has no standing and it has no jurisdiction. The Council's decision stands.

The order of the Court is that the appeal be struck out.