Our client owned a large industrial parcel of land situated in the Industry / Business (Gepps Cross Gateway) Zone. The site consisted of several large industrial commercial buildings used for manufacturing. In addition a small building with local heritage status was situated in one corner on the main road.
Our brief was to create a separate allotment for this building which was being used by the local Tatar Community. The balance allotment was contracted to a developer for a potential shopping centre.
A subsequent land division application was duly prepared and lodged by our office. Whilst in our opinion the type of development that we were seeking approval for was neither complying nor non-complying, the council nevertheless assessed the application as non-complying. With our arguments presented in the short Statement of Support and the subsequent Statement of Effect, the council planner was supportive of the application and recommended approval.
The application was subsequently refused by the Development Assessment Panel (DAP) at the next meeting on the basis that our proposed division was seeking to formalise an existing non-complying land use.
Having regard to all our previous arguments in support we felt that the DAP refusal was incorrect in their interpretation of the Development Plan, however we had no right of appeal under the Development Act due to the classification by the council as a non-complying development.
Our client was thus placed in a position where a multi-million dollar settlement was put in jeopardy not to mention the continued existing use of the local heritage building by the Tatar Community.
We felt that this was not only an unjust decision by the DAP, but also an erroneous one.
Upon further investigation by our firm we uncovered the “Mercedes College Principle” which up to that time had not been tested in the courts in relation to land division development. This principle (in short) holds that “in the absence of an express provision to the contrary in the Development Plan, developments which seek to continue an existing non-complying use will be treated as a consent or on merit application rather than being classed as non-complying”. With this in mind a second identical application was made with an accompanying supportive legal opinion supported with recent case law: Ellis & Ors v. City of Holdfast Bay and Anor’.
In short the second application was assessed on merit and the DAP reluctantly gave approval. This resulted in the following:
- A multi-million dollar settlement occurred on the balance large parcel thereby not jeopardizing a mooted large commercial and retail development.
- The Tatar Community can now enjoy full unfettered use of the local heritage building.
- In addition, we had a $140,000 SA Water impost waived with our reasonable arguments.
"Thanks to the capable professional handling of the bureaucratic obstacles to the proposed subdivision by Cavallo Forest, the subdivision of the heritage-listed building from the rest of the valuable shopping centre site was achieved on time to proceed with the sale of the land for the purpose of building a shopping centre on the site.
The heritage listed old building has been as a result of the successful subdivision utilised as a Tatar Community Centre for the benefit of the Tatar Community in South Australia.
I commend the professionalism and integrity of Cavallo Forest and strongly recommend them for any entity considering to undertake any project management including land surveying, subdivision and re-zoning work".