Solitaire Automotive v City of Mitcham

Environment, Resources and Development Court (SA)|2002-06-14|Before: Commissioner Mosel

The applicant shall comply with the Traffic Management Report prepared by Shane Foley dated 28 September 2001.

All earthworks associated with the development shall be stabilized in accordance with standard engineering design and practices against erosion and failure. No earthworks must encroach across neighbouring property boundaries.

Before any drainage construction is undertaken on site, approval is required by Council for the following items:

(a) Plans showing the proposed arrangement of the detention systems.

(b) Where the surface storage areas (for example on paving) are relied on for reduction of flows to meet the above requirements, detail of the location of the areas, their grading and the pipe systems serving the areas shall be provided such that the flow reductions are appropriate and achievable to the reasonable satisfaction of the Council.

The stormwater discharge to the Hampton Street system shall not be increased above current levels for all events greater than a 5 year ARI up to and including a 100 ARI event.

On-site detention measures for the whole site to control stormwater runoff shall be installed, designed and certified by a Chartered Professional Engineer to control peak flows from 1 in 10 ARI to 1 in 100 ARI events.

The stormwater shall be disposed of in such a manner that it does not flow or discharge onto land of privately owned adjacent land or lie against any building or create insanitary conditions.

Gross Pollutant Traps shall be installed for each separate drain line.

The Gross Pollutant Traps shall be installed, designed and certified by a Chartered Professional Engineer prior to any further development occurring on the site.

29. Debris and sediment control measures shall be installed prior to construction commencing and maintained afterwards to ensure debris, soil, soil sediments and litter is maintained within the construction site. Such pollution prevention measures, shall generally be in accordance with those Environment Protection Authority's Stormwater Pollution Prevention Codes of Practice appropriate to the proposed development. Prior to construction commencing a copy of the above plan shall be lodged with Council for approval.

30. The wall on the northern side of the proposed carpark to the Audi workshop shall not be breached nor pedestrian or vehicular access taken from the carpark to the said Audi workshop without Development Approval.

Resources and Development Court Act 1993

Judgment No. [2002] SAERDC 63

Mr Manos submitted that I should consider the question of the proper characterisation of the proposed use. He submitted that, on the strength of the findings of this Court in the matter of Ellis & Ors v City of Holdfast Bay & Eblen [1999] EDLR 317, the Court should find that the proposed use is a carpark and as such is a separate and distinct use albeit for the benefit and use of Solitaire Jaguar. Mr Manos submitted to me that such a use, were I to agree with his approach, is not explicitly contained in the objectives for the relevant zone.

These issues are not mutually exclusive. Many of the matters raised above are interdependent and are separated only for analytical convenience and to address specific issues raised during the course of the hearing. In the end, the approach of the Court is to assess the proposed use in a way consistent with the many authorities on this issue, the most recent of which is to be found in Justice Debelle's decision in City of Mitcham v Freckmann [1999] SASC 234; (1999) 74 SASR 56.

This is an approach Mr Manos put to a full bench of the Environment, Resources and Development Court in B S Stillwell Ford Pty Ltd v City of Mitcham & Toohey [1996] EDLR 384 and later in Graham Cornes Motors Pty Ltd v City of Mitcham [2001] SAERDC 1, the latter action being decided by me. Both judgments rejected his argument and I do so again. If Objective 1 is intended to support provisions designed to freeze a particular range of existing developments in the zone let it say so unequivocally.

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