The end of the line for a controversial OTR proposal

Shahin Enterprises Pty Ltd v Development Assessment Commission [2019] SASCFC 44

On 6 May 2019 the Full Court of the Supreme Court (Supreme Court) potentially ended the fight of Shahin Enterprises Pty Ltd (Shahin) to secure Development Plan consent for a controversial service station complex on the corner of Kensington Road and May Terrace in Kensington Park.

The Environment, Resources and Development Court (ERD Court) had originally refused Development Plan consent for the proposal, primarily for reasons concerning amenity and traffic impacts generally symptomatic of an overdevelopment of the subject site.

Shahin then appealed that decision to the Full Court of the Supreme Court, who dismissed the appeal on all grounds.

The subject site was situated within the Neighbourhood Centre Zone Policy Area 1 of the City of Burnside Development Plan (consolidated 28 April 2016) (Development Plan). PDC 1 of Policy Area 1 provided that development should comprise small scale development which, amongst other things, has minimal impact on the free flow of traffic on Kensington Road and has minimal impact on the residential premises within the locality.

The ERD Court had held that contrary to PDC 1 the proposed development was not small in scale; would impact on the amenity of the residential premises in May Terrrace; and would not have a minimal impact on the free flow of traffic on Kensington Road. Further, the ERD Court found other problems with the design of the proposal, including the difficulties a fuel tanker would encounter in passing between vehicles parked on both sides of May Terrace.

The appeal and reasons given by the Supreme Court extended into many areas, however the main grounds are discussed briefly below:

Shahin argued before the Supreme Court that the ERD Court had erred in finding that the proposal detracted from the amenity of residences within the locality, because many of the residences considered would not have a direct line of sight to the proposed complex. The Supreme Court held that the ERD Court had not erred in making that finding, because the concept of amenity was not restricted to that perceived from within the boundary of those residences, but included that perceived by occupiers of those residences whilst travelling up and down the street, to and from those residences.

The ERD Court found that at peak periods the proposal would result in the queuing of vehicles seeking access to bowsers. That queuing would take the form of vehicles temporarily parking over footpaths, in contravention of the Australian Road Rules. It would also result in queuing on Kensington Road, with the potential for drivers to then reverse back onto Kensington Road in order to abandon the queue. The ERD Court found that these results were unacceptable. Shahin contended on appeal that the ERD Court had erred in reaching these findings. The Supreme Court found that the ERD Court had not erred, in that the queuing on Kensington Road would affect the free flow of traffic on that road. It also held that the unlawful act of queuing across the footpath on May Terrace to enter the premises would not be “independent” unlawful conduct by drivers, but rather a consequence of the proposed complex “beckoning” drivers to enter.

Shahin also appealed on the ground that the ERD Court had failed to consider the opinion of its traffic expert that the proposal did make adequate provision for the egress of a fuel tanker onto May Terrace. The ERD Court had preferred the expert traffic evidence of the 2nd and 3rd Respondents, that the tanker would not be able to comply with the turning path required in the relevant standard; the tanker may need to mount the footpath to complete the turn; and if parking of vehicles continued in an unrestricted manner on May Terrace, then those vehicles may prevent the tanker from exiting onto May Terrace. The Supreme Court found that the ERD Court’s reasons where not inadequate and it was open for the ERD Court to rely upon the traffic evidence of the Respondents. In coming to this conclusion, it found that Shahin’s traffic evidence had been based on an incorrect premise that the tanker was merely “getting close to” or perhaps impinging marginally on the 300 mm clearance required under the standard and placed weight on the fact that Shahin had chosen not to recall its expert to clarify its evidence. However, the Supreme Court also found that, in any event, the ERD Court’s determination of this issue was not critical to the disposition of that appeal.

In conclusion, the Supreme Court dismissed Shahin’s appeal on all grounds. Shahin will need to reconsider its proposal, the appropriateness of the subject site or possibly an appeal to the High Court of Australia should it wish to continue in its efforts to construct a service station complex on the corner of Kensington Road and May Terrace in Kensington Park.