Royal Park Salvage v City of Charles Sturt No ERD-01-1173 [2002] SAERDC 38 (6 June 2002)

Last Updated: 24 June 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Hodgson

Hearing

26/03/2002, 03/06/2002.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development Act 1993 - application to use vacant land for storage of building materials for twelve month period - Industry Zone - refused by Council - appeal - fact that use already occurring to be ignored - planning merits considered - storage a complying form of development within zone, subject to conditions - proposal's non-compliance with some of those conditions not fatal - short term nature of the use a relevant consideration - appeal allowed and decision of Council reversed - provisional development plan consent granted subject to conditions.

• Development Act 1993 , referred to.
• Remove All Rubbish Pty Ltd v The Corporation of the City of Salisbury (1989) 51 SASR 26;
• Kouflidis and Jenquin Pty Ltd v Corporation of the City of Salisbury (1982) 29 SASR 321, considered.

Representation

Appellant: ROYAL PARK SALVAGE
Counsel: MR J BOTTEN - Solicitors: JAMIE BOTTEN & ASSOCIATES

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

ERD-01-1173

Judgment No. [2002] SAERDC 38

6 June 2002

ROYAL PARK SALVAGE

v

CITY OF CHARLES STURT

(ERDC No. 1173 OF 2001)

[2002] SAERDC 38

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This matter concerns an application by Royal Park Salvage ("the appellant") for provisional development plan consent for the storage of building materials on land at Schenker Drive, Royal Park, for a period of twelve months. The application was made on 20 August 2001 and was refused by the Council on 27 September 2001.

2. Royal Park Salvage, being aggrieved by the decision of the Council, appealed to this Court against it. A conference conducted pursuant to Section 16 of the Environment, Resources and Development Court Act 1993 did not produce a compromise or settlement, and the matter then proceeded to a hearing, at which time the appellant was represented by Mr J Botten, of counsel, and the Council by Mr G Leydon, of counsel. The Court, in the company of the parties, conducted a view of the subject land and its locality. It received a number of exhibits and heard sworn evidence from Ms R Calabrese, a qualified and experienced town planning consultant.

The Subject Land

3. The subject land, Lot 281, Schenker Drive, Royal Park is situated at the northern end of a cul-de-sac. It has a street frontage of 30m and is irregular in shape, having a depth of 125.7m on the western side boundary and 82.3m on the southern side boundary, producing a total area of some 7550m2. It is more particularly described as Certificate of Title Volume 5783 Folio 45, Deposited Plan 54761. The land is located within the Industry Zone as depicted on Map HiWo/9 in the Development Plan for the City of Hindmarsh and Woodville dated 12 July 2001.

4. The land is bordered by a cyclone wire fence along the western and southern side boundaries, the height of that fence ranging from 1.8m to 2.0m, and galvanised iron fencing along the northern and north-eastern side boundaries, that fencing being 1.8m and 2.4m high respectively. A number of large established native trees along the northern boundary provide screening from neighbours.

5. On the land is located a quantity of materials associated with building demolition and development activities, primarily consisting of steel, aluminium, concrete, timber and some bricks. The evidence of Ms Calabrese was that a substantial proportion of the material stored on the land originated from one particular redevelopment project and would eventually be returned to the site of that project. It was common ground between the parties that planning approval was required for the use of the land for storage purposes and that no approval had been obtained at the time the materials in question were first placed on the land.

The Locality

6. The evidence of Ms Calabrese was that the locality included in her statement of evidence was derived on the basis of the visibility of the subject land, the primary impact of the proposal being, in her assessment, a visual one. Allotments fronting Schenker Drive were created as part of an industrial land division of the former West Lakes High School, and a number of the allotments then created remain vacant. Established uses in the locality include an industrial automotive trade school fronting onto Frederick Road, and separated from the subject land by a large strip of unused land, recently-established warehousing and industrial uses at the southern end of Schenker Drive, a warehouse and the Alfreda Rehabilitation Centre (consulting rooms and associated facilities) to the rear of the subject land, fronting respectively onto Scan Court and Port Road, a commercial bakery and former warehouse/industrial uses fronting onto Wilson Street, and to the south-east, a large bus manufacturing operation fronting onto Wilson and Brandwood Streets.

7. The allotment adjoining the subject land to the south (Lot 280) is currently vacant. In June 2001, Provisional Development Plan consent was granted by the Council for a "place of worship" to be established on that land. On the evidence of Ms Calabrese (which was not contested) no application has been made to this time for Building Rules consent for that development. Further to the south, Lot 279 is also vacant, but was the subject of a development approval issued by the Council in March 2002 for "an office and warehouse for manufacturing marine equipment". A proposal for the establishment of a waste transfer station on Lots 277 and 278 was, in September 2001, declared a major development by the then Minister, pursuant to Section 46 (1) of the Development Act 1993, and will be assessed accordingly.

The Proposal

8. On 20 August 2001, when application was made to the Council for approval of the subject proposal, documentation accompanying the application indicated that approval was sought for twelve months only. In the course of his opening Mr Botten, for the appellants, indicated that his client now sought to vary the proposal such that approval was sought until the end of 2002.

9. The proposal seeks approval to use the subject land on a temporary basis for storage of building materials of the type presently found on the land. The area designated for storage lies to the east of a drainage easement on the western side of the land, and is set back from Schenker Drive about 20m. Most material would be stored in the open, although several shipping containers would also be used. No sale of materials on the land is proposed and traffic associated with the proposal, on the evidence of Ms Calabrese, would be confined to the infrequent loading and unloading of building materials. Access would be obtained via a double crossover to Schenker Drive and the gates providing access to the site would be locked when the land was not being actively used.

Assessment

10. The subject land is, as I have said, located within the Industry Zone. It lies within the Core Policy Area for that zone, which is depicted on Map HiWo/26. It was common ground between the parties that the proposed development was properly characterised as a "store" as defined in the Development Regulations 1993. Within the Core Policy Area of the Industry Zone, a "store" is a complying form of development, subject to satisfying a number of conditions set out in Table HiWo/1 in the Development Plan. It was also common ground that the proposal did not satisfy all those conditions, and therefore fell for consideration as a "consent" application.

11. A description of the Core Policy Area within the Development Plan includes the following:

"This area is characterised by an intensive industrial character and amenity. A wide range of scales and types of industrial activities constitute the area with development comprising modern warehousing and distribution type premises, large well established manufacturing and engineering premises, transportation premises and food processing as well as a range of smaller industrial and commercial uses including crash repairs."

12. The Desired Future Character statement for the Core Policy Area relevantly provides as follows:

Industry Zone (Core Policy Area 31)

"The area should develop as an intensively developed, high quality, landscaped, 24 hour operation industrial area. High impact industrial uses should locate in this area which is remote from residential areas. The area should accommodate a wide range of industrial, commercial and business activities including manufacturing, warehousing and distribution. The area should be protected from the intrusion of residential and other inappropriate uses which will reduce the land resource for industrial uses or create potential for land use conflicts.

.... The area should be enhanced through quality development including redevelopment of sites with high quality materials, landscaping and elements to create an attractive and well planned industrial area."

13. Policy Area principles of particular relevance are:

"Principle 3: The area should accommodate a wide range of industrial, commercial and business activities including manufacturing, warehousing and distribution."

"Principle 17: In Royal Park (west of Wilson Street), a landscaped set-back of 5 metres should be established along all roads except Frederick Road (where an 8 metre landscaped set-back should be established)."

14. Complying forms of development within the Core Policy Area include general industry, light industry, store, motor repair station, road transport terminal, service industry, service trade premises, and warehouse.

15. Zone Principles of particular relevance are:

Industry Zone

"Objective 11: Industrial, business and commercial activities which do not cause land, water or air contamination and which effectively manage their wastes in an environmentally responsible way."

"Objective 12: Development which does not cause unacceptable risk to the health of residents, workers and visitors through the emission of excessive pollutants, noise, vibration, intrusive light or radiation, leaks of contaminated or poisonous materials or the risk of explosion."

"Principle 41: Outdoor storage areas, services and service structures, including fire services, pipes, flues, cooling or heating plant or appliances, should be sited unobtrusively, screened from public view and designed to enhance the amenity of the locality, through use of the following techniques (or similar):

(a) landscaping

(b) fencing or enclosing in pre-coloured sheet metal or materials matching those of the main buildings; or

(c) an appropriate combination of solid fencing and landscaping."

"Principle 42: Outdoor storage and service areas should be designed and managed to ensure that any litter is contained within those areas."

"Principle 43: Materials, objects or vehicles in storage areas should not be visible above screen fences."

"Principle 45: Noise emanating from outdoor storage and service areas should be minimised and should satisfy noise Principle 49."

"Principle 48: Noise or vibration emanating from a site should be minimised and should not exceed EPA standards."

"Principle 49: The nature, scale and intensity of the activity should result in minimal levels of vibration, dust, odours or other airborne particles, should not exceed EPA standards and should not detrimentally affect a residential or similar environmentally sensitive zone or an activity sought within the Industry Zone."

"Principle 52: To limit stormwater discharge to levels consistent with the capacity of existing or planned external stormwater systems so as to not increase the risk of downstream flooding, development should, where possible, provide for the retention, detention or utilisation of stormwater on-site, minimise hard impervious surfaces and direct run-off to landscaped areas or possible aquifer recharge."

"Principle 53: Development should enable the achievement of a major/minor public stormwater system capable of catering for a 100 year ARI (Average Recurrence Interval)."

"Principle 56: Development should be designed so that stormwater is, wherever possible, retained or detained on the development site, with consideration given to soil contamination, through the application of an appropriate combination of the following techniques:

(a) the collection of roof runoff in rainwater tanks, or other measures to store and limit the discharge of stormwater to the street water table;

(b) the use of roofwater for process purposes;

(c) the direction of roof runoff onto landscaped areas;

(d) the design of paved areas so that stormwater is directed onto landscaped areas;

(e) the discharge of run-off into soakage areas where soil conditions and space permit; or

(f) maximum practical use of permeable paving and absorptive landscaping areas."

Alternatively, a combination of retention, detention and harvesting techniques may be applied once stormwater run-off from the site is discharged to a public reserve or other land specifically designated for this purpose."

"Principle 73: Access onto public roads should:

(a) be designed to enable all vehicle entry/exit from the site to occur in a forward direction;

(b) be located and designed to ensure the safety of the public and the free flow of traffic in the locality;

(c) minimise traffic hazards and queuing on public roads; and

(d) minimise intrusion into adjacent residential or similar environmentally sensitive zones."

"Principle 74: Access points onto public roads should be limited in number to two."

"Principle 80: All loading and unloading of goods, including temporary storage, should occur within the site and preferably to the rear or side of the site."

16. The evidence of Ms Calabrese was that the proposal largely complied with the relevant provisions of the Development Plan. She summarised her views as follows:

"• The proposed storage of building materials associated with building sites is an appropriate form of development within the Industry Zone (Core Policy Area 31).

• The proposed use is significantly less intensive and invasive than uses envisaged within the Industry Zone (Core Policy Area 31).

• The nature of the proposed development, namely, the storage of solid and inert materials represents a low potential for adverse environmental impact on the locality.

• The land is located away from residential uses minimising potential conflicts.

• The impact on the visual amenity of the locality is assisted by the proposed short-term use of the land (that is appropriate to the area), and existing site and locality characteristics including existing solid fencing, large established trees, adjoining unused and vacant land and the lodgement of plans for more permanent development.

• The proposed temporary use does not preclude/prejudice the longer term development of the subject land or other land in the locality.

• The perimeter fencing and lockable gates contribute to security and safety.

• The proposal is considered to have adequate access.

• Loading and unloading occurs entirely within the site."

17. In cross-examination, Ms Calabrese acknowledged that, were the site to be used for storage purposes in the longer term, it would be desirable for more substantial setting back of materials stored on the land, screening thereof by landscaping, and provision of carparking to occur. Measures of this kind, however, were unnecessary and unjustified for short-term use of the land, particularly having regard to the fact that most adjoining land from which views of the subject land could be obtained had not yet been developed, and was unlikely to be occupied during the life of any consent for the temporary use of the subject land for storage.

18. Similar views were expressed by the Council's planning staff in a report to the Council on the proposal, a copy of which was included in the Copy Documents tendered in evidence.

19. Mr Leydon did not call any evidence in support of the Council's case. He submitted that, as the proposal, even on the evidence of Ms Calabrese, could not be supported as a long-term use of the subject land without the introduction of substantial landscaping, provision of setbacks, and establishment of carparking spaces, approval, on a temporary basis, by way of a condition limiting the duration of that approval, was inappropriate, having regard to the views expressed by Jacobs J in Remove All Rubbish Pty Ltd v The Corporation of the City of Salisbury (1989) 51 SASR 26 at 34.

20. In his decision in Remove All Rubbish Jacobs J held that:

"The primary concern of a planning authority is to control land use and the first question to be addressed should always be whether in the circumstances the proposed development is at least prima facie a suitable and appropriate use of the subject land having regard to the provisions of the development plan. To approach a planning decision by framing conditions designed to make the proposal suitable and appropriate is to bypass the primary question."

21. Unlike its predecessor, the Planning Act 1982, the Development Act 1993 specifically provides, at Section 42 (3)(d), for the imposition of a condition having the effect of limiting the duration of a planning consent:

"42(3) A relevant authority may, for example, approve a development subject to a condition -

....

(d) where the applicant is seeking approval for a temporary development - that provides that, at a future time specified in the condition -

(i) the previous use of the land will revive, or a use of the land will cease; and

(ii) any person who has the benefit of the development will restore the land to the state in which it existed immediately before the development."

22. However, Mr Leydon submitted that the approach taken by the Supreme Court in Remove All Rubbish had not been altered by the introduction of the condition-making power referred to above. It was inappropriate, in his submission, to approve a proposal which was fundamentally at odds with the Development Plan simply on the basis that it was for a finite period. That, he said, would amount to an attempt to render an inappropriate proposal acceptable by way of the imposition of a condition or conditions.

23. Were the proposal "fundamentally at odds" with the Development Plan I would agree with Mr Leydon's submission. However, I am mindful of the fact that, subject to meeting conditions concerning setbacks, landscaping, stormwater and parking, a "store" would be a complying form of development within the Core Policy Area of the Industry Zone. The fact that the proposal does not satisfy all of the prescribed standards does not, in my view, render it "fundamentally at odds" with the Development Plan, for several reasons:

(a) conditions recommended by the Council's administration, and not disputed by the appellant, sought to address stormwater and setback issues, and could appropriately be imposed on any consent granted by the Court;

(b) until such time as adjoining land within Schenker Drive is developed and occupied, landscaping and provision of a designated carparking area on the subject land are not critical issues;

(c) mature vegetation on the north-eastern boundary of the subject land serves to screen material stored on the subject land from occupied properties abutting it to the east and north-east.

24. Having regard to all the above I am satisfied that, subject to appropriate conditions, including a condition stipulating when the proposed use will cease, the subject proposal is sufficiently consistent with the relevant provisions of the Development Plan to warrant consent.

25. It remains only to deal with the application, made by counsel for the appellant, to vary the subject proposal by seeking an approval until the end of 2002. It is established law that, when considering an application for consent to a use which has been established unlawfully, the past unlawful use should not be a relevant factor in determining whether consent should be granted. Equally, however, the unlawful user of the land should gain no advantage from having established an unlawful use: Kouflidis and Jenquin Pty Ltd v Corporation of the City of Salisbury (1982) 29 SASR 321. Had the subject proposal been approved rather than rejected by the Council, that approval would have been operative for twelve months from the date of that approval, expiring on 25 September 2002. Having regard to the fact that the use has been occurring unlawfully both for some time prior to the Council's decision and subsequently, it would not be appropriate, in my view, for me to accept the variation sought. To do so would mean that the appellant would derive a benefit from initiating these proceedings which it would not have obtained had the Council approved its application in September 2001, namely, three months additional use of the subject land for storage purposes. Such a benefit, deriving directly from a continuation of the unlawful use of the subject land following the Council's decision to refuse, is at odds with the principles enunciated in Kouflidis.

26. Having regard to all the above, I have decided that any consent granted should expire on 25 September 2002. It would, of course, be open to the appellant to make a further application to the Council, prior to that date, seeking a further approval for a specified period. That would be a matter for the Council.

27. Having intimated my decision to the parties, I heard counsel on the question of conditions.

28. The parties were agreed on all conditions save two. The latter, both of which were sought by the respondent Council, would require the appellant:

(a) to erect a solid fence not exceeding 2.0m in height along the southern boundary of the subject land within 14 days of the date of Development Approval; and

(b) to erect a chain mesh fence, 2.0m in height, along the eastern drainage boundary within 14 days of the date of Development Approval.

29. Mr Leydon, for the respondent Council, submitted that, notwithstanding the fact that the consent issued by the Council would expire in approximately four months' time, the proposed conditions were justified because the Development Plan envisaged high quality industrial development occurring within the Industry Zone, and to that end sought, inter alia, screening of outdoor storage areas with appropriate landscaping and fencing.

30. The solid fence on the southern boundary was necessary to screen materials stored on the subject land from the adjoining land to the south, an approval having been granted for a place of worship on the latter. The chain mesh fence was required to prevent wind-borne litter entering the drainage reserve on the western side of the subject land.

31. The conditions sought by the Council would be entirely appropriate were a permanent approval for use of the subject land for storage purposes to be sought. I note, in this regard, that an application is presently before the Council seeking approval for the erection of a number of sheds on the subject land and for its use for a storage facility. If storage of materials in the open is proposed as part of that application, the Council will, in all likelihood, impose fencing conditions of the kind sought by Mr Leydon.

32. However, having regard to the short term nature of the proposed use, the subject of these proceedings, to the fact that adjoining land is presently vacant and will not be developed, let alone occupied, prior to expiry of the temporary approval granted by the Court, and to the nature of the materials being stored, I do not consider it either necessary or appropriate to impose the disputed conditions.

33. The order of the Court is that the decision of the Council is set aside and Provisional Development Plan consent granted for the proposal, subject to the following conditions:

1. The proposed storage facility shall be undertaken in accordance with the amended plan dated March 2002 (being Exhibit "A1" in these proceedings), for a temporary period of 12 months from the operative date of this consent, except where varied by the conditions below.

2. The storage facility shall be used for the storage of building materials associated with building demolition and development activities.

3. No putrescible materials, liquid or toxic wastes shall be stored on the land.

4. Subject to Condition 5, no materials shall be stored outside the shaded area marked as "Open Storage Facility" on Exhibit "A1".

5. No materials shall be stored within 20 metres of the Schenker Drive property frontage of the subject land.

6. No building materials shall be stored so as to exceed 4 metres above the height of the land.

7. All materials shall be removed from the site by midnight, 25 September 2002.

8. All materials shall be stored in a neat and tidy manner at all times to the reasonable satisfaction of Council.

9. No materials with the potential for dust generation, such as plasterboard, shall be stored on the site at any time.

10. In order to prevent stormwater discharge from the site directly into the adjacent retention basin, the site shall be bunded to a minimum of 300mm above the level of the site on the western side adjacent the retention basin and adjacent the driveway or that stormwater discharge shall be filtered in order to remove sediment and silts prior to discharge off-site to the street. Such measures shall be installed within 21 days of the date of Development Approval.

11. The operative date of this consent shall be 25 September 2001.