Adelaide Corporation Pty Ltd v City of Charles Sturt - [2008] SASC 260

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ADELAIDE CORPORATION PTY LTD v CITY OF CHARLES STURT
[2008] SASC 260
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Layton)
30 September 2008
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS - INTERPRETATION AND CONSTRUCTION - EFFECT OF CONSENT
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS - INTERPRETATION AND CONSTRUCTION - EXTRINSIC EVIDENCE
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS - INTERPRETATION AND CONSTRUCTION - PARTICULAR CASES
Council granted provisional development plan consent to construction of service station - plans lodged with council and incorporated into consent did not provide for crossover from the premises to an adjoining street - proprietor sought approval for changes to proposed development - letter outlining proposal referred to amendments as 'minor variations' - no reference in letter to inclusion of crossover where explicit reference made to other amendments - consent to amended development plan granted by council subject to conditions including that 'the proposal shall be developed in accordance with the details and approved plans stamped by Council' - council stamped letter and plan - plan included lines which, by architectural convention, indicated a crossover to the adjoining street where none included in former plan - no notation relating to the crossover, although other crossovers included notations - whether consent to amendment included consent to crossover from premises to adjoining street.
Held: Effect of consent to be determined objectively after considering relevant documents - relevant documents included the letter and plan stamped by council as referable to the consent to the amendment and the plan and development application form stamped by the council as referable to the initial development consent - reasonable person would conclude that consent to amendment did not include consent to crossover.
Development Act 1993 (SA) s 33 and s 84, referred to.
Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield [2004] SASC 373; (2004) 137 LGERA 189, applied.

ADELAIDE CORPORATION PTY LTD v CITY OF CHARLES STURT
[2008] SASC 260
Full Court: Doyle CJ, White and Layton JJ

DOYLE CJ: The City of Charles Sturt (“the Council”) granted a Development Plan Consent under s 33 of the Development Act 1993 (SA) (“the Act”) in respect of land owned by Adelaide Corporation Pty Ltd (“Adelaide Corporation”).
The Consent was granted in respect of a proposed development on the land that was described as an “amendment” to a proposed development, in respect of which the Council had earlier granted provisional Development Plan Consent. That earlier provisional Development Plan Consent had been granted in respect of a service station complex, including a car wash and retail outlet. I will refer to it hereafter as a service station.
Adelaide Corporation claims that the proposed development the subject of the Consent includes the construction of a crossover between the land and Jervois Street, an adjoining street. The crossover is one that would permit vehicles to drive from the land on to Jervois Street, and from Jervois Street on to the land.
Adelaide Corporation has constructed the service station, including the crossover.
The Council disputes that the Consent is in respect of a proposed development that includes the crossover. The Council issued an enforcement notice to Adelaide Corporation under s 84 of the Act, requiring it to remove the crossover.
Adelaide Corporation appealed to the Environment, Resources and Development Court (“the ERD Court”) against the enforcement notice. Subject to a minor and irrelevant matter, the appeal was dismissed.
Adelaide Corporation now appeals to this Court.
The issue on appeal is whether, properly interpreted, the Consent is in respect of a proposed development that includes the crossover. In other words, does the Consent embrace or extend to the crossover in question?
A subsidiary issue, on which there appears to be no dispute, is the proper approach to the interpretation of the Consent.
Facts
Adelaide Corporation owns land that lies between Port Road and Jervois Street at Woodville (“the land”).
Adelaide Corporation’s agent lodged a Development Application Form with the Council on 12 May 2004. I will refer to it as “the first application”. The first application described the proposed development as “new integrated service station and office/warehouse”.
Part of the land abuts Port Road, an arterial road. The proposed development is so laid out that it has its frontage to Port Road. Jervois Street is at the rear of the proposed development.
On 20 June 2005 the Council granted Provisional Development Plan Consent (“the first Consent”) in respect of the proposed development. The first Consent was subject to 21 conditions. The first of these conditions stated:
That the proposal shall be developed in accordance with the details and approved plans stamped by Council ...
A plan designated “Site and Floor Plan” was stamped by the Council as referable to the Provisional Development Plan Consent. I will refer to it as “the first plan”. The first plan is dated November 2004, after the first application was lodged with the Council. The first plan shows the land and buildings, other structures, landscaping and other works to be undertaken as part of the proposed development.
Where the land abuts Jervois Street, there is a notation “existing crossover”. The notation refers to an area, marked by broken lines, adjoining the boundary of the land. The plan suggests that there is a crossover at this point between the boundary of the land and Jervois Street. But markings on the first plan indicate that the crossover will not be used because along this part of the boundary, on the land, there will be landscaping.
A short distance along the boundary from the “existing crossover” there is a gap in what appears to be the proposed landscaping along the boundary. On a casual glance the gap suggests that at this point there might be a crossover to Jervois Street. It is not disputed that by convention an architect will indicate the presence of a crossover by drawing two solid lines from the relevant property boundary across any footpath or nature strip to the kerbside of an adjacent street, with a double line delineating the spoon drain or crossover at the kerb line. These features do not appear at this point on the first plan. In addition, there is a notation:
no access to Jervois Street
The notation is written across the gap to which I have referred.
It is clear that the proposed development as described by the first plan does not depict or provide for a crossover between the land and Jervois Street at this point.
At the Port Road frontage the first plan depicts what appear to be two crossovers, one providing for vehicle access to the land, and the other providing for vehicles to depart from the land. They are shown by lines that accord with the architectural convention to which I have referred. One of the crossovers has a notation adjacent to it:
widen existing crossover
The other one has no notation. There is a further notation on this frontage:
close existing crossover
apparently referring to an existing crossover between the two crossovers to which I have already referred.
The documents tendered before the ERD Court include a letter dated 15 September 2004 from the agent for Adelaide Corporation to the Council. The letter indicates that because of objections from neighbours, a proposal to provide access to Jervois Street has been abandoned. However, this letter is not stamped by the Council and so I have no regard to it. There is no need to do so in any event. The notation on the first plan, and the absence of the conventional lines to depict a crossover, make it clear that there is no proposal for a crossover.
With the first application, the agent for Adelaide Corporation lodged a detailed planning report. This has been stamped by the Council as referable to the first Consent. This document contains a statement indicating that access will be provided to the site from Jervois Street. However, as I have indicated, the first plan makes it clear that that proposal was abandoned.
By letter dated 14 May 2007, the agent for Adelaide Corporation lodged a further development application form with the Council in respect of the land. I will refer to this as “the second application”. The second application describes the proposed development as:
Variations to Provisional Development Plan Consent DA No: 252/1182/2004…
This is a reference to the first Consent.
The letter is stamped by the Council and, as will appear, the letter was incorporated into a later Consent granted by the Council.
The letter refers to the first Consent. It repeatedly refers to the second application as one that proposes “minor variations” to the first Consent. The letter states that the “proposed variations” are as itemised in seven bullet points. One of the bullet points is:
Repositioning of the egress fronting Port Road…
Another one is:
Improving other aspects of the design and layout using the latest design standards of the applicant.
The only reference in the letter to Jervois Street or to the Jervois Street frontage relates to the location of the proposed development.
In due course the Council issued a decision notification form stating that on 15 June 2007 it had granted Development Plan Consent in respect of a proposed development which it described as:
Amendment to 252/1182/04.
I will refer to this as the second Consent.
The second Consent is subject to 21 conditions. The first of those conditions states:
That the proposal shall be developed in accordance with the details and approved plans stamped by Council ...
The Court was referred to a “Site Plan” which is stamped by the Council as referable to the second Consent. In the circumstances, it is to be treated as depicting the proposed development referred to in the first condition. A comparison of the first plan with the second plan shows that the second plan incorporates the changes referred to in the letter of 14 May 2007. In addition, there are several changes on the second plan which are not referred to in the letter. They appear to be quite minor.
The second plan discloses, as the letter indicates, that some changes have been made to the crossover on the Port Road frontage. In relation to crossovers on the Port Road frontage, the second plan indicates that there will be two crossovers. Notations are made on the second plan indicating two places where an existing crossover is to be removed, one place where an existing crossover is to be widened and re-made, and one place where a new crossover is to be constructed.
The “existing crossover” on the Jervois Street frontage is again indicated by broken lines. Once again, markings on the second plan that indicate landscaping or groundcover suggest that the existing crossover is not to be used. This is put beyond doubt by a notation which indicates that this crossover is to be removed.
The feature of the second plan that has given rise to the appeal appears on the Jervois Street frontage, in the position where on the first plan, there appears the notation:
no access to Jervois Street
At this position there are now two solid lines from the boundary of the property passing across what appears to be the footpath, with a double line at right angles to these lines. In short, the lines drawn on the second plan appear to indicate a crossover at this position. The lines to which I refer do not appear on the first plan. There is no notation on the second plan relating to this feature of the second plan. The words “no access to Jervois Street” do not appear.
In due course, the agent for Adelaide Corporation obtained building rules consent and then the Council issued a Development Approval. However, both counsel on appeal agree that the outcome of the case turns on the proper construction of the second Consent. There is therefore no need to refer to the later decisions made by the Council under the Act.
The issue before the ERD Court, and before this Court on appeal, arises from the second plan. The issue is whether the Council, by granting the second Consent, that consent being referable to and incorporating the second plan and the letter of 14 May 2007, has approved of a proposed development that includes the provision of a crossover at the Jervois Street frontage.
Interpreting the second Consent
Mr Henry for Adelaide Corporation and Mr Roder for the Council agree that the meaning of the second Consent is to be determined by considering the meaning that a reasonable person would understand it to have, after considering the relevant documents. Neither of them suggests that the answer to the question before the Court turns upon the subjective belief of the agents of Adelaide Corporation or of officers of Adelaide Corporation itself, or upon the subjective belief of the Council officers who dealt with the first application and with the second application.
In Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield [2004] SASC 373; (2004) 137 LGERA 189 I considered how a court should interpret a development authorisation. I said at [42]-[48]:
[42]A development authorisation is a unilateral document issued by the relevant authority. It is not an agreement between the applicant and the authority.
[43]The meaning of a development authorisation is to be determined objectively. The inquiry is as to the meaning that the terms of the authorisation would have to a reasonable person. The meaning of a development authorisation is not determined by inquiring into the subjective intention of the applicant for authorisation or of the relevant authority.
[44]A development authorisation is intended to operate for the benefit of the applicant and subsequent owners of the land. It is an important document, with enduring legal effects.
[45]The primary document is the development authorisation itself. This is the case whether one is dealing with a provisional development plan consent or with a development approval. It is the authorisation (here embracing a consent or an approval) the meaning of which is in question. But usually, perhaps always, a development authorisation will be meaningless without reference to the plans or proposals submitted by the applicant. In principle it must be permissible, when deciding the meaning, scope and effect of a development authorisation, to refer to the plans or other documents constituting the proposal submitted for authorisation. This must be permissible when, as here, the development authorisation makes express reference to those plans, by referring to “details and plans” submitted as part of the application.
[46]To support these basic propositions, it is sufficient to refer to the decisions in Shroff v McSporran (1987) 65 LGRA 33; Stebbins v Lismore City Council (1988) 64 LGRA 132; Tipfast Pty Ltd v South Sydney City Council (2002) 120 LGERA 292; Loreto Normanhurst Assn Inc v Hornsby Shire Council (2002) 122 LGERA 347.
[47]As to other documents, including correspondence between the applicant and the relevant authority, it is not possible to lay down a general rule. Generally, reference to other documents would not be permissible when one is considering the meaning and effect of a development authorisation. It is the authorisation, and documents expressly made part of it, that is to be interpreted.
[48]A practical reason for this approach is that difficulties are likely to arise, with the passage of time, if the meaning of a development authorisation is affected by correspondence and other dealings between the relevant authority and the applicant. In this respect, a development authorisation is rather like an instrument of title. But there may be particular circumstances in which it is permissible to refer to other documents. The fact that a relevant authority has power to request additional documents and information under s 39(2) of the Act, and the fact that a relevant authority may permit an applicant to vary an application under s 39(4) of the Act, may mean that other documentation will on occasions have to be considered when determining the scope and effect of a development authorisation.
Duggan J at [72] and Anderson J at [73] agreed with my reasons.
The submissions in this case proceeded on the basis that my observations in Oakden are applicable to this case.
It is convenient to identify specifically the documents to be considered in deciding the appeal now before the Court.
The first such document is the Development Plan Consent granted on 15 June 2007, the second Consent, which is found in the Decision Notification Form dated 22 June 2007. By virtue of condition 1 of that consent, and because the Council has stamped them as referable to the second Consent, the Court must have regard to the second plan and to the letter of 14 May 2007.
Because the second Consent is an amendment to or variation of the first Consent, the Court must have regard to the first Consent. Having regard to the terms of condition 1 of the first Consent, and to the fact that the Council has stamped them as referable to the first Consent, the Court must have regard to the first plan and to the initial Development Application Form. The planning report that accompanied that application has also been stamped by the Council, and so is a document that could be referred to. The only matters in the report that might be material for present purposes are statements to the effect that Port Road is a primary arterial road, and that the Commissioner of Highways will have to be consulted in relation to access arrangements on the Port Road frontage, and statements indicating that initially Adelaide Corporation proposed to provide access from the site to and from Jervois Street. As I have earlier indicated, that decision was later changed. That change is reflected in the first plan.
I should add that the planning report lodged with the first application, and certain other documents, might be permissible sources of reference were it necessary to make a decision as to details of the proposed development. However, that was not an issue on appeal. The case was argued on the basis that it is sufficient to know that the proposed development was for a service station complex and associated facilities, and that the complex would be operated 24 hours a day.
Consideration of submissions
To decide the question raised on appeal, I begin with the second Consent. I do so because, although this consent is by way of amendment to or variation of the first Consent, the second plan and the letter of 14 May 2007 indicate that the second plan incorporates the amendments or variations and, at least as a starting point, can stand alone. Nevertheless, this is a provisional conclusion only. The fact that the second Consent is a consent to amendments to or variations of the proposed development means that it might be necessary to compare the second plan with the first plan to arrive at a correct understanding of the development the subject of the approval.
It is immediately apparent that the second plan depicts what might be a crossover between the site of the proposed development and Jervois Street. The lines drawn on the second plan, to which I referred earlier, suggest that a crossover is proposed. On the other hand, an inspection of the second plan reveals that text notations are used to indicate what is proposed in relation to existing crossovers, and crossovers to be created or changed as part of the proposed development, in all other situations. There are five such notations on the second plan. The absence of any text notation relating to what might be a proposed crossover between the site and Jervois Street gives rise to a doubt about the meaning or proper interpretation of the second plan in this respect.

A comparison of the first plan with the second plan does not resolve the doubt. There is an obvious difference. The lines on the second plan, which are in accordance with architectural convention and are consistent with a proposed crossover, do not appear on the first plan. The first plan includes a notation in the relevant position, to the effect that there will be no access to Jervois Street. The absence of that notation on the second plan, and the presence of the lines suggesting a crossover, suggest that a crossover is proposed as part of the proposed development. But a perusal of the second plan discloses that text notations are used in relation to existing and proposed crossovers that are affected by or are part of the proposed development, except for the crossover in issue.
It is appropriate then to refer to the letter of 14 May 2007. The first material point is that there is no reference in the letter to a proposed crossover between the site and Jervois Street. The second is that one of the seven bullet points refers to the repositioning of the proposed egress from the site to Port Road. The third is the repeated emphasis on the fact that the changes that are proposed are “minor variations” to the proposed development. The fourth is that one of the bullet points refers to “other aspects of the design and layout” which are unspecified. This might be a reference to the crossover in question.
Whether the second plan is considered alone, or alongside the first plan, the intent (judged objectively) of the second plan is unclear, in relation to whether a crossover is proposed between the site and Jervois Street. The second plan is drawn in a manner which can be interpreted as providing for a crossover at the relevant location. The statement on the first plan that no access is proposed has been removed. But on the other hand, in relation to other existing and proposed crossovers, both the first and the second plan rely on text notations as well as drawings, in accordance with the established architectural convention. The absence of a notation indicating a crossover suggests that the second plan does not propose a crossover to Jervois Street.
I consider that the reasonable person would resort to the letter of 14 May 2007 to resolve the uncertainty as to this aspect of the proposed development indicated by the second plan. That person would take into account the fact that the second Consent relates to a limited number of variations to the development as originally proposed; the fact that those variations are stated to be minor; the fact that there is no reference in the letter to a change to provide for a crossover between the site and Jervois Street, and the fact that there is a specific reference in the letter to changes to the crossovers between the site and Port Road. I consider that the reasonable person would conclude that a change in the proposed development to include a crossover between the land and Jervois Street would have been of sufficient significance to be identified in the letter of 14 May 2007. That conclusion would be based on the fact of the earlier change in the proposed development to exclude a crossover to Jervois Street, and on the fact that the provision of a crossover is likely to be a matter of interest to a planning authority. By this process of reasoning, the reasonable person would conclude that the proposed development does not incorporate a crossover between the site and Jervois Street.
In the alternative, the reasonable person might arrive at the same conclusion by a simpler route. The reasonable person might conclude, from a comparison of the first plan with the second plan, that the plans relating to the proposed development have been prepared on the basis that the proposed treatment of crossovers (existing crossovers and proposed crossovers) is indicated by a combination of text notations and drawings. The absence of any text notation on the second plan indicating a proposed crossover between the site and Jervois Street would lead to the conclusion that none is proposed, even though lines are drawn on the second plan in a manner that could suggest that a crossover is proposed. The reasonable person, on this approach, would reason that, having regard to the manner in which the first plan and the second plan are prepared, it should not be concluded that there has been a change in the proposed development in that respect, absent an affirmative indication by the use of a text notation.
For those reasons, I conclude that, properly understood, the second Consent is a consent in respect of a proposed development that does not incorporate a crossover between the land on which the proposed development is to take place and Jervois Street. It follows that the Judge was right to make the orders that she made.
I have reached my conclusion on a slightly narrower basis than the Judge below. The Judge relied on a letter of 15 September 2004 from the agent for Adelaide Corporation to the Council. That letter has not been expressly incorporated into the first Consent, nor has it been stamped by the Council. It is not necessary to decide whether it is permissible to refer to it. I have not found it necessary to do so. If it is permissible to refer to it, I agree that it tends to support the conclusion reached by the Judge. The Judge also made passing reference to plans submitted for the purpose of obtaining building rules consent. I have not relied on those plans, and I doubt whether it is permissible to rely on them for the purpose of interpreting the second Consent.
Conclusion
I would dismiss the appeal.
WHITE J: I agree that the appeal should be dismissed. I agree with the reasons of the Chief Justice.
LAYTON J: I consider that the appeal should be dismissed, for the reasons given by the Chief Justice.