ACN 068 691 092 PTY LTD v CITY OF CHARLES STURT (No 2) [2008] SAERDC 92 (23 December 2008)

Last Updated: 6 January 2009

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.

ACN 068 691 092 PTY LTD v CITY OF CHARLES STURT (No 2)

[2008] SAERDC 92

Judgment of Commissioner Hodgson

23 December 2008

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Application to divide existing allotment to create two additional allotments - Residential Zone - whether industrial use discontinued - whether approval of application would result in change of use - application for land division only - underlying use either industrial or no lawful use - proposed allotments unsuitable either for industrial use or for the residential uses sought within the Zone - appeal dismissed and decision of Council confirmed.

Development Act 1993, referred to.

Leeming v Corporation of the City of Port Adelaide (1987) 45 SASR 506; Kokkotos v City of Mitcham [2000] SAERDC 13; Meath Pty Ltd v District Council of Angaston (1981) 6 SAPR 189; City of Mitcham v Terra Equities Pty Ltd [2007] SASC 244; City of Mitcham v Freckmann [1999] SASC 234; (1999) 74 SASR 56, considered.

ACN 068 691 092 PTY LTD v CITY OF CHARLES STURT (No 2)
[2008] SAERDC 92

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. By application dated 5 December 2006, Peter Scragg & Associates (“the Appellant”) sought Provisional Development Plan Consent and Land Division Consent for the division of land situated at 53 Wood Avenue, Brompton (“the subject land”). That land is more particularly described as Lot 84 in Filed Plan 119502 Volume 5819 Folio 22.
2. By Decision Notification Form dated 4 June 2008, the Respondent Council refused the application, its reason for refusal being stated as follows:

The application has been refused consent pursuant to Section 39(3)(b) of the Development Act, 1993 because the additional information requested by Council to supplement the application has not been submitted within the prescribed time.

3. On 5 June 2008, an appeal was lodged against the decision of the Council. That appeal was lodged in the name of ACN 068 691 092 Pty Ltd.
4. The Court viewed the subject land and the locality in the company of the parties on the morning of Thursday, 11 September 2008. Sworn evidence in this matter was given by the Appellant, Mr P Scragg, and Mr K Barnes, a qualified and experienced planning consultant. A further statement of evidence by
   Mr F Siow, a qualified and experienced traffic engineer was admitted by consent, with minor amendments.

The Subject Land

5. The subject land is situated at 53 Wood Avenue, Brompton. It is rectangular in shape, having a total area of 690 square metres. Its primary frontage to Wood Avenue is 16.8 metres and its secondary frontage to Third Street (an unmade road reserve), is 32.03 metres. Towards the rear of the subject land is situated a Besser brick building with a corrugated iron gable roof. Vehicular access to this building is obtained from Third Street. A corrugated iron fence of approximately 1.8 metres in height has been erected around the subject land. The land contains no vegetation of significance.

Development Proposal

6. Minor amendments to the layout of the proposed land division were made between the decision of the Council and the commencement of the hearing. The final proposal is depicted on Exhibit A4. The proposal entails the creation of two additional allotments at 53 Wood Avenue. Two of the proposed allotments would front Wood Avenue (allotments 841 and 842) while the third allotment (allotment 843) would front the unmade road reserve identified as Third Street on the plan of division. Proposed allotment 841 would be 221 square metres in area with a frontage of 7.07 metres (plus corner cut off) and a depth of 22.43 metres. Proposed allotment 842 would have an area of 223 square metres, frontage of 9.94 metres and a depth of 22.43 metres. Proposed allotment 843 would have an area of 252 square metres with a frontage of 12.62 metres to Third Street and a depth of 19.99 metres.
7. Early in these proceedings, Mr Scragg, for the Appellant, sought to characterise the proposal as being both for land division and conversion of the land to an unspecified residential use.
8. His belief that the proposal could be so characterised appeared to be based on the fact that the Council, in October 2006, had granted Provisional Development Plan Consent to an application for a staged residential development of the subject land, stage 1 being the construction of a two-storey detached dwelling and associated garage, and stage 2, the construction of a single-storey detached dwelling and associated garage. I note that, in granting consent to that proposal, the Council reserved its decision on the form and substance of any conditions it might attach to stage 2 of the development pending the conclusion of an audit report certifying that the site for stage 2 was suitable for the proposed development. That audit was required because of some level of contamination of the stage 2 land. I further note that the development approved in October 2006 did not proceed. It was Mr Scragg’s view that the approval granted for that development effectively extinguished any existing use rights which otherwise might subsist in the land for its previous industrial use.
9. Mr Billington, for the Council, sought a ruling from the Court as to the nature of the application the subject of these proceedings. My ruling, which is recorded in the transcript at p 38, was that the application was restricted to the division of the land, albeit the question of the underlying use of the land was an issue on which I invited submissions from the parties in due course.

The Locality

10. The locality defined by Mr Barnes, for the purpose of his evidence, generally comprised those properties visible from or having a view of the subject land. It included properties fronting Wood Avenue from Ryan Place to the north to Hythe Street to the south. It also included a number of properties to the rear of the subject land on Pens Close as well as properties fronting Hidson Street to the northwest of the subject land.
11. The subject land is located within the Residential Zone as depicted on Map ChSt/16 in the Development Plan for Charles Sturt (City) dated
    24 August 2006. While the locality is predominantly residential in character, it contains a number of non-residential land uses. Examples are warehouses at 64 Ryan Place, 4 Paget Street and 41 Wood Avenue. Additionally, there is an arts studio adjoining the subject land at 51 Wood Avenue and a community club to the southwest at 45-47 Wood Avenue.
12. A range of allotment sizes is evident in the locality. Allotments between the north-western side of Wood Avenue and Hidson Street are relatively small, ranging in size from 205 square metres to 335 square metres. Allotments obtaining access from Pens Close are slightly larger, being between 291 square metres and 399 square metres. Elsewhere in the locality, allotments are larger, ranging in size from 534 square metres to 831 square metres. Frontages and depths also vary in accordance with the overall size of allotments.
13. The age, style and height of residential development varies considerably, there being a mixture of one and two-storey buildings in the locality as well as a range of detached, semi-detached and row dwellings. Most dwellings feature brick or rendered walls, Colorbond or tiled pitched roofs, front verandahs and low front fences.
14. Setbacks from primary frontages are typically between 3 metres to 5 metres, and buildings are often built to side boundaries with relatively small rear setbacks. Mr Barnes described the locality as having a “compact urban character”.

The Development Plan

15. As I have noted, the subject land is located within the Residential Zone. The objectives for that zone variously seek a “high level of amenity” and “safe, convenient and distinctive living environments” and “dwellings of various types and tenures at low and medium densities and of one to two storeys height”. The subject land also lies within inner Suburban Policy Area 1 within the Residential Zone, which area includes the following Desired Future Character Statement:

This policy area should be characterised by a diversity of housing types including detached and semi-detached dwellings and row dwellings up to two storeys. Dwellings should exhibit innovative and contemporary design forms and integrate well with the areas [sic] cosmopolitan and historic character of late 19th century and early 20th century dwellings. Sites previously used for commercial purposes should be replaced with housing after, where necessary, decontamination has occurred.

16. Principle 8 for Policy Area 1 sets out minimum area and frontage widths for various dwelling types within the Policy Area. Minimum site areas for detached and semi-detached dwellings are 250 square metres, and for row dwellings, 220 square metres. Minimum site areas per dwelling for group dwellings or residential flat buildings are 250 square metres. Relevantly, Principle 9 for Policy Area 1 contemplates the possibility of a reduction of minimum site areas for detached, semi-detached and row dwellings by 15% in a range of circumstances, including where the development involves the replacement of a non-complying use. It was Mr Scragg’s submission that the subject proposal should obtain the benefit of this dispensation inasmuch as it entailed the replacement of a non-complying industrial use on the subject land.
17. Also of relevance to these proceedings is Council Wide Principle 99, which addresses the appropriate area, configuration and dimensions of residential allotments:
    99. Residential allotments should have the appropriate area, configuration and dimensions for:
        

(a) the siting and construction of a dwelling and ancillary outbuildings;

(b) the provision of private open space;

(c) convenient vehicle access and parking; and

(d) the intended use of the allotment or site in accordance with the relevant zone or policy area.

Design Techniques (these are ONE WAY of meeting the above Principle)

99.1 Lots with an area of 450 square metres or greater are capable of containing a rectangle measuring 10 metres by 15 metres.

99.2 Lots with an area of 300 square metres – 449 square metres inclusive capable of containing a rectangle measuring 9 metres by 15 metres.

99.3 Lots with an area less than 300 square metres are capable of containing a rectangle measuring 6 metres by 15 metres.

The Evidence

18. The evidence of Mr Scragg was that, on his understanding, any existing use rights for industry on the subject land had lapsed, and that “the relevant permitted use of the site reverted back to the zoning requirements” (p 56 transcript). In cross-examination he elaborated on this, indicating that it was his understanding that any future use of the land, including the existing structure, for industrial purposes, would require a further application to the Council.
19. This view is at odds with that expressed by Mr Scragg in a letter to the Council dated 22 April 2008, and included in the Copy Documents (Exhibit R1), which responded to a proposal by Council to require, as a condition of consent to the subject application, that the existing building on proposed Lot 843 be demolished:

It is presently intended to rent Lot 843 as a warehouse. It is possible to use it as industrial premises.

20. Much of Mr Scragg’s evidence comprised a lengthy and somewhat confusing reiteration of his negotiations with the Council in respect of the subject proposal, and various amendments made to that proposal in response to issues raised by Council officers. Little, if any of it, has any relevance to what I have to decide.
21. The evidence of Mr Barnes was that the subject land had existing use rights for industry. The proposal, insofar as it did not seek to extinguish those existing use rights, was inappropriate, having regard to the objectives for Policy Area 1, which sought the replacement of commercial and industrial uses with housing. Furthermore, if it did not seek to extinguish existing use rights for industry, there was no basis upon which the smaller allotment sizes contemplated by Principle 9 for Policy Area 1 would have any application to the proposal. Mr Barnes summarised his views thus:

I am of the opinion that, on balance, the proposed development does not adequately satisfy the provisions and intent of the Charles Sturt (City) Development Plan (consolidated 24 August 2006). In summary, my primary concerns with the proposed development relate to its inconsistency with the Desired Future Character Statement of the Inner Suburban Policy Area 1, its failure to meet minimum allotment standards and the likely detrimental impact that a continuation of the industrial activities will have on the amenity of the locality. Further, it fails to provide for the decontamination of the land.

22. The statement of evidence of Mr Siow, which was admitted by consent, concluded that the rear allotment (Lot 843) would not be of a size which could accommodate satisfactorily the parking and servicing requirements for an industrial land use.

Assessment

23. The primary questions to be resolved in this matter are:

(a) What is the current lawful use of the subject land?

(b) Does the application the subject of these proceedings have the effect of changing the present lawful use?

(c) In the context of the answers to the above questions, is the proposal acceptable, having regard to the relevant provisions of the Development Plan?

(a) Lawful Use

Mr Billington, for the Council, submitted that the subject land had existing use rights for an industrial use. The letter from the applicant to the Council dated 22 April 2008 suggests that he shared that view, albeit he contended otherwise in the course of the hearing.

Section 6 of the Development Act 1993 deals with the concept of a change in the use of land. Sub-sections (1) and (2) are relevant:

6 – Concept of Change in the Use of Land
(1) For the purpose of determining whether a change in the use of land has occurred, the commencement or revival of a particular use of the land will, subject to subsection (2), will be regarded as a change in the use of the land if –
(a) the use supersedes a previous use of the land; or
(b) the commencement of the use or the revival of the use follows upon a period of non-use; or
(c) the use is additional to a previously established use of the land which continues despite the commencement of the new use.
(2) The revival of a use of land after a period of discontinuance will be regarded as the continuation of an existing use unless –
(a) the period intervening between the discontinuance and revival of the use exceeds 2 years; or
(b) during the whole or part of the period intervening between its discontinuance and revival, the use was superseded by some other use; or
(c) the Development Assessment Commission or a Council has made a declaration under subsection (3) and the declaration remains unrevoked.

Both parties made reference to the decision of the Full Court in Leeming v Corporation of the City of Port Adelaide (1987) 45 SASR 506 in support of their respective contentions regarding the discontinuance or otherwise of industrial use of the subject land. Of relevance to these proceedings are the observations of King CJ (with whom Bollen and von Doussa JJ agreed) at paras 514-515:

An existing use continues until it is discontinued and superseded by a new use or a state of non-use. Whether there has been discontinuance must be gathered from all the circumstances. Where activity pursuant to the use has ceased, the intention of the owner or occupier as to resumption is a relevant although not a decisive consideration. Essentially the question whether an existing use continues or has been discontinued must be determined by reference to what is taking place on the land. The legal character of what is taking place on the land may be affected, however, by the intentions of the owner or occupier. The significance, for example, of the continued presence on the premises of equipment and fittings ... may depend upon the intentions of the owner or occupier with respect to such equipment and fittings. If they are allowed to remain on the premises for the purpose of facilitating the resumption of activity ... their continued presence will be a strong indication of the continuance of the use ...
A use may be discontinued by means of cessation of activity pursuant to that use accompanied by words or conduct on the part of the owner or occupier indicating unequivocally an intention to abandon or terminate the use. It may also be discontinued by cessation of activity pursuant to the use in such circumstances, or for such duration, or both, as to indicate from a practical point of view that such cessation is no mere interruption of activity pursuant to the use, but amounts to abandonment or termination of the use, irrespective of the subjective intentions of the owner or occupier as to the future.

It was not disputed by Mr Billington, for the Council, that active use of the land for industrial purposes had ceased, nor that plant and equipment had been removed from the building on the subject land. Nevertheless, I agree with Mr Billington that “the Appellant’s conduct and intent as demonstrated by the evidence, together with the continued presence of the building ... on proposed Lot 843, supports the Respondent’s contention that there has been no discontinuance (albeit there has been a cessation) of use of the land for industrial purposes.”. It follows that the subject land continues to enjoy existing use rights for industry. Had the previous approval for residential development been acted upon, there would clearly have been a displacement of the industrial use of the land by a residential use. However, the mere approval of an application to change the use of land does not, of itself, have the effect of changing the use. It is necessary for the approval to be implemented before that change can occur.

In case I am wrong in so concluding, I turn to consider what the lawful use of the land would be, should there no longer be existing use rights for industry.

Mr Billington submitted that, should there be no existing use rights for industry, the land was presently in a state of non-use as contemplated by s 6(1)(b) of the Development Act.

Mr Scragg, in submissions, contended that this approach was illogical:

The Respondent has argued at paragraphs 25 and 26 that the land does not acquire a residential use if the existing use rights for industrial purposes have been discontinued. That assertion appears, with respect, to be illogical, in that the whole purpose of s 6 of the Development Act is to state the circumstances in which non-complying uses are extinguished. If the non-complying use is extinguished it therefore logically follows that the only likely uses that can be made of the land are complying uses. What is and is not a complying or possible use is determined by the zoning of the land and the relevant regulations. There is no warrant to approach any subsequent application on the basis that at the time it is filed there is no zoning with respect to the land, as a zoning void existed.

Mr Scragg’s submissions suggest that he has confused the zoning of land with the approved use of that land. It has never been in contention that the underlying zoning of the subject land is Residential. Zoning of land, however, does not of itself convey a right to use that land for a purpose consistent with the zoning. There is, on my reading of the Development Act and the relevant provisions of the Development Plan, no residential use of the subject land which can occur without the need to make an application to the relevant planning authority. There are no complying forms of residential development listed in the Residential Zone, and in any event, pursuant to s 33 of the Development Act, a development can only be approved if the relevant authority has assessed it and granted consent. Inasmuch as complying development is not excluded from the ambit of s 33, an application to the relevant authority is still required before a complying development can be approved. It follows that, if the subject land’s existing use rights for industry have ceased, use of the land for any residential use requires an application to the relevant authority and for a consent to be issued by that authority. Provisional Development Plan Consent was issued by the Council in October 2006 in respect of an earlier proposal to construct two dwellings on the subject land, but there has been no evidence produced that Provisional Building Rules Consent or Development Approval was subsequently obtained, nor evidence that there is any other extant approval for the use of the land for residential purposes. That being the case I have concluded that, in the absence of existing use rights for industry, there is no lawful use established for the subject land.

(b) Effect of the Land Division Application

While it is necessary for a planning authority (and, on appeal, this Court), when considering the appropriateness of a proposed land division, to satisfy itself that the proposed allotments are suitable for the purpose for which they are being created (see, for example, Kokkotos v City of Mitcham [2000] SAERDC 13), it is established law that the mere fact that land has been divided does not determine its future use: Meath Pty Ltd v District Council of Angaston (1981) 6 SAPR 189. Accordingly, the subject proposal cannot have the effect of extinguishing any existing use rights for industry and substituting a residential use in their place. As has often been observed by this Court and its predecessors, a land division is merely lines on a plan. It cannot, of itself, bring about a change in the lawful use of the land being divided.

In the absence of a proposal to change the use of the subject land (which proposal of necessity would entail some form of physical development of the land), the suitability of the proposed allotments has to be assessed against two possibilities:

(a) that there are, in fact, existing use rights for industry; and

(b) that existing use rights have been discontinued, in which case the suitability of the proposed allotments for a form of development consistent with the current zoning has to be assessed.

(c) The Land Division Proposal Assessed

Principle 8 for Inner Suburban Policy Area 1 stipulates a minimum site area for Detached and Semi-detached Dwellings of 250 square metres, and a minimum average site area of 250 square metres for Group Dwellings and Residential Flat Buildings. Principle 9 relevantly provides:

9. Variations to Principle of Development Control 7 (the parties were agreed that this was a typographical error, and the correct reference was to Principle 8) may be considered as follows:

(a) in the case of detached, semi-detached and row dwellings, the minimum site area may be reduced by 15% where:
...
(ii) the development involves the replacement of a non-complying use, ...

Mr Scragg, for the Appellant, submitted that the proposed land division, while not meeting the stipulated minimum site areas in respect of two of the three proposed allotments, should obtain the benefit of the concession provided for in Principle 9, inasmuch as the subject proposal would result in the replacement of a non-complying use.

While it was contended by Mr Scragg that, in the various discussions with Council staff regarding the subject proposal, “both parties proceeded on the common assumption that the land will be developed as residential” (p 109, transcript, line 9), the evidence indicates that, shortly before the decision of the Council to refuse the application, the Appellant was asserting a right to use the existing building on proposed Lot 843 for industrial purposes (p 56, Exhibit R1). It is difficult to square that evidence with Mr Scragg’s submission that the proposal should obtain the benefit of the site area concession available to development involving replacement of a non-complying use.

In any event, if the Appellant is contending (as Mr Scragg did in the course of proceedings) that any existing use rights for industry have been discontinued, the subject proposal cannot be characterised as one which results in the replacement of a non-complying use; the proposal would merely be seeking to divide land in respect of which there is no lawful use.

If the land division proposal is assessed on the basis that there is no lawful existing use, the appropriateness of the allotments for the residential uses envisaged within the Zone and Policy Area must be considered. In that regard, proposed Lot 841, at 221 square metres in area, would be, on the uncontested evidence of Mr Barnes, 11.6% below the minimum site area described by Principle 8, and proposed Lot 842, at 223 square metres in area, 10.8% below that minimum.

A Site Audit Report for the whole of the subject land, prepared in September 2006 by URS, and included in Exhibit R1, indicated that the area now comprising proposed Lot 843 was unsuitable in its current state for residential use, having a layer of fill approximately 0.5 metres thick highly contaminated with hydrocarbon silt and ash from kilns previously used for brick-making on that land. Remediation to render that land suitable for residential purposes would at least require removal of the layer of fill and, possibly, additional remediation measures.

Mr Scragg, for the Appellant, submitted that it would be possible to modify the existing building on proposed Lot 843 to render it suitable for residential use.

In my assessment, retention of the building in the context of a land division for residential use would be at odds with the desired character for Inner Suburban Policy Area 1, which provides, inter alia, that “sites previously used for commercial purposes should be replaced with housing after, where necessary, decontamination has occurred.” The form of land division proposed, which includes the retention of the existing building, would create the potential for remediation of proposed Lot 843 to be deferred indefinitely, with the possibility that it would eventually occur in close proximity to established residential uses.

The deficiency in the site areas for proposed Lots 841 and 842 is a further source of conflict with the clearly-expressed intent of the Development Plan. Departures from the minimum standards prescribed by the Development Plan have sometimes occurred on the basis that those standards represent no more than “desired” standards. The decision of Debelle J in City of Mitcham v Terra Equities Pty Ltd [2007] SASC 244 is authority for the proposition that minimum standards are just that, and should not be treated as desired standards. The fact that the site areas of two of the proposed allotments fall significantly below the minimum areas for the Zone, taken together with the proposal’s failure to remediate proposed Lot 843, bring it into conflict with the clearly expressed intent of the Development Plan. Having regard to a long line of authorities, such as City of Mitcham v Freckmann [1999] SASC 234; (1999) 74 SASR 56, I have further concluded that the extent of that conflict is such that division of the land for residential use in the form proposed does not warrant Development Plan Consent.

I turn now to the question whether the proposed division would be suitable for industrial use, should there remain existing use rights for industry. Given that the primary policy intent of Inner Suburban Policy Area 1 is the replacement of commercial with residential uses, it is not surprising that no guidance as to site areas for industrial use is provided in the policies for that area. Policies for the Industry Zone in the City of Charles Sturt, however, suggest that new allotments for industrial purposes should have an area of at least 2500 square metres “unless intended for a specific purpose for which a lesser area requirement can be demonstrated ...”. Given that the Desired Character and the Principles of Development Control for Inner Suburban Policy Area 1 seek progressive replacement of commercial uses, the creation of the potential for three new industrial uses, rather than one, and the major disparity between the site areas proposed and that considered the usual minimum site area in the Industry Zone, the proposed land division would also conflict with the clear intent of the Development Plan if assessed on the basis of its suitability for future industrial use.

This conclusion is reinforced by the uncontested evidence of Mr Siow that access and parking issues for industrial use of proposed Lot 843 have not been satisfactorily addressed.
Conclusion

24. Having regard to all the above, to all that was put before me, to what I saw on the view, and to the relevant provisions of the Development Plan, I have concluded that the decision of the Respondent Council to refuse the subject proposal was correct, and should be confirmed. There will be an Order to that effect.