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Planning Law Update 46 Planning Law Update An Update and Preview of Recent Cases from the Environment, Resources and Development Court and the Supreme Court of South Australia Jamie Botten Jamie Botten & Associates A Paper Presented at a Seminar “A Day in Court”, 1st September 1995 Hosted jointly by the Planning Education Foundation and the Environmental Law Association (SA) Introduction In this paper I will provide a brief update, overview and commentary on a number of recent decisions of the Environment, Resources and Development Court of South Australia and the Supreme Court of South Australia on development control matters. The paper does not pretend to constitute an exhaustive study of recent case law. Instead, it is a review of what I consider to be some of the more interesting and significant recent cases. Does "Should" Mean "Shall" in the Development Plan? In my Case Law Update paper at the Winter Planning Seminar held on 15th and 16th June, 1994 I considered the above question in the context the decision of His Honour Justice Debelle in the matter of Corporation of the City of Marion v Kerta Weeta Construction Pty Ltd (Judgment No. S4339; 16th December, 1993, unreported). His Honour in that case expressed the view in relation to a particular principle of development control contained in the Development Plan for the City of Marion (namely, Principle no. 37) that the use of the word "should” indicated that compliance with the standard is mandatory. His Honour explained his view as follows: If the proposal does not comply with the criteria in Principle 37, it must be refused unless the departure from those standards is minimal and the proposal in other respects merits planning consent. I do not mean to suggest that principle 37 is an absolute standard so that non-compliance automatically disqualifies a development proposal. However, it is only where the proposal fails to conform with the standard in a minor respect and other wise merits approval that it will be capable of obtaining planning consent. Sometime after the decision in Kerta Weeta the Development Assessment Commission, when considering a residential development proposal to be undertaken by the South Australian Housing Trust within the area of the Marion Council (and in respect of which development proposal the same Principle no. 37 applied), refused planning consent to the application because of non-compliance with Principle 37. In refusing consent the Development Assessment Commission made it clear that they considered that the proposal otherwise demonstrated considerable merit and that they were refusing the application only because of non-compliance with Principle No. 37. The South Australian Housing Trust, being unhappy with that decision, appealed against it to the Environment, Resources and Development Court. When the matter came before that Court His Honour Judge Bowering reserved for the determination of the Full Court of the Supreme Court a number of questions of law regarding the proper meaning of Principle No. 37. Amongst the questions referred to the Full Court was the question of whether or not the subject development application must be refused as a matter of law because of the development's non-compliance with the standards set out in Principle No. 37. The Environment, Resources and Development Court also asked the Full Court to decide whether compliance by the development proposal with Principle No 37 was: [ Australian Environmental Law News - Issue No 11996 j 47 mandatory; or mandatory, except where the development fails to conform with the standards and that principle in only a minor respect and otherwise merits approval; or * is not mandatory. The Full Court held1, amongst other things, that: it did not follow, as a matter of law, that because of the development's non-compliance with the standards set out in Marion Principle No. 37, that the subject application must be refused; compliance by the subject development with Principle No. 37 was not mandatory; it was wrong as a matter of law to treat compliance by the subject development with Principle No 37 as being mandatory, except where the development fails to conform with the standards in that Principle in only a minor respect and otherwise merits approval; and compliance by the development with Principle No. 37 is not mandatory. King CJ, with whom Perry J agreed, stated his views as follows. I am unable to agree that the use of the word "should" indicates an intention that the Principle be mandatory. The word "shall" is prima facie a word of mandatory import. The same can be said of the word "must" which is now fashionable with Parliamentary Counsel as a synonym for "shall". I think that the use of "should" rather than "shall" or "must" indicates that the sense is not mandatory. The standards specified in the Principle are the goal to be aimed at and the planning authority is to be guided by those standards in considering an application for consent. The Chief Justice said further: Although / consider that Principle 37 is not expressed in mandatory language, it must be stressed that it is not the language of the Principle which determines whether compliance with it is mandatory in the sense of binding the planning authority to refuse consent. No Principle of Development Control can be mandatory in that sense because by s 47 of the Act the planning authority is empowered to grant consent unless the proposed development "is seriously at variance" with the provisions of the Plan, (my emphasis). The Chief Justice concluded: "Principle No. 37 no doubt has a very important purpose, but whether it is more important than other standards and objectives in the Plan must depend, in my opinion on the particular proposed development and all the surrounding circumstances. That is a matter for the judgment of the planning authority and ultimately for the Court on the appeal." In light of this decision (i.e. South Australian Housing Trust v Development Assessment Commission and the Corporation of the City of Marion (1994) EDLR 385), it can be seen that the principles established in Kerta Weeta have effectively been overturned. Although in both Kerta Weeta and the South Australian Housing Trust case the Supreme Court was considering the provisions of the Development Plan in the context of the former Planning Act regime, I have no doubt that the principles established in the South Australian Housing Trust case have equal application to the new Development Act regime. 1 South Australian Housing Trust v Development Assessment Commission and the Corporation of the City of Marion (1994) EDLR 385 [ Australian Environmental Law News - Issue No 11996 1 48 Is the Expansion of an Existing Non-Conforming Use on its Existing Site a Non-Complying Kind of Development9 This question has been considered in a number of not so recent decisions of the Supreme Court including Wilson and Others v Corporation of the City of Mitcham and Mercedes College Springfield Inc. (1986) 130 LSJS 31; Church of England Collegiate School of St. Peter v Corporation of the Town of St. Peters (1990) 157 LSJS 401 and Cutajar v Corporation of the Town ofThebarton (1991) 55 SASR 70. The abovementioned cases basically involved the Supreme Court in the application of a principle established by His Honour Justice Jacobs in the Mercedes College case and stated by His Honour Justice Jacobs in that case in the following terms: ... it would be a very strange Development Plan that sought to prohibit an existing and long- established school from expanding its facilities in order to provide the best possible education for its children. The purpose of designating an "educational establishment" as a prohibited development is not to inhibit the reasonable development of existing schools, but to prohibit the intrusion into the area of a new "secondary school, college, university or technical institute". His Honour Justice Jacobs, in the Mercedes College case, then added, after having considered another argument, that: ... I would, however, prefer to rest my answer upon the broader view of the Development Plan which must be capable of adapting to development of existing non-conforming uses while at the same time inhibiting development by way of a new secondary and tertiary educational establishments in a Residential 1A Zone. Although, I think it is fair to say that since the abovementioned Supreme Court cases there has been a deal of uncertainty about the full extent of the application of the abovementioned principle, it seems, of late, that that uncertainty has, if a number of recent decisions of the Environment, Resources and Development Court are any indication, "settled down". In that regard, there are at least two cases worth noting. Firstly, the matter of Morrow v City of Mitcham, Kirk and Development Assessment Commission (1994) EDLR 448. In that case, which came before her Honour Judge Trenorden of the Environment, Resources and Development Court, her Honour had occasion to consider a proposal to redevelop land at 289-291 Cross Road. The land at 291 had existing use rights as a shop, naturopathic clinic and manufacturing laboratories. The land at 289 contained a dwelling and was used for residential purposes. Redevelopment was necessary as a result of the compulsory acquisition of a road widening strip by the Department of Road Transport The proposal before her Honour involved the demolition of the existing buildings on both allotments, and the construction of a new two-storey building comprising a shop, consulting rooms, manufacturing laboratories and store at no 291 and a carpark for 15 cars, a lawned area and a herbal nursery at 289. In the relevant zone (namely a Residential 1A Zone) a shop, consulting rooms and light industry were non-complying kinds of development.
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