Potter v City of Holdfast Bay No ERD-03-259 [2004] SAERDC 14

The subject land is an essentially rectangular allotment comprising Allotment 115 in Filed Plan 12522 held in Certificate of Title Volume 5432, Folio 222. It has a frontage of 18.29m to Bath Street, an average depth of 42.74m and an overall area of approximately 787m2. On the land is presently situated a cream brick dwelling which appears to have been constructed in the 1950s. The dwelling appears to be in fair condition.

The subject land is located within the Historic (Conservation) Zone - Residential (New Glenelg). The easternmost boundary of that zone is contiguous with the eastern boundary of the subject land. Dave Potter Motors, the new and used car sales business to which the proposed development would relate, occupies an extensive frontage to Brighton Road to the immediate east of the subject land, and north of the junction of Bath Street and Brighton Road. Bath Street is a predominantly residential street with a length of approximately 600m running east-west between Brighton Road and Moseley Street. Adjacent the subject land it has a kerb to kerb width of approximately 10.4m. The subject land is located on the northern side of the street. Dave Potter Motors is located entirely within the Commercial Zone. To the west of the subject land are five residential units located at 37 Bath Street. Further west is Penzance Street, which contains almost entirely residential development. Immediately opposite the subject land, on the southern side of Bath Street, are three dwellings, numbers 72, 70 and 68 Bath Street, each of which is listed as a Contributory Place within the Historic (Conservation) Zone - Residential (New Glenelg). To the east of number 72, fronting Brighton Road, is a commercial development (Sprint Auto Parts).

Further west, on the corner of Bath and Partridge Streets, is a Local Centre Zone, with a number of small-scale shops catering for the day-to-day needs of the local residents.

On the eastern side of Brighton Road, and north of the immediate locality, is another new and used car business, Eblen Subaru, which occupies a number of allotments fronting Brighton Road near its intersection with Lapthorne Street. Beyond this business, further to the east, residential uses predominate.

Two qualified and experienced planners gave evidence in this matter. The first, Ms E Barnes, defined a locality which took in development on the eastern side of Brighton Road between Lapthorne Street and Melton Street and the corresponding western frontage of Brighton Road as far south as Boundary Road, and extending west to Partridge Street. A more restricted locality was defined by Mr M Osborn, taking in allotments on both sides of Bath Street between Brighton Road and the junction of Bath Street and Penzance Street, but including one allotment on either side of Bath Street west of Penzance Street, extending north along Penzance Street to take in those allotments which back onto the subject land, together with the whole of the area of the Commercial Zone occupied by Dave Potter Motors, and allotments on the eastern side of Brighton Road immediately opposite Dave Potter Motors. Nothing, in our view, turns on the difference between the two localities, but for the purposes for our assessment we have adopted the wider locality suggested by Ms Barnes.

Brighton Road is a busy arterial road carrying some 26,000 vehicles per day.

The hearing of this matter was not assisted by the proponent making a number of amendments to the proposal in the course of the hearing, the last of these after the respondent had closed his case. The proposal the Court was finally asked to assess had the following components:

demolition of the existing detached dwelling and garage;

establishment of a bitumen-sealed and line-marked carparking area providing a total of 26 carparking spaces, configured as follows:

4 visitor parking spaces, accessed from Bath Street, with bollards preventing access between the visitor parking area and the remainder of the car park;

8 designated staff carparking spaces at the southern end of the balance of the carpark; and

14 spaces for customer vehicles undergoing servicing on the subject land;

creation of a semicircular ramp providing access between the existing Dave Potter Motors site and the subject land;

establishment of landscaping areas along the southern and western boundaries of the site and on portion of the northern and eastern boundaries;

provision of a 1.8m high brush fence on the Bath Street boundary of the subject land, complete with a sliding gate, also in brush (landscaping on the Bath Street frontage of the subject land would be located inside the brush fence); and

- 1.8m high single sheeted fence along the western boundary of the subject land from Bath Street to the prolongation of the southern wall of the residence on the adjacent property to the west (point A);

- 2.5m high double sheeted fence along the western boundary of the subject land from point A to the northern boundary as far as the western boundary of lot 113; and

- 2.7m high double sheeted fence along the western boundary of lot 113 as far as the existing Dave Potter Motors workshop.

In addition the proponent was prepared to accept whatever the Court thought appropriate, in relation to some elements of the proposal.

Mr C Potter, Managing Director of Dave Potter Motors, told the Court in evidence that the proposed carpark was intended to:

(a) relieve congestion in a gravel- surfaced area at the rear of Dave Potter Motors currently used to store vehicles awaiting servicing or on which servicing had been completed, which area abutted the rear fences of several properties fronting Penzance Street; and

(b) reduce the need for visitors and staff to park in Bath Street.

In association with the development of the proposed carpark, it was further proposed to bituminise the existing gravelled area.

Mr Potter's evidence was that an increase in sales activity was not anticipated, but merely a reconfiguration of existing activities on the site to achieve greater efficiency.

Whether the Subject Land Can Accommodate the Proposal

Counsel for the respondent Mr Beamond submitted that there had been no evidence that the subject land could accommodate the proposal, as finally amended. It is correct to say that we had no final plan before us. We had a sketch plan in relation to the proposed fencing prepared by counsel for the appellant. No final plan showing the carparking layout as finally amended was tendered. While this is not a satisfactory state of affairs, particularly as all details of the proposal, as finally amended, could not be put to all of the respondent's expert witnesses, we have taken the view that we understand the nature of the proposal and that subject to the amendments not constituting a substantial variation, there is enough before us to enable us to assess it against the relevant provisions of the Development Plan. If the Court is minded to grant a consent to the proposal, we would have to first receive a plan depicting the proposal as set out above, in relation to the subject land.

Whether There Has Been a Significant Amendment to the Proposal

Mr Beamond submitted that the amendments to the proposed development made in the course of the hearing constituted a significant amendment to the proposal so as to constitute a new development. In support he cited Hancock Development Corporation P/L v Corporation of the City of Tea Tree Gully (1986) 42 SASR 584.

Subs39(4) of the Development Act 1993 provides that an applicant may be permitted to vary an application, or any plans, drawings etc., provided that the essential nature of the proposed development is not changed. Reg20 of the Development Regulations 1993 sets out the procedure where a relevant authority has permitted an applicant to vary an application but also provides that this procedure does not apply "if the relevant authority is of the opinion that the variations to the application are not substantial".

It would appear from a perusal of reg20 in the context of subs39(4) that a proposed development application may be varied:

(a) without consequence where the amendments are not substantial; and

(b) with consequences as to the processing of the application where the amendments are substantial but do not change the essential nature of the proposed development.

Where the amendments would change the essential nature of the proposed development the authority may not permit the variation unless agreement is reached to treat the varied application as a new application; sub-reg20(4).

In these circumstances we have assumed that Mr Beamond was arguing that the amendments made before the Court resulted in a substantial variation to the proposal, such that the application as now varied, was for a different development from that considered by the relevant authority in the first instance, and therefore should be returned to the relevant authority for a decision to be made.

Hancock Development (above), which is an old case, (the application the subject of the judgment having been lodged pursuant to the provisions of the Planning & Development Act 1966-1981), is authority for the proposition that if the amendments give rise to a fundamentally different, and therefore new, proposal it does not matter that the amended proposal is a better proposal such as might well merit planning consent. The "fundamentally different" test is derived from the judgment in Corporation of the City of Marion v Lady Becker & Ors (1973) 6 SASR 13, which appears to us to be encompassed, in the language of the Development Act and Regulations as a "substantial amendment" which would change the essential nature of the proposed development. Any amendment having a lesser consequence, may be addressed by this Court on appeal provided referral bodies (if any) have had the opportunity to comment on the varied application. A variation that would change the essential nature of a proposed development would constitute a new application which could not be considered on appeal by this Court, as it has no jurisdiction to hear and determine applications for development not considered first by a relevant authority.

The proposed amendments include the following:

1. the addition of a 2.7m high double-sided Colorbond fence on the western boundary of adjoining land (lot 113);

2. an increase in the height of the fencing proposed along a portion of the western and northern boundaries of the subject land;

3. an increase in the thickness of the fencing along a portion of the western and northern boundaries of the subject land;

4. vehicle access by means of a ramp to both lots 113 and 114 from the subject land (in lieu of ramped access to lot 113 only);

5. a change in the fencing material proposed for the fence and gate on the southern boundary of the subject land;

6. an increase in the number of carparks from 22 to 26;

7. the installation of bollards separating the visitor carparks from the balance of the carparking spaces; and

8. access to the subject land by way of Bath Street being available only for visitors to Dave Potter Motors (as opposed to customers and staff).

Many, if not most of the changes by way of amendment would give rise to a more meritorious proposal than that which was before the planning authority. However, as Hancock Development makes clear, that is not the test.

We have concluded on the facts, that while the variations, taken as a whole, are substantial, they are not so substantial as to change the essential nature of the proposed development. In addition, it is unlikely that the variations would give rise to a different response from the Commissioner of Highways, the only referral body, having regard to the details of the Commissioner's response dated 28 May 2003.

Whether the Development Is An Extension of the Use on the Adjoining Dave Potter Motors Land

Mr Beamond argued that the proposed development should properly be characterised as an extension of the Dave Potter Motors business on the adjoining land and therefore part of either a service trade premises or a motor repair station use, both of which uses he submitted, are carried out on the Dave Potter Motors land. Both "service trade premises" and "motor repair station" are expressed in the Development Plan to be kinds of development that are non-complying in the zone in which the subject land is situated. Dave Potter Motors occupies a large parcel of land comprising a number of allotments, with frontages to Brighton Road and one allotment (114) having frontage also to Bath Street, together with the western portions of two additional allotments which have frontage to Brighton Road, at the northern end of the parcel. The operations of Dave Potter Motors are spread across this land. They include used car display and sales, new car display and sales (Honda and Daihatsu), a service and repair workshop, offices, a spare parts division and a new-car detailing and storage area. It is clear that space is at a premium on the site, and will increasingly become a problem. The site needs reorganising but there are physical barriers, such as masonry walls, which we were told preclude any serious attempt at reorganisation.

Should the proposal be allowed to proceed, the ability of Dave Potter Motors staff to store vehicles which are either awaiting service or have been serviced, on the subject land will ease the pressure on the Dave Potter Motors site, particularly in the vicinity of the workshop area. In addition, certain employees would be able to park their vehicles (including new demonstration vehicles) off the public roads, and a small number of visitor carparking spaces would be available for those who visit the site from time to time either for trade purposes or as prospective customers of Dave Potter Motors. Despite the provision of parking facilities for employees and visitors, it was clear that the real advantage to Dave Potter Motors, should the proposal be permitted, would come from the ability to store vehicles that have been or will be, worked on in the workshop nearby on the subject land. That, it is clear, is the primary purpose of the proposal.

In support of his argument, Mr Beamond led us through the apparent maze of authorities that have addressed the determination of the use of land, whether development constitutes an extension of an existing use and whether a carpark on adjacent land is a separate and distinct use. Thus we were referred to:

Prestige Car Sales Pty Ltd v Corporation of the Town of Walkerville & Shuttleworth (1979) 20 SASR 514

District Council of Mt Barker v Palma [2002] SASC 104

Morrow v Mitcham & Kirk & Development Assessment Commission [1994] EDLR 448

Minister of Environment and Planning v District Council of Stirling & Rockleigh Engineering Pty Ltd (1990) 53 SASR 505

Papadopoulos v Corporation of the City of Woodville (1985) 39 SASR 569

City of Holdfast Bay v Glenelg Backpackers Resort P/L & Needs [2002] SAERDC 80

Gray Dale P/L v City of Norwood Payneham & St Peters & Ors [2003] SAERDC 30

Compaction Application Tips P/L & Ors v Australian Waste P/L & Anor (2001) 118 LGERA 215

Solitaire Automotive v City of Mitcham (No. 2) [2002] SAERDC 63

Ellis & Ors v City of Holdfast Bay & Eblen [1999] EDLR 317

W (Dave) Potter v City of Holdfast Bay [2003] SAERDC 10

Edwards, McClung & Rechner v Corporation of the City of West Torrens & EPL P/L [1994] EDLR 18

It is clear to us that we are to determine whether the proposal on the subject land is an extension of the Dave Potter Motors use of the adjoining land (taking the parcel of land on which Dave Potter Motors currently operates, as a whole) by considering the purpose of the intended use of the subject land, in the context of the existing use of the Dave Potter Motors operations on the adjoining land.

Mr Manos urged upon us that the proposal is no more than a carpark. He relied upon an earlier decision of this Court, namely Ellis (above). A similar issue was at the heart of that appeal. Eblen Motors proposed to establish a carparking area on land (the new land) that adjoined the Eblen Motors land then used by it as a service trade premises and motor repair station. Upon the facts in that case this Court determined that what was proposed was the use of the new land for the parking of motor vehicles only. It found that the purposes for which the new land was to be used were limited and not the same as the purposes for which the Eblen Motors land was being used, even though clearly the new land was to be used for the benefit of the business of Eblen Motors, the occupiers of both parcels of land.

There are some similarities and some differences between the Eblen matter and this case. In the Eblen matter, the new land was to be used for parking of motor vehicles of customers, visitors and employees of Eblen Motors, and access could be gained to the Eblen Motors land from the new land, and vice versa. Customers' vehicles were to be parked on and taken from the new land by the customers themselves except when they were driven by employees of Eblen Motors, to or from the workshop area on the Eblen's land.

In the matter before us, it is not proposed that service customers drive directly onto or from the subject land. Customers will drive from Brighton Road on to the Dave Potter Motors land and will leave their vehicle at the point where they check it in for service. Upon returning to collect the vehicle, the customer will attend the service counter on the Dave Potter Motors land and pay their account, following which their vehicle will be delivered to them at that point. The customer will then drive from the Dave Potter Motors land on to Brighton Road.

The zoning of the new land in the Eblen Motors matter was zoned differently from the subject land in this case. However that does not matter for the purposes of the present discussion.

In Solitaire Automotive (No. 2) (above) delivered 14 June 2002, another decision of this Court, after consideration of the Ellis decision, determined that the proposed use by Solitaire Automotive was properly described as "an extension to the existing Solitaire Jaguar business in the nature of a carpark for the storage of vehicles awaiting pre-delivery work, staff cars and customer cars." This followed from the Court's finding that the proposed use was not separate and distinct from the Solitaire Jaguar use conducted on the adjacent land.

The various approaches reflect a dilemma that has faced planning authorities, courts and tribunals over many years. To take a simple example, suppose a motor repair station business establishes itself on a parcel of land. On that parcel it has a workshop area, an office and a parking area for customers, staff and vehicles on which work either will be or has been carried out. After a number of years, the business has been successful and needs more space. It wishes to use an adjoining parcel of land owned by but not occupied by it, for the purposes of the business, but only for the parking of motor vehicles coming to and from the business, which would include customers, employees and visitors. How should the use of the new land be characterised? Is it appropriate to look at the business and say that the business has expanded on to the new land and therefore the whole of the land is being used for the business (a motor repair station) and hence the whole of the land is being used as a motor repair station?

The approach in Ellis was that the new land was not going to be used for the purposes of the existing use on the adjoining land even though the use of the new land was linked to the use on the adjoining land. The facts in each of Solitaire Automotive, Ellis and this matter are not very different.

The Supreme Court in Papadopoulos (above) held that an application to use land for carparking purposes in association with a shopping centre previously approved on adjoining land was to be characterised as being for the use of land for carparking purposes and not for a shopping centre. That is different from the approach taken by this Court in Solitaire Automotive, but is akin to the approach taken in Ellis and in W (Dave) Potter (above).

Logically, if land is proposed to be used for a purpose integral to the business purpose for which adjoining land is already being used, by the same occupier, it follows that the use of the new land must be characterised as being for the same business purpose as that for which the adjoining land is already being used. The result might be different if the proposed use is related, but not integral, to the use of the adjacent land. The question then becomes one of fact as to whether the proposed use of the land as described in the application, is integral to the existing use of the adjoining land. If the answer is in the affirmative then the use on the new land takes on the character of the existing use on the adjoining land. The zone and other relevant provisions would then be canvassed to determine whether the proposed development (ie. change of use) on the new land can be accommodated within the desired character for the zone.

Is the Development Plan based on the same premise? A development application must be assessed against the relevant Development Plan (s33) which, in the metropolitan area, is likely to include principles of urban planning (s23). Each Development Plan generally divides the area covered by it into zones and sets out objectives and principles for each zone. In each zone it encourages development which meets the objectives and principles and discourages that which does not, and to emphasise this it sometimes sets out the kinds of development which are (a) complying, and (b) non-complying, in the zone as part of the principles of development control for the zone. The meaning of "development" (subs4(1)) which is relevant here is "a change in the use of the land". It is to be noted that "development" as used in the Development Plan is not "use" per se. Thus the relevant authority (and this Court) in considering each application for development which is a proposed change in the use of land, must determine the nature of the proposed new use of the subject land.

In Adelaide City Mission& Anor v South Australian Planning Commission & Ors [1993] SASC 3942; (1993) 60 SASR 178, the Supreme Court, on appeal from the Planning Appeal Tribunal, had before it the issue of whether the proposed development was appropriately characterised as a "welfare institution" and therefore a non-complying kind of development, as determined by the Planning Appeal Tribunal. On appeal, His Honour Debelle J examined the characteristics of the proposal. The development involved building work and although not expressed this way, the real issue was as to the nature of the proposed use of the land. His Honour spoke of the problem associated with describing development by the purpose for which land might be used (in that case "welfare institution") having regard to the nature of the developer, rather than the actual use. The following passage illustrates the potential difficulties of concluding that as the developer conducts a particular kind of operation that falls within a description defined in the Development Act, any development by that developer will also fall within that description. At p183 His Honour said:

"The next difficulty is that, unlike most of the definitions contained in reg 4, this definition ("welfare institution") is not descriptive of a use to which land is or might be put or of an activity which or might be conducted upon the land: cf Franceschini v Melbourne and Metropolitan Board of Works (1980) 57 LGRA 284 at 289. The definition might be said to describe the purpose for which land might be used. If that is its intention, it will be very difficult to apply the definition because of the wide range of purposes to which a benevolent institution might put land or buildings. That difficulty will be compounded by reason of the fact that both a benevolent institution and a non-benevolent institution might each use land in the same way. It is not the intention of the definition to state that the use of land or a building by a welfare institution has the consequence that the land or the building is a welfare institution. If that were so, the use of an office by a benevolent institution would mean that the office was a welfare institution even though it was used for no other purpose than an office. That proposition has only to be stated to be rejected. Similarly, if a benevolent institution owned land separate and apart from any building owned by it, which it developed and used as a grassed recreation area, the land would not be a welfare institution. It would always be a recreation area. In other words, the nature of a development will be determined by the features of the development and not by the features of the developer. It might be necessary to examine the nature of the activities conducted by the developer but only for the purpose of understanding the nature of the activities intended to be conducted on the subject land. The fact that the ACM is a benevolent institution does not necessarily mean that the proposed development will be used as a welfare institution." (emphasis added)

His Honour wrote of describing the use of land having regard to the town planning implications, and continued, at p184 as follows:

"Planning law is concerned with the implications of a particular land use, the traffic likely to be generated by the proposal, the adequacy of car parking, the height or bulk of the building in relation to the land on which it is constructed, the nature of existing development in the locality, the impact of the proposal on the amenities of the locality and all other factors relevant to an assessment whether the proposal should be permitted. The decision-maker is more concerned with the features of the development than with the organisational structure of the developer".

The earlier decision in Papadopoulos (above) was, at least in part, premised on similar reasoning. There Jacobs J specifically rejected the approach of the Planning Appeal Tribunal. The latter had treated the application to establish a carparking area to service a group of shops on land abutting at least in part, the land upon which those shops had been erected, as an application to use the (proposed) land for shopping facilities - an extension of the shops previously approved on the abutting land. In the often cited passage, His Honour determined that the proposed development did not take its character from the shops it was intended to serve, but from the actual use proposed on the land the subject of the application (at p576):

"All that intrudes into a Residential zone is a small parking lot, and the only planning issue that the Tribunal had to consider was whether that small parcel of land on the perimeter of the Residential zone can, in all the circumstances, properly be given over to a use, i.e. off-street car-parking - which is not a prohibited use in a Residential 2 zone - after paying due regard to the relevant principles of development control in such a zone and the legitimate and reasonable expectations of its inhabitants".

Earlier in the same year as Papadopoulos, the Full Court had delivered its judgment in Corp of the City of West Torrens v McDonald's Properties (Australia) Pty Ltd (1985) 38 SASR 467. This matter, on appeal, concerned whether a "sky-sign" that advertised the restaurant and shop that were lawfully in existence on the subject land, took on the character of a restaurant and shop, which was then a prohibited development in the zone. Jacobs J, with whose reasons the other members of the Full Court agreed, first considered the character of what was proposed. His Honour found himself "quite unable to assign the characteristics of a shop to a free-standing pylon advertising the existence of a shop". Jacobs J pointed out that a "sky-sign" and supporting steel pylon was not one of the kinds of development that are prohibited in the relevant principles of development control and continued at p472:

"It is important to notice that those principles speak in terms of 'development', not in terms of use of land". (my emphasis)

It followed that the development for which approval was required was not a change of use of the land, but building work only.

That matter was under the Planning Act 1982 (now repealed) but except that "prohibited" development is now "non-complying" development, His Honour's comments remain relevant.

Thus far, an examination of the authorities reveals that the character of a proposed development has to be determined as a matter of fact and degree. First, it is necessary to understand why the proposal constitutes development and therefore requires approval. In this case, it is not because building work is proposed, but solely because it is proposed to change the use of the subject land. Thus, the character of the use proposed must be identified, because even though the use is related to the business purpose of the use on adjoining land, the use proposed may constitute a use different from the existing use on the adjoining land. Determining whether the use is proposed to be changed to a motor repair station or a service trade premises of the subject land here is a question of fact and degree.

Prestige (above) concerned the demolition of part of an existing building and building work to replace that demolished with a larger building. The then relevant legislation (Zoning Regulation 33(1)) enabled the authority to consent to the alteration, enlargement or extension of an existing building for its existing use provided the floor area of the building as altered, enlarged or extended would not be more than 50% greater than the total floor area of the building as it existed at the time the regulations came into effect. In addition, no regulation could be construed as preventing the continued use of any land or building that had been in existence at the time the regulation took effect (s37 Planning and Development Act 1966). "Land" was not then defined to include buildings and fixtures, as it is now under the Development Act. The appellant planned to use the proposed building extension as a showroom - a use to which the existing building had not been put. It was argued by the appellant that what was protected was the existing use of the land on which the building stood, not merely the use of the building. If that was accepted, the question became whether the proposed showroom use of the proposed extension to the existing building would change the existing use of the land and the buildings in the business. This context is important, because it was against this background that Wells J said at p519, that:

"the use of land ... may be ... determined by the use to which a building or buildings erected on it are put, and vice versa",

"When land and a building are found together, they each help, in their own way, according to circumstances, to create the character of the use that is made of each in association with the other",

"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."

In Prestige, His Honour was not dealing with a proposal to change the use of a parcel of land, for the purposes of the business operated on adjoining land. The statements made by Wells J in Prestige must be considered in their context, and have limited application: see also the comments of Doyle CJ in Palma (above) at paras 32 to 35 (inclusive).

In The Church of England Collegiate School of St Peter v St Peters Town Council (1990) 70 LGRA 34, the Supreme Court per Jacobs J held that the proposed use of a parcel of land recently incorporated into the school campus for a swimming pool, to be constructed by the school for the use primarily of primary school children enrolled at the school, did not amount to a use of the land as an educational establishment, which was a non-complying kind of development in the zone. Jacobs J commented at p36 that he was:

"quite unable to assign the characteristics of an educational establishment as defined, to a swimming pool".

He found support for his approach in the earlier Supreme Court judgment (Jacobs J) of Wilson & Ors v Corporation of the City of Mitcham & Mercedes College Springfield Inc. (1986) 130 LSJS 31, involving the proposed construction of a hall and pool for school use on the school land, where an educational establishment was a non-complying use in the zone, and McDonald's Properties (above).

However, it appears to have been accepted in 2002 by the Supreme Court that the thrust of the reasoning of Jacobs J in Wilson and St Peters was rather "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", rather than the possible, comparatively narrower base of the use proposed not having the character of an educational establishment: see the reasons of Doyle CJ in Palma (above) at paras 49-50. The Chief Justice advised the need for caution in implementing the above principle enunciated by Jacobs J and termed by Doyle CJ as the broader based approach, expressed in the following passage from Palma, at paras 49-50:

"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."

This broader basis appears to accept that in each case the proposed use was to be characterised as "educational establishment" and not for its intrinsic nature, namely as a hall and pool (Wilson), and pool (St Peters) respectively.

Mr Beamond drew our attention to a statement in the Full Court judgment in Compaction Application Tips (above) per Bleby J under the heading "Ascertaining the Nature of the Development" at p445:

"One of the factors which a planning authority will have to consider is the nature of any existing development at the time of the application and whether, in reality, the development proposed is no more than an extension of an existing activity."

Although the circumstances the subject of the judgment were quite different from those before this Court, the statement is relevant. However, care must be taken in the use of the words "development", "use", and "activity". "Development" has a technical meaning in the Development Plan and the Development Act and must be used carefully when the application under consideration is for development that is the change of use of land. Clearly, a planning authority will have to consider the nature of any existing use of adjoining land at the time of the application to be considered and whether, the application in reality, is seeking approval to extend the use of the adjoining land on to the subject land. There may be several factors relevant in such a determination.

Earlier the same year as the judgment in Compaction Application Tips (above), the Full Court had occasion to consider the concept of a change in the use of land in Development Assessment Commission v Macag [2001] SASC 189; (2001) 80 SASR 104. There the Chief Justice, while acknowledging that change in the use of land has been the central concept in planning legislation in South Australia for some time, opined at para 102 that "the case law demonstrates that the concept is somewhat imprecise, and can cause difficulty".

Thus, to summarise, we have on the one hand an approach based on characterising the use on the new land in terms of its specific nature, illustrated in Papadopoulos and identified in Adelaide City Mission, and on the other hand the principle of interpretation that governed the approach of Jacobs J in Wilson and St Peters College, identified in Palma and that had, as its base, an acceptance that the use in each case was properly characterised not by its intrinsic nature, standing alone, but by the purpose of the use with which each was associated, and on whose behalf the application had been made. The use proposed on the subject land is the parking of motor vehicles. It is clear from the evidence of Mr Chris Potter, the Managing Director of the business of Dave Potter Motors, that this will be to the great advantage of the business of Dave Potter Motors given the congestion on the existing site. Insofar as portion of the subject land would be reserved for the parking of cars either awaiting service or repair, or awaiting collection by their respective owners following service or repair, the subject land would be used as an integral part of the operation of the motor vehicle service and repair activities of Dave Potter Motors. The staff vehicles which it is intended would be parked on the subject land during the day would largely be demonstration vehicles according to the evidence. This also would be for the benefit of the business, in particular the new car business conducted by Dave Potter Motors on its existing site.

It is our concluded view that the application is to use the subject land for the purposes of Dave Potter Motors' business in the same way as it was accepted that the pool was to be used for school purposes in St Peters. Unlike the situation in Papadopoulos (above), the subject land would become an integral part of the business of Dave Potter Motors, in the sense that the latter wants to be able to use the storage capacity of the subject land for its service and repair activities. Thus, we have concluded that the proposal represents an extension of the service trade premises/motor repair station use of the existing Dave Potter Motors site and therefore would be a change of use to a kind of development which is prohibited in the zone. There is nothing before us to justify the application of the principle of interpretation applied by Jacobs J in Wilson and St Peters, to the provisions of the relevant Development Plan that describe a motor repair station and service trade premises as non-complying in the zone, mindful as we are of the need to be careful with its application, given the comments of Doyle CJ in Palma (above).

That decision has certain consequences, including that the application was not processed in accordance with the law, and that this Court has no jurisdiction to hear an appeal against a refusal to grant consent: see s35(4)

In case we are wrong in our determination in this regard, and in deference to the cases that were put to us with respect to the planning merits of the application, we now proceed to a planning assessment of the application.

As we have said, the subject land is located within the Historic (Conservation) Zone - Residential (New Glenelg) Zone, as depicted on Map HoB/5 in the Development Plan for the City of Holdfast Bay dated 19 December 2002. The relevant zone objectives are as follows:

Historic (Conservation) Zone - Residential (New Glenelg)

"Objective 1: An area of heritage value where the heritage character and integrity of the zone is conserved and reinforced.

Objective 2: Accommodation of detached and semi-detached dwellings, primarily single storey, complementing the late Victorian and early 20th Century residential development predominant in the zone."

The relevant Zone Principles reinforce these objectives:

"1. Development should primarily be single storey detached dwellings and single storey semi-detached dwellings complementing the late Victorian and early 20th Century housing predominant in the zone.

7. Development within the zone should conserve and enhance the cohesive streetscapes of the zone, particularly those east of Moseley Street, having regard to predominant building setbacks, scale, external materials, fencing and appearance of existing dwellings in the locality."

Zone Principle 9 designates, inter alia, Motor Repair Station and Service Trade Premises as non-complying forms of development within the zone. The evidence of Mr Osborn was that, while the proposal did not meet the primary intent of the zone, it was a reasonable alternative use of the subject land taking into account the following:

• the low level of amenity on the subject land resulting from traffic noise on Brighton Road and its location at the interface with the Commercial Zone to the east;

• the more orderly use of the existing congested Dave Potter Motors site, with resultant removal of some visitor and staff vehicles from the adjoining public streets;

• the lack of flexibility within the Dave Potter Motors land to accommodate reasonable redevelopment and/or reconfiguration of existing longstanding commercial uses; and

• the fact that dwellings on the northern side of Bath Street, between Penzance Street and Brighton Road, did not exhibit the heritage qualities which underpinned the zone objectives.

With reference to the third point raised by Mr Osborn, we note that Objective 2 for the Commercial Zone seeks "local service and commercial activities which are compatible with the amenity of the locality", and Objective 3 "the establishment and maintenance of a visual and acoustic buffer between development and land in the abutting zones".

While Mr Osborn acknowledged that removal of the dwelling and associated shedding on the subject land would, at first instance, result in high levels of noise from Brighton Road being received at abutting residential development, he was of the view that fencing of an appropriate height and design along the western boundary of the subject land would be sufficient to ensure that noise levels did not exceed those presently applying. Mr P Maddern, a qualified acoustic engineer who gave evidence in this matter, was generally of the same view, subject to fencing along boundaries shared with residential development being double-sided Colorbond, 2.7m in height. Mr Osborn summarised his views thus:

"• there is presently only limited area provided on the adjacent Dave Potter Motors premises for staff, customer and visitor parking, thereby generating a demand for on-street parking in the immediate locality;

• the existing dwelling displays no particular architectural merit and is not listed as a Contributory Place in the Historic (Conservation) - Residential (New Glenelg) Zone;

• the subject land, is located in the Historic (Conservation) - Residential (New Glenelg) Zone, and borders the Commercial Zone to the east;

• the amenity of the subject land is influenced by traffic movements along Brighton Road, which generate noise and dust, together with the existing Dave Potter Motors premises, which provides no buffer features to the common property boundary;

• the provision of additional onsite carparking for staff, customers and visitors should facilitate the more orderly function of the Dave Potter Motors premises, in particular reduce the extent of on-street parking generated by the existing operations;

• the provision of new boundary fencing and landscaping should ensure that the proposed carpark does not unreasonably impact on the amenity of adjacent residential properties; and

• the benefits gained through the provision of off-street carparking and the more orderly function of the Dave Potter Motors premises, in my opinion supports the establishment of a non-residential use in the Historic (Conservation) - Residential (New Glenelg) Zone, particularly as the subject land does not contain a contributory item and is contiguous with the adjacent Dave Potter premises."

These views were not shared by Ms Barnes, whose opinion was that the proposal was inconsistent with the provisions of the Historic (Conservation) Zone - Residential (New Glenelg) inasmuch as it would:

• impact adversely upon the character of the locality;

• foreclose realisation of the objectives for the zone on the subject land and adjoining properties;

• be out of character with existing forms of residential development in the locality; and

• significantly increase the visual dominance of commercial development within a residential locality.

In support of these views Ms Barnes made reference not only to the relevant objectives and principles for the zone, but also to a number of Council Wide provisions, including Principle 49:

"49. Development in a residential zone should not impair its character or the amenity of the locality as a place in which to live."

Both planners referred to Council Wide Provision 54:

"54. Expansion of existing non-residential developments, such as retail, commercial, industrial or other non-conforming developments, should not be undertaken in residential zones unless residents are adequately protected from adverse noise, air pollution, traffic disturbance or other harmful effects to health or amenity, and unless expansion is undertaken in a manner which minimizes any impairment of the residential character or amenity of the area."

However, Mr Osborn considered Principle 54 in conjunction with Council Wide Principle 67 (addressing landscaping of development in residential zones) to conclude that the proposed fencing and landscaping with some additions, would adequately protect the residents and so not preclude the proposed development on the subject land.

Mr S Foley, a qualified and experienced traffic engineer, gave evidence that there would be no adverse traffic consequences in Bath Street resulting from the subject proposal, provided that access from Bath Street was available only for visitor parking spaces.

We have given careful consideration to the planning, acoustic and traffic evidence in this matter, and to the evidence of Mr C Potter as to the manner in which the proposed carpark would be integrated into the operation of the Dave Potter Motors site. We are satisfied, on the evidence of Mr Maddern and Mr Foley, that the acoustic and traffic consequence of the proposal proceeding will not be such as to constitute a basis for refusal.

There remains the question of the consistency or otherwise of the proposal with the objectives for the zone. We acknowledge that there may well be a reduction in the congestion presently experienced on the Dave Potter Motors site, and attendant improvements in efficiency. Nevertheless, the operational exigencies of a commercial use of land do not, of themselves, constitute a basis upon which the intrusion of a commercial activity into a residential zone can be justified, other than, perhaps, in circumstances where there would be a net improvement in the residential amenity of that zone as a consequence.

It may well be that the proposal would result in the removal of some visitor and staff vehicles from Bath Street. However, there was no evidence of the number of staff vehicles presently parking in Bath Street and we have concluded that the number of vehicles removed is likely to be small, particularly given that it would be well-nigh impossible to enforce the maintenance of a separation between staff and customer parking spaces. In that regard we are also mindful of the evidence of Mr D Monck, who resides at 72 Bath Street, opposite the subject land. That evidence was that all day parking at the northern end of Bath Street by employees of Dave Potter Motors, (which occurred routinely) had less impact on amenity, and posed less risk to his small children, than the regular turnover of parked vehicles which might otherwise occur.

Against what would be, at best, a small reduction in the amount of on-street parking presently occurring in Bath Street, has to be set the adverse consequences of the establishment of a carpark in the Historic (Conservation) Zone - Residential (New Glenelg). Those consequences, on the evidence of Ms Barnes, include:

(a) removal of an existing dwelling and the foreclosing of the opportunity for development consistent with the zone objectives; and

(b) an appearance, on the subject land, more consistent with commercial than residential development.

When assessing a development proposal, it is the responsibility of planning authorities, and on appeal, this Court, to determine the overall intent and purpose and desired character of the zone in which that development is proposed, and to determine the consistency of the latter with that intent, purpose and desired character: City of Mitcham v Freckmann and Ors [1999] SASC 234; (1999) 74 SASR 56. Zone Objective 1 is unequivocal in seeking to conserve and reinforce the heritage character and integrity of the zone. The subject proposal is clearly at odds with that objective. We acknowledge that the dwelling on the subject land is not a contributory item within the zone, but it is a detached dwelling in fair condition, and one which, consistent with Zone Objective 2, complements the older buildings within the zone inasmuch as it evidences a residential rather than commercial character. Its low front fence is also in keeping with the general character of the area. Furthermore, while the use of the subject land remains residential, the opportunity exists for upgrading or replacement of that dwelling to achieve even greater consistency with the zone's desired character. Demolition of the dwelling and its replacement with a carpark can in no sense be viewed as conserving or reinforcing that desired character, and in all likelihood will foreclose that occurring in the foreseeable future.

Mr Osborn's approach requires comment. His opinion showed signs of having been developed, not by considering and assessing the proposal first against the purpose and intent of the zone (having regard to the location of the land at the edge of the zone), but by considering how, having regard to the unfavourable (for the proposal) purpose and intent of the zone, an argument might be made to support the development, given the needs of Dave Potter Motors for additional carparking space. This approach is incorrect and has all the hallmarks of a professional planner adopting the role of an advocate, especially as Mr Osborn acknowledged that the proposal does not meet the primary intent of the zone. Such an approach is unacceptable.

Having regard to all the above, to all that was put before us, to what we saw on the view, and to the relevant provisions of the Development Plan, we have concluded that the subject proposal is fundamentally in conflict with the intent, purpose and desired character of the zone. Having so concluded, we have decided that the decision of the Council to refuse the proposal upon the assessment of the proposal against the Development Plan was correct.

Having reached this decision with respect to the assessment of the proposal against the relevant Development Plan, it is not necessary for us to speak further concerning our determination that the application is and should properly have been processed as a non-complying kind of development. If the matter had proceeded differently, we might well have determined prior to a hearing on the merits, that we had no jurisdiction, and declined to hear the matter further. However, as the point was not raised prior to the hearing, the most appropriate course was to hear the argument on this point together with the parties' cases to the Court, on the merits of the proposed development.

In the circumstances, we order that the appeal is dismissed, although we acknowledge that another kind of order could have been made.