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Norman Waterhouse

Unrepresented resident succeeds in overturning SCAP approval – Beltrame v SCAP & Anor

Beltrame v SCAP & Anor [2020] SAERDC 2

In a victory for the underdog, an unrepresented third party appellant who did not call any expert evidence successfully had a SCAP approval overturned notwithstanding the developer calling expert planning and traffic evidence and being represented by a QC.

Background

In 2018 a proposal to develop the former Schweppes site at 382 Payneham Road, Payneham into a large format retail (bulky goods/retail showroom) was refused by the City of Norwood, Payneham & St Peters, primarily due to an inconsistency with the provisions of the Light Industry Zone.

This did not deter the developer. In 2019 a new application for a similar proposal (this time for service trade premises) was lodged with SCAP after being “called in” by the State Coordinator-General. It was supported by staff and was granted Development Plan consent before being appealed by Mr Beltrame, a nearby resident. Despite not calling any expert evidence, the appellant was able to convince the ERD Court to exercise its planning judgment and set aside the Development Plan consent due to a fundamental departure from the relevant provisions of the Light Industry Zone.

Characterisation of use

The appellant argued that the size and nature of the proposed tenancies were not fit for purpose for service trade premises but were instead likely to accommodate shops in the nature of retail showrooms, as was originally intended. The Commissioner observed that there were practical limitations that would not allow most of the items (including boats, caravans, motor vehicles and sheds) listed in the definition of ‘service trade premises’ to be sold from these tenancies. However, because some of the items within the definition could still be sold from the tenancies (such as marquees, pools, building materials and agricultural/industrial plant and equipment) he found that the Court must accept the proposal from the developer at face value “unless it is wholly unrealistic or unattainable in the circumstances”.

The developer further argued that this type of procedural challenge from the appellant cannot occur in a third party appeal, but should be constrained to a review application under Section 86(1)(f) of the Development Act 1993. This is what the Court had previously held in Bria v Wakefield Regional Council [2018] SAERDC 40. The Commissioner was however willing to dispense with the requirement to have the procedural matters dealt with by way of separate proceedings, drawing on the principles that govern proceedings in the ERD Court as set out in Section 21 of the Environment, Resources and Development Court Act 1993.

Zone purpose

The Light Industry Zone was very rudimentary in nature and its intent and purpose was clear (from Objective 1 and PDC 1). The purpose was to accommodate industries which manufacture on a small scale which do not create appreciable impacts. This was reinforced by provisions in the City wide “Commercial and Industrial Development” section of the Plan which underlined that land set aside for industry is valued and should be protected against ‘sensitive’ uses which may impose constraints on manufacturers and occupy valued industrial land.

The only other provisions of the Light Industry Zone prescribed complying and non-complying uses. Given the limited policy framework it was necessary to look at these lists to provide context. The Commissioner found that “None of them ‘open the door’ for retail uses other than, at a very small scale, sales allied to a suitable primary land use” and that the list did not suggest the Zone was ‘flexible’ or permissive, as was asserted by the developer.

The developer’s expert planner opined that due to the diminishing role of manufacturing in the State’s economy, Industrial Zones were being “transformed” into Urban Employment Zones and therefore an Industrial Zone should be viewed as essentially a zone for jobs. The Court did not accept this, stating:

“It is not open for the Court to ignore the LIn Z provisions, nor to substitute those authorised provisions with policies directed at realising urban employment opportunities.”

A homeless use

The developer’s expert noted that there were no zones in the Council’s area where a service trade premises is complying development, and that it was a land use that was generally not contemplated throughout the Council including in centres and mixed use zones. The Commissioner however did not see this as justification for support in this Zone, describing the use as a ‘fringe’ retail use, most often found, as a standalone activity in mixed business or commercial strips or along main roads, not integrated in the sense proposed. He further stated that:

“the lack of clarity as to where service trade premises might be expected to be accommodated in the Council area does not assist here where the Zone policies are not unclear, or inherently flexible, nor contradicted by other Development Plan policy. The LIn Z is not an appropriate zone for such uses”

Reliance on expert evidence

Vorrasi v Adelaide City Council [2010] SASC 26 stands for the proposition that the ERD Court is not obliged to accept expert evidence led before it, but if it does reject uncontradicted expert evidence, it should do so only for very good reason.

In this instance, the Commissioner saw good reason to depart from the uncontradicted planning evidence of the developer, in that in his opinion the expert inappropriately set aside the land use intent of the Light Industry Zone on the basis that he expected manufacturing uses were unlikely to be developed. The Commissioner said that this was the wrong approach and if the policies were considered no longer relevant and that a wider range of employment-generating and retail uses should be provided, then that should be addressed by way of rezoning the land “and not by setting aside the authorised Development Plan provisions in favour of another development outcome.”

For more specific information on any of the material contained in this article please contact Aden Miegel on +61 8 8217 1342 or amiegel@normans.com.au or Gavin Leydon on +61 8 8210 1225 or gleydon@normans.com.au.

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