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Samwell & Steer v DC Mt Barker & Klein Research No ERD-99-1177, ERD-99-1178 [2000] SAERDC 29 (20 April 2000)
Last Updated: 19 December 2000
Court
ENVIRONMENT RESOURCES AND DEVELOPMENT COURT
Judgment of Environment, Resources and Development Court
Hearing
27/03/2000 to 31/03/2000.
Catchwords
Development Act 1993 - application to establish health healing facility in Rural (Mount Barker) Zone - appeal against approval by
Council - whether proposal
would impose limitations on the conduct of agricultural or horticultural activities on adjoining land
- whether in accord with land
use provisions for the zone - proposed development contrary to zone provisions - appeals upheld and
decision of Council reversed.
Materials Considered
Representation
Appellant SAMWELL & SONS PTY LTD (1177/99):
Counsel: MR S HENRY - Solicitors: JAMIE BOTTEN & ASSOCIATES
Appellant PHILIP STEER, GORDON STEER & SHIRLEY STEER (1178/99):
Counsel: MR S HENRY - Solicitors: JAMIE BOTTEN & ASSOCIATES
Respondent DISTRICT COUNCIL OF MOUNT BARKER:
Counsel: MR G LEYDON - Solicitors: NORMAN WATERHOUSE
Respondent KLEIN RESEARCH INSTITUTE LTD:
Counsel: MR B HAYES QC WITH MR J HILDITCH - Solicitors: WARD & PARTNERS
ERD-99-1177, ERD-99-1178
Judgment No. [2000] SAERDC 29
20 April 2000
(Her Honour Judge Trenorden, Commissioner Hodgson and Commissioner Mosel)
SAMWELL & SONS PTY LTD
(ERD 1177 OF 1999)
P. STEER, G. STEER & S. STEER
(ERD 1178 OF 1999)
v
DISTRICT COUNCIL OF MOUNT BARKER
and
KLEIN RESEARCH INSTITUTE LTD
[2000] SAERDC 29
REASONS FOR THE DECISION OF JUDGE TRENORDEN:
- By development application made pursuant to the Development Act
1993 on 8 July 1998 the Klein Research Institute ("the second
respondent") applied to the District Council of Mount Barker ("the
Council") for provisional development plan consent to undertake a
development described in the application as a "health healing facility"
on rural land fronting Williams Road, Mount Barker. The Council classified
the proposed development as a Category 3 development
and thus undertook the
notification procedures applicable to such developments as prescribed by
Section 38 of the Development Act 1993. As a consequence it received 14
representations, most of which were opposed to the proposal. Having considered
the application,
the Council resolved to approve it. Its decision is set out
in a decision notification form dated 15 September 1999, which form
also
contains the 17 conditions imposed by the Council as part of its approval. The
proposal having been categorised by the Council
as a "non-complying"
form of development, it was necessary, before the Council's approval could take
effect, to obtain the concurrence of the Development
Assessment Commission with
its decision to grant consent, in accordance with the requirements of Section
35(3)(b) of the Development Act. That concurrence was granted by the
Commission on 10 September 1999.
- Samwell & Sons Pty Ltd and P. Steer, G. Steer and S. Steer,
having made representation opposing the subject proposal, and being
aggrieved
by the decision, appealed to this Court against it. The Court directed that the
two appeals be heard together.
- There having been no resolution of the matters at a conference held
between the parties pursuant to Section 16 of the Environment, Resources and
Development Court Act 1993, they proceeded to a hearing before the Court.
Accompanied by the parties and their representatives, the Court viewed the
subject
land and its locality. It received a number of exhibits, and heard
sworn evidence from Dr. J . Klein, a principal of the Institute,
Mr P Jensen,
Mr G. Burns and Mr W. Wohlstadt, all qualified and experienced town planning
consultants, Mr W. Matheson, a land care
consultant, Mr C. Purton, a
meteorologist, Mr C. Turnbull, an acoustic engineer, Mr A. Sykes, Deputy
District Engineer with the respondent
Council, Ms S. Lewis, a qualified and
experienced town planner, also in the employ of the respondent Council, Mr B.
Hughes, a land
management consultant with the Department of Primary Industries
and Resources, Ms T. Pizinotis, President of the Mountain Pony Club,
and Messrs
P. Steer, L. Samwell, K. Samwell and M. Williams, all owners of land abutting
or in the vicinity of the subject land.
The Subject Land
- The site of the proposal comprises part of Lot 91 Section 3838,
Hundred of Macclesfield, Williams Road, Mount Barker. The total
property,
which is known as "Ngeringa", has an area of some 23.8ha, and is
undulating, substantially-cleared land. The proposed development would occupy
some 5.0ha of
the total area.
- Presently located on the land are a dwelling, a former dwelling,
kitchen and dining facility previously used by the Ngeringa Association
to
provide employment for intellectually disabled people, several sheds, a bore
and a dam. Jurlique International Pty Ltd, a company
with its headquarters
located in the Mount Barker township, utilises approximately 2.3ha of the land
for the growing of a variety
of herbs and roses which are used in the
manufacture of a variety of skin and health care products. An existing shed on
the land
has been converted to a drying shed for the natural drying of
herbs.
- The balance of the property, including the site of the proposed
development, is primarily used for the grazing of cattle.
The Locality
- The site for the subject proposal is located in the south-eastern
corner of the Ngeringa property, on the western slope of a small
valley which
runs generally along the alignment of Williams Road in a northerly direction.
It is approximately 2.0km to the south-west
of the Mount Barker Summit.
- The Manager's residence for the Ngeringa property is located close
to the site near the crest of the north-south ridge on the land,
with the
Jurlique herb and flower farming operation located approximately 200-300m to
the north of the site.
- To the north of the Ngeringa property, and approximately 360m from
the subject site, is a cherry orchard owned by Samwell and Sons,
and a small
rural living property used for grazing.
- Immediately to the east of the site is a small rural living
property, and a property owned by the Mountain Pony Club, which is a
long
narrow parcel of land running along Williams Road.
- To the north-east of the subject land is land used for grazing
purposes and some vineyards, the latter being approximately 1.0km
away.
- To the south is a large property used for grazing purposes, with
frontages to both Springs Road and Williams Road.
- West of the subject land are extensive open field market gardens
where Brussels sprouts are grown, which are owned and cultivated
by Samwell and
Sons. The site of the proposed health healing facility is, at its closest
point, some 240m from the boundary of the
market gardens, and separated from
the latter also by the crest of the north -south ridge on the subject
land.
The Proposal
- Documentation submitted with the development application describes
the proposal thus:
" The Klein Research Institute Limited is a non-profit public company
with tax exempt status. A proportion of the profits of Jurlique
International
Pty Ltd are directed towards a Trust Fund of the Institute to be used in a
manner consistent with the Institute's charter
of enhancing health, beauty and
longevity through further research and a range of other initiatives.
The proposal to establish a
Health Healing Farm on the property known as
Ngerina is one of these initiatives. The Institute hopes to establish a
facility that
will adopt, promote and further develop natural based treatment
techniques and remedies to confront serious diseases such as cancer,
heart
disease, stress and other life-threatening ailments that inflict society.
....... Techniques such as massage, aromatherapy,
homeopathics, flotation
therapy, spa baths and sauna, mud treatment and controlled diets are utilised
in preference to mainstream
conventional drug based treatments.
The curative process will involve the removal of the client/patient from
his/her everyday existence
and their immersion in a more healthy and healing
lifestyle over a 6-12 week period. Visitors will be discouraged ....... New
and
traditional herbal treatments will be tested under scientifically
controlled conditions to ascertain their effectiveness. The results
will be
published and royalties from the sale of this knowledge and information will be
returned to the Health Centre."
- The evidence of Dr. Klein was that "Ngeringa" was selected
as the site for the proposed development, in part, because of its tranquil and
beautiful rural setting, and in part
because the property had, for some years,
been farmed using organic bio-dynamic techniques and was therefore free of the
residual
pollutants and toxins which typically result from conventionally
cultivated agricultural and horticultural properties.
- The proposal would, on the evidence of Mr. Jensen, use appropriate
low-impact technologies to manage effluent, stormwater and energy
needs, and
the design and construction of accommodation would maximise occupant comfort
while minimising environmental impact.
- A maximum of 10 staff would be employed on the site, (6 full-time
and 4 part time), with only 3 staff being present over the weekends.
The built components of the centre would comprise:
* a health centre/clinic of approximately 720m² in area, inclusive
of internal courtyard, accommodating
- Reception
- Doctors' rooms
- Nurses' room
- Laboratory
- Treatment rooms
- Gathering/exercise space
- Indoor spa pool
- Café
- Courtyard
- Amenities/support facilities
* 20 single bedroom units of approximately 35m² each, containing a
kitchenette, double bedroom, en-suite, living area and private
courtyard and
viewing area;
* utilisation of the existing kitchen/dining room for the preparation and
eating of main meals by clients;
* utilisation of the former dwelling as nurses' quarters and a research
facility (offices and laboratory).
- Proposal plans, tendered in evidence, indicate that the
accommodation would be arranged in four groups around the central health
centre/clinic, with pathways linking each group to the centre and the dining
room. Proposed building materials would be:
* Walls - cement stabilised rammed earth
* Roofs - colorbond (Saltbush colour)
* Windows - aluminium-framed
- Extensive landscaping is proposed to screen the facility from
Williams Road and other vantage points in the locality.
- Access to the centre would be by way of a new entry road located
adjacent the southern boundary of the site. The existing entry
road, from
Williams Road, would continue to be used by traffic generated by the ongoing
use of the remainder of the property as an
organic bio-dynamic farm by Jurlique
International Pty Ltd. A carparking area for 15 vehicles would be located
adjacent the dining
room and health centre/clinic at the end of the main
driveway.
The Development Plan & Assessment
- The subject land is located in the Rural (Mount Barker) Zone,
according to the relevant Development Plan, namely that for Mount Barker
(DC)
dated 29 January 1998.
- According to Principle of Development Control 124 for the zone, all
kinds of development are expressed to be non-complying in the
zone with the
exception of certain kinds of development which are specified. The proposed
development, for a health healing centre,
is not contained within the list of
specified kinds of development. Accordingly, it is a non-complying kind of
development in the
zone. It follows from the provisions of Section 35(4)
of the Development Act 1993, that, being a non-complying kind of
development, the proposed development could only be granted provisional
development plan consent
if the Development Assessment Commission concurred in
the decision of the relevant authority to grant consent. That is what occurred
in this case.
- The Development Act and Development Regulations 1993
set out the nature of the information to be provided and the procedural
requirements for a non-complying kind of development. In
terms of assessment
of the proposed development, nothing further flows from the fact that the
proposed development is non-complying.
That was the situation with respect to
a prohibited kind of development under the Planning Act 1982: see
Cape Jervis Developments Pty Ltd v Millar & Ors (1989) 151 LSJS
414, Courtney Hill Pty Ltd v SA Planning Commission & Ors
(1990) 52 SASR 560 and Paradise Developments Pty Ltd v Nature Conservation
Society of South Australia & Anor (1993) 59 SASR 239. The
relevant portions of those judgments have equal application to non-complying
kinds of development in the context of the Development Act.
- Having ascertained that the proposed development is of a
non-complying kind, the relevant authority (and this Court) then has to
assess
the proposed development against the relevant provisions of the Development
Plan, as it would in respect of any other kind
of proposed development, whether
complying, non-complying or in neither of these categories.
- The Supreme Court recently provided some guidance for relevant
authorities and this Court in that task of assessment: see City of Mitcham
v Freckmann & Ors (1999) 74 SASR 234. The first task is to
determine the nature of the proposed development. The proposed development has
been described
as a "health healing centre". Early in the hearing, there was a
hint of an argument that the nature of the proposed development
was a
"hospital" or a "nursing home". That was not pursued, and in my view, the
proposed development does not have the characteristics
of either a hospital or
a nursing home.
- The proposed development does not fit neatly into any use mentioned
in the relevant Development Plan. We were told that the proposal
is a new
concept in South Australia, and we have no reason to doubt that statement.
Should the development proceed, it would provide
a facility where persons may
voluntarily be accommodated for a varying periods of time in a relatively
stress-free environment where
they can learn and practise the art of living a
healthy lifestyle and self-healing. The proposed facilities and the expertise
of
the staff will assist those persons resident from time to time, to achieve
these goals.
- The next task, in accordance with Section 33 of the
Development Act, is to assess the proposed development against the
provisions of the appropriate Development Plan. The Supreme Court in
Freckmann (above) described the task as including distilling the
relevant provisions of the appropriate Development Plan, ascertaining the
overall intent, purpose and desired character of the zone by looking at the
objectives and principles of development control for
the zone in which the land
is situated, ascertaining whether the proposed development is conducive to the
objective(s) and the desired
character of the zone, and ascertaining whether
the proposed development would be compatible with the amenity of the locality
of
the subject land.
- The Honourable Justice Debelle (with whom the other judges were in
agreement) said, at page 63:
"It will be a question of fact and degree in every case, after weighing
all relevant considerations, whether the proposed development
should be
approved."
and at page 64:
"It is preferable to describe the exercise of this unfettered discretion
as the exercise of a planning judgment within the ambit,
scope and purpose of
the Development Act, the Development Regulations and the Development
Plan."
- Reference to the "unfettered discretion" is a reference to a
passage cited by Debelle J, from Town of Walkerville v Adelaide Clinic
Holdings Pty Ltd (1985) 38 SASR 161 at 173, as follows:
"The discretion is unfettered only in the sense that there is nothing in
the Plan which is mandatory or necessarily compulsive;
ultimately every
planning decision rests upon a planning judgment on the particular
case.",
which observation his Honour was content to regard as still applicable.
- The first two Objectives for the zone are as follows:
"Objective 1: A zone primarily for agricultural activities comprising
dairying, grazing, cropping, viticulture, horticulture and intensive
animal
keeping in appropriate locations."
"Objective 2: The maintenance of a pleasant, attractive rural landscape
characterised by verdant undulating pasture lands, dotted
with clumps of large
majestic gum trees with the occasional cluster of farm buildings."
- These are followed by objectives for the Mount Lofty Ranges Region,
of which this zone is a part. In total, there are 14 Objectives
and 125
Principles of Development Control for the zone. Those Principles of
Development Control under the headings "General" and
"Form of Development",
insofar as they are relevant to the subject land and locality, support the
Objectives cited above, as well
as seeking to retain and reinforce the rural
character of the zone. (I have assumed the reference to principle of
development
control numbered 1 in Principle of Development Control 5 is
properly a reference to Principle of Development Control 4.) Other relevant
Principles of Development Control for the zone are to be found under the
headings "Movement of People and Goods", "Conservation",
"Appearance of Land
and Buildings", "Rural Development" and "Bushfire Protection". It is also
relevant to note the kinds of development
which are expressed to be not
non-complying in the zone, and that nothing is expressed to be complying within
the zone. It might
be inferred from Principle of Development Control 124
that the kinds of development listed are those which might be appropriate
in
the zone, within the limits of the author's imagination and having regard to
the nature of the zone and strategic planning considerations,
but the list
should not be construed as setting out the kinds of development which are
preferred within the zone.
- In addition to the zone provisions, there are other provisions of
the Development Plan which are relevant to the assessment of the
proposed
development. The particularly relevant provisions are those Objectives listed
under the heading "Rural Areas", namely Objectives
49, 50, 51 and 52. The
whole of those provisions, including the explanatory statements, are set out
below:
"Objective 49: Conservation and preservation of the attractive open rural
character of the district."
"Objective 50: Productive agricultural land protected from
conversion to non-productive or non-compatible uses."
"Objective 51: The retention of rural areas primarily for agricultural,
pastoral and forestry purposes, and the maintenance of the
natural character
and beauty of such areas."
- Pressures for the division of rural land are likely to accelerate
because of the commuting possibilities that the Mount Lofty Ranges
and other
near-metropolitan areas offer to people who work in the metropolitan area. The
removal of primary production from rural
areas places greater dependence upon
the diminishing fertile areas. It is in the community interest that as much
agricultural land
as possible be retained in primary production. The region
contains some of the best agricultural land in the State and is ideally
situated to serve the food requirements of the metropolitan area.
- The protection of the natural beauty, agricultural land and water
resources, should remain the overriding consideration governing
decisions
relating to development of rural land in the outer metropolitan area.
"Objective 52: Minimization of risk of bushfire damage throughout the
district."
"Whilst it is not possible to ensure that development will not be affected by
fire, it is essential to incorporate design elements
to help lessen the impact
of bushfires."
- A consideration of the provisions for the zone in the relevant
Development Plan leads me to conclude that it is desired that the
land exhibit
a pleasant, attractive rural character, with remnant native vegetation being
preserved and restored. It is acknowledged
that the zone comprises generally,
productive rural land and some of the most productive rural land in the Mount
Lofty Ranges region
and in accordance with that fact, the provisions of the
zone exhibit an intention that land be used primarily for agricultural
production,
in its widest meaning. However, it is acknowledged that the Mount
Lofty Ranges region is attractive to visitors and accordingly,
the zone
provisions seek the development of a sustainable tourism industry, in the
nature of small scale tourism development. Finally,
the provisions of the zone
acknowledge that the zone is within a high-risk bushfire area and seek the
incorporation of bushfire risk
minimisation elements into new
development.
- The provisions for the zone further indicate that intensive animal
keeping might be appropriate in parts of the zone. In addition,
the
Development Plan acknowledges that a community centre, a fire station and a
recreation area including associated buildings and
facilities, might merit
consent in the zone.
- Thus, while the primary intent is that land within the zone will be
used for primary production including agriculture, horticulture,
viticulture,
forestry, dairying and grazing, the Development Plan acknowledges that there
may be a need for other kinds of development
to be accommodated within the
zone. This is acknowledged by the various references to other kinds of
development, and by those Principles
of Development Control which advise that
"land which is particularly suitable for agriculture, including viticulture and
horticulture,
should be used or remain available for such agricultural
purposes" (Principle of Development Control 110) and "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" (Principle of Development Control 111),
along with principles which
reaffirm that rural areas should be retained
for primary production. Thus, the Development Plan, while acknowledging that
there might be a need to accommodate other
forms of development, and providing
principles by which to assess the merits of applications, expresses strongly
the desire that
land which is particularly suitable for agriculture, be
retained in, or available for production.
- In addition to the zone provisions, there are other provisions of
the Development Plan, cited above, which are relevant. In particular,
Objectives 49, 50 and 51 seek the preservation of the attractive open rural
character of the Mount Barker district, the protection
of productive
agricultural land as agricultural land, or from uses which are not compatible
with agricultural production, and the
retention of rural areas primarily for
agricultural, pastoral and forestry purposes, "and the maintenance of the
natural character
and beauty of such areas". Although, inevitably the natural
character of an area would not be retained were the land within that
area to be
used for certain agricultural and forestry purposes, and the open rural
character of the area arguably would not be preserved
where the land is
converted to use for some kinds of horticulture or forestry, the Development
Plan seeks to have rural land both
retained and used for primary production and
its existing attractive open rural character conserved and preserved. The
apparent
conflict is perhaps resolved by a closer scrutiny of the Principles of
Development Control for the zone under the heading "Rural
Development", but
bearing in mind the exhortations of Wells J in Claude Neon Ltd v Corporation
of the City of West Torrens (1982) 29 SASR 260, and in Hassen v
District Council of Murray Bridge and Onsoy (1984) 35 SASR 448, which were
endorsed by King CJ in Town of Walkerville v Adelaide Clinic Holdings Pty
Ltd (1985) 38 SASR 161, and Jacobs J in District Council of Munno
Para v Remove-All Rubbish (1985) 41 SASR 188, as to the way in which the
language of the Development Plan is to be read.
- The land has most recently been used for grazing purposes. Having
read the provisions of the Development Plan in accordance with
the guidance
provided by the Supreme Court, I have concluded that land in the zone
which is particularly suitable for agriculture
(in its narrow sense of growing
cereal crops), viticulture and horticulture should either continue to be used,
or, if not presently
used for those purposes, remain available to be so used.
The evidence was that the subject site is suitable for some of these purposes,
but the soil is not of a particularly high quality, the land is steep, rising
from Williams Road to the north-south ridge, with an
average gradient of 18% to
20%, and is susceptible to erosion. At best, in a primary production sense,
the land is suited to grazing,
or with significant management input, could be
suitable for perennial horticulture. Insofar as the site would not be able to
be
used for grazing or perennial horticulture should the development proceed,
the site would be taken out of contention for primary
production. In addition,
buffers of vegetation are proposed on the subject land, outside the perimeters
of the site. The planting
of these buffers would take additional land out of
production. Mr Brian Hughes, a land management consultant employed
by the Department of Primary Industries, South Australia, opined that although
the land was suitable for perennial horticulture he
is not concerned about the
loss of the subject land to primary production. His major concern is the
potential conflict or incompatibility
between the proposed development and the
use, for horticultural purposes, of the adjoining parcels of land.
- I have indicated that the primary thrust of the relevant provisions
for land within the zone is towards the retention of land for
primary
production and the retention of the natural character and beauty of the area.
However, I have also expressed the view
that the zone provisions
acknowledge the possibility of a variety of development which is not in the
nature of primary production.
In his judgment in Town of Walkerville v
Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161, the Supreme Court (per
Jacobs J, which was later endorsed by the Full Court of the Supreme Court)
provided some advice to planning
authorities, as follows:
"Where there is no conflict between the proposal and the Plan, the Plan
will speak loud and clear; but where the proposal diverges
from the policies
expressed in the Plan, the task of the authority, viewing the proposal in all
its aspects, is to make a planning
judgment, ie. to measure and assess the
extent, significance and consequence, in planning terms, of all or any such
departures."
- Similar views were expressed by Debelle J in City of Mitcham v
Freckmann (above) and in the remarks which he adopted in that judgment, of
Jacobs J in District Council of Munno Para v Remove-All Rubbish Co Pty
Ltd (1985) 41 SASR 188. It might be remarked that both Debelle J and
Jacobs J limited their comments to cases where the Development Plan, in the
current
language, has not classed the proposed development as either a
complying or a non-complying development. However, the comments of
Debelle J,
and previously Jacobs J in the above cases, clearly apply to the task of
the relevant authority when dealing with
a proposed development which is
expressed to be non-complying, once the authority has resolved to proceed with
an assessment of the
application for the proposed development and has received
the Statement of Effect required, pursuant to Regulation 17 of the
Development Regulations. (The procedure was similar under the
provisions of the Planning Act 1982, which was the legislation relevant
to the Remove-All Rubbish case.) That was made clear by the later
decisions, cited earlier in these reasons, namely Cape Jervis Developments v
Millar, Courtney Hill v SA Planning Commission, and Paradise
Developments v Nature Conservation Society.
- The subject site is presently not productive, but has a limited
capacity for primary production. The zone provisions advise that
land should
only be removed from primary production or have its capacity for primary
production diminished, where proposed development
which would lead to this
result, is for an essential public purpose. The proposed development cannot be
so classified. However
that is not the end of the matter. Bearing in mind
that each of the provisions of the Plan relevant to the application for the
proposed
development are advisory, it remains for an assessment to be made, in
planning terms, of the proposed development.
- Any development on the subject land should, at least, be compatible
with maintaining rural productivity on adjoining land.
- According to Mr Henry, counsel for the appellants, the
principal issue was one of separation of land uses; namely whether the
proposed development would be inappropriate, having regard to the existing
horticultural use of adjoining land. The Development
Plan seeks long-term
sustainability of rural production (Objective 5), which is supported by the
zone Principles of Development Control 107
and 108 which advise that rural
areas should be retained primarily for, inter alia, horticulture and
agriculture, "and other uses
compatible with maintaining rural productivity"
and that "development should ensure that genuine agricultural activities are
not
prejudiced". It is to be noted that there is an emphasis here on the
developer having taken into account the nature of agricultural
activities, but
there is a limitation on the extent of the agricultural activities that should
be taken into account. Two questions
arise here. The proposed development
might affect the sustainability of rural production by taking land out of
production, or by
limiting either the longstanding horticultural activities on
some adjacent land or the potential for agricultural or horticultural
use of
adjoining land presently used for grazing purposes.
- The proposed development would take the site, and other parts of
the subject land out of rural production, as discussed earlier in
these
reasons, by reason of the development itself and the proposed vegetation
buffers, but as this land is not high quality agricultural
(including
viticulture and horticulture) production land, that consequence is not
foreclosed by the Development Plan. Other matters
need to be
considered.
- Would the proposed development limit the genuine agricultural
activities on or productivity of the adjoining land presently used
for
horticultural purposes? The adjoining land to which I refer is owned and
cultivated by Samwell & Sons for the growing
of Brussels sprouts. The
sprouts are sprayed with pesticides, on an average, approximately weekly, to
prevent or minimise the damage
from insects, and particularly the larvae of the
Diamond Back Moth. The sprays include "hard" sprays, namely organo-phosphates
and
organo-chlorines, and "soft" sprays including bacterial sprays. The block
of cherries, also owned and operated by Samwell &
Sons, which is located
immediately north of the herb farm on the subject land, is also sprayed. The
appellants argued that the development
might result in complaints about spray
drift and odour (from the sprays) which could have the consequence of limiting
the operations
of Samwell & Sons, possibly resulting in economic loss to
the company.
- It is common knowledge that care should be taken in the use of
organo-phosphates and organo-chlorines. The latter are considered
to be
endocrine disrupting chemicals and residue from the spraying of them can find
its way into human body tissue by way of the
consumption of the produce of
animals and fish, as a result of the ingestion by animals of residues found in
the soil (and hence
pasture) and water. The organo-phosphate insecticide
Phosdrin, used a few years ago by Samwell & Sons, for the control of
Diamond
Back Moth, which has the potential to destroy a Brassica crop,
is a Schedule 7 Poison and considered extremely toxic. Its use in Australia
has been severely restricted by the National Registration
Authority for
Agricultural and Veterinary Chemicals. Some other insecticides identified by
the evidence as in regular usage on the
Samwell property are highly toxic,
being Schedule 6 or 7 poisons. Pirimor, an insecticide used on the cherry
crop, to control aphids,
is a Schedule 6 poison but it may not have such
long-term effects on the environment and humans as organo-phosphates or
organo-chlorines.
- On the other hand, the safer, so-called "soft" sprays, used in
association with the "hard" sprays, might include those containing
the
bacterium Bacillus thuringiensis, which kills the Diamond Back
Moth by causing paralysis of the stomach, upon which the moth stops eating and
subsequently dies, and
which is far less harmful to humans.
- The evidence of Mr Kent Samwell was that it is necessary for
Samwell & Sons to change the sprays used for the control of
Diamond Back
Moth from time to time, because the moth, which causes such damage to Brussels
sprouts and other members of the Brassica family, has proved able to
quickly develop resistance to some pesticides in regular use. The decision to
change the pesticide is
made by Samwell & Sons as a result of regular
monitoring of the crop. Samwell & Sons maintain a spray diary and are
implementing
the SQF 2000 programme which I understand to mean the
"Safer Quality Food" system, by which the company endeavours to comply
with
food safety standards and quality requirements. While this fact demonstrates
the desire of the company to be responsible and
produce food that is safe for
human consumption, it is not necessarily a guarantee against the negative
consequences of the effects
on other land of the spraying of "hard"
chemicals.
- In effect, the argument of the appellants is that the
implementation of the proposed development might prejudice the horticultural
operations on, and therefore, the productivity of, adjoining land, not because
the site will be impacted necessarily by the horticultural
operations, but
because there might be a perception of unhealthy impacts; the implementation
of the proposed development being likely
to result in the establishment of a
sensitive receptor, given the likelihood that the residents of the health
healing centre will
be in a stressed state, due to their state of health, and
therefore unable or unwilling to cope with smells and sounds to which they
are
unused. Similarly, but in a different context, some of the numbers of the
Mountain Pony Club were concerned that their activities
on the club property
having frontage to the eastern side of Williams Road, might be prejudiced, by
complaints from noise-sensitive
residents of the health healing
centre.
- Provided appropriate vegetation buffers are planted and maintained
on the southern and western boundaries of the subject land, the
proposed
development is unlikely to limit the proper horticultural or genuine
agricultural activities on, or the productivity of,
those adjoining properties.
I have come to this conclusion because of the size of the proposed
development, its location on
the subject land, the topography of the subject
land including the fact that there is a ridge between the Samwell properties
and
the site, the prevailing winds, and the fact that Samwell & Sons, like
any other sensible horticulturist, would not engage in
spraying operations in
windy conditions. I have been mindful also of the general environmental
duty imposed on all persons
in this State. The Development Plan cannot
properly be interpreted as limiting development of land, including for farming
or horticultural
purposes, to enable an existing adjacent user to continue to
spray toxic substances, some of which result in residues in the soil
and
through run-off, in dams or watercourses, without regard to the consequences
for adjoining land, water or occupiers. The issue
is whether the proposed
development would "ensure that genuine agricultural activities are not
prejudiced". I am satisfied,
on the evidence of Dr Klein, that the
development, by the way in which it is to be implemented and managed, would
meet this
provision.
- Would the proposed development limit the potential for primary
production use of adjoining land presently used for grazing purposes
only?
I have concluded that the development would not so limit the use of
adjoining land, based upon similar reasoning to that
set out above in relation
to the existing horticultural use of adjoining property. Any use of adjoining
land would be limited to
the extent that a user would be expected to comply
with his or her duty under the law. Underlying the question is an assumption
that in a rural zone where land should primarily be used for agricultural
purposes, it is acceptable for a highly toxic substance
to be sprayed regularly
onto crops, where it might drift onto adjoining land despite precautionary
measures being taken. That assumption
is understandable, given the hitherto
generally accepted chemical approach to the control of pests in previous
decades. That approach
is less acceptable now, as illustrated by the existence
of a general environmental duty under the Environment Protection
Act 1993; the guidelines being produced by government agencies,
advocating the setting aside of land as a buffer and the planting of buffer
vegetation, by primary producers, to minimise the passage of spray drift beyond
the boundaries of their cultivated land; and programmes
like SQF 2000
which are encouraging horticulturists to strive to produce food that is safe
for human consumption, which means,
in part, minimising the use of toxic
chemicals on food crops.
- I am not satisfied that genuine agricultural activities on
adjoining or nearby land, would be prejudiced, should the proposed
development
be implemented. I am satisfied that the use of the site, as proposed, will be
compatible with the maintenance of rural
productivity on adjoining
properties.
- I come now to an assessment of the proposed development against
other provisions of the Development Plan, mindful of the fact that
it is a kind
of development not addressed by the Plan.
- As proposed, the development is suitable for the intended use of
the land and would not detrimentally effect the amenity of the locality.
The
anticipated daily traffic movement likely to be generated by the proposed
development would not result in the need to seal the
presently unsealed
Williams Road, which provides access to the subject land. Both the possible
sealing of Williams Road and the
possibility of higher traffic movement to and
from the subject land were of concern, particularly to the Steer family
appellants.
The sealing of Williams Road would be very disappointing to the
horse-riding members of the community, for whom Williams Road, because
of its
unsealed state, is part of the horse-riding trails in the Mount Barker
District. Horse riders also fear large volumes of
traffic because of the
detrimental effect which motor vehicles travelling at speed, can have on the
equilibrium of horses. I am
satisfied from the evidence that these fears are
unlikely to be realised should development proceed.
- Some of the buildings which form part of the development would be
benched into the site and accordingly excavation, to a depth greater
than
1.5 metres, would be necessary. Thus, on one view the natural form of the
land would not be preserved. The purpose of
the excavation will be to reduce
the visual impact of the buildings. It is proposed to extensively landscape
the site, with species
originally native to the locality, which will go some
way towards re-establishing the native vegetation which once would have been
typical of this part of the Mt Lofty Ranges region. Given the likely
appearance and character of the site, from neighbouring properties
and Williams
Road, once development has been fully implemented, it is unlikely that the
proposed excavation of the land would have
any detrimental
consequences.
- In addition to proposing the planting of plant species which
formally occurred locally, on the site, the landscape architects' plan
which
forms part of the proposal documents, provides for the establishment of a
wetland, into which stormwater (other than roof run-off)
would flow and be
retained and treated naturally before being re-cycled into the existing creek
system. The proposed planting will
create areas of open woodland and open
grassland. The intention is to restore the natural ecosystem of the habitat of
the Mt Barker
Summit environment. The proposed new access road from Williams
Road into the site would follow the contours of the land. Provided
the
landscaping plan is implemented, the possibility of soil erosion, given the
slope of the site, would be minimal, and a soil erosion
management plan is
proposed, by condition, to ensure this consequence. I am satisfied that the
development would be appropriately
screened, that the natural form of the land
would be largely preserved, with buildings and structures located unobtrusively
and so
as not to detrimentally impact on the views from Williams Road and
Springs Road, to the south.
- The building materials to be used, namely rammed earth walls and
saltbush coloured Colorbond roofing, by their appearance, will enable
the
buildings to blend in with the environment, in the context of the proposed
landscaping.
- The environmental impact of the proposed development will be
minimisal. Admirably, the buildings have been designed to reduce reliance
on
power for heating and cooling. It is proposed that an effluent treatment plant
be established on the site, with the treated water
to be used for irrigation
purposes. There is very little native vegetation existing on the site. That
which exists would be retained
and incorporated into the proposed landscaping.
I am satisfied that the design of the proposal will enable it to be operated
and
managed with minimal detrimental effect, in environmental terms, upon the
subject land, neighbouring properties and their occupiers.
If implemented and
managed as proposed, the proposed development is unlikely to detrimentally
affect the amenity of the locality
or cause nuisance to the surrounding
community. I accept that the locality is as shown by Mr Burns on the plan
included in his statement
of evidence, except that in the east it extends as
far as the Mount Barker summit, as shown as shown in Mr Jensen's locality plan
contained in his statement of evidence.
- The proposed development will not promote the rural character of
the area in the sense of "a pleasant, attractive rural landscape
characterised by verdant undulating pasture lands, dotted with clumps of large
majestic gum
trees with the occasional cluster of farm buildings" (Zone
Objective 2). However, the Principles of Development Control also seek the
planting of trees and vegetation where the "the environment will be visually
improved by such provision" (Zone Principle of Development Control 72), and
there is a general desire exhibited in the zone provisions of the Development
Plan
for existing native vegetation to be conserved and protected. A proposal
which restores the natural ecosystem is in keeping with
this desire.
- The bushfire protection provisions of the Development Plan are
important in the Mount Lofty Ranges Region. I am satisfied that the
proposed
development would not offend those provisions, provided there is appropriate
management of the site. The Council imposed
three conditions, at the request
of the Country Fire Service, to ensure the minimisation of the threat of bush
fires. Some conditions
in this regard are necessary, although in light of the
detail in the plans for the proposed development the content of the conditions
perhaps needs to be reconsidered.
Conclusion
- In summary, for the reasons given above, I would have agreed with
the Council's decision to grant provisional development plan consent
for the
proposed development, having assessed it against the relevant provisions of the
appropriate Development Plan. I have not
considered extensively the conditions
which the Council attached to the provisional development plan consent, in
light of the decision
of the Commissioners that the appeals should be upheld
and the Council's decision be overturned.
REASONS FOR THE DECISION OF COMMISSIONER HODGSON
- I have read the reasons for decision of Judge Trenorden and
gratefully adopt her recitation of the facts in this matter. I have,
however,
reached a different conclusion.
- The subject land is located within the Rural (Mount Barker) Zone,
the relevant objectives for which are as follows:
"Objective 1: A zone primarily for agricultural activities comprising
dairying, grazing, cropping, viticulture, horticulture and
intensive animal
keeping in appropriate locations."
"Objective 2: The maintenance of a pleasant, attractive rural landscape
characterised
by verdant undulating pasture lands, dotted with clumps of large
majestic gum trees with the occasional cluster of farm buildings."
"Objective 5: The long-term sustainability of rural production in the Mount
Lofty Ranges region ensured."
"Objective 8: The development
of a sustainable tourism industry with
accommodation, attractions and facilities which relate to and interpret the
natural and cultural
resources of the Mount Lofty Ranges region, and increase
the opportunities for visitors to stay overnight."
- These objectives are reinforced by a number of the Principles of
Development Control:
"Principle 2. Development should primarily be limited to that which is
essential for the maintenance of sustainable grazing, commercial
forestry and
mixed agricultural activities."
"Principle 4. The Rural (Mount Barker) Zone should be retained for a range of
cropping,
grazing, horticultural and viticultural farming activities including
intensive animal keeping activities in appropriate locations."
"Principle 94. Major tourism development should preferably be located within
townships or in designated zones."
"Principle 95. Small-scale
tourism developments should be located in
appropriate areas outside of townships, primarily in existing buildings."
"Principle 97.
Tourism developments outside townships should:
(a) locate in existing buildings especially those of heritage significance;
(b)
complement the scenic value, visual sensitivity and cultural significance
of the landscape; and
(c) not adversely affect the use
and condition of roads."
"Principle 98. Tourism developments in rural areas should be developed in
association with:
(a) agricultural,
viticultural and winery development;
(b) heritage buildings and areas;
(c) linear parks;
(d) walking and cycling trails; or
(e) interpretive infrastructure."
"Principle 107. Rural areas should be retained primarily for horticultural,
agricultural, pastoral
and forestry purposes and other uses compatible with
maintaining rural productivity."
"Principle 110. Land which is particularly
suitable for agriculture, including
viticulture and horticulture, should be used or remain available for such
agricultural purposes."
"Principle 111. 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."
- Zone Principle 124 further reinforces the thrust of these
principles by designating all kinds of development within the zone as
non-complying,
save for a limited list of uses, namely:
* Commercial forestry
* Dairy
* Farming
* Farm building
* Horticulture
* Detached dwelling on an existing allotment not containing a
dwelling, and subject to meeting flooding and effluent disposal
criteria.
* Community centre
* Aviary
* Fire station
* Carport
* Alterations or additions to existing dwellings or buildings, subject to size
and effluent disposal criteria.
* Bed and Breakfast accommodation for up to 6 people, within or as an addition
to an existing dwelling and subject to other criteria.
* Outbuildings
* Pergola
* Recreation area
* Verandah
* Water Storage Tanks
- The provisions of the Development Plan for the Rural (Mount Barker)
Zone, on my reading, speak clearly against the establishment
of
non-agricultural land uses within the zone, with three exceptions:
(a) uses which are supportive of or ancillary to, agricultural activities,
including dwellings, water storage tanks, and fire
stations;
(b) uses which cater for the social needs of the farming community, including
community centre and recreation area; and
(c) small scale tourism development in the form of bed and breakfast
accommodation, primarily in existing buildings.
- The exceptions above, on my reading of the plan, constitute the
basis upon which Zone Objective 1 and Principles 2 and 107 refer
to the zone
being "primarily" for agricultural activities, and while uses of land
other than those exempted from non-complying status by Principle 124 may be
approved
by the Council with the concurrence of the Development Assessment
Commission, pursuant to Section 35 (3)(b) of the Development Act, my
view is that such uses, to be approved, would have to be consistent with the
directions established for the zone by the relevant
provisions of the
Development Plan, having regard to the observations of Debelle J in City of
Mitcham v Freckman and Ors [1999] SASC 234; 74 SASR 56, at 62:
"........it is important ......... to distil from the relevant
provisions of the plan the overall intent and purpose and the desired
character
of the zone in which it is sought to place the proposed development, a task
which is often assisted by reference to the
stated objectives of the zone and
the principles of development control. Given that it is manifestly impossible
to make provision
in the Development Plan for every kind of development, the
ultimate criterion by which a proposal might have to be judged is whether
it is
conducive to the desired character and amenity of the zone. The less conducive
it is, the less likely that it might merit
planning approval."
- The Development Plan provisions for the Rural (Mount Barker) Zone
have, as their primary emphasis, the maintenance of productive
rural land for
agricultural purposes, subject to the exceptions to which I have already
referred. The evidence of both Mr. Matheson
and Mr. Hughes was that the
subject land was productive, albeit not the most productive land within
the zone. It was, on the evidence of both, suitable for grazing or perennial
horticulture, and while neither
was unduly concerned about the prospect of at
least part of "Ngeringa" being lost to agricultural production, such a
result appears to be in significant conflict with the Development Plan
provisions for
the zone. It may be said that the area of land lost to
agriculture is not large; the proposal itself would require some 5.0ha,
together
with substantial planted buffers on at least the southern and western
boundaries. However, the cumulative effect of a succession
of developments,
each resulting in some further alienation of rural land, ultimately can have a
substantial impact on what is a scarce
resource. As the text following
Objective 2 for the zone observes:
"....... the land in the Rural (Mount Barker) Zone comprises some of the
region's most productive rural land which is capable of
supporting a wide range
of agricultural activities. Accordingly, it is desirable that no further
fragmentation of rural properties
be undertaken and that existing smaller
properties be consolidated into productive agricultural holdings."
- The subject proposal is clearly at odds with the primary thrust of
the zone provisions and is not one of the limited range of non-agricultural
land uses provided for in the zone. To approve it on the basis that the area
of land involved is relatively small and of only moderate
productivity would be
to ignore the cumulative and, in all likelihood, permanent impact of a
succession of similar decisions. Having
regard to all of the above, I have
concluded that the subject proposed should not be approved.
- With reference to the evidence put to the Court concerning the
design and appearance of the subject proposal, and its likely traffic
generation, I am satisfied that the proposal accords with the relevant
Development Plan provisions. I also agree with the conclusion
reached by Judge
Trenorden that the subject proposal would not be likely to result in
limitations on agricultural or horticultural
practices on adjoining rural land
beyond the limitations already imposed by statute. However, I cannot avoid the
conclusion that,
as a use of land which would remove productive land from
agricultural use, and for a purpose not envisaged by the zone provisions,
the
subject proposal does not warrant consent. Accordingly, I am of the view that
the appeals in this matter should be upheld, and
the decision of the Council
reversed.
REASONS FOR THE DECISION OF COMMISSIONER MOSEL
- I have considered all the material before the Court, the relevant
provisions of the Development Plan and the conclusions of Her Honour
Judge
Trenorden, and those of Commissioner Hodgson. In my view, Commissioner Hodgson
has taken the correct approach in this matter.
The proposed development is
clearly at odds with the primary purpose of the zone. Although, for the
reasons outlined by Her Honour,
a planning authority and this Court is able to
exercise discretion in considering a range of land uses in the zone, including
those
not in the nature of primary production, I am of the view that the
construction of the Objectives and Principles of Development Control
for the
zone are such that discretion should be in favour of those land uses that
support the primary purpose of the zone. Commissioner
Hodgson, in my view,
correctly interprets the exceptions from the non-complying kinds of development
in Principle 124 as being land
uses which are supportive of the zone's primary
intention or are otherwise "conducive to the desired character" (see
Freckmann). Having given extensive consideration to the nature
and purpose of the proposed development, I am of the view that there is nothing
about it that would lead to a conclusion that it is either supportive of the
primary thrust of the zone, or "conducive to the desired character" of
the zone as observed in Freckmann.
- In my view the appeal should be upheld and the decision of the
Council reversed.
JUDGMENT OF THE COURT
- The majority of the members of the bench hearing this matter, have
decided that these appeals should be upheld and the decision of
the District
Council of Mount Barker, reversed.
- Accordingly, that is the judgment of this Court. There will be an
order to this effect.
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