WILLCOCKS v CITY OF WHYALLA & ANOR [2009] SAERDC 79 (6 November 2009)

Last Updated: 16 November 2009

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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WILLCOCKS v CITY OF WHYALLA & ANOR

[2009] SAERDC 79

Judgment of Commissioner Mosel

6 November 2009

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development application to amend aspects of an existing cafe and add to the existing use of land a limited form of gymnasium - Residential Zone - consent granted - third party appeal - a development application in retrospect - the history of the use of the subject land summarised and found to be a factor to be considered in the assessment - the locality considered - whether the use of the land in the Zone is suitable considered - whether the proposed carparking arrangements are sufficient considered - limited effect on the amenity of some residents anticipated - the terms of the Development Plan are adequately satisfied once the factual and historical circumstances of the land and buildings and with proposed operational limitation are taken into account - appeal allowed for the purposes of varying the consent.

Development Act 1993; Development Regulations 1993, referred to.

Willcocks v Corporation of the City of Whyalla & Anor [2009] SAERCS 23; Courtney Hill Pty Ltd v South Australian Planning Commission (1992-93) 59 SASR 259; Kouflidis & Jenquin v Corporation of the City of Salisbury (1982) 29 SASR 321; Allbound Pty Ltd v City of Onkaparinga (No.2) [2009] SAERDC 56; Shahin Group v City of Burnside & Walsh [2002] SAERDC 22; Leeming v Corporation of the City of Port Adelaide (1987) 45 SASR 506; Courtney Hill v S.A. Planning Commission (1990) 59 SASR 259, considered.

WILLCOCKS v CITY OF WHYALLA & ANOR
[2009] SAERDC 79

THE COURT DELIVERED THE FOLLOWING JUDMENT:

1. Ms Schmitzer is a registered proprietor of the land situated at 28 Roberts Terrace, Whyalla (on the corner of Randall Street). On the land is a house of modern appearance facing Roberts Terrace and an old building of commercial appearance facing Randall Street adjacent a narrow lane way. The approved use of this building is for a “shop including tea room and new disabled toilet” (Development Application No. 850/370/06). The old building is presently used, in part, as a café.
2. The land is situated within the Residential Zone in the Council’s Development Plan (“the Plan”). The relevant version of the Plan is dated 20 March 2008.
3. In September 2008 Ms Schmitzer applied to the Whyalla Council for Development Plan Consent to add a “Curves” ladies fitness gymnasium (“the gymnasium”) and beauty salon to the existing café. In due course the Council granted consent and attached to it a number of conditions. They appear at p 31 of Exhibit R1.
4. Ms Willcocks lives at 10 Dick Street. Her property is about 200 metres from the proposed development. She appeals the decision of the Council on the grounds set out on p 33 of Exhibit R1. Ms Willcocks challenge to the proper characterisation of the proposal was the subject of a separate hearing. Her Honour Judge Cole found that the proposed gymnasium is an undefined use of land and remarked, in passing, that the use applied for is a “very limited form of gym”: Willcocks v Corporation of the City of Whyalla & Anor [2009] SAERDC 23.
5. Several aspects of the proposal considered by the Council were redefined at the commencement of the hearing. Here I refer to such things as the floor space and the operating hours of approved (café) use, the allocation of a small area of the land for off-street carparking and the removal of the beauty salon from the proposal. The amendments do not alter the proposal so substantially as would bring into question the Court’s jurisdiction.

The Issues

6. Whether the proposed use of part of the building on the land for the gymnasium is appropriate in planning terms is a matter that devolves into the following principal questions.

(1) Is the proposed use of the land envisaged for the Residential Zone within which it is situated? This question is resolved by considering, among other things, whether the proposed development is a small-scale non-residential use that serves the local community; and

(2) Is it justifiable to establish the proposed development in circumstances in which it falls well short of meeting the Plan’s guidelines for on-site carparking? The extent to which the proposal deviates from those guidelines and its overall consistency with the character of the locality and the impact on the amenity of dwellings in the locality from on-street carparking and traffic movement generally are the factors for consideration.

7. Following a line of authority stemming from Courtney Hill Pty Ltd v South Australian Planning Commission (1992-93) 59 SASR 259 these questions and the overall planning merits of the proposed use should be determined within the factual and historical context outlined below.

The Development Proposed

8. The proposal has two components to it. Firstly, it would establish the proposed gymnasium in the presently unused part of the building. The gymnasium is associated with the existing café inasmuch as the staff, management and general operations are common to both. Secondly, to accommodate the introduction of the proposed gymnasium to her business, Ms Schmitzer proposes to amend (by reducing) the floor area of the approved café and its seating capacity and specify (by placing limits on) the times at which it may be open for business.
9. The proposed gymnasium would be within a part of the building referred to below as the “training room”. It is about 115 square metres in area. The floor area allocated to proposed gymnasium proper (about 70 square metres) would be occupied by 12 “stations” and 6 “recovery stations”. The remainder (about 45 square metres) appears to be space that would be for general administration or be otherwise unassigned. The beauty salon, which was included in the proposal to the Council and located in the remainder, no longer forms part of the proposed development.
10. The café has outdoor (courtyard) and indoor areas approved for that use. The proposal would include the removal of the outdoor area from its existing approved use for the seating of 15 people (p 56 Exhibit R1) and increase the seating capacity of the indoor component from 30 seats (p 55 Exhibit R1) to 40 seats. The additional 10 seats would be placed within a small meeting area. The overall effect of the proposal would be to reduce by five the number of seats available for use in the existing café.
11. At present there is no on-site carparking. On the submissions of Mr Kernahan, who appeared for Ms Schmitzer, I have proceeded in the assessment on the basis that two on-site carparking spaces near the courtyard can be provided and are thus included in the proposed development as is the continued use of the driveway serving the existing dwelling for the parking of staff cars.
12. The consent issued for the existing use of the land (a shop and tea rooms) is not constrained in its operating hours. The proposal would seek to change this state of affairs. The proposed business hours for the addition of the gymnasium and the existing use are as follows:

	Existing Café	Gymnasium
Monday	9am – 4pm	6am – 10.30am; 2.30pm – 7.30pm
Tuesday	9am – 4pm	6am – 10.30am; 2.30pm – 7.30pm
Wednesday	9am – 4pm	6am – 10.30am; 2.30pm – 7.00pm
Thursday	9am – 4pm	6am – 10.30am; 2.30pm – 7.00pm
Friday	9am – 4pm	6am – 10.30am; 2.30pm – 6.00pm
Saturday	9am – 4pm	8am – 11am
Sunday	10am – 2pm

13. Several conditions of the consent appealed have the effect of placing limitations on the operation of the gymnasium and the existing café. I have not taken the limitations into account in the assessment. In other words I have proceeded on the basis that the character and intensity of the proposed development overall is to be judged on the proposed gymnasium being used at its intended capacity during the proposed hours. However, the evidence indicates that this is not a likely outcome.
14. There is a kitchen adjacent the area of the building to be used for the proposed gymnasium. It appears to be in use but does not, so far as I can tell, form part of the existing use of the building as a café. The kitchen is not a relevant matter in the assessment.
15. In evidence Ms Schmitzer said that her proposal does not include the revival of the “shop” component of the existing approved use of the land.

The Gymnasium Now Exists

16. The gymnasium now operates in its proposed location. This aspect of the proposal is an application in retrospect.
17. In accordance with the decision of the Full Court in Kouflidis & Jenquin v Corporation of the City of Salisbury (1982) 29 SASR 321, I have given no weight to those aspects of Ms Schmitzer’s evidence about its present management arrangements that would have the effect of supporting her application. I have taken the same approach on the car parking observations undertaken by Ms Hugo.
18. Apart from the observations I made on the view of the general layout of the gymnasium and other rooms, the assessment must proceed on the basis that it is a new use of the building.

Relevant Background

19. A perusal of Exhibits R1 and R2 and Mr Batge’s statement of evidence reveals the following background to the existing uses on the land:

(1) A hall (now made-up of the training room, storerooms and kitchen) was constructed in 1941. This component is at the eastern end of the land abutting the laneway. In its early years it was occupied by Whyalla News and for a period the land and building was used for the training grounds and clubrooms of the Central Football Club (p7, Exhibit R2).

(2) Between 1969-1997 it was used continuously by the German Speaking Association. During this period it was enlarged to a size roughly as exists today. To this point in its history the land to the west of the building remained vacant. A document in Exhibit R2 (p 53) suggests that the Association used the building for functions, and meals and often catered for up to 130 people. At the end of this period it was gifted to the Whyalla Senior Citizens Association.

(3) In 1999 the Council granted consent for the use of the building for “administration”. The applicant sought consent to use the building and land for the offices and training rooms of an employment broking, labour market and counselling service. The service involved the preparation of people for employment through on-site training. A reception/administrative and workstations area for clients was established. In total five people were employed. On this latter point, in subsequent submissions to the Council, the then owner indicated that the training room provided seating for up to 30 people (p 54 Exhibit R2). The consent was the subject of a condition requiring the provision of 5 carparking spaces on the remaining vacant land.

(4) In 2001 the Council granted consent to the construction of a two storey dwelling on the vacant land. The consent, together with various consents for pergolas, fences and extensions, effectively removed the carparking spaces from the business that they were intended to serve.

(5) In 2006 the Council granted consent to use part of the building as a shop including tea rooms. It included an indoor area (30 seats) and outdoor area (courtyard). The application indicated that the latter area intended to seat 15 people. The sole condition imposed in this consent is of no relevance. The use approved did not include the area of the building previously occupied by the training room. The documentation submitted in support of the proposal said of this area:

... the older front section of the building will remain unused until we have the financial resources to restore/renovate the building to an appropriate standard. We will seek further planning approval for this venture in approximately two years.

The documentation accompanying this proposal also noted that the vehicles associated with the employment brokers (the previous use) were parked in Randell Street.

Although this background has some relevance to the way that the proposal is to be assessed and was not contested, there are some evident inconsistencies between the administration use applied for in (3) above and the assertions in later documentation about actual use of the training room. Accordingly, aspects of this background must be treated with some caution.

The Planning Context for Assessment

Locality

20. Mr Batge and Mr Altmann (appearing respectively in the case for the Council and the appellant) both prepared locality plans to assist their assessment of the planning merits of the proposed development. Their plans are contained in their statements of evidence received respectively as Exhibits R5 and A1. All things considered, the area defined by Mr Altmann is likely to include the properties and the public thoroughfares more or less influenced by the proposed use and is to be preferred to the area defined by Mr Batge. It includes the eastern edge of the large open space west of the land, properties along Roberts Terrace about 50 metres north and south of Randall Street, all properties in Randall Street and properties that are situated within 50 – 70 metres of the intersection of Randall Street, Cudmore Terrace and Dick Street.
21. Much of Mr Batge’s locality is common to that defined by Mr Altman. Although the land in the southern sector of Mr Batge’s locality is outside the area of influence of the proposal, it appears to me that the land uses within it are reasonably consistent with the desired character for the Zone when its objectives and principles are read together.
22. The locality is, in the main, made up of dwellings. However both the appearance and the existing approved use of the existing building on the land are a distinguishing feature within it, as are the following:

(1) The open character of the Flinders Lookout reserve some 50-60 metres to the west;

(2) The noticeably wide road reserves and their pavement widths (up to 11 metres in Randall Street) and the presence of the lane way immediately adjacent the land; and

(3) The Catholic Centre Care Family Services Offices at the intersection of Cudmore Terrace, Randall Street and Dick Street.

23. Ms Willcocks’ house is not within the locality. Mr Altmann conceded that the effect on her house from on-street carparking and traffic movement associated with the proposed use of the land would be minimal.

The Relevant Provisions of the Plan

24. The following provisions for the Residential Zone are relevant to the resolution of the principal issues and overall planning merits.

OBJECTIVES

1. A residential zone comprising a range of dwelling types.
2. Increased dwelling densities in close proximity to centres, public transport routes and public open spaces.
3. Development that contributes to the desired character of the zone.

PRINCIPLES OF DEVELOPMENT CONTROL
Land Use

1. The following forms of development are envisaged in the zone:
   • domestic outbuilding in association with a dwelling
   • domestic structure
   • dwelling
   • dwelling addition
   • small scale non-residential uses that serve the local community, for example:

- child care facility
- health and welfare service
- open space
- primary and secondary school
- recreation area
- shops, offices or consulting room

• supported accommodation.

2. Development listed as non-complying is generally inappropriate and not acceptable unless it can be demonstrated that it does not undermine the objectives and principles of the Development Plan.
3. Vacant or underutilised land should be developed in an efficient and co-ordinated manner to increase housing choice by providing dwellings at densities higher than, but compatible with adjoining residential development.
4. Non-residential development such as shops, schools and consulting rooms should be of a nature and scale that:

(a) serves the needs of the local community
(b) is consistent with the character of the locality
(c) does not detrimentally impact on the amenity of nearby residents.

5. The use and placement of outbuildings should be ancillary to and in association with a dwelling or dwellings.

Form and Character

6. Development should not be undertaken unless it is consistent with the desired character for the zone.
25. The list of non-complying development is also for consideration as are the following provisions in the General Section.

Interface between Land Uses

1. Development should not detrimentally affect the amenity of the locality or cause unreasonable interference through any of the following:

...
(g) hours of operation
(h) traffic impacts.

26. Objectives 1 and 3 and Principle 1 under the heading of Orderly and Sustainable development have a similar goal in mind.

Transport and Access

...

2. Development that:

...
(c) provides off street parking
...

31. Development should provide off-street vehicle parking and specifically marked disabled car parking places to meet anticipated demand in accordance with Table Wh/1 – Off Street Vehicle ParkingRequirements.

Assessment

27. Set out above are two questions that are at the nub of this appeal. The first is a question about whether the proposed development is envisaged in the Residential Zone. The second concerns the consequences to the character and amenity of the locality of on-street carparking and traffic cause by the failure of the proposal to provide off-street carparking.

A Suitable Land Use in the Residential Zone?

28. When dealing with the first of those questions it is necessary to distil the intent of the Zone by reference to its Objectives and Principles. At first glance its desired character appears clear. Objectives 1 and 2 both envisage a zone of residential character. The statement of desired character foreshadows an increased demand for housing. That statement, together with aspects of Principle 1 and Principles 5, 6 and 7, provides general guidance to new residential development.
29. However, there are aspects of Principle 1 which indicate that the Residential Zone is intended to be flexible in the land uses it envisages within it. In explicit terms it envisages “small scale non-residential uses that serve the local community”. Some examples are given. By the expression of Principle 1 those examples are not exhaustive. The first question to be asked is whether the proposed use is a “small scale” use of land.
30. Mr Altmann’s evidence addressed this question by considering the proposed use and the existing use. He said, in effect, that the existing café may be a ‘small scale’ business. However, he said that there are particular circumstances about both uses of land which, taken together, place the use of the building beyond the realm of a ‘small scale’ enterprise. The factors that he said bear upon the question of scale include the capacity of the gymnasium, its operating hours within a residential environment, the deficiency in on-site carparking and the capacity for the café to operate at a higher intensity.
31. Mr Batge took a different approach by considering each component of the proposal. He concluded that each use and the activities within the building as a whole are small-scale uses of the land. Among other things he factored into his assessment the approved capacity of the existing café and the proposed reduction in its total seating capacity, the scale of the gymnasium when compared to large fitness centres, the staggered (peak) hours of the business and the guidance that Principle 2 might provide on the question.
32. Where the provisions of a development plan are silent on what tests might be applied to decide whether a proposed use of land use is properly characterised as “small-scale”, measures such as floor space, number of people employed, the type of vehicles used, the number of vehicle movements generated, the demand on public utilities and external impacts become considerations: Allbound Pty Ltd v City of Onkaparinga (No.2) [2009] SAERDC 56. They are also of some assistance in circumstances, as in this case, where the provisions of the Plan offer some guidance on the question. For example, Principle 1 offers a list of land uses envisaged in the Residential Zone. In explicit terms they are said to be examples of small-scale non-residential uses that serve the local community. They include child-care facility, health and welfare services, primary and secondary school, shops, offices and consulting rooms. Of some assistance also is Principle 2 when that provision is read with reference to particular land uses envisaged for the Residential Zone. Principle 2, it appears, has the express intention of proscribing some of the uses envisaged in the Residential Zone if, among other things, they exceed specified floor areas – namely shops (250 square metres), offices (100 square metres) and consulting rooms (100 square metres).
33. When these provisions are read together it becomes clear that the planning authority has foreshadowed in its policy intent for the Residential Zone, a flexible approach to land use planning. The desired character of the Residential Zone not only includes a range of dwelling types but also – explicitly – a range of small-scale non-residential uses. When Principles 1 and 2 are read together the type of uses the authors of the Plan deem to be small-scale non-residential uses are generally not insignificant in their floor area. Nor on that basis alone would the number of vehicles likely to be generated by such uses be so immaterial as to be unnoticed.
34. Ultimately a planning judgment on this question is necessary. Having considered all of the evidence and submissions and the relevant provisions of the Plan I have concluded that the use of the building as a whole and thus the gymnasium alone would be within the realm of the type of small-scale land use envisaged in the Residential Zone. The component and total floor areas of the proposed and existing use of the building are factors in reaching this conclusion as is the manner in which their individual and cumulative intensity and thus external impact is governed by the staggered operational times of the gymnasium and café.
35. When addressing whether the proposed gymnasium would serve the local community, Mr Altmann concluded that it would draw from Whyalla as a whole and would thus be in conflict with Principle 1. His reasoning appears to be as follows. Curves is a multi-national franchise. Ms Schmitzer has the exclusive right to operate the franchise in Whyalla. The demography of the City of Whyalla suggests that there is a large market from which the clients of Curves would be drawn. Being the sole gymnasium of its type in Whyalla ipso facto the use of the building for this form of gymnasium must draw from the whole of the city. It therefore cannot be viewed as serving the local community.
36. When assessing the proposal against this aspect of Principle 1, I have adopted the approach taken in Shahin Group v City of Burnside & Walsh [2002] SAERDC 22. That is, I have construed the words “that serve the local community” as meaning “that serve principally the [needs of] the local community”.
37. Mr Altmann’s approach to this question is of no particular assistance. He analysed the demography at a most superficial level and drew from it conclusions that have little or no bearing on whether the proposed gymnasium would be a local service facility. The fact that a facility might attract clients from afar does not, by that fact alone, define the area it serves and therefore the level at which it functions. There are many local services that come to mind that often serve principally the local community but, for a variety of reasons (for example client loyalty, personal records, friendships and past associations) they often attract clients from distant places. Small suburban based medical practitioners, hairdressers, child minding centres and accountants would be among the many examples.
38. The most reliable evidence on the question was provided by Ms Schmitzer. She earlier operated the gymnasium elsewhere in Whyalla. When asked by Mr Kernahan to state the reasons for moving to the land Ms Schmitzer said:

We wanted to incorporate another business with Curves; it’s my dream to have a café and Curves at the one premises, and the building was perfect for that, so we decided to move up there, and also the majority of our members are up in that area as well which a lot of ladies tend to walk to Curves now.

39. Her evidence to that effect together with the size of the facility and its location within a suburban street indistinguishable from other local streets all point to the conclusion that the proposed gymnasium will serve principally a local function.
40. The gymnasium is the type of small scale non-residential that serves the local community envisaged in the Residential Zone. Its presence in the Zone would not be in conflict with Principle 1.

Carparking

41. In practical terms the land is capable of providing only two off-site carparking spaces. They would be additional to the existing informal parking next to the dwelling. They would be located adjacent the entry to the café in a “stacked” form. Ms Schmitzer indicated in evidence that should consent be granted to the proposal she would abide a condition requiring those parks be provided.
42. The evidence of Mr Batge and Mr Altmann suggests that the carparking rate in Table Wh/1 for gymnasiums is an appropriate standard to apply. That is to say, Transport and Access Principle 31 require the allocation of 1 space for every 10 square metres of floor area. On this basis a minimum of 7 and a maximum of 11 carparking spaces should be provided. The final number would depend on how the administration/unassigned area would be dealt with in the computations.
43. Both experts also applied 1 carparking space for every two seats within the café. On this basis the existing approved use would require the provision of 23 spaces. However, the proposal in its amended form has the effect of reducing the required carparking to 20 spaces when that standard is applied to the amended seating capacity for the cafe.
44. The upshot of this analysis is that by factoring in two new spaces mentioned above the proposed use of the portion of the building falls significantly short of compliance with Transport and Access Principle 31 (by 5-9 spaces) and thus Principle 2 under the same heading. When the existing café is factored in the shortfall is much greater. In all of the circumstances, is this shortfall justifiable in planning terms?
45. Firstly, it is necessary to consider what effect the parking of vehicles would have on the amenity of the residents in the locality. Ms Hugo, the Council’s traffic engineer, undertook a carparking analysis including the collection of traffic data to assist in the assessment. Having regard to the decision in Kouflidis I have confined my consideration of her evidence to her assessment of the number of on-street carparking spaces in Randall Street. In her opinion there are 19 carparking spaces available in that street.
46. In Mr Batge’s opinion, when both the café and gymnasium are operating together, 15 cars will be generated and parked on the streets. In his view they would be distributed within Randall Street and Roberts Terrace. In his statement of evidence (Exhibit R5) Mr Batge said that the potential exists for there to be an unreasonable impact on residents generally but particularly during the early morning sessions. It is for this reason that, at pp 13-14 of Exhibit R5, he says that certain reasonable and enforceable limitations be placed on the proposed use. His earlier advice to the Council in similar terms led to the imposition of conditions 2, 5, 6 and 7 of the consent. Embodied in his assessment are two key factors. The first is a recognition of the history of the commercial use of the building as a whole and a presumption, based on its history, that on-street carpark is a reasonable expectation. The second is the proposed limitation of the (otherwise unlimited) hours of the café. In his view the limitations would avoid “potentially significant impact[s]”. (Transcript p 147).
47. Whether, in light of the amendments made to the proposal as a whole, Mr Batge would still see as necessary the imposition of limiting conditions is not entirely clear. However, he said the amended hours of the café’s operation during the morning assists in minimising the impact of the operations of the building as a whole.
48. Mr Altmann’s concern with carparking revolved around the measured deficiency in on-street carparking spaces. In his opinion the deficiency is 27 spaces when the proposal is viewed as a whole. On several occasions he described that deficiency as a “fundamental breach” of the Plan. However, it appears that Mr Altmann, while having some concerns about the impact of traffic and on-street carparking, views the principal failure of the proposal as one to do with a conflict between its character and the policy intent for the Residential Zone.
49. From the evidence of Mr Batge and Mr Altmann two conclusions can be drawn. Firstly, the proposal fails to satisfy the guidelines for carparking in Table Wh/1. It thus fails to meet (Transport and Access) Principles 2 and 31. As a result of this failure the second conclusion to be drawn is that vehicles, additional to those generated by the existing approved café, will be parked in Randall Street and Roberts Terrace within reasonable proximity to the land. The question then must be asked: what is the likely impact on the amenity of the residents who reside near the land?
50. In common with Mr Batge and Mr Altmann I have concluded that the amenity now available to the appellant’s house in Dick Street will be unaffected by parking and traffic movements. In respect of the residents within the locality, a number of factors bear upon the assessment. They include the unusually wide carriageway of Randall Street, the abundant opportunities to park cars within Randall Street and Roberts Terrace, the orientation of dwellings (generally) away from the proposed use, the stated business hours of the proposed gymnasium, the proposed limitations to the hours of the existing café and the limits to the intensity of the proposed gymnasium embodied in its floor area.
51. When both the café and the proposed gymnasium are operating simultaneously, Mr Batge estimated that about 15 cars would be parked in the near vicinity of the land. This number is somewhat less than the carparking guidelines in Table Wh/1 suggest. Nevertheless, having regard to Ms Schmitzer’s evidence about the proximity of the clients of the gymnasium to the land and the spread of times in which it will operate I have concluded that on-street parking of that order can be anticipated.
52. The unavoidable conclusion is that the amenity of some residents would be affected by early morning visitation to the gymnasium. It is likely that the dwellings affected will be few in number. The likely impact on the amenity of the residents and the overall merits of the proposal when assessed against Zone Principle 4(b) and (Interface between Land Uses) Principle 1 are aspects in the assessment that cannot be divorced from its factual and historical context. The building, for its entire life, has retained its original non-residential character both in its use and appearance. In my opinion it has not been conclusively established that the use of the training room has been discontinued. The circumstances[1] necessary to establish the contentions of Mr Manos in this respect were not sufficiently canvassed or are otherwise were so uncertain as to leave the question unresolved.
53. In any event, what purpose would such a finding have in the resolution of this appeal? It is unlikely that such a finding would lead ultimately to a reversion of that part of the building now sought to be used by the proposed gymnasium to a residential use as envisaged in Zone Objective 1.
54. It is well established that in some circumstances what actually exists on the land can lessen the significance to be attached to the relevant provisions[2]. In this instance the non-residential use of the building commenced over six decades ago. By its own hand, the Council removed the ability to provide off street carparking when it approved the construction of the dwelling. Whether or not the area of the building proposed to be used as a gymnasium has been abandoned in a strictly legal sense, the fact remains that it is a relatively small space, is unable in any realistic way to be reverted to residential use and is capable of being used for small scale non-residential uses envisaged in the Residential Zone. There is simply no compelling reason why the factual circumstances of the land and building and the commercial utility of the training room should be disregarded when assessing the planning merits of its proposed use. In this case it would be occupied by an enterprise envisaged for the Residential Zone. The only discernable planning issue is that related to the provision of carparking. The provisions of the Plan that seek to minimise the impact of traffic should be read down accordingly.
55. Having regard to all of the above I have concluded that the operation of the gymnasium during the proposed times will not cause unreasonable impacts on the amenity of residential in the locality.

Summary

56. I am satisfied that the proposed gymnasium when operated in accordance with the details setout above would accord with the relevant provisions of the Plan when those provisions have due regard to the factual and historical circumstances of the land and building and the proposed operational limitations of the existing café. However, for the following reason an order dismissing the appeal would not be appropriate. The basis upon which I have undertaken the assessment and arrived at the conclusions means that certain conditions of the consent issued by the Council are either unnecessary (for example conditions 2 and 7) or (in the case of conditions 5 and 6) need to be revised if their inclusion is intended to ensure the terms of the approved uses are clearly stated and understood. Other conditions including the 2 carparking spaces may also be appropriate.

Conditions and Order

57. By memorandum I advised the parties of my reasoning in the above terms and invited their submissions on conditions of consent and appropriate order.
58. At the resumption of the hearing, Mr Billington handed up draft minutes of order that would allow the appeal for the purposes of varying the consent to amend the description of the proposed use and impose a fresh list of conditions.
59. The draft list of conditions are consistent with my assessment. I am not persuaded by Mr Kernahan’s submission that would have the effect of deleting Condition 12. The provision of off-street carparking was one of two principal issues determining whether planning authorisation should be granted. In support of her contention that the proposal would not cause an unreasonable number of clients parking their vehicles on the public roads in the vicinity of the subject land, Ms Schmitzer said in evidence that the current practice to allow staff to park in the driveway of her house would continue. That, in my view, further amended or redefined the scope of the proposal to be assessed against the relevant provisions.
60. There will be an Order allowing the appeal for the purpose of permitting the consent to be varied to amend the description of the proposed use of the subject land and replace the existing conditions with 13 fresh conditions.
    

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[1] Leeming v Corporation of the City of Port Adelaide (1987) 45 SASR 506 at paras 514-515

[2] Courtney Hill v S.A. Planning Commission (1990) 59 SASR 259