CARTER v Mid-Murrary Council - [2007] SASC 145

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
CARTER v MID-MURRAY COUNCIL & ANOR
[2007] SASC 145
Judgment of The Honourable Justice Debelle
27 April 2007
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL
Airstrip - resurfacing and extension of an existing airstrip – whether resurfacing and extension is development within the meaning of the Development Act 1993 - whether definition of ‘structure’ includes an airstrip – whether Development Act is inconsistent with Commonwealth Law – appeal dismissed.
Development Act 1993 s 3, s 4, s 32, s 37, s 36, s 45, s 49, s 49A, s 53A, 54, s 71A, s 86; Development Regulations 1993 Reg 7, 3 Sch 2, Cl 4(2) Sch 3; Civil Aviation Act 1988 (Cth); Civil Aviation Safety Regulations 1998 (Cth) Part 139, referred to.
District Council of Mallala v M & B Farmer Nominees Pty Ltd (2000) 76 SASR 443; Gawler & Barossa Jockey Club Inc v Corporation of the Town of Gawler (1995) 64 SASR 598, applied.
Williams v Blue Mountains City Council (2001) 115 LGERA 7, not followed.
Black v Shaw and Official Assignee (1913) 33 NZLR 194; British Columbia Custom Car Association v Mission (District) (1990) 3 MPLR (2nd) 278; City of Noarlunga v Fraser (1986) 42 SASR 450; Hobday v Nichol [1944] 1 All ER 302; Hutchison 3G Australia Pty Ltd v City of Mitcham (2006) 225 ALR 615; Hyams v City of Onkaparinga (2005) SASC 123 ; Hyams v City of Onkaparinga (2005) 93 SASR 12; Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"development", "structure"

CARTER v MID-MURRAY COUNCIL & ANOR
[2007] SASC 145
Land and Valuation Division

DEBELLE J. This is an appeal from a decision of a judge of the Environment, Resources and Development Court (“the Environment Court”) on a preliminary question of law. Shortly stated, the question is whether works to improve an existing private airstrip are a development within the meaning of the Development Act 1993.
An Airstrip is Made
The appellant is the trustee of the estate of Paul Gerhard Schmidt deceased who died in 1976.
In or about 1972 the late Mr Schmidt established a small airstrip on his land at Bowhill. Mr Schmidt engaged a local grader operator to grade a strip approximately 60 m wide and 825 m long. At the same time an area approximately 100 m long and 60 m wide at the north-eastern end of the airstrip was graded to form a parking area. This area also acted as an emergency runway. The grading removed 150 mm of the topsoil to expose the harder clay surface beneath and levelled the surface. The soil removed by the grading was placed in a mound or embankment approximately 3 m wide and 0.5 m high on the northern side of the airstrip. That increased the size of a mound already in existence, created some fifty years earlier, as part of a then existing flood plain irrigation system.
The airstrip is used by aircraft engaged in aerial spraying, by aircraft used for recreational purposes, and for aircraft maintenance. It is also used by helicopters and light and ultra light aircraft, that is to say, aircraft with a take-off weight not exceeding 5700 kg.
The Works in 2003
In June 2003 works were undertaken to improve the airstrip (“the works”). The nature of the works was set out in a statement of agreed facts before the Environment Court.
15. In June 2003, works were undertaken to resurface and upgrade the airstrip (“the works”) which involved:
15.1grading of a runway area approximately 15 metres wide and 760 metres long, to a depth of approximately 200 millimetres in approximately the same location as the original airstrip;
15.2placement of the material graded from the runway, together with soil left over from the original grading of the airstrip in the early 1970s, on either side of the runway to flatten the grade;
15.3surfacing the graded runway area with approximately 150 mm of imported rubble capped with 50 mm of local crushed rock, and compacted to a typical road construction standard, to create a clearly defined runway (“the runway”);
15.4creating 2 flanks approximately 22.5 metres wide on either side of the runway in the event that an aircraft was to the leave the runway (“the flanks” by:
(a)generally lightly grading and compacting the ground approximately 15 metres wide on either side of the runway; and
(b)generally lightly grading the ground a further 7.5 metres on either side (apart from a 100 metre section at the south-western end on the River side where grading did not occur);
15.5creating “flyover areas” i.e. areas cleared of any obstacles, at either end of the runway and flanks by generally lightly grading the ground:
(a)approximately 100 metres at the north-eastern end of the runway and flanks; and
(b)approximately 40 metres at the south-western end of the runway and lagoon side flank.
Shortly stated, the proposal involved improving the surface of the runway by excavating an area 760 metres long to a depth of 200 millimetres, refilling it with rubble, and then compacting the rubble. Other works included spreading the soil from the existing embankments, together with soil from the grading, to create graded “flanks” on each side of the runway.
Application for Development Approval Refused
After the works had been completed, the Mid-Murray Council (“the Council”) alleged that the works constituted development within the meaning of the Development Act 1993 and asked the appellant to apply for development approval. The appellant contended that he did not have to obtain development approval but, nevertheless, applied for development approval on 27 April 2004. Pursuant to s 37 of the Development Act, the Council referred the application to the Minister responsible for the administration of the River Murray Act. On 10 March 2005, the Minister, by his delegate, directed the Council to refuse the application. By notice dated 17 March 2005 the appellant was informed that provisional development plan consent had been refused. On 17 May 2005 the appellant appealed against that decision to the Environment Court.
A Preliminary Question
The parties asked the Environment Court to determine the following question as a preliminary question of law:
Does the proposal the subject of the development application lodged with the Council which involves the excavation and fill of land for the purposes of the surfacing and extension of the airstrip constitute development for the purposes of the Development Act 1993?
In answering this question, the judge considered there were three issues for consideration:
·whether the works are building work and therefore development within para (a) of the definition of “development” in s 4 of the Development Act;
·whether the works are excavation and filling of land and thus “an act or activity in relation to land declared by regulation to constitute development” under para (h) of the definition of “development”; and
·whether, if the works amount to “an act or activity in relation to land declared by regulation to constitute development”, they also amount to an act or activity that constitutes the continuation of an existing use of land, and thus are exempt from the definition of development under para (h) of the definition.
The judge held that the works were not building work within the meaning of the Development Act and, therefore, were not development as defined by that Act. The judge then held that the excavation and filling of the airstrip was development as defined by sub-paragraph (h) of the definition of “development” in s 4 of the Development Act, being a development prescribed by Clause 3 of Schedule 2 of the Development Regulations. The judge finally held that the works did not constitute an existing use of the land within the meaning of sub-paragraph (h). By reason of the latter two conclusions, the judge answered the preliminary question, yes.
The appellant has appealed from that decision to this court. The Council has informed the Court that it will abide its decision. The protagonists on the appeal were, therefore, the appellant and the Minister. The Minister filed a notice of contention seeking to uphold the judge’s decision on other grounds than those stated in her reasons.
The Meaning of Development
The resolution of the question whether the works constitute a development is to be found in the definitions in s 4 of the Development Act of three terms used in that Act, “development”, “building work”, and “building”. Section 4 defines “development” to mean, among other things, building work. It defines the expression “building work” in these terms:
building work means work or activity in the nature of –
(a) the construction, demolition or removal of a building (including any incidental excavation or filling of land); 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.
For present purposes, it is sufficient to note that the definition includes the construction, demolition or removal of a building. The term “building” is defined in these terms:
building means a building or structure or a portion of a building or structure (including any fixtures or fittings which are subject to the provisions of the Building Code of Australia), whether temporary or permanent, moveable or immovable, and includes a boat or pontoon permanently moored or fixed to land, or a caravan permanently fixed to land.
Applying these definitions, “development” includes work by which a structure is constructed.
The noun “structure” is also defined in s 4. The definition reads:
structure includes a fence or a wall.
In ordinary usage, “structure” has a wide meaning. In this context, it means that which has been built or constructed: Hobday v Nichol [1944] 1 All ER 302 at 303-304. The manner in which the definition of “structure” is expressed in s 4 preserves that wide meaning. This Court has consistently adopted that view: Gawler & Barossa Jockey Club Inc v Corporation of the Town of Gawler (1995) 64 SASR 598 at 601; District Council of Mallala v M & B Farmer Nominees Pty Ltd (2000) 76 SASR 443 at [8].
The works involved in upgrading the airstrip included demolishing the earlier embankments which had existed along the sides of the airstrip, grading an even strip some 15 metres wide and 760 metres long to a depth of approximately 200 millimetres, replacing the excavated material with about 2300 cubic metres of imported rubble to a depth of some 150 millimetres, capping that with crushed rock to a depth of some 50 millimetres, and finally compacting the crushed rock to the standard of typical road construction. Those works resulted in a structure, that is to say, the improved airstrip. The construction resulted in an airstrip with different physical properties from the surrounding land and from the former airstrip. It was a new structure in that it replaced what had hitherto been a graded strip of land. It would be a correct use of language to speak of the construction of the airstrip, which serves to demonstrate that the result of the works is a structure. As the work involved the construction of a structure, it was building work as defined and was, therefore, a development as defined for the purposes of the Development Act.
The meaning of the word “structure” will vary according to the context in which it is used. As Mahoney JA pointed out in Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 at 305 to 308, care must be taken with definitions in legislation of this kind. If the word “structure” is given its literal meaning, absurd results could follow and the legislation be rendered unworkable. In City of Noarlunga v Fraser (1986) 42 SASR 450 at 457 to 458 White J made similar observations. It is desirable, therefore, when interpreting the Development Act, to have regard to its purposes or objects: Mulcahy at 306 to 307. The objects of the Development Act include the provision of proper, orderly and efficient planning and development: s 3. The term “development” has a broad definition. It is apparent from the width of that definition that the intent of the Development Act is to bring within its scope activity involving works on land or a change in the use of land. Clause 4 of Schedule 3 of the Development Regulations excludes some kinds of development including minor works but these exceptions do not detract from the overall object as I have identified it. More particularly, it is apparent that the Act intends to operate in respect of the construction of private roads. One meaning of development is s 4 is the construction or alteration of a road, street or thoroughfare including any excavation or other preliminary or associated work save when carried out by Government, a council or other public authority: sub-paragraph (d). The construction of private roads is, therefore, a development. The essential steps in the construction of this airstrip are very similar to those involved in the construction of a road. It is, therefore, consistent with the scope and purpose of the Development Act if the term “structure” includes an airstrip constructed in the manner in which this airstrip was constructed. There are policy reasons which support that conclusion. This airstrip has been constructed on a flood plain on the River Murray. It is plainly in the interest of orderly and efficient planning that substantial works of the kind undertaken in this case on a flood plain should be submitted for development approval lest any untoward development occur or there be any untoward consequences of the development.
Mr Roder, who appeared for the appellant, submitted that the fact that the definition of “development” refers to roads indicates that the definition of “structure” is not intended to include roads. I do not agree. A private road might be no more than a graded strip of land and might not qualify as a structure. The inclusion of the construction of roads as a form of development puts the matter beyond question.
Mr Roder also relied on Williams v Blue Mountains City Council (2001) 115 LGERA 7 and on Bowyer v Manly Council an unreported decision noted in paragraph [50] of the reasons in Williams. Both decisions concern different statutory provisions and so do not assist. In particular, the reason why roads were not included as a structure in Bowyer v Manly Council was because the control of roads had been removed from the Local Government Act 1919 (NSW) and were separately regulated under other legislation. In any event, there are decisions holding that the construction of a road has been held to be a structure: Black v Shaw and Official Assignee (1913) 33 NZLR 194 at 196; British Columbia Custom Car Association v Mission (District) (1990) 3 MPLR (2^nd) 278 at 284.
Although the judge in the Environment Court concluded that the airstrip was a structure as defined, she then considered other provisions of the Development Act and concluded that, despite the wide definition of “building” in the Development Act, the term “structure” in that definition, as far as proposed building work is concerned, is limited to a structure which is addressed in the Building Rules. The reasoning of the judge is flawed on a number of grounds. The first is that it relies on provisions in the Development Act which, on their terms, could apply only to a building. Those provisions are s 36, 45, 49(14) and (14a), 49A, 53A, 54, Part 6 of the Act, s 71A and s 86. While those provisions relate to buildings as understood in ordinary usage, it does not follow that they narrow the meaning or operation of the noun “structure” as it is defined by the Development Act. The judge’s reasoning is also flawed because to qualify the definition of “structure” so as to limit it to a structure to which the Building Rules apply is to defeat the intention of the Parliament. If Parliament had intended that the meaning of “structure” should be qualified in that way, it could have easily expressed the definition of “structure” in terms to that effect. Plainly, it did not. The judge has effectively amended the definition in an inappropriate way. Allied to that consideration is the fact that s 33 of the Development Act provides that a development will be assessed against the Building Rules only insofar as they are relevant. Thus, the fact that there is nothing in the Building Rules which applies to certain kinds of structures does not mean that they are not buildings as defined and hence development.
The reasoning of the judge is also flawed in that it overlooks the fact that, as s 4 of the Development Act states, the definitions operate “unless the contrary intention appears”. The sections to which the judge referred are examples of provision where it is possible to identify a contrary intention. Not all words used in either the Development Act, the Development Regulations or in the development plans made under that legislation are used in a consistent manner. It is always necessary to consider the context in which the words are used and the object of the legislation.
Another consideration is that there are forms of development which are structures for which development approval is required but do not have to satisfy the requirements of the Building Rules. A dam is an example. The Building Rules are effectively constituted by the Building Code of Australia. That code does not contain any provision relating to dams. If a structure is a building as that expression is understood in ordinary usage, it will be necessary for it to be assessed against the Building Rules. If it is not, it will have to assessed against an appropriate standard. In the case of this airstrip, the relevant standard is prescribed by the Commonwealth Civil Aviation Safety Authority. For these reasons, I disagree with the conclusion of the judge. The reasoning of the judge is also at odds with the reasons of this Court in Gawler & Barossa Jockey Club Inc v Corporation of the Town of Gawler (1995) 64 SASR 598 at 601 and in District Council of Mallala v M & B Farmer Nominees Pty Ltd (2000) 76 SASR 443 at [8]. The judge purported to distinguish District Council of Mallala v M & B Farmer Nominees Pty Ltd but the basis on which she did so was misconceived.
The judge then considered the meaning and operation of Clause 3 of Schedule 2 of the Development Regulations and in particular whether the works were excavation and filling of land within the meaning of that schedule. Given the conclusion that the work involved in upgrading the airstrip was building work as defined in the Development Act and hence a development within the meaning of that Act, it is unnecessary to consider either that question or the related question whether the appellant has the benefit of the existing use rights provided by sub-paragraph (h) of the definition of “development”.
No Inconsistency with Commonwealth Law
The Commonwealth Parliament has enacted the Civil Aviation Act 1988. Pursuant to that Act, the Civil Aviation Safety Regulations 1998 have been made. Among other things, these regulations regulate the construction of airstrips. However, for the reasons which follow, there is no inconsistency between the Commonwealth legislation and State legislation.
It is common ground that the airstrip is a private airstrip for the exclusive use of the landowner, visitors and emergency services. Although the Civil Aviation Safety Regulations 1998 provide in Part 139 for standards for construction of airstrips, those regulations do not prescribe an authority to whom an application must be made. The standards for construction are contained in the Manual of Standards: Part 139.015. The Manual of Standards states in Clause 6.1.1.3 that:
Aerodrome siting, including runway useability and number and orientation of runways, aerodrome master planning and matters relating to economics, efficiency and the environment at an aerodrome are not within the scope of these standards.
That provision serves to confirm that neither the Regulations nor the Manual are concerned with development control. Their purpose is only to ensure that airstrips are constructed to a standard approved by the Civil Aviation Safety Authority which may refuse certification if an airstrip is not of the prescribed standard. As this airstrip is used essentially for private purposes, it is not necessary to comply with the Manual of Standards published by the Civil Aviation Safety Authority.

There is a further consideration. The appellant voluntarily carried out the works to improve the airstrip so that it would comply with the Civil Aviation Advisory Publication 92-1(1), Guidelines for Aeroplane Landing Areas. Although the Guidelines are designed to promote the safety of users of private landing areas, compliance with them is voluntary.
Neither the Regulations nor the Guidelines exclude the operation of the planning laws of the States or Territories. There is, therefore, no inconsistency between any law of the Commonwealth and the Development Act, that is to say, there is no constitutional impediment to the operation of the Development Act in the particular circumstances of this case. This is an area in which the laws of the Commonwealth and the Development Act of this State are able to operate together without any constitutional collision or incompatibility: cf Hutchison 3G Australia Pty Ltd v City of Mitcham (2006) 225 ALR 615 at [110].
An Existing Use?
The scheme of the Development Act is to require development approval to be obtained for any activity which falls within the definition of development in s 4 of the Act. That aim is effected by s 32 of the Act which provides:
Subject to this Act, no development may be undertaken unless the development is an approved development.
In this case, there was no relevant exception to the obligation in s 32. Development approval must, therefore, be obtained even if the work or activity is development associated with an existing use of land. As the works were a development as defined by the Development Act, it was necessary for the appellant to obtain development consent. The fact that the works concerned an existing use of land did not relieve the appellant from the obligation to obtain development approval under the Act.
An Excluded Development?
The appellant relied on the terms of Clause 4(2) of Schedule 3 of the Development Regulations and contended that it is a kind of development excluded from the Development Act. Regulation 7 of the Development Regulations excludes from the definition of development acts or activities listed in Schedule 3 to the regulations. Clause 4 of Schedule 3 excludes from the definition of development what it calls “sundry minor operations”. Clause 4(2) reads:
Other than in respect of a local heritage place, the repair, maintenance or internal alteration of a building –
(a)     that does not involve demolition of any part of the building (other than the removal of fixtures, fittings or non load-bearing partitions); and
(b)     that will not adversely affect the structural soundness of the building or the health or safety of any person occupying or using it; and
(c)     that is not inconsistent with any other provisions of this Schedule.
The terms of Clause 4 refer to both buildings as understood in ordinary usage as well as to structures as understood in ordinary usage. The structures to which it refers include advertising displays in Clause 1 and to a swimming pool, a spa pool and a tank in Clause 4. It also refers to fences and walls in Clause 4 which are defined by s 4 of the Development Act to be structures. The buildings to which it refers include in Clause 4 an outbuilding and a builder’s office, shed or stall. Thus, it is necessary to have regard to context to determine whether the word “building” when used in Schedule 3 refers to a building or a structure. Reference to the context of Clause 4(2) indicates that the word “building” refers to a building as ordinarily understood. Even if it were to refer to a structure, there are two reasons why it could not apply in the particular circumstances of this case. The first is that the original airstrip was not a structure. It represented no more than the grading of topsoil to produce a level strip. The second is that the works performed on the airstrip included demolition of the existing airstrip and replacement of it with an airstrip with a different form of construction. It was not repair or maintenance but replacement of the airstrip by another constructed to a superior standard.
Mr Roder relied on the decision in Hyams v City of Onkaparinga (2005) SASC 123 and on appeal (2005) 93 SASR 12 but that decision does not assist as it concerned Clause 2 of Schedule 3, which provides for the entirely different context of Council Works.
Conclusion
In the result, I agree with the conclusion of the judge in the Environment Court, albeit for different reasons. The appeal will, therefore, be dismissed.