Solitaire Automotive v City of Mitcham No ERD-01-1369 [2002] SAERDC 44

[2002] SAERDC 44

In May 2001, Solitaire Automotive ("the appellant") through its agent Domenic Mittiga Pty Ltd submitted to the Council of the City of Mitcham ("the Council") a development application to establish a "private carpark and fence" on two allotments immediately to the rear of and adjoining the business known as "Solitaire Jaguar" and to the side of and adjoining the business known as "Solitaire Audi". I will deal later with the question of whether the development application form and the Council properly described the nature of the proposed use. The proposal also involves the demolition of two dwellings that now exist on the allotments. The land upon which the development is proposed is more particularly described and delineated in Certificate of Title Volume 5427 Folio 120 (Lot 273 - No.5 Hampton Street) and Certificate of Title Volume 5563 Folio 906 (Lot 274 - No.3 Hampton Street). This land I will refer to as the "subject land" but for reasons that will be advanced later in this decision it is necessary and appropriate to associate it with the functional requirements of Solitaire Jaguar.

Upon receipt of the development application the Council, pursuant to Section 38 of the Development Act 1993, classified the proposed use as a Category 3 development. In due course it issued the required notification. In all, fourteen representations were received from the residents of nine properties in the general vicinity of the subject land. All of the representations were in the nature of objections. On 6 November 2001, Council resolved to refuse the issue of provisional development plan consent. It reached its decision having considered a report prepared by Mr M Rutt, an officer in its employ, which report recommended the grant of consent subject to the imposition of several conditions. It also considered, among other things, the representation of Mr and Mrs McKenzie who live at 5A Hampton Street, which property is immediately adjacent to and to the west of the subject land.

By decision notification form dated 13 November 2001, the Council advised the appellant via the owner of the land (Smoker Holdings Pty Ltd) that provisional development plan consent had been refused. The notification also identified the single ground for its decision; that being:-

"Non-compliance with Principle 15 of the Development Plan for Mixed Use Zoning."

Solitaire Automotive were aggrieved by the decision and appealed to this Court. Mr and Mrs McKenzie who, as I have said reside immediately adjacent the subject land were joined as a party and second respondent to the action. There being no settlement reached at the conference convened pursuant to Section 16 of the Environment, Resources and Development Court Act 1993 the matter proceeded to hearing.

When the matter came before me, Mr McElhinney appeared for the appellant and Mr Manos for the Council. It was the intention of Mr McKenzie to appear on his own behalf and that of his wife. However, shortly after the commencement of the hearing, the McKenzie's withdrew as a separate party, preferring to have their concerns placed before the Court through Mr Manos.

During the course of the hearing the Court received several exhibits and oral evidence from the following:- Mr John Ellis and Mr Dan Marchetti, both qualified and experienced planners; Mr Shane Foley, an experienced and qualified traffic and transport consultant; Mr Christopher Turnbull, an experienced and qualified acoustic engineer; Mr David Smoker, a director of the company which owns the subject land and a director of "Solitaire Automotive" (which organisation is an umbrella group which in turn operates both Solitaire Jaguar and Solitaire Audi); and Mr Neil McKenzie.

Mr M Rutt had a subpoena issued against him to appear in this action. At the commencement of the hearing Mr Manos, for the Council, indicated that Mr Rutt is no longer in its employ and is in fact working in Great Brittain. Having heard the submission of Mr McElhinney and Mr Manos, the Court notes that it is not practical for Mr Rutt to appear in this matter.

In the presence of the parties the Court also viewed the subject land, the operations of and the land occupied by Solitaire Jaguar and Solitaire Audi, Mr and Mrs McKenzie's land and dwellings, land uses and traffic conditions in the near vicinity of the subject land.

The Subject Land, Solitaire Jaguar and the Proposed Development

The subject land is now occupied by two dwellings each having undercover carparking, driveway and entranceway to Hampton Street. They are unoccupied and their curtilage is unkempt. Although not in a dilapidated condition the dwellings exhibit signs of deterioration. It would appear that the driveways and front yards have been used, from time to time, for purposes associated with Solitaire Jaguar although no evidence was put to the Court as to whether this form of use had or required the benefit of a planning authorisation. A brush fence (front) and Colorbond/timber frame fence (rear) is located on the common boundary with the McKenzie property.

Solitaire Jaguar has its present operations within a recently refurbished building on the northern side of the Belair Road/Hampton Street junction. New and used motor vehicles are prepared and displayed for sale in and eventually sold from this building. The building itself has areas set aside for reception, offices, showroom/display and client contact purposes together with an area used for car preparation and detailing. The curtilage to the main building adjacent Belair Road and Hampton Street is used for vehicle display during operational hours. The rear of the building (with access from Hampton Street) is used for car detailing and preparation and temporary storage for a small number of vehicles. There is a direct pedestrian connection between this area and the showroom/office area of the building.

The intention of the proposed use is to provide additional area for the storage of vehicles while these await pre-delivery/pre-sale work, and more convenient and available carparking for customers and staff. There is provided on the proposal plan (Exhibit A1) a total of 31 spaces, all of which meet the appropriate standards. Ten of the spaces are arranged in stacked fashion such that five spaces are not independently accessible. The facility will operate between 7.30am and 6.00pm on weekdays and 7.30am and 4.30pm on Saturdays.

According to Mr Smoker, the carpark is for the exclusive use of and benefit for the operations of Solitaire Jaguar. That said, it is evident that some operations of a "group" nature (ie. Solitaire Automotive) may gain access to and benefit from the additional space. His evidence indicates that the vehicles sought to be stored are, in the main, now stored at his Medindie site. However, that site is now unsuitable for the storage of prestige cars because it is expanding and changing emphasis.

Mr Smoker indicated that for the most part of any one month 16 spaces will be utilised for the storage of motor vehicles awaiting pre-sale/delivery preparation, five for customers and 10 for staff members. However, Mr Smoker emphasised more than once that such arrangements need to be fluid for three main reasons. Firstly, stock numbers may vary depending on the available space at the time deliveries are made. In other words, new vehicles requiring storage may exceed 16 if a delivery is made prior to existing stock being moved on to the showroom floor or to purchasers.

Secondly, it is the practice to vary the number of vehicles displayed within and adjacent to the existing showroom on a day-to-day basis. Some of these vehicles are driven by staff to and from the workplace. The Court was given several scenarios that demonstrated the need for flexibility. There is no need to canvass these scenarios for it is sufficient to say that there will be times when three to four of these vehicles will find their way into the proposed carpark albeit temporarily.

Thirdly, once per year Solitaire Automotive participate in the Adelaide Motor Show. Participation in this event requires - if the most recent event is representative - several more new vehicles being placed on the land for a period of a week or so.

Mr Smoker foreshadowed that it would be the staff carparks that would be sacrificed first to accommodate the occasional influx of new/used vehicles of a number that exceed his forecast parking composition in Exhibit A6.

Although the fence between the subject land and Solitaire Jaguar will be removed - thus freeing movement between the existing and proposed use - on the evidence of Mr Smoker, the proposal does not include the extension of Solitaire Jaguar's detailing/pre-delivery operations on to the subject land. As I understand his evidence, certain functions performed on the Solitaire Jaguar site, they being staff carparking and new vehicle storage, will be extended on to and enlarged by virtue of the facility proposed on the subject land.

The southern extent of the carpark will be delineated by a cement rendered masonry wall (incorporating piers and decorative brickwork) and decorative (open style) sliding gate, both of which will be setback 1.7 metres from the Hampton Street boundary.

Along the western boundary, Exhibit A1 indicates that the existing brush fence that separates Mr and Mrs McKenzie's property from the subject land is to remain while the fence to the rear of their dwelling is to be replaced with a 2.1 metre high rendered masonry fence. In his evidence, Mr McKenzie indicated that if the proposal was to proceed as a result of this action he would prefer a 2.5 metre high fence. Furthermore, I understand that he raises no objection to the installation of an acoustic fence being erected immediately abutting the brush fence but within the subject land.

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.

Eblen's proposal involved the extension of an existing service trade premises, service workshop and crash repair business by way of a carpark linked to and integrated with the existing use. The carpark was to be used for the parking of vehicles belonging to the staff and customers of Eblen's. In its consideration of the use of the land, the Court among other things drew on the findings in Papadopoulos v Corporation of the City of Woodville (1985) 39 SASR 569. The fact that the intended use for the parking of vehicles for staff and customers (being "integrated" with the existing use and for the facilitation of the business on the adjoining land) was not in itself sufficient reasons for the Court to find that that which was proposed was anything other than a separate and distinct use as land to be used for the purpose of parking motor vehicles. The Court said in summary at 319:-

"The proposed use of the subject land might be incidental to the existing use of the adjoining land, but that does not mean that what is proposed is to use the subject land for the purposes of the use of the adjoining land."

It would seem that the Court's characterisation of the land use in Ellis relied on the fact that the carpark was ancillary to the adjoining use by virtue of it being for a purpose or purposes not currently part of the adjoining use. The Court said at 319:-

"Here, it is proposed to use the subject land for purposes which are incidental to the use of the adjoining land, but those purposes are limited. They are not the same as the purposes for which the adjoining Eblens land is, or may be lawfully used, presently." (emphasis added)

The matter before me may be distinguished from the circumstances in Ellis. Having examined Mr Smoker's evidence carefully it is clear that the proposed use will enable some activities that currently exist on the Solitaire Jaguar land to be carried out on the subject land. Here I refer to the storage of cars awaiting pre-delivery work, customer cars (some of which park on the display area by appointment) and staff vehicles (being vehicles often used for demonstrations). The proposed use is not therefore separate and distinct in the sense found in Ellis. Granted, that which is proposed does more than cater for the current "overflow" needs - it will enable the business to expand. However, it is neither separate in the sense found in Ellis nor is it to be available to the general public or general parking purposes or intended to be operated as a separate land use entity. Accordingly, the proposed use, properly characterised, could be described thus:-

"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."

The characterisation of the proposal was the subject of submissions by Mr Manos. In arguing that it was a separate and distinct use, albeit ancillary to the adjoining use, Mr Manos submitted that two important implications arose. Firstly, it is a use not listed or defined in the Development Plan as being desired in the zone. Secondly, he opines that its "separateness" from the adjoining use may well encourage wider usage as a general carpark and thus further intensifying the impacts on the locality. As the foregoing indicates I do not share his opinion on the characterisation but I will deal with these questions further on.

Solitaire Audi is a separate business entity within the umbrella business of Solitaire Automotive. It is located on an "L" shaped parcel of land, the frontage of which is on Belair Road 30-40 metres north of Solitaire Jaguar (the intervening space being occupied by a veterinary establishment). The rear portion of this land wraps around the rear of the veterinary establishment (the foot of the "L") and adjoins the northern boundary of the subject land. On this part of the Solitaire Audi site is a workshop dedicated to the servicing and repair of vehicles sold and serviced by both Jaguar and Audi entities. It is thus a joint facility and it follows that it is an essential element in the conduct of the Solitaire Jaguar operation. The southern wall of the workshop is coincident with the common boundary with the subject land.

Mr Manos and Mr McKenzie raised concerns over the real intent of the proposed use. In effect they submitted that the long term goal of Solitaire Automotive was to physically connect the Audi site with the subject land through the common boundary by way of an opening in the rear wall of the Audi workshop. Mr Manos submitted that this was a logical connection from an operational viewpoint.

It became apparent during the course of Mr McKenzie's evidence that the prospect of the wall being breached and the connection made was a circumstance that he and his wife feared most. Such a connection would, Mr McKenzie said, impose unreasonable noise and disturbance impacts on his family's lifestyle.

Mr and Mrs McKenzie reside at 5A Hampton Street. It is a relatively modern dwelling within its suburban context. Its principal orientation is toward Hampton Street and there appears to be a comfortable physical and scale relationship between this dwelling and the existing (to be demolished) dwelling at No.5 Hampton Street.

The McKenzie property is attractively landscaped. In particular the rear private open space has been well designed and planted. It provides a particularly attractive amenity for the two or three living rooms that have an orientation toward it. This space is immediately adjacent No.5 Hampton Street and will be, if the proposal proceeds, adjacent the proposed masonry wall, landscaping and carparks No.1-6 inclusive on Exhibit A1.

The common boundary between the McKenzie property and the subject land is, in fact, a zone boundary which separates the Residential (Central Plains) Zone within which the McKenzie property is located and the Mixed Use (Belair Road) Zone within which the subject land is located.

The Relevant Provisions of the Development Plan

The subject land is shown on Map Mit/5 of the Development Plan for the City of Mitcham to be in the Mixed Use (Belair Road) Zone. Map Mit/5 indicates that this zone is elongated and extends from Cross Road in a southwards direction for a distance of about 900 metres. On the western side of Belair Road the depth of the zone varies but in the main it extends 50-80 metres west of the Belair Road boundary. The Mixed Use (Belair Road) Zone has four objectives, Objectives 1 and 2 being the most relevant. They are in the following terms:-

"Objective 1: Accommodation of a range of uses including community, consulting room, motor vehicle related, local office, certain residential types, restaurant and speciality goods shops, integrated where appropriate and co-ordinated both within, and with adjoining sites."

"Objective 2: A zone where development enhances visual qualities, is of low traffic generating type, minimizes interference to the arterial road function of Belair Road and provides an appropriate transition to uses in the adjoining zones."

Objective 2 is supplemented by the following text:-

"The non-residential development along Belair Road in the zone, generally performs a servicing role primarily for nearby Mitcham and to a lesser extent Unley residents. The zone should be further developed and enhanced by mixed uses, including lower intensity or small-scale retail use and local office/consulting rooms, with opportunity for integrated medium density development toward the rear of sites and on upper levels."

Under the heading "Proposals" the Development Plan indicates that the Council proposes to:

"(a) undertake traffic and parking studies concerning the Hampton Street, Eynesbury and Tutt Avenues junctions with Belair Road, together with a review of all side-street parking controls; and ....."

The Mixed Use (Belair Road) Zone also contains 20 principles of development control. Principle 19 lists an advertisement (that complies with Table Mit/1) as the only complying form of development. Principle 20 lists the following forms of development as non-complying:-

"The change in use of land to, or erection, construction, conversion, alteration or addition to a building for the purposes of the following (except where the net increase in floor area of a lawful use will be less than 10 percent and would be contained within the existing site of that use):

(a) attached to or displayed upon a building which:

(i) exceeds the height or width of the building to which it is attached; or

(ii) has an advertisement area which exceeds six square metres; or

(b) of freestanding type with an advertisement area on each face which exceeds six square metres or an overall height which exceeds five metres

Advertisements on side or rear walls Office with a gross leasable area of greater

which abut or are visible from residential than 250 square metres

zones, at a distance of less than 100 Refuse Destructor

Building with a height greater than three- Semi-detached Dwelling

Consulting Rooms with a gross leasable (a) (excluding retail showroom and retail

area greater than 250 square metres plant nursery), with a gross leasable

Detached Dwelling area of greater than 250 square metre

Fuel Depot (b) comprising a retail showroom with a gross

General Industry leasable area of greater than 300 square

Intensive Animal Keeping (c) comprising a restaurant to which an

Junk Yard entertainment venue licence will attach

Several other principles are relevant to the assessment of the proposed use. They are as follows:-

"1 Non-residential uses should cater primarily for local and neighbourhood population."

"3 The intensity, floor size, scale and height of development should be relatively low and provide for an appropriate transition to uses in residential zones."

"8 Building set-backs to road ways should be varied having particular regard to the relationships and integration with adjoining development, notwithstanding the condition nominated in Table Mit/2."

"9 Off-street car parking and service areas sought by other principles should be primarily located in basement or undercroft locations, and/or at the side or the front of building development on the site."

"11 Development other than residential on allotments that have frontage and legal access to a local residential street only, should not occur unless that development is part of an integrated development of an adjoining land parcel or parcels that have frontage and access to an arterial road."

"12 Where appropriate, particularly on the western side of Belair Road (between Hampton and George Streets), development on amalgamated sites or with significant integration features are highly desired to achieve more efficient layouts, to minimize access points, the length of driveways, the extent of parking and to maximize pedestrian accessibility."

"13 Buffer features should be provided to residential zone boundaries, including building set-backs of at least four metres for a building of one-storey and less than six metres in height, or six metres for a building of two storeys or greater than eight metres in height, a minimum of two metres wide landscaped area, two metre high screen fences and screened or obscured building openings."

"14 Development should provide at least 10 percent of the site area as landscaped area with a minimum dimension for these purposes of one metre."

"15 Any further development of the motor vehicle related sites should rationalize and not increase the floor area or intensity of the use and reduce noise, glare, dust, fumes or odour transferred to adjacent residential use, through design treatment or management operations."

Having regard to the submission put to me it is also appropriate that I consider Principles 4 and 10 as an aid in determining the overall intent of the zone.

Council Wide Principles 75 and 89 which read as follows are also directly relevant:-

"75 Development near residential zones should not impair the amenity of the residential area. Entry and exit points should be located in such a way as to discourage related traffic movements through adjacent residential streets. Activities likely to create significant impacts in terms of noise or odour, smoke fumes, dust or other airborne pollutants should not be located adjacent to residential zones."

"89 Development associated with the motor trades should be located in an industrial, arterial road commercial, mixed use or centre zone and be designed and sited so as to have minimal impact on existing land uses in the zone."

All of the above planning provisions are supported by the terms of Council Wide Objectives 2, 5 and 7 and Principles 2, 4, 15, 18, 21, 22, 28, 70, 71, 139, 143, 144 and 145.

I have given consideration to all that has been put before me and in particular the submissions of Mr Manos and Mr McElhinney and the evidence of Mr McKenzie. It seems to me that the following planning issues are at the heart of this appeal:-

The extent to which the proposed use, properly characterised, is consistent with the directions sought in Zone Objectives 1 and 2 and the relevant zone and general principles.

The extent to which the proposed use is consistent with Zone Principles 11, 12 and 15 which speak strongly in favour of development, generally of the type proposed, being integrated with adjoining parcels of land, maintaining existing levels of intensity, rationalising land use and reducing external impacts.

The appropriateness of the proposed use as a transition between the two zones, particularly having regard to the provisions of Zone Objective 2 and to its impacts (generally confined to those arising from traffic and noise nuisance).

Whether the fact that the design of the proposed facility would more easily facilitate a connection with the Solitaire Audi operation or that a more ideal planning solution may be available, are proper matters for consideration of the Court.

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.

Mr McElhinney submitted that the appeal should be allowed. He called several expert witnesses as an assistance to the Court; they being Mr Foley, Mr Turnbull and Mr Ellis. Mr Foley, who is a qualified and experienced traffic and transport planner, observed that in providing additional off street parking, there will be minimal adverse traffic impacts, safe and convenient access will occur and the relevant Australian Standards for carparking will be met. Underlying these conclusions are the following principal considerations:-

Hampton Street is a local street, 800 metres in length, is within a 40km/h speed limit area, has parking restrictions near its junction with Belair Road and carries around 740 vehicles per day.

Any additional traffic generated by the proposed use will be as a result of the vehicles to be stored while awaiting pre-delivery work.

Less than 80 additional movements per day will use the access point to the carpark. Most cars (estimated at 75%) exiting the subject land will turn east and move toward Belair Road.

Mr Marchetti, who is not a expert in traffic impact assessing, in later evidence indicated a concern about the possibility of traffic congestion and accidents that may arise from the additional activity on the subject land. Mr Foley, as I understand his evidence, does not share that view. That difference aside, Mr Foley's evidence is essentially uncontested.

Mr Turnbull is a qualified and experience acoustic engineer. After carrying out his investigation he concluded the following:-

"I believe that the noise from the proposed carpark will not have an adverse impact on the amenity of adjacent residences and that the potential for noise disturbance will be reduced as a result of this development." (statement p.7)

He reached his conclusion having considered the following noise emission issues:-

• "The acoustic environment in the vicinity of the proposed development is now, and will continue to be, dominated by the noise from Belair Road. The noise from road traffic will not be changed as a result of this development, other than a small reduction in noise at 5a Hampton Street as a result of the proposed fencing.

• Residences in the vicinity of the proposed development can be well protected from the noise associated with the carpark with the proposed masonry fence and an additional fence located directly to the east of the existing brush fence on the property boundary with 5a Hampton Street.

• The existing noise from car detailing is above the criteria of the Environment Protection (Industrial Noise) Policy and possibly the World Health Organisation at 3 Hampton Street. The proposed carpark will provide a buffer between this activity and the closest residence that will effectively reduce the noise from this activity and the carpark combined to a level well below the criteria of the Environment Protection (Industrial Noise) Policy and World Health Organisation at the closest residence." (statement p.7)

It would seem that Mr Turnbull's conclusion also relies upon the installation of a fence immediately adjacent Mr McKenzie's brush fence, which fence extends along the eastern boundary of the McKenzie property a distance of about 10.5 metres from Hampton Street.

Mr Ellis gave expert planning evidence. In essence he could see no conflict between the intent and effect of the proposed use and the relevant provisions of the Development Plan which gave direction to the future development envisaged in the zone. In this respect, Mr Ellis opined that the proposed use integrates the subject land with its neighbour (Solitaire Jaguar) in such a way as to meet the explicit intent of Zone Objective 1. He also opined that, although Zone Objective 2 speaks about a desire to foster medium density residential development near the rear of the zone boundary, the scale and intensity of the proposed development is not in conflict with the direction established by that objective.

It was also his view that the proposal, by "integrating" the subject land with Solitaire Jaguar and "rationalising" the operations of that business, the intent and direction established by Zone Principles 12 and 15 had been adequately achieved. In reaching this conclusion, Mr Ellis had regard to several design features which have been provided in the proposal to reduce or eliminate the transfer of environmental effects to the adjacent residence and on page 9 of his statement, Mr Ellis opined as follows:-

"The proposal will introduce a car park to the land now occupied by detached dwellings. This will remove the supervision of the boundary of the neighbour's property which would arise from the presence of occupants in the dwellings, decrease the security of the boundary fence and introduce a slightly higher level of activity on the subject land at certain times. There would be different patterns of use and a reduction in the amount of sound attenuating material on the site.

To counter these effects, the proposal includes a secure perimeter to eliminate the security concern, a high masonry wall on the boundary for the neighbour's security, sound attenuation and enclosure of views, containment of light and removal of potential sources of noise.

In my view, the design, construction, landscaping and operation of the proposal set out in the application are such as to minimise the impact of the development on the adjacent dwellings and occupants."

Mr Manos called on Mr Marchetti, a qualified and experienced planner to assist the Court. Mr Marchetti saw the proposed use as an unacceptable intensification of the Solitaire Jaguar operations and thereby opening up the possibility of increasing the existing interplay between Solitaire Jaguar and Solitaire Audi. Although Mr Marchetti sees no conflict between that which is intended and Zone Objective 1, he opines that, by virtue of the scale of the proposed use, the reliance on Hampton Street to provide the sole means of access and the potential for increased traffic movements and car delivery activities in the street, the proposed use is not suitable as a transition to uses in the adjoining zone as called for in Zone Objective 2.

Mr Marchetti was not altogether opposing the concept of extending and integrating the subject land with the Solitaire Jaguar site. He saw merit in removing one dwelling (No.3 Hampton Street) to provide additional area for storage and carparking and a more intense use of the "L" shaped display area on the curtilage of the main showroom adjacent both roads.

Mr Manos also called Mr McKenzie. His evidence was not of an expert nature. However, as the resident most affected by the proposal his opinions are not to be overlooked. In summary form his evidence and views are as follows:-

He and his wife purchased the property in 1999 in preparation for his retirement which is scheduled in June or July of this year.

Although he was not aware of the presence of a different and commercially oriented zone immediately to the east of his property he was aware, before purchase, of Solitaire Audi and Cornes Toyota. The operations of the former were and continue to be of no concern in its current configuration. The operations of Cornes Toyota continues to disturb his family's lifestyle.

Mr McKenzie somewhat reluctantly accepts that, provided the carparking facility is operated strictly as proposed, it could successfully co-exist with his dwelling. He confirmed that items 1-8 in Exhibit A8 are the necessary conditions for successful co-existence.

His real concern is that associated with the potential for breaching the wall to interconnect Solitaire Audi with the subject land. On this issue he has pursued, without success it appears, discussions with Mr Smoker, the intent of which was to put in place guarantees that would prevent the interconnection.

He expressed concern as a layperson that the Development Plan was not clear in its construction and did not necessarily afford his property the amenity protections that he thought should apply.

All in all, Mr McKenzie's evidence was thoughtful, balanced and fair in the circumstances. It would appear that he and Mr Smoker have attempted to resolve the issues of concern to him and his family outside of this Court and they are to be commended for that approach.

I have earlier defined the principal issues around which this appeal revolves. As to the first matter, there is no disagreement between Mr Ellis & Mr Marchetti that, since the proposed use provides a facility directly associated with and for the benefit of the existing motor vehicle related service, the use is consistent with Objective 1 for the Mixed Use (Belair Road) Zone. However, not for the first time Mr Manos argued that Objective 1 is a statement of "what is" and not "what is desired (in the future)". His reasoning revolves around the use of the term "accommodation of a range of uses....." and the provisions of Zone Principles 11, 12 and 13 which, when read together, seek to constrain the expansion of non-residential development in certain circumstances.

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.

The central thrust of Objective 2 seeks to provide a satisfactory interface with Belair Road mainly from a traffic management perspective and an appropriate transition to uses (in this case) within the Residential (Central Plains) Zone.

Having regard to the general directions established by this objective it appears to me that the proposed development does not stand in conflict with it. The evidence of Mr Ellis and Mr Foley speak to the merits of the proposal in relation to visual qualities and traffic generation respectively. Although Mr Marchetti indicated some concern over traffic there were no issues raised in his evidence in that respect that would have me prefer his opinion to that of Mr Foley.

However, Objective 2 does not stand alone. It is enhanced by the text which follows the objective. A close reading of this text will show, I think, that its purpose is to give meaning to the concept of "transition" or more correctly giving guidance as to what may constitute an acceptable transitionary use between the subject land and land uses in the adjoining zone. It speaks of mixed uses, residential uses near the rear boundary of the zone and mixed uses either of a low intensity or small scale retail or office/consulting rooms. Insofar as an acceptable transitionary use may be determined by the scale and nature of its operation, the text also speaks of uses which "generally performs a servicing role primarily for nearby Mitcham and to a lesser extent Unley residents".

Having considered the text following Objective 2 it is evident that it is written in a way in which there is a considerable scope for general "compliance". It provides options for activities which might reinforce the central direction established in Objective 2. Upon first reading it is clear that the proposal conflicts with that aspect of the text which seeks the "opportunity for integrated medium density development toward the rear of sites". That said, it seems to me that the evidence indicates that the proposed use is unlikely to produce environmental impacts that would label it as anything other than small scale and an activity of low intensity. Those characteristics, I think, are the essential ingredients of an appropriate transition between the two zones. For these reasons I am also of the view that the proposed use is consistent with those provisions of Principle 15 which seek to avoid the transfer of environmental impacts to neighbouring residential development.

In reaching this conclusion I have also had regard to the existing environmental and land use conditions. Much was said during the hearing about the impact of the Cornes Toyota operation on the local environment. In 1999 the Council enabled the establishment of a further carpark with access from Hampton Street and a linkage to the site proper. Further westerly expansion has occurred by the purchase and use of an adjoining carpark again with access to Hampton Street (originally associated with consulting rooms). These facilities, together with the main service and sales operations, have established a significant and quite intense land use in the immediate vicinity of the subject land and adjoining zone. It is a use legitimately in place and one must acknowledge that its operations (which predates an inconsequential variation to the number of vehicles allowed for display) have had a long standing and unfortunate impact on the amenity of the locality.

I have also had regard to Mr Marchetti's opinions about splitting and redesigning the entry and exit points to the subject land. He opines that such an arrangement would encourage left hand turns from the subject land, thereby directing vehicles toward Belair Road and away from the residential area. As well intentioned as the suggestion is, I think its effect will be marginal at best. Mr Foley's evidence does not point to a problem in this respect and if any directional assistance is required it can be done by internal signage.

When Principles 11, 12 and 15 are read together they speak about the desirability of non-residential uses integrating with adjoining land and amalgamating and rationalising sites and, in the case of a motor vehicle related use, not increasing its floor area or intensity. These provisions, it seems, support the general propositions of Objective 2. Having regard to these principles I am of the opinion that the proposed use is in adequate compliance for the following reasons:-

Although I do not accept Mr Ellis' opinion that the proposal is more of a "rationalisation" than an "intensification", the scale of the Solitaire Jaguar operation by virtue of the inclusion of the proposed use still remains relatively low or modest. The weight of evidence suggests that the external impacts will be similar to that which would be accorded to small scale and low intensity commercial operations and in some respects (particularly noise emissions) it may be comparable with a medium density residential development. Granted, the intensity of the existing use and that of Solitaire Jaguar will be elevated from that which exists today. Notwithstanding, the external impacts that arise from this change in intensity will be acceptable particularly in the existing land use/activity circumstances and in the context of the zone which generally supports the proposed use.

The proposed use, in one sense, amalgamates land that hitherto could be used as a separate and distinct land use consistent with the directions set by the zone objectives. That said, Mr Manos is correct in saying that the extent of integration is short of what could be undertaken. Nonetheless, certain existing traffic and vehicle storage inefficiencies will be addressed as a result of the proposed use. There is little doubt that Principles 11, 12 and 15 recognise and are designed to alleviate the particular problems that are commonly associated with "motor vehicle related uses" (which is more of a generic term for various land uses including but not limited to service trade premises). Having closely examined that which has been proposed, I can detect little if any in its characteristics which are likely to be the cause of the type of impacts sought to be averted. Furthermore, properly conditioned, any fears of the subject land being utilised in a way other than that which has been presented to the Court can be dispelled.

The relationship between the proposed use and the Solitaire Audi operation was an issue pursued by Mr Manos. The prospect of the wall of Solitaire Audi being breached thereby allowing a direct connection between the activities to occur is a "consequence" of the proposed use that Mr McKenzie feared most. At first blush I think that Mr McKenzie's fears may well be realised if such a connection were to occur.

However, such a proposal is not before me. Although the proposal has all the hallmarks of having been designed with such a connection in mind Mr Smoker indicated in his evidence that the layout within the Audi building was not sympathetic with such a connection being facilitated. I further explored the matter with Mr Smoker. On pages 125 and 126 of the transcript I pursued the question of the true intent of the proposal particularly in respect of the potential for an interconnection between the subject land and the Solitaire Audi site. On page 126 of the transcript the following question by me and answer by Mr Smoker summarises my enquiry and his response::-

"Q. I think you have said to the Court that the proper intention of this car park is as you have described it and not to create the potential for an interconnection to be created. Is that correct.

The Court can do no more than it has to establish the real intent of the proposal. In the end Mr Manos expressed a fear that the Development Act 1993 and, by implication, the Development Plan may not be sufficient to confer power upon the Council or Mr McKenzie to prevent a future connection between Solitaire Jaguar and Solitaire Audi. His fear may or may not be well founded and it is not for the Court in this instance to find one way or the other on that question. If the failure of planning policy is at the root of the problem the appropriate course is to amend the policies. It is not appropriate to speculate on future intentions as a basis for assessing the merits of a current proposal in the circumstances now before the Court.

Apparently Mr McKenzie has sought a form of written agreement from the applicant, the effect of which would be to prevent the connection being made. For commercial reasons Mr Smoker has not agreed to enter such an arrangement. However, through Mr McElhinney he has agreed to the imposition of a condition of consent should my decision uphold this appeal.

Mr Manos further argued that the subject land could be better utilised and a more appropriate transition created if the extension to the use involved the demolition of No.3 Hampton Street only and the current external display area adjacent the existing showroom be used more intensely. It is not for this Court to decide against a proposal on the basis that a better solution may be occasioned and accordingly I do not take his submissions in this respect into account. Notwithstanding, the Court notes that his solution would have persisting in the zone a detached dwelling (No.5 Hampton Street), which land use is listed as non-complying in Zone Principle 20.

For the foregoing reasons I do not consider the Council's reasons for refusing the grant of provisional development plan consent enunciated in its decision notification and through Mr Manos are well founded. I am of the view that the proposal is reasonably consistent with the directions established for the zone and the consequences of any departure are acceptable in light of the circumstances. In my view, the circumstances that prevail provides considerable scope in the planning approach to be applied. In the end, that which will result from the proposed use will not change the character of the zone from that which is intended when reading the provisions of the zone as a whole and in light of the more general provisions of the Development Plan (particularly Council Wide Principles 75 and 89). In reaching this conclusion, I am also aware of the fact that the subject land is adjacent a zone boundary and located within a locality which experiences environmental impacts from Belair Road and Cornes Toyota. These circumstances have brought into my mind that which fell from the decision of His Honour Jacobs J in Lanzilli Holdings Pty Ltd v Corporation of the City of Campbelltown (1983) 32 SASR 81 in relation to the amenity standards to be expected at the interface of residential and non-residential zones.

As I have said the proposal is reasonably consistent with the Development Plan. However, such a consistency would quickly dissolve if the flexibility sought by Mr Smoker were to be exploited. For example, in the event that the composition of vehicles intended to utilise the carpark were to change or the carparks allocated adjacent the McKenzie property were to be subject to high vehicle movements or the car detailing activities "spill-over" into the subject land, unacceptable transfer of environmental impacts could occur and should thus be avoided.

Therefore, I consider the proposed use, properly conditioned, will satisfy the relevant provisions of the Development Plan to an adequate extent. I indicate to the parties that I intend to reverse the decision of the Council and grant provisional development plan consent subject to conditions appropriate to the circumstances put before the Court. I invite the parties to make submissions to me as to the nature and extent of those conditions.

I will hear the parties on conditions on Thursday 6 June 2002 at 9.15am.