Linke v City of Onkaparinga & Johnson & Banner No ERD-00-238 [2000] SAERDC 59 (6 September 2000)

Last Updated: 19 December 2000

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Decision of Commissioner Hodgson

Hearing

14/08/2000 to 16/08/2000.

Catchwords

Development Act 1993 - third party appeal - application to establish stabling facilities for, and keep, three horses - Section 17(4)(b) Environment, Resources and Development Court Act 1993 - no case for respondent to answer - appeal dismissed.

Materials Considered

• Development Act 1993 ;
• Environment Resources & Development Court Act 1993 , referred to.
• The Queen v Judge Stevens; ex parte Tip Top Dry Cleaners Pty Ltd 43 SASR1;
• National Justice Compania Navera v Prudential Assurance Co Ltd, The Ikarian Reefer [1993] 2 Lloyds Rep 68 and [1995] 1 Lloyds Rep 455;
• Carey and Bourdon v Development Assessment Commission and Borrelli 1994 EDLR 233, considered.

Representation

Appellant JANETTE LINKE:
Advocates: MR TREVOR LINKE

Respondent CITY OF ONKAPARINGA:
Counsel: MR G MANOS - Solicitors: MANOS & ASSOCIATES

Respondent KF JOHNSON & CA BANNER:
Counsel: STUART HENRY - Solicitors: STUART HENRY BARRISTER

ERD-00-238

Judgment No. [2000] SAERDC 59

6 September 2000

JANETTE LINKE

V

CITY OF ONKAPARINGA

&

K.F. JOHNSON & C.A. BANNER

(ERDC No. 238 of 2000)

[2000] SAERDC 59

THE COURT DELIVERED THE FOLLOWING DECISION:

1. This is an appeal against a decision of the City of Onkaparinga ("the Council") to grant provisional development plan consent to an application by the second respondents, dated 18 April 1997, to undertake development in the nature of the keeping of three horses and the establishment of associated stabling facilities on land comprising allotment 202, Old Willunga Hill Road, Willunga.

2. The Council determined that the proposal was for a Category 3 development within the meaning of Section 38 of the of the Development Act, 1993, and gave notice of it accordingly. Three representations were received by Council in response to that notification, two in support and one opposed to the development proceeding.

3. By decision notification form dated 20 March 2000, the Council advised the second respondent that it had approved the application, subject to 15 conditions.

4. Mrs Janette Linke who, with her husband, Mr Trevor Linke, is the owner of a rural property adjoining the subject land, being aggrieved by the decision of the Council, appealed to this Court against it. A conference convened pursuant to Section 16 of the Environment, Resources and Development Court Act 1993 did not produce a compromise or settlement, and accordingly, the matter proceeded to a hearing.

5. At the hearing the appellant was represented by Mr T. Linke, the Council by Mr G Manos, of counsel, and the second respondent by Mr S Henry, of counsel. The Court conducted a view of the subject land in the company of the parties, and received a number of exhibits.

6. The subject land, known as allotment 202 in Deposited Plan 50548, has an area of some 3.518 ha. It is irregular in shape and has a frontage both to the Old Willunga Hill Road and Kookaburra Court, Willunga, although access to it is obtainable only from Kookaburra Court. The owners of the land reside in the only dwelling on the site. A number of outbuildings and farm buildings also exist on the land. One of these buildings (a horse shelter) appears to have been erected without approval, and is included in the proposal the subject of these proceedings, as is an existing stable located within portion of an existing building.

7. The land slopes downwards towards an existing spring-fed creek at the western end of the property, from which creek the land rises to its boundary with the Old Willunga Hill Road.

8. The locality is characterised by rural uses within the Hills Face Zone, including the grazing of livestock and horsekeeping, The creek near the northern end of the subject land, which flows roughly from south to north, traverse the Willunga Golf Course, a short distance to the north, and eventually discharges into the Willunga Creek outlet.

9. The land immediately to the south of the subject land, in Deposited Plan 24861, is largely at a lower level than the subject land, and is used for farming purposes, including the breeding of Angora goats and cattle grazing. A dwelling and dam lie in close proximity to the common boundary between that allotment and the subject land. The adjoining land has an area, on the evidence of Mr Linke, of some 52 ha. Access to the Linke land is obtained from the Old Willunga Hill Road, which abuts its western boundary.

10. The proposal entails the keeping of up to three horses on the subject land. It is proposed to arrange the land with a series of paddocks for this purpose, together with a yard and two associated stables or shelters, one of which already exists. The arrangement of paddocks and the yard is depicted on a site plan forming part of the application. It is further proposed to use the western portion of an existing farm building as a stable. At the commencement of the hearing, a proposal that feed for the horses be kept in an existing farm building adjacent the boundary with the Linke property was amended to the effect that feed would be kept in another farm building adjoining the proposed yard (the latter building being hereafter described as "the green shed").

11. The subject land is located within the Hills Face Zone as depicted on Map Wi/24 in the Development Plan for the District Council of Willunga. The objectives for that zone are as follows:

Hills Face Zone

"Objective 1: A zone in which the natural character is preserved and enhanced or in which a natural character is re- established in order to: (a) provide a natural backdrop to the Adelaide Plains and a contrast to the urban area; (b) preserve and develop native vegetation and fauna habitats close to metropolitan Adelaide; (c) provide for passive recreation in an area of natural character close to the metropolitan area; (d) provide a part of the buffer area between metropolitan districts and prevent the urban area extending into the western slopes of the ranges; and (e) ensure that the community is not required to bear the cost of providing services to land within the zone." "Objective 2. A zone accommodating low-intensity agricultural activities and public/private open space and one where structures are located and designed in such a way as to: (a) preserve and enhance the natural character or assist in the re-establishment of a natural character in the zone; (b) limit the visual intrusion of development in the zone, particularly when viewed from roads within the zone or from the Adelaide Plains; (c) not create, either in themselves, or in association with other developments, a potential demand for the provision of services at a cost to the community; and (d) prevent the loss of life and property resulting from bushfires."

Relevant zone principles are:

"Principle 1. Development should not be undertaken unless: (a) it is associated with a low-intensity agricultural activity, a public open space area or a private use of an open character, or is a detached single-storey dwelling, including outbuildings and structures normally associated with such dwellings, on a single allotment; and (b) together with associated native landscaping, it preserves and enhances the natural character of the zone or assists in the re-establishment of a natural character." "Principle 4. Development should not be undertaken if the operation and management of such development are likely to result in: (a) the pollution of watercourses; (b) unnecessary loss or damage to native vegetation; (c) the denudation of pastures; (d) erosion; (e) dust; (f) noise nuisance; or (g) the introduction of or an increase in the number of pest plants or vermin." "Principle 5. Buildings, including structures, should be located in unobtrusive locations and, in particular, should: (a) be located well below the ridge line; (b) be located within valleys or behind spurs; (c) be located in such a way as to not be visible against the skyline when viewed from the roads within the zone or from the metropolitan area particularly the Adelaide Plains; (d) be set well back from public roads, particularly when the allotment is on the high side of the road; (e) have the roof line below the lowest point of the abutting road when the allotment is on the low side of the road; (f) be sited on an excavated rather than a filled site in order to reduce the vertical profile of the building; (g) be located in such a way as to be screened by existing native vegetation when viewed from the roads within the zone or from the metropolitan area particularly the Adelaide Plains; (h) not to be located in areas subject to inundation by a 100 year return period flood event nor be sited on land fill which would interfere with the flow of such flood waters; (i) not have a septic tank drainage field located in such a way as to pollute watercourses; and (j) be located in such a way as to maximize the retention of existing native vegetation and retain watercourses in their natural state." "Principle 6. Buildings, including structures, should be designed in such a way and be of such a scale as to be unobtrusive and not detract from the desired natural character of the zone and, in particular: (a) buildings should be of a single-storey; (b) the profile of buildings should be low and the roof lines should complement the natural form of the land; (c) 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; (d) large eaves, verandahs and pergolas should be incorporated into designs so as to create shadowed areas which reduce the bulky appearance of buildings; and (e) the mass of buildings should be minimized by having separate vehicle storage areas." "Principle 7. The external materials of buildings should: (a) have surfaces which are of a low light- reflective nature; and (b) be of dark natural colours such as brown and green so as to be unobtrusive, blend with a natural rural landscape and minimize any visual intrusion." "Principle 9. Buildings: (a) should have a year-round water-supply and a safe and efficient effluent disposal system which will not pollute watercourses or underground water resources or be a risk to health; and (b) should have a safe, clean, tidy and unobtrusive area for the storage and disposal of refuse so that the desired natural character of the zone is not adversely affected." "Principle 11. The location and design of a building should be such that the bushfire risk is minimized and, in particular, should be such that: (a) the building is located well below the ridge line; (b) there is safe and convenient access for fire fighting vehicles, with such vehicles being able to enter and leave the allotment in a forward direction; (c) a reliable and readily available water-supply for fire fighting purposes is provided at all times for each building with each source having a large diameter water outlet. (d) the building has a reinforced concrete on- ground slab construction, while in those limited situations where timber floors are elevated, the floors and their supports should be "fire rated" and the sub-floor spark proofed; (e) the external walls and roof are of materials which are not easily combustible and which have spark resistant sub-structures for tiled or similar types of roofs; (f) all external doors, windows, vents and other openings, particularly roof vents and gable ends, have non-corroding, spark proof screens; (g) eaves are sealed; and (h) if a sprinkler system is to be installed, it should have a guaranteed water-supply independently powered pumps and all exposed plumbing of metal." "Principle 13. The number of outbuildings should be limited, and where appropriate they should be grouped together, located in unobtrusive locations and comply with the previously mentioned principles relating to the location and design of buildings." "Principle 25. The following kinds of development are complying in the Hills Face Zone: Agistment and Holding of Stock Agriculture, but not including: (a) excavation or filling of land; (b) the construction of roads, tracks and thoroughfares; (c) the erection, construction or alteration of, or addition to, any building or structure; (d) the clearing of native vegetation; or (e) market gardening within the Mount Lofty Ranges Watershed."

12. With the exception of horse keeping, Intensive Animal Keeping is designated by Zone Principle 26 as a non-complying form of development in the Hills Face Zone.

13. The case for the appellant consisted entirely of evidence given by Mr T Linke, husband of the appellant, who represented her in these proceedings. At the close of that case, Mr Henry made an application pursuant to Section 17(4)(b) of the Environment Resources and Development Court Act 1993 to the effect that it was appropriate for the Court to find in favour of his clients, Ms Banner and Mr Johnson, without hearing their case. The basis of this submission was that no case had been put to the Court by the appellant sufficient for the second respondent to answer.

14. Section 17(4) of the Environment Resources and Development Court Act 1993 is in the following terms:

"(4) Subject to rules of the Court, the Court may, if of the opinion that it is appropriate to do so, on its own initiative or on the application of a party to the relevant proceedings - (a) dismiss or determine any proceedings (with costs) that appear to be frivolous or vexatious, or to have been instituted or prosecuted for the purpose of delay or obstruction; (b) after hearing the applicant in the proceedings, find in favour of the respondent without hearing the respondent; (c) give summary judgment (with costs) against any party who obstructs or delays the proceedings, fails to attend any proceedings or fails to comply with a regulation, or a rule or order of the Court."

15. Placitum (b) of Section 17(4) affords the Court a broad discretion inasmuch as it does not set out the circumstances in which the Court should exercise the powers vested in it thereby. However, it seems to me that it is intended to apply in those circumstances in which the Court concludes, having heard the case for an appellant, that there is no case for the respondent to answer.

16. The onus placed on an applicant to establish that a respondent has a case to answer was considered, albeit in a somewhat different context, by the Full Court of the Supreme Court in The Queen v Judge Stevens; ex parte Tip Top Dry Cleaners Pty Ltd 43 SASR1. That matter involved the interpretation of Section 36 of the then Planning Act 1982, the relevant provisions of which were as follows:

"36. (1) Where a person contravenes or fails to comply with a provision of this Act or has contravened or failed to comply with a provision of the repealed Act the Commission or a Council may apply to a District Court for an order under this action. (2) The application may be made ex parte, and if the court is satisfied on the application that the respondent has a case to answer, it shall issue a summons requiring the respondent to appear before the Court to show cause why an order should not be made against him under this section."

17. In the lead judgment in Stevens, Olsson J., at 11, made the following observations about the onus to be discharged by an applicant under Section 36 in order to establish that a respondent had a case to answer:

"It is clear that the concept of whether or not there is a case to answer does not concern itself with any value judgment as to reliability or weight of evidence as such. Rather it involves an assessment as to whether there is some reasonable basis of evidence (not, on the face of it, inherently incredible) which, if it was accepted by the Court, would be capable of establishing the matters to be proved by sub-s (1) of s.36 on the balance of probabilities."

18. While the Planning Act 1982 has now been repealed, and Section 17(4)(b) of the Environment, Resources and Development Court Act 1993 applies to all proceedings under that Act, rather than being limited to enforcement proceedings as was the case with Section 36 of the former Act, the test enunciated in Stevens remains, in my view, relevant to the assessment of applications made pursuant to Section 17(4)(b).

19. Further assistance is provided by observations made by a full bench of this Court in its decision in Carey and Bourdon v Development Assessment Commission and Borrelli 1994 EDLR 233, at 237:

"..... an appellant should present a case of substance; ...... assertions should be supported by evidence amounting to more than a collection of presumptions by an unqualified observer...... Generally, it would not be enough to merely raise an issue without producing supporting evidence, particularly when the issue had been addressed by the developer as part of the development application."

20. I have considered the case put by Mr Linke on behalf of the appellant in the light of the observations above. Distilled to its essence, that case was as follows:

1. The proposal would not be sustainable in the long term, because it would not generate income which could be applied to the upkeep and maintenance of the subject land. As a consequence, the land would become degraded, with resultant environmental problems; 2. The number of horses proposed to be kept on the subject land exceeded the sustainable stocking rate for a property of that size, especially having regard to the proportion of the subject land actually available for the purpose; 3. The keeping of horses in the numbers proposed on the subject land would result in stress on the horses and render them more susceptible to disease. Horses were a potential vector for Ovine Johne's disease, an outbreak of which would have dire economic consequences for the appellant's goat breeding business; 4. The proposal would increase the risk of bushfires or bushfire damage on the appellant's land; 5. The proposal would result in polluted stormwater entering the appellant's land, which stormwater was likely to find its way into the appellant's dam (used for some domestic purposes) and into the nearby watercourse; 6. Flatter land adjacent the Banner and Johnson residence was better suited to horsekeeping than the areas proposed; 7. The proposal would result in the denudation of pastures from overgrazing, with consequential potential for erosion and dust; 8. Prevailing winds would also create a dust problem at the appellant's residence as a consequence of the proposed siting of the horse yard; 9. Noise nuisance would be created at the appellant's residence as a consequence of the proximity to that residence of a stable and storage shed to be used in association with the keeping of horses; 10. The proposal would result in an unacceptable clustering of buildings in the Hills Face Zone with consequential adverse effects on the appearance of the locality as viewed from the Linke property and the Old Willunga Hill Road; 11. The management of the subject land in the past, bearing in mind that horses had been on the land for some years, did not suggest that the second respondents would adhere to the management conditions imposed by the Council. 12. As a consequence of the above, the proposal would conflict with a number of provisions of the Development Plan, in particular Zone Principles 4, 5, 9, 11, 13 and 24.

What evidence was brought by the appellant in support of these assertions?

1. Sustainability Principle 5 in the Rural Development Section of the Willunga (DC) Metropolitan part of the Development Plan make reference to "sound land management practices" being the basis for sustainability. Nothing was put before me to suggest that such practices were possible only on economic farm units. 2. Stocking Rate Prior to making its decision to approve the subject proposal, the Council had received advice from the Education Co-ordinator of the Land Management Program for the Northern, Central and Southern Hills Soil Conservation Boards to the effect that the subject land "can easily support the two horses and one pony without degrading the land". In the light of that advice, it would, in my view, be necessary for the appellant to lead evidence from a suitably-qualified horsekeeping or soil conservation expert in order to challenge the proposed stocking rate. No such evidence was led. 3. Disease Risk Prior to making its decision, the Council had before it advice from the S.A. Department of Primary Industries, that Ovine Johne's disease had never been diagnosed in horses in Australia. While Mr Linke contested this, his view was not supported by evidence from an appropriately-qualified expert, nor by any substantive evidence of his own. 4. Bushfire Risk Prior to making its decision, the Council had before it advice from the Country Fire Service Bushfire Prevention Unit to the effect that it had no report to make on the application. No evidence was led from an appropriately-qualified expert to gainsay the apparent lack of concern, on the part of the CFS, regarding any bushfire risk created by the subject proposal. 5. Water Pollution It was common ground between the parties that stormwater from the subject land previously entered the appellant's land, and that it would continue to do so, possibly in slightly larger quantities, in the event that the proposal was approved, as a consequence of the replacement of a pasture paddock by a horse yard. However, no expert evidence was led by the appellant to suggest that conditions imposed by the Council in relation to stormwater runoff would not suffice to ensure that stormwater entering the appellant's land was no more polluted than it was prior to the introduction of three horses to the subject land. 6. Alternative Area Available The availability of an alternative area for the subject proposal would, in my view, be of relevance only if the appellant was able to demonstrate that the proposal, in its intended location, was unacceptable, having regard to the relevant provisions of the Development Plan. It does not, of itself, constitute a basis upon which the proposal could be attacked. 7. Denudation of Pasture Prior to making its decision, the Council had received advice from the Southern Hills Soil Conservation Board and from the Education Coordinator of the Land Management Program for the Northern, Central and Southern Hills Soils Conservation Boards to the effect that the subject land was adequately managed at present. Additionally, conditions of consent imposed by the Council required ground cover to be established in all horse paddocks and that the latter be maintained and kept free of proclaimed pest plants. Specifically, 70% cover and a 3cm minimum height of ground cover had to be maintained in all paddocks at all times. The proposition put by Mr Linke, that this could not be achieved on the subject land, could be given weight only if this view was supported by an appropriately-qualified expert in soil conservation. 8. Dust No evidence was put to me which would suggest any real likelihood of dust problems being experienced at the appellant's dwelling as a consequence of the establishment of a horse yard and associated facilities, and the keeping of horses, on the subject land. 9. Noise While an assertion was made by Mr Linke that noise nuisance had been and would be caused by the proposal, no evidence was put to me detailing the nature of such noises, and how often, and at what times, they had been experienced in the past. 10. Visual Impact From my own observations on the view, the structures which would result from the proposal proceeding (two horse shelters, one 2.9m x 3.75m, the other 3.75m x 3.75m) would be largely, if not entirely, screened from view, from both the appellant's land and from the Old Willunga Hill Road, by existing vegetation. While I accept that aesthetics are, to some degree, subjective, nothing was put before me to suggest that those structures, to the extent that they would be visible from outside the subject land, would be out of keeping with the existing character of the locality, which already contains a significant number of farm buildings. 11. Management Practices Mr Linke tendered a number of photographs as evidence of what he considered to be poor management of the subject land in past. Against that evidence was the advice of the Southern Hills Conservation Board that the property was being appropriately managed. To make out a case of substance based on this ground, it would be necessary, in my view, for independent expert evidence to be led to the effect that: (a) the photographs were, in fact, confirmation of poor management practices; and (b) the conditions imposed by the Council were either inappropriate for the purpose of ensuring appropriate management of the land or incapable of implementation. No such evidence was given.

21. An unusual feature of the evidence for the appellant was that it was given entirely by Mr Linke, who also performed the role of advocate for the appellant. Documents tendered in evidence by Mr Linke indicate that he holds qualifications in Economics and Rural Business Management, and has been involved in primary production since 1979, albeit predominantly on a part-time basis. In some circumstances it may be that his qualifications and expertise might be such as to give him standing as an expert in certain areas of agricultural activity. However, he cannot be accorded such standing in this matter.

22. The duties and responsibilities of expert witnesses in civil cases were formulated in some detail in an English case, National Justice Compania Navera v Prudential Assurance Co Ltd, The Ikarian Reefer [1993] 2 Lloyds Rep 68 and [1995] 1 Lloyds Rep 455, a case in which the Court of Appeal endorsed the statement of the English Commercial Court that the duties and responsibilities of such witnesses included, inter alia, a responsibility to provide independent assistance to the Court by way of objective, unbiased opinion in relation to matters within the expert's expertise, a responsibility which clearly precluded an expert witness assuming the role of advocate. As both the advocate for, and spouse of the appellant, Mr Linke's evidence could not be relied upon to be objective and unbiased, even within areas in which he might be able to claim some expertise.

23. Most, if not all the assertions made by Mr Linke during his extensive evidence, to be given any weight, required the support of an independent expert or experts, flying as they did in the face of the advice of specialist, expert authorities, which advice was before the Council when it made its decision to approve the proposal. Where his assertions were not of a kind which would require substantiation by experts, for example, the visual impact of proposed structures on the subject land, they were not substantiated by my own observations of conditions on that land.

24. I do not wish to be taken as saying that supportive expert evidence is an essential pre-requisite to surviving applications made pursuant to Section 17(4)(b) of the Environment, Resources and Development Court Act 1993. Evidence of fact rather than opinion, given by unqualified observers, if consistent with, or corroborated by, the Court's own observations on a view, may be sufficient to establish a case of substance. Assertions unsupported by evidence of fact are unlikely to do so.

25. I have given careful consideration to the evidence given by Mr Linke for the appellant in this matter. I have excluded, for the purpose of considering Mr Henry's application pursuant to Section 17(4)(b), the evidence of Mr Heinrich, a qualified town planner called by the Council, but have taken into consideration the expert advice which was available to the Council when it made its decision. Having done so, I have concluded that no case has been put to the Court by the appellant sufficient for the second respondent to answer. Accordingly, I have decided in favour of the respondents without hearing the second respondents. There will be an order dismissing the appeal.