Frankham v City of Adelaidenam No ERD-01-818 [2002] SAERDC 11 (23 January 2002)

Last Updated: 24 June 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of His Honour Judge Bowering

Hearing

27/11/2001.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development Act 1993 - Section 5 and Section 84 - Enforcement proceedings - Development Regulations 1993 - Regulation 3 - definitions of "shop" and "restaurant" - definition of "adult products and services" in City of Adelaide Development Plan - definition invalid - enforcement notice alleging offence of using premises as "adult products and services" invalid - direction in notice quashed - consideration of whether change in use of premises from a restaurant to a shop constitutes a change in the use of land.

• Development Act 1993 ;
• Sullivan v District Council of Riverton [1997] SASC 6271; (1997) 69 SASR 234, at page 246 ;
• Board (1998) 72 SASR 383, at page 388 ;
• Shuttleworth (1979) 20 SASR 515, at page 522 ;
• at page 255 , referred to.

Representation

Appellant: CRAIG FRANKHAM
Counsel: MR B HAYES QC - Solicitors: MANOS & ASSOCIATES

Respondent: CITY OF ADELAIDE
Counsel: MR G LEYDON - Solicitors: NORMAN WATERHOUSE

ERD-01-818

Judgment No. [2002] SAERDC 11

23 January 2002

CRAIG FRANKHAM

v

CITY OF ADELAIDE

(ERDC No. 818 of 2001)

[2002] SAERDC 11

JUDGEMENT OF HIS HONOUR JUDGE BOWERING

1. This is an appeal against a direction contained in an enforcement notice issued pursuant to Section 84 of the Development Act 1993 by the Adelaide City Council to Mr Craig Frankham. It relates to premises situated at 137-139 Hindley Street, Adelaide, and is in the following terms:-

ADELAIDE CITY COUNCIL

DEVELOPMENT ACT, 1993

SECTION 84 ENFORCEMENT NOTICE

TO: Mr Craig Frankham

C/- 137 Hindley Street

ADELAIDE SA 5000

FROM: The Adelaide City Council

5 Pirie Street

ADELAIDE SA 5000

WHEREAS:

A. You are the occupier of the land and the building upon the land located at 137-139 Hindley Street, Adelaide SA 5000.

B. The Council believes that you have breached the Development Act 1993 ("the Act") in that:-

You have undertaken development, namely the changing of the existing authorised use of the ground floor premises located at the above address from "restaurant" to "adult products and services" without development approval contrary to Section 32 of the Development Act 1993.

C. The Council considers that it is necessary and appropriate in the circumstances that you be directed to refrain from the course of action that constitutes the breach.

YOU ARE DIRECTED to:-

1. Cease immediately all activity, which constitutes development, and which is not approved development.

2. Return the ground floor premises to its original approved use.

DATED: the 31 July 2001.

SIGNED: ...........................

L. Palumbo

Authorised Officer of the Corporation of the City of Adelaide

2. The notice of appeal contains a number of grounds. However, the parties have requested me to deal, in this judgement, with only the first three, which grounds are as follows:-

"1. The Appellant has not changed the use of the premises.

2. If the Appellant is occupying the premises (which is not admitted) there has been no change of use of the premises in that the premises were being used as a shop (restaurant) and any (current) use of the premises is for a shop.

3. The premises are not being used for "adult products and services."

3. To assist me to resolve some of the questions thus raised, the parties have filed a statement of agreed facts and issues. The facts agreed in that statement are as follows:-

"1. The land the subject of this appeal if known as 137-139 Hindley Street, Adelaide and is more particularly described in Certificate of Title Register Book Volume 5320 Folio 762 ("the land").

2. The land is owned by Thomas Dimitriou Kalliontzis, Maria Kalliontzis, and Anthea Vardalos of 37 Grandview Road, Panorama and is situated in the CA3 Hindley Street Precinct pursuant to the Council's Development Plan.

3. The ground floor of the building on the Land ("the Ground Floor") is occupied by Craig Frankham.

4. Mr Frankham uses the Ground Floor for his business operating under the name The Box ("The Box").

5. The Ground Floor was previously used for the purposes of a restaurant, with the last operating restaurant being known as the "Olympia Restaurant". The Ground Floor was vacated by the Olympia Restaurant in or about 1997.

6. Before the use of the Ground Floor for the purposes of The Box, the use of those premises for the purposes of a restaurant had not been discontinued.

7. On 20 July 2001 following an inspection of the Ground Floor, the Council wrote to Mr Frankham confirming the meeting of 18 July 2001 and the requirement for a development application to be lodged for a change in the use of the Ground Floor.

8. On 31 July 2001 Mr Palumbo of the Council conducted an inspection of the Ground Floor. At that time the premises were being used for the sale by retail of goods, merchandise and materials including publications (restricted under the Classification (Publications, Films and Computer Games) Act 1995), video tapes and objects or devices designed to be used in connection with sexual behaviour or activities and the hire or exchange of video tapes and the following products:

8.1 clothing, imported lingerie, costumes, leather clothing;

8.2 comics;

8.3 novelty items including masquerade masks, women's stockings, perfumes, massage oils.

9. On 31 July 2001 the Council issued an Enforcement Notice ("the Section 84 Notice") pursuant to Section 84 of the Development Act 1993.

10. By Notice of Appeal dated 6 August 2001, Mr Frankham, through his representatives, lodged an appeal against the Section 84 Notice."

4. Upon the appeal coming on for hearing Mr Hayes QC with Mr Manos appeared for the appellant and Mr Leydon for the City of Adelaide.

5. The agreed facts were supplemented by evidence given by Mr Louis Palumbo, a development enforcement officer employed by the Corporation of the City of Adelaide and the officer who signed and issued the enforcement notice. His evidence, which was not disputed, was that, as a consequence of information received, he visited the premises on 2nd April, 2001. He saw one of the owners of the land removing some of the restaurant fittings, such as cooking equipment. He returned to the Council office and ascertained that no approval had been issued for such work. He returned the next day but was unable to gain access to the premises. He saw publicity advertising "The Box" displayed in one of the windows of the premises and took several photographs. He returned to the premises again on the 5th and 13th of July, but was unable to access. He took further photographs on the 13th. He returned twice more on the 18th July, the second occasion being approximately 8.00pm, on which occasion both he and another officer inspected the premises. He saw, displayed within the premises, items such as lingerie and comics, "X" videos and "X" magazines sealed in plastic covers and other goods, which he described as "goods associated with sexual activities", such as vibrators. He took further photographs on the 31st July and the 24th October, 2001. All photographs to which I have referred have been tendered as exhibits to the Court.

6. In his notice of appeal, the appellant attacks the notice on a number of grounds. The parties have jointly requested me to deal, in this judgement, only with those grounds which relate to the validity of the notice, and to leave, until another day, questions relating to the merits and reasonableness of the direction contained in it. Thus, I will deal, in this judgement, only with the questions of whether there has been a change in the use of the premises and whether, consequently, there has been a breach of the Development Act and whether the appellant is using the premises as adult products and services as alleged in the enforcement notice.

7. The first step in considering these grounds, is to refer to the definitions of "restaurant" and "shop" as set out in the First Schedule to the Development Regulations. Those definitions are:-

"'restaurant' means land used primarily for the consumption of meals on the site;

'shop' means¾

(a) premises used primarily for the sale by retail, rental or display of goods, foodstuffs, merchandise or materials; or

(b) a restaurant; or

(c) a retail showroom; or

(d) a personal service establishment,

but does not include¾

(e) a hotel; or

(f) a motor repair station; or

(g) a petrol filling station; or

(h) a plant nursery where there is no sale by retail; or

(i) a timber yard; or

(j) service trade premises; or

(k) service industry;"

8. I refer also to the definition of "adult products and services premises" as found in the First Schedule to the City of Adelaide Development Plan, which definition is in the following:-

"adult products and services premises: the use of land for a tattooist, or for any premises to which access by minors is restricted by law and which are used, or designed to be used, primarily for sale by retail or for the exchange, hire, exhibition, loan, delivery or display and offer of the following:

(a) any publication, the sale, delivery, exhibition, advertisement or display of which is restricted or prohibited under the Classification (Publications, Films & Computer Games) Act, 1995;

(b) material compounds, objects or devices which are designed to be used primarily in or in connection with any form of sexual behaviour or activities; and/or

(c) films, video films or tapes, any other form of optical or electronic records from which a visual image may be produced or any other pictorial matter, the sale, delivery, exhibition, advertisement or display of which is restricted or prohibited under the Classification (Publications, Films & Computer Games) Act, 1995;

It does not include premises used for prostitution."

9. I turn first to Mr Hayes' submission that the above definition is invalid and of no effect because the Development Act and Development Regulations define various words and terms used in the various development plans, and the words and terms so defined cannot be changed by the provisions of the development plans. To place that submission in the context of this appeal, it means that, if the use to which the subject premises are currently put falls within the definition of "shop" as set out in the Development Regulations, such use cannot be differently defined by the City of Adelaide Development Plan and dealt with as if it is something other than a shop, namely, "adult products and services premises". Thus, he said, given that the definition of "adult products and services premises" includes certain uses which fall within the definition of "shop", that definition is, at least to the extent that it includes those uses, invalid, and it was not open to the Council to allege, in its notice, that the premises are being used for anything other than as a shop.

10. Before proceeding further, I think it appropriate that I record a finding, based on the evidence of Mr Palumbo and upon the agreed facts, that the premises are being used primarily for the sale of retail or for the rental of various goods and merchandise, to wit, books and other publications, video tapes, clothing and various objects and devices to be used in connection with sexual activities. In other words, the use of the premises falls within the term "shop" as defined.

11. The following provisions of the Development Act are relevant:-

"5. (1) Subject to subsection (2), if a term defined in this Part is used in a Development Plan then the term has, unless the contrary intention appears, the defined meaning.

(2) The Governor may, by regulation, define a term used in a Development Plan, and such a definition, if inconsistent with a definition in this Part, operates to the exclusion of the latter.

(3) The Governor cannot make a regulation under subsection (2) unless the Presiding Member of the Advisory Committee has certified that the requirements of subsection (5) have been complied with in relation to that regulation.

.....

(5) The following provisions apply in relation to the making of regulations under subsection (2):

(a) the Advisory Committee must cause to be published in the Gazette and in a newspaper circulating generally throughout the State an advertisement¾

(i) containing a general explanation of the regulations that are (subject to this section) to be made; and

(ii) inviting interested persons to make written submissions to the Advisory Committee in relation to the proposed regulations within a specified period (being a period of not less than 28 days from the date of publication of the advertisement); and

(iii) appointing a place and time for the public hearing referred to in paragraph (b);

(b) at the time and place appointed for that purpose in the advertisement, the Advisory Committee, or a committee appointed by the Advisory Committee, must hold a public hearing at which any interested person may speak in favour of, or in opposition to, the proposed regulations;

(c) a copy of the proposed regulations must be sent to the Local Government Association of South Australia at an appropriate time determined by the Advisory Committee and the Advisory Committee must give the Local Government Association of South Australia a reasonable opportunity to make submissions in relation to the matter;

(d) the Advisory Committee must then make recommendations to the Minister in relation to the proposed regulations (including recommendations for the modification of the proposed regulations in view of the public comment and the submissions received from the Local Government Association of South Australia) and forward with those recommendations copies of any written submissions made to the Advisory Committee under this subsection;

(e) the Governor may then proceed to make such regulations as are appropriate."

12. As I construe the relevant provisions subsection 5(1), a term defined in Part I of the Act shall have the same meaning in the Development Plan, subject to two exceptions, namely, first, subject to any regulation made pursuant to subsection 5(2) defining a term used in the Development Plan, and secondly, "unless the contrary intention appears". The first exception is self explanatory. The second exception less so. Where is the contrary intention to appear: elsewhere in the Act, in the regulations or in the Development Plan?

13. The words "unless the contrary intention appears" are common in definition sections in almost every Act which contains such a section. Indeed, they appear in subsection 4(1), the definition section of the Development Act. They must be amongst the first words that Parliamentary Counsel learn. Their use in statutes is almost mandatory. They are always taken to mean "unless the contrary intention appears in this Act". I am sure that that is what they mean in subsection 5(1). I do not construe those words as meaning "unless the contrary intention appears in the Development Plan". Such an interpretation would mean that development plans could adopt their own definitions without regard to the definitions in Section 5 of the Act. I am sure that that is not what is intended.

14. I think that subsection 5(1) and 5(2), when read together, provide that the terms defined in Section 4 are to be taken to have the same meaning if used in a development plan unless the Governor makes regulations defining those terms in a different way. Thus, as far as the definition of terms used in development plans are concerned, the regulations can over-ride the Act. As far as the normal principles applicable to the interpretation of the subordinate legislation is concerned, this is a somewhat strange situation. Perhaps that is why fairly stringent procedures relating to the making of such regulations are provided in subsection 5(5). It is only if those procedures are followed that, as far as terms used in development plans are concerned, the regulations can over-ride the Act.

15. The Governor has made regulations defining terms used in development plans. Those regulations are found in the Development Regulations, Regulation 3, Schedule 1. Regulation 3 is in the following terms:-

"3. (1) In these regulations and in any Development Plan, the terms set out in schedule 1 have, unless inconsistent with the context, or unless the contrary intention appears, the respective meanings assigned by that schedule.

(2) Unless stated to the contrary, a term set out in schedule 1 which purports to define a form of land use will be taken to include a use which is ancillary and subordinate to that defined use.

(3) Where the Building Code defines a term which is also set out in schedule 1, then, to the extent to of any inconsistency, the definition in the Building Code will prevail for the purposes of the Building Rules."

16. Subregulation 3(1) includes the words "unless the contrary intention appears". For the reasons I have given, I think those words mean "unless the contrary intention appears in these regulations". However, the subregulation also includes the words "unless inconsistent with the context". Mr Leydon put to me that those words mean "unless inconsistent with the context of the Development Plan". This means, he said, that the definitions in the Regulations apply to terms used in a Development Plan unless the context of the Development Plan contains provisions and terms inconsistent with the term as defined by the Regulations. In so saying, he pointed to the procedures which must be followed to either create or amend a Development Plan, as set out in Part 3 of the Act, and submitted that, in view of these procedures, provisions which empower a Development Plan to over-ride a regulation are reasonable in the circumstances.

17. Having considered the terms of the regulation, I think that Mr Leydon is partially correct. I can see no meaning which can be reasonably attributed to the words "unless inconsistent with the context" other than "unless inconsistent with the context of the Development Plan". From this I conclude that the drafter of the regulation envisaged that the terms of a development plan may vary a definition as set out in the Regulations. Indeed, that is what I think some parts of the First Schedule to the City of Adelaide Development Plan have done. The schedule includes, within the definition of "adult products and services premises" some of the activities which fall within the definition of "shop" as found in the Regulations, and, by so doing, has varied the definition of "shop" as it applies within the City of Adelaide. In so saying, I have not overlooked the possibility that the definition of "adult products and services" should not be viewed as a change to the definition of "shop", but rather as a definition of a particular use which may, in some forms, fall within the definition of "shop". However, looking at the provisions of the Development Plan, I do not think that such is the case. Such an approach is not consistent with the way in which the definition "adult products and services" has been used within the Plan - for example, within the CA3 Hindley Street Precinct, within which the subject land lies, the commencement of that use is regarded as a change in the use of the land even though such change may be from use as a shop. This is so, notwithstanding that a shop is one of the uses specifically encouraged within the precinct. Such an approach was not urged upon me by Mr Leydon.

18. It is trite to say that, if a regulation is to be valid it must fall within the regulation making power conferred by the specific statute and it must be reasonably proportionate to the end to be achieved, as envisaged by that power: see South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 and Edwards v Olsson [1996] SASC 5703; (1996) 67 SASR 266.

19. As stated, subsection 5(2) of the Act empowers the Governor, by regulation, to define a term used in the Development Plan, whilst subsection 5(5) provides a procedure to be followed when such regulations are made. I notice, also, that the general regulation making power found in Section 108 of the Act, empowers the making of Regulations "with respect to any of the matter specified in the schedule", and that paragraph 13 of the schedule refers specifically to "the definition of words and expressions in a Development Plan (or Development Plans generally)". In my view, the Act exhibits an intention that where a term used in a Development Plan has been defined by regulation, the definition shall apply to that term, even to the extent of over-riding a definition in the Act. In my view, the suggestion that terms defined by the Regulations can be varied by the Development Plan in which the term is used is inconsistent with the Development Act. I do not think that the words "unless inconsistent with the context" as appearing in subregulation 3(1) of the Regulations is a valid exercise of the regulation making power conferred by either subsection 5(2) or Section 108 of the Act. To carry this matter through to its logical conclusion, I do not consider that, insofar as the definition of "adult products and services premises" is already covered by the definition of "shop" within the Regulations, that the definition can validly stand.

20. In so saying, I have not overlooked Mr Leydon's submission that amendments to Development Plans must pass through the procedural steps specified in Part 3 of the Act. However, significant though those procedures may be, they are different to the procedures through which a regulation defining a term used in the Development Plan must pass in accord with subsection 5(5) of the Act. This strengthens my view that Development Plans cannot validly define terms in a manner different to the Regulations.

21. The notice the subject of these proceedings was issued pursuant to Section 84 of the Development Act, subsection 2(2) of which is in the following terms:-

"84. (2) If a relevant authority has reason to believe on reasonable grounds that a person has breached this Act or a repealed Act, the relevant authority may do such of the following as the relevant authority considers necessary or appropriate in the circumstances:

(a) direct a person to refrain, either for a specified period or until further notice, from the act, or course of action, that constitutes the breach;

(b) direct a person to make good any breach in a manner, and within a period, specified by the relevant authority;

(c) take such urgent action as is required because of any situation resulting from the breach."

22. The terms of the notice as set out earlier in this judgement. The offence alleged against the appellant is that:-

"You have undertaken development, namely the changing of the existing authorised use of the ground floor premises located at the above address from "restaurant" to "adult products and services" without development approval contrary to Section 32 of the Development Act 1993."

23. For the reasons for which I have given, I do not believe that the offence alleged in the notice has occurred - that is, the use of the premises has not been changed to "adult products and services" because such a use does not legally exist. In the matter of Sulllivan v District Council of Riverton [1997] SASC 6271; (1997) 69 SASR 234, Duggan J, when considering the requirements which a valid notice under Section 84 must comply, said, at page 246, that:-

"I think it is also essential that the notice indicate in reasonably clear terms the nature of the breach and what is required in order to put it right. A notice which does not achieve this is not a proper notice under the Act and, in my view, it may be inferred that an objection based on an alleged deficiency in this respect is a proper subject of appeal."

24. Insofar as I have come to the conclusion that the breach of the Development Act alleged by the Council has not occurred, the notice cannot stand. However, given that counsel addressed me at some length on the question of whether the conversion of the premises concerned from a restaurant to shop constitutes a change in the use of those premises in the circumstances of this case, I think that I should briefly express some views on that issue. If there has been no change in the use of the premises, no development has been undertaken.

25. Mr Hayes submitted that there has been no change in the use of the premises. Stated succinctly, the basis of his submissions lies in the definition "shop", to which I have already referred. The term "shop" means, amongst other things, "restaurant". Thus, submitted Mr Hayes, a change from a restaurant to a shop is not a change in a land use as defined by the Regulations and is thus not a change in the use of land within the meaning of the Development Act. In support of his submission, he referred to a brief comment which fell from Debelle J in the matter of Pro-star Service Station Pty Ltd v Petroleum Products Retail Outlets Board (1998) 72 SASR 383, wherein his Honour, at page 388, expressed the view that a McDonald's Restaurant, proposed to be incorporated in a petrol station complex, was a "shop" within the meaning of the definition within the Regulations, simply because the definition of "shop" means, amongst other things "restaurant". In the circumstances, his Honour thought it unnecessary to pursue the elusive question of whether the McDonald's premises should be viewed as a shop forming part of the petrol station complex or as a restaurant. Although I note his Honour's comments, I do not regard them as pertinent to the question now before me. In the Pro-star case, the question before the Court was whether a particular development had been properly categorised by the Council pursuant to Section 38 of the Development Act. The question of whether a change in the use of premises from a restaurant to a shop constituted a change in the use of land was not before the Court and is, in my view, a quite different question.

26. Mr Leydon referred me to the decision of Wells J in the matter of Prestige Car Sales Pty Ltd v Corporation of the Town of Walkerville & Shuttleworth (1979) 20 SASR 515, wherein his Honour said, at page 522, that:-

"The principles for determining what is an existing use and whether there has been a change of existing use should be flexible. They are not convertible into hard and fast rules. Rather should they be treated as directing a comprehensive survey of the circumstances that obtained before the planning regulations in question came into force, and of the circumstances that would obtain if the proposed extensions or reconstructions were to be made or carried out. The object of the survey should be to decide whether, having regard to the purpose of the former use of the subject building, and to the purpose of the use that would be made of it after execution of the proposals, there would, as a matter of fact and degree, be a change in the essential nature of the existing use if consent were granted. It should be borne in mind that labels are not principles. No one factor is necessarily decisive. There should be no resort to convenient, but undiscriminating and over-simplified, formulae."

27. Mr Leydon submitted that, to look only at the definition of "shop" and to decide the issue on the basis that both the previous and the present uses of the premises fall within the scope of that definition, would be to avoid the essential question. It would be to do that against which Wells J counselled, ie, it would substitute labels for principles. It would be to avoid the question of whether there has been "a change in the essential nature of the existing use". Thus, he submitted, the inclusion of a restaurant within the definition of "shop" is neither here nor there.

28. In my opinion, Mr Leydon's submission represents the better view. It is well recognised that there can be a change in the use of land even though such change does not have the effect of taking such use out of one use category, as defined in the relevant statutory scheme, and placing it into another. Perhaps the most common example of such a situation is the intensification of land use - for example, land may be used as an "industry", and, although it may continue to be used in a manner falling squarely within that definition, the nature and intensity of the use can change to such an extent that, at the end of the day, there has been a change in the use of the land within the meaning of the law. This is because, to adopt the words which fell from Wells J, there has "as matter of fact and degree, be a change in the essential nature of the existing use". An example of such a situation was contemplated by both King CJ and Cox J in the matter of Remove All Rubbish Co Pty Ltd v City of Munno Para [1991] SASC 2991; (1991) 56 SASR 254. That case involved land used as a "solid waste disposal depot". The use of the land had been approved subject to conditions which, amongst other things, limited its hours of operation. The company sought an approval to increase the operating hours of the depot. Although, in that case, neither King CJ nor Cox J regarded the extended hours sought as constituting a change in the land use, their Honours were of the view that, where there is a substantial change in the operating hours of such a depot, such changed hours may constitute a change in the use of the land because such changed hours may constitute a change in the essential nature of the existing use. King CJ gave the example of a transport depot, saying, at page 255, that:-

"A 24-hour transport depot may constitute a use of land which differs from use as a transport depot whose operations are conducted only during normal business hours."

29. In such cases, there may be a change in the use of the land even though there is no corresponding change in the designation of such use in the terms of the various definitions set out in the relevant planning legislation. So it is, I think, in this case. To simply say that a restaurant is a shop within the terms of the definition is to avoid the principle question of whether there has been an essential change in the nature of the use to which the premises were previously put.

30. Although I have various photographs taken of the subject premises during the course of their conversion from a restaurant to their present use and as they currently are, I have not inspected the premises. Apart from paragraph 5 of the statement of agreed facts and issues, I have no knowledge of the use to which the premises were previously put, other than that they were "previously used for the purposes of a restaurant, with the last operating restaurant being known as the 'Olympia Restaurant'". Therefore, I am in no position to undertake "a comprehensive survey" of the type envisaged by Wells J in Prestige Car Sales. However, I think that one can say that, generally speaking, the differences between a shop and a restaurant are such that there is a difference in the "essential nature" of such uses. The Development Plan prescribes different parking requirements for each such use. Thus, although the issue may be one of fact and degree and circumstances may alter cases, I am of the view that, prima facie, a change in the use of these premises from a restaurant to a shop is a change in the use of those premises within the meaning of the Development Act.

31. However, for the reasons which I have given, I do not think that this enforcement notice can stand. The order of the Court is that the direction set out in it is quashed.