City Apartments Pty Ltd v Hall & Ors No. Scciv-01-299

CITY APARTMENTS PTY LTD v HALL & ORS
[2001] SASC 337
Full Court: Prior ACJ, Bleby and Gray JJ

BLEBY J.
Introduction
At the conclusion of the hearing of this appeal we ordered that the appeal be dismissed, and said that we would publish reasons for that order. These are our reasons.
The appeal was against a decision of a single Judge of this Court on an application for judicial review of a determination of the Development Assessment Commission (DAC). The determination in question was a determination to grant provisional development plan consent to the appellant for the construction of a detached dwelling and associated excavation works on land in the Hills Face Zone. The land is located just above Glen Osmond and within the area of the Council of the City of Burnside.
The allotment on which the dwelling was to be built is very steep. It has gradients rising to the east in parts of it at one in two and one in three, with the area where the proposed dwelling was to be sited having gradients of between 1 in 4 and 1 in 3. It is an irregularly shaped allotment, but with its eastern and northern boundaries meeting at an approximate right angle. The house was to be built towards the north‑eastern corner of the allotment. There was to be a substantial excavation and filling to provide a flat surface on which the dwelling was to be erected. Access to the dwelling was proposed from the eastern boundary of the allotment near the north‑eastern corner, above the house. Additional excavations were required for a car parking area above and to the east of the house and for a driveway to be constructed in a generally southerly direction, close to the eastern boundary, opening out in a south‑westerly direction to an apron and a flat area for a proposed garage. The car park area, the driveway and garage area all required substantial excavation and filling, but that was independent of the excavation and filling for the dwelling site.
The trial Judge decided that the consent purportedly granted by the DAC to the appellant was invalid because, in the circumstances, the proper planning authority was not the DAC but the City of Burnside. The appellant challenged that decision as its first ground of appeal. If that challenge failed, the appeal had to be dismissed.
Although it was not necessary for the trial Judge’s decision, he also addressed an argument that the DAC had wrongly failed to treat the application as a Category 3 application for the purposes of s 38 of the Development Act. This categorisation affected whether and to what extent public notification of the application had to be given, and also affected rights of appeal. The trial Judge decided that the application should have been treated as a Category 3 application. That also would have vitiated the decision of the DAC if it were the proper planning authority.
The appellant also appealed against that aspect of the decision, but this would only have become relevant if the appeal on the first ground succeeded.
Finally, so far as was relevant to this appeal, the appellant argued that the application for judicial review should have been dismissed on discretionary grounds.
The relevant planning authority : the statutory provisions
Schedule 2 of the Development Regulations provides that in the Hills Face Zone any excavating or filling (or excavating and filling) of land which involves the excavating or filling (or excavating and filling) of a volume of material which exceeds 9 cubic metres in total is development for which approval must be obtained.
The scheme of the Development Act 1993 (the Act) is that, generally speaking, decisions as to the granting or refusal of Provisional Development Plan Consent are made by local councils or, in some situations, a regional development assessment panel. The Act provides for a number of exceptions, for which the planning authority is the DAC. For development on land within the Hills Face Zone, Schedule 10 of the Regulations provides the circumstances in which the DAC is to be the planning authority:
“3. (1) Those classes of development set out in the schedule to this subclause in those parts of the areas of the following councils defined in the relevant Development Plan as Hills Face Zone, or Metropolitan Open Space System (Hills Face) Zone:
(a)    the Municipalities of Burnside, Campbelltown, Marion, Mitcham, Onkaparinga, Playford, Salisbury and Tea Tree Gully; and
(b)    the Adelaide Hills Council.
SCHEDULE
A.The construction of a dwelling that is not a detached dwelling.
B.The excavation or filling (or excavation and filling) of land, otherwise than -
(a)    in association with the construction, conversion or alteration of, or addition to, a building; or
(b)    for the purposes of a dam used, or to be used, for the purpose of primary production; or
(c)     for the purposes of carrying out earthworks that are ancillary and subordinate to residential or rural development approved under the Act.
C.The division of an allotment or allotments, otherwise than where, in the case of division by deposit of a plan of division in the Lands Titles Registration Office, the number of allotments to result from the division is equal to or less than the number of existing allotments.
D.The construction (but not alteration) of a tourism development (including tourist accommodation), entertainment complex, cinema, hospital, shop, office, motel, hotel, petrol filling station or building to be used for an industrial purpose.”
If the application had been in respect of a single‑storey detached dwelling without more, the planning authority would have been the Council. However, this application included an application in respect of excavation and filling. If the excavation or filling in this case was “in association with” the construction of a building (which would include a dwelling) then the proper planning authority for that part of the application which comprised the excavation and filling was also the Council, and not the DAC: Sub‑clause 3, Schedule, Part B, sub‑para (a). If the excavation and filling was not “in association with” the construction of the dwelling, then the planning authority for that part of the development which comprised excavation and filling was the DAC.
That part of the excavation and filling which was to support the dwelling itself was plainly an excavation or filling in association with the construction of the dwelling. The appellant argued that the excavation and filling for the car park area, the driveway and the proposed garage, being independent of and at different levels from that of the excavation and filling for the house, was not in association with the construction of a building, and that at least that part of the application fell to be determined by the DAC. By virtue of s 34(1)(b)(v) of the Act because both planning authorities were constituted as relevant authorities in relation to the development, the DAC was the relevant authority.
Before dealing with this argument it is necessary to make some general observations about the Hills Face Zone, the nature of Provisional Development Plan consent and the interaction of the Regulations and the relevant Development Plan.
Some general observations
The Hills Face Zone is a zone of particular significance in all Development Plans of those councils which share responsibility for it. The Planning Objectives of the Zone are directed towards the preservation and enhancement of its natural character, the conduct of low intensity agricultural activities and open space. It is intended to preserve the natural backdrop to the metropolitan area of Adelaide. Consistent with those Objectives, Principle 1 of the Principles of Development Control provides:
“1Development should not be undertaken unless:
(a) it is associated with a low‑intensity agricultural activity, a public open space area or a private use of an open character, or is a detached single‑storey dwelling, including outbuildings and structures normally associated with such dwellings, on a single allotment; and
(b) together with associated native landscaping, it preserves and enhances the natural character of the zone or assists in the re‑establishment of a natural character.”
Principle 1 therefore contemplates that most buildings for which consent is sought will be for detached single‑storey dwellings and for outbuildings and structures “normally associated with such dwellings”.
Part B of the Schedule to Clause 3 of Schedule 10 of the Regulations speaks of the excavation or filling being in association with “the construction, conversion or alteration of, or addition to,” a building. When development consent is sought for that type of development, the planning authority is not merely concerned with the method of construction, conversion etc. It is required to consider many aspects consequential upon the construction, conversion etc, depending on the relevant principles of development control and the nature of the zone in which the building is to be constructed. That will include, in most cases, the consequences of the construction and the use to which the building will normally be put. Of great significance in the Hills Face Zone is the effect of the construction, conversion etc on the visual amenity of the zone from the Adelaide plains, on the aspects of the Zone sought by the Development Plan to be preserved and enhanced, the type of activities normally carried on in association with the building when it is completed, and the incidental use to which the surrounding land is most likely to be put. The consent being granted is not merely to a form and method of construction but to a state of affairs consequent upon the construction.
Because of the topography of the Hills Face Zone, most buildings for their construction, renovation etc will require some excavation or filling or both. This is recognised both by the Development Plan and the Regulations. We have already pointed out that anything beyond minimal excavation and filling in the Hills Face Zone is itself included as “development” for the purposes of the Act, regardless of its purpose. It therefore requires careful consideration against the requirements of the Development Plan.
The Principles of Development Control for the Zone also direct their attention to excavation and filling. Principle 2 reads:
“2The excavation and/or filling of land should:
(a)     be kept to a minimum so as to preserve the natural form of the land and the native vegetation;
(b)    only be undertaken in order to reduce the visual impact of buildings, including structures, or in order to construct water storage facilities for use on the allotment; and
(c)    result in stable scree slopes which are covered with top soil and landscaped so as to preserve and enhance the natural character or assist in the re‑establishment of the natural character of the zone.”
All that is hardly surprising, given the Planning Objectives of the Zone and the importance of its appearance from the Adelaide Plains.
From these general observations, it can be seen that the buildings most likely to be the subject of application for provisional development plan consent in the Hills Face Zone will be single‑storey detached dwellings “including outbuildings and structures normally associated with such dwellings”. By virtue of Schedule 10 of the Regulations, an application for consent to such development can be considered by the Council. However, the Development Plan ensures that most other forms of development will be non‑complying. They can therefore only be undertaken with the concurrence of the Minister or of the DAC: s 35(c) of the Act. Schedule 10 of the Regulations ensures that most of those forms of development which are not non‑complying and which are likely to have a significant effect on the natural character of the Zone are considered by the DAC. That includes any excavation and filling falling within the definition of “development”, unless such excavation or filling is “in association with” the construction etc of a building.
It is in that context that the phrase “in association with” assumes some importance in determining which is the proper planning authority.
“In association with”
The phrase “in association with” is one of imprecise meaning. It must be interpreted in its proper context. Part of that context is the total planning scheme represented by the Regulations and the several Development Plans in force under the Act. Indeed, the Regulations, by their reference at various points to particular zones, depend on and assume the existence of the Development Plans. They must be read together.
The principal approach of the trial Judge to the question was as follows:
“The excavation and filling to provide the site for the dwelling are plainly associated with the construction of the dwelling and fall within para B(a) of the Schedule. The excavation and filling to provide the car parking area has been undertaken to provide a level area for car parking alongside the dwelling. It is immediately south (sic) of the dwelling, albeit at a slightly higher level. There is no area for parking motor vehicles unless the car parking area is constructed. It is readily apparent that the car parking area is directly associated with the construction of the dwelling. In other parts of the metropolitan area, dwellings are constructed on level land which provide areas for cars and other motor vehicles to be parked. Provision for car parking is an integral part of facilities which are associated with a modern dwelling. For these reasons, the excavation and filling to provide this car parking area is excavation and filling in association with the construction of the dwelling.”
We respectfully agree with that paragraph other than that the car parking area was to be to the east of the house, and the apron and garage area to the south‑east of the house, but nothing turns on that. What his Honour said applies equally to the apron and garage area as to the car parking area.
Of some significance in considering whether the DAC is to be excluded as the relevant planning authority is that the phrase in question provides that the excavation is to be in association with the “construction, conversion or alteration of, or addition to a building”. We have already said that that means more than the mere physical carrying out of the building work. However, it is not as wide an expression as an excavation or filling in association with the use of the land for a particular purpose. That latter expression might bring in an excavation for a number of possible purposes. When the Regulation speaks of an association with the construction etc of a building, in our opinion it is intending to include excavation and filling for those purposes which one normally associates with the use of the building as such - those purposes without which the occupation and use of the building would be significantly impaired or would be rendered highly impracticable. Vehicle access and storage, both for residents and visitors, is essential for a house in this location and on an allotment of that topography, where the only practical form of access is not by way of a made public road but by way of a private right of way over a neighbour’s land.
But even without those particular restrictions, reasonably convenient vehicle access to any residence is now regarded as a necessary feature of any residential development. The excavation and filling to provide that access, storage and turning space for vehicles is properly regarded as being “in association with the construction” of the dwelling.
We have interpreted that phrase in a manner which requires a reasonably close link with the construction or use of the primary building. It follows that some forms of excavation for other purposes would not be included, and would require the consent of the DAC. Such an approach derives some support from the Development Plan, with which the Regulations must be read. It is apparent from Principle 1 of the Principles of Development Control that in the Hills Face Zone, besides allowing development of a detached single‑storey dwelling, the principle also allows the construction of outbuildings and structures “normally associated” with such dwellings. The Development Plan therefore provides for a similar type of close association between the primary building and other buildings (or forms of development) which might be erected on the site, and which will be treated as integral to the dwelling.
The appellant’s arguments
The first argument of the appellant requires a narrow interpretation to be given to the word “construction” as used in the regulation. In short, the argument was that access to the area to be levelled and for the purposes of construction of the house was by means of a route over an adjoining allotment, involving little or no excavation or filling. Completion of the building work did not depend upon use of the driveway, car park or garage area for which separate excavation and filling was necessary. Therefore the excavation and filling for the construction of the car park area, the driveway and the proposed garage area was excavation and filling quite independent of the construction (in the sense of erection) of the house.
It will be apparent from what we have already said that we do not accept that argument. It places too narrow a meaning on the word “construction”. It is not a meaning which the drafter of the Regulations intended. If, as we have said, it refers, by way of summary, to a state of affairs consequent upon construction, the excavation and filling for the car park, driveway and garage area are properly regarded as being in association with the construction in the sense we have described.
The appellant argued that the trial Judge had in fact adopted such a test in this case and had used it for the purpose of distinguishing an earlier case, Hall v Corporation of the City of Burnside [1999] SASC 536.
His Honour did in fact observe that if the dwelling was to be constructed at a reasonable cost, the access way and manoeuvring area were necessary to provide access to the building site. “Thus,” he said, “the earthworks for the access way and manoeuvring area constitute excavation and filling in association with the construction of the dwelling”. A little later he said:
“The decision in Hall v Corporation of the City of Burnside was a decision on its own facts and is to be distinguished for the reason that, in this case, there is a direct causal link between the construction of the dwelling and the construction of the access way which was not present in that case.”
In fact, the access way and other excavations were not intended to be used and were not required for the purposes of construction of the dwelling, and the evidence was that an alternative means of access was being used for the purpose of excavation for and constructing the house. If that was in fact the basis of his Honour’s distinguishing Hall’s Case, then it was a distinction which was not supported by the facts. Furthermore, to the extent that the trial Judge relied upon this argument as reflecting the proper construction of the relevant part of the Schedule, then we disagree with it for reasons we have already given.
The second argument of the appellant was that the trial Judge had in fact adopted a wider “but for” test which was inconsistent with the previous decision in Hall, and that this led his Honour into error. His Honour said:
“City Apartments contends that at least the excavation and filling to construct the access way and manoeuvring area are not being undertaken in association with the construction of the dwelling. For the reasons which follows, I do not accept that contention. But for the construction of the dwelling, this access way and manoeuvring area would not have been constructed. The manoeuvring area forms part of the access way in that it assists vehicular movements up and down the access way. The access way is intended to serve the same function as a driveway which will be found in most residential developments in the metropolitan area. If it were not for the construction of the dwelling, the access way and manoeuvring area would not have been made. In other words, it is the intended construction of the dwelling which causes the intended construction of the access way and manoeuvring area.” (Emphasis added)

We do not consider that, reading his Honour’s reasons as a whole, he adopted a “but for” test as the determinant in this case. At one stage in the course of his Honour’s reasoning it happened to be a manner of describing the nature of the association in this case, but it was not put forward as the appropriate test to be applied generally to this part of Schedule 10 of the Regulations.
It is not an approach which gains any support from his Honour’s earlier decision in Hall v Corporation of the City of Burnside (supra). The application in that case was in respect of an allotment very close to this one and with a similar steep slope. One aspect of the proposed development, which included alterations to an existing house on the land, involved the placement on the land of a substantial volume of filling, not for the support of any of the proposed alterations to the building, but for the purpose of landscaping or passive recreation. It was not associated in any way with the alterations or additions to the building. It was not required to support the existing building. It was not necessary for or incidental to the construction of the alterations or the additions. In that case the Judge rejected a submission that the filling was “in association with” the construction, conversion or alteration of a building. His Honour said in that case:
“The phrase “in association with” means that the excavation or filling is in some way involved in the construction, conversion or alteration of a building or, in the additions to the building. For example, excavation or filling which forms part of the building work in the sense that it enables the construction to proceed would be an excavation or filling associated with the building work. The excavation or filling must be incidental to this building work. Plainly, para 3 requires something more than a mere temporal connection between the filling and the building work. If a mere temporal connection were sufficient, para 3 would have been expressed in different terms…. The filling is associated with the dwelling only in that it provides a landscaped area. That is not the kind of association intended by para (a).”
That does not reflect the application of a “but for” test. Indeed, if that were the correct test, the excavation in that case would have to have been regarded as being in association with the dwelling, and the case would have been differently decided. Nevertheless, the earlier Hall case can be properly distinguished upon its facts by applying the interpretation that we have suggested.
To adopt a “but for” test would be to depart unnecessarily from the terms of the Regulation and to substitute a test which is too widely stated. If that were a permissible approach, it would require most excavations on an allotment not required for the immediate support of a building to be regarded as being in association with the construction of the building. It could be said of almost any excavation or filling on land where there was or was to be constructed a building that but for the construction of the building the excavation or filling would not be required, and would not be undertaken. It would mean that any excavation for domestic purposes on land on which a house was to be built, whether for landscaping, water storage for the purpose of domestic garden irrigation or for other purposes, no matter how significant, could be brought under the umbrella of an excavation in association with the construction of the residence. We do not think that was intended by the drafter of the Regulations. Besides, it substitutes for the language used in the regulation a different test. It is the language used in the regulation that must prevail. Therefore, if the trial Judge had applied a “but for” test in this case, it would have been incorrect.
For these reasons the trial Judge’s conclusion was correct even if his Honour’s reasoning may have been based on a factual error. The correct planning authority was the City of Burnside, and for that reason, subject to consideration of any discretionary grounds for refusing relief, the appeal had to be dismissed.
Because the excavation and filling comes within sub‑paragraph (a) of the Schedule, it is not necessary to consider whether it also comes within sub‑paragraph (c). However, we incline to the view that sub‑paragraph can only apply to a later application for development in respect of an excavation or filling where there already exists an approved development, whether or not that approved development has actually been carried out.
A Category 1 or Category 3 application?
In the circumstances, it is not strictly necessary to decide this question. Nevertheless, it was a ground of appeal argued by the appellant, and if the application for development is now submitted to the City of Burnside, it will have to decide whether to treat the application as a Category 1 or as a Category 3 development.
A combination of s 38 of the Act and Clause 2(1)(a) of Part 1 of Schedule 9 of Development Regulations provides that a development which comprises the construction of a detached dwelling is a Category 1 development. However, it is quite clear that this application was for more than merely the construction of a detached dwelling. It included excavation which, as we have already pointed out, constitutes in itself development. That took it out of the Category 1 class. There was never any suggestion that it was in Category 2. The consequence is that it was a Category 3 development.
In our opinion the trial Judge was correct in so deciding, and we see no reason to elaborate on his reasons for doing so.
Refusal of relief on discretionary grounds
Two grounds for refusing relief were advanced before the trial Judge and on this appeal. The first related to alleged delay in bringing the application for judicial review. The DAC resolved to grant provisional development plan consent on 14 December 2000. That was subject to the Council issuing provisional building rules consent. That was obtained in January 2001, and on 11 January the formal development approval was issued. On that day the appellant caused work to commence on the subject land. On 25 January 2001 the solicitor for the respondents wrote to the appellant stating that they had been instructed to commence an application for judicial review to challenge the grant of development approval, and requested the appellant to apply for cancellation of the development approval. The appellant did not comply with the request, and on 31 January 2001 the respondents made an oral ex parte application for an interim injunction to restrain the appellant from proceeding with building work. That application was granted. The summons for judicial review was issued on 2 February 2001, and the interim injunction was confirmed by interlocutory order on 6 February 2001.
By 25 January, when the appellant was notified of the respondents’ intention to take judicial review proceedings, much of the excavation and filling had been completed, and some piles had been poured. The trial Judge did not consider that the respondents were guilty of such delay as to justify refusing the grant of relief, nor had the building work proceeded to such a stage that they should be denied the relief sought. In our opinion this was a view which the trial Judge could properly take, particularly bearing in mind the invalidity of the decision upon which the work was proceeding. It was and is still conceivable that development work might proceed if it is properly approved, in which case the appellant will only have suffered some delay. If approval is not granted the appellant will have suffered some loss, but this would be a relatively small proportion of the total overall cost of the development, and if necessary some restorative work could still be undertaken.
The second ground upon which the discretion to refuse relief was sought was that the Council had made a submission to the DAC opposing the grant of provisional development plan consent. It was therefore argued that a fair‑minded lay observer might reasonably apprehend that the Council might not bring an impartial mind to the granting of provisional development plan consent: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 75 ALJR 277 at [6]. In the circumstances, it was argued that the decision of the DAC, in those circumstances the more appropriate authority, should therefore stand.
The trial Judge refused to exercise his discretion on this ground because the DAC assigned the wrong category and because the Council expressly asked the Commission to refuse development consent. He considered that there was no alternative but to grant the application.
We consider that the trial Judge was correct in refusing to exercise his discretion against granting the application, but for different reasons. In the circumstances, the only planning authority which could properly make the decision on the development application was the Council. Any decision or purported decision by the DAC would be invalid, as the DAC had no power to grant the application. As there was only one proper planning authority, disqualification on the ground of alleged bias could not arise. The principle of necessity required that the Council make the decision, regardless of any views that it may have expressed about the merits of the application. However, even if there may be some perception of bias, that will be minimised under present circumstances. We now know that if further application is made, the Council will have to treat the application as a Category 3 development. It will have to give public notification, and there will be rights of appeal to the Environment Resources and Development Court. The occasion for the exercise of the discretion on this ground did not arise. Even if it did arise, the submission seems to overlook the fact that the DAC has now also expressed a view on the merits of the development, and in that regard would appear to be in no different position from the Council.
It was also argued on appeal that, because the Council had made a recommendation to the DAC to refuse development consent, the Council had a “publicly stated position on the development”, being the phrase used in s 34(1)(b)(vi)(A), thereby rendering the DAC the appropriate planning authority. That paragraph can have no application, because it requires a declaration by the Minister (which has not been made) that the Minister desires that the DAC to act as (or to become) the relevant authority in substitution for the Council because, in the Minister’s opinion, the Council has demonstrated a potential conflict of interest in the assessment of the development because of a publicly stated position on a particular development. It is a matter for the Minister to decide whether such a declaration should be made, but unless it is made, the Council remains the sole planning authority.
It was our opinion that the appeal against the refusal of the trial Judge to exercise his discretion to refuse the remedy also failed. It followed that the appeal had to be dismissed.

[2001] SASC 337

27 September 2001