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Environment Resources and Development Court of South Australia Decisions |
Last Updated: 3 April 2000
Decision of Commissioner Hutchings
Respondent REGIONAL COUNCIL OF GOYDER:
Counsel: MS SYBELLA BLENCOWE - Solicitors: MINTER ELLISON
Respondents T W AND D E BULL:
Advocates: MR T W BULL
ERD-99-1032
Judgment No. [2000] SAERDC 2
12 January 2000
NAOMI AND TIMOTHY BUILDER
v
THE REGIONAL COUNCIL OF GOYDER
and
T W and D E BULL
ERDC No. 1032 of 1999
THE COURT DELIVERED THE FOLLOWING DECISION:
1 This matter concerns an antique shop at Hanson in the Mid-North.
2 On 17 August 1999, the Regional Council of Goyder granted consent to "change of land-use - residential to residential/business (retail antique shop)". The applicants were Mr and Mrs Terrence and Dilys Bull who had submitted their application on 22 June, 1999. Six conditions were attached to the consent; viz,
"1. Subject to any conditions of this consent, all work being carried out and the use operated in accordance with the plan and information submitted with and forming part of the application.
2. The site being maintained in good order and in a clean and tidy condition to the reasonable satisfaction of Council at all times, with the storage of secondhand goods being confined to the space within the dwelling, verandah and its outbuildings and to not overspill onto the adjoining roadway or eternal (sic) onto the site itself.
3. The use being always conducted in a manner as to minimise undue nuisance or adverse affect to the amenity of the locality and the living conditions of residents in the vicinity of the site by way of noise, dust, transport of supplies, goods, etc and their loading/unloading.
4. This approval is limited to the specific form of activity applied for, namely the storage and sale of secondhand goods and antiques associated with the existing dwelling and is in no way for the retailing of other services, merchandise or foodstuffs or the like.
5. The existing galvanised iron fence across the front boundary of the land to be painted the same colour throughout, to be a neutral, "earthy" colour (e.g. heritage green) such painting to be of carried out within six months of this approval.
6. The effect or benefit of this approval is limited to the applicants only and is not transferable to other parties or new owners or operators and shall in any event cease upon the sale of the subject land or the cessation of the applicants business."
Letters forming part of the application set out that:
"It is proposed that the busniss (sic) will be open seven days per week 9am - 5.30pm, excluding good friday and christmas day."
and that portions of the Bulls' dwelling to be used for the business would be those as shown on Figure 1 (p51 of the Copy Documents, Exhibit R1).
3 Mr and Mrs Timothy and Naomi Builder who had earlier lodged a representation, appealed the decision of the Council. As required by Section 16 of the Environment Resources & Development Court Act 1993, a conference was held but no compromise was reached so the matter came to this hearing at which time Ms Sybella Blencowe, of counsel, represented the Council, Mr Kym Tredrea, also of counsel, the Builders and Mr Bull represented his wife and himself. Evidence was given by Ms Builder, Mr Bull, Mr Barry Wright, an antique dealer in Burra, Mr Christopher Bentley who owns the property adjoining the subject land on its south and Mr Stephen Hooper, a town planner.
4 The settlement of Hanson lies about 12 kilometres south-west of Burra at the intersection of two arterial roads; the Barrier Highway linking Adelaide and Broken Hill and that to Farrell Flat and the Clare Valley. It is very small, consisting of three dwellings - the Builders', the Bulls' and that of Mr Bentley. Mr Bentley lives in Adelaide and occasionally stays at Hanson. His property consists of a former church and a building marked as a Methodist Hall. This latter is the dwelling. Both buildings appear to be in reasonable repair and have neat yards. The Builders' home lies on the north side of the subject land. It consists of a new, metal clad structure of attractive proportions and finishes. To its front is a small stone structure which was the chambers of the former District Council of Hanson. Mr and Mrs Builder intend renovating this and linking it to their dwelling by way of a gallery or conservatory. It would then become their dining/living area. The immediate surrounds of this dwelling and the substantial yard to its rear are neatly and imaginatively laid out - including an area set aside as a vegetable garden.
5 The home of Mr and Mrs Bull is in the style of a typical mid-north farmhouse of earlier years. It has a pitched roof and is surrounded on all sides by deep verandahs. It seems it contained a post office until about 30 years ago. It is placed close to the street boundary behind a waist-high green palisaded fence. A pleasant garden of ground cover has been established on the roadway between the fence and the pavement. The boundary fence south of the dwelling is of unprepossessing, partly painted galvanised iron. Elsewhere boundary fences are of post and wire or similar construction and the considerable amount of household paraphernalia scattered somewhat untidily about the subject land can be seen through these. Similar paraphernalia is situated on the verandahs. The area behind the galvanised iron fence contains trees, shrubs and garden bed.
6 West of the dwellings is a large, well-treed recreation reserve. This used to contain a district hall. Demolished in recent times, all that remains is a cairn noting its former existence and its separate toilet block. This block is still in good repair and is used by travellers and occasional caravaners who park on the reserve overnight. North of the dwellings is the abandoned Hanson School. Clumps and lines of Eucalypts and other natives grace the yards and boundaries of the three residential properties.
7 West Terrace is the settlement's street. While unpaved, its surface is well-formed and in good repair. At its southern end there are two connections to the Barrier Highway and on its northern end, one. On paper, Hanson also has a South Terrace and Wells, Watts and Philip Streets with allotments between. These though, have never been taken up and the land east of the dwellings is used for grazing. Wells Street serves as a rural road.
8 Figure 2 sets out the Development Plan's zones. The Bentley and Bull properties lie within the Settlement Zone, the Builder property within the Rural Zone. The Plan has this to say as "Background" to the "Hanson Settlement":
"Hanson is generally underdeveloped. Development should not be encouraged as greater community economies can be achieved by supporting the development of existing substantially developed townships. The settlement of Hanson is presently well vegetated which feature should be retained.
The Hanson Township Zones Plan Map BuB/5 shows the general structure for the settlement, including containment of development by the exclusion of large areas of divided land in the rural area."
Its Objectives are:
"Objective 1: All development contained within the defined Settlement Zone boundary.
Objective 2: A well vegetated settlement not encroaching on the adjoining open rural lands."
and the Principles of Development Control are:
"1 Development should be primarily for residential purposes.
2 No development should encroach on the adjoining rural lands.
3 Development should incorporate landscaping for screen, shade and shelter and a more attractive streetscape."
9 These provisions for Hanson are within the context set by the Mid North Plan (Fig MN/1) and the Burra Burra (DC) Structure Plan (Map BuB/1). The latter identifies a number of Country Townships; viz. Booborowie, Farrell Flat, Hanson, Mount Bryan and Redbanks. Notwithstanding, the text of the Plan identifies Hanson as a "Settlement" rather than a "Township". Given the tiny size of Hanson as compared, for example, even with its nearest neighbour - Farrell Flat - such an identification is apt. Taking into account then these provisions, noting that Objective 2 in the Council-wide part of the Plan seeks to "consolidate country townships" because "the existing townships perform a major function in the economic, social and cultural development of the district .... "and that the Background Statement to the Council-wide provisions mentions, inter alia, "the need to promote tourism", is the proposed development appropriate within Hanson?
10 In the past, Hanson consisted of a school, a district hall, a council chambers, a church and hall, and a dwelling apparently also used as a post office. In other words, it was a centre for a rural locality. With the passing of the years, many such places in the Mid North have been abandoned and have become derelict. This has not occurred with Hanson. Although it has shrunk, it is surviving as a small residential enclave. Perhaps the reason is that its remaining buildings (including the former council chambers) are fine examples of their times and styles, have (or are) being well maintained and renovated and sit within a pleasant, well-treed pocket that contrasts with the surrounding open plain. It is separated just enough from the busy arterial road not to be bothered by traffic. To be injected into this enclave is a business which, Mr and Mrs Builder opine, will introduce people, cars, buses, noise and, in particular, dust; in other words, an uncharacteristic and inappropriate busyness; one which also, according to Mrs Builder, will cause the Bulls' dogs to bark far more than one should expect in a domestic situation. The evidence of Mrs Builder and Mr Bull about the number of visitors to the existing situation on the subject land and the detrimental impacts they cause was quite contradictory and I do not propose to summarize these contradictions. Suffice to say both gave their evidence sincerely and in a straight-forward manner.
11 Throughout the settled rural areas of South Australia and in the Mid North in particular, there are a considerable number of small businesses selling antique/secondhand/junk goods is a common observation. They can be seen in townships large and small, hamlets and in individual farmhouses. Some stand alone, some are associated with bed and breakfasts or similar small scale tourist accommodation, others with residential uses. Mr Tredrea submitted that the appropriate place for such development is in centre zones or their equivalent. While I understand his reasoning, it is a narrow view having regard to the above and to the Plan taken as a whole. Small scale developments oriented to tourism such as bed and breakfasts and antique/secondhand outlets would not detrimentally affect the residential character of a place like Hanson. Indeed, such non-residential developments could enhance the amenity by reversing dereliction in some circumstances.
12 But is the proposed development small in scale, with physical attributes that enhance the amenity and with operational characteristics that do not detract from it? As a retail outlet it is small in scale; two rooms, the front verandah and part of the south verandah being devoted to display. No conclusive evidence was given that large numbers of people visit it. Indeed, unless there was a sustained promotional campaign, unless hoardings were placed on the arterial road near the north and south entrances to the settlement and/or arrangements made with tour companies, one cannot imagine that this would have any chance of occurring. Some goods kept on the subject land are sold elsewhere; eg, at Paddy's Market in Adelaide. But this has little or no effect on scale or impact; albeit, Mrs Builder evidenced that loading into the Bulls' commercial vehicle occurs on some Sunday mornings at about 6.15am. Mrs Builder also expressed concern about the sorting, cleaning and repair of goods (including the use of power tools) on the northern verandah of the Bulls' dwelling although to what extent this was associated with the business is unclear. In all, I can but conclude that the proposed development is small in scale both as a use and an activity and that, if conducted in a neighbourly manner, would be satisfactory in this locality and with regard to the relevant provisions of the Development Plan.
13 It is clear from the evidence that there is a clash in the lifestyles of the Bulls and the Builders. Even if no retailing of antiques occurred, the Bulls' comings and goings could still produce dust, their pottering about as handypeople could still produce noise from the use of power-tools etc, paraphernalia still could be left untidily in the northern yard, sheds could still be left unfinished and the barking of dogs could still "drive one to distraction". In such an instance, none of these matters would be dealt with by planning legislation, rather by that related to nuisance, environmental impact and the like. However, from the evidence, I can but note that the extent of some of these matters can be laid at the door of the proposed development..
14 With this in mind, I intimate I will grant consent to the proposed development if conditions dealing with the following are added to the six now prevailing:
1. No storage, repair and maintenance of goods for sale on the northern verandah;
2. The planting of screening vegetation along the northern boundary of the subject land at least to a point north of the north-east corner of the dwelling on the subject land;
3. Opening hours to be 10.30am - 5.30pm seven days per week, except Good Friday and Christmas Day;
4. The provision of an informal gravelled (or similar) area for the parking of two cars within the south-west corner of the subject land.
I ask the parties to confer and return at 10.30am in Adelaide on Wednesday 12 January, 2000.
______________________
15 The parties returned. Mr Tredrea submitted a draft list of conditions (Exhibit A3). Lengthy submissions were made by Ms Blencowe and Mr Bull as to their acceptability or otherwise. As a basic issue, Mr Tredrea drew my attention to Council's original Condition 6 which sought to tie the consent to the Bulls and which, he submitted, contravened the principles in Farrow v South Australian Planning Commission (1988) 145 LSJS 284 and City of Charles Sturt v Hatch [1999] SASC 523. I accept this submission.
16 Planning and management issues disputed by the parties were: days of operation, control of vehicular dust, off-street parking, restraint of dogs, advertising to attract buses and advertising on public land. I have carefully considered these submissions bearing in mind that conditions must relate to the subject land, must have some chance of enforcement, must not substantially change the development as proposed and must, in this circumstance, reasonably promote neighbourliness.
17 Accordingly, it is the decision of the Court that provisional Development Plan consent is granted to Development Number 422/54/99 with conditions thus:
1. Subject to any conditions of this consent, the development hereby approved shall be used and operated at all times in accordance with the plans and details submitted with and forming part of the application.
2. The site of the proposed development shall be maintained in a clean and tidy condition at all times with the storage of all second-hand goods or other stock of the business confined to the space within the dwelling, verandahs (except the northern verandah) and its outbuildings and not overspill onto any other part of the subject land.
3. No storage, repair or maintenance of goods for sale shall take place on the northern verandah, or anywhere between the northern verandah and the northern boundary of the subject land. (This condition does not apply to the shed adjoining the north-east corner of the verandah.)
4. The existing galvanised iron fence across the front boundary of the land shall be painted the same colour throughout, to be a neutral "earthy" colour (eg, heritage green), such painting to be carried out within 6 months of the date of this decision.
5. Additional screening vegetation shall be planted along the northern boundary of the subject land at least to a point north of the north-east corner of the dwelling on the subject land to the satisfaction of the Council, having been advised by a person qualified in horticulture, landscape architecture or the like. This vegetation shall be maintained in good heart at all times.
6. The use hereby approved shall be conducted only between the hours of 10.30am - 5.30pm seven days per week, except Good Friday and Christmas Day.
7. Provision for an informal gravelled (or similar) area for the parking of 2 cars shall be made within the south-west corner of the subject land.
8. All dogs on the premises shall be effectively restrained and confined within the dwelling or elsewhere on the land away from areas visited by customers at all times during which the business is operated. Dogs shall not to be used as a means of warning of the arrival of customers upon the land.
The generation of dust was again discussed at length. This is not a matter amenable to control by conditions. Any vehicles at any time can drive along West Terrace for a number of reasons; to visit the Bulls, the Builders or Mr Bentley; to visit the recreation reserve or to just look at the settlement. If people drive sensibly and slowly little or no dust should be generated.
2
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