PRINTER FRIENDLY VERSION
Environment,
Resources and Development Court of South Australia
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generated.
THE
COURT DELIVERED THE FOLLOWING JUDGMENT:
1
Ms Connor and Mr
Hodgson have applied to the City of Onkaparinga (“the Council”) by
Development Application No. 145/1197/2011 for development approval pursuant to
the Development Act 1993 (“the
Act”) for a workshop, truck storage, firewood storage splitting and dispatch
and a home office at 71 Armata Road, Onkaparinga Hills (“the land”).
Ms Connor and Mr Hodgson are the joint owners of the land.
2
The Council has
classified the development applied for as non-complying development on the basis
that it constitutes general industry. Ms
Connor and Mr Hodgson (“the appellants”) have appealed against that
classification pursuant to s 86(1)(f)(ii) of the Act.
3
At the hearing of
the matter, Ms Connor gave evidence in the appellants’ case and Mr Hocking, a
town planner employed by the Council, gave evidence in the Council’s case.
The Development Plan
4
The development
application was lodged on 2 May 2011. The
applicable Development Plan is therefore the Development Plan for Onkaparinga
(City) consolidated on 4 November 2010.
5
The Development
Plan places the land in the Hills Face Zone.
Principle of Development Control (PDC) 28 lists the kinds of development
which are non‑complying within the Hills Face Zone.
Relevantly, the list includes general industry, light industry, office
and office and dwelling.
The Proposed Development
6
The letter from
the appellants’ solicitors which accompanied the development application
described the existing situation on the land in the following way:-
The land is situated on the meeting point of Pimpala and
Armata Road and is approximately 4 hectares in area.
The site currently comprises:
·
An existing
dwelling in which my clients reside;
·
Firewood
storage of approximately 90 cubic metres for personal use and for that of
family and friends;
·
Truck storage
or parking area for which Development Approval was given by the Council in
February 2010 (DA 4093/2009 – approval to park two vehicles exceeding 3
tonnes on the premises);
·
Existing sheds
used to house a wood splitter and other equipment, tools and machinery; and
·
Existing dam
and paddocks.
My clients own a tree surgery business, “AAA Effective Tree
Solutions”. As mentioned above,
two trucks exceeding 3 tonnes are parked on the premises for that business.
The business operates as follows:
·
Customers call
my clients and make a booking to have a tree pruned, removed, maintained etc
at their property;
·
Two of my
clients’ staff arrive at the land in the morning to pick up the truck and
the wood chipper (if required). The
wood chipper is hitched to the back of the truck and the staff then drive to
the customer’s property. Other
staff may meet at the customer’s property if required;
·
The job is then
undertaken. Tree trunk, branches,
leaves and so forth are cut up at the job site;
·
Leaves and
smaller branches are mulched and given to the customer or disposed of at SA
Composters on the way back to 71 Armata Road or on the way to another job;
·
Larger branches
and any trunks are cut into smaller pieces.
The poorer quality wood is either taken by the customer, or picked up
by regular customers who come and collect wood from the job site and take it
home, or to whom the wood may be delivered on the way home from the job site
where convenient;
·
Better quality
wood, such as Redgum is either taken by the customer or taken by my clients
back to 71 Armata Road for firewood for their own personal use or to give away
to family and friends;
·
An average work
day is concluded by the return of the trucks between 3.00pm and 5.00pm.
A staff member then unloads the equipment, tools and chainsaws from the
trucks for cleaning and sharpening.
7
The proposed
development was described in the following way:-
My clients now wish to be able to sell firewood in
conjunction with their tree surgery business.
The process involves transporting, splitting, storing and drying the
firewood in preparation for its delivery to customers.
The drying process generally takes 12‑18 months with small
piles left out in the open to minimise any fire hazards.
The firewood is proposed to be sold by volume so a weighbridge would
not be required on the land.
The firewood sales would occur by my clients bringing back
additional wood from the tree surgery business and undertaking the process of
splitting, storing and then ultimately dispatching.
Firewood would be stored in small piles away from the residence and any
other buildings until it has aged sufficiently and is ready to be sold.
Prospective firewood customers will make orders over the
phone. Following receipt of an
order, firewood would then be hand loaded into the trucks or trailer in the
morning before, or in the afternoon after a tree maintenance job.
The firewood would then be delivered to the firewood customer on the
way to a tree maintenance job. Accordingly,
no additional traffic movements will occur to and from 71 Armata Road as a
result of the proposal. The volume
of wood proposed to be processed is approximately 50 cubic metres per year.
No more than 150 cubic metres of firewood will be stored on
site at any one time in association with the firewood sale business.
The firewood business activities (processing, storing,
dispatching etc) will only take place between the hours of 8am and 5pm, and
only on weekdays. It is
anticipated that the commercial activities will require on average 1 hour per
week for processing (splitting and storing) and 1 hour per week loading wood
for sale.
It is anticipated that an advertisement for the service will
be placed in the Messenger newspaper periodically.
No signage is proposed to be erected on the land in association with
the sale of firewood.
8
It became
apparent, in the course of the hearing, that neither the lawful existing use of
the land nor the proposed use had been sufficiently fully described.
The parties therefore prepared a Statement of Agreed Facts, in which the
following facts were agreed:-
1.
The Appellants are the owners and occupiers of the land known as 71
Armata Road, Onkaparinga Hills.
2.
The Appellants occupy the dwelling on the land.
3.
There are a number of outbuildings on the land.
4.
The Appellants are the business proprietors of the business known as
AAA Effective Tree Solutions (AAA). AAA
is engaged to perform tree maintenance/removal services on land owned by its
Third Party clients.
5.
In 1984, Development Approval pursuant to DA145/589/1984 was granted
for the construction of a dwelling, carport and verandah on the land.
6.
In February 2010, the Appellants obtained Development Approval pursuant
to DA 145/4039/2009 to park two vehicles exceeding 3 tonnes on the land (and
machinery).
7.
The existing approved uses of the land at present are for residential
use and the parking of two trucks exceeding three tonne tare in weight (and
machinery).
9
The development
approval for the parking of vehicles and the storage of some machinery on the
land does not amount to an approval to conduct a business from the land.
The appellants’ case was conducted as if there was a lawfully existing
use of the land for the tree surgery business.
There is not. The appellants
cannot therefore characterise the use of land now applied for as incidental to
the conduct of the tree surgery business from the land, because the conduct of
that business from the land, on the evidence before me, is not presently an
approved or lawfully existing land use for the land.
This is not a mere technicality. The
parking of trucks and the storage of machinery has a particular impact on the
character and the amenity of the locality. The
conduct of the tree surgery business from the land, which, on the evidence
before me, involves some processing of wood and some sharpening and cleaning of
machinery, as well as other activities which have not been disclosed (perhaps,
for example, the maintenance and repair of machinery and vehicles and the
arrival and departure of employees) is likely to have a different impact.
If the appellants wish to have approval for both the conduct of the tree
surgery business from the land as well as the conduct of the firewood business
from the land, then they need to amend their application and provide further
information to the Council about the precise nature of the land use they wish to
have approved. At present, I take
the application to apply only to the proposed firewood business.
Had the appellants wished to apply for the tree surgery business, that
should have been made clear in the documents accompanying the development
application.
10
It is clear from
the evidence of Ms Connor that a wood splitting machine is to be used in the
firewood business if the proposed development is approved.
The evidence was that the machine has a nine horsepower motor and runs on
unleaded petrol. The machine is
present on the land already, and it was Ms Connor’s evidence that it is
used to split firewood for domestic purposes.
If the firewood business is approved, the wood splitting machine will be
used a great deal more than it is used presently.
Classification
11
The Development
Regulations 1993 (“the Regulations”), in Schedule 1, set out the following
relevant definitions:-
industry
means the carrying on, in the course of a trade or
business, of any process (other than a process in the course of farming or
mining) for, or incidental to—
(a)
the making of any article, ship or vessel, or of part of any article,
ship or vessel; or
(b)
the altering, repairing, ornamenting, finishing, assembling, cleaning,
washing, packing, bottling, canning or adapting for sale, or the breaking up
or demolition, of any article, ship or vessel; or
(c)
the getting, dressing or treatment of materials (and industrial
will be construed accordingly);
light industry means
an industry where the process carried on, the materials and machinery used,
the transport of materials, goods or commodities to and from the land on or in
which (wholly or in part) the industry is conducted and the scale of the
industry does not—
(a)
detrimentally affect the amenity of the locality or the amenity within
the vicinity of the locality by reason of the establishment or the bulk of any
building or structure, the emission of noise, vibration, smell, fumes, smoke,
vapour, steam, soot, ash, dust, waste water, waste products, grit, oil,
spilled light, or otherwise howsoever; or
(b)
directly or indirectly, cause dangerous or congested traffic conditions
in any nearby road;
general industry means
any industry other than a service industry, light industry or special
industry;
12
It was argued by
Ms Niemann, on behalf of the Council, that the Council has correctly classified
the development applied for as general industry and therefore non-complying.
Ms Niemann argued that both the splitting and the drying of the wood
which is proposed to be brought to the land are each a “process” “in the
course of a trade of business” for “the making of any article”, “the
altering … adapting for sale or the breaking up … of any article”.
The proposed development, Ms Niemann argued, is therefore “industry”
as defined. All forms of industry
(light, general and special) are non-complying in the Hills Face Zone.
This proposal is general industry, Ms Niemann argued, because the
machinery (namely the wood splitting machine) and the transport of the wood to
and from the site in laden trucks will detrimentally affect the locality because
of noise, vibration and dust, and there may also be a detrimental effect on
visual amenity. The precise extent
and effect of that detrimental effect will be the subject of detailed assessment
at the next stage of the processing of the development application (should it
proceed). Ms Niemann pointed out
that the question of whether there will be a detrimental effect falls to be
decided in the context of the location of the land in the Hills Face Zone.
13
Mr Manos argued
that the land use applied for was an element of an overall use which included
the tree surgery business. Mr Manos
argued that the land use applied for, if approved, would form part of a larger
“integrated” use of the land which, although it contained elements of land
uses mentioned in the Development Plan and defined in the Act, did not fall
neatly into one “watertight” compartment, and therefore defied
classification as a non-complying use. Mr
Manos argued that none of the elements of the land use applied for was
sufficiently independent of any other element to be capable of separate
classification.
14
It seems to me
that the only proper approach to the processing of this development application
under the Act is to assess it in the context of the lawfully existing use of the
land. The lawfully existing use of
the land is for a dwelling, and for the parking of two trucks and the storage of
some machinery. In that context, and
in the context of the relevant provisions of the Development Plan, I determine
that the present application is for the change of use of the dwelling on the
land to an office and dwelling, and for the use of the land for an industrial
use, namely the breaking up of tree branches and trunks into firewood with the
use of a wood splitting machine and the drying of that firewood.
I further determine that the kind of industry applied for is general
industry, in that the use of the wood splitting machine will detrimentally
affect the locality because of noise. The
use of the roads in the locality by the laden trucks associated with the
firewood business will also create dust and noise.
It may be that there will also be detrimental visual impact.
Mr Manos argued that there was no evidence of the detrimental impact
required to classify the industry as general industry.
The task of classification of a land use applied for must occur at an
early stage in the processing of an application.
It will often be necessary for some general knowledge and common sense to
be applied to that task, particularly in circumstances, such as here, where the
applicant has not provided a full and frank account of the land use proposed in
the application documents.
15
Even if the tree
surgery business had been a lawfully existing use of the land, I would have
determined that the firewood business was a separate activity comprising, in
terms of the Regulations and the Development Plan an “office and dwelling”
and “general industry”.
Summary and Conclusion
16
The land use
applied for is the use of the land for a firewood business.
The dominant elements of that business are an “office and dwelling”
and “general industry” within the meaning of those terms in PDC 28 of the
Hills Face Zone. The proposed
development is therefore a non-complying kind of development.
17
The appeal is
refused. The decision of the Council
to classify the development proposed in Development Application No.
145/1197/2011 as a non‑complying kind of development is confirmed.