|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Environment Resources and Development Court of South Australia Decisions |
Last Updated: 28 June 1999
Judgment of Environment, Resources and Development Court
Respondent CITY OF ONKAPARINGA:
Counsel: MR GEORGE MANOS - Solicitors: MANOS & ASSOCIATES
Respondent WILLUNGA WALDORF SCHOOL INC:
Advocates: MR ANTHONY FRENCH-KENNEDY
ERD-98-792
Judgment No. OE39
22 June 1999
(His Honour Judge Bowering, Commissioner Hutchings and Commissioner Hodgson)
Kereopa and Susan TAWERA
v
CITY OF ONKAPARINGA
and
WILLUNGA WALDORF SCHOOL INC.
ERDC No. 792 of 1998
THE COURT DELIVERED THE FOLLOWING JUDGMENT:
1 This matters concerns the extension of a school at Willunga.
2 On 21 January 1998, the Willunga Waldorf School applied to the City of Onkaparinga for what was described as "high school development"; in particular the extension westwards of the existing Willunga Waldorf Primary School campus to accommodate a high school. In accordance with Section 38 of the Development Act, 1993, the City advertised the proposed development and received 15 representations; some for, some against. On 18 June 1998, the City granted provisional development plan consent to what it deemed to be an "(Educational Establishment) Addition to an existing educational establishment - secondary component" with conditions thus:
"1. The development shall proceed in accordance with the plans and information submitted as part of the application, except where varied by the following conditions.
2. The landscaping species as detailed shall be planted prior to the construction of any buildings which may be constructed on the subject land.
3. Should any plant die or become seriously diseased, such plant shall be replaced by a plant of similar nature and growth immediately, to the reasonable satisfaction of the Council.
4. All buildings shown on the plan approved herein shall require a separate Development Approval.
5. All buildings shall be connected to the Common Effluent Disposal scheme, to the satisfaction of the Council.
6. All loading and unloading associated with the school shall take place within the confines of the site.
7. All stormwater not utilised within the confines of the site shall be discharged into the swale within the reserve abutting the northern boundary of the school site, to the reasonable satisfaction of the Council.
8. The school shall remain bound by previous conditions of consent which have not been expressly superseded by this consent.
9. All parking areas, manoeuvring areas and other areas subject to vehicular movement shall be constructed of an all-weather surface. Further, that such surfaces shall be suitable treated in order to minimise the generation of dust, to the reasonable satisfaction of the Council.
10. All carparking shall be in accordance with Australian Standard 2390.1 - 1993.
11. All traffic control devices shall be installed in accordance with the Code of Practice for Installation of Traffic Control Devices in South Australia (section 17).
12. Traffic shall travel through the site in one direction as shown on the plans approved herein. Further, that internal signage shall be installed at reasonable intervals which indicate the nature of on-site vehicular movement, to the reasonable satisfaction of the Council.
13. All carparking spaces shall be clearly line marked, to the reasonable satisfaction of the Council.
14. During construction works, appropriate measures be undertaken to minimise dust emanating from the site."
3 On 1 July 1998, two of the representors - Kereopa and Susan Tawera - being aggrieved by this decision, appealed. The matter went to the conference required by Section 16 of the Environment Resources and Development Court Act, 1993, but no settlement was reached so the matter came to this hearing at which time Messrs Stuart Henry and George Manos, both of counsel, represented Mr and Mrs Tawera and the City of Onkaparinga respectively. Mr Anthony French-Kennedy represented the School. Evidence was given by Mr Tawera, Mr French-Kennedy, Mr Damien Lethbridge (supervisor), Mr Peter Maddern (consulting engineer), Mr Alan Rumsby (planning consultant), Dr Neil McKenzie (engineer), Mr Nicholas Brooks (agronomist), Mr Steven Brenato (viticulturalist), Mr Andrew Bragg (building designer) and Mr Magnus Heinrich (town planner).
4 The Willunga Waldorf Primary School is situated on land adjacent to Jay Drive, which serves both residential and industrial areas on the western extremity of the town of Willunga. Between Jay Drive and the eastern boundary of the school land is a reserve, about 14 metres in width, which contains a drainage swale. This joins another reserve (about 20 metres in width) also containing a drainage swale that separates the school land from a number of industrial allotments to its north. The school was first established on a small parcel of reserve land at the junction of these two drainage reserves where Jay Drive curves to the west. Since then, the school has expanded onto a rectangular site of some 124.6 x 100.6 metres. Buildings containing single classrooms, assembly areas, support services and the like are scattered over the site with lawns and gardens between them.
5 The proposed secondary school is to be accommodated in an expansion of this primary school campus to the west; ie, on a parcel of land measuring 109.8 metres (westerly) and 138.8 metres (north-south). The high school classrooms and ancillary buildings will be distributed around an oval and beyond them will be a perimeter road. Vegetated strips are to be established along boundaries; that on the northern side to be 3 metres approximately, and those on the western and southern, 20 metres approximately.
6 East and south of the existing campus are residential areas containing relatively new detached dwellings. To its north-east is a public open space being developed with playing fields and to its north is the aforementioned industrial area. There is a number of industrial and/or commercial establishments in this area; from east to west, a shed used for purposes unknown, a beekeeper, a bus depot and an establishment manufacturing septic tanks and similar concrete products (Septreat). To the west of the campus is an almond grove and it is upon part of this that the high school extension is proposed. Some 75 metres west of the western boundary of the proposed extension - ie, at the western boundary of the almond grove - is the property of Mr and Mrs Tawera. It is given over to the cultivation of winegrapes which are supplied to wineries in the McLaren Vale wine district. There are other vineyards in other ownerships north of the Taweras' property.
The Development Plan
7 The existing primary school lies within the Rural Enterprise (Conservation) Zone. As shown on Figure 1, it takes up a re-entrant portion of the Zone so that on its northern side is the Industrial (Willunga) Zone, which encompasses the aforedescribed industrial and commercial establishments, and on its eastern and southern sides, the Residential (Willunga) Zone which encompasses the residential areas also described above. The proposed development extends the school's campus further (westwards) into the Rural Enterprise (Conservation) Zone.
8 The Rural Enterprise (Conservation) Zone covers a very large part of the Rural Area shown on the Willunga (DC) Structure Plan - Map Wi/1 (Overlay1). Within this area are found most of the wineries, vineyards and associated activities for that part of the "McLaren Vale" wine region within the Willunga (DC) area. The "Introduction" to the Zone contains the following statements:
"Land capable of rural production is a precious and finite resource. A progressive alienation of good productive land has occurred on the rural/urban fringes of metropolitan Adelaide in the past in defiance of the wise use and allocation of land for sustained long-term agricultural production."
""Rural Enterprise (Conservation)" is a term that recognises the need to seek and reconcile methods of primary production with retention of land as a basic, irreplaceable resource. Conservation of land, vegetation and water through appropriate land use, subdivision and management practices is necessary for sustainable development and long-term productivity."
9 Objectives include
"Objective 1: The protection of land as a finite resource for primary production."
"Objective 2: The encouragement of rural production and in particular the retention and expansion of vine and other agricultural production within the area in an environmentally sustainable manner."
"Objective 3: The preservation and enhancement of the rural character of the area."
"Objective 7: Encouragement of the establishment of appropriately scaled "value added" industries to utilize local rural production, including the establishment of niche market products, within suitable areas of minimal landscape intrusion and environmental impact."
"Objective 11: Achieve a clear edge separation from township development through buffer areas of compatible rural activities."
"Objective 13: Encourage development to have due regard to occasional rural related land production practices including dust generation, noise, spray drift, hours of operation and traffic movement."
10 Statements following the Objectives include:
"The Rural enterprise (Conservation) Zone is part of one of the most important productive land resources close to the settled areas of metropolitan Adelaide and associated marketing and transport outlets."
" .... The public and the rural community have expressed concern about the potential further conversion of land for unproductive rural purposes when the land is capable of primary production. Rural land should not be allowed to be used unproductively. ...."
"The Rural Enterprise (Conservation) Zone should be encouraged to develop further as a vineyard and agricultural area. Policies should be directed towards the maintenance of its existing rural character, its long-term retention as a basic resource of land capable of a range of agricultural production and of accommodating associated "value added" industries ....".
11 Principles of Development Control for the Zone include:
"1 Development should be primarily for the maintenance and establishment of rural enterprises in locations where there will be minimal landscape intrusion and environmental impact, including:
(a) agricultural uses which utilize the natural resources of the Willunga Basin;
(b) a range of horticultural pursuits including open market gardening, viticulture, floriculture, orchards, cropping, wholesale plant nurseries and commercial turf growing, commercial forestry; and
(c) appropriately scaled "value added" activities related to local produce and supporting local agricultural markets."
"2 Development which would remove productive land from a agriculture, or diminish its overall productivity for primary production should not be undertaken, unless the land is required for essential public purposes."
"4 Development should take place on land which is suitable for the intended use having regard to its location and condition, the objectives for the zone in which it is located, and to the occasional rural related land practices associated with the zone including dust generation, noise, spray drift, hours of operation and traffic movement."
"10 Development should not be undertaken if the construction, operation and/or management of such development is likely to result in:
....
(e) dust;
(f) noise nuisance;
...."
"12 Buildings, including structures, should be designed in such a way and be of such scale as to be unobtrusive and not detract from the desired rural character of the zone.
(a) the mass of buildings should be minimized by variations in wall and roof lines and by floor plans which complement the contours of the land;
(b) large eaves, verandahs and pergolas should be incorporated into designs so as to create shadowed areas which reduce the bulky appearance of buildings; and
(c) the mass of buildings should be minimized by having separate vehicle storage areas."
"13 External materials of buildings should:
(a) be of natural colours and textures so as to be unobtrusive, blend with the natural rural landscape and minimize any visual intrusion; and
(b) have surfaces which are of a low light-reflective nature."
"17 Native trees, shrubs and ground covers should be established to screen development, including scree slopes created as a result of the excavation and or filling of land, in such a way that the bushfire hazard is not increased. Screening mounds may also be appropriate."
12 The following general provisions of the Development Plan are also noted.
"Metropolitan Objective 1: Orderly and economic development."
"Metropolitan Objective 2: A proper distribution and segregation of living, working and recreational activities by the allocation of suitable areas of land for those purposes."
"Metropolitan Objective 20: Appropriate community facilities conveniently accessible to the population they serve."
"Metropolitan Objective 50: The retention of rural areas for agricultural and pastoral purposes and the maintenance of the natural character and rural beauty of such areas.
Land in rural areas should continue to be used primarily for agricultural purposes. Defining land for rural purposes will assist in a more intensive use of the land for food production, prevent land speculation and the uneconomic spread of the metropolitan area."
"Metropolitan Objective 52: Development of an urban character outside the metropolitan area contained in country townships."
13 The provisions for the Rural Enterprise (Conservation) Zone evidence a strong and unequivocal strategy to the effect that "land capable of rural production is a precious and finite resource" to be retained "as a basic irreplaceable resource". A high hurdle is therefore raised over which all development - whether of a rural or urban kind - must jump for consent. What then is the challenge for the development which is the subject of this matter?
14 Any proposed development must not only be considered against the provisions of the relevant Development Plan but also be considered having regard to the physical circumstances of its site and locality. Given the complexities in the formulation and application of planning policies, the situation arises from time to time that the intentions of zones, policy areas, precincts and the like, are at odds with the land uses and buildings over which they are superimposed and the objectives and principles for the zones must therefore be read accordingly. (McMillan v Salisbury City Council & Ors 1990 69 LGRA 359).
15 The Willunga Township Structure Plan (Map Wi/1 (Overlay 1) Enlargement A) shows a small township set within a rural area. On its west side the demarcation between the township and the rural area is clear. In the vicinity of the subject land, this demarcation separates the area delineated as Rural from Living, Open Space and Industrial areas. The Living and Open Space areas are within the Residential (Willunga) Zone and the Industry area is within the Industrial (Willunga) Zone. The Rural area forms part of the Rural Enterprise (Conservation) Zone. This clear demarcation is therefore carried through from the general level of the Structure Plan to the more precise detail of the zoning map and is underlined to an extent by the objectives for the zones. Those for the Rural Enterprise (Conservation) Zone have been referred to above but we again note that the aim of its Objective 11 is to "achieve a clear edge separation". Objective 2 for the Residential (Willunga) Zone seeks: "Residential development designed and sited to maintain the country township and village character of Willunga." and Objective 2 for the Industry (Willunga) Zone seeks the "Provision of local commercial and industrial activities intended primarily to serve Willunga township and the district surrounding it."
16 Such are the intentions of the Plan and, in the main, the physical circumstances of the locality align with them. There is a distinct demarcation between rural land (viz, the almond grove and vineyards) and urban land (viz, the detached dwellings fronting onto Manning Street and the business premises in the industrial estate being developed around Jay Drive). The existing primary school has blurred this to some extent by pushing the urban frontier, so to speak, westwards onto rural land and into the Rural Enterprise (Conservation) Zone. However, we do not see this as reflecting the intentions of the Plan in any meaningful way.
17 Notwithstanding this distinct demarcation, there may be little point in maintaining it if the rural land is unsuitable for rural uses either because its natural attributes are degraded or because the impact of adjoining urban activities may unduly effect its management. In the situation now before us, we cannot conclude that this is so. There are vineyards obviously maintained in good heart. There is an almond orchard which, while not maintained, could either be rejuvenated or replaced by viticulture or another form of horticulture.
18 There was lengthy evidence about the interaction between vineyard management and adjoining urban uses such as residential, industrial and most particularly, educational. The use of gas guns and other bird scaring devices are part and parcel of vineyard management. Mr Tawera is concerned that the noise from his gas guns will so irritate students and staff of the proposed school extension that they will take steps to restrict his usage of them. Mr French-Kennedy, on the other hand, submitted that if Mr Tawera modified their usage, for example, by facing them away from the school, no nuisance would be caused. The spraying of vines is also integral to vineyard management and concern was expressed that "overspray" could be harmful. The school proposes a buffer of trees along the western and southern boundaries of the secondary school extension; ie adjoining the land now under almond orchard. These trees, if of appropriate species, and on a buffer 20m wide would "catch" spray before it descended onto the school land. However, the trees themselves may have a detrimental effect on the horticultural and/or viticultural use of the adjoining land (if not that of Mr Tawera) by the casting of shadows and the growth of roots.
19 Most of the evidence about impact was concerned with the impacts of the proposed school extension on the Tawera's land and vice versa. However, our concern is not so much with these but rather with the extension of the school upon the adjoining land which is now under almonds. Although the almond grove is not well maintained, it is prime agricultural land and the extension of the school is highly likely to prevent its full use in accordance with the purpose of the Rural Enterprise (Conservation) Zone.
20 These issues underline one of the basic reasons for town planning; ie, the separation of incompatible uses by way of zoning. While, over the decades, the design, arrangement and management of some uses have been modified so that, in appropriate circumstances, they can be mixed, there comes a point where the incompatibility between particular uses is so great they cannot reasonably co-exist. The typical situation is one where industry and residential development and/or community uses are juxtaposed. Having regard to the way that rural development has evolved, this situation now includes primary industry as well as secondary industry. Agriculture, horticulture and viticulture all have management practices that produce noise, dust, smell, traffic and the like, often well out of hours; a situation demonstrated by this matter.
21 Having, some years ago, appropriated part of a zone which, in the words of objective 2 for that zone, is for the "encouragement of rural production", the school now seeks to expand further into it, not only taking land out of rural production but also creating the potential for increasing conflict between incompatible uses. In addition, this expansion will increase the possibility of conflict between the school, as a community use, and secondary industry. The school extension will bring pupils and teachers much closer to Septreat, a manufacturing industry involving noisy processes, most of which take place in the open. The evidence was that noise levels are high from Septreat and, even from time to time, very high.
22 In this light, we note that Principle of Development Control 4 of the Industrial (Willunga) Zone states:
"No development should be undertaken which, either by virtue of the bulk of any building or structure, or the generation or emission of excessive noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products or grit, would be likely to detrimentally affect the amenity of the locality."
There was no evidence to suggest that the Septreat plant presently has a detrimental effect on "the amenity of the locality", inasmuch as the latter is characterized by industry - either primary or secondary - and other commercial activities. The school extension would change the nature of Septreat's locality, could bring Principle 4 into play and thus constrain Septreat's operations. This problem is likely to arise because it is proposed to use the subject land for a purpose contrary to the purpose of the zone in which it lies. For such a problem to confront an industry in an industry zone flies in the face of accepted planning principles.
23 Principle of Development Control 2 for the Rural Enterprise (Conservation) Zone states:
"Development which would remove productive land from agriculture, or diminish its overall productivity for primary production should not be undertaken, unless the land is required for essential public purposes."
We have given careful consideration as to whether the proposed secondary school extension is "for essential public purposes". A whole range of community activities and public utilities are for public purposes; some essential, some desirable. There is no doubt that schools constitute a public purpose. However we do not think that the school in this matter can be classified as an "essential" public purpose. The proposed secondary school is to further extend a campus for those wishing to have their children educated along the lines of the Rudolf Steiner philosophy. Pupils come from far and wide to the Willunga Waldorf School. While many come from the township of Willunga and the McLaren Vale district, it cannot be said that the school provides an essential service such that it needs to be placed within the township as are the Willunga Primary School and Willunga Secondary School (see Willunga Township Structure Plan - Map Wi/1 (Overlay 1)).
24 Finally, counsel drew our attention to a by-law under the Local Government Act, 1934 dealing with the use of bird scaring devices. We do not regard this by-law as relevant in this matter and have no view as to its validity.
Conclusion
25 The proposed extension is well related to the layout of the existing primary school; individual classrooms are to be surrounded by open areas and joined by pedestrian paths, carparks are to be well distributed and considerable vegetation, in addition to the buffer area, is to be established. In all it is a thoughtful and reasonable site-planning solution and from the point of view of the school makes sense.
26 Notwithstanding, it clearly runs counter to the provisions of the Development Plan and the circumstances of the locality. It is the Court's decision that it be refused and the decision of the Council reversed.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/sa/SAERDC/1999/39.html