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CAREY & ANOR v KANGAROO ISLAND COUNCIL & SUPER ORGANIC LIFTER PTY LTD [2008] SAERDC 59 (26 August 2008)

Last Updated: 28 August 2008

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.

CAREY & ANOR v KANGAROO ISLAND COUNCIL & SUPER ORGANIC LIFTER PTY LTD

[2008] SAERDC 59

Judgment of Commissioner Green

26 August 2008

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Third party appeal - against the Council's decision to grant conditional consent to land division at Pelican Lagoon, Kangaroo Island - General Farming Zone - site of salty lagoon and former gypsum mine - existing new dwelling - high quality environment and amenity - bed and breakfast tourist accommodation approved by the Council - also a complying development in the zone - approval still valid - two allotments (one greater than 40 hectares as per guideline and one less at 34.84 hectares), with boundary through lagoon - allotment less than 40 hectares non-complying development - concurrence of the Development Assessment Commission received - linkage between land division (new allotment) and tourist accommodation use sought by the Plan - Land Management Agreement sufficient to reasonably ensure that - land unsuitable for conventional primary production - adjacent service trade premises impact and inter-relationship considered - location and site suitable for tourist accommodation and the facilitating land division - tourist accommodation part of General Farming Zone intent - conservation aspects not threatened - future mining use improbable - minimal land division impacts or consequences in the light of B&B approval - bush fire risk/safety also considered - in unusual circumstances, proposal sufficiently accords with Development Plan as a whole and not seriously at variance - conditional consent appropriate - appeal dismissed - decision of the Council upheld.

Development Act 1993; Fisheries Management Act 2007, referred to.

Harvie v Kangaroo Island Council [2007] SAERDC 40; Linke v Development Assessment Commission & SA Housing Trust [2008] SASC 121, considered.

CAREY & ANOR v KANGAROO ISLAND COUNCIL & SUPER ORGANIC LIFTER PTY LTD
[2008] SAERDC 59

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1 This matter comprises a third party appeal against the decision of the Kangaroo Island Council ("the Council") to grant Development Plan Consent, Land Division Consent and Development Approval, subject to two standard conditions, to Development Application No. 520/D032/05, made under the Development Act 1993, for a land division at Hog Bay Road (Kingscote-Penneshaw Road), Pelican Lagoon, Kangaroo Island. The matter was publicly notified, two representations were received by the Council (refer Exhibit R1, pp43-45), including both appellants and they exercised their right to appeal that decision. The reasoning of the appeal is set out in the documents including Exhibit R1 at p65.
2 A summary of some of the relevant details in this matter is as follows:

Registration date of application (with Development Assessment Commission (DAC)):	8 March 2005
Subject land address:	S.493 Hundred of Dudley, Hog Bay Road, Pelican Lagoon (Certificate of Title Volume 5875 Folio 144)
Existing use:	Detached dwelling, two lagoons and rural-natural with approval granted to a 12 person maximum bed & breakfast facility
Proposal:	Land division (one allotment into two) – refer Exhibit R1, p7 – allotment 700 of 40 hectares with bed & breakfast proposed thereon; allotment 701 of 34.8 hectares (with existing dwelling)
Relevant authority:	Kangaroo Island Council
Relevant/appropriate Development Plan:	Kangaroo Island Council consolidated version 7 August 2003
Relevant Area/Zone:	Rural/General Farming (GFZ hereafter) MAP KI/1 (Overlay 1) and KI/15
Date of decision:	19 June 2007
Appeal lodged:	10 July 2007
Conference concluded:	7 September 2007

3 The Court viewed the subject land and the locality on the morning of Monday, 5 May 2008 in the presence of the parties.
4 Witnesses providing evidence to assist the Court and to which regard is given comprised for the appellants, Mr M Baade (vide Exhibit A1), an experienced consultant town planner and Mr I Carey (one of the appellants – part owner of adjoining land to the north, about his objection to the development, with co-appellant Ms Sandelin-McCann unable to attend-participate and Mrs Carey appearing on her behalf).
5 For the respondent Council, effectively no case was presented with reliance on the documents; and witness for the second respondent, the applicant, comprised Ms J Nolan (Exhibit C), an experienced consultant town planner and Mrs H Mercer (director of the applicant company – about the rationale and her family/company plans for the land division and the bed & breakfast development by another of her companies, Hallan Nominees Pty Ltd and for the land as a whole).

The Subject Land

6 As noted by Ms Nolan the subject land comprises the whole of section 493, Hundred of Dudley (contained in the Certificate of Title referenced above) with a total area of some 74.58 ha (minor discrepancy of area with that utilised by the surveyor), the majority of which is held in one piece, with two other small pieces of some 0.845 ha and 1.2 ha, situated on the opposite (north-western) side of Hog Bay Road, to which the land has a frontage of some 220 metres. The subject land is also bounded to the south by an unmade public road and similarly the two small pieces of the subject title situated on the opposite side of Hog Bay Road are separated and part bounded by further unmade public roads.
7 The bulk of the subject land is situated to the east of Hog Bay Road and contains a large salty lake/lagoon. The lagoon covers most of the balance of the land with the title appearing to have been drawn around it with a small perimeter margin. The lagoon is in two parts with a smaller part to the west. The evidence is that these lagoons were initially part of the gypsum mining operations of Kangaroo Island with such mining ceasing in approximately 1982. The lagoons are apparently heavily salt-loaded and as a result there is said to be no fish life, except for small Brine shrimp.
8 Surrounding the lagoon is some remnant native vegetation/scrub with various cleared areas where machinery associated with the working operations of the gypsum mine occurred. A new dwelling is situated on the north-eastern portion of the site accessed by a gravel/dirt road connecting to Hog Bay Road and running approximately along the northern-most boundary of the land.
9 Access to the land is provided by one driveway from Hog Bay Road with secured access way gates. In general, the lagoon is difficult to see from Hog Bay Road due to existing native vegetation.
10 Apparently the current owner company and its principals, have sought to beautify and make safe the lagoon surrounds by removing remnant metals/machinery components associated with the mining operations and laying slabs of stone around the border of part of the lagoon to provide improved access to the water. A small "sanctuary"/island has also been constructed near the lagoon edge to provide a nesting refuge for birds.
11 A bed & breakfast (B&B hereafter) facility, building and proposed land use, not to exceed 12 persons, was proposed and approved by the Council in May 2007 (vide Exhibit B). It would appear from the site plan attached (with approximate dimensions given only) that the proposed siting of the B&B building whilst greater than 100 metres from the Hog Bay Road public road reserve, is less than 100 metres, in the order of 80 metres, from the northern boundary of the subject land to adjoining land.
12 Whilst valid at the time of the hearing, its status is now uncertain given that a period of greater than 12 months has elapsed, and at least on the subject land view on 5 May 2008, was not substantially commenced. The Court is unsure whether an extension has been granted to that consent or work commenced and whether it remains operative and valid.

The Proposal

13 The development proposal before the Court is for a land division of the subject land allotment into two allotments (one additional) with certain details as follows:

• proposed allotment 701 (eastern allotment) of some 34.84 ha in area encompassing the existing dwelling and enjoying a frontage of some 237 metres to a road reserve to the south as well as rights-of-way marked C over the northern portions of the adjoining proposed allotment 700 providing servicing and other access to Hog Bay Road to the north-west; and

• proposed allotment 700 comprising three pieces (37.95 ha, 0.847 ha and 1.2 ha), which combine to make up one proposed allotment. This proposed allotment is over the western portion of the main existing lagoon and includes the smaller western lagoon and within which the B&B proposal as been approved. This allotment has extensive road frontages to the west and south-west.

14 The proposed allotment boundary runs in a north-south direction centrally through the main body of the lagoon some 500-600 metres east of the Hog Bay Road frontage. As mentioned above, an easement is proposed to be provided across allotment 700 (close to the northern boundary) to accommodate an ETSA power line servicing the existing dwelling within proposed lot 701 and the regular vehicular access driveway to that dwelling.
15 No fencing details are included in the proposal and as the boundary dissects the main body of water (problematic to fence or delineate except perhaps with floats or other markers), fencing may be relatively limited to the northern and southern sides of the lagoon. Such fencing if of typical agricultural style would not necessitate removal of or consequence upon existing native vegetation.
16 The land division application was lodged 8 March 2005 with the DAC, apparently concurrently with the B&B application (Exhibit A), as suggested by the Council, which was approved though subsequently lapsed and then superseded by a further B&B application and approval contained in Exhibit B. It is a non-complying development given GFZ Principle 24, and the area of one of the proposed allotments being less than 40 ha.
17 Mr Baade at para 19 of Exhibit A1 summarised the reasons given by the applicant to divide the land and as set out in the Statement of Effect as follows:
• to facilitate ancillary tourist accommodation facilities (in the form of an ancillary bed and breakfast (B&B) activity);

• to fulfil the "necessary requirement" of ETSA Utilities to only allocate 1 transformer per property (now achieved); and

• to facilitate third party investment and management necessitating security of title as a financial guarantee for that party (except that the circumstances have since changed, upon the evidence of Mrs Mercer, such that another family member may take over the development and management of the intended B&B).

18 A draft Land Management Agreement (LMA hereafter – refer Exhibit D) intended between the Council and the applicant company was prepared, apparently at the suggestion of the Council, with the purpose of ensuring the B&B use/development proceeded on the proposed vacant western allotment. Some of its drafting, I note, is problematic and it is not in a near final form ready for registration and implementation.

The Locality

19 Comprising that part of the area surrounding the subject land of tangible influence on it and that the specific land division proposal affects, to a notably degree, I find that the locality is to be based on visual, broad rural and natural character attributes (including as derived from allotment pattern, fencing, spread of dwellings/buildings and natural features) and vehicle movement.
20 The locality boundary has not been expressly defined by either town planning consultant. However from their evidence, from the view and use of aerial photographs, all adjoining land parcels or part thereof, together with the eastern edge of Pelican Lagoon and for a distance in the order of 300-400 metres radiating out from the subject boundary in most directions, comprises the locality.
21 Bisecting the locality on the western side is Hog Bay Road, which links Penneshaw to Kingscote and to the rest of the Island.
22 The eastern most part of Pelican Lagoon is situated to the west of the subject land (across Hog Bay Road) which is a tidal harbour linked to Eastern Cove. It is an Aquatic Reserve proclaimed under the Fisheries Management Act 2007. The Coastal Zone is situated some 250 metres (or some 200 metres from the smaller pieces) to the west of the subject land, separated by Hog Bay Road, and the partially developed Country Living Zone is reasonably proximate to the north-west.
23 To the north of the land there is a very small parcel used by a local artist as a studio and gallery (and dwelling) and known for glass blowing. Further to the east along the northern boundary is a large shed and yard which is approved and used as a service trade premises. It is an earthmoving and landscaping supply business that is owned and operated by the appellants, Mr & Mrs Carey, who also occupy a new house located further to the north perhaps 300 metres from the subject land boundary. To the south is the moderately small property of Ms Sandelin-McCann, the co-appellant. In a slightly wider area to the north is Island Beach, a popular holiday house and tourist destination zoned Country Living Zone. To the south is bush and agricultural land.
24 The character of the locality is mostly rural or semi-rural influenced strongly by native vegetation, coastal proximity and views, with scattered dwellings on moderate to large sites and with two other alternative uses comprising the small-scale cottage industry and the service trade premise depot use.
25 Generally, amenity levels are moderately high, positively derived from the natural environment and coastal proximity and views thereof but negatively affected to an extent by the main road (traffic movements), certain built form/overhead transmission lines and I surmise the activities of the earthmoving-landscaping/building depot use adjacent to the north.

Relevant Development Plan Provisions

26 I have noted the provisions referred to by the parties, by counsel and the witnesses, and I find the following to be the provisions in the appropriate/relevant Development Plan considering all the issues raised in the evidence and the appeal notice, including the following:

COUNCIL WIDE (CW hereafter)
Background: All text
Strategic Aims: Economic, Environmental and Community; and
Vision Statement: (dot points related to conservation/tourism/natural resource use management/agriculture/transport-infrastructure/community services)
Objectives: 1, 3, 4, 6, 7, 9, 13,14, 17, 20, 21, 25, 28, 30, 35 and 39; and
Principles of development control: 1-3, 5, 23-27, 30, 32, 35, 38-40, 42, 48, 53-55, 59-61, 66 and 68,

Land Use
Mining
Objectives: 49 and 51; and
Principles of development control: 114 and 115.

Rural Development
Objective: 52; and
Principles of development control: 119 and 121.

Tourism Development
Objective: 53; and
Principles of development control: 125, 134, 138, 140, 142 and 144.

Conservation
Objectives: 57 and 66; and
Principle of development control: 183.

Coastal Areas
Objectives: 77 and 86; and
Principles of development control: 209, 211 and 217.

GENERAL FARMING ZONE (GFZ hereafter)
Objectives: 1, 3 and 4; and
Principles of development control: 1, 8-10, 13-15, 18, 21, 23 and 24.

MAPS KI/1 (Overlay 1) and KI/15.

Processing

27 The Council categorised the development proposal as Category 3 and following public notification two representations (that of the appellants) were received by the Council. The DAC referred the proposal to several State Government Agencies with replies received and summarised in material contained within Exhibit R1, pp30 and 37 but with the specific documents not provided in Copy Documents. Apparently SA Water reported no services available; PIRSA reported that the land was not agriculturally viable; and the Native Vegetation Council envisaged no vegetation to be removed. In addition the DAC provided advice to the Council 12 May 2005 contained at pp27-28 of Exhibit R1 and subsequently concurred with the intended consent of the Council to the application, 31 May 2005 (Exhibit R1 at p60).

Assessment Approach

28 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, if all aspects and issues are to be considered and heard de novo (s 88(2)(b)). However there may be an intent that only the relevant provisions are to be considered if the matter is limited to those issues in dispute (s 88(2)(a)) still heard de novo. The relevant guidelines in the relevant Plan provide the firm basis for decision making together with a consideration of any other relevant matters.
29 I have noted the apparent issues in dispute between the parties as set out in the appeal notice of the appellants. Pursuant to s 88(2)(b), I am unable to limit my assessment only to those matters, as certain broader considerations are also raised and at stake. In terms of s 35 and the relevant provisions of the relevant Development Plan, the proposal whilst classed as non-complying is for consideration on its merits against the Plan guidelines and still requires a weighing up of the pros and cons and consideration of whether it is sufficiently conducive to the overall intent, purpose and desired character and amenity of the Rural Area and GFZ, 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

30 The circumstances of this matter are quite unusual, including:
• the nature of the subject land including one larger and one small lagoon (known as New Lake), previously and historically utilised for the mining of gypsum (and with a mining resource symbol depicted on the Structure Plan for the Council area) and with Brine apparently discharging into the sea kilometres away at Island Beach; and with limited land around the periphery, a good deal of which contains native vegetation thereon;

• a zoning of GFZ for such land but incapability of it being used for conventional primary production, as confirmed by PIRSA and by viewing the land;

• approval on the subject land of a so-called B&B tourist accommodation facility (Exhibit B) on the western part of the subject land within proposed allotment 700; but with implementation delayed due to the death of the partner of Mrs Mercer, principals of the respective companies, and now with the likelihood that one or more family members may take up and utilise this opportunity; but not yet commenced in any significant way as apparent at the site view; and unless substantially commenced or extended since, may now be inoperative (post 16 May 2008);

• a draft LMA between the Council and the second respondent over proposed allotment 700 envisaged to ensure its use for tourist accommodation purposes, not implemented nor attached to the respective title;

• an existing service trade premise (earthmoving, building, landscaping contractor depot on adjoining land to the north (appellants)) some 400-500 metres distant and creating some noise and possible dust impacts; and

• the concurrence granted by the DAC to this "non-complying" development proposal (refer Exhibit R1, p60).

31 Hence, the Development Plan guidelines and desired future character and purpose need to be judged and weighed carefully by the Court in this context. The inter-relationship and potential linkage of the intended B&B facility and use with the land division is an important factor given certain Development Plan provisions.
32 Having regard to the above, the evidence and the submissions, I have approached the assessment under the following general headings:
• the location/site and intended use;
• the GFZ intent and guidelines;
• conservation and protection aspects;
• mining implications;
• land division impacts/consequences, orderly development and compatibility of uses; and
• other peripheral issues including bushfire risk safety and potential local heritage listing.

Location, Site and Intended Use

33 The site is located toward the eastern end of Kangaroo Island, just east of the narrow "neck" of land between Pelican Lagoon, American River and Eastern Cove and Pennington Bay; and adjacent to the main Hog Bay Road running between Penneshaw (the tourist ferry arrival point to Kangaroo Island) and Kingscote and the balance of the Island. It is well located for an intended tourist accommodation use and this advantage is enhanced by the lagoons and views over them from the subject land and adjoining land, which, together with proximity to Pelican Lagoon, provide a distinctive "coastal" flavour.
34 Tourist accommodation use and facilities are supported and encouraged by the Development Plan – in some instances within designated Tourist Accommodation areas on the Structure Plan or the Tourist Accommodation zones set out on the Zone Maps, such as MAP KI/17, 19 and 25, or tourist areas on Policy Area maps such as 40-42, or within townships or other urban type zones. It is, nevertheless, a secondary use for the relevant GFZ (more later). A B&B facility (a type of tourist accommodation) has been approved for the subject land and despite some doubts about its operability (offset to an extent by B&B facilities for up to 12 persons being a complying form of development in the GFZ (Principle 23) subject to meeting four conditions in Table KI/1 of the relevant Development Plan). On the evidence of Mrs Mercer and with the Council’s consent and support, I must assume that a B&B tourist accommodation facility is likely to proceed on the subject land.
35 The land division is said to facilitate such tourist accommodation development by placing it on a separate title to that of the dwelling occupied by Mrs Mercer; apparently enabling separate electricity supplies (though I place no great weight on that); and enabling further money to be raised for developmental purposes, by way of mortgage security against the new (additional) title.

General Farming Zone Intent

36 The GFZ facilitates and encourages a range of development types in the zone but its primary focus is on agriculture, horticulture, forestry, pastoral and (related) value added farm based rural activities. However, according to PIRSA (Exhibit R1, pp27, 30, 37 and 53) the subject land is not agriculturally viable and it would seem that there are no real or significant prospects to bring that about. The secondary purpose of the GFZ is to facilitate tourist accommodation uses/activity, particularly where supportive of the primary purpose, and dwellings to support the primary activities. Objectives 1 and 4, and Principles 1, 2, 13, 14 and 15 are particularly pertinent as follows:

Objective 1: A zone primarily accommodating agricultural, horticulture, forestry and pastoral activities together with value added farm based rural activities.
The rural character of Kangaroo Island is a feature which enhances its tourism assets. Development must reinforce this character. Inappropriate development, unsightly structures, indiscriminate land fragmentation and poor land management will quickly erode this special character, as such careful control over the nature, integrity and siting of development needs to occur. By retaining native vegetation and protecting existing ecosystems, the heritage and environmental significance of Kangaroo Island can continue to underpin the Island’s character and values.

...

Objective 4: A zone accommodating tourist accommodation which is secondary to the primary use of the zone for agriculture, horticulture, forestry and pastoral activities, provided development is sensitively designed and sited in keeping with the area’s natural and rural character.

The opportunity exists to provide tourist accommodation within the General Farming Zone where such development is designed to put people back in touch with the natural and rural environment. It is important that such development caters primarily for the get away nature or adventure orientated market which is environmentally conscious. The design and siting of tourist accommodation should ensure emphasis is given to raising consciousness and appreciation of natural surroundings.
...
PRINCIPLES OF DEVELOPMENT CONTROL

1 Development should be primarily for agricultural, horticulture, forestry, pastoral and value added rural related activities.

2 Detached dwellings should only be erected where they are associated with agricultural,

horticulture, forestry and pastoral or value added rural related activities.
...
13 Tourism development should be supportive to the primary purpose of accommodating agricultural, horticultural, forestry and pastoral activities.
14 Tourism development comprising small scale, low impact farm stay, farmhouse, bed and breakfast hikers hut, cottage or bunkhouse style accommodation in a working farm eco-style atmosphere is encouraged.
15 Eco-style accommodation may be undertaken provided such development seeks to achieve ecologically sustainable development.

37 Nevertheless there are caveats to these activities set out in Principles 16, 17, 18 and 19 as follows:

...

16 Tourism buildings and structures should not exceed a height of 6.5 metres above natural ground level or a height greater than the mature height of predominant indigenous vegetation species.
17 Tourist accommodation and supporting facilities and infrastructure should only be undertaken where development will have minimal impacts and will be sensitive to the rural and natural surroundings.
18 Tourism development should be sited and designed to avoid the clearance of native vegetation and control the spread of weeds, introduced animals, fire, pathogens and other threats to biodiversity.
19 Tourism development in a natural environment should only be developed where its scale and form, and isolation from existing development would not overwhelm or detract from the intrinsic natural values of the land or its locality.

38 Tourist accommodation in the form of B&B (also a complying development in the GFZ by reason of Principle 23 – in some respects not taking into account the sorts of criterion set out in Principle 16-19) is approved for the land and intended to be implemented. In general, land division is restricted in the zone vide Objective 3 and Principles 8, 9 and 10, and Principle 24 specifying as a non-complying development "land division, including the re-arrangement of titles, creating an allotment which is less than 40 ha in area:

Objective 3: A zone where land is predominantly held in large parcels together with some smaller titles that have been created to support more intensive economic activities suited to the Zone.
The Island’s land ownership pattern generally reflects relatively large holdings; pressure to create smaller titles in response to genuine value added economic opportunities is likely. The creation of such titles must be linked to outcomes which reinforce economic viability and environmental improvement which is sensitively designed and sited in keeping with the areas natural and rural character.
...
8 The minimum allotment area within a plan of division should be 40 hectares.
9 Land division should only be undertaken in a manner which minimises the impacts on natural resources and does not compromise use of the land by future generations.
10 Land division into allotments less than 40 hectares in area should only be undertaken where:
(a) no additional allotments are being created and the division is for the purpose of facilitating more efficient primary production; or
(b) the division of one allotment from 7 August 2003 that is for the purpose of facilitating an additional or alternative use of the land for primary production (including aquaculture and support facilities) which will provide for genuine economic development of the land and where evidence has been submitted with the plan of division to demonstrate that:
(i) water of sufficient quantity and quality is available to sustain the proposed use;
(ii) the proposed allotment area is capable of supporting the proposed use with reasonable investment and management inputs;
(iii) the proposed use will be compatible with adjacent uses of land;

(iv) the risk to the water table either falling or rising because of excessive irrigation or other activities is minimal;

(v) the land division arrangement has taken into account an assessment of the land with respect to soil types, erosion control, rockiness, topography, watercourses, runoff, wind conditions, vegetation and rural land use classification;

(vi) the potential environmental impacts resulting from the development including, pollution of water, loss of vegetation and proximity to adjacent dwellings; and

(vii) improvements to the land will result, such as a contour banking and grassed swales to protect against erosion, buffers adjacent watercourses and revegetation of sensitive areas.

[my underlining]

39 Whilst it is restricted however, and I consider importantly, the further creation of smaller titles (less than 40 ha) is envisaged though it "must be linked to outcomes which reinforce economic viability and environmental improvement"(as specified in the paragraph after Objective 3). Assuming that might include economic viability of tourist accommodation, the question of linkage of any land division approval to outcomes is not an easy one. Where a land use/building development precedes the division, the outcome at least initially, is achieved. Where it does not, and in any event, over the longer term, even where such land use has commenced, there are difficulties ensuring the use and linkage over a period of time. As I reflected in Harvie v Kangaroo Island Council [2007] SAERDC 40, at paras 36 and 42, an LMA appears to be one of the few ways possible under the framework of the Act.
40 In this matter, the B&B development is not built, or substantially commenced (not at least at the time of the appeal hearing view), and secondly a draft LMA has not been finalised and implemented, though it may have been agreed in-principle.
41 Hence, no link is necessarily achieved for the long term, though on approval the land division may be implemented without the B&B proceeding. That would not meet the Plan intent. One course is for the Court to allow time for the draft LMA to be brought to fruition and registered. The land division would then facilitate and be linked to an outcome that fulfils the secondary purpose for the Zone (given that the primary purposes appear to be unachievable).
42 With respect to allotment size of one of the proposed allotments, being less than 40 ha, the proposal does not meet the GFZ Principles 8, 10 and 24. However, the shortfall is marginal and it facilitates the achievement of Objectives 3 and 4, and Principles 14, 15, 18, 21 and 23 for the zone.

Conservation and Protection of Natural Environment

43 A proposed B&B facility has been approved and such a development is a complying form in GFZ (the relevant Development Plan at least), subject to compliance with, in this case, achievable conditions. Some, though limited impacts will arise from the B&B on visual amenity and "natural" character, though almost none on the natural environment and marine areas.
44 Further, the land division itself is likely to give rise to very limited impacts only such as:
• access limitations overcome and confirmed along an existing track for the dwelling on proposed lot 701;

• any future delineation of the proposed boundary between lots 700 and 701, through the lagoon, with such methods as buoys or other markers implemented to be non-intrusive; and

• undergrounding of additional electricity servicing.

45 Splitting the ownership of the larger lagoon may enable two owners to commit more resources and to better manage it, although conversely it may also not achieve that aim depending on their attitudes/whims. Nevertheless, this factor is not a strong or decisive one in the final decision.

Mining Implications

46 The Structure Plan mineral resources symbol (MAP KI/1 (Overlay 1)), together with Council Wide Objectives 21 and 49 and Principle 114 and GFZ Principle 9 require consideration of the protection of existing mineral deposits/resources from sterilisation to enable their later potential use. Whilst the land division boundary is proposed to pass through the larger lagoon, making a little more complicated the coordination of any future mining use, nevertheless mining leases and arrangements frequently straddle multiple allotments/title boundaries and ownerships and tend to operate independently of them. I therefore agree with the submissions of Mr Henry in this regard. It would also seem that there is considerable doubt and no factual material before the Court as to firstly the proven existence, nature and extent of any mineral resources; and secondly, the prognosis for any future mining development. I am not satisfied that this consideration is fatal to the land division proposal. It should not significantly affect such prospects or resource usage for the future.

Orderly Development/Compatibility of Uses/Impacts of the Land Division

47 The site and proposal is to be adequately serviced by road access, electricity, telecommunications and can be properly provided with independent private water supplies, stormwater and effluent management services and arrangements. The proposed parcels are large and need not be contiguous with or part of a country township or Country Living or Tourist Accommodation Zones.
48 The B&B proposed use is (independently) approved by the Council and (at the time) a complying development can be readily implemented. Conditions do not specify separation distances to commercial or industrial (or other) uses, though in reverse I note that criteria for a non-complying tourist accommodation development which embraces B&B, in GFZ Principle 24, require setbacks to adjoining allotments of 100 metres for a large tourist accommodation development. That criteria is of no use for a complying or a merit development, though CW Principle 142(a) is expressed in similar terms. At some 80 metres setback to the northern boundary, the separation guide is not met.
49 The future B&B use and the service trade premises use could, subject to levels and management, create some nuisance and incompatibility for each. However, the land division proposal, if approved, makes no difference to that position.
50 The land division proper, will have minimal direct impact on the subject land (but for some potential boundary delineation between the two allotments), than otherwise might already occur in any event on one allotment, with the B&B approval and its likely implementation.

Other – Bushfire Risk/Safety and Local Heritage Status

51 There are no bushfire protections areas in the relevant Development Plan (though there are in a current version of the Development Plan for Kangaroo Island Council, showing the land in Fig KI(BPA)10 and 22, as being within a High Bushfire Risk Area). Bushfire protection guidelines in the CW section of the relevant Development Plan have been considered (Objective 39, Principles 59-61, 66 and 68). However, given the availability of water (albeit salty), alternative/multiply vehicle access, the degree of cleared-open land/water and the approved B&B (and with the Court not receiving technical evidence on this issue), I assess that they do not weigh heavily against the proposal.
52 As was raised it is also evident that a subsequent interim effect Development Plan amendment (and the current Development Plan), depict a Local Heritage Place listing over the subject land – particularly the Gypsum Mine-Lake (Table KI/6 and Fig KI Her/14). The evidence is that such designation is being challenged as inaccurate/inappropriate and it is not finally authorised as a Development Plan Amendment. I place little weight on the apparent designation in a subsequent version of the Development Plan. It is not in the relevant Development Plan and it would be unfair to apply retrospectively. In addition, the land division proper will have very limited effect/impact on such a listing and the purpose of it.
53 In a not dissimilar vein with respect to subsequent Development Plan amendments, the fact that the current Development Plan no longer lists B&B as a complying development in the GFZ (Principle 23), is not given any significant weight in determining this land division proposal, provided an existing approval is able to be implemented.

Conclusions

54 Overall I find that I prefer the expert evidence of Ms Nolan, to that of Mr Baade, based on her experience, reasoning and balancing/weighting of various guidelines and factors. There are unusual circumstances in play with the subject land, locality and the existing B&B approval.
55 I am mindful of the guidance from certain authorities cited particularly Linke v Development Assessment Commission & SA Housing Trust [2008] SASC 121 at paras 46 and 48, as well as the reasoning espoused by me in Harvie. I take into account the concurrence of the Council’s decision by the DAC. On balance I assess and find that the proposal is also not seriously at variance with the Development Plan as a whole. In particular, it facilitates a secondary purpose sought by the zoning and the departure from the numerical 40 ha non-complying development trigger, is marginal.
56 I assess that Development Plan Consent, Land Division Consent and Development Approval are likely to be warranted for the application, however that is somewhat conditional on the following two matters:
• implementation of an appropriately worded LMA, as intended, to ensure for the long term, the linkage and development of a tourist accommodation – B&B use and development of proposed Lot 700; and

• the status of the B&B accommodation consent of the Council. (If it has lapsed and with B&B no longer a complying development in the Development Plan, that may make problematic its implementation unless there has been an extension or another similar application dealt with and approved).

57 I issued a Memorandum dated 4 July 2008 in the above terms, to enable the parties to progress and conclude implementation of an LMA as mooted and for the Court to be advised of the status of the B&B accommodation consent (or any subsequent similar consent or intentions in that regard) of the Council and/or applicant. I further heard the parties on 25 August 2008.
58 The second respondent applicant tendered a letter dated 19 August 2008 from the Council to Hallan Nominees Pty Ltd, confirming that the development authorisation for the B&B use had been extended until 8 May 2009 (refer Exhibit K) and a signed/agreed Land Management Agreement and Deed between the Council and the second respondent pursuant to s 57A(1)(2) of the Act (refer Exhibit L), particularly specifying in clause 9 that:

The Owner hereby undertakes not to develop or seek to develop nor cause or permit to be developed proposed allotment 700 or any portion of it for a use other than use for tourist accommodation.

59 As envisaged in the Development Plan, this enables the Council to ensure linkage and connection between the land division and the intended B&B tourist accommodation outcome, as far as is reasonably practical to do so. An LMA is an appropriate vehicle under the Act to achieve a reasonable degree of linkage and upon registration, it runs with the land and binds future owners and it was flagged and referred to in paras 39-41 above.
60 I am now satisfied with the outstanding matters and that the decision of the Council is the appropriate one and that the appeal of the appellants must fail. I also heard further submissions concerning conditions. None were contentious or in dispute.

Decision

61 The appeal is dismissed; the decisions of the Council upheld. Development Plan Consent, Land Division Consent and Development Approval to Development Application No. 520/D032/05, are granted subject to the following conditions:

1. The development herein approved must, except as varied by any conditions of consent, be carried out in accordance with the Plan marked 4048-04 Cad Ref: 404804 div.lcd (p 7, Exhibit R1), prepared by Weber Frankiw and Associates Pty Ltd.

2. Two copies of a certified survey plan shall be lodged with the Development Assessment Commission for Certificate purposes.

3. The Land Management Agreement agreed and executed between the respondent parties (Exhibit L), shall be lodged for registration with the Lands Titles Office concurrent with the lodgement of the plan of division and prior to the issue of new titles, such that it comes into effect and is noted against the title of the land and the subsequent new title for Lot 700.

62 There will be an order to that effect.

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3	The Court viewed the subject land and the locality on the morning of Monday, 5 May 2008 in the presence of the parties.
4	Witnesses providing evidence to assist the Court and to which regard is given comprised for the appellants, Mr M Baade (vide Exhibit A1), an experienced consultant town planner and Mr I Carey (one of the appellants – part owner of adjoining land to the north, about his objection to the development, with co-appellant Ms Sandelin-McCann unable to attend-participate and Mrs Carey appearing on her behalf).
5	For the respondent Council, effectively no case was presented with reliance on the documents; and witness for the second respondent, the applicant, comprised Ms J Nolan (Exhibit C), an experienced consultant town planner and Mrs H Mercer (director of the applicant company – about the rationale and her family/company plans for the land division and the bed & breakfast development by another of her companies, Hallan Nominees Pty Ltd and for the land as a whole).

6	As noted by Ms Nolan the subject land comprises the whole of section 493, Hundred of Dudley (contained in the Certificate of Title referenced above) with a total area of some 74.58 ha (minor discrepancy of area with that utilised by the surveyor), the majority of which is held in one piece, with two other small pieces of some 0.845 ha and 1.2 ha, situated on the opposite (north-western) side of Hog Bay Road, to which the land has a frontage of some 220 metres. The subject land is also bounded to the south by an unmade public road and similarly the two small pieces of the subject title situated on the opposite side of Hog Bay Road are separated and part bounded by further unmade public roads.
7	The bulk of the subject land is situated to the east of Hog Bay Road and contains a large salty lake/lagoon. The lagoon covers most of the balance of the land with the title appearing to have been drawn around it with a small perimeter margin. The lagoon is in two parts with a smaller part to the west. The evidence is that these lagoons were initially part of the gypsum mining operations of Kangaroo Island with such mining ceasing in approximately 1982. The lagoons are apparently heavily salt-loaded and as a result there is said to be no fish life, except for small Brine shrimp.
8	Surrounding the lagoon is some remnant native vegetation/scrub with various cleared areas where machinery associated with the working operations of the gypsum mine occurred. A new dwelling is situated on the north-eastern portion of the site accessed by a gravel/dirt road connecting to Hog Bay Road and running approximately along the northern-most boundary of the land.
9	Access to the land is provided by one driveway from Hog Bay Road with secured access way gates. In general, the lagoon is difficult to see from Hog Bay Road due to existing native vegetation.
10	Apparently the current owner company and its principals, have sought to beautify and make safe the lagoon surrounds by removing remnant metals/machinery components associated with the mining operations and laying slabs of stone around the border of part of the lagoon to provide improved access to the water. A small "sanctuary"/island has also been constructed near the lagoon edge to provide a nesting refuge for birds.
11	A bed & breakfast (B&B hereafter) facility, building and proposed land use, not to exceed 12 persons, was proposed and approved by the Council in May 2007 (vide Exhibit B). It would appear from the site plan attached (with approximate dimensions given only) that the proposed siting of the B&B building whilst greater than 100 metres from the Hog Bay Road public road reserve, is less than 100 metres, in the order of 80 metres, from the northern boundary of the subject land to adjoining land.
12	Whilst valid at the time of the hearing, its status is now uncertain given that a period of greater than 12 months has elapsed, and at least on the subject land view on 5 May 2008, was not substantially commenced. The Court is unsure whether an extension has been granted to that consent or work commenced and whether it remains operative and valid.

14	The proposed allotment boundary runs in a north-south direction centrally through the main body of the lagoon some 500-600 metres east of the Hog Bay Road frontage. As mentioned above, an easement is proposed to be provided across allotment 700 (close to the northern boundary) to accommodate an ETSA power line servicing the existing dwelling within proposed lot 701 and the regular vehicular access driveway to that dwelling.
15	No fencing details are included in the proposal and as the boundary dissects the main body of water (problematic to fence or delineate except perhaps with floats or other markers), fencing may be relatively limited to the northern and southern sides of the lagoon. Such fencing if of typical agricultural style would not necessitate removal of or consequence upon existing native vegetation.
16	The land division application was lodged 8 March 2005 with the DAC, apparently concurrently with the B&B application (Exhibit A), as suggested by the Council, which was approved though subsequently lapsed and then superseded by a further B&B application and approval contained in Exhibit B. It is a non-complying development given GFZ Principle 24, and the area of one of the proposed allotments being less than 40 ha.
17	Mr Baade at para 19 of Exhibit A1 summarised the reasons given by the applicant to divide the land and as set out in the Statement of Effect as follows:
•	to facilitate ancillary tourist accommodation facilities (in the form of an ancillary bed and breakfast (B&B) activity);

19	Comprising that part of the area surrounding the subject land of tangible influence on it and that the specific land division proposal affects, to a notably degree, I find that the locality is to be based on visual, broad rural and natural character attributes (including as derived from allotment pattern, fencing, spread of dwellings/buildings and natural features) and vehicle movement.
20	The locality boundary has not been expressly defined by either town planning consultant. However from their evidence, from the view and use of aerial photographs, all adjoining land parcels or part thereof, together with the eastern edge of Pelican Lagoon and for a distance in the order of 300-400 metres radiating out from the subject boundary in most directions, comprises the locality.
21	Bisecting the locality on the western side is Hog Bay Road, which links Penneshaw to Kingscote and to the rest of the Island.
22	The eastern most part of Pelican Lagoon is situated to the west of the subject land (across Hog Bay Road) which is a tidal harbour linked to Eastern Cove. It is an Aquatic Reserve proclaimed under the Fisheries Management Act 2007. The Coastal Zone is situated some 250 metres (or some 200 metres from the smaller pieces) to the west of the subject land, separated by Hog Bay Road, and the partially developed Country Living Zone is reasonably proximate to the north-west.
23	To the north of the land there is a very small parcel used by a local artist as a studio and gallery (and dwelling) and known for glass blowing. Further to the east along the northern boundary is a large shed and yard which is approved and used as a service trade premises. It is an earthmoving and landscaping supply business that is owned and operated by the appellants, Mr & Mrs Carey, who also occupy a new house located further to the north perhaps 300 metres from the subject land boundary. To the south is the moderately small property of Ms Sandelin-McCann, the co-appellant. In a slightly wider area to the north is Island Beach, a popular holiday house and tourist destination zoned Country Living Zone. To the south is bush and agricultural land.
24	The character of the locality is mostly rural or semi-rural influenced strongly by native vegetation, coastal proximity and views, with scattered dwellings on moderate to large sites and with two other alternative uses comprising the small-scale cottage industry and the service trade premise depot use.
25	Generally, amenity levels are moderately high, positively derived from the natural environment and coastal proximity and views thereof but negatively affected to an extent by the main road (traffic movements), certain built form/overhead transmission lines and I surmise the activities of the earthmoving-landscaping/building depot use adjacent to the north.

31	Hence, the Development Plan guidelines and desired future character and purpose need to be judged and weighed carefully by the Court in this context. The inter-relationship and potential linkage of the intended B&B facility and use with the land division is an important factor given certain Development Plan provisions.
32	Having regard to the above, the evidence and the submissions, I have approached the assessment under the following general headings:
•	the location/site and intended use;
•	the GFZ intent and guidelines;
•	conservation and protection aspects;
•	mining implications;
•	land division impacts/consequences, orderly development and compatibility of uses; and
•	other peripheral issues including bushfire risk safety and potential local heritage listing.

33	The site is located toward the eastern end of Kangaroo Island, just east of the narrow "neck" of land between Pelican Lagoon, American River and Eastern Cove and Pennington Bay; and adjacent to the main Hog Bay Road running between Penneshaw (the tourist ferry arrival point to Kangaroo Island) and Kingscote and the balance of the Island. It is well located for an intended tourist accommodation use and this advantage is enhanced by the lagoons and views over them from the subject land and adjoining land, which, together with proximity to Pelican Lagoon, provide a distinctive "coastal" flavour.
34	Tourist accommodation use and facilities are supported and encouraged by the Development Plan – in some instances within designated Tourist Accommodation areas on the Structure Plan or the Tourist Accommodation zones set out on the Zone Maps, such as MAP KI/17, 19 and 25, or tourist areas on Policy Area maps such as 40-42, or within townships or other urban type zones. It is, nevertheless, a secondary use for the relevant GFZ (more later). A B&B facility (a type of tourist accommodation) has been approved for the subject land and despite some doubts about its operability (offset to an extent by B&B facilities for up to 12 persons being a complying form of development in the GFZ (Principle 23) subject to meeting four conditions in Table KI/1 of the relevant Development Plan). On the evidence of Mrs Mercer and with the Council’s consent and support, I must assume that a B&B tourist accommodation facility is likely to proceed on the subject land.
35	The land division is said to facilitate such tourist accommodation development by placing it on a separate title to that of the dwelling occupied by Mrs Mercer; apparently enabling separate electricity supplies (though I place no great weight on that); and enabling further money to be raised for developmental purposes, by way of mortgage security against the new (additional) title.

39	Whilst it is restricted however, and I consider importantly, the further creation of smaller titles (less than 40 ha) is envisaged though it "must be linked to outcomes which reinforce economic viability and environmental improvement"(as specified in the paragraph after Objective 3). Assuming that might include economic viability of tourist accommodation, the question of linkage of any land division approval to outcomes is not an easy one. Where a land use/building development precedes the division, the outcome at least initially, is achieved. Where it does not, and in any event, over the longer term, even where such land use has commenced, there are difficulties ensuring the use and linkage over a period of time. As I reflected in Harvie v Kangaroo Island Council [2007] SAERDC 40, at paras 36 and 42, an LMA appears to be one of the few ways possible under the framework of the Act.
40	In this matter, the B&B development is not built, or substantially commenced (not at least at the time of the appeal hearing view), and secondly a draft LMA has not been finalised and implemented, though it may have been agreed in-principle.
41	Hence, no link is necessarily achieved for the long term, though on approval the land division may be implemented without the B&B proceeding. That would not meet the Plan intent. One course is for the Court to allow time for the draft LMA to be brought to fruition and registered. The land division would then facilitate and be linked to an outcome that fulfils the secondary purpose for the Zone (given that the primary purposes appear to be unachievable).
42	With respect to allotment size of one of the proposed allotments, being less than 40 ha, the proposal does not meet the GFZ Principles 8, 10 and 24. However, the shortfall is marginal and it facilitates the achievement of Objectives 3 and 4, and Principles 14, 15, 18, 21 and 23 for the zone.

43	A proposed B&B facility has been approved and such a development is a complying form in GFZ (the relevant Development Plan at least), subject to compliance with, in this case, achievable conditions. Some, though limited impacts will arise from the B&B on visual amenity and "natural" character, though almost none on the natural environment and marine areas.
44	Further, the land division itself is likely to give rise to very limited impacts only such as:
•	access limitations overcome and confirmed along an existing track for the dwelling on proposed lot 701;

47	The site and proposal is to be adequately serviced by road access, electricity, telecommunications and can be properly provided with independent private water supplies, stormwater and effluent management services and arrangements. The proposed parcels are large and need not be contiguous with or part of a country township or Country Living or Tourist Accommodation Zones.
48	The B&B proposed use is (independently) approved by the Council and (at the time) a complying development can be readily implemented. Conditions do not specify separation distances to commercial or industrial (or other) uses, though in reverse I note that criteria for a non-complying tourist accommodation development which embraces B&B, in GFZ Principle 24, require setbacks to adjoining allotments of 100 metres for a large tourist accommodation development. That criteria is of no use for a complying or a merit development, though CW Principle 142(a) is expressed in similar terms. At some 80 metres setback to the northern boundary, the separation guide is not met.
49	The future B&B use and the service trade premises use could, subject to levels and management, create some nuisance and incompatibility for each. However, the land division proposal, if approved, makes no difference to that position.
50	The land division proper, will have minimal direct impact on the subject land (but for some potential boundary delineation between the two allotments), than otherwise might already occur in any event on one allotment, with the B&B approval and its likely implementation.

51	There are no bushfire protections areas in the relevant Development Plan (though there are in a current version of the Development Plan for Kangaroo Island Council, showing the land in Fig KI(BPA)10 and 22, as being within a High Bushfire Risk Area). Bushfire protection guidelines in the CW section of the relevant Development Plan have been considered (Objective 39, Principles 59-61, 66 and 68). However, given the availability of water (albeit salty), alternative/multiply vehicle access, the degree of cleared-open land/water and the approved B&B (and with the Court not receiving technical evidence on this issue), I assess that they do not weigh heavily against the proposal.
52	As was raised it is also evident that a subsequent interim effect Development Plan amendment (and the current Development Plan), depict a Local Heritage Place listing over the subject land – particularly the Gypsum Mine-Lake (Table KI/6 and Fig KI Her/14). The evidence is that such designation is being challenged as inaccurate/inappropriate and it is not finally authorised as a Development Plan Amendment. I place little weight on the apparent designation in a subsequent version of the Development Plan. It is not in the relevant Development Plan and it would be unfair to apply retrospectively. In addition, the land division proper will have very limited effect/impact on such a listing and the purpose of it.
53	In a not dissimilar vein with respect to subsequent Development Plan amendments, the fact that the current Development Plan no longer lists B&B as a complying development in the GFZ (Principle 23), is not given any significant weight in determining this land division proposal, provided an existing approval is able to be implemented.

54	Overall I find that I prefer the expert evidence of Ms Nolan, to that of Mr Baade, based on her experience, reasoning and balancing/weighting of various guidelines and factors. There are unusual circumstances in play with the subject land, locality and the existing B&B approval.
55	I am mindful of the guidance from certain authorities cited particularly Linke v Development Assessment Commission & SA Housing Trust [2008] SASC 121 at paras 46 and 48, as well as the reasoning espoused by me in Harvie. I take into account the concurrence of the Council’s decision by the DAC. On balance I assess and find that the proposal is also not seriously at variance with the Development Plan as a whole. In particular, it facilitates a secondary purpose sought by the zoning and the departure from the numerical 40 ha non-complying development trigger, is marginal.
56	I assess that Development Plan Consent, Land Division Consent and Development Approval are likely to be warranted for the application, however that is somewhat conditional on the following two matters:
•	implementation of an appropriately worded LMA, as intended, to ensure for the long term, the linkage and development of a tourist accommodation – B&B use and development of proposed Lot 700; and