HOWE v CITY OF PLAYFORD [2008] SAERDC 5 (30 January 2008)

Last Updated: 1 February 2008

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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HOWE v CITY OF PLAYFORD

[2008] SAERDC 5

Judgment of Commissioner Green

30 January 2008

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development Act 1993 - applicant appeal - refusal by the Council - parking of two large trucks (prime movers and trailers) with weight of 16 tonnes, greater than that (3 tonnes) excluded from comprising development by the Regulations Schedule 3, Clause 5(2)(d); not associated with rural or residential use - Rural Living Zone and developed rural living locality - suitability of land use and orderly development - proposal not acceptable in RLZ as stand-alone use, nor orderly development - minor consideration to impacts - potential for reduction to residential amenity and the intended rural/residential character - insufficient compliance with Development Plan - appeal dismissed - decision of the Council confirmed.

Development Act 1993 , referred to.

Rathan & Ors v City of Port Augusta & Anor [2003] SAERDC 72, considered.

HOWE v CITY OF PLAYFORD
[2008] SAERDC 5

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1	This matter is an applicant appeal against the decision of the City of Playford ("the Council") to refuse to grant Development Plan Consent to Development Application No.  292/1064/2007, made under the Development Act 1993 for the parking of two trucks over 3 tonnes at MacDonald Park.
2	The Development Assessment Panel of the Council gave as reasons for refusal, the following:

4.2 ... as it does not contain sufficient merit and is considered to be contravening the Objectives and Principles of Development Control contained in the Playford (City) Development Plan, in particular the following Council Wide Objectives Objectives: 44, 45, 46, 49 Council Wide PDCs 68, 68(b), 68(c), 70(b), 196(e), 155 and the Rural Living Zone Objectives 1 and PDC 1. 10(b), 10(c).

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

Registration date of application:	4 June 2007
Subject land address:	Lot 2 McIntyre Road, MacDonald Park (in FP12009, CT Vol. 5488 Fol. 565
Existing use:	Detached dwelling, associated garages and sheds, open rural paddock/yards
Development proposal:	The parking of two trucks (prime movers and unladen trailers) with weight of 16 tonnes, and between 6pm and 6am weekdays as well as all day Saturday and Sunday
Relevant authority:	City of Playford
Relevant/appropriate Development Plan:	Playford (City) consolidated version 15 February 2007
Relevant Zone/Area:	Rural Living (RLZ hereafter) – refer MAP Play/5/adjoining "Future Urban Area Boundary" and "Open Space" to the east – MAP Play/1 (Overlay 1) Enlargement G(1)
Date of decision:	17 September 2007
Appeal lodged:	25 September 2007
Conference concluded:	6 November 2007

4	The Court viewed the subject land and the locality on the morning of Monday, 17 December 2007 in the presence of the parties and the single expert.
5	Witnesses providing evidence to assist the Court and to which regard is given comprised, for the appellant, the appellant in person (a lay witness); and for the respondent Council, Mr J Hanlon, a qualified but relatively inexperienced town planner in the employ of the Council (refer Exhibit R2).

Subject Land

6	The subject land is located on the eastern side of McIntyre Road, MacDonald Park some 280 metres north of Petherton Road. It is rectangular in shape and has an 81.7 metre frontage, 189 metre depth and approximate site area of 1.54 hectares. The land contains a dwelling and three sheds, one of which was apparently used as a stable on what is loosely referred to as a rural living property. It also contains two relatively level paddocks, one large and to the rear and a smaller one at the front, northern side. The latter is the location of the proposed parking area for the trucks and may have been used in the past for horse keeping. This area is bordered by trees along the western road frontage and along the northern boundary shared by Lot 61 McIntyre Road. The lower branches of trees along the front boundary have, apparently, been recently cut which has increased views into the paddock, and since the Council’s decision a green Colourbond fence of approximately 1.8 metres in height has been erected along the front road boundary. This fence conceals views of the site from McIntyre Road with the exception of through the gateway.
7	On Mr Hanlon’s estimate, the proposed parking area is approximately 37 metres long by 37 metres wide and the northern edge is approximately 10 metres from the boundary with Lot 61 and a further 10 metres to the dwelling on that land. It is also about 40 metres from the front boundary and some 20-25 metres to the dwelling on the subject land to the south.
8	Access from the land onto McIntyre Road is via three driveways, two are utilised primarily in conjunction with the dwelling as a drive-through loop (with approximately 3 metre wide entrance ways) whilst the main one to service the proposal is central and approximately 7 metres in width.

Development Proposal

9	The development proposal is for the parking of two trucks each comprising a prime mover element and a semi-trailer (combined weight of 16 tonnes, that is 16,000 kilograms in the north-western paddock of the subject land. This use and activity comprises "development" having regard to s 4 and reg 7 and Schedule 3 Clause 5(2)(d), Development Regulations, as each truck is greater than 3 tonnes (3,000 kilograms) exempt from comprising "development", on land used for residential purposes. In this proposal, the two trucks are to be driven by both the appellant and his employees and are used to carry motor vehicle parts for General Motors Holdens and therefore comprise a separate land use and not one that is ancillary to the residential or any rural use of the land.
10	It is intended that dolomite material would be placed on the driveway and the parking area to minimise the generation of dust. The trucks are to leave the property once daily at 6am and return once around 6pm, five days per week and in the morning are left to idle for no more than five minutes to warm up the engines.
11	As part of the application an undertaking has been given by the applicant/appellant that no vehicle repairs, maintenance, servicing or refuelling is to take place on the land and that all of these activities would take place elsewhere. It has also been indicated that the vehicle route generally comprises utilising McIntyre Road to Petherton Road and then driving either to the east or west to connect to other main roads.

Locality

12	Comprising that part of the area surrounding the subject land of tangible influence on it and that this specific proposal affects, to a notable degree, I find that the locality is to be based on a visual amenity, vehicle movement and general character basis. I have noted that defined by Mr Hanlon (Exhibit R2 Attachment 1) and I generally agree with that definition except that it is perhaps a little too extensive to the west. The locality is almost wholly within the RLZ and the subject land is surrounded by residential development on mid-size rural residential allotments.
13	The locality contains numerous dwellings, associated garages, sheds and rural buildings together with open paddocks, orchards, market gardens and vineyards. In addition, there are a number of trucks in excess of 3 tonnes on residential properties within the locality (seen on the view and in photos in Exhibit R1 at p 40). Apparently none of them have been approved to park on such land and the Council is pursuing compliance with the Act. Tractors and farm vehicles were also noted.
14	The RLZ and development is separated from urban residential zoning to the east by a Horticulture Zone. It has a width of approximately 500 metres. Apparently, the objectives of that zone are the retention of land for horticultural purposes and to facilitate horticultural activities along with industries associated with horticultural production and the preservation and enhancement of the rural character. The rear boundary of the subject land adjoins the Horticulture Zone.
15	With respect to the road network, McIntyre Road connects with Petherton Road at a T-junction and subsequently Petherton Road links the residential suburb of Davoren Park to the east with the major Heaslip Road to the west and it is the key service road for the MacDonald Park area. The T-junction of Petherton and McIntyre Roads is said to be situated approximately 715 metres from the Urban Growth Boundary and approximately 1.6 kilometres from Heaslip Road. Petherton Road is of semi-rural character, fringed with low bushy trees and surrounded by large open spaces, relatively large allotments and rural type activities such as animal keeping, cropping and orchids. It has a speed zoning of 80 kilometres per hour.
16	McIntyre Road has no kerbing that defines the road edge from the verge. It is a sealed collector road with an approximate width of 7 metres and speed zoning of 60 kilometres per hour. It has a length of approximately 850 metres only and feeds on to Petherton Road to the south and terminates as a dead-end to the north-east at the former MacDonald Park Munitions Store facility. Three local roads (Spencer, Gartrell and Elwood) all with approximate widths of 7 metres connect onto McIntyre Road, on the western side.
17	The overall character of the locality is mixed rural-residential and residential amenity levels are relatively high due to the pleasantness of the rural environment, but likely to be marred, to some extent, at times, by dust, (vehicle movement and farm activities) and other usual farm related impacts (such as odours, flies, noise, sprays, heavy vehicle movement etc).

Relevant Development Plan Provisions

18	I have had regard to the provisions referred to by Mr Hanlon, the only expert witness, and counsel and I find the following to be the provisions providing the most guidance particularly with respect to the key issues in focus in this matter:

COUNCIL WIDE (CW hereafter)
Objectives: 1, 2, 11, 18(a)(b), 33, 44, 46, 49 and 97; and
Principles of Development Control: 2(a)(b), 3(a)(b)(c), 19-21, 31, 68(a)(b)(c), 70(b), 155, 196(e) and 346;
RURAL LIVING ZONE (RLZ hereafter)
Objectives: 1 and 3; and
Principles of Development Control: 1, 2, 10(b)(c), 11 and 13.

Processing

19	The Council categorised the development proposal as Category 3 and following public notification, some 13 representations were received (however, no person was joined to these proceedings and whilst the number of representations is not insignificant, that alone has no bearing on the determination of the matter).
20	It would appear that an informal, courtesy referral was made by the Council to State Transport Services due to the proximity of the land to the proposed route of the Northern Expressway, with a response at p 12 Exhibit R1.

Assessment Approach

21

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 must be assessed, including on appeal. The relevant guidelines in the Plan provide the firm basis for decision-making together with a consideration of any other relevant matters.

22

In terms of s 35 and the relevant provisions of the Development Plan, the proposal is for consideration on its merits against the Plan guidelines and involves weighing up the pros and cons and considering whether it is sufficiently conducive to the overall intent, purpose and desired character and amenity of the RLZ and tested in the specific site and locality context. The 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 in 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

23	It is important and necessary to firstly consider the land use question before impact assessment is undertaken. I agree with Mr Hanlon that the land use is inappropriate and unacceptable for the following summarised reasons:

• the proposal is a stand-alone "commercial", non-residential and non-rural use that is discouraged in rural or residential zones (CW Principle 2(a) and RLZ Objective 1 and Principles 1 and 11) but encouraged and envisaged in suitable commercial areas (CW Objective 33 and Principle 155);

• the proposal has the potential either in the short or longer term to provide an incompatibility with residential use (envisaged in the RLZ) and amenity (CW Objective 3 and Principles 3 and 68) due to its character and specific every day impacts;

• the purpose and nature of the proposed use are not associated with rural activities of a minor nature, nor is it ancillary to industries that process agricultural/horticultural produce (which if those bases applied would make the use more acceptable in principle); although it has similarities to such truck activity; and

• the proposed use does not meet the RLZ objectives and is not conducive to the character and amenity desired for the RLZ as expressed in and by the Plan and as is evident in the locality.

24	I also consider that if approved the proposed use could encourage additional like uses/activities and by reason of the incremental change to character of the locality, move away from the intent of the RLZ.
25	Given that the proposal fails the first and most important strategic land use test set out in the Development Plan, it is strictly not necessary to examine in detail the impact aspects and whether they are, or might be made, acceptable. Nevertheless, some comments or impacts are provided as follows:
•	the proposed vehicles are large, visually obvious and not especially attractive and there will be two parked on the land and moving to and from it, through the locality. This will cause somewhat inappropriate visual and character impacts having regard to the zoning guidelines. A smaller single truck/van vehicle could be more acceptable in some circumstances;

•	the start-up time of 6am could give rise to noise nuisance to occupants of dwellings in the locality, particularly those nearby and could trigger justifiable complaints to the Environment Protection Authority under noise controls;

•	an unsealed surface (dolomite material noted) could also give rise, over time, to some dust nuisance to occupants of dwellings nearby; and

•	regular movement of such large vehicles could give rise to marginally increased safety hazards and risks for other road users (whether motorists, cyclists or pedestrians), particularly on McIntyre Road south of the subject land.

26

I also consider that, if approved, enforcement by the Council or others of certain features of the proposal (such as vehicle departure/arrival times and absence during the day; absence of repairs, servicing, maintenance and refuelling of vehicles which could arise in emergency situations), may be problematic, the more so as the possible use and activities evolves over the years.

Conclusions

27

In conclusion, the proposal is not an orderly and proper use of the subject land in the RLZ and locality contexts, it fails the basic strategic land use test and impacts has the potential and may well cause a reduction of rural/residential character and amenity in both short and longer terms. I agree generally with the opinion of Mr Hanlon and those opinions were not seriously challenged by the appellant or his case. I assess that the proposal does not sufficiently meet the Development Plan and carefully considering the evidence, the submissions (including some consideration to Rathman & Ors v City of Port Augusta & Anor [2003] SAERDC 72, para 17 particularly), what I saw on the view and all relevant matters, it does not warrant Development Plan Consent.

Decision

28	The appeal is dismissed. The decision of the Council to refuse consent is upheld.
29	There will be an order to that effect.