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Bahr & Ors v City of Onkaparinga & Gilligan & Ors [2006] SAERDC 49 (13 July 2006)

Last Updated: 17 July 2006

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.

BAHR & ORS v CITY OF ONKAPARINGA & GILLIGAN & ORS

[2006] SAERDC 49

Judgment of Her Honour Judge Cole, Commissioner Green and Commissioner Botting

13 July 2006

LOCAL GOVERNMENT - TOWN PLANNING

Application for provisional development plan consent to erect a shed to be used as a store - third parties appealed against the granting of Council's consent - proposed purpose of shed is for the storage of wine in bottles and in barrels - locality predominantly rural in character - whether the proposed development is an appropriate land use for locality - likely impacts of visual, traffic and heritage matters - proposed development not an appropriate land use in its locality - appeal allowed.
Development Act 1997; Liquor Licensing Act 1997, referred to.
The Corporation of the City of Marion v Lady Becker & Others (1973) 6 SASR 13; Torresans Happy Valley Winery v City of Onkaparinga & Anor [2005] SAERDC 51; Prestige Car Sales Pty Ltd v Corporation of the Town of Walkerville and Shuttleworth (1979) 20 SASR 514, considered.

BAHR & ORS v CITY OF ONKAPARINGA & GILLIGAN & ORS
[2006] SAERDC 49

1 JUDGE COLE AND COMMISSIONER BOTTING: On 12 October 2004, Mr Gilligan and others ("the developers") lodged a development application with the City of Onkaparinga ("the Council") seeking provisional development plan consent to erect a shed to be used as a store at Lot 115 California Road, McLaren Vale ("the land").
2 The Council began processing the application. Some way into that process, on 1 August 2005, the developers amended the development proposed to reduce the size of the shed from 48m x 20m to 30m x 16m, among other things. The Council began the process afresh. Category 3 notification was given, and representations were made by Mr Bahr and the other appellants ("the objectors") among others. On 24 November 2005, the Council granted provisional development plan consent to the application, subject to 18 conditions. The objectors appealed against the granting of that provisional development plan consent.

The Land

3 The land has frontages to both the Victor Harbor Road (186.07 metres) and to California Road (187.65 metres). It is approximately 9.5 hectares in area. The shed site is on the northern side of the western end of the land, approximately 38 metres from the boundary between the land and the California Road reserve (the western boundary of the land). The shed site is east of an existing shed which is 14 metres east of that western boundary.
4 There is a dwelling in the south-western corner of the land, together with two existing sheds. East of the shed site several rows of vines have been established. The north eastern-corner of the land is part of a wetland.
5 The shed site, and some of the area around it, has been filled and levelled.

The Proposed Development

6 The proposed building work consists of a shed encircled by a sealed driveway. The driveway has been designed to allow a semi trailer to enter the land and drive around the new shed in a forward direction. The shed is to be 16 metres wide and 30 metres long, so that its floor area will be 480 square metres. It will be 5.5 metres from finished ground level to gutter height and 7.055 metres from finished ground level to the top of the roof ridge. It will be dark green Colorbond. There is to be a 120 square metres concrete platform on the eastern side of the shed for use in the washing of barrels. A 4500 litre wastewater tank will be installed underground by the north-eastern corner of the proposed shed. A pond will be established in the north-western corner of the land for use as a stormwater detention pond.
7 The stated purpose of the proposed shed is for the storage of wine in bottles and in barrels. Initially, Mr Gilligan estimates, 411 pallets of bottled wine will be stored in the new shed together with 256 barrels of wine. The existing shed is also to be used for the storage of wine. Barrel washing is to occur on the concrete platform, with the wastewater being piped to the wastewater tank. Ultimately, that wastewater is to be pumped out onto the woodlot which runs east/west in the approximate centre of the land. In his evidence, Mr Gilligan said that he estimated that 90% of the barrels would enter and leave the site full; in other words, no more than 10% of the barrels would be washed on site.
8 The proposal constitutes development and is regulated by the Development Act 1993 both because it involves building work and because it will be a change of use of the land.
9 On the basis of the evidence adduced, we are unable to make detailed findings as to what the lawfully existing use of the land is, and it is not necessary for us to do so in order to decide this appeal. Mr Gilligan gave evidence that both he and his father had recently begun using a room each in the house on the land for the purpose of an office. He also said that neither he nor his father live in the house. A friend of Mr Gilligan’s lives in the house. Mr Gilligan frankly conceded that, in the future, further changes of use may occur on the land and the wine store may be integrated with them. There was evidence that both a wholesale liquor merchant’s licence, and a producer’s licence had been granted over the land, subject to certain conditions, under the Liquor Licensing Act 1997. It appears that further steps may need to be taken to bring the existing land use into compliance with the Development Act. That, however, does not concern us directly in these proceedings. We have assessed the application as it has been presented by the developers. We have not drawn any inferences in relation to the question of whether this proposal is part of a larger development.
10 It was evident from the evidence of Mr Gilligan, in particular, that the plan of the proposed development provided to the Council and to this Court do not accurately represent the intentions of the developers. The gates are not presently in the position shown on the plan, and Mr Gilligan does not intend to move them. The internal driveway will therefore be somewhat different from the way it is shown on the plan. The plan does not accurately show the existing fill on the land. Mr Gilligan gave evidence that the depiction of the wastewater pond on the land was wrong; the pond will be smaller and 2 metres will be taken from the eastern side of it for semitrailer manoeuvring space.
11 For the purpose of assessing the proposed development, we have assumed that the proposal is in accordance with the description given by Mr Gilligan in evidence.

The Locality

12 Four town planners gave evidence; Mr Batge in the Council’s case, Mr Burns in the developer’s case and Mr Hutchison and Mr Weymouth in the objectors’ case. They each designated a locality of a different extent for the purpose of assessing the proposed development. We viewed the land and the surrounding area. On the basis of the extent to which there is a view of the land, and the vistas in conjunction with which the land is able to be viewed, we adopt Mr Batge’s locality, which goes from Branson Road in the north to Victor Harbor Road in the east, to Malpas Road in the south, and takes in a strip of about 100 metres west of California Road. Most of the direct impact of the proposed development will be experienced within this area.
13 The locality is predominantly rural in character. A wetland runs through it. Much of the land in the locality is used for vineyards. Diagonally opposite the land, on the western side of California Road, there is a rural living block upon which Mr Verlinden and Ms Creighton have their home and two units used for bed and breakfast accommodation. There are two other dwellings to the north of the land which have distant views of it. The property immediately to the north of the land is owned by Mr and Mrs Zoumis. It contains an olive grove and a group of old outbuildings, but the dwelling which formerly existed in the south-eastern corner of that property, adjacent to the land, was demolished some years ago. The property immediately to the south of the land is owned by Mr Bahr and Ms Power. They live in the dwelling on the land and run a hobby farm.
14 On the south-western corner of California Road and Malpas Road is a property from which is run the business of Kangarilla Drilling. Two dwellings and some sheds are present on that property, including a shed approximately 30 x 15 metres. That shed is very prominent in its own locality. It is the largest shed in the locality of the proposed development.

The Development Plan

15 Mr Batge and Mr Burns assessed the proposed development against the Development Plan in force on 1 August 2005, being the consolidation of 17 March 2004, on the basis that the Council had treated the amendment to the application on 1 August 2005 as a fresh application. Mr Hutchison used the consolidation of 26 March 2004. We do not consider that the amendment to the application was so significant as to constitute a fresh application in all of the circumstances (see The Corporation of the City of Marion v Lady Becker & Others (1973) 6 SASR 13), though it was prudent of the Council to advertise it afresh. We note that administratively the Council treated the application as a single entity. We agree with Mr Hutchison that the applicable Development Plan is the consolidation of 26 March 2004. As it happens, nothing of substance turns upon the changes to the Development Plan.
16 The land is within the Rural Zone (see Map Onka/83).

Planning Assessment

17 The approach to a planning assessment of a proposed development such as this is guided by the provisions of the Development Plan together with the long established practice of expert town planners.
18 The first, broader level of assessment involves the consideration of whether the land use which is proposed for the land is appropriate, having regard to the zoning, the provisions of the Development Plan which are concerned with land use, and the lawfully existing land uses in the locality. The second, finer level of assessment involves looking at whether the impact of the proposed development will be acceptable, having regard to those provisions of the Development Plan which address aspects of potential impact, and to the reasonable expectations of exiting land users and visitors to the locality. If a proposal fails the first level of assessment it is strictly unnecessary to undertake the second level. The levels may overlap to some degree.

Land Use

19 The following Objectives of the Rural Zone relate to land use:

Objective 4: The development of a sustainable tourism industry with accommodation, attractions and facilities which relate to and interpret the natural and cultural resources of the region, and increase the opportunities for visitors to stay overnight.
Objective 5: Where natural resources are not jeopardised, a zone comprising land retained in use primarily for agricultural purposes.
...
Objective 7: Rural production and other development that will contribute to the re-establishment of a natural ecological balance by the application of environmentally sustainable development practices.
Objective 8: Protection of productive agricultural land from conversion to non-productive or incompatible uses.
Objective 9: Encouragement of the establishment of appropriately scaled "value added" commercial activities to utilise local rural production, including the establishment of niche market products, within suitable areas and resulting in minimal landscape intrusion and environmental impact.
Objective 10: The development of agricultural industries (small-scale), wineries, mineral water extraction and processing plants and home based industries in rural areas.
Objective 11: The extension of the economic base of the region in an environmentally sensitive and sustainable manner.

20 The following Principles of the Rural Zone relate to the suitability of different kinds of land uses:

1 Development within the zone should be compatible with its use as a water catchment and storage area, and with its values as an area of agricultural production and scenic quality.
2 Development should primarily be limited to that which is essential for the maintenance of sustainable grazing, commercial forestry and mixed agricultural activities.
...
6 Development which would remove productive land from agriculture or diminish its overall productivity for primary production, should not be undertaken unless the land is required for essential public purposes.
...
9 Development involving the expansion of existing uses which are not in accord with objectives for the zone should not be undertaken.
10 Retail business and commercial developments should not be located in this area unless they are specifically related to tourism, recreation, or are ancillary to the carrying out of primary production.

21 The developer also relied upon Council Wide Principle 87 together with some statements about Principle 87 which were made by this Court in Torresans Happy Valley Winery v City of Onkaparinga & Anor [2005] SAERDC 51:

Wineries and Ancillary Activities
87 Wineries should:

(a) include at least one of the following activities normally associated with the making of wine:

(i) crushing;
(ii) fermenting;
(iii) bottling;
(iv) maturation/cellaring of wine; and

may include ancillary activities of administration, sale and/or promotion of wine product and dining;
(b) be located within the boundary of a single allotment which adjoins or is on the same allotment as a vineyard;
(c) process primary produce primarily sourced from within the Mount Lofty Ranges Region;
(d) only include dining facilities as an ancillary use to the winery;
(e) where of 500 tonnes or greater crush capacity per annum be located not closer than 300 metres to a dwelling or tourist accommodation that is not in the ownership of the winery applicant.

22 In Torresans the Court said, at paras 7 and 9:

Winery is not a kind of use that is defined in the Development Regulations 1993. However Principle 87, the only principle under the heading Wineries and Ancillary Activities, appears to set out criteria identifying and governing development in the nature of a winery in the zone. It cannot be said to be a definition of a winery but it gives a clear indication of what is expected in and of a winery in the zone.
We find that within the Rural Zone a winery could incorporate a number of activities normally associated with the making of wine but does not need to include all of the specified activities. The proposed development of a winery within which bottling and maturation or cellaring of wine will be the sole or primary activities will be considered to be a winery for the purposes of Principles 88 to 97 (inclusive) if it is located within the boundary of a single allotment which either adjoins or is on the same allotment as a vineyard, processes grapes sourced primarily from within the Mount Lofty Ranges Region, has no dining facilities or includes them only as a use ancillary to the winery and is located at a distance of greater than 300 metres from a dwelling or tourist accommodation not in the ownership of the winery applicant, if the crush is 500 tonnes or greater.

23 Both Mr Burns and Mr Batge characterised the proposed development as a winery in express reliance upon these passages from the Torresans decision. In doing so, they misinterpreted both the passages from Torresans and Principle 87.
24 In Torresans, the Court found that, prior to the making of the development application, there was an existing, continuing use of certain buildings on the subject land for a winery. Some crushing of grapes took place within one of the buildings, and the bottling, labelling and storage of wine took place. The proposed development was the extension of that existing winery by the expansion of the bottling plant and maturation store, together with the development of associated car parking and landscaping, including the removal of 6 significant trees. It is in that context that the remarks above are to be read. Neither the Court in Torresans nor the Development Plan in Principle 87 is saying that if any one of the activities listed in (i) to (iv) of Principle 87 is proposed, then a proposal constitutes a winery. Principle 87 is simply a list of activities, some or all of which a winery should include. It does not follow that any land use which includes any one of the activities listed is a winery. As the Court noted in Torresans, Principle 87 is not a definition of a winery.
25 The proposed development is for the storage of wine which has been made and bottled elsewhere. Some of the wine will be stored in bottles, and some of the wine will be stored in barrels. It is in the nature of wine that it will continue to mature, as it is stored, regardless of where it is stored. Presumably, if the facility were not managed well, some of the wine might even go off. On occasion, we are told, the need may arise to wash some of the barrels on the land. There is to be no crushing of grapes, no fermentation, no bottling and no labelling. It may be necessary to top the barrels up on site. Having regard to the nature and mix of the activities proposed, we find that the proposed development is not a winery. Mr Burns placed great reliance upon the fact that it is proposed to use some of the space within the proposed shed to store barrels. He seemed to think that this somehow transformed the facility into a winery for the purposes of the Development Plan. We disagree. The nature of a land use is to be determined having regard to the purpose of the use (Prestige Car Sales Pty Ltd v Corporation of the Town of Walkerville and Shuttleworth (1979) 20 SASR 514 @ 520.) The purpose of this proposal is to store wine between bottling and sale. The proposal is for a store, with the topping up of barrels and the barrel washing as a minor, ancillary incident to that.
26 In view of our determination that the proposed development is not a winery, we do not agree with the evidence of Mr Burns and Mr Batge insofar as they have sought to apply Zone Objective 10 and Principle 87 to the proposal. Principle 87 is not applicable to the proposal except indirectly, in that it indicates an intention as to the character of the zone. Although the proposed development is not expressly referred to in Objective 10, it is relevant to an assessment of the proposal to note that the Development Plan does seek the establishment of some industrial type activity in the Rural Zone. That, however, is the extent of the relevance of Objective 10.
27 Taking all of the relevant provisions regarding land use together, the Rural Zone seeks predominantly agricultural land uses, tourist accommodation attractions and facilities, "appropriately scaled ‘value added’ commercial activities to utilise local rural production", small scale agricultural industries, wineries, mineral water extraction and processing plants and home based industries. Part of the commentary to the Rural Zone Objectives says:

Accommodation of associated "value added" industries in appropriate locations is envisaged, along with appropriately scaled tourism infrastructure.
Small scale, low impact agricultural and home based industries are encouraged where they expand the economic base of the Zone. Industries should be based upon the processing of agricultural produce primarily from the region. Home based industries should be based on rural, arts, crafts, tourist, cultural or heritage activities appropriate to the region. Development should complement the zone’s character and enhance tourist or heritage activities and be compatible with local areas. Larger scale industries and related activities are more suited to designated industrial or commercial zones within townships or other urban areas.

28 The proposed development is not one of the land uses sought by the provisions of the Rural Zone. It was the evidence of Mr Burns that wines made from grapes grown in the region would be the only wine stored in the shed. However, this has no effect on the character of the proposal. Once approved as a store, the goods to be stored will not be limited to the goods Mr Burns described, nor would the imposition of any such limitation serve any practical purpose. There is nothing in the nature of the development proposed which particularly ties it to the area. The Development Plan acknowledges a practical and economic advantage in, for example, siting a winery near to the grapes that it processes. No such advantage is recognised by the provisions of the Development Plan in the context of storing produce prior to its distribution. This is not a proposal to undertake a process which will add value to local produce – the wine is to be made at other locations. This is predominantly a storage facility. As Mr Hutchison points out in his statement, the Development Plan encourages the locating of such land uses in Industrial Zones, such as the Industry (Township) Policy Area. It does not encourage the locating of them in the Rural Zone.
29 The Principles of Development Control for the Rural Zone place particular emphasis on confining the kinds of land uses which may be established in the zone. Principle 2 provides:

2 Development should primarily be limited to that which is essential for the maintenance of sustainable grazing, commercial forestry and mixed agricultural activities.

30 Principle 10 provides:

10 Retail business and commercial developments should not be located in this area unless they are specifically related to tourism, recreation, or are ancillary to the carrying out of primary production.

31 The proposed land use is contrary to both of these Principles.

Conclusion on Land Use

32 The proposed development fails the first level of assessment. It is not an appropriate land use in this locality having regard to the provisions of the Development Plan. On this basis, we would allow the appeal and refuse to grant provisional development plan consent to the proposal. However, for completeness, we will proceed to assess the impacts of the proposed development.
33 In assessing the likely impacts of the proposed development, we bear in mind the manner in which, on Mr Gilligan’s evidence, the developers wish to use the shed and road. We also bear in mind the fact that Mr Gilligan, not unreasonably, did not wish to be limited to storing precisely the number of pallets and barrels now envisaged, nor did he wish to be confined as to the number of vehicle movements which could be generated by the development. The requirements of the business from time to time will dictate the level of activity associated with the shed. We bear that in mind also in our assessment.

Impacts

Visual

34 The Rural Zone provisions are clear about the desired appearance for the Zone:

Objective 3: The enhancement of the rural character, key scenic routes, scenic surrounds to townships, amenity and prominent landscape for the enjoyment of residents and visitors.
...
Objective 9: Encouragement of the establishment of appropriately scaled "value added" commercial activities to utilise local rural production, including the establishment of niche market products, within suitable areas and resulting in minimal landscape intrusion and environmental impact.
Principles
1 Development within the zone should be compatible with its use as a water catchment and storage area, and with its values as an area of agricultural production and scenic quality.
...
8 Buildings should not impair the character of rural areas by reason of their scale or siting. If necessary buildings should be screened by trees or shrubs.
...
15 The excavation and/or filling of land should:
(a) be kept to a minimum and be limited to no greater than 1.5 metres so as to preserve the natural form of the land and the native vegetation;
(b) only be undertaken in order to reduce the visual impact of buildings, including structures, or in order to construct water storage facilities for use on the allotment;
(c) only be undertaken if the resultant slope can be stabilised to prevent erosion; and
(d) result in stable scree slopes which are covered with top soil and landscaped so as to preserve and enhance the natural character or assist in the re-establishment of the natural character of the region.
...
17 Buildings, including structures, should be located in unobtrusive locations and, in particular, should:
(a) be located within valleys, below ridge lines, or behind spurs;
(b) be located in such a way as to not be visible against the skyline when viewed from public roads;
(c) be sited on an excavated rather than a filled site in order to reduce the vertical profile of the building; and
(d) be located in such a way as to maximise the retention of existing native vegetation and the production and retention of watercourses.
18 Buildings, including structures, should be designed in such a way and be of such a scale as to be unobtrusive and not detract from the desired rural character of the zone:
(a) the mass of buildings should be minimised by variations in wall and roof lines and by floor plans which complement the contours of the land;
(b) large eaves, verandahs and pergolas should be incorporated into designs so as to create shadowed areas which reduce the bulky appearance of buildings; and
(c) the mass of buildings should be minimised by having separate vehicle storage areas.
19 The external materials of buildings should:
(a) have surfaces that are of a low light-reflective nature; and
(b) be of natural colours so as to be unobtrusive, blend with a natural rural landscape and minimise any visual intrusion.
20 Buildings:
(a) should have a safe efficient effluent disposal system which will not pollute watercourses or underground water resources or be a risk to health; and
(b) should have a safe, clean, tidy and unobtrusive area for the storage and disposal of refuse.
21 The number of outbuildings should be limited, and where appropriate they should be grouped together, located in unobtrusive locations and comply with the previously mentioned principles of development control relating to the location and design of buildings.
22 Driveways and access tracks should follow the contours of the land so as to reduce their visual impact and erosion from water run-off and be surfaced with dark materials. The excavation/filling of land should be kept to a minimum in order to preserve the natural form of the land and the native vegetation.
23 Native trees, shrubs and ground covers should be established to screen development, including scree slopes created as a result of the excavation and/or filling of land, in such a way that the bushfire hazard is not increased. Screening mounds may also be appropriate.
...
41 Development should not detract from the natural and rural landscape character of the region.
...
53 The appearance of land, buildings and objects should not impair the amenity of the locality in which they are situated.
...
55 The rural character, comprising natural features and man-made activities, should be preserved by careful siting, design and landscaping of new building development and/or intensive land uses.
56 Buildings or structures should be sited unobtrusively and be of a character and design which will harmonise with the landscape.

35 In evidence, estimates varied as to the extent of the setback of the proposed shed from California Road. According to the proposal plan, the shed will be 38 metres east of the California Road edge of the land. The shed is to be 30 metres long x 16 metres wide, and slightly more than 7 metres high from finished ground level to the apex of the roof. It is to be constructed on a platform of filled land above natural ground level which has been created partially by a previous occupant of the land who cultivated strawberries, and partly by the Council when sealing California Road.
36 In our assessment, the proposed shed is out of character with the locality. In context, it will not have a rural appearance. It will not be unobtrusive. It will not harmonise with the landscape. The only structure comparable in size and prominence within the locality is the Kangarilla Drilling shed on Malpas Road – the only existing, obviously non-rural land use in the locality. The Kangarilla Drilling shed is a visually obtrusive discordant note in the rural landscape. It is at the outer edge of the locality of the proposed development. We do not consider that another such discordant element should be introduced into the locality. We understand that considerable landscaping has already taken place between California Road and the site for the shed, and that more landscaping and mounding is proposed. We understand that the shed is proposed to be clad in dark green/grey Colorbond to match the existing shed beside it. Even taking these matters into account, however, we consider that the appearance of the proposed development places it in conflict with the principles of development control set out above.
37 The appearance of the shed with its "ring" driveway would diminish the amenity of the locality. It would be visible from a large area within the locality, particularly on California Road. We are concerned about the appearance of the shed from Mr and Mrs Zoumis’ property, which abuts the land to the north. Mr and Mrs Zoumis’ property is not presently used for residential purposes, but is used for the cultivation of olives and for some incidental, recreational purposes. The appearance of the shed, on the filled site, will be imposing when viewed from the property to the north.
38 Our views on the visual impact of the shed, and the impact of the proposed development upon the character of the locality differ from the views of Mr Burns and Mr Batge. We have considered their views and we reject them.

Traffic

39 The developers estimate that the proposed development would generate a total of 206 vehicle movements per year to and from the site. Mr Burns assessed this as an average of 4 vehicle movements per week. It need not be, of course. Mr Gilligan said that he did not expect any seasonal variation in the traffic movements, but it is clear that those movements will be dictated by customer needs, and may have peaks and troughs. We accept that the proposed development would not strain the capacity of California Road. Bottled wine is likely to be moved around on site by forklift, working in conjunction with semi-trailers or other trucks. It was argued that this would be a similar level and type of activity as might be generated by agricultural production. We disagree. Ms Creighton, who, with her husband, runs a bed and breakfast business diagonally opposite the land and to the north-west of it on California Road, pointed out in cross examination that the movement of semi-trailers and a forklift truck in and around the shed would be easily seen and heard from the front garden of her house. She estimated that the activity would be 35 to 40 metres from her front garden, which was an underestimation of the distance involved, but her point was, nonetheless, valid. Were the shed to be setback considerably further into the land, the impact upon her property would obviously be less. The use of the shed would dictate a concentration of movement of large and small vehicles in a confined area which does not generally occur on a year round basis in agricultural production. Ms Creighton also made the point that the vehicle movements associated with horticultural land uses were part of the rural environment her bed and breakfast guests were there to experience. Such movements were explicable in terms of the seasonal activities taking place. Traffic movements associated with a large store would not have the same kind of relationships with the predominant use of land in the locality.

Heritage

40 The Development Plan provides, in Principle 33, under the heading "Conservation (Environmental, Cultural and Heritage)":

Development in proximity to a place of heritage significance should respect and complement the built-form character of such place in terms of scale, building form, materials, external finishes and colour and not detract from the significance of the heritage place.

41 Ms Creighton and Mr Verlinden’s house is designated as a local heritage place in Table Onka/9. Mr Hutchison considered that the proposed development was contrary to Principle 33. We agree, but this consideration has not weighed heavily in our assessment on account of the distance between the proposed shed and the house and the fact of the existence of the road between them.

Other Impacts

42 We do not consider that the proposed development is likely to affect the wetland adversely, create a nuisance by way of dust or create unsafe traffic conditions.

Conclusion on Impacts

43 The proposed development would have a visual impact upon the locality which is contrary to many of the relevant provisions of the Development Plan and would be out of character with the locality.

Summary and Conclusion

44 The proposed development is not a land use contemplated in the Rural Zone and it is not an appropriate land use in its locality. The proposed shed and ring road, even when obscured by the proposed mounding and landscaping, would be an obtrusive element in the rural landscape. The appeal is allowed. The Council’s decision is reversed. Provisional development plan consent is refused.

45 COMMISSIONER GREEN: I agree with the decision of Her Honour Judge Cole and Commissioner Botting to allow the appeal on a land use/zoning basis, and I would add, orderly and proper land use planning for the future of the Rural Zone and the district, but I do not agree with the assessment, reasoning and conclusions on visual amenity and character impacts.
46 I assess the likely degree of visual impact of the proposal to be relatively low in the Rural Zone and locality contexts and acceptable, subject to conditions of consent concerning vegetation screening implementation and maintenance. I also assess that the proposed building and associated external activities, particularly vehicle and goods movement, will not change the rural character of the locality, considered in context with the desired character, gleaned from all of the provisions of the Rural Zone, including Objectives 3, 9 and 10 and Principles 8, 15, 17-19, 21, 53, 55 and 56.
47 Further I assess that any likely negative visual or character impacts on the Local Heritage place opposite, traffic generation and risks to safety from the proposed access and likely vehicle movement through it, whilst factors to be weighed up, are not sufficient to warrant rejection of the proposed development.

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3	The land has frontages to both the Victor Harbor Road (186.07 metres) and to California Road (187.65 metres). It is approximately 9.5 hectares in area. The shed site is on the northern side of the western end of the land, approximately 38 metres from the boundary between the land and the California Road reserve (the western boundary of the land). The shed site is east of an existing shed which is 14 metres east of that western boundary.
4	There is a dwelling in the south-western corner of the land, together with two existing sheds. East of the shed site several rows of vines have been established. The north eastern-corner of the land is part of a wetland.
5	The shed site, and some of the area around it, has been filled and levelled.

6	The proposed building work consists of a shed encircled by a sealed driveway. The driveway has been designed to allow a semi trailer to enter the land and drive around the new shed in a forward direction. The shed is to be 16 metres wide and 30 metres long, so that its floor area will be 480 square metres. It will be 5.5 metres from finished ground level to gutter height and 7.055 metres from finished ground level to the top of the roof ridge. It will be dark green Colorbond. There is to be a 120 square metres concrete platform on the eastern side of the shed for use in the washing of barrels. A 4500 litre wastewater tank will be installed underground by the north-eastern corner of the proposed shed. A pond will be established in the north-western corner of the land for use as a stormwater detention pond.
7	The stated purpose of the proposed shed is for the storage of wine in bottles and in barrels. Initially, Mr Gilligan estimates, 411 pallets of bottled wine will be stored in the new shed together with 256 barrels of wine. The existing shed is also to be used for the storage of wine. Barrel washing is to occur on the concrete platform, with the wastewater being piped to the wastewater tank. Ultimately, that wastewater is to be pumped out onto the woodlot which runs east/west in the approximate centre of the land. In his evidence, Mr Gilligan said that he estimated that 90% of the barrels would enter and leave the site full; in other words, no more than 10% of the barrels would be washed on site.
8	The proposal constitutes development and is regulated by the Development Act 1993 both because it involves building work and because it will be a change of use of the land.
9	On the basis of the evidence adduced, we are unable to make detailed findings as to what the lawfully existing use of the land is, and it is not necessary for us to do so in order to decide this appeal. Mr Gilligan gave evidence that both he and his father had recently begun using a room each in the house on the land for the purpose of an office. He also said that neither he nor his father live in the house. A friend of Mr Gilligan’s lives in the house. Mr Gilligan frankly conceded that, in the future, further changes of use may occur on the land and the wine store may be integrated with them. There was evidence that both a wholesale liquor merchant’s licence, and a producer’s licence had been granted over the land, subject to certain conditions, under the Liquor Licensing Act 1997. It appears that further steps may need to be taken to bring the existing land use into compliance with the Development Act. That, however, does not concern us directly in these proceedings. We have assessed the application as it has been presented by the developers. We have not drawn any inferences in relation to the question of whether this proposal is part of a larger development.
10	It was evident from the evidence of Mr Gilligan, in particular, that the plan of the proposed development provided to the Council and to this Court do not accurately represent the intentions of the developers. The gates are not presently in the position shown on the plan, and Mr Gilligan does not intend to move them. The internal driveway will therefore be somewhat different from the way it is shown on the plan. The plan does not accurately show the existing fill on the land. Mr Gilligan gave evidence that the depiction of the wastewater pond on the land was wrong; the pond will be smaller and 2 metres will be taken from the eastern side of it for semitrailer manoeuvring space.
11	For the purpose of assessing the proposed development, we have assumed that the proposal is in accordance with the description given by Mr Gilligan in evidence.

12	Four town planners gave evidence; Mr Batge in the Council’s case, Mr Burns in the developer’s case and Mr Hutchison and Mr Weymouth in the objectors’ case. They each designated a locality of a different extent for the purpose of assessing the proposed development. We viewed the land and the surrounding area. On the basis of the extent to which there is a view of the land, and the vistas in conjunction with which the land is able to be viewed, we adopt Mr Batge’s locality, which goes from Branson Road in the north to Victor Harbor Road in the east, to Malpas Road in the south, and takes in a strip of about 100 metres west of California Road. Most of the direct impact of the proposed development will be experienced within this area.
13	The locality is predominantly rural in character. A wetland runs through it. Much of the land in the locality is used for vineyards. Diagonally opposite the land, on the western side of California Road, there is a rural living block upon which Mr Verlinden and Ms Creighton have their home and two units used for bed and breakfast accommodation. There are two other dwellings to the north of the land which have distant views of it. The property immediately to the north of the land is owned by Mr and Mrs Zoumis. It contains an olive grove and a group of old outbuildings, but the dwelling which formerly existed in the south-eastern corner of that property, adjacent to the land, was demolished some years ago. The property immediately to the south of the land is owned by Mr Bahr and Ms Power. They live in the dwelling on the land and run a hobby farm.
14	On the south-western corner of California Road and Malpas Road is a property from which is run the business of Kangarilla Drilling. Two dwellings and some sheds are present on that property, including a shed approximately 30 x 15 metres. That shed is very prominent in its own locality. It is the largest shed in the locality of the proposed development.

23	Both Mr Burns and Mr Batge characterised the proposed development as a winery in express reliance upon these passages from the Torresans decision. In doing so, they misinterpreted both the passages from Torresans and Principle 87.
24	In Torresans, the Court found that, prior to the making of the development application, there was an existing, continuing use of certain buildings on the subject land for a winery. Some crushing of grapes took place within one of the buildings, and the bottling, labelling and storage of wine took place. The proposed development was the extension of that existing winery by the expansion of the bottling plant and maturation store, together with the development of associated car parking and landscaping, including the removal of 6 significant trees. It is in that context that the remarks above are to be read. Neither the Court in Torresans nor the Development Plan in Principle 87 is saying that if any one of the activities listed in (i) to (iv) of Principle 87 is proposed, then a proposal constitutes a winery. Principle 87 is simply a list of activities, some or all of which a winery should include. It does not follow that any land use which includes any one of the activities listed is a winery. As the Court noted in Torresans, Principle 87 is not a definition of a winery.
25	The proposed development is for the storage of wine which has been made and bottled elsewhere. Some of the wine will be stored in bottles, and some of the wine will be stored in barrels. It is in the nature of wine that it will continue to mature, as it is stored, regardless of where it is stored. Presumably, if the facility were not managed well, some of the wine might even go off. On occasion, we are told, the need may arise to wash some of the barrels on the land. There is to be no crushing of grapes, no fermentation, no bottling and no labelling. It may be necessary to top the barrels up on site. Having regard to the nature and mix of the activities proposed, we find that the proposed development is not a winery. Mr Burns placed great reliance upon the fact that it is proposed to use some of the space within the proposed shed to store barrels. He seemed to think that this somehow transformed the facility into a winery for the purposes of the Development Plan. We disagree. The nature of a land use is to be determined having regard to the purpose of the use (Prestige Car Sales Pty Ltd v Corporation of the Town of Walkerville and Shuttleworth (1979) 20 SASR 514 @ 520.) The purpose of this proposal is to store wine between bottling and sale. The proposal is for a store, with the topping up of barrels and the barrel washing as a minor, ancillary incident to that.
26	In view of our determination that the proposed development is not a winery, we do not agree with the evidence of Mr Burns and Mr Batge insofar as they have sought to apply Zone Objective 10 and Principle 87 to the proposal. Principle 87 is not applicable to the proposal except indirectly, in that it indicates an intention as to the character of the zone. Although the proposed development is not expressly referred to in Objective 10, it is relevant to an assessment of the proposal to note that the Development Plan does seek the establishment of some industrial type activity in the Rural Zone. That, however, is the extent of the relevance of Objective 10.
27	Taking all of the relevant provisions regarding land use together, the Rural Zone seeks predominantly agricultural land uses, tourist accommodation attractions and facilities, "appropriately scaled ‘value added’ commercial activities to utilise local rural production", small scale agricultural industries, wineries, mineral water extraction and processing plants and home based industries. Part of the commentary to the Rural Zone Objectives says:

35	In evidence, estimates varied as to the extent of the setback of the proposed shed from California Road. According to the proposal plan, the shed will be 38 metres east of the California Road edge of the land. The shed is to be 30 metres long x 16 metres wide, and slightly more than 7 metres high from finished ground level to the apex of the roof. It is to be constructed on a platform of filled land above natural ground level which has been created partially by a previous occupant of the land who cultivated strawberries, and partly by the Council when sealing California Road.
36	In our assessment, the proposed shed is out of character with the locality. In context, it will not have a rural appearance. It will not be unobtrusive. It will not harmonise with the landscape. The only structure comparable in size and prominence within the locality is the Kangarilla Drilling shed on Malpas Road – the only existing, obviously non-rural land use in the locality. The Kangarilla Drilling shed is a visually obtrusive discordant note in the rural landscape. It is at the outer edge of the locality of the proposed development. We do not consider that another such discordant element should be introduced into the locality. We understand that considerable landscaping has already taken place between California Road and the site for the shed, and that more landscaping and mounding is proposed. We understand that the shed is proposed to be clad in dark green/grey Colorbond to match the existing shed beside it. Even taking these matters into account, however, we consider that the appearance of the proposed development places it in conflict with the principles of development control set out above.
37	The appearance of the shed with its "ring" driveway would diminish the amenity of the locality. It would be visible from a large area within the locality, particularly on California Road. We are concerned about the appearance of the shed from Mr and Mrs Zoumis’ property, which abuts the land to the north. Mr and Mrs Zoumis’ property is not presently used for residential purposes, but is used for the cultivation of olives and for some incidental, recreational purposes. The appearance of the shed, on the filled site, will be imposing when viewed from the property to the north.
38	Our views on the visual impact of the shed, and the impact of the proposed development upon the character of the locality differ from the views of Mr Burns and Mr Batge. We have considered their views and we reject them.

45	COMMISSIONER GREEN: I agree with the decision of Her Honour Judge Cole and Commissioner Botting to allow the appeal on a land use/zoning basis, and I would add, orderly and proper land use planning for the future of the Rural Zone and the district, but I do not agree with the assessment, reasoning and conclusions on visual amenity and character impacts.
46	I assess the likely degree of visual impact of the proposal to be relatively low in the Rural Zone and locality contexts and acceptable, subject to conditions of consent concerning vegetation screening implementation and maintenance. I also assess that the proposed building and associated external activities, particularly vehicle and goods movement, will not change the rural character of the locality, considered in context with the desired character, gleaned from all of the provisions of the Rural Zone, including Objectives 3, 9 and 10 and Principles 8, 15, 17-19, 21, 53, 55 and 56.
47	Further I assess that any likely negative visual or character impacts on the Local Heritage place opposite, traffic generation and risks to safety from the proposed access and likely vehicle movement through it, whilst factors to be weighed up, are not sufficient to warrant rejection of the proposed development.