|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Environment Resources and Development Court of South Australia Decisions |
Last Updated: 3 April 2000
Judgment of His Honour Judge Bowering
Respondent THE CORPORATION OF THE CITY OF ADELAIDE:
Counsel: MR S WALSH QC
Respondent S.A.C.A.:
Counsel: MR S HENRY - Solicitors: FINLAYSONS
ERD-00-33
Judgment No. [2000] SAERDC 8
3 February 2000
THE NORTH ADELAIDE SOCIETY INC
v
THE CORPORATION OF THE CITY OF ADELAIDE
and
SACA
E.R.D.C. No. 33 of 2000
JUDGEMENT OF HIS HONOUR JUDGE BOWERING
1 By decision notice dated 16th December, 1999, the Corporation of the City of Adelaide granted provisional development plan consent to the South Australian Cricket Association to undertake a development, described in the notice, as "Construct four permanent light towers to replace retractable towers" on land commonly known as the Adelaide Oval. The notice was issued as a consequence of a decision of the Development Assessment Committee of the Council made at a special meeting held on Tuesday, 14th December, 1999. The North Adelaide Society Inc., having made representations to the Council opposing the construction of the light towers at the Oval, was aggrieved by the Council's decision and has appealed, on a number of grounds, to this Court against it.
2 Briefly, the history of this matter goes back to December, 1993, when the Council granted to SACA, development approval to erect four, 63 metre high, retractable lighting towers at the Adelaide Oval. The towers were duly installed and, I assume, commenced to function. However, on 17th March, 1998, one of the towers collapsed, since which time the remaining three towers have remained in an upright position. Approval for the erection of a temporary lighting tower to function in the stead of the one which had collapsed was granted in January, 1999. Then, on 1st October, 1999, the development application which gave rise to this appeal was made. The development proposed was described, in the application form, as "construction of lighting towers". The application was accompanied by a series of plans and montage photographs, plus a letter which contained the following:-
"We anticipate that this application meets your requirements and request that Council grant provisional development plan approval. We believe that this infrastructure is a vital addition to ensure the ongoing viability of Adelaide Oval as a world class sporting venue.
This application continues an existing approved use and has been carefully designed to minimize visual intrusion on the City's landscape and to compliment the significant heritage elements of Adelaide Oval."
3 The Adelaide Oval is both a state heritage place and lies within the boundaries of a map entitled "Airport Building Heights" as contained in the Adelaide (City) provisions of the Development Plan. Thus, pursuant to Section 37 of the Act and Regulation 24 of the Development Regulations, the Council was required to refer the application to both the Minister for Environment & Heritage and the Department of Transport and Regional Services. This it did. The Minister responded by recommending the inclusion of two conditions in any approval which may be granted by the Council, whilst the Department advised that it had no objection to the proposed height of the towers. For the purposes of Section 38 of the Act, the Council also classified the proposed towers as a category 2 development and consequently pursued the notification procedures prescribed by subsection 38(4). It is that classification which the Society now challenges. The parties agreed to deal with the question of whether that classification is correct as a preliminary issue, for if it is correct, the appellant has no right of appeal to this Court. At the hearing, Mr Beamond appeared for the Society, Mr Walsh QC for the Council and Mr Henry for SACA.
4 The basis for the categorization of developments is found in Section 38 of the Development Act. The relevant provisions are as follows:-
"38. (1) There will be three categories of development for the purposes of this section -
(a) Category 1 development; and
(b) Category 2 development; and
(c) Category 3 development.
(2) Subject to subsection (2a), the following provisions apply in relation to the assignment of developments to those categories:
(a) the regulations or a Development Plan may assign a form of development to Category 1 or to Category 2 and if a particular form of development is assigned to a category by both the Regulations and a Development Plan, the assignment provided by the Development Plan will, to the extent of any inconsistency, prevail within the area to which the Development Plan relates; and
(b) any development that is not assigned to a category under paragraph (a) will be taken to be a Category 3 development for the purposes of this section."
5 For the purposes of subsection 38(2)(a) of the Act, subregulation 32(3) of the Development Regulations assigns, to category 2, the various forms of development specified in Part 2 of Schedule 9 to the Regulations. Thus, included in the various forms of development assigned a category 2 classification, is:-
"3. Except where the development is classified as non-complying under the relevant Development Plan, or is of a temporary nature only, any development within the Parklands District of the City of Adelaide which comprises an alteration of, or an addition to, an existing outdoor recreation activity."
6 The Adelaide Oval lies within the Parklands District as prescribed by those provisions of the Adelaide (City) Development Plan appearing under the heading "Preliminary" and in diagram A. It lies also within the PL17 - Torrens Lake Precinct - diagram D. Page three of the report presented to the special meeting of the Development Assessment Committee of the Council held on 14th December, 1999, discloses that this was the basis upon which the Council classified the light towers as a category 2 development.
7 Mr Beamond submitted that the proposed towers should have been classified, by the Council, as a category 3 development. The basis of this submission is that they cannot be properly classified as a category 2 and thus, because of subsection 38(2), must be category 3. They cannot, he said, be category 2 because they do not fall within the category 2 developments described by paragraph 3 of Part 2 of the Ninth Schedule. He put two reasons for this, the first being that the paragraph has no application because the towers are "classified as non-complying under the relevant Development Plan". Thus the first question is whether that contention is correct. When considering that question, I ignored General Principle 4 of the Development Plan, for that applies to only four of the five districts within the City, the one to which it does not apply being the Parklands District. The General Principles applicable to the Parklands District are numbered 54-70. Principle 55 is in the following terms:-
"P55 PARK LANDS DEVELOPMENT GENERALLY
The Park Lands should be used for a diversity of outdoor recreation uses, the nature of which is specified in the Statement of Desired Future Character of the relevant precinct. Indoor recreation is considered to be contrary to the open character desired for the Park Lands and should be restricted to existing, specified or proposed buildings as set out in the Statement of Desired Future Character for the relevant precinct. Unless otherwise described as being appropriate in the Statement of Desired Future Character for the relevant precinct, all other uses are considered to be incompatible with the character desired for the Park Lands District, and are non-complying.
Office use in Park Lands buildings is non-complying except where such use is desirable for the retention of heritage items.
The introduction of new and the expansion of existing active and intensive outdoor recreation uses should be restricted except where specified in the Statement of Desired Future Character of the relevant precinct.
Landfill is not desirable and is non-complying in the Park Lands District." (underlining mine).
8 Mr Henry submitted that the words "the Park Lands should be used for a diversity of outdoor recreation uses" as appearing in the first sentence of the Principle should be read disjunctively from the words which follow it, namely "the nature of which is specified in the Statement of Desired Future Character of the relevant precinct." In his submission, the terminology is such that any activity falling within the words "used for a diversity of outdoor recreation uses" constitutes a use acceptable in the Park Lands. Having considered the terms of the Principle as a whole, I do not think this submission represents the better view. As I construe the terms of the Principle, it supports only those outdoor recreation uses which are described as being appropriate in the Statement of Desired Future Character for the relevant Park Lands precinct - all other uses are considered to be incompatible with the character desired for the Park Lands District and are thus classified, by the Development Plan, as non-complying.
9 As I have said, the Adelaide Oval lies within the PL17 Torrens Lake Precinct. The Development Plan provisions applicable to that precinct do not contain provisions specifically designated as a "Statement of Desired Future Character". The desired future character of the precinct must, I think, be gleaned from those precinct provisions which speak to that character. In my view, those provisions are as follows:-
"PL17 TORRENS LAKE PRECINCT
The Torrens Lake Precinct should serve as a centre for important outdoor civic, leisure and cultural functions for the City based on the Adelaide Oval, Torrens Lake, Elder Park and Memorial Drive tennis courts. The environment of 'Light's Vision' should be improved and enhanced.
ACTIVITIES
The Precinct should accommodate a wide range of active and passive recreation activities. The Torrens Lake should continue to be used for formal and informal boating activities and events. The existing intensive recreation activities at Adelaide Oval and Memorial Drive should continue, but be contained within the existing sites.
ENVIRONMENT
Planting Character and Landscape Design
The Torrens Lake Precinct should retain its soft landscape character and be carefully integrated with the Adelaide Railway Station Redevelopment. North Terrace should be linked to the Torrens banks over the railway lines by terraces. The Adelaide Oval should be retained in its setting, and the adjacent existing character of gardens preserved and enhanced. Victor Richardson Road should be better integrated into the Park environment and enhanced as the major axis of entry via the Victor Richardson Gates to the Adelaide Oval by prohibiting car parking.
The area adjacent to the Torrens Lake should be maintained and developed as open space including additional red gum plantings to strengthen the riverside theme.
Elsewhere the theme of mixed deciduous and evergreen tree species should be continued.
Permanent Structures
Existing buildings and structures in the Park should be retained and their appearance improved where necessary to be more sympathetic to their Park Lands setting.
Additional buildings should only be permitted where it is shown to be necessary for the continuation of intensive recreation usage.
Advertising signs will not be permitted within Adelaide Oval or the Memorial Drive tennis complex where they would be readily visible from outside the ground."
10 I have come to the conclusion that the proposed light towers may reasonably be regarded as "described as being appropriate in the Statement of Desired Future Character" for the PL17, as those words are used in Principle 55, for the following reason:-
· They are part of the existing intensive recreational activities presently conducted at Adelaide Oval,
· they are to be contained within the existing site, namely the Adelaide Oval,
· they do not effect the retention of the Adelaide Oval in its setting,
· in so far as the term "buildings" includes the proposed structures, they constitute additional buildings which are, to some extent, necessary for the continuation of the intensive recreation usage at the Adelaide Oval,
and
· they will not carry advertising - condition 8 of provisional development plan consent.
11 I am therefore of the view that General Principle 55 of the Adelaide (City) provisions of the Development Plan does not classify the proposed light towers as a non-complying development.
12 Mr Beamond submitted that, in any event, the proposed towers do not fall within the form of development referred to in that part of paragraph 3 which refers to:-
"..... any development within the Park Lands District of the City of Adelaide which comprises an alteration of, or an addition to, an existing outdoor recreation activity."
13 His submission proceeded along these lines: the proposed development involves the demolition of the existing retractable towers (including the temporary lighting tower approved in January, 1999) and the erection, in their stead, of four fixed towers 64.5 metres high with a base diameter of 2.5 metres. The fixed towers will not add to or alter anything, although their impact will be vastly different to that of the towers which they are to replace. Although the term "outdoor recreation activity" is not defined, it is clear that the towers will not add to or alter any sporting or other outdoor recreation activity. The towers are simply a building work - they are not an activity. Furthermore, he submitted, the Adelaide Oval itself is not an existing outdoor activity - it is a stadium upon which such activities are undertaken. The towers will constitute an addition to a stadium, and not an addition to a recreation activity.
14 For the Council, Mr Walsh referred to some of the Oval's history. It is believed that the Oval's origins lie in a game of cricket which began in 1856 with the South Australian Cricket Association being formed in 1871. It appears that football was first played on the Oval in 1875. The first game played under lights occurred sometime in the 1880's, although the lighting appears not to have been particularly successful. The Oval has been used for entertainment since 1885. There is no doubt, he submitted, that the Oval has a long history and remains a place of outdoor recreation activity. The determination of whether the proposed towers will comprise "an alteration of, or an addition to, an existing outdoor recreation activity" involves the task of interpretation, which task, he submitted, must be undertaken against the background of the Development Act, Development Regulations and Development Plan. With this in mind, he referred to the definition of "intensive outdoor recreation" lying within the interpretation provisions of the Adelaide (City) Development Plan. I accept that, on at least one reading of it, that definition may be construed in a way that the term "outdoor recreation" is intended to include buildings and structures such as grandstands and swimming pools. However, it is generally accepted that the provisions of the Development Plan cannot be used to interpret terms used in either the Development Act or the Regulations. Hence, when determining the proper meaning of the words "recreation activity" as used in the Ninth Schedule to the Regulations, I have not had regard to either the definitions contained in or other provisions of the Development Plan.
15 If I understand him correctly, Mr Walsh conceded that the drafting of paragraph 3, when using the words "existing outdoor recreation activity", used words which, logically, not lead to the conclusion that the paragraph is not intended to cover buildings and structures related to such activities. However, he suggested that, when looked at in practical terms and with common sense, and mindful of the fact that the Development Act, Regulations and Plan are superimposed on existing developments, it was clearly intended that the paragraph apply not merely to a "recreation activity" in the narrow sense but include any facilities, such as the proposed towers, used in the course of or for the purpose of such activity.
16 Having considered the submissions of counsel, I have come to the conclusion that, the answer to this conundrum lies in the words "any development'. Briefly, my views are as follows:-
· The phrase "any development within the Park Lands District of the City of Adelaide which comprises an alteration of, or an addition to, an existing outdoor recreation activity" must be read as a composite phrase. The developments, included in this portion of the Ninth Schedule and thus categorized as category 2, are not existing outdoor recreation activities but rather any developments falling within the scope of the words "any development" as used in the paragraph.
· The words "any development" are wide. Subject to any additions or detractions prescribed by the Regulations, the words cover any development falling within the definition of "development" found in Section 4 of the Act. As I construe that definition, there is no warrant for construing it in such a way as not to include buildings or structures, large or small. It includes the proposed towers.
· Given that the towers fall within the words "any development", will they comprise an alteration of or an addition to an existing outdoor recreation activity? The use of the Adelaide Oval, both in the past and at present, for such an activity is not in question.
· What sort of developments did the framer of the Schedule envisage as ones which might be reasonably construed as comprising an alteration of or an addition to such an activity. The paragraph itself provides the answer. The answer is "any development". It is not limited, as was suggested by Mr Beamond, to a change, extension or intensification of an existing use or activity.
· The use, in the paragraph, of the words "alteration of, or an addition to" indicate an intention to apply to structures. Those words, although not without application to the use of land, are more generally used in connection with alterations of or additions to buildings or structures.
· Whilst it is true that, if one chooses to apply strict rules of both grammar and logic, it can be said that the construction of the lighting towers - taken alone - does not lead directly to the conclusion that there will be any change to the recreation activities currently undertaken on the Oval, I think it inappropriate to decide the issues raised in this part of the case on the ground that the lights proposed will never be turned on or that the recreation activities currently undertaken on the Oval will not change as a consequence of their use. In the field of planning, it is generally accepted that there is such a close correlation between the erection of a building or structure, on the one hand, and the use of that building or structure, on the other, that to view the two in isolation is to adopt an approach which is so unrealistic as to be, I think, beyond the contemplation of the drafter of the Regulations. The legislation under consideration relates solely to planning and development control, and should, in my view, be construed accordingly.
· I am of the view that the proposed towers will constitute a development comprising an alteration of, or an addition to, the existing outdoor recreation activities currently undertaken on the Adelaide Oval.
17 In so saying, I have not overlooked Mr Beamond's submission that the proposed towers should not be viewed as oval structures, additions or improvements but as a separate development having a separate and distinct classification of its own. The basis of his submission is the judgement of the Full Court of the Supreme Court in the matter of The City of West Torrens v McDonalds Properties (Aust) Pty Ltd (1985) 38 SASR 467, a case in which the Court decided that a freestanding pylon sign, to be located within the curtilage of an existing shop and advertising products sold within the shop, did not constitute part of or an extension to the shop, but rather a pylon sign. The manner of the classification of that development was important because, depending upon it, was the question of whether the development proposed was prohibited. However, there was no doubt that it constituted a "development" as defined by the relevant legislation. In this case, the question of whether the lighting towers should be viewed as an addition to existing oval structures, separate pylons, a change in land use or something else is a pointless argument. However one may seek to describe them, they fall within the words "any development" as used in paragraph 3 of Part 2 of the Ninth Schedule to the Regulations.
18 Before departing this topic, I think it appropriate to refer briefly to subregulation 16(1) of the Development Regulations, the terms of which are as follows:-
16. (1) If an application will require a relevant authority to assess a proposed development against the provisions of a Development Plan, the relevant authority must determine the nature of the development, and proceed to deal with the application according to that determination."
19 Given that the Council, in this case, was required to assess the proposed towers against the provisions of the Adelaide (City) Development Plan, the subregulation applied in this case. When dealing with this application, which described the proposed development as "construction of lighting towers", the record indicates that the Council construed it as an application involving not merely the construction of the towers but also the use of the lights proposed to sit atop them. There is also little doubt that the Council construed the construction of the towers and the use of the lights as an activity which would have an impact upon - comprise an alteration of - the activities currently undertaken at the Oval. The conditions imposed as part of its approval make that plain. Thus the Council, in accord with the obligations imposed upon it by Regulation 16, determined the nature of the development as extending beyond the mere "construction of lighting towers" and to include the use of the lights in such a way as will alter or add to the current Oval activities. In my view, this was a reasonable approach in the circumstances. Mr Henry referred to the decisions of the Supreme Court in the matters of The Queen v The Corporation of the City of Tea Tree Gully ex parte Concrete Systems Pty Ltd (1986) 133 LSJS 277 and Craig v Corporation of the City of Burnside (1987) 135 LSJS 458 as authority for the proposition that the decision of a Council to determine the nature of a development in a particular way should be accepted unless it is clearly wrong. Although I recognize that the manner in which the Council determined the nature of this development is the subject of argument, I do not think that the Council was, in this case, clearly wrong. Indeed, I am of the opinion that it was right.
20 For these reasons, I am of the opinion that the decision of the Council to classify the proposed lighting towers as a category 2 development was correct. Section 38 of the Development Act confers no right of appeal against the Council's decision to grant provisional development plan consent to the proposed towers. Accordingly, the order of the Court is that this appeal is struck out.
21 I think it appropriate to add, in conclusion, that when hearing and deciding the preliminary question dealt with in this judgement, I have not overlooked the views expressed by Her Honour Judge Trenorden in McMullen v City of Playford Judgement No. (1999) SAERDC 44 and Verdow v City of Unley and Mere, Judgement No. (1999) SAERDC 68, cases in which Her Honour declined to determine whether a council's determination of a classification of a development for the purposes of Section 38 of the Development Act was correct. I hope that my decision to deal with the preliminary issue raised in these proceedings will not be seen as a dissent from her views. After careful consideration, I decided that, in this case, the most appropriate course was that I decide the issue. My reasons were as follows:-
· First, in this case the Council gave public notice of the application, a course which it was legally required to pursue only if the development proposed was category 3. This course meant that the Society was able to claim that, having received notice applicable to a category 3 development, the development was, in fact, a category 3 development and that, as "a person who is entitled to be given a notice of a decision in respect of a category 3 development under Section 38" as those words are used in subsection 86(1)(b). This submission left me little alternative other than to decide whether the Society was a person entitled to be given such notice.
· Secondly, the parties jointly requested me to determine the issue. In the circumstances, I thought it appropriate so to do.
2
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/sa/SAERDC/2000/8.html