HRNG ADELAIDE, 6-7 June, 1991 #DATE 22:8:1991 Counsel for the Appellant: Mr S. Walsh with

Mr S. Henry Solicitors for the Appellant: Ward and Partners Counsel for the Respondent: Mr B.R.M. Hayes QC with Ms C.L. Trenorden Solicitors for the Respondent: Norman Waterhouse and Mutton Counsel for the Minister for Environment and Planning: Mr A.R.F. Hall Solicitors for the Minister for Environment and Planning: Crown Solicitor

JUDGE1 COX J In 1983 the respondent Remove All Rubbish Co. Pty Ltd ("Remove All Rubbish") sought planning approval from the District Council of Munno Para for a development proposal described in the application as "a Solid Waste Disposal Depot (incorporating landscaping and fencing as appropriate"). The District Council (which in that form or as the City of Munno Para I shall call simply "the Council") refused its consent. Remove All Rubbish appealed to the Planning Appeal Tribunal which in 1985 reversed the Council's decision. It consented to the development on conditions that included the strict compliance by Remove All Rubbish with the terms of an undertaking which was to include a restriction on the hours of operation of the depot to 7.00 a.m. to 5.00 p.m. between Monday and Friday, and 7.00 a.m. to 12 noon on Saturdays. Remove All Rubbish gave the undertaking. An appeal by the Council against the Planning Appeal Tribunal's decision was dismissed by Jacobs J in November 1985: 41 SASR 188. In March 1990 Remove All Rubbish, following correspondence with the South Australian Waste Management Commission and the South Australian Planning Commission and the Council with a view to extending its hours of operation, took proceedings in this Court seeking the following declarations - "1. A declaration that the proposal by the plaintiff to vary the planning consent granted in respect of its waste disposal depot at Tozer Road, Waterloo Corner ("the depot"), by: (a) extending the hours of operation to 5.00 am to 7.00pm Monday to Friday and 5.00am to 3.00pm Saturday; (b) permitting its front lift compactor trucks to access the depot after 7.00pm and prior to 5.00 am Monday to Friday; and (c) storing at the depot over-burden obtained as a result of the operations at the depot, ("the variations) is not "development" within the meaning of the Planning Act, 1982.

2. A declaration that the plaintiff is not required to lodge with the relevant planning authority, a development application in respect of the variations. 3. A declaration that the plaintiff may lodge an application in respect of the variations with the City of Munno Para. 4. A declaration that the City of Munno Para is not required to deal with an application by the plaintiff in respect of the variations, as an application to undertake development. 5. A declaration that the City of Munno Para can approve an application in respect of the variations."
3. In the course of the hearing before Jacobs J the summons was amended to add a prayer for the following declaratory relief as well - "5(a). That the Planning Appeal Tribunal is entitled, consistent with the principles enunciated in Adelaide Pistol Club v. Munno Para Council 28 SASR 186 to approve the variations in its discretion." The application was opposed by the Council. The Minister for Environment and Planning intervened to present an argument in support of the Council. In November 1990 the learned Judge handed down his judgement. He made the declarations substantially in the terms sought by Remove All Rubbish, and he ordered the Council and the Minister to pay the company's costs. The Council now appeals to the Full Court against that decision. The Minister, a respondent to the appeal, again argued to the Court in support of the Council.
4. Jacobs J was of the opinion that a mere variation of hours of the kind sought by Remove All Rubbish could not ordinarily constitute development, in the sense of "a change in the use of the land," within the meaning of s.4(1) of the Planning Act. There might be cases in which the hours of operation were so critical to the use of land for a particular purpose that it could be said that to change the hours would be to change the use, but the slight extension in the hours of operation that Remove All Rubbish was seeking here was not such a case. It was true that there was no general power expressed in the Planning Act to vary conditions that had been imposed under s.47(7), but it was not conceivable that there should be an entire absence of power in any planning authority to consider and if appropriate to approve a variation in the conditions of a consent. So manifestly convenient a power was necessarily implied in the statutory scheme. Normally the power to vary would reside with the planning authority which granted consent to the original development and imposed the condition. There was a difficulty in this particular case in identifying that authority. The power here could be exercised by the Tribunal, which imposed the conditions, and probably by the Council as well.
5. Submissions were made to us on behalf of all three parties as to whether the proposed extension of hours would constitute development, as that word is defined in s.4 of the Planning Act. I shall come to that question later but the starting point, as it seems to me, is s.47 and s.46. Sub-s.(1) of s.47 provides that - "Subject to this Act, no development shall be undertaken without the consent of the relevant planning authority." The establishment and operation of the waste disposal depot by Remove All Rubbish following the Planning Appeal Tribunal's decision in its favour was clearly development, within the meaning of the Planning Act, and no-one has argued to the contrary. Sub-s.(7) of s.47 provides - "A consent under this section is subject to such conditions (if any) as the relevant planning authority thinks fit to impose, and any such condition is binding on, and enforceable against, the person by whom the development is undertaken and any person who acquires the benefit of the consent." The section goes on to limit appeals with respect to conditions and to require a council to have regard to any determination with respect to conditions that might be made by the Commission or a prescribed instrumentality or agency of the Crown. The Planning Appeal Board's consent in this case was, as I have stated, subject to certain conditions, expressed in Remove All Rubbish's undertaking, including a condition restricting the hours of operation of the depot. Sub-s.(2) of s.46 of the Act makes it an offence for a person to contravene, or fail to comply with, a condition attached to a planning consent. It follows that if Remove All Rubbish extends its hours of operation it will be in breach of s.46 and liable to heavy penalties.
6. It has not been suggested that there is power in any authority or court to exempt Remove All Rubbish from the requirements of s.46.
7. Faced with this discouraging situation, Remove All Rubbish argued, on the ground of evident necessity, for a power in the Planning Appeal Board or the Council or both to vary a condition in an appropriate case upon application duly made by the developer. This was the submission that found favour with the learned Judge. There is a difficulty, as it seems to me, in reconciling that conclusion with the terms and policy of the Act.
8. It is agreed that the Act does not anywhere spell out any general power in any authority to vary conditions attached to a planning consent under s.47(7). Mr Hayes, QC, for Remove All Rubbish, submitted that, in the context of planning and development control, the power to impose a condition must by implication include a power to modify or vary a condition so imposed. However, the same argument was put to the Full Court in The Queen v. District Council of Berri; Ex parte H.L. Clark (Berri) Pty Ltd (1984) 36 SASR 404 with respect to the Planning and Development Act 1966-1981 and rejected. There is no relevant difference, favourable to Remove All Rubbish, between that Act and the Planning Act in this respect. (There is a power in sub-s.(8) of s.49 of the Planning Act to impose particular conditions in special circumstances relating to an environmental impact statement and to vary or revoke the conditions afterwards. The sub-section was added in 1985. If it has any bearing on the general question at all it can only be unfavourable to Remove All Rubbish's submission.) In the Berri case the Full Court did hold that there was a power in the Council under s.41 of the Planning and Development Act to vary a condition attached to a consent, but that was only because the section expressly referred to the revocation of a condition, and in the Full Court's view a power to revoke carried with it the lesser power to vary. There is no power to revoke a condition in the Planning Act.
9. Jacobs J acknowledged that his decision was in a sense breaking new ground, "in order to bring reason and commonsense to the planning process which by its very nature must be capable of responding to changed circumstances; and no policy or public interest has been shown as to why a planning approval subject to conditions should be immutable, when the nature of the proposed variation of the conditions does not in any relevant sense change the use of the subject land." His Honour called in aid the following passage from the reasons of Wells J in Adelaide Pistol Club Inc. v. District Council of Munno Para and Musolino (1981) 28 SASR 186 - "The character of planning work is such that it comprehends decisions of broad principle which must be implemented with some particularity. It is wholly consistent with that character that a decision on a point of principle may remain unchanged, but its implementation may require variation in detail in order to accommodate the fundamental purpose of the decision to circumstances that have undergone a change not reasonably capable of being resisted. It would, in my opinion, frustrate the determinations of the Board if it were not assigned, by analogy with courts, subsidiary powers to make those variations, whenever it is just and convenient to do so, in order to carry the central purpose of a determination into proper and complete effect in altered circumstances." (at 192-3)
10. However, we are not concerned in the present case with a possible inherent power to make a minor variation in a condition, before the development works are carried out, in order to meet an unexpected difficulty, whether an actual impossibility or something for practical purposes very like it - to take the example given by Jacobs J, where the species of tree stipulated in a consent condition is found to be unprocurable or quite unsuitable for the specified purpose. The analogy that Wells J drew with the powers of a court in like circumstances to vary its orders, presumably prior to their being sealed, shows that his Honour must have had in mind variations of a transient and minor kind, arising before the works could be put into effect or the consent in other respects generally complied with; if the power to vary was conceived as being more expansive than that, it would be in conflict with the decision of the Full Court in the District Council of Berri Case.
11. The Act already contains a mechanism for relieving an applicant in particular circumstances from the general obligation to give public notice of his application pursuant to s.53. See sub-s.(1) of that section and reg.33 of the Development Control Regulations 1982 (Gazette, 4 November 1982, p.1473) as modified by reg.38 (amended in 1984 : Gazette, 15 November 1984, p.1573). Jacobs J, however, regretted the absence of a more general provision in the Act that would enable a developer to avoid the manifest inconvenience, at least in the case of those forms of development that do not fall within the reg.38 exemption, of having to start the whole statutory process again in order to have a condition varied in some minor way or, if that were not possible, simply having to do the best it could with a condition that was no longer appropriate. It is not obvious, however, that the variation that Remove All Rubbish seeks in this case may properly be regarded as being of a minor or uncontentious sort. The reasons of the Planning Appeal Board record that more than a hundred objections were lodged with the Council to the company's original proposal in 1983 from persons who either resided in the district or owned land there. The fears of these people about the establishment or operation of the depot may or may not have had much substance

• I have no view about that - but it is unlikely that they were not taken into account when the Planning Appeal Board required Remove All Rubbish to give an undertaking that, among other things, it would restrict its hours of operation on week days to 7.00 a.m. to 5.00 p.m. and on Saturdays to 7.00 a.m. to 12 noon. To extend those hours now by two hours at each end of a week day - a 40 per cent increase in operating time -, with much the same variation on Saturdays, and to allow the company's trucks to pass in and out of the depot at all hours of the night during the week, would obviously not be the kind of minor adjustment that Wells J had in mind in the Adelaide Pistol Club Case. Nor is there any reason to regard the position of Remove All Rubbish as freakish in this respect and calling for some exceptional remedy not foreseen by the draftsman of the legislation. I expect that there will not infrequently be applications or appeals under this Act in which the real issue between the parties, and the point upon which the decision or judgement in question will be concentrated, will be the hours and other conditions of operation of the proposed development. Jacobs J evidently considered Van Wijk v. South Australian Planning Commission (1987) 27 APA 454 to be such a case. In his Honour's view the present hours of operation of the depot were never a "planning issue"; the case was fought substantially on other grounds. It is difficult to judge whether the reasons of the Planning Appeal Board accurately reflect the opinions of the objectors on that matter, but it is important to remember that the hours of operation that were eventually embodied in the undertaking were evidently proposed by Remove All Rubbish itself - whether as a result of discussions, even hard bargaining, with other interested persons or by way of a realistic forecast of what the Planning Appeal Board was likely to find acceptable or for some other reason, does not appear. There is no material before this Court upon which it would be possible for anyone to assess the likely reaction of the previous objectors to the present proposal. Nor are the differences between the procedural safeguards for interested persons that are laid down in the Act and regulations and, on the other hand, the relatively informal procedure, proposed by Remove All Rubbish and embodied in the order appealed from, to be dismissed as unimportant. If the declarations that the learned trial Judge made are to stand, it will mean that all of the local residents and landowners who registered their protests last time will be entirely dependent upon the goodwill and voluntary cooperation of the relevant authority if they are to be notified of Remove All Rubbish's application and to have their views taken into account before a decision is reached. They might well think that this would be a quite inadequate substitute for the legal rights, including a right of appeal, given to interested persons under s.53 and the regulations in the case of a normal application for a planning consent.

11. In the end it is a matter of applying the provisions of the Planning Act as they are, not as they might have been. Whatever a planning authority or tribunal may or may not be able to do by way of a sort of slip rule or by the exercise of powers analogous to those exercisable by the Supreme Court before an order has been sealed - the sort of limited function approved by Wells J in The Adelaide Pistol Club Case -, there can be no justification, in my opinion, for reading into the Act a general power to review and revise consent conditions at some later time, perhaps years after they were imposed. If a condition, why not the consent itself? If at the instance of the occupier, why not at the instance of any other party, or even of some other interested person? It is not as though this is a new problem. There are planning Acts elsewhere in which the same absence of an expressed power to vary a condition has been perceived with the same negative result. It would have been very easy for Parliament to have written some speedier, simpler procedure for review of a consent condition into the legislation, but presumably not to the total neglect of the interested persons referred to in s.53, but significantly the Act is completely silent on the point. I think the conclusion is escapable that no such review procedure was intended.

In my opinion, the condition as to hours of operation was an integral part of the planning consent that was granted to Remove All Rubbish by the Planning Appeal Tribunal in 1985 and there is no power in the Council or the Planning Appeal Tribunal to vary that condition now. The Planning Appeal Tribunal is functus officio. The declarations numbered 3, 5 and 5(a) should not have been made. 13. Strictly speaking, if that view is correct, the other declarations should be set aside as a matter of course. It is no part of the Court's function to provide the occupier of land who holds a planning consent with an advisory opinion about the best way of avoiding, if he can, his legal obligation to comply with a condition attached to the planning consent. However, the matter was argued before us and I think it desirable in the circumstances that we say something about it. 14. It will be plain from what I have written about the operation of ss.46 and 47 of the Planning Act that I do not accept Remove All Rubbish's submission that the lawfulness or propriety of its operation of the depot outside the hours stipulated in its undertaking necessarily depends upon whether such operation is to be characterized as "development" under s.4 when compared with its present activities on the land. The notion of development in this legislation, and its ramifications, can obviously give rise to difficulties, and it is not necessary to attempt an exhaustive solution to them here. 15. Mr Walsh, for the Council, put the various possibilities to us, perhaps favouring the argument that the change in hours proposed by Remove All Rubbish would amount to a change in the use of the land - the comparison being with its present use - and so require a fresh application for a planning consent under s.47. The problem about that view of the matter is that the courts have not generally supported the introduction of a temporal factor into the characterizing of the use of land in this context - to say that a piece of land has one use during working hours and another when the site has been shut down for the night, or (to put it in a less extreme way) to take the after-hours inactivity specially into account when categorizing the comprehensive use to which the land is being put. See Leverington v. State Planning Authority (1970) SASR 387 and Prestige Car Sales Pty Ltd v. Corporation of Walkerville (1979) 28 SASR 514. Apart from the possible implications of the statutory definition itself, the notion of fragmented uses, if applied generally, could have strange results. It could hardly have been intended that a delicatessen proprietor, whether operating under a planning consent or not, must always obtain a (further) planning consent if he simply wants to open for business half an hour earlier than usual. 16. Mr Hall, for the Minister, sought to meet this difficulty by relating any change in operating hours, in a case such as the present, to the use of the land prior to the grant of the original consent. Where that consent was (as in this case) for a development that constituted or included a change in the use of the land, such change was authorized only to the extent circumscribed by the terms of the consent, including any conditions attached to the consent. It followed (he said) that anyone having the benefit of the consent who wished at any later time to conduct operations outside the terms of the consent, including its conditions, would have to obtain a further planning consent with respect to the proposed variation, because the variation itself would constitute another change in use when judged against the use of the land before the first planning consent was granted. Furthermore, if the proposed operations would themselves constitute development independently of that contrasted use (as, for instance, by the erection of new buildings), a fresh consent would be necessary for that reason as well. (Cf. sub-s.(4) of s.56.) Mr Hall's primary submission implies that a change in the use of land, and therefore "development", is necessarily a continuing process, related always to the land use that preceded it. Cf. Braunack v. Goers , at 3-4, 19ff. and Tompkins v. Hurley , at 465-6 and Munno Para District Council v. Battersby (1988) 66 LGRA at 23-8. If that is the proper analysis of what happened in the present case, viewed in the light of the Planning Act, it means that the classification of the use of a piece of land will need to be judged in comparison with its use when the first planning consent was given with respect to it, possibly quite a long time previously, at least where the change in use permitted by that and any subsequent consents did not allow the use of the land for a single and continuous activity. It is not the usual matter of characterizing the use overall to which a parcel of land is put, but of identifying the use of land in respect of which a change for only limited periods is permitted. 17. Mr Hall's solution has the considerable attraction of avoiding the anomalies, if not a basic conceptual problem, involved in holding that a change in hours necessarily means a change in the use of the land. Its fatal flaw, in my opinion, is that the comparison it requires will not accord with the reality of the position. Take the present case. The use of the land at Waterloo Corner now is as a solid waste disposal depot, and that has been the situation for the past five years or so. It is not being used for whatever different purpose the land happened to have prior to the grant of the 1985 consent. Mr Hall's submission might solve some problems, but at the expense of introducing more artificiality into the notion of "a change in the use of the land" than the words, even in this kind of legislation, may reasonably bear. 18. While it will not generally be the case that a change in the hours and other conditions of operation of a business being conducted on a parcel of land will change the use of the land, within the meaning of s.4, it has already been noticed that the matter of operating hours will sometimes be the main issue in a planning dispute and constitute a considerable dimension in the categorization of the land use in question. Cf. Van Rijk v. South Australian Planning Commission. I think that must provide the solution to the present dilemma. Where, as here, a planning consent has been granted on terms that restrict the proposed development to stipulated periods, any substantial change in those periods will constitute a change in the use of the land and so amount to development within the meaning of s.4 and require a further planning approval. That is not to say that, as a general proposition, a change in hours will be a change in use. What makes all the difference is the existence of a consent condition as to operating hours that stamps a distinct character on the use of the land. The procedure that I have suggested would not involve the revocation of any existing consent. Indeed, the Planning Act does not provide for any such revocation. The applicant would seek a further, separate planning consent to accommodate the proposed change of use. There is nothing unusual about requiring more than one planning consent for a particular piece of land. See s.56 as applied to buildings erected at different times; and cf. Drummoyne Municipal Council v. Page , at 573-4. The construction I favour has the advantage of avoiding a result that the learned trial Judge feared in this case, namely, that, having in mind that the use of land in the Waterloo Corner area for waste disposal is now a prohibited use, any further application that Remove All Rubbish might make about the operating hours of the depot could place in jeopardy the planning consent it was granted in 1985. That, understandably, was not the way Mr Hayes put his argument to us. In my view it is open to Remove All Rubbish to apply now to the appropriate authority, in the prescribed manner, for a planning consent to operate the depot in the way described in the summons during the additional hours. As a result it will, if successful, end up with a second planning consent for the one parcel of land, but it cannot be deprived of the first consent. 19. Having said that, I remain of the opinion that it is not appropriate in principle to make declaratory orders with respect to paragraphs 1, 2 and 4 of the summons. I would simply allow the appeal, set aside the learned Judge's order and dismiss the application.

JUDGE2 KING CJ I agree with the reasons for judgment of Justice Cox. 2. It is not necessary for this Court, in order to decide the appeal, to rule on the question of how the respondent can obtain a variation of its permitted hours of operation. I think, however, that we ought to do so in order to dispose fully of the issues which arise in the matter and which were debated before us. 3. Generally speaking the hours during which a commercial or industrial operation is carried on on land do not affect the character of the use of the land. Land is used as a transport depot, for example, irrespective of whether the hours of operation are from 8 a.m. to 4 p.m. or 9 a.m. to 5 p.m. Nevertheless the hours of operation may in some circumstances affect the character of the use of the land. A 24 hour transport depot may constitute a use of land which differs from use as a transport depot whose operations are conducted only during normal business hours. It seems to me that where the hours of operation are considered to be so much of the essence of the land use as to warrant the imposition of conditions restricting operations to certain hours, any variation of those hours can fairly be regarded as a change of use and therefore development. I think therefore that it is open to the respondent to apply for planning approval for a development consisting in the change of use of the land involved in altered hours of operation. Refusal of that application would, of course, leave the existing planning approval unaffected.

JUDGE3 BOLLEN J I regret that I cannot share in the opinion of the majority. I offer the barest bare bones of a dissenting opinion. 2. I regret that I cannot, with all respect, accept the view that an increase or decrease in the time of operation of an activity on land can change the "use" of that land. The period of its exercise may change but not the use itself. Nor can I regard Wells J as having contemplated only minor changes when he wrote his supplementary comments in Adelaide Pistol Club v. Munno Para Council (1981) 28 SASR 186 at 192, 3. Wells J spoke not of "major" or "minor" variations but of variations to accommodate "the fundamental purpose of the decision". The variation sought here is admittedly not such a variation. But I see no reason why Jacobs J should not have extended or built upon the pronouncement of Wells J. I think that the power to grant consent subject to condition must connote the existence of a power to vary those conditions. I think the remarks of Wells J (admittedly obiter) sufficient authority for that proposition. 3. I say no more than that I agree with and am content to adopt the reasoning and conclusion of Jacobs J. I think that this Court should endorse that reasoning and conclusion. 4. I would dismiss the appeal.