CITY OF ONKAPARINGA v BECKER & ANOR [2010] SAERDC 1 (18 January 2010)

Last Updated: 19 January 2010

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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CITY OF ONKAPARINGA v BECKER & ANOR

[2010] SAERDC 1

Judgment of Her Honour Judge Trenorden

18 January 2010

ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL

Enforcement proceedings pursuant to s85 Development Act 1993 to restrain use of land for the purposes of the display of signs or other objects or devices containing written or graphic content - whether respondents have changed the use of the land - whether Council authorised to bring proceedings - whether the messages could be regarded as reasonably incidental to the residential use of the land. Finding the impact of the signs has a detrimental impact on the amenity of part of the locality - whether display of signs constituted display of advertisement - definitions of "sign" and "advertisement" considered - whether an order under s 85 is an injunction.

Held: That the respondents have breached the Development Act by undertaking acts and activities not exempt from development.

Development Act 1993; Development Regulations 1993; Local Government Act 1999; Trade Practices Act 1974 (Cth); Environmental Planning and Assessment Act 1979 (NSW), referred to.

Corporation of the Town of Gawler v Minister for Transport and Urban and Planning and the State of South Australia [2002] SASC 85; The Corporation of the City of Noarlunga v Usher (1981) 29 SASR 109; City of Noarlunga v Fraser (1986) 42 SASR 450; Fraser v The City of Noarlunga (1985) 18 APAD 153; Re ICI Australia Pty Ltd and the Trade Practices Commission [1992] FCA 474; (1992) 38 FCR 248; Cardile v LED Buildings Pty Ltd [1999] HCA 18; (1999) 198 CLR 380; Sydney City Council v Building Owners and Managers Assoc of Australia Ltd (1985) 2 NSWLR 383; Cooney v Kuringai Corporation [1963] HCA 47; (1963) 114 CLR 582, considered.

CONSTITUTIONAL LAW

Respondents contend that the purpose in displaying the messages on the site was to exercise their freedom of expression in relation to political matters - Attorney-General for SA intervened - whether s85 of the Development Act is invalid because it restricts the implied constitutional freedom of political communication.

Held: s85 is not invalid.

Judiciary Act 1903 (Cth), referred to.

Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520; Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, considered.

CITY OF ONKAPARINGA v BECKER & ANOR
[2010] SAERDC 1

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. The respondents Mr Becker and Ms Inglis are pensioners who jointly own land, the address of which is 137 Commercial Road, Port Noarlunga South (the subject land). They live in the dwelling on the land and have resided there since early 2002. On part of the land, between the dwelling and the road, the respondents have been displaying messages, many of which were political in content, on boards, blackboards and shade cloth. Development approval has not been obtained for the display of these messages.
2. The applicant, the City of Onkaparinga (the Council), successfully sought the issue of a summons pursuant to s 85 of the Development Act 1993, in 2006, in which the following orders (as amended) are sought against the respondents:
   1. That the First Respondent and the Second Respondent cease using, or suffering or permitting the use of, the land at 137 Commercial Road, Port Noarlunga South, SA (“the Land”) and be hereby restrained by injunction from further using the Land, or suffering or permitting the use of the Land, for the purposes of the display of advertisements, signs, signboards, blackboards, hoardings, or other objects or devices containing written or graphic content of any kind unless permitted by a development approval.
   2. That the First Respondent and the Second Respondent cease displaying on the Land, or suffering or permitting on the Land the display of, a sign or signs visible from a road, street or other public place or by passengers carried on any form of public transport, such display having commenced on or before the date of this order, and be hereby restrained by injunction from commencing the display of, or suffering or permitting the commencement of the display of, a sign or signs visible from a road, street or other public place or by passengers carried on any form of public transport on the Land, unless permitted by a development approval or by virtue of Schedule 3 to the Development Regulations 1993.
   3. That the First Respondent and the Second Respondent comply with orders 1 and 2 herein within 28 days of such orders being made.
   4. That the First Respondent and the Second Respondent pay the Applicant’s costs of and incidental to these proceedings.
   5. Such other Orders as the Court thinks fit.
3. The Council’s case is that the respondents have contravened the Development Act by undertaking unauthorised development. Their case is that the act of displaying the messages on the subject land as indicated above, is development requiring authorisation under the Development Act, because it amounts to either:

(a) an additional act or activity constituting development, by Schedule 2 of the Development Regulations 1993, namely “the commencement of the display of an advertisement, but not including a change made to the contents of an existing advertisement if the advertisement area is not increased” (Schedule 2, Clause 7); or

(b) a change in the use of the subject land, being a use which is neither part of the approved residential use nor an accessory use or a home activity, both of which are acts or activities which are not development by Schedule 3, Clause 5, Development Regulations 1993.

4. The respondents submit that the proceedings should be dismissed. They made the following submissions:

(a) the equitable remedy of an injunction is not appropriately sought in the circumstances;

(b) the display of messages by the respondents on their land is not development within the meaning of the Development Act;

(c) the display of the messages is excluded from the definition of development by Schedule 3 of the Development Regulations 1993;

(d) there is no evidence of the Council having authorised the proceedings;

(e) in so far as the Development Act interferes with the respondent’s political communications, it infringes the respondent’s constitutional rights.

Whether proceedings have been authorised

5. At a very late stage, Counsel for the respondents asserted that there was no proof that the proceedings had been authorised by resolution of the Council. At the end of the day, this submission was not strongly pursued.
6. In response to the submission, counsel for the Council submitted that the presumption of regularity applies. That is, that the Council acted with proper authority in applying to institute proceedings. That presumption is rebuttable, upon proof by the challenging party.
7. I accept that the submission by the counsel for the Council is for the correct position at law. Where a person exercises a power it will be presumed from the exercise of the power, in the absence of evidence to the contrary, that the person exercising the power was duly authorised to do so, whatever the requirements for the authority: see Corporation of the Town of Gawler v Minister for Transport and Urban and Planning and the State of South Australia [2002] SASC 85 at [29], and the cases cited therein.
8. The respondents further submitted that the Council had not complied with the requirements of s 85(2), which is in the following terms:

(2) proceedings under this section may be brought in a representative capacity (but, if so, the consent of all persons on whose behalf the proceedings are brought must be obtained).

9. The submission was as I understand it, that because a Council is the elected council of an area designated as a municipal or district council under the Local Government Act, it is a representative body, being representative of the electors within in the area of council and so is bound to comply with the requirements of s 85(2), with which it has not complied.
10. I do not accept the submission. Pursuant to s 35 of the Local Government Act 1999, a Council is a body corporate with perpetual succession. Accordingly, it is a person, and thus has a right as has any other person, under s 85(1) of the Act to apply to the Court for an order to remedy or restrain a breach of the Act.

The Facts and Background

11. The Court had before it a number of affidavits. Some of those affidavits tendered as part of the case for the Council, had exhibited to them copies of photographs of the messages displayed on the subject land. The respondents also tendered affidavits and gave oral evidence.
12. Formerly, the respondent Mr Becker lived at 14 St Peters Street, in the suburb of St Peters. While living there, from the early 1990s he began displaying political messages at his residential premises, by writing his political opinions as messages on banners, which he hung on the front fence of the premises. Subsequently, Mr Becker went to live at Port Noarlunga, in about 1999. There he joined the respondent Ms Inglis in her then retail business. They lived together and together they put on displays of political messages.
13. The respondents purchased the subject land with its dwelling early in 2002. Shortly thereafter, they began to display messages on boards on the subject land, positioned so that the messages can be seen by road users, and have continued to do so.
14. From the evidence, it is evident that the messages are written in white and coloured chalks on large blackboards and cardboard as well as being chalked or painted onto shade cloth. Some of the shade cloth is attached to the upper part of the verandah of the dwelling so as to partially shade the verandah, and was in existence when the respondents purchased the property. In about 2004, the respondents made shade cloth panels to fit between the verandah posts in the lower part of the verandah and installed them so as to provide complete shade for the east facing verandah. In addition, separate pieces of shade cloth each containing a message have been displayed on the subject land like banners, suspended between trees growing on the subject land or a tree and a verandah post of the dwelling.
15. Generally, the messages seem to have been communications or comments by the respondents concerning individual politicians at all levels of government, the local council, political and government matters generally. Some of the signs have promoted particular causes (“save Aldinga scrub and public space”) and others promoted the respondent Mr Becker’s political ambitions. In October 2007, hand-chalked boards promoting commercial operations were displayed, but these kinds of messages are not usually displayed on the subject land.
16. It is clear from the photographs and the affidavit evidence that the boards displaying messages are not fixed in place and have been moved about from time to time. The messages vary, generally being changed regularly, and are not permanent. The shade cloth on the verandah has displayed messages from time to time, but not fixed messages. The messages on the boards are sometimes tagged or signed GrafArti or Bazza, both of which indicate Mr Becker’s handiwork.
17. The boards and banners are generally large, with some being substantial. Generally, there are many boards displaying messages present on the land at the one time in addition to the messages on the verandah shadecloth and sometimes also banners.
18. According to the respondents, the messages have generally been statements about political and governmental matters. The messages have invariably been expressed in frank language. The reason for this choice of language is set out in the affidavit of the respondents (exhibit R8) as follows:
    6. It is our view that discussions about political and governmental matters, especially where they take place in printed or electronic media, are carried out in artificial, obscure and/or politically correct language and that consequently, the opinions expressed are not conveyed adequately or effectively to ordinary Australian people. We believe that as part of our comment upon governmental and political affairs, it is appropriate to express ourselves in a completely different way. Our intentions in displaying messages on the blackboards on our property is only to promote discussion within our community about government or political issues that are a very real concern to the members of that community.
19. The lawful use of the subject land is for residential purposes; a dwelling and garage having been approved in the 1950s and a carport and verandah having been granted development approval in 1983.
20. Earlier, the Council in 2004, had issued an order to the respondents under s 254 of the Local Government Act 1999. In February 2004, the order was withdrawn and a fresh order under the same section was issued. In May 2004, the Council commenced criminal proceedings against the respondents under s 258 of the Local Government Act for contravention of the order issued under s 254 of that Act. The respondent Becker was convicted on each of 5 counts of contravention of the order. Following an appeal to the Full Court of the Supreme Court, the appeal was allowed and the convictions were set aside on 16 November 2005.
21. An application for a summons to issue under s 85 of the Development Act was made to this Court in August 2006 and the Court granted permission for a summons to issue, in the same month.
22. Following commencement of these proceedings, the respondents agreed to make an application for development approval. According to their evidence, they “did so fully in the knowledge that (they) were not seeking permission for property development in its usual meaning for building works, advertisements or fixed signage”. The Council refused to grant consent to the application.

The Site and the Locality

23. It is relevant to describe the site and the locality in the vicinity of the subject land. The subject land has a frontage to Commercial Road, on its eastern side, of 19.2m. The dwelling is set back some 9m from the western boundary of Commercial Road. It is within this area of setback, that is between the Commercial Road boundary and the dwelling (the site), that the messages are displayed.
24. Commercial Road runs in a north-south direction. The land on the western side of this road within the locality of the subject land is residential in character, comprising allotments with detached dwellings, having frontage to Commercial Road.
25. The land on the eastern side of Commercial Road comprises a large area of relatively flat, unbuilt on land owned by the South Australian Housing Trust. Commercial Road is a two-lane, dual carriageway road, with in addition, a bicycle lane and parking strip on each side. It apparently carries high volumes of traffic.

The Scheme of the Development Act

26. The object of the Development Act is set out in section 3. It is “to provide for proper, orderly and efficient planning and development in the State”, and to that end, it provides for a strategic planning system, the creation of development plans with objectives and principles of planning and development, and establishes a system whereby any development, as the term is defined in the Act, may only proceed if it is an authorised development. At the relevant time, development could only become authorised development if an application had been made, the development had been assessed against the provisions of the relevant development plan and development consent had been granted. Other approvals, for example with respect to the Building Code, may have been necessary before a development approval was granted.
27. Thus, on the one hand the Act establishes a system for orderly and efficient planning, through the system of strategic planning and the development plans, and on the other hand establishes a system of development control whereby only that development which is proper, that is, has been assessed against the objectives and principles of planning and development set out in the development plans, and granted consent, may proceed. As part of the development control system, a planning authority is also given power under the Act to take action against persons who have undertaken development without approval.
28. In addition, the Development Act seeks to address other matters, such as regulating advertisements seemingly regardless of whether any particular advertisement is “development”. Under s 74, if a Council forms the opinion that an advertisement or advertising hoarding disfigures the natural beauty of a locality or otherwise detracts from the amenity of the locality, it may order the owner or occupier of the land on which the advertisement or advertising hoarding is situated, to remove or obliterate the subject of the order, whether or not development authorisation has been granted. This is one example of the powers given to a Council to regulate development in the interests of proper and orderly planning.
29. It is appropriate now to consider whether the acts and activities of the respondents in placing and maintaining the blackboards, boards and shade cloth containing messages on the subject land constitute development within the meaning of the Development Act. “Development” is defined in s 4(1) of the Development Act. It was argued that the respondents’ acts and activities may constitute development by falling within paragraphs (b) or (h) of the definition. They are set out below:

development means—
...
(b) a change in the use of land; or
...
(h) an act or activity in relation to land (other than an act or activity that constitutes the continuation of an existing use of land) declared by regulation to constitute development,
(including development on or under water) but does not include an act or activity that is excluded by regulation from the ambit of this definition;

Whether the acts or activities constitute a change in the use of the subject land

30. The first question is whether the use of the subject land remains solely residential, despite the acts and activities of the respondent in writing messages on boards and banners and displaying those boards and banners on the site so as to face Commercial Road.
31. Section 6 of the Development Act elucidates the concept of “change in the use of land”. It provides that for the purpose of determining whether a change in the use of land has occurred, inter alia, the commencement of a particular use of the land will be regarded as a change in the use of the land if the use is additional to a previously established use of the land which continues despite the commencement of the new use.
32. It follows from this elucidation that in order to determine whether there has been a change of use in the circumstances of this matter, it is necessary to first determine whether a new use has commenced, or whether the use thought to be an additional use, is but part of the existing use. In the cases cited in argument, that is The Corporation of the City of Noarlunga v Usher (1981) 29 SASR 109 (Usher), and City of Noarlunga v Fraser (1986) 42 SASR 450 (Fraser), in the context of an existing residential use of land, much has turned on whether what is proposed is a hobby or associated with a hobby of one of the residents.
33. In Usher, an appeal from the Planning Appeal Board, decided under the Planning and Development Act 1966 and particularly the Metropolitan Development Plan Corporation of the City of Noarlunga Planning Regulations - Zoning, Mr Usher's erection of a radio tower and antenna at his dwelling house to enable him to pursue his hobby, namely that of amateur radio operator, was held to be part of the existing residential use of land, based on the definitions of "use of land" and "dwellinghouse" in the regulations. The meaning of "use of land" included "the use of any building ... on land", and the meaning of "dwellinghouse" included "a house designed for use as a dwelling ... together with such outbuildings as are ordinarily used therewith ...". The Planning Appeal Board had determined that a radio mast and antenna structure, because it was in furtherance of a hobby that was understood to be ordinarily carried on as part of the residential use of land, was part of the ordinary use of a dwelling.
34. On appeal, His Honour Wells J adopted the Board’s reasoning including that statement that “there are many uses which, as a matter of fact, are part of such ordinary residential use”, which was a reference to the meaning of dwellinghouse. Ultimately, because the case concerned the erection of a structure, the question for the Board on this point had been distilled to whether what was proposed for a hobby activity was so far out of line with the manner in which the particular hobby was normally practised that it should not be considered as being part of the ordinary residential use. Another way of expressing the question was whether the manner in which the hobby was proposed to be carried on was abnormal.
35. Thus, a hobby was seen to be part of the ordinary residential use unless the manner in which or by which it was to be practised, was to take it beyond the ordinary residential use. However, this decision was clearly made in the context of the meanings given to "dwellinghouse" and "use of land" in the zoning regulations, and the fact that what was proposed was a kind of structure.
36. The case of Fraser was an appeal in relation to the determination of the Planning Appeal Tribunal on the question of whether the construction of a large yacht in the back yard of a dwelling constituted "development". By the time Mr Fraser sought approval to construct a yacht in his backyard, the Planning Act 1982 and the Development Control Regulations had replaced the Planning and Development Act 1966 and the Zoning Regulations. The question was whether the act of and activity in constructing the yacht was development, either because it was the construction of a structure, or a change of use of the land.
37. At the time, the definition of "dwelling" in the Development Control Regulations did not include a reference to "outbuildings ordinarily used therewith" as had been included in the definition of "dwellinghouse" relevant in Usher. "Development" was defined in the Planning Act to include a change of use, and that term was elucidated in section 4a, in much the same terms as appears now in section 6 of the Development Act.
38. The Full Court agreed with the Tribunal that the construction of the yacht was not a structure.
39. The Tribunal in Fraser v The City of Noarlunga (1985) 18 APAD 153 accepted that the construction of the yacht was a hobby, but found itself unable to consider whether the hobby was within the ordinary residential use of the land, because of what it saw as a limited definition of "dwelling", the absence of protection for the continuation of existing lawful uses (the operation of the legislative provision protecting the continued use of land for the purposes for which it was lawfully being used (s 56(1)(a) of the Planning Act) had been suspended), and the lack of assistance provided by section 4a because it did not define the term "use". Indeed, the Tribunal concluded that under the legislation, "other activities carried on and outbuildings, usually associated with the ordinary house, appear to require separate consideration as "development", at least in the first instance".
40. The Tribunal posed the question as to whether there had been a change of use solely by asking whether "the physical use of part of the land (for building the yacht), which part was previously used as the back garden" constituted a change in the use of the land. Putting the question in this form led the Tribunal to conclude that the hobby of constructing the yacht in the backyard may constitute a change of use, and to turn to see whether the regulations had exempted such use of the land from the definition of "development". The Tribunal determined that it was exempted, and the question as to whether the construction of a yacht in the back yard constituted "development" did not need to be answered and was not answered.
41. The Full Court in Fraser interpreted this approach as meaning the Tribunal had decided that what it had concluded was a hobby use (the construction of a yacht in the backyard), was probably not part of the existing residential use, because it could be classed as a separate use of that part of the backyard where it was being constructed. The approach of the Tribunal turned on its interpretation of the legislation. It did not consider whether the activity was within the ordinary residential use, before looking to whether it constituted an accessory use, because it did not think that course was open to it, given the legislative structure.
42. On appeal, the Full Court endorsed the Tribunal's approach.
43. The subject land is presently lawfully used for residential purposes by the respondents. They live there. There has been no change in that regard. Since shortly after the commencement of occupation of the dwelling by the respondents, they have also used the land to communicate their views on political and other matters and certain persons (generally politicians) through messages chalked or painted on blackboards, cardboard and shade cloth. The activities of the respondents could be said to be an alternative form of communication with other members of the community, as opposed to writing letters to newspapers, distributing pamphlets, making speeches in public places, or conveying their views through the internet, by means of a website, a blog or YouTube, for example.
44. There was no submission that the message boards are structures within the meaning of the Development Act.
45. The question then is whether the acts and activities of the respondents constitute a use additional to the residential use of the land. In Usher and Fraser, the application was in essence for the construction of something. In Usher, the application was treated as a land use application, in the context of the prevailing legislation. It was determined in the context of the relevant legislation that the application was not for an additional use of the applicant's land. In Fraser, it was held that what was proposed was not the construction of a building (as defined) and a question was whether it amounted to a change of use.
46. Mr Becker has been displaying his political opinions for public road users to view, since the early 1990s, and Ms Inglis with him since some time between 1999 and 2002. However else the acts and activities might be described, they could be described as a hobby of the respondents, although, unlike the situation in Usher, nothing turns on that.
47. There was no suggestion that the undertaking of the acts and activities has replaced the garden and driveway on the site in front of the dwelling. However, the site is being used for the display of messages on boards and banners, in addition to its use as a garden and driveway. The latter use is without doubt part of the normal residential use, but the display of messages as it is occurring on the site (particularly noting the number and size of the messages) may amount to an additional use of the subject land and therefore a change of use. Relevant parts of the legislation (the definition of development, the meaning of “change of use”) are almost identical to that which was relevant in Fraser. While the definition of “detached dwelling” is different, in neither case do they include the extended meaning given to “detached dwellinghouse” in the earlier legislation considered in Usher.
48. It seems to follow from the limited definition of “detached dwelling” that any additional use of land will require consent unless it is exempted from being development by the regulations, pursuant to the definition of “development” in the Development Act. As the Tribunal did in Fraser, I will now proceed to consider whether the acts and activities are exempt from “development”, in which case any change of use would not be relevant.

An Accessory Use

49. The next question is whether the acts and activities involved in displaying the messages on the boards and shade cloth on the site amounts to an accessory use as described in Schedule 3, clause 5 of the Development Regulations 1993. Schedule 3 sets out acts and activities which are not development; clause 5 of the Schedule addressing the use of land and buildings. If the use of the subject land by the respondents to convey messages on boards and shade cloth can be ordinarily regarded as (and is in fact) reasonably incidental to the residential use of the land and is for the substantial benefit of the respondents, it would fall within clause 5(1) of Schedule 3 and thus not constitute development.
50. The question of whether a use of land was reasonably incidental to a residential use of land was considered in the cases of Usher and Fraser.
51. In Usher, the issue as to whether the proposed use was part of the ordinary residential use of the land was considered and determined, and then only in deference to the arguments was consideration given to whether the proposed hobby use was an accessory use as defined. Under the zoning regulations, "accessory use" was defined, in part, as follows:

... means a use made of land which is –
(1) ordinarily regarded as, and is in fact, reasonably incidental to any particular use of land, and
(2) for the substantial benefit of the person or persons who, in any capacity, is or are making use of the land ...

52. In considering whether a proposal could ordinarily be regarded as reasonably incidental to a residential use of land, Wells J in Usher commented, in obiter dicta (because he had agreed with the Planning Appeal Board that the construction of a radio mast and antenna was part of the residential use of the land), that the question was whether the proposal could fairly be regarded as reasonably incidental to a residential use. By way of explanation, His Honour said:

The relevant words are “ordinarily regarded as ... reasonably incidental”, which, to my mind, emphasises the character of the res rather than its incidence within the community.

53. If this approach remains appropriate, the question becomes whether the expression of political and other messages on blackboards and shade cloth at the front of a dwelling can fairly be regarded, having regard to the array of chalked on blackboards and shade cloth, as reasonably incidental to a residential use of land.
54. By the time of Fraser, the legislation had changed. However, the concept of “accessory use” together with its meaning had been retained and was set out in the Development Control Regulations 1982 in the First Schedule, at paragraph 10(1), as follows:

(1) The use of land and the use of any lawfully-erected building which is ordinarily regarded as, and is in fact, reasonably incidental to any particular use of the land and the building, or the land or the building, and which is for the substantial benefit of the person or persons who, in any capacity, is or are making use of the land and the building, or the land or the building.

55. The words which did not appear in the “accessory use” definition considered in Usher have been italicised in the above quotation. The term “accessory use” was no longer mentioned, but a use that fell within the above description was an act or activity that was not development: regulation 5.
56. The effect of the changes, in contrast with what prevailed at the time of Usher, seems clear. At the time of Usher, a consent for a dwellinghouse was consent for a house, together with such outbuildings as are ordinarily used therewith (see the definition of “dwellinghouse” quoted in Usher). Under the Development Control Regulations in force at the time of Fraser, a dwelling was limited to a building or part of a building used as a self-contained residence and did not include outbuildings: see regulation 4. However, the erection or construction of an outbuilding in which human activity was secondary, and which was detached from and ancillary to another building on the site for which consent had been granted, was not development, provided it fell within certain specifications: see Schedule 1, para 7. It followed logically that the use of such an outbuilding should also be excluded from the definition of development, and thus not need consent. This is then the effect of the changes manifest in para 10(1), First Schedule, Development Control Regulations, compared with the definition of “accessory use” in the old Zoning Regulations.
57. The construction of the yacht was a once only activity. If its construction fell within paragraph 10 of the First Schedule of the Development Control Regulations 1982, the construction of the yacht was not development within the meaning of the Planning Act. White J (with whom the other judges of the Full Court agreed) said:

Concentrating solely upon the “change of use of the land” limb of the definition of “development”, it can be seen that this “hobby” of accessory use of land (yacht building once only) falls quite readily into the kind of exempted use contemplated by par. 10.

58. In other words, it seems that if an act or activity can fairly be regarded as a reasonable incident of residential use of land and is in fact an incident of the particular residential use of land, and it is for the benefit of the occupiers of the land, then it would fall within the so-called "accessory use" and thus not be development.
59. However, as White J concluded in Fraser, “it is very much a question of fact and degree whether a particular example is or is not within the accessory use exempted by par. 10 of the First Schedule”.
60. Scheduled 3 of the Development Regulations 1993 lists those acts and activities which are not development by reason of Regulation 7. Clause 5(1) of Schedule 3 of the Development Regulations is in almost identical terms to para 10(1) of the First Schedule of the Development Control Regulations that were relevant in Fraser. The principal difference is that the words and is in fact are bracketed. I do not see that anything turns on that difference.
61. The use of the site by the respondents is the expression and communication of the respondents’ views - generally on political and governmental matters. As a matter of fact, it is an incident of their residential use of subject land. It would be unlikely to take place on the subject land if they did not live there. It has been an incident of the respondent Becker's use of his residential premises in the past. The respondents engaged in the use on the site because they live on the subject land. Thus it is in fact incidental to the respondents’ use of the land for residential purposes.
62. However, the test has an objective element. The test is actually whether the activity can ordinarily or fairly be regarded as reasonably incidental to a residential use of the land. In determining this question, it is not appropriate to look at the incidence of this kind of activity in residential properties in the community. It is appropriate to look at the character of the activity: Usher’s case (above). In the cases of Usher and Fraser, the subject matter was determined by the Planning Appeal Board and Tribunal respectively to be for the pursuit of a hobby, or according to White J in the case of Fraser, a temporary amateur activity as a means to pursuit of a hobby.
63. In this matter, as I have already concluded, the activity might also be said to be a hobby. It is the pursuit of the communication of opinions held by the two persons who reside on the land, with the intention of promoting thought and discussion within the community. However this particular hobby, if it can be called thus, is such that it has an impact on the locality, by virtue of the number and size of many of the boards and banners. This is relevant to the character of the activity.
64. The presence and nature of impacts must be relevant to whether the acts and activities can ordinarily or fairly be regarded as reasonably incidental to a residential use of land. There were impacts (visual and noise) on a neighbour of the carrying out of the hobby activity in Fraser: see Fraser at 451. This aspect was not considered either in Fraser, which adopted the reasoning in Usher, nor in Usher which was not decided on the issue of accessory use, although it was clear from the then Zoning Regulations that if the structure would have a detrimental impact on the character or amenity of the locality, consent could be required. In Fraser, the cautionary comments of White J regarding hobby activities that would be “so bizarre, so out of line and so large in scale” as to be “demonstrably beyond the pale, demonstrably beyond the hobby class of activities ordinarily so regarded”, although appearing to be referable through Usher to what falls within the ordinary residential use of the subject land, seem by the context to be more applicable to the question of what may ordinarily be regarded as reasonably incidental to any particular use of land.
65. The activity is the expression and communication of the respondents’ views on political and government matters. It is carried out by the respondents and is for their benefit, as it enables them to express and communicate their opinions. It is the respondents’ hope that the messages will cause members of the community to reflect, and discuss the matters raised. Thus, there may also be perceived community benefit arising from the activity - at least that is the hope of the respondents. However most benefit is gained by the respondents, as the activity is the means by which they express and communicate their views. It follows that the activities are for the substantial benefit of the respondents.
66. I have concluded that the number and size of the boards and banners on which messages are regularly displayed and the visual impact which results, is against the use of the site for the display of the messages being ordinarily regarded as reasonably incidental to the residential use of land. Put another way, the character of the use of the site, having regard to the dimensions of the boards and banners and the numbers of them, precludes it from being ordinarily regarded as reasonably incidental to the residential use of land. Perhaps the display of messages might ordinarily be regarded as reasonably incidental to the residential use of land, if carried out at a lower scale, but that is an issue for another day. The acts and activities of the respondents in displaying the messages on the site, on the facts, are in the class described as being beyond the pale, in Fraser and in Usher.
67. The use of the land by the respondents for the display of the signs cannot be ordinarily regarded as reasonably incidental to their residential use of the land, and so be exempt from "development" pursuant to clause 5 of Schedule 3 of the Development Regulations, even though the use is for the substantial benefit of the respondents, in that it facilitates the expression and communication of their views and opinions.

A Home Activity

68. As it was argued, I will also consider whether the activities of the respondents constitute the carrying on of a home activity on their land. If the activities on the site constitute an additional use of the subject land, and thus a change of use of the land, they will not constitute development if they fall either within clause 5(1) or (2) of Schedule 3: see Regulation 7. I have already considered whether the activities fall within clause (1).
69. Clause 5(2) of Schedule 3 provides that inter alia, the use of land that is the carrying on of a home activity on land used for residential purposes, is not development. The term “home activity” is defined in Schedule 1 of the Regulations to mean the use of a site that, inter alia, does not detrimentally affect the amenity of the locality or any part of the locality.
70. It is generally agreed that the boards and shade cloths with messages chalked or painted thereon do have a detrimental impact on the amenity, at least on that part of the locality near to the subject land. It is the number and size of the messages and the boards and banners that gives rise to the detrimental impact on the amenity. The impact might not be detrimental, if the boards and banners were a smaller size and fewer in number. However I do not need to consider this further. I find that there is a detrimental impact on the amenity of part of the locality. It follows that the activities of the respondents do not fall within a “home activity” as defined and therefore cannot come within clause 5(2) of the Schedule 3 and so cannot not be development, on this account.

Whether the acts and activities are those declared by regulation to constitute development

71. The meaning of “development” according to the Development Act, includes an act or activity declared by regulation to constitute development (see paragraph (h)). Schedule 2 of the Development Regulations lists those additional acts and activities constituting development by virtue of regulation 6.
72. The Council relies on clause 7 of Schedule 2. That is set out below:
    7. Other than within the City of Adelaide, the commencement of the display of an advertisement, but not including a change made to the contents of an existing advertisement if the advertisement area is not increased.
73. The respondents argue that the messages displayed on boards, blackboards and shade cloth do not constitute advertisements.

Advertisements

74. The term “advertisement” is defined in the Development Act to mean “an advertisement or sign that is visible from a street, road or public place or by passengers carried on any form of public transport”.
75. The Macquarie Dictionary (3rd Edition) gives a meaning to “advertisement” that suggests a commercial purpose. The meaning is as follows:

Any device or public announcement, as a printed notice in a newspaper, a commercial film on television, a neon sign, etc, designed to attract public attention, bringing custom, etc.

76. The concept of an advertisement merely conveying information or opinion without commercial intent appears to be archaic: see the meaning of “advertising” in the Macquarie Dictionary (3rd Edition). The Development Act, on one view, would appear to intend “advertisement” as it is used in the Act to mean a sign promoting goods and services. This is borne out by the meaning given to “advertiser” which is as follows:

advertiser – in relation to an advertisement, means the person whose goods or services are advertised in the advertisement.

77. However, the list of acts and activities which are not development, set out in Schedule 3 to the Development Regulations, includes advertising displays. The advertisements described in clause 1 of Schedule 3 which might be contained in an advertising display include; traffic control devices, signs or notices displayed by reason of statutory obligation, signs displayed for the purpose of identification, direction, warning, etc, signs that announce a local event of a religious, educational, cultural, social or recreational character or an event of a political character, and real estate “for sale” and “for lease” signs. Many of the examples referred to in clause 1 of Schedule 3 would constitute a sign, but not an advertisement, as the terms are used in common parlance. However, examples of advertisements in a regulation (or Schedule thereto) cannot determine the content of the meaning of a word in the Act.
78. The question is whether Parliament intended the term “advertisement” to include all manner of signs, whether advertising goods or services, giving notice, giving directions or publicising events. The Macquarie Dictionary (3rd edition) definition gives 10 meanings of the noun “sign”, including the following:
    6. an inscribed board, space, etc., serving for information, advertisement, warning, etc., on a building, along a street, or the like.
79. Although it is not without doubt, I conclude that the meaning of “sign” in the defined term “advertisement” in s 4 of the Development Act, encompasses the boards and banners containing messages placed by the respondents on the subject land. Thus the respondents’ boards and banners are advertisements.
80. In light of the broad meaning given to “advertisement” in the Act as encompassing advertisements and signs, there is no doubt the effect of clause 7 of Schedule 2 is that the commencement of the display of any sign, regardless of its content, is development and thus requires consent.
81. The next consideration, having reached this point, is as to whether the signs are not development because they fall within clause 1 of Schedule 3 of the Development Regulations, which exempts from “development” the commencement of an advertising display containing advertisements of the nature listed in that clause. The term “advertising display” is not defined either in the Act or Schedule 1 to the Regulations. However, given that the signs on the subject land are visible from Commercial Road, they must fall within the meaning of “advertisement”.
82. The signs do not fall within any of the paragraphs of clause 1, except possibly, paragraph (f). Under this paragraph, a sign that relates to an event of a political character will not be development if the total signage area of all signs of that kind displayed on the site is no more than 2m2. It is clear from the evidence presented to the Court that the signs generally do not, and possibly have never, fallen into this category; that is that the total area of messages on all boards and shade cloth is 2m2 or less.
83. I find that the acts and activities of the respondents are not exempt from the meaning of “development” by Schedule 3, clause 1. By virtue then of Schedule 2, clause 7, on each occasion the respondents commenced to display a sign, but not when they changed the contents of the sign, they commenced development.

The power of the Court to grant the orders sought

84. It was submitted on behalf of the respondents that what the Council is seeking from this Court is the equitable remedy of an injunction. Other submissions followed from this premise.
85. The premise is false. The right of a Council to apply to the Court is set out in s 85 of the Development Act. Nowhere in s 85, or indeed in the Act itself, is “injunction” mentioned. Historically, the equitable remedy of injunction was available essentially to protect a person’s proprietary rights. The injunction as equitable remedy remains available for appropriate cases.
86. In the latter half of the 20th Century, parliaments have empowered authorities and other persons to apply to a Court to obtain an injunction to restrain a breach of legislation. These are generally known as statutory injunctions and sometimes public interest injunctions, and are most often found in modern regulatory and consumer protection legislation: See Young, Croft & Smith On Equity (2009 Thompson Reuters) at 1034. In some cases, the legislation uses the word “injunction”: for example, see the Trade Practices Act 1974 (Cth). In other legislation, such as the Environmental Planning and Assessment Act 1979 (NSW) and the Development Act 1993 (SA), the word “injunction” is not used, but rather a person may apply to the relevant Court “for an order to remedy or restrain a breach” of the relevant legislation. In the cases of these Acts, the power of the Court is sometimes generally referred to as the power to grant an order in the nature of an injunction.
87. In the case of statutory injunctions or orders in the nature of injunctions, the remedy which a Court is empowered to grant takes its content from the terms of the legislation: See Re ICI Australia Pty Ltd and the Trade Practices Commission [1992] FCA 474; (1992) 38 FCR 248. In general terms, the power to grant a statutory injunction or order in the nature of an injunction empowers the Court to give a remedy in many cases where none would have been available in a Court of Equity: Cardile v LED Buildings Pty Ltd [1999] HCA 18; (1999) 198 CLR 380 at 394.
88. It is clear from the terms of s 85 that the Court has a discretion as to whether to grant the remedy sought, after hearing at least the applicant and the respondent, and being satisfied, on the balance of probabilities, that the respondent has breached the Act: See s 85(6). Reference to a breach of the Act includes a reference to a contravention or threatened contravention of the Development Act: s 83.
89. In Sydney City Council v Building Owners and Managers Assoc. of Australia Ltd (1985) 2 NSWLR 383, the New South Wales Court of Appeal heard an appeal from the decision of the Land and Environment Court granting orders against the Sydney City Council pursuant to s 123 of the Environmental Planning and Assessment Act 1979. One of the submissions on behalf of the Sydney City Council was that “breach” essentially meant something attracting criminal sanction (and argued that the Council had not undertaken any criminal act). Mahoney J (with whose reasons the other judges agreed) noted that the term “breach” was given a particular or extended meaning by s 122. That section decreed that a reference to a breach of the Act was a reference to a contravention of, or failure to comply with the Act. His Honour did not think that a contravention of, or failure to comply with an Act, carried with it the connotations of criminal consequences: Sydney City Council v Building Owners and Managers Assoc. of Australia Ltd (above) at 387. Section 123 of the Environmental Planning and Assessment Act provides a right to apply to the relevant Court for an order, as with s 85 of the Development Act. Section 122 of the New South Wales Act has its equivalent in s 83 of the Development Act.
90. The further submission on behalf of the respondents was that the Court must be satisfied beyond reasonable doubt as to the offending nature of the behaviour or activities of the respondents. That clearly is not so, as a reading of s 85(6) reveals. The Court has only to be satisfied on the balance of probabilities that a respondent to an application has contravened or threatened to contravene the Act.
91. The respondents referred to the High Court judgment in Cooney v Kuringai Corporation [1963] HCA 47; (1963) 114 CLR 582. That was a case of an injunction sought by a Council in 1963 to restrain the defendants from using their land and premises contrary to the zoning under a Planning Scheme Ordinance, without permission. The application was not brought pursuant to a right under any legislation, and thus is not relevant to the matter before the Court.
92. It was asserted that the Council is seeking an injunction to enforce criminal law, with reference to s 74 of the Development Act. Section 74 empowers the Council to issue an order requiring specified action to be taken where in its opinion an advertisement or advertising hoarding disfigures the natural beauty of a locality or otherwise detracts from the amenity of the locality, subject to certain exceptions, whether or not a development authorisation has been granted for the advertisement or advertising hoarding. The person to whom an order has been directed has a right of appeal under s 74, but will be guilty of an offence if he or she fails to comply with the notice within the time allowed (s 74(3)).
93. Section 74 empowers the Council to take action, if it forms the requisite opinion in relation to an advertisement or advertising hoarding, within the meaning of the Act. It is not of itself, a criminal provision. While I accept that in general terms, a court of equity was unlikely to grant an injunction where there was an alternative form of proceeding available, I do not accept that a Council must first proceed under s 74 before or in preference to applying for an order under s 85 of the Act. However, the opportunity available to the Council under s 74 may be a relevant consideration by the Court in the exercise of its discretion as to whether to make the orders sought.
94. The remaining argument to be addressed is the constitutional argument. It is not strictly necessary for me to address this argument, having regard to my conclusions in relation to whether the acts and activities on the site constitute development. However, in deference to the submissions, I will deal briefly with it.

The constitutional argument

95. In a notice issued pursuant to s 78B of the Judiciary Act 1903 (Cth), the respondents contended that s 85 of the Development Act was invalid insofar as it contravened their implied freedom of political communication, having contended that their sole purpose in displaying the messages on the site was to exercise their freedom of expression in relation to political matters. The Attorney-General for South Australia intervened in the proceedings pursuant to s 78A of the Judiciary Act to put submissions in support of the validity of s 85 of the Development Act.
96. As I have said earlier in these reasons, many of the messages displayed on the boards and banners on the site have been directed towards political and governmental matters. Thus, some, if not many of the messages have been political communications. There is a freedom of political communication implied from the Commonwealth Constitution; Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 and Coleman v Power (2004) 220 CLR 1.
97. Section 85 of the Development Act is a provision empowering this Court to make orders where the Court has been satisfied on the balance of probabilities, that the respondent has breached or contravened the Act. It follows that on occasion, it may be open to the Court to make an order against a respondent, the effect of which will be to burden communication about political matters or to prevent a particular form of communication concerning political matters.
98. Section 85 does not directly restrict political communication. While that may be the impact of its exercise in a particular case, it exists as a machinery provision available to enforce the law set out in the Development Act. It is a means by which the Act, and in particular the restrictions therein, may be maintained and enforced.
99. The Development Act has as its objects, the proper, orderly and efficient planning and development within the State of South Australia. Section 85 is designed to serve this object by empowering this Court to restrain development undertaken contrary to the Act and therefore, contrary to proper or orderly planning or development.
100. It is clear in this case that an order made under s 85 would likely result in a cessation of activities detrimental to the amenity of the locality. The result of an order may also be improved safety for motorists and passers-by but I make no finding on that.
101. The control of development is in the public interest for reasons of amenity and safety, to name but two. Section 85 exists for the purpose of achieving this end and thus the objects of the Act, along with other enforcement provisions in the Development Act. It follows that s 85 of the Act is reasonably appropriate and adapted to serve a legitimate end.
102. Section 85 is not invalid as contravening the implied constitutional freedom of political communication.
103. Finally, I note in passing that the Development Act makes particular allowance for communication on political matters. It is open to a person to communicate concerning political matters by means of signs without obtaining development approval, provided the signs fall within the limits set out in clause 1 (Advertising displays) of Schedule 3 (Acts and activities which are not development) of the Development Regulations.

Conclusion

104. On the balance of probabilities, that the respondents have breached the Development Act by undertaking acts and activities, which are not exempted from development, without that development being authorised under the Development Act. It is appropriate that an order or orders be made to remedy or restrain the breach. It is submitted by the respondents that the orders sought, in proposed orders 1 and 2, are simply too wide, and that there are problems with the form of the orders sought in proposed orders 1 and 2.
105. I will hear the parties as to the appropriate form of order or orders.