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JENNISON v CITY OF ONKAPARINGA & ANOR [2007] SAERDC 7 (16 February 2007)

Last Updated: 20 February 2007

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.

JENNISON v CITY OF ONKAPARINGA & ANOR

[2007] SAERDC 7

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

16 February 2007

LOCAL GOVERNMENT - TOWN PLANNING

Development Act 1993 - third party appeal - conditional consent by the Council - extension to car parking area and erection of additional storage shed for an existing poultry processing plant land use - Rural Zone - expansion of existing use and alignment with Zone Objectives considered - not unreasonable - impacts from parking area extension and additional shed and stormwater drainage also considered - conditional Provisional Development Plan Consent warranted with varied/additional conditions - appeal allowed only to vary conditions.
Development Act 1993, referred to.
Wilson v City of Mitcham & Mercedes College (1986) 130 LSJS 31; Bahr v City of Onkaparinga & Gilligan & Ors [2006] SAERDC 49, considered.

JENNISON v CITY OF ONKAPARINGA & ANOR
[2007] SAERDC 7

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

Judge Cole: I agree with Commissioner Green.

Commissioner Green:

1 This matter is a third party appeal against the decision of the City of Onkaparinga (the Council) to grant conditional Provisional Development Plan Consent to Development Application No. 145/3972/2005/3B made under the Development Act 1993, for extension to a parking area and an additional storage shed at the premises of the 2^nd respondent, Aldinga Table Turkeys Pty Ltd (ATT hereafter), at McLaren Flat.

2 As it transpired, there was an erroneous inclusion of a further shed now erected over a wastewater treatment plant, discovered during the hearing to have already been approved by the Council (evidence and Exhibit R3). The wastewater treatment plant itself was never part of the application, though the appellant asserted it was or should have been (refer later for consideration of this point).

3 A summary of some of the relevant details in this matter is as follows:

Date of application:	10 November 2005
Subject land address:	Allotment 30, Section 479 (CT Volume 5197 Folio 85) Foggo Road, McLaren Flat
Existing use:	Poultry processing plant and associated buildings, parking area, landscaping and other functional areas (ostensibly pre-dating planning controls)
Proposal:	1. Extension to parking area with additional 17 spaces (Exhibit R1, p.4 and Exhibit E – No. 24-40) but amended to 19 spaces as constructed (Exhibit G) and down-lighting thereof; 2. Storage shed for boxes and packaging attached to existing sheds; both associated with and ancillary to the existing use of land (retrospective approval sought for each)
Relevant authority:	City of Onkaparinga
Relevant/Appropriate Development Plan:	Onkaparinga (City) consolidated version 22 September 2005
Relevant Zone/Area:	Rural (RuZ hereafter) – MAP Onka/1 (Overlay 1.1) Part B and MAP Onka/84
Categorisation/Representations:	Category 3/21 (20 against, including the appellants)
Referrals to Agencies:	Not required (but EPA informally – vide Exhibit R1, pp.42-45)
Date of decision:	11 May 2006
Appeal lodged:	23 May 2006
Conference concluded:	22 June 2006

4 The members of the Court viewed the subject land and the locality on the morning of Monday, 4 September 2006, in the presence of the parties.

5 Regard is given to the evidence of the witnesses assisting the Court. For the appellants, only Ms Jennison, a lay person and adjoining resident (refer photos Exhibit A2 and Exhibit R1, p.14) gave evidence regarding noise and lighting from the parking area and on adjacent buildings, increase in hours of operation, effluent and stormwater disposal incidents, bird/rodent and other nuisance impacts, the expansion of the activities over the years and her objection in-principle to the proposed shed on the basis of alleged increased production capacity internal to the factory building. For the respondent Council, Mr D Batge, an experienced consultant town planner (refer Exhibit R2) gave evidence. For the 2^nd respondent, Mr S Crabb, general manager of the applicant company ATT (refer Exhibit B); Mr P Maddern, an experienced consultant acoustic engineer (refer Exhibit C); Mr P Weaver, an experienced consultant traffic engineer (refer Exhibit D); and Mr S Forster, an experienced consultant electrical engineer specialising in lighting (refer Exhibits E and F), all gave evidence.
The Subject Land

6 The subject land comprises an elongated allotment that is generally rectangular in shape with frontage to Foggo Road of some 90 metres, overall depth of some 573 metres and site area of some 4.18 ha. The land has a gentle gradient sloping from its south-eastern to its north-western corner, toward Foggo Road. The evidence is that it is not near a watercourse, it is not subject to flooding or land slip and nor are there (or were there prior to the work) any significant trees removed by or located near the proposed parking area extension and additional storage shed.

7 Existing development on the subject land includes:

• an office building fronting Foggo Road;
• a poultry processing plant of approximately 2700 square metres in floor area with separate vehicular access directly from Foggo Road, as well as from the northern side to the rear;
• additional sheds over the water treatment plant, interconnected and adjoining a maintenance/workshop shed (and to which the subject proposed (existing) shed adjoins and is attached), all totalling approximately 600 square metres and located behind the main factory building;
• a dual driveway along the northern side of the land providing access to the rear of the factory and to vehicle manoeuvring/parking areas;
• a staff parking area for 24 cars located toward the Foggo Road frontage, north of the office and serviced by the dual driveway along the northern boundary (and with other parking spaces located at the rear as well as the proposed (existing) extended parking area);
• numerous water or other tanks;
• an 80 metre length of timber paling fence approximately 2.4 metres high (on the low side) erected along part of the northern boundary adjacent the appellants’ dwelling, horse yard and garden areas;
• young landscaping planted along much of the northern boundary; and
• a woodlot behind the buildings on the subject land that was used to dispose of part of the wastewater generated from the processing but with the majority of the wastewater recently connected to the Council’s S.T.E.D Scheme.

8 From the evidence of Mr Crabb in particular, it would seem that the approved use of the land is a poultry processing plant (partially an abattoir for the slaughter of poultry, but also for the preparation and packaging of poultry in many different forms), understood to have commenced in 1973. The activities and buildings associated with that use are said to have been expanded in 1979 and again with substantial increases in the 1998-2001 period. This increased the total floor area to some 3300 square metres.
9 Numerous applications have been made to and approved by the Council, particularly over the last six years as follows:

• 145/1684/2000 – alterations and additions to existing poultry processing plant;
• 145/1217/2001 – a shed (workshop) at the rear of the site between the main building and the woodlot;
• 145/4136/2002 – chain mesh fence;
• 145/1754/2004 – meeting room; and
• 145/2802/2005 – 2.4 metre high fence.

10 A further development application has apparently been made to vary 145/1684/2000 for a smaller office at the rear of the office building in lieu of the boning room extension not proceeded with and another for the enclosure of the existing carcass load out area. The latter, at least, is also separately before this Court on appeal by the appellants.

The Proposal

11 The development proposal comprises an extension to a parking area for staff and the addition of a shed structure adjoining and connecting to existing shed structures, to be used for the storage of packaging and boxes, both associated with and ancillary to the existing poultry processing plant. Whilst the shed addition and the parking area extension currently exist on the land, they are for consideration on their merits and case law dictates that such existence is to be taken as neither to the advantage nor disadvantage of ATT.
12 The parking area extension will increase the capacity of the then existing 24 space parking area by a further 19 spaces with the additional pavement covering an area of some 418 square metres. No evidence was received about the prior use of this part of the site. It is drained and connected to the existing upgraded stormwater management system. Two of the spaces are for small vehicles as provided by the relevant Australian Standard. It is to be illuminated with down-lighting from three, 5 metre high light poles, the same kind as those erected in the existing parking area.
13 The shed addition is located at the rear of the workshop shed and to the side of the shed over the water treatment plant, and comprises a gable roof structure of approximately 12 metres x 12 metres, and wall height eaves of approximately 3 metres with the roof and walls sheeted in green Colorbond. The structures effectively are to form one building, interlocked and bolted onto rafters and columns of each other. Again there was no evidence as to what was on this part of the land prior to the building erection.

The Locality

14 The Court generally agrees with the extent and description of the locality set out by Mr Batge:

The subject land is located on Foggo Road, approximately 250 metres to the south of Kangarilla Road, which runs between McLaren Vale and McLaren Flat.
The locality is rural in character with the following features. Allotments of varying size and configuration but the allotments are not particularly large in rural terms. In the immediate proximity of the subject land the allotments sizes [and uses] are:
Allotment 95 on the northern side of the subject land which contains a dwelling [the appellants’] that is located just over 50 metres from the proposed car park and scattered vegetation;
Further north on Foggo Road, a dwelling, shed and vineyard on Allotment 4 that is approximately 2 hectares in area;
Allotment 53 on the northern side of Allotment 4, an L-shaped allotment of approximately 4000 square metres in area that contains a converted dwelling and shed that is owned by Aldinga Turkeys Proprietary Ltd and is used as a "chiller door sales" outlet for their direct poultry sales;
Allotment 98 is situated on the northern side of the subject land but behind the woodlot. This is an allotment of approximately 3.8 hectares and contains a dwelling and outbuilding;
There are substantial areas of vineyard of which the most directly related to the subject land is Allotment 78 on the western side of Foggo Road. Vineyards are the predominant land-use west of Foggo Road;
Allotment 31 is situated on the southern side of the subject land and contains a dwelling sited approximately 85m from the southern boundary of the subject land [occupied by the appellants’ daughter] and a small number of outbuildings associated with that dwelling;
Allotment 19 also to the south of the subject land has a common boundary of approximately 150m width with the subject land, but contains only a shed near its southern frontage with Sand Road [to the south].

15 Residential amenity levels are enhanced by open rural spaces and outlook, vegetation, vineyards and general rural character, but marred, quite significantly by the nature and scale of the buildings and use on the subject land, together with its traffic, noise, on-street parking and other nuisances as well as visual impacts arising from the ATT operations. It has grown to now have, on our observations, a significant adverse effect on the amenity and enjoyment of the appellants’ property. Hence, the Court acknowledges that the concerns of Ms Jennison are genuine and have a solid foundation.

Development Plan Provisions

16 The Court has noted the provisions referred to by counsel and the witnesses and finds the following to be the provisions in the appropriate/relevant Development Plan of most assistance to an assessment of the proposal, including the key issues in dispute:

COUNCIL WIDE (CW hereafter)
Appearance of land and buildings
Objective: 1; and
Principles of Development Control (PDC hereafter): 1, 3, 4, and 5.

Building Set-Backs
Objective: 1; and
Principles of Development Control: 1 and 3.

Conservation
Principles of Development Control: 2 and 6.

Ecological Sustainability
Objectives: 1, 2 and 3; and
Principles of Development Control: 1, 2 and 4.

Form of Development
Objectives: 1 and 9; and
Principles of Development Control: 1, 2, 3(a) and 4.

Industrial Development
Objectives: 1 and 4 (and para.7 thereafter); and
Principles of Development Control: 1, 3, 6, 8, 9, 11, 12, 13, 14 and 15(a)(d).

Movement of Goods and People
Objective: 4; and
Principles of Development Control: 1, 13, 14, 18, 20, 21, 23 and 24.
Rural Development
Objective: 1 (and para.2 after Objective 2); and
Principles of Development Control: 1, 2, 8, 13, 14 and 15.

Water Management
Objectives: 1, 2, 4 and 5; and
Principles of Development Control: 1, 2, 3, 4, 9 and 10.

RURAL ZONE
Objectives: 3, 8, 9, 10 and 11 (and para.4 thereafter); and
Principles of Development Control: 1, 2, 8, 9, 12, 15, 16(g)(j), 17, 18, 19, 20, 21, 36, 37, 38, 39, 41, 50(a), 51, 52, 53, 56, 84, 96, 97 and 99.

(It is noted that Abattoir is a non-complying development in Principle 99, as is Industry under certain parameters.)

Approach

17 Section 33(a) of the Act requires the relevant authority (the Council) and on appeal this Court, to assess a development application against the provisions of the appropriate-relevant Development Plan and s 35(2) specifies that where a development is assessed as being seriously at variance with the Development Plan, it must not be granted consent. The whole of the Development Plan is to be assessed and it is the relevant guidelines in that Plan (listed above) that provide the firm basis for decision-making together with any other relevant matters.
18 Had the development proposal been for the establishment of a poultry processing plant, it would arguably have been a non-complying development as both "Abbatoir" and "Industry" are listed as non-complying development in PDC 99 of the RuZ, in specified circumstances. However, the poultry processing plant exists. The present application and development proposal before the Court is simply for the extension of the parking area and the erection of a shed, both in association with the existing land use. In terms of s 35 and the provisions of the relevant Development Plan, the Council correctly categorised the development as neither non-complying, nor complying development.
19 The proposal is therefore for consideration on its merits against the Development Plan guidelines, weighing up the pros and cons and considering whether the proposal is conducive to the overall intent, purpose and desired character and amenity of the relevant Zone and in the specific site and locality contexts. The Development Plan is also to be utilised as a flexible, advisory planning policy document, not as a mandatory legal statute and as a practical guide for practical application, superimposed upon an existing state of development on the site and the relevant locality. Ultimately, a planning judgment is to be made on a fact and degree basis as to whether the specific proposal sufficiently meets the Development Plan and having regard to all relevant matters, warrants consent.

Planning Assessment

20 The Court has determined that the true nature of the development proposal is for extensions to a parking area and an additional storage shed attached to other sheds, associated with and ancillary to the existing poultry processing plant. Counsel for the appellants raised a question and listed authorities to assist guide the Court in this task, submitting that the proposal was for a variation of prior consents cited.
21 It seems to the Court that the net effect of every additional application and consent sought to a long standing existing use, in a holistic sense, is likely to constitute a variation, an amendment to what had been previously been approved - in this case an extension of an approved parking area with overhead lighting and an additional storage shed attached to approved sheds. These are to be assessed on their merits having regard to all relevant matters. They are not a new use of land or a new independent activity.
22 The determination of this matter does not enable the Court to seek, at the urging of the appellants, to include other elements that it is alleged have changed over time, in this instance the installation of wastewater treatment tanks and plant or hours of operation. That is for the Council as the primary planning authority to consider and if necessary enforce.

Expansion of the Existing Use?

23 RuZ PDC 9 specifies "Development involving the expansion of existing uses which are not in accord with the objectives for the zone should not be undertaken." The key land use objectives for the zone envisage development of a sustainable tourism industry (Objective 4), land retained in use primarily for agricultural purposes (Objective 5), appropriately scaled "value added" commercial activities to utilise local rural production (Objective 9) and agricultural industries (small scale, later defined by PDC 84 as not exceeding 250 square metres in area), wineries, mineral water extraction and processing plants and home based industries (Objective 10).
24 The existing land use clearly does not align with Objectives 4, 5 or 9 (it is generically an industry not a commercial activity in town planning terms and its scale is large), nor with Objective 10 as it is no longer a small scale agricultural industry, and although it might seem to comprise a (poultry) "processing plant" that phrase is used in conjunction with mineral water extraction (as later confirmed by the heading above and followed by PDC 86).
25 Commentary after the zone objectives assists interpretation and includes reference to "Industries should be based upon the processing of agricultural produce primarily from the region.". The existing land use activity would seem to reasonably fit with that concept. However, it also says "Larger scale industries and related activities are more suited to designated industrial and commercial zones within townships or other urban areas.". The existing land use is now a large scale processing plant industry and if applied for today it may be assessed to be better suited in an industrial zone. That is not for assessment in the matter before the Court.
26 It is also noteworthy (in terms of assessing any priorities in land use terms, or the degree of impacts), that residential or rural living land uses are not identified in the objectives for the RuZ, though dwellings generally on large sites are scattered throughout the zone and PDCs 24-30 deal with them.
27 It is necessary to consider the context within which the development proposal is to be assessed. The poultry processing plant land use existed pre-1973, on the evidence as a relatively small scale operation, but significant approved expansion in 1979 and then 1998-2001 have increased the scale of the proposed operation and land use to now comprise a large scale operation with some 3300 square metres of built form area. It was these expansions, particularly the most recent one, which have led to the significant diminution of the appellants’ amenity.
28 In terms of this development application, the associated, ancillary parking area extension will be used for staff cars, which currently park along much of the adjacent Foggo Road. The transference of this activity is desirable on all counts and does not, of itself, expand the existing use. The storage shed, on the evidence, is unlikely to facilitate an increase in activity or production on the subject land. Other rationalisation of internal activities as part of the building expansion has already occurred with the prior approvals of the Council.
29 Further, there is no evidence that the specific proposals increase the land area given over to the existing land use, as a whole. Whilst there is expansion of the paved parking area, and a minor expansion of building floor area by some 144 square metres, they are on the same area of the subject land; the factory use, intensity and floor size does not change, and is not for argument or determination now (even though arguably contrary to certain provisions of the current Development Plan and zoning dealing with scale, character and impacts). In addition, the specific proposal elements will not exacerbate any negative impacts (refer later discussion) or contribute to any significant, if any, expansion of the existing use however that may be analysed.
30 Some other elements raised by the appellants are the subject of known separate applications, or (eg. a rear large tank near the sheds or the wastewater plant or structures) are for the Council to determine their status and, if appropriate undertake enforcement processes. This Court may not in this appeal include consideration of development applications, which are not the subject of these proceedings. However, we do comment that the overall incremental expansion by ATT is of concern to the members of this bench, in a town planning and environmental sense. There was no evidence that staff numbers or business/production turnover are likely to, or would increase if the proposal elements before the Court were granted consent. Increased capacity achieved over the years is not a part or a product of this development proposal, or put at its highest, only to a very minor extent with respect to the additional storage element.
31 Hence in–principle, concerning the first level of land use assessment, in the circumstances and having regard to the Plan, the extensions may be acceptable and do not represent an unreasonable expansion (having regard to Wilson v City of Mitcham & Mercedes College (1986) 130 LSJS 31), subject to direct impacts assessment as set out hereafter. In addition, we do not consider that extensions to the existing poultry processing plant land use is a non-complying development as listed in RuZ PDC 99, as submitted by counsel for the appellants, though it may have some of the attributes of one or more of the listed developments. In any event, the presumption of regularity test applies. In addition, the circumstances and required planning judgment are significantly different to those in Bahr v City of Onkaparinga & Gilligan & Ors [2006] SAERDC 49.

Impacts to Adjoining Residential Use

32 Firstly, we consider the potential impacts from the extension of the parking area on adjoining residential use (the dwelling and surrounds of the appellants in particular). From a visual perspective, impacts are not significant in the context of the subject land built form, the boundary screen planting and fencing, the distance and other intervening vegetation and the locality context. There is some negative effect from the lighting poles, mitigated by the large factory building backdrop and other similar poles in the approved front portion of the parking area. A reduction in their height would, on the evidence of Mr Forster, only see an increase in the number and it is considered that such an alternative is not to be preferred.
33 From a noise perspective, and having regard to the uncontradicted expert evidence of Mr Maddern, there is no further requirement for additional barriers to reduce noise levels to the appellants’ property or dwelling but a condition of consent, as mooted by the witnesses, could be attached to any consent granted, to ensure that the extended parking area is utilised by staff arriving at later morning start times. It would be an invalid approach for the Court to restrict hours of operation of the poultry processing plant operations by way of conditions of any consent granted to the development proposal before it, as might have been implied by the appellants and their counsel.
34 From a lighting glare and nuisance perspective, the uncontradicted expert evidence of Mr Forster is also generally acceptable, confirmed by our observations such that the degree of impact is considered to be minor. However, the problem for Ms Jennison of the wall-mounted flood light(s) could be addressed by ATT as such lights appear to be superseded by the parking area lighting and it is encouraged to either remove or at the least re-direct them.
35 Finally, in terms of stormwater drainage from the extended parking area, plans and details as tendered (Exhibit G), are now to the Council’s satisfaction and there is no evidence to the contrary.
36 Secondly, turning to a consideration of additional impacts from the storage shed, visually it appears as an addition to other buildings, it reasonably matches and complements them in all respects. It is also partly screened by vegetation and other buildings and in our assessment it will not exacerbate or change visual amenity levels in any significant way. In addition, it would seem that stormwater drainage connections from its roofing and disposal are also acceptable to and approved by Council.

Conclusions

37 The Court has given consideration to all relevant matters, including the submissions of counsel, the uncontradicted expert evidence of Messrs Batge, Maddern and Forster, all generally accepted and not found wanting; and it generally agrees with the Council’s decision subject to some refinement of conditions. The extensions to an associated, ancillary parking area and a storage shed do not expand the existing use or if so, to a very minor degree only and direct impacts from them to neighbours or the locality will be minimal. The specific proposal elements are sufficiently conducive to the purpose and desired character and amenity of the RuZ weighed up in the specific site history and locality contexts. It is now not possible for the Court to redress the other concerns of the appellants about the existing lawful use and operations of ATT. If there are other elements that constitute "development" that are not approved, that is for the Council in the first instance to address and enforce although if the appellants are not satisfied with that, there are opportunities under the Act for them to pursue any such matters through other legal proceedings.

38 It is considered that varied conditions and an offering (by the 2^nd respondent) should include:

• an additional condition that the extended parking area (19 spaces) is to be utilised by staff of the poultry processing plant business commencing work after (say) 8am; and

• the removal of superseded factory wall mounted flood-lights (causing nuisance to appellants).

39 The appeal will be upheld but only to vary conditions of consent granted by the Council. After hearing the parties regarding conditions, we make the following orders:

The appeal is allowed only in order to vary the conditional Provisional Development Plan Consent granted by the City of Onkaparinga ("the Council") to Development Application No. 145/3972/2005/3B for:

• an extension to a parking area by 19 additional spaces; and

• the erection of the additional storage shed depicted as "Existing Box Storage" on p 4 of Exhibit R1

on the land at Foggo Road, McLaren Flat described in Certificate of Title Register Book Volume 5197 Folio 85 ("the land"). The following conditions are substituted for the conditions attached to the consent by the Council:

1. The development shall be completed in accordance with the plans and documents forming part of the Development Application, including drawing numbered A5058/E04 dated 13 January 2006 (received by the Court as Exhibit E), except where varied by the following conditions.

2. The driveway and car parking areas shall be all-weather sealed, drained and marked in accordance with Australian Standard AS 2890.1:2004 to accepted engineering standards prior to use of the car park, and those areas must be maintained in good condition.

3. The car parking area must not be used other than for the parking of vehicles, and must be made available for the parking of vehicles at all times whilst the processing facility is operating subject to condition 4 below.

4. The four eastern most car parking spaces shall be allocated for the exclusive use of administrative staff who are rostered to commence work after 8am. The remainder of the car park shall be managed, and, if feasible, spaces shall be allocated to staff members, such that spaces fill progressively from the west to the east during the course of morning operations.

5. The flood light on the northern wall of the processing plant adjacent to the carcass load out bay must be removed and be re-instated such that it faces west.

6. Stormwater must be managed in accordance with Exhibit G, specifically, the drawing titled "As Built" and numbered C1 except where varied by these conditions.

7. An oil, silt and trash trap must be installed on the internal stormwater pipe drainage from the roads and car park areas prior to the point where stormwater from the land enters the Council stormwater drainage system. The trap must be regularly cleaned and maintained in good working order by the property owner for the life of the development.

8. All stormwater drainage must discharge so that it does not flow or discharge onto the land of adjoining owners or, in the opinion of the Council, detrimentally affect structures on the land or any adjoining land.

9. No stormwater from the concrete apron around the pumps or wastewater treatment facility on the land is to enter the stormwater system.

10. A detailed landscaping plan specifying the species and location of plantings on the site to the reasonable satisfaction of the Council shall be provided prior to final development approval.

11. All landscaping approved as part of the application must be established within three months of the date of this consent. A minimum of 25% of the trees indicated in the approved landscaping plan shall be at least 1.5 metres in height at the time of planting.

12. A screen of additional shrubs and trees must be planted along the northern boundary of the site so as to reduce the visual prominence of the site when viewed from the surrounding locality to the satisfaction of the Council.

13. All plants, shrubs, trees and lawn and/or ground cover must be maintained in good condition at all times. Any diseased or dying plants, shrubs, trees or lawn and/or ground cover must be replaced whenever necessary.

14. All reasonably practical measures shall be taken during the construction of the development and during the on-going use of the land in accordance with this consent to:

14.1 prevent silt run-off from the land to adjoining properties, roads and drains;

14.2 control dust arising from the construction and other activities, so as not to be a nuisance to residents or occupiers on adjacent or nearby land;

14.3 ensure that soil or mud is not transferred onto the adjacent roadways by vehicles leaving the site;

14.4 ensure that all litter and building waste is contained on the subject site in a suitable bin or enclosure; and

14.5 ensure that no sound is emitted from any device, plant or equipment or from any source or activity such as to create an unreasonable nuisance to the occupiers of adjacent land.

15. Construction work on the car park shall only be undertaken between the hours of 7.00am and 7.00pm Monday to Saturday inclusive, and between the hours of 10.00am and 4.00pm Sunday.

40 There will be an order to that effect.

Commissioner Brine: I agree with Commissioner Green.

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11	The development proposal comprises an extension to a parking area for staff and the addition of a shed structure adjoining and connecting to existing shed structures, to be used for the storage of packaging and boxes, both associated with and ancillary to the existing poultry processing plant. Whilst the shed addition and the parking area extension currently exist on the land, they are for consideration on their merits and case law dictates that such existence is to be taken as neither to the advantage nor disadvantage of ATT.
12	The parking area extension will increase the capacity of the then existing 24 space parking area by a further 19 spaces with the additional pavement covering an area of some 418 square metres. No evidence was received about the prior use of this part of the site. It is drained and connected to the existing upgraded stormwater management system. Two of the spaces are for small vehicles as provided by the relevant Australian Standard. It is to be illuminated with down-lighting from three, 5 metre high light poles, the same kind as those erected in the existing parking area.
13	The shed addition is located at the rear of the workshop shed and to the side of the shed over the water treatment plant, and comprises a gable roof structure of approximately 12 metres x 12 metres, and wall height eaves of approximately 3 metres with the roof and walls sheeted in green Colorbond. The structures effectively are to form one building, interlocked and bolted onto rafters and columns of each other. Again there was no evidence as to what was on this part of the land prior to the building erection.

17	Section 33(a) of the Act requires the relevant authority (the Council) and on appeal this Court, to assess a development application against the provisions of the appropriate-relevant Development Plan and s 35(2) specifies that where a development is assessed as being seriously at variance with the Development Plan, it must not be granted consent. The whole of the Development Plan is to be assessed and it is the relevant guidelines in that Plan (listed above) that provide the firm basis for decision-making together with any other relevant matters.
18	Had the development proposal been for the establishment of a poultry processing plant, it would arguably have been a non-complying development as both "Abbatoir" and "Industry" are listed as non-complying development in PDC 99 of the RuZ, in specified circumstances. However, the poultry processing plant exists. The present application and development proposal before the Court is simply for the extension of the parking area and the erection of a shed, both in association with the existing land use. In terms of s 35 and the provisions of the relevant Development Plan, the Council correctly categorised the development as neither non-complying, nor complying development.
19	The proposal is therefore for consideration on its merits against the Development Plan guidelines, weighing up the pros and cons and considering whether the proposal is conducive to the overall intent, purpose and desired character and amenity of the relevant Zone and in the specific site and locality contexts. The Development Plan is also to be utilised as a flexible, advisory planning policy document, not as a mandatory legal statute and as a practical guide for practical application, superimposed upon an existing state of development on the site and the relevant locality. Ultimately, a planning judgment is to be made on a fact and degree basis as to whether the specific proposal sufficiently meets the Development Plan and having regard to all relevant matters, warrants consent.

20	The Court has determined that the true nature of the development proposal is for extensions to a parking area and an additional storage shed attached to other sheds, associated with and ancillary to the existing poultry processing plant. Counsel for the appellants raised a question and listed authorities to assist guide the Court in this task, submitting that the proposal was for a variation of prior consents cited.
21	It seems to the Court that the net effect of every additional application and consent sought to a long standing existing use, in a holistic sense, is likely to constitute a variation, an amendment to what had been previously been approved - in this case an extension of an approved parking area with overhead lighting and an additional storage shed attached to approved sheds. These are to be assessed on their merits having regard to all relevant matters. They are not a new use of land or a new independent activity.
22	The determination of this matter does not enable the Court to seek, at the urging of the appellants, to include other elements that it is alleged have changed over time, in this instance the installation of wastewater treatment tanks and plant or hours of operation. That is for the Council as the primary planning authority to consider and if necessary enforce.

23	RuZ PDC 9 specifies "Development involving the expansion of existing uses which are not in accord with the objectives for the zone should not be undertaken." The key land use objectives for the zone envisage development of a sustainable tourism industry (Objective 4), land retained in use primarily for agricultural purposes (Objective 5), appropriately scaled "value added" commercial activities to utilise local rural production (Objective 9) and agricultural industries (small scale, later defined by PDC 84 as not exceeding 250 square metres in area), wineries, mineral water extraction and processing plants and home based industries (Objective 10).
24	The existing land use clearly does not align with Objectives 4, 5 or 9 (it is generically an industry not a commercial activity in town planning terms and its scale is large), nor with Objective 10 as it is no longer a small scale agricultural industry, and although it might seem to comprise a (poultry) "processing plant" that phrase is used in conjunction with mineral water extraction (as later confirmed by the heading above and followed by PDC 86).
25	Commentary after the zone objectives assists interpretation and includes reference to "Industries should be based upon the processing of agricultural produce primarily from the region.". The existing land use activity would seem to reasonably fit with that concept. However, it also says "Larger scale industries and related activities are more suited to designated industrial and commercial zones within townships or other urban areas.". The existing land use is now a large scale processing plant industry and if applied for today it may be assessed to be better suited in an industrial zone. That is not for assessment in the matter before the Court.
26	It is also noteworthy (in terms of assessing any priorities in land use terms, or the degree of impacts), that residential or rural living land uses are not identified in the objectives for the RuZ, though dwellings generally on large sites are scattered throughout the zone and PDCs 24-30 deal with them.
27	It is necessary to consider the context within which the development proposal is to be assessed. The poultry processing plant land use existed pre-1973, on the evidence as a relatively small scale operation, but significant approved expansion in 1979 and then 1998-2001 have increased the scale of the proposed operation and land use to now comprise a large scale operation with some 3300 square metres of built form area. It was these expansions, particularly the most recent one, which have led to the significant diminution of the appellants’ amenity.
28	In terms of this development application, the associated, ancillary parking area extension will be used for staff cars, which currently park along much of the adjacent Foggo Road. The transference of this activity is desirable on all counts and does not, of itself, expand the existing use. The storage shed, on the evidence, is unlikely to facilitate an increase in activity or production on the subject land. Other rationalisation of internal activities as part of the building expansion has already occurred with the prior approvals of the Council.
29	Further, there is no evidence that the specific proposals increase the land area given over to the existing land use, as a whole. Whilst there is expansion of the paved parking area, and a minor expansion of building floor area by some 144 square metres, they are on the same area of the subject land; the factory use, intensity and floor size does not change, and is not for argument or determination now (even though arguably contrary to certain provisions of the current Development Plan and zoning dealing with scale, character and impacts). In addition, the specific proposal elements will not exacerbate any negative impacts (refer later discussion) or contribute to any significant, if any, expansion of the existing use however that may be analysed.
30	Some other elements raised by the appellants are the subject of known separate applications, or (eg. a rear large tank near the sheds or the wastewater plant or structures) are for the Council to determine their status and, if appropriate undertake enforcement processes. This Court may not in this appeal include consideration of development applications, which are not the subject of these proceedings. However, we do comment that the overall incremental expansion by ATT is of concern to the members of this bench, in a town planning and environmental sense. There was no evidence that staff numbers or business/production turnover are likely to, or would increase if the proposal elements before the Court were granted consent. Increased capacity achieved over the years is not a part or a product of this development proposal, or put at its highest, only to a very minor extent with respect to the additional storage element.
31	Hence in–principle, concerning the first level of land use assessment, in the circumstances and having regard to the Plan, the extensions may be acceptable and do not represent an unreasonable expansion (having regard to Wilson v City of Mitcham & Mercedes College (1986) 130 LSJS 31), subject to direct impacts assessment as set out hereafter. In addition, we do not consider that extensions to the existing poultry processing plant land use is a non-complying development as listed in RuZ PDC 99, as submitted by counsel for the appellants, though it may have some of the attributes of one or more of the listed developments. In any event, the presumption of regularity test applies. In addition, the circumstances and required planning judgment are significantly different to those in Bahr v City of Onkaparinga & Gilligan & Ors [2006] SAERDC 49.

32	Firstly, we consider the potential impacts from the extension of the parking area on adjoining residential use (the dwelling and surrounds of the appellants in particular). From a visual perspective, impacts are not significant in the context of the subject land built form, the boundary screen planting and fencing, the distance and other intervening vegetation and the locality context. There is some negative effect from the lighting poles, mitigated by the large factory building backdrop and other similar poles in the approved front portion of the parking area. A reduction in their height would, on the evidence of Mr Forster, only see an increase in the number and it is considered that such an alternative is not to be preferred.
33	From a noise perspective, and having regard to the uncontradicted expert evidence of Mr Maddern, there is no further requirement for additional barriers to reduce noise levels to the appellants’ property or dwelling but a condition of consent, as mooted by the witnesses, could be attached to any consent granted, to ensure that the extended parking area is utilised by staff arriving at later morning start times. It would be an invalid approach for the Court to restrict hours of operation of the poultry processing plant operations by way of conditions of any consent granted to the development proposal before it, as might have been implied by the appellants and their counsel.
34	From a lighting glare and nuisance perspective, the uncontradicted expert evidence of Mr Forster is also generally acceptable, confirmed by our observations such that the degree of impact is considered to be minor. However, the problem for Ms Jennison of the wall-mounted flood light(s) could be addressed by ATT as such lights appear to be superseded by the parking area lighting and it is encouraged to either remove or at the least re-direct them.
35	Finally, in terms of stormwater drainage from the extended parking area, plans and details as tendered (Exhibit G), are now to the Council’s satisfaction and there is no evidence to the contrary.
36	Secondly, turning to a consideration of additional impacts from the storage shed, visually it appears as an addition to other buildings, it reasonably matches and complements them in all respects. It is also partly screened by vegetation and other buildings and in our assessment it will not exacerbate or change visual amenity levels in any significant way. In addition, it would seem that stormwater drainage connections from its roofing and disposal are also acceptable to and approved by Council.