Baker v City of Norwood, Payneham & St Peters

BAKER v CITY OF NORWOOD, PAYNEHAM & ST PETERS
[2003] SASC 282
Land and Valuation Division

DEBELLE J The plaintiff resides in a dwelling at 1 Bide Street, Royston Park. His house property adjoins a parcel of land at the corner of Bide Street and Ninth Avenue, Royston Park which is known as 102 Ninth Avenue.
On 11 December 2002 the City of Norwood, Payneham and St Peters (“the Council”) granted provisional development plan consent to a Mr and Mrs Rowan to construct a dwelling and garage on the land at 102 Ninth Avenue. The plaintiff seeks to set aside the grant of development consent on the ground that the Council has wrongly classified the development. The Council had classified the development as Category 1. The plaintiff contends the Council ought to have classified the development as Category 3. The plaintiff seeks two orders. The first is an order in the nature of declaration that the application was not an application for a Category 1 development. The second is an order in the nature of certiorari to quash the decision granting development consent.
Mr Rowan appeared on behalf of himself and his wife at a preliminary hearing of this application. Mr Rowan was asked if he and his wife wished to be parties to the application. He said that they did not. Thus, the only protagonists to the application were the plaintiff and the Council.
The Events Leading to the Application
On 16 October 2002 a dwelling and garage existed on a residential allotment of land at 102 Ninth Avenue. On that day an application was lodged on behalf of the Rowans to demolish the existing dwelling and to erect a larger dwelling and a garage in its place. When constructed, the new dwelling with its attached garage would have occupied almost the whole of the allotment. The garage is to be built on the boundary of the plaintiff’s land. The plans lodged with the application showed that the garage is to be connected to the dwelling by a walkway and a roof over that walkway. The garage is to be 1.5 metres from the road alignment in Bide Street. The plaintiff’s dwelling is set back some 7.7 metres from the road alignment. Thus, the garage is to be substantially closer (some 6.2 metres) to the road alignment than the plaintiff’s dwelling.
The Council classified the proposed development as Category 1. Although not required by s 38 of the Development Act 1993 to do so, on 31 October 2002 the Council gave informal notice of the development application to the plaintiff. On 14 November, after inspecting the plans, the plaintiff lodged a representation objecting to the proposed development on a number of grounds including that the garage was too close to the boundary in Bide Street, that the garage was to be constructed on his boundary, and that it would cause considerable overshadowing of his dwelling and land. Although the plaintiff had lodged a representation, he had no right to be heard nor any right to appeal from the Council’s decision to the Environment Resources and Development Court: sub-sections (3) and (10) of s 38 of the Development Act.
On 12 November the plaintiff wrote to the Council asking on what basis the Council had determined that the proposed development should be classified as Category 1.
Thereafter, the plaintiff contacted the Council on several occasions in November and December 2002. On 13 November he was informed that the Rowans intended to vary the plans to reduce the garage to a two-car garage. On 20 November the plaintiff wrote to the Council seeking to amend his earlier representation.
On 28 November the amended plans were lodged with the Council on behalf of the Rowans. The plans showed a garage reduced in size from a three to a two-car garage. In addition, the garage was now freestanding and separate from the proposed dwelling. The garage was one metre shorter in length. The proposed garage was still to be erected only 1.5 metres from the road alignment and was to be erected on the plaintiff’s boundary. Section 39(4) authorises a planning authority to permit a variation of an application for development consent provided that the variation does not change the essential nature of the development. It is not suggested that the amended plans changed the essential nature of this development.
On 6 December the plaintiff inspected the amended plans and on 9 December he lodged a further representation voicing strong opposition to the proposed development.
The plaintiff also instructed Manos & Associates, solicitors, to write to the Council on his behalf. On 10 December that firm sent a letter by facsimile transmission to the Council submitting that the proposed development should be classified as Category 3. It asked that the proposal be reclassified and that public notice of the proposal be given.
On 11 December an officer of the Council, exercising delegated power, granted provisional development plan consent to the application. It is that decision which the plaintiff seeks to quash.
It is quite apparent from the above summary of the events leading to this application that in conversations and in correspondence with the Council, the plaintiff had made it clear to the Council that he had serious concerns with the proposed development and, in particular, with the size, form and location of the proposed garage.
Rights of Objection
Section 38 of the Development Act 1993 prescribes the rights of objection by members of the public to a proposed development. It states the circumstances in which a right of objection exists and, if it does, the extent of that right. Rights of objection depend on the category of the proposed development. The Act prescribes three categories which are designated as Categories 1, 2 and 3. The category into which a development may fall is prescribed by either or both the provisions of the relevant Development Plan and the provisions of the Development Regulations 1993. By this means, a development is classified as either a Category 1 or 2 development. If the development does not fall into either Category 1 or 2, it is deemed by s 38(2)(b) of the Act to be a Category 3 development. The statutory régime is explained in detail in Polites v City of Holdfast Bay (No 2) (1998) 72 SASR 475 at 478 – 479.
For present purposes, it is sufficient to note that there is no right to make representations objecting to a proposed Category 1 development. It is common ground that the proposed development in this case is not a Category 2 development. In the case of a Category 3 development, notice must be given to the public and to persons directly affected by the development. Those who have received notice and members of the public have the right to make representations to the relevant planning authority objecting to the proposal, to be heard by the planning authority in respect of those representations and, if development consent is granted, to appeal to the Environment Resources and Development Court. The plaintiff seeks to establish that the proposed development is a Category 3 development thereby having an entitlement to object to the proposal and, if development consent is granted, to appeal to the Environment Resources and Development Court. He asserts that the Council erred in classifying the proposed development as Category 1.
Which Category?
All decisions concerning this development were made by a planning officer employed by the Council acting pursuant to delegated authority. As the planning officer was acting on behalf of the Council, I will describe the decisions as being made by the Council.
In order to determine into which category the proposed development falls, it is necessary to examine both the Development Plan and Schedule 9 of the Development Regulations.
The subject land is within a Residential 1 Zone as prescribed by the Council’s Development Plan. Principle 3 of the Principles of Development Control for that zone provide that a detached dwelling is a complying development if it complies with the conditions prescribed in Table NPSP/1. The conditions prescribed by Table 1 include:
(1) that the dwelling does not exceed one storey in height; and
(2) that the dwelling is not a replacement for an existing dwelling.
Part of the dwelling has a second storey and the dwelling will replace an existing dwelling. The proposed development, therefore, fails to satisfy each of those requirements and is, thus, not a complying development.
Principle 4 prescribes that a detached dwelling is a complying development if, among other things, the building is not erected nearer than eight metres to the boundary of any road and it complies with the conditions prescribed in Table NPSP/2. The conditions prescribed by Table 2 include:
(1)that any building (excluding swimming pools and gardening structures), does not occupy more than one-third of the site; and
(2)that the dwelling is not a replacement for an existing dwelling.
On the frontage to Bide Street the dwelling is well within eight metres of the road boundary and the proposed dwelling occupies more than one-third of the site. As already mentioned, the proposed dwelling will replace an existing dwelling. The proposed dwelling does not satisfy any of the above conditions. Thus, for these additional reasons, the proposed development is not a complying development as prescribed by the Development Plan.
The Development Plan and the Development Regulations prescribe that certain developments are complying developments and others are non-complying developments. Thus, the fact that a development is not a complying development does not mean that it is a non-complying development.
It is also necessary to consider Schedule 9 of the Development Regulations which assigns categories to forms of proposed development. The operation of Schedule 9 is subject to the classification of any form of development by the relevant Development Plan. For present purposes, it is necessary to consider only para 1 and para 2(1)(a) and 2(1)(f) of Part 1 of Schedule 9. They provide:
“       1. Any development classified as a complying development under these regulations or the relevant Development Plan, or which would be a complying development if it were it (sic) to meet the conditions associated with the classification where the failure to meet those conditions is, in the opinion of the relevant authority, of a minor nature only.
2. (1) Except where the development is classified as non-complying under the relevant Development Plan, any development which comprises—
(a)    the construction of any of the following (or of any combination of any of the following):
(i)     one or more detached dwellings;
(ii)    one or more single storey dwellings;
(iii)one or more sets of semi-detached dwellings, provided that no such dwelling is more than two storeys high;
(iv)three or more row dwellings or one or more additional row dwellings, provided that no such dwelling is more than two storeys high; or
…
(f)     a kind of development which, in the opinion of the relevant authority, is of a minor nature only and is unlikely to be the subject of reasonable objection from the owners or occupiers of land in the locality of the site of the development.”
Although the proposed development is not a complying development as prescribed by the Development Plan, no decision was made in accordance with para 1.
Paragraph 2(1)(a) classifies a detached dwelling as a Category 1 development. The proposed development was a dwelling and an attached garage. If the expression “detached dwelling” includes a garage, the Council correctly classified the development as Category 1. If it does not, a number of questions arise. Is the application of one development comprising a dwelling and garage or is it an application for two separate kinds of development, albeit on the one allotment, namely, a dwelling and a garage? In addition, issues under para 2(1)(f) need to be considered. I deal first with the question whether “detached dwelling” when used in these regulations includes a garage.
In these days when most people own a motor vehicle, a garage is an ordinary concomitant of a dwelling. It is a use which is incidental or ancillary, albeit important, to the use of a dwelling. However, para 2(1)(a) refers only to a detached dwelling. It does not refer to a detached dwelling as well as to other buildings which might be used for purposes which are ancillary or incidental to the use of a detached dwelling. As will have been noticed, none of the other kinds of dwellings listed in para 2(1)(a) refer to uses which are ancillary or incidental to those different kinds of dwellings.
The Development Regulations define the terms “detached dwelling” and “dwelling” in these terms:
“ ‘detached dwelling’ means a detached building comprising one dwelling on a site that is held exclusively with that dwelling and has a frontage to a public road, or to a road proposed in a plan of land division that is the subject of a current development authorisation;
‘dwelling’ means a building or part of a building used as a self-contained residence;”
Neither definition includes anything other than the dwelling itself. The expressions “semi-detached dwelling” and “row dwelling” are also defined. The definitions do not extend the meaning of those expressions to include a garage or other outbuildings.
The definition of a “detached dwelling” in the Development Regulations is to be contrasted with the definitions of “detached dwellinghouse” and “dwellinghouse” which appeared in the Planning Regulations made under the repealed Planning and Development Act 1966, and which applied in each council area within metropolitan Adelaide.
“ ‘detached dwellinghouse’ means a detailed building comprising one dwellinghouse.
‘dwellinghouse’ means a house designed for use as a dwelling by one occupant or family together with such outbuildings as are ordinarily used therewith, and occupying an allotment or plot of land held exclusively with the dwellinghouse but does not include a flat or multiple dwelling.”
The striking aspect of this comparison is the absence from the existing definition of any reference to outbuildings ordinarily used with a dwelling. The regulations also defined a semi-detached dwelling and a row dwelling in a way which referred back to the definition of a dwelling house and so included outbuildings ordinarily used with those kinds of development. In my view, the consequence is that the expression a “detached dwelling” in Schedule 9 means a dwelling house only and does not include garages even though they are outbuildings ordinarily used with a detached dwelling. Although the clear intention of para 2(1)(a) of Part 1 of Schedule 9 is that dwellings should be a Category 1 use, where the application is for other outbuildings which do not constitute sundry minor operations within the meaning of Schedule 3, the application is not a Category 1 development.
There are other provisions in the Development Regulations which reinforce this conclusion. Schedule 3 lists activities which do not constitute development and do not, therefore, require development consent. They include what para 4 of Schedule 3 calls “Sundry Minor Operations”. Sundry minor operations include an outbuilding (other than in certain prescribed zones which, for present purposes, are not relevant) which is detached from any other building and has an area not exceeding 10 square metres and of which no part is higher than 2.5 metres above the natural surface of the ground. That area might be sufficiently large to accommodate a small garage for one small car but it is certainly less than the area of most garages. It certainly would not include the garage in this proposed development. The list also includes swimming pools, fences, retaining walls and other structures normally associated with the use of a dwelling provided they do not exceed the dimensions prescribed in the Schedule. Thus, the approach of the present planning régime is to deem that certain activities are not development provided they are less than a prescribed size. That approach contrasts with the earlier planning regulations where the definition of “detached dwelling” included certain outbuildings. In other words, the fact that para 4 of Schedule 3, when prescribing minor operations which do not constitute development, limits outbuildings to certain dimensions points to the conclusion that a garage with an area in excess of 10 square metres is a development and is to be treated as such. I realise that this approach may lead to difficulty when dwellings other than detached dwellings in para 2(1)(a) fall for consideration. However, the provisions of para 4 of Schedule 3 preclude any other conclusion.
There are policy reasons which justify this conclusion. A garage must be treated separately from a dwelling. There is no single form of garage. Plainly, they vary in size, shape and bulk. They also vary in the location on the site. The present proposal provides an example of how they can vary in size, in this case from a three-car garage to a two-car garage. Many house properties have a garage for one car only but, more frequently, garages are large enough to accommodate two cars. The location of garages also varies. Some are at the rear of the dwelling, others are on the side, and others elsewhere on the allotment. Thus, it was necessary for the Council to consider the overall development, namely, the dwelling and the garage and to determine whether, when viewed together, the dwelling and the garage were of a minor nature only.
The Development Plan and the Development Regulations refer to kinds of development which include a number of different uses. In those cases, it is often necessary to determine the dominant use. For example, a petrol filling station may include a shop and office as well as the petrol filling facilities but it is quite apparent that the dominant use is as a petrol filling station and not some other form of development. Similarly, a warehouse may include an office but, because the dominant purpose is a warehouse, it will, for the purposes of assessing whether development consent should be granted, be regarded as a warehouse and not as some other kind of use: see Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 and Minister of Environment and Planning v District Councilof Stirling (1990) 53 SASR 505. However, that principle does not assist, particularly by reason of the fact that para 4 of Schedule 3 expressly deals with outbuildings associated with a dwelling. The problem of classification is addressed for some other uses of land by the Development Regulations defining the use of land or buildings as being “primarily” for a specified purpose. See, for example, the definitions of restaurant, road transport terminal, and shop. However, that fact does not assist. Instead, it emphasises the present difficulty.
Paragraph 5 of Schedule 3 does not assist. It also lists uses which will not be regarded as development. However, para 5 is concerned with uses of land and of buildings that have been lawfully erected. It is not concerned with grants of development consent for the erection of buildings.
For all of these reasons, I think that the definition of “detached dwelling” refers to a dwelling only and not to ancillary or incidental buildings or uses. Thus, where a proposed development comprises a dwelling and a garage which exceeds 10 square metres, it is not a Category 1 use.
The development application was made for a detached dwelling and garage. That was not a use which was listed as a Category 1 use in Schedule 9. It is not a complying use under the Development Plan. It was, therefore, a Category 3 use. If it were necessary to determine the question, I believe that the initial proposal was also for a detached dwelling and garage.
The Council has failed to advertise the proposed development. It has, therefore, failed to act in accordance with the procedures prescribed by s 38 of the Development Act. It is therefore necessary to quash the decision of the Council granting provisional development plan consent.
Another Issue

There is another ground on which to quash the grant of development consent. The Council proceeded on the footing that there were two developments, one of which was a detached dwelling and the other a garage. The Council’s planning officer determined that the detached dwelling was a Category 1 development. She then determined that the garage should be considered as a separate development from the detached dwelling and proceeded to consider the issues under para 2(1)(f) of Schedule 9. That was not the correct approach. At all times, the application was for one development consent for both the house and garage. It was one development, not two. Paragraph 2(1)(f) is not intended to enable planning authorities to break a development down to its component parts.
As already mentioned, the Council’s planning officer took the path that the garage was to be considered as a development separate and apart from the dwelling so that it was necessary to consider the issues under para 2(1)(f). The planning officer, therefore, had to determine whether the garage was of a minor nature only and unlikely to be the subject of reasonable objection. On any view, it was not a development of a minor nature. It was a substantial two-car garage with a pitched roof. It had an area of some 56 square metres. The fact that it was not a development of a minor nature is emphasised by the list of “Sundry Minor Operations” in Schedule 3 to which I have already referred.
I turn to the question whether the intended garage was unlikely to be subject of reasonable objection. The garage was to be built 6.2 metres closer to the road alignment than the plaintiff’s house. It infringed the setback requirements which it contained in the Council’s Development Plan. In addition, it would cause some overshadowing of a portion of the plaintiff’s land. The lack of set-back and the overshading would cause a loss of amenity to the plaintiff and would, therefore, be the subject of reasonable objection.
There is, therefore, another ground for deciding that the proposed development was not a Category 1 development.
A Footnote
It is important that councils and their planning officers be aware of the limits of their duties when considering whether para 2(1)(f) of para 1 of Schedule 9 applies to a particular development. I refer to planning officers as they will, in all likelihood, be acting as delegates of the council.
All that is necessary to determine is whether the development is minor and is unlikely to be the subject of reasonable objection by a neighbour or any other person in the locality. When making that determination, the council or its planning officer is not required to determine whether the objection should succeed. Indeed, if they did so, they would be acting in excess of their powers. They must go no further than decide the likelihood of a reasonable objection. In addition, they must determine that it is unlikely that a reasonable objection would be made. That requires that they determine whether it is improbable that a reasonable objection will be lodged. Expressed another way, they must decide whether in all probability a reasonable objection will not be lodged. That is a fairly high onus to discharge. The persons most likely to be affected by a proposed development are those who own or occupy adjacent land or land very close to the development. There will be many forms of development which, in all likelihood, would have some feature which will give rise to reasonable objection from at least one neighbour.
The other task for the council and its planning officer to consider at this stage is whether a reasonable objection is unlikely. The adjective “reasonable” signifies a rational objection as distinct from an irrational or vexatious or frivolous objection. Thus, they must decide whether there are aspects of the proposed development which might lead to an objection which could not be classified as irrational, vexatious or frivolous. I repeat, the task at this stage is not to decide whether the objection would succeed but, instead, to decide whether it is reasonable. In short, it is not the role of the council or the planning officer at this stage to act as some kind of arbiter between the developer and the objector. The role is simply limited to determining the likelihood of a reasonable objection. The council does not consider whether the objection should succeed until it is deciding whether or not to grant development consent. If the proposed development is not minor and the council or its planning officers believes it likely that it will be the subject of reasonable objection, they must classify it as Category 3.
In this case there are grounds for concluding that the defendant Council’s planning officer went further than deciding whether it was unlikely that a reasonable objection would be lodged. The evidence suggests that she herself decided whether the plaintiff’s objection was reasonable. That was not her role. However, the matter was not argued and I do not decide the application on that point.
Law Reform
The current régime for regulating the grant of development consent for dwellings of all kinds and outbuildings ordinarily incidental to the use of a dwelling requires reconsideration. The terms in which Schedule 9 is expressed have some unsatisfactory aspects and these have led to difficulties which have had to be resolved in this Court. It is plainly desirable that the process should be as simple and as straightforward as possible. At the same time, it is necessary to have regard to the reasonable interests of neighbours. There is a trend for dwellings to occupy a much larger proportion of a residential allotment than hitherto. This causes a greater likelihood that neighbours will be adversely affected by a dwelling on adjoining land. While any régime must be straightforward, it should, at the same time, recognise the reasonable concerns of neighbours and provide a means by which neighbours should be able to enforce reasonable objections.
Conclusion
For the reasons expressed above, the proposed development was a Category 3 development. The Council has failed to act as required by s 38 of the Development Act. It follows that the provisional development plan consent granted on 11 December 2002 must be set aside.

[2003] SASC 282

21 August 2003