Farmers market determined to be a “group of shops” by the ERD Court

27 January 2016

Late last week, the ERD Court delivered judgment in the case of Johnston v City of Salisbury & Anor [2016] SAERDC 1.  This appeal case concerned a Category 3 development application for a farmers market to be operated twice per week for a number of hours within the car park of a hotel.  In the relevant Zone, “a shop or group of shops” is a non-complying form of development.  The Council determined the application to be for a “merit” form of development.

The definition of “shop” in Schedule 1 to the Development Regulations 2008 (“the Regulations”) includes, relevantly, premises used primarily for the sale by retail, rental or display of goods, foodstuffs, merchandise or materials”.  The Council formed the view that “premises” was something more than bare land upon which tables and marquees are temporarily located.  Rather, premises need to be permanently identified and/or distinguished through permanent fencing, barriers, signage or other means.

The Court agreed with the Council’s finding that the use of the term “premises” in the definition of “shop” meant something more than bare land.  However, the Court found that each market stall area within the farmers market, being a defined area upon which tables, marquees and other temporary structures were located, was sufficient to constitute individual “premises” and, therefore, each was a “shop”.

In arriving at this finding, the Court had regard to a previous Full Court decision of Skaventzos v Vander-Lee (1974) 9 SASR 342.  That decision concerned two modified caravan structures which were connected to power and phone lines used for the purposes of a fruit and vegetable stall.  In the Regulations under the Planning and Development Act 1966 in force at the time, the definition of “shop” excluded roadside stalls.  The question before the Full Court was whether the caravan structures constituted development.  The Court, in that case, found that the structures constituted buildings and, therefore, required approval.

The ERD Court found that the current definition of “shop” in the Regulations, by not excluding “roadside stall” or other forms of market stall, includes such activities.  As such, each individual stall within the proposed development was found to be a “shop”.  Therefore, the proposed development was found to be a “group of shops” and, therefore, a non-complying form of development.

The development approval issued by the Council was quashed and the application remitted to the Council to be processed as a non-complying development application.

If you have any questions please contact Victoria Shute  on 08 8113 7104 or by email at  vshute@kelledyjones.com.au