Budarick v District Council of Elliston

BUDARICK & ANOR v DISTRICT COUNCIL OF ELLISTON & ANOR
[2001] SASC 184
Land and Valuation Division

DEBELLE J. This is an application for judicial review of a decision of a Council granting development approval to the erection of a dwelling which involved the placing of a substantial amount of filling on land. The application was heard on 14 May 2001. At the completion of the hearing I stated my decision save for the question of costs. I said I would publish reasons. These are the reasons.
The plaintiffs, Mr and Mrs Budarick (“the Budaricks”), own a holiday house at Venus Bay on Eyre Peninsula. Venus Bay is a township within the area of the District Council of Elliston (“the Council”). It is zoned Country Township by the Development Plan which applies to the Council area. The Budaricks’ house is about 150 to 200 metres from the coastline and until February 2000 enjoyed sweeping views over Venus Bay.
The second defendants, Mr and Mrs Lamkin (“the Lamkins”), own a block of land adjacent to the Budaricks’ house at Venus Bay. The land owned by the Lamkins is a larger allotment than the land owned by the Budaricks. Both parcels have a frontage to Sandham Street, Venus Bay. The level of the allotments falls towards the sea from the frontage to Sandham Street.
An Application to Fill Land and Erect a Dwelling
On 6 December 1999 the Lamkins lodged an application with the Council to construct on their land what the application described as a “private dwelling”. The plans lodged with the application showed the application was, not only to erect a dwelling but also, to introduce a substantial amount of filling on to the land. The filling was intended to level almost the whole of the Lamkins’ land to the same level as the level at the front of the land. In other words, instead of the land sloping down to the rear, it was to be filled to about the same level as the front of the land. On the hearing of this application, it was common ground that in excess of 600 cubic metres of filling was to be used. The dwelling was to be a transportable dwelling.
Council Grants Development Approval
The Council dealt with the application on the footing that it was for a Category 1 development. It, therefore, did not give notice of the intended development to any person. The minutes of the Council disclose that the Council was aware of the intended filling. It approved both the erection of the dwelling and the filling at its meeting on 22 December 1999. It orally informed the Lamkins of the decision on either 22 or 23 December. By notice dated 14 January 2000, the Council gave the Lamkins written notice that development approval had been granted. The nature of the development was described as “Transportable Dwelling”. The Budaricks were entirely unaware either that the development was intended or that it had been approved.
On 7 February 2000 the filling of the Lamkins’ land began. It was completed on 18 February 2000. On 20 February 2000 the transportable dwelling was delivered and erected.
The Budaricks Complain to Council
The Budaricks first became aware of the intended development when they visited their holiday house on 18 February 2000. They saw the mound of earth on the Lamkins’ land. Mr Budarick spoke to Mr Lamkin who told him that he had been granted approval to fill the land and construct a dwelling.
On 20 February 2000 Mr Budarick spoke to the chairman of the Council and was informed that development approval had been given for the house and filling. The same day, the transportable dwelling was placed on the land.
On 21 February 2000 Mr Budarick spoke to Mr Gregory, who was then the development services officer of the Council. Mr Gregory confirmed the grant of development approval. Thereafter, Mr Budarick was frequently in touch with the Council, either by speaking to officers or members of the Council at the Council offices or on the telephone or by writing. It is unnecessary to set out all the details. The following are the more significant events.
On 3 March 2000 the Council wrote to the Budaricks providing some information about the application and development approval.
On 5 March 2000, dissatisfied with the Council’s letter, Mr Budarick wrote a long letter to the Council which ended with a request to reduce the level of the building and relocate the Lamkins’ dwelling on the site. Over the next few weeks Mr Budarick continued to speak with Council officers and, in particular, Mr Gregory, raising various issues about the development.
The Council engaged planning consultants, Connell Wagner, to report upon the fill and the dwelling. By letter dated 20 April 2000, Connell Wagner raised a number of questions, one of which was whether the application was correctly treated by the Council as a complying development. Mr Budarick received a copy of that letter when he met the chief executive officer of the Council on 26 April.
On 28 April Mr Budarick met the Council’s environmental development assessment manager, Mr J Heinen, on the site and inspected the development. Mr Heinen informed him that, in his opinion, the development should not have been assessed as a complying development and that Mr Budarick should appeal to the Environment Resources and Development Court (“the Environment Court”).
On 1 May Mr Budarick spoke to the Registrar of the Environment Court and enquired whether he could appeal against the grant of development approval. He was informed that the time in which to appeal had expired. I add that, in any event, as the Budaricks had not received notice of the intended development, they had no right of appeal to the Environment Court: s 38 of the Development Act 1993.
On 1 May 2000 Mr Budarick again wrote to the Council expressing his concerns about the development and asking that the Council reconsider the matter and require the fill to be lowered and the Lamkins’ dwelling to be re-sited. On 12 May Mr Budarick again met Mr Heinen. By letter dated 17 May, the Council responded in a non-committal way to Mr Budarick’s letter of 1 May. During the month of May Mr Budarick continued to speak to members and officers of the Council about the development. By letter dated 29 June 2000, the Council effectively informed Mr Budarick that it was not prepared to accede to his requests.
On 6 July Mr Budarick wrote to the Environment Defenders Office (“the EDO”) and sought advice. On 19 July he spoke to an officer of the EDO. On 28 July he received written advice from the EDO. The content of that advice has not been proved. On being advised by the EDO, the Budaricks discussed the matter on many occasions between themselves.
On 15 August Mr Budarick wrote to the EDO requesting further advice. He received a reply on 5 September suggesting he obtain legal advice. On the same day he had received advice from Messrs Manos and Associates, solicitors, who were acting for him. There is no evidence when the Budaricks first instructed Manos and Associates. The Budaricks themselves again discussed the matter. They decided to institute legal proceedings. This application for judicial review was issued on 1 October 2000.
Mr Budarick’s unchallenged evidence is that, between 18 February 2000 and 1 October 2000, he and his wife have had telephone conversations with the following persons on the number of occasions indicated for each.
Elected members of Council - 19 occasions.
Council staff - 27 occasions.
Members of the Venus Bay Progress Association - 3 occasions.
The Ombudsman - 4 occasions.
The office of Mrs Liz Penfold, Member for Flinders - 4 occasions.
The EDO - 5 occasions.
The Local Government Association, Planning SA, Building Control Branch, Public and Consumer Affairs - 9 occasions.
Delay in Issuing Proceedings
Rule 98.06 of the Supreme Court Rules provides:
“Subject to any enactment, or order of the court granting an extension of time, a summons for judicial review must be issued within six months from the date when grounds for the review first arose, and shall in all cases be made as promptly as possible.”
The Budaricks are therefore out of time in instituting this application. The court has a discretion to extend the time. In my view, the appropriate course is to extend the time within which to commence the proceedings to 1 October 2000. Delay may, nevertheless, be relevant to the question whether the Budaricks are entitled to the relief they seek. Even though a party is able to demonstrate that a development approval has been improperly obtained, the court, nevertheless, has discretion whether to quash the grant of development consent. Delay will be a factor relevant to the exercise of the court’s discretion to grant such relief.
The Filling is Development
The Budaricks contend that the Council has improperly handled the application for development approval. The resolution of that question turns on the proper classification of the development for which the Lamkins sought development approval. It is necessary to consider the definitions of “development” and “building work” in s 4 of the Development Act. The term “development” is defined to mean, among other things, building work. The expression “building work” is in turn defined and means:
“work or activity in the nature of–
(a) the construction, demolition or removal of a building; or
(b)the making of any excavation or filling for, or incidental to, the construction, demolition or removal of a building; or
(c)any other prescribed work or activity,
but does not include any work or activity that is excluded by regulation from the ambit of this definition”.
It will be noticed that the three arms of this definition are expressed disjunctively. Any one of them will constitute building work. Clearly, the construction of the house was building work and, therefore, development. By reason of the definition of “building work” the introduction of filling on to the site, which was incidental to the erection of the building, was also building work and hence development. There are obvious policy reasons why excavation and filling, which is incidental to the construction of a building, should be classified as development. The excavation could in some instances be quite large and bring with it the risk of subsidence of adjoining land. For its part, filling could cause problems with storm water drainage or washing of soil on to the adjoining land.
Because the introduction of the filling is development, development approval must be obtained: s 32 of the Act. The Council’s minutes disclose that it was aware that it was required to grant development approval to both the dwelling and the filling.
A Category 3 Development
The Council was also required to determine whether it should give public notice of the development pursuant to s 38 of the Act and that question turned on the category of the development. The construction of a dwelling in the Country Township Zone in Venus Bay is a complying development provided it complies with certain conditions. It is common ground that the erection of the Lamkins’ dwelling was a Category 1 development and hence the Council did not have to give notice of the development.
The Budaricks contended that the filling should be regarded as a separate development and that the development was a Category 3 development so that public notice should have been given and, in particular, notice given to them. For its part, the Council contended that the whole project, that is to say, the introduction of the filling and the construction of the dwelling was one development and that it was a Category 1 development which did not require public notice. The Council’s submission does not, I think, have due regard to the disjunctive manner in which the definition of building work is expressed and to the fact that excavation and filling, which is incidental to the construction of a building, is also defined as development.
There may be two ways in which the overall development of the Lamkins’ land by the erection of the dwelling and the introduction of the filling can be considered. Either it is one project which involves two features, both of which constitute development and require approval, or it is two developments, both of which require approval. For the reasons which follow, it would be apparent that, however regarded, the classification of this development will be for all practical purposes to be the same.
The classification of development into Categories 1 and 2 is effected by the combined operation of Regulation 32 and Schedule 9 of the Development Regulations 1993. Part 1 of Schedule 9 prescribes developments which are Category 1. Part 2 of the Schedule prescribes Category 2 developments. The filling of land as an incident of the construction of a building is not expressly provided for in either Part 1 or Part 2 of Schedule 9. By reason of s 38(2) of the Development Act, the filling is, therefore, a Category 3 development. Thus, if the project consists of two developments, the construction of the dwelling is a Category 1 development and the filling is a Category 3 development. Public notice will have to be given of that part of the project which is a Category 3 development. A representation opposing the filling is effectively a representation opposing the development.
The same result is reached if the development is regarded as one project with two separate aspects of development. It is then a dwelling with a substantial amount of filling and, as such, does not come within any of the forms of Category 1 development listed in Schedule 9. It will be a Category 3 development and, again, public notice will have to be given.
This conclusion does not mean that on every occasion on which the construction of a building involves even a small excavation or the slightest amount of filling it is necessary for the development to be classified by the relevant planning authority as a Category 3 development. Very frequently, the construction of a building will require some degree of excavation or filling. The Development Regulations expressly provide the means to avoid all excavations and fillings being classified as Category 3 developments. The relevant provision is para (f) of Item 2 of Part 1 of Schedule 9. It reads:
“(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.”
In many cases, the excavation or filling will qualify as development of a minor nature which will be unlikely to be the subject of reasonable objection. It will thereby be classified as a Category 1 development. Planning authorities should note that both limbs of para (f) must be satisfied, that is to say, the development must be both of a minor nature and must be unlikely to be the subject of reasonable objection for the owners or occupiers of land in the locality of the proposed development. If both are not satisfied, the excavation or filling should be classified as a Category 3 development.
The filling on the Lamkins’ land cannot, in any sense, be described as being of a minor nature only. That is readily apparent from the photographs tendered by the Budaricks and by the Council. It results in a very large mound on the Lamkins’ land. It contains in excess of 600 cubic metres of filling. In addition, it is likely to be the subject of reasonable objection from owners or occupiers in the locality because of its size, the problems which it might cause for storm water drainage, the risk of filling sliding on to adjoining land, and the fact that any dwelling constructed on this mound will block views of some neighbours. It does not in any respect qualify as a Category 1 development.
As the development proposed by the Lamkins is a Category 3 development, the Council was required by s 38(5) of the Development Act to give public notice of the development and, in particular, to the Budaricks as adjoining owners. The Council failed to do so, with the consequence that the development approval granted to the Lamkins is liable to be set aside.
The Court’s Discretion
The Budaricks seek orders in the nature of declarations as well as an order in the nature of certiorari quashing the decision of the Council granting development approval. Both kinds of orders are discretionary.
The fact that the Lamkins’ house has been erected leads to difficulties. An order quashing the grant of development approval will have the consequence that the Lamkins have no development approval and there is no lawful authority for the erection of the dwelling and the placing of the fill on their land. They will have to lodge a fresh development application to validate their actions. Whatever the decision the Council makes will, in all likelihood, be the subject of appeal to the Environment Court by either the Lamkins or the Budaricks. Depending on the outcome, either of them may then appeal to this Court.
The Lamkins have obtained development approval from the Council and have, to all intents and purposes, acted in accordance with that consent. They have not located the dwelling precisely on the site depicted in the plans but that should not, I think, cause this Court to exercise its discretion against them. Not only has the Lamkins’ house been placed on the site but it has also been connected to all services. The Lamkins have carried out other work and have incurred expenditure in effecting further improvements to the dwelling in which they now reside. If the Environment Court or this Court ultimately orders that the Lamkins’ house cannot be erected on the site or that the filling or part of it must be removed, there will be plainly be considerable cost and inconvenience to the Lamkins. The prejudice to the Lamkins is patently obvious.
Equally obvious is the prejudice to the Budaricks. They were not aware, nor have they any reasonable means of becoming aware, of the intention of the Lamkins to introduce filling on to their land and erect the dwelling. The filling was placed there when the Budaricks were not residing in their holiday house. They were not aware of it until they went to their house on 18 February 2000. Two days later, and before the Budaricks could do anything to prevent it, the Lamkins’ house was erected on the site. In the result, they have lost a great deal of the panoramic views they had enjoyed from their house. This is coastal land. Like others, the Budaricks resort to coastal land to enjoy sea views as well as engage in such other active or passive recreation as appeals to them. In certain circumstances, views will be protected, particularly in areas such as this where houses are built to enjoy the coastal views. Day v Pinglen Pty Ltd (1981) 148 CLR 289 is an instance of a harbour view being protected.
However, as the photographs which have been tendered show, the Budaricks have not lost all of their views. Certainly, the views have been substantially diminished but good views remain. Although there is no evidence concerning value, it is reasonable to infer that the loss of part of their view has resulted in a diminution in the value of the Budaricks’ property at Venus Bay. Had the Council acted in accordance with the Development Act and the Development Regulations, the Budaricks could have made representations which may have resulted in a dwelling being erected on the Lamkins’ land in a place satisfactory to both the Lamkins and the Budaricks.
This is an unfortunate incidence of two groups of persons both being adversely affected by the failure of a third party to act according to law. One sympathises with both. In particular, one feels a good deal of sympathy for the Budaricks who have had the situation inflicted upon them and who immediately and actively sought the Council’s assistance to try and correct the situation.
However, I do not think it appropriate to make any order which invalidates the development approval provided to the Lamkins. My reasons are these. First, while the Budaricks are to be commended for their prompt action in seeking assistance from the Council and endeavouring themselves to resolve the matter, they did not immediately inform the Lamkins that they were seeking to have all or part of the filling removed and the house relocated on the site. Had they done so, the Lamkins may have taken no further step until the matter was resolved or, if they proceeded, they would have done so with full notice that orders which might be made would render abortive any further expenditure they incurred. Notice of an intention to commence proceedings could have been given to the Lamkins when the transportable house was simply resting on the site unconnected to services. It could have been relocated, if necessary, at a substantially lesser cost than when connected. Notice of proceedings was not given until about August 2000. Secondly, although self-help is to be encouraged and the institution of litigation should be an avenue of last resort, it would have been preferable for legal proceedings to have been commenced sooner. The Budaricks did not obtain legal advice for about six months. Thirdly, as the Budaricks still enjoy reasonable views from their land, it would be an undue hardship for the Lamkins to invalidate the grant of development approval.

However, it is possible to frame declarations which will mean that the Budaricks will not be entirely empty-handed. They are entitled to an order in the nature of a declaration that the development which was the subject of the Lamkins’ development application was a Category 3 development and to a declaration that the Council should have classified the development as such.
Notice to Planning Authorities
In the past 12 months or so, a number of matters in this Court have concerned filling or excavation. Those matters have been applications for judicial review and, in one case, an appeal to this Court from the Environment Court. These may be isolated instances. They do, however, highlight the need for planning authorities to give closer attention to the question of excavation and filling when considering applications for development consent. For the reasons expressed above, both excavation and filling is a form of development and requires development consent or approval. When excavation or filling or both are involved in a proposed development, planning authorities must consider whether they constitute a Category 1 or a Category 3 development. In addition, there are the further controls in Schedule 2 of the Development Regulations to consider. If a planning authority negligently fails to assign the correct classification to a development with adverse consequences to a party, the planning authority may be liable to a party who suffers loss in consequence. Of course, the question whether the planning authority is liable will depend on the facts and circumstances of each individual case.
Costs
The question of costs has already been argued.
As the Lamkins have succeeded, they are entitled to their costs. The question is who should pay those costs. Other questions are whether any order as to costs should be made in favour of either the Budaricks or the Council. I deal first with these latter questions.
Although the Budaricks succeeded in establishing that the Council had failed to act in accordance with the Development Act and the Development Regulations, they have failed on their application, albeit only because of an exercise of the court’s discretion. As they have failed, I do not think they are entitled to an order for costs. They should bear their own costs.
The Council is not entitled to an order for costs. It defended its action and failed in doing so. It should bear its own costs.
I return to the question as to who should be liable to pay the costs of the Lamkins. Generally speaking, costs follow the event so that an unsuccessful party should bear the costs of the successful party. On that principle, the Budaricks would be liable to pay the costs of the Lamkins. However, other factors must be considered. The principles underlying orders for payment of costs is to indemnify the successful party for part at least of the costs he has incurred in the litigation. Its purpose is compensatory, not punitive: Oshlack v Richmond River Council (1998) 193 CLR 72 per Brennan CJ at 75; per McHugh J at 97; per Kirby J at 121 – 122. Notwithstanding that principle, and notwithstanding the general principle that an unsuccessful plaintiff will pay a successful defendant’s costs, I think it is appropriate that the Council should pay the Lamkins’ costs. It was the Council’s conduct which directly caused this litigation and, in this litigation, the Council sought to uphold its conduct. It has failed. It should, I think, pay the Lamkins’ costs of this application.
Orders
For these reasons, there will be orders as follows:
1.An order declaring that the development, the subject of the development application to the defendant District Council of Elliston and numbered DA933/49/99 (“the development”) was for a Category 3 development.
2.An order declaring that the defendant District Council of Elliston should have classified the development as a Category 3 development and hence given notice thereof to the plaintiffs.
3.Save as aforesaid, the plaintiffs’ application is dismissed.
4.Order that the defendant District Council of Elliston pay the costs of the second defendants as taxed or agreed.

[2001] SASC 184

1 June 2001