W (Dave) Potter v City of Holdfast Bay No ERD-02-741 [2003] SAERDC 10 (28 January 2003)

Last Updated: 2 February 2003

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Her Honour Judge Trenorden

Hearing

20/01/2003.

Catchwords and Materials Considered

LOCAL GOVERNMENT

Appeal against decision of Council to classify as non-complying proposed development - land situated within Historic (Conservation) Zone - Residential (New Glenelg) - Council argued proposed land use would be ancillary and subordinate to existing use on adjoining land - whether "service trade premises" or separate use - nature of use - decision of Council to classify as non-complying development upheld.

• Development Act 1993 S86(1)(a)(iii);
• Development Regulations 1993 , referred to.
• Ellis & Ors v City of Holdfast Bay & Eblen (1999) EDLR 317;
• Alberton & Wilhelm v City of West Torrens & De Palma [2001] SAERDC 56, considered.

Representation

Appellant: W (DAVE) POTTER
Counsel: MR G MANOS - Solicitors: MANOS & ASSOCIATES

Respondent: CITY OF HOLDFAST BAY
Counsel: MR M BEAMOND - Solicitors: MELLOR OLSSON

ERD-02-741

Judgment No. [2003] SAERDC 10

28 January 2003

W (DAVE) POTTER

v

CITY OF HOLDFAST BAY

(ERD NO. 741 OF 2002)

[2003] SAERDC 10

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. William David Potter and Phyllis Maureen Potter are the registered proprietors of land the address of which is 39 Bath Street, Glenelg South. The land is described in Certificate of Title Register Book Volume 5432 Folio 222 ("the subject land"). They applied to the respondent to demolish the house on the subject land and to utilise it "to park new and used vehicles prior to pre-delivery service, sale and customer parking". The application was lodged on or about 13 May 2002.

2. By letter dated 16 May 2002, the Director of Planning at the respondent Council sought additional information "so that a proper assessment of the development can be made". The development was described in that letter as "demolition of existing dwelling and changing land use to service trade premises (non-complying)". The nature of the information sought by the letter also suggested that a decision had been made to treat the application as the kind of development which was non-complying in the zone.

3. Mr Potter has appealed against that decision, pursuant to the provisions of Section 86(1)(a)(iii) of the Development Act 1993, arguing that the proposed development is for a carpark, which is not a non-complying kind of development.

4. According to the relevant Development Plan, namely that for Holdfast Bay (City) which was consolidated on 30 August 2001, the subject land is situated within the Historic (Conservation) Zone - Residential (New Glenelg).

5. The subject land adjoins allotment 114 at its eastern boundary. Allotment 114 and other allotments to the north of this allotment, including the adjoining allotment 113, are occupied by Dave Potter Motors Pty Ltd and the land is used as a service trade premises, as that term is defined in Schedule 1 to the Development Regulations 1993.

6. The Council's argument is that the proposal for the subject land is either:

(1) part and parcel of the business of Dave Potter Motors Pty Ltd and therefore ancillary and subordinate to the existing use on the adjoining land of service trade premises; or

(2) if an independent use, is a store.

7. Both service trade premises and store are kinds of development which are non-complying in the relevant zone. In this context it is to be noted that allotments 114, 113 and other allotments to the north of the subject land which have frontage to Brighton Road, are located within a commercial zone where service trade premises are neither a complying nor a non-complying kind of development and a store is a complying kind of development.

8. The appellant gave oral evidence, to clarify what is proposed for the subject land. I found Mr Potter to be an open and straightforward witness who endeavoured to provide the Court with a complete picture of what is proposed on the subject land and its relationship with the business of Dave Potter Motors Pty Ltd. I am satisfied that the subject land is proposed to be used by the business of Dave Potter Motors Pty Ltd for the following purposes in the following order of priority:

1)	the holding of new vehicles delivered from the Honda bond yard at Port Adelaide, prior to their undergoing the pre-delivery service;
2)	the holding of used vehicles (trade-ins) prior to service and/or repair preparatory to sale, and;
3)	the overflow parking of vehicles which have been serviced and are awaiting customer collection.

9. I am further satisfied that customers or members of the public will not attend on the subject land. New vehicles and used vehicles for sale would only be shown to customers on the existing Dave Potter premises once the vehicles have had their pre-delivery service completed and have been prepared for sale. Customers bringing vehicles in for service would continue to bring them to the service section of the existing Dave Potter premises and would collect the vehicles from the same section. No vehicle would be delivered to or collected from the subject land by a customer. No work would be carried out on vehicles while they are standing on the subject land.

10. At its northern end the subject land abuts Lot 113 which is one of the allotments upon which the business of Dave Potter Motors Pty Ltd is conducted. There is an existing driveway running alongside and parallel to, the eastern boundary of the subject land. This driveway would provide access into the subject land directly from Bath Street, so that vehicles could be brought directly on to the subject land from a pantechnicon parked in Bath Street. At the northern end of the driveway a gate would be provided in a fence along the length of the northern boundary of the subject land, to provide a thoroughfare between Dave Potter Motors' land, particularly Lot 113, and the subject land. All vehicles stored on the subject land would be driven onto Dave Potter Motors' land through this gate. The appellant was adamant that the subject land would not be used for the general business of Dave Potter Motors Pty Ltd, but only for the purposes above described.

11. Upon receipt of an application for provisional development plan consent, it is incumbent upon the relevant authority to determine, first, whether the proposal constitutes development within the meaning of the Development Act and if it does, secondly, the nature of the proposed development: Regulation 16(1). Having proceeded thus far, the relevant authority must then determine whether the application relates to a kind of development that is described as non-complying: Regulation 16(2).

12. In this matter, the proposal constitutes development. A dwelling in poor condition stands on the subject land, that has hitherto been used for residential purposes. What is proposed constitutes a change of use of the subject land and therefore "development" within the meaning of that term: Section 4(1) of the Development Act.

13. The crucial question in this matter is whether the proposed development amounts to an extension of the service trade premises use of, inter alia, Lots 113 and 114, on to the subject land. If the answer to this question is no, the next question is whether the development is in the nature of a store, or a carpark.

14. The Development Regulations define "service trade premises" for the purposes of the Development Plan, as follows:

" 'service trade premises' means premises used primarily for the sale, rental or display of basic plant, equipment or machinery used in agriculture or industry, boats, caravans, domestic garages, sheds, outbuildings, motor vehicles, tents, trailers, swimming pools, building materials, landscaping materials or similar bulky articles or merchandise;"

The evidence, both written and oral, has made it clear that the subject land will not be used as a display area and that no persons other than Dave Potter Motors' employees will go on to the subject land. The land will not be used directly for the sale, rental or display of motor vehicles, but it is clear, however, that the subject land will be used in conjunction with the adjoining land that is used as service trade premises. It is not a case of the business of the display and sale of motor vehicles being expanded onto the subject land. The use of the subject land as proposed, would not be integral to the use of the adjoining allotments by Dave Potter Motors, nor would the subject land be integrated into the adjoining allotments or the use conducted thereon. The use proposed could be undertaken on any piece of land. Presently it is undertaken, in respect of new cars (the major purpose for the development) at the Honda bond store in Port Adelaide. It is more convenient, commercially, to have the vehicles stored on a parcel of land which gives direct access to the Dave Potter Motors land, but not essential.

15. I was referred to the authorities such as Southern Cross Homes Inc v Corporation of the City of Enfield (1992) 164 LSJS 191, Minister of Environment & Planning v District Council of Stirling & Rockleigh Engineering Pty Ltd (1990) 53 SASR 505 and Foodbarn Pty Ltd & Ors v Solicitor-General (1975) 32 LGRA 157. These involved applications for judicial review, and for injunctions. I was also referred to Tysoe v City of Unley & Eldercare (1998) EDLR 613 and City of Holdfast Bay v Glenelg Backpackers Resort Pty Ltd & Needs Judgment No [2002] SAERDC 80, as examples of ancillary and subservient uses, determined in this Court. None of these matters involved a situation such as that now before the Court, where a use is proposed of an allotment adjoining an existing business, by persons and for a purpose associated with that business.

16. The proposed use of the subject land would be in conjunction with the use of the adjoining allotments occupied by Dave Potter Motors, but it would constitute a separate use of a separate parcel of land, and not a "service trade premises" use of the subject land. It follows that I do not need to consider that line of authorities relevant to whether the development is not a non-complying use of the subject land, which commenced with Wilson & Ors v Corporation of the City of Mitcham & Mercedes College Springfield Inc (1986) 130 LSJS 31, having already concluded that the proposed use of the subject land is not that of "service trade premises".

17. In Ellis & Ors v City of Holdfast Bay & Eblen (1999) EDLR 317, this Court determined that the proposed development on land adjacent to that presently used by motor traders Eblens of Glenelg as service trade premises and motor repair station, by Eblens, was not for those purposes but was to be used as a carpark, a use incidental to, but separate from, the motor repair business on the adjoining land. The facts in that case were different from those in the instant matter. There, the proposal was to use the subject land for the parking of the motor vehicles of customers, visitors and staff of Eblens. A singular distinction between the facts of that case and the instant matter is that the vehicles that are to be parked on the subject land are part of the stock in trade of the business of Dave Potter Motors. Thus, the subject land is not to be used merely as a carpark in the ordinary sense of that word. Indeed, on the face of the proposal, there is no proposed carpark layout, with linemarking, as was the case in the Eblen proposal. There is one element that is common to both the Eblen situation and the instant proposal. Vehicles that have been serviced may be parked on the subject land, pending collection by the service customer. However, there is a difference. In the Eblen matter the customer was to collect the vehicle directly from the subject land, while in this matter the vehicle would be brought to the customer, who would present at the service depot on the subject land.

18. Upon the evidence of the appellant, I have concluded that the primary use of the subject land would be to store new motor vehicles brought from the Honda bond store in Port Adelaide. These vehicles would be stored on the subject land, until they are required for sale or for a placement in the new vehicle showroom. This use connotes, in ordinary parlance, a storage yard, rather than a carpark. Mr Manos argued that a place where cars are "parked" may be a carpark despite the fact that vehicles might be held there for a long period of time. He referred the Court to examples of long term carparks such as exist at capital city airport facilities, where a car may be left for a long period of time until the owners return from interstate or overseas.

19. It seems to me that the distinction is in the nature of the thing that is to be placed and stored on the subject land. They will be, as far as the majority is concerned, new vehicles straight from the bond store. They will not have been registered, cleaned or serviced ready for presentation and sale to a prospective customer. Carparks are places where a person may park a motor vehicle or a fleet of motor vehicles. These vehicles may be parked in a carpark, either because the driver has business to attend to elsewhere, or has left the vehicle in that place to be collected by another person for work to be carried out on the vehicle. This is not the situation here.

20. The proposal is to store the vehicles on the subject land, in the same way as they are presently stored in the bond store, courtesy of the Honda Corporation, pursuant to an arrangement between Honda and Dave Potter Motors.

21. I find that the subject land will not be used as a carpark, within the ordinary meaning of that word.

22. The Development Regulations define "store" as follows:

" 'store' means a building or enclosed land used for the storage of goods, and within or upon which no trade (whether wholesale or retail) or industry is carried on, but does not include a junk yard, timber yard or public service depot;"

In Alberton & Wilhelm v City of West Torrens & De Palma [2001] SAERDC 56, this Court considered the definition of "store" in relation to, inter alia, the use of land for parking of motor vehicles. The Court noted that "goods" include items of trade, according to the Macquarie Dictionary (2nd Revised Edition) definition. I am of the view that the new and used motor vehicles to be stored on the subject land pending sale, constitute items of trade and therefore, "goods". This is consistent with my conclusion that the motor vehicles will not be in a carpark on the subject land. Items of trade are stored pending display for sale. Once sold, a motor vehicle is no longer an item of trade, until the owner wishes to offer it for resale. Then it may become one of the goods on display in a caryard or service trade premises, or may be stored pending repair work and subsequent display for sale.

23. With the exception of those motor vehicle awaiting collection following service, the motor vehicles proposed to be stored on the subject land are goods. The definition of "store" requires that the land be enclosed. The evidence is that the subject land would be enclosed with an 1800mm high fence, either to be constructed or existing along the northern, eastern and southern boundaries and returning from the south along a portion of the western boundary, with the existing fence remaining along the western boundary. Gates would be inserted at each end of the existing driveway in the fences on both the northern and southern boundaries.

24. Some of the vehicles to be stored on the land would probably not comprise "goods", as they are not items of trade and would merely be stored pending collection later the same day. However, this is a very minor aspect of the proposed use according to the evidence and I have concluded that the dominant use of the land, as proposed, would be a store, to be used in conjunction with the service trade premises known as Dave Potter Motors Pty Ltd on adjoining allotments 113 and 114 and other allotments.

25. Having thus concluded, it follows that the proposed development was, prima facie, at the relevant time, a non-complying kind of development, according to Principle of Development Control 9 for the Historic (Conservation) - Residential (New Glenelg) Zone. Accordingly, the decision of the respondent Council to classify the proposed development as non-complying, is upheld, albeit I have concluded that the nature of the development is properly a "store".

26. I will hear the parties as to the orders I should make.