City of Burnside v Covino No. Scciv-01-1720

CITY OF BURNSIDE v COVINO
[2002] SASC 146
Land and Valuation Division

BESANKO J This is an appeal by the City of Burnside from a decision of a Commissioner of the Environment Resources and Development Court (“ERD Court”). The Commissioner made an order reversing a decision of the City of Burnside in November 2000 to refuse consent to a development application by Mr D Covino.
The council is the appellant before this Court, and Mr Covino is the respondent.
The right of appeal from a decision of the ERD Court is contained in s 30 of the Environment Resources and Development Court Act 1993. An appeal from the decision or order of a Commissioner lies to a single Judge of this Court. An appeal lies as of right on a question of law, and by leave on a question of fact. The appellant has not sought leave to appeal on any question of fact. It is not always easy to distinguish between a question of law and a question of fact.[1] The Full Court of this Court has said that the question whether there has been an error in the interpretation of the principles of development control is a question of law.[2]
[1] Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 at 394; Corporation of the City of Marion v Kassere Pty Ltd (Full Court Judgment Number S 4909.1 delivered 23 December 1994)
[2] St Ann’s College v Corporation of The City of Adelaide and Renton [1999] SASC 479
The Previous Development Plan Consent
In March 1997 Mr and Mrs Covino made a development application to the Development Assessment Commission (“the Commission”) to develop the land at Lot 302 Coach Road, Skye, in the State of South Australia (“the subject land”) for the following type of development:-
“Detached dwelling, tank and in-ground swimming pool”
The land is in the Hills Face Zone.
In 1997 the Commission was the relevant authority in relation to the proposed development. In August 1997, the Commission granted provisional development plan consent subject to thirteen conditions. Some of these conditions should be noticed for the purposes of the present appeal viz,
“1.The development hereby approved shall be carried out in accordance with the plans accompanying the application and approved by the Commission and contained in the docket, DAC43/1059/302 except where varied by the following conditions.
5.All benching and mounding on the site shall be carried out strictly in accordance with the levels indicated on the ‘Level and Detail Survey’ plan. The plan shows the upper finished floor level of the dwelling as 303.00 and lower finished floor level as 300.00. The height relationship between the western mound (302.70) and the dwelling’s upper finished floor level is critical and as such a qualified surveyor shall confirm the levels in writing prior to the commencement of the dwelling’s footings being laid. Also the western mound must be compacted in accordance with sound engineering practices to achieve its approved height.
7.No fill material shall be imported onto the site to achieve the western mound or for other fill requirements for the development. Rather, any fill shortfall shall be compensated for by further cutting the development into the site.
10.A screen of trees and shrubs shall be provided on the land in accordance with the submitted tree planting scheme so as to reduce the visual impact of the dwelling when viewed from the surrounding locality. Additional screening of the dwelling shall be undertaken in the area to the south and southwest of the dwelling to reduce the visual impact when viewed from Coach Road. Trees shall be planted within six months of the date of the commencement of the dwelling and maintained thereafter. Planting shall meet the requirements of Condition 3, ‘Vegetation’ and be protected from stock.”
The Commission said that the reason for the decision and for the conditions imposed was that the natural character of the Hills Face Zone in the locality will not be impaired. The Commission also said that any landscaping conditions were an essential part of the approval in order to ensure that the development blends with the natural character of the Hills Face Zone.
The plans which were approved by the Commission were put before the Commissioner in the present appeal. They became exhibits R2 and R3. R2 is the “Level and Detail Survey” plan referred to in condition 5 of the consent.
The Commissioner described the information on exhibits R2 and R3 as “at best, scrappy”. I agree. The critical features of the plans approved by the Commission are the construction of a driveway, retaining wall, dwelling, pool and mound. The plans show some landscaping, and an existing line of olive trees just inside the western boundary of the subject land which extend through to the eastern boundary and which are in effect the northern boundary of the area to be developed. Land which is north of this line of olive trees and which comprises more than half of the subject land is simply marked on the plans as “Existing Dense Vegetation”.
The subject land is an irregular shaped parcel of land of nearly 8.5 hectares. Coach Road abuts its southern boundary, and Vale Street, which is a dead end street, is on the eastern side of the subject land. The plans approved by the Commission show that the development was to take place on the southern portion of the subject land.
A general description of the subject land and the development approved by the Commission is contained in the report of Mr P Brunning, a planning expert. Mr Brunning gave evidence in favour of the proposed development which is the subject of this appeal. He said,
“The subject land has an area of 8.494 hectares and is developed with a two-storey dwelling. Provision has been made for a swimming pool to the rear of the dwelling that is to be screened with an earth mound to the west. Several water tanks have been placed adjacent to the dwelling to supplement mains water supply. A curvilinear driveway approaches the dwelling from both Coach Road and Vale Street with provision for a turnaround area, as required by the Bushfire Prevention Unit of the Country Fire Service.
The land falls generally to the north into a small gully running east-west. A watercourse flows at the bottom of this gully intermittently. The majority of remnant vegetation has been removed from the subject land over past years with pockets remaining in the lower sections of the north-facing slope. The dominant plant community may be described as open woodland. The land is also infested with self-sown olive trees that are identified as a weed species, appropriate for removal.”
Earthworks for Which There is No Approval
The dwelling has been constructed on a benched area. The construction of the benched area and other works has produced significant quantities of fill which has been deposited on the subject land, particularly in areas to the north and north-east of the dwelling.
The filling of the subject land, particularly in the areas I have identified, is not authorised by the consent issued by the Commission. It is development in the Hills Face Zone (see Development Regulations 1993 schedule 2 clause 1). In addition, a number of rainwater tanks have been placed on the land which were either not approved or were not approved in the particular location in which they have been placed. In July 2000 these two matters led to the lodging of the development application which is the subject of this appeal.
Approval for the rainwater tanks was not an issue on the appeal.
The Proposed Development
The development application lodged with the appellant in July 2000 sought approval for the following development:
“To vary extent of excavated site fill and also location of rainwater tanks.”
The relevant authority was the appellant. The relevant part of the Development Plan was that relating to the Adelaide Hills Council. A change of Council boundaries has brought the subject land within the area of the appellant.
The plans for which consent was sought became exhibit A1 in the appeal hearing before the Commissioner. As the hearing proceeded before the Commissioner, further ways in which the plans could be improved were suggested and these produced first, the plans which became exhibit A5, and then later, the plans which became exhibits A7 and A8. Having regard to the matters argued on appeal it is not necessary to discuss the differences between the various sets of plans.
The Commissioner described the proposed development as follows:
“i)The bench is to be enlarged to the north and north-east; ie, along the line B-B on Exhibit R3 from about 13 metres to about 27 metres. Elsewhere the dimensions of the enlargements are difficult, if not impossible in some instances, to interpret due to the inconsistencies and poor drafting on Exhibits R2 and R3. Suffice to say the bench is to be considerably enlarged.
ii)The mound is to be widened at its southern end so that it relates to the slope of the hillside; ie, the ‘tadpole’ shape has been eliminated.
iii) The retaining wall is to be replaced by a batter.
iv)Assuming the original turning circle was set out to accommodate fire trucks as well as vehicles generally, this has been replaced by a three-point ‘CFS vehicle turning template’ on the proposed enlarged bench to the north.
v)The landscape design shown on Figure 1 for the bench – ie, curving driveways including the aforementioned turning circle lined by vegetation – has been eliminated. Exhibit A5 notes that ‘detail planting around house to future design by landscape architect’.
vi)The indicative position of the swimming pool is to be moved from west of the dwelling to its north-west.
vii)The ‘existing olive grove’ is to be removed.
viii)A new slope is to be created north and north-west of the dwelling as set out on Sheet 1 of Exhibit A5. This will involve considerable cut, fill and sculpting.
ix)Extensive planting is to occur on the aforementioned slope, on the west face and top of the mound and on the hill slopes to the south of the dwelling and near Vale Street.
x)A management regime is to be undertaken including spreading fertiliser, installing erosion control devices and eradicating olives.
xi)A rainwater tank is to be relocated and two extra tanks added, all to be on the hillside to the south of the dwelling.”
The Relevant Provisions of the Development Plan
The relevant provisions of the Hills Face Zone (Adelaide Hills Council) are as follows:
Objective 1:      A zone in which the natural character is preserved and enhanced or in which a natural character is re-established in order to:
(a)     provide a natural backdrop to the Adelaide Plain and a contrast to the urban area;
(b)    preserve and develop native vegetation and fauna habitats close to metropolitan Adelaide;
(c)     provide for passive recreation in an area of natural character close to the metropolitan area;
(d)    provide a part of the buffer area between metropolitan districts and prevent the urban area extending into the western slopes of the Mount Lofty Ranges; and
(e)     ensure that the community is not required to bear the cost of providing services to land within the zone.
Objective 2:      A zone accommodating low intensity agricultural activities and public/private open space and one where structures are located and designed in such a way as to:
(a)     preserve and enhance the natural character or assist in the re-establishment of a natural character in the zone;
(b)    limit the visual intrusion of development in the zone, particularly when viewed from roads within the zone or from the Adelaide Plain;
(c)     not create, either in themselves, or in association with other developments, a potential demand for the provision of services at a cost to the community; and
(d)    prevent the loss of life and property resulting from bushfires.”
The commentary under these objectives contains a statement that:
“Development which is undertaken in this zone should not only preserve but should also enhance the natural character of the zone or assist in the re-establishment of a natural character.”
The term “natural character” is defined to include natural topography, native vegetation and colours and the open character of land in those areas of the zone where open grazing currently predominates.
The first two Principles of Development Control are:
“1.    Development 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.
2.     The excavation and/or filling of land should:
(a)    be kept to a minimum so as to preserve the natural form of the land and 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 topsoil and landscaped so as to preserve and enhance the natural character or assist in the re-establishment of the natural character of the zone.”
Although the planning experts who gave evidence before the Commissioner referred to other provisions in the Development Plan, for the purposes of this appeal the above provisions are the critical provisions.
The Commissioner’s Reasons
Before the Commissioner the respondent called two witnesses. I have already mentioned Mr Brunning. Mr Damian Andrews was the other witness. He is a landscape architect. The appellant called one witness, Mr P Vivian. Mr Vivian is a planning expert employed by the appellant.
In the course of describing the proposal, the Commissioner reminded himself that the fact that the earthworks on site were different from those approved by the Commission was of no relevance to him in his evaluation of the matter. He referred to Kouflides v The City of Salisbury[3].
[3] (1982) 29 SASR 321
The Commissioner referred to objectives 1 and 2 for the Hills Face Zone, and to the commentary immediately after the statement of those objectives. The Commissioner described the crux of the matter as,
“whether the landscape works as proposed by way of the amendments are more in line with the provisions of the Development Plan and the Hills Face Zone, and the particular circumstances of the site and its surrounds, than those now approved.”
The Commissioner described the subject land before the construction of the dwelling as follows:
“After inspecting the development site, the subject land and their surrounds and after inspecting the aerial photographs attached to professional statements, it would appear that the land before benching and construction of the dwelling was open land used for grazing some time in the past with a line of olive trees and some native vegetation on the slopes near Vale Street and below the line of olive trees down into the gully to the north. Where this vegetation remains it is interspersed with exotic species and, while to the casual observer it might appear to have some qualities, on closer inspection it would appear to need the skills of relevant experts to ensure it evolves into acceptable woodland.”
I note that Mr Andrews gave evidence about the condition of the land before the construction of the dwelling. He said,
“The subject land was originally open, sclerophyll woodland or forest prior to European settlement. Extensive clearing and grazing has left the land degraded with some remnant vegetation on steeper slopes and an infestation of pest plants.”
The Commissioner expressed his conclusions in the following terms:
“The proposed development as a site of planning exercise is exemplary. Not only will it improve the land visually but it will introduce a considerable tract of vegetation, the aim of which will be to replicate, as far as possible on matching terrain, the type of eucalypt woodland that may have clothed the slopes of the hills face in this area in the past. Mr Andrews drew my attention to the vegetation on the south facing slope opposite the development site and said that its structure was similar to that which he saw evolving on the development site (keeping in mind the differences in aspect and that no exotics such as pines will be, as far as possible, allowed to intrude). The proposal from this point of view could be seen as setting a benchmark for future proposals elsewhere.
Additionally, the dwelling will be well shielded from view from outside of the Hills Face Zone and from most localities within it.
Having given careful regard to the provisions of the Plan (in particular of those for the Hills Face Zone), and the circumstances of the site and its surrounds, I conclude that the positive features of the proposal outweigh the enlargement of the bench. The proposed development is worthy of consent.”
The Commissioner emphasised the enlargement of the bench area and the landscape works. He saw the enlargement of the bench area as a reason not to grant approval. He saw the landscape works as a reason to grant approval. I think he included the proposed earthworks on the areas to the north and north-east of the dwelling within his description of landscape works. The Commissioner accepted the evidence of Mr Andrews and he quoted his evidence as follows:
“He anticipated ‘… that the revegetated slopes will blend harmoniously with the gully and will appear ‘natural’ in character’. The ‘earthworks design’ is aimed to sculpt the ‘north facing slope … into more natural contours.”
The Commissioner found that the proposed development will improve the land visually and that the positive features of the development outweigh the enlargement of the bench. The Commissioner saw the earthworks on the northern slopes, no doubt with the revegetation proposal, as a positive feature of the proposed development. The negative feature was the enlargement of the bench.
The Arguments on Appeal
In essence, counsel for the appellant put two arguments on the appeal. First, he submitted that the Commissioner had erred in his characterisation of the proposed development. The critical element of the proposal was the element which necessitated the application for consent, namely, the depositing of fill on the areas to the north and north-east of the dwelling. The extensive landscaping element of the proposal did not constitute development and did not require consent.
It was argued that had the Commissioner focussed on that element of the proposed development which required consent, then he would have concluded by reference to the relevant provisions of the Development Plan, and in particular Principles of Development Control 1 and 2, that the application should be refused. Counsel referred to the fact that the Commissioner did not specifically refer to Principles of Development Control 1 and 2 and argued that this supported his contention that the Commissioner had not properly characterised the proposed development.
Secondly, counsel for the appellant argued that no evidence was put before the Commissioner showing the ground levels before the unauthorised earthworks were carried out. The plans put before the Commissioner contained details of the ground levels as they are with the unauthorised earthworks and the proposed ground levels if consent is given. The Development Plan refers to the natural character of the Hills Face Zone which term includes the natural topography. Counsel argued that in assessing the proposed development against the provisions of the Development Plan the proper and indeed only comparison was between the natural topography (ie, the topography minus the unauthorised works) and the proposed topography if consent is given.

The Commissioner relied on the evidence of Mr Damian Andrews. Mr Andrews had not carried out the assessment required by the Development Plan because his comparison was a comparison between the existing topography, namely the topography including the unauthorised earthworks, and the proposed topography. It was argued that Mr Andrews had taken into account the unauthorised earthworks, and that this was not permissible. Similar submissions were made about the evidence given by Mr Brunning. Counsel for the appellant referred to Kouflides v The City of Salisbury. In essence, there are two aspects to the argument. First, the Commissioner took into account the unauthorised earthworks in forming his opinions. Secondly, and in the alternative, even if he did not take into account the unauthorised earthworks, he had no or no sufficient evidence upon which to assess the proposed development against the provisions of the Development Plan because he did not have evidence of the ground levels before the construction of the dwelling and associated works.
Ground 5 of the Notice of Appeal asserts that the proposed development is seriously at variance with the relevant provisions of the Development Plan, and Ground 6 asserts that the Commissioner erred in law in failing to have any or any sufficient regard to the relevant provisions of the Development Plan. In argument on the appeal, counsel for the appellant did not make any submissions in relation to these grounds, other than the fact that they were not abandoned, and that their fate probably depended upon the fate of the two arguments which he did develop.
The Alleged Error in Relation to the Characterisation of the Proposed Development
I have set out the Commissioner’s description of the proposal. He did not overlook the element of the proposal which involved the placing of fill on the land north of the dwelling (see para viii). It was an element which was the subject of evidence and submissions during the course of the hearing before him.
The Commissioner found that what was proposed on the northern slope was a positive feature of the proposal. In my opinion, subject to the appellant’s second argument, the Commissioner was entitled to find that the earthworks and revegetation on the northern slope was a positive feature of the proposal. There was evidence to that effect. He was entitled to take it into account, especially when regard is had to the fact that the provisions of the Development Plan speak of enhancing and re-establishing the natural character.
The Commissioner did not specifically refer to Principles of Development Control 1 and 2. With respect, he ought to have discussed these principles in his reasons. However, I do not think he overlooked them. He said he had regard to the provisions of the Plan and in particular those relevant to the Hills Face Zone. Because of the way the case was conducted before him, I infer that his reference to the provisions of the Development Plan includes a reference to Principles of Development Control 1 and 2.
I do not think the Commissioner erred in his characterisation of the proposed development. He reached a conclusion about the works to be carried out on the northern slope which was open to him on the evidence.
The Alleged Error of Taking into Account the Unauthorised Earthworks
The decision of the Full Court in Kouflides v The City of Salisbury makes it clear that an applicant for consent is to obtain no advantage in terms of the assessment of his application from having established an unlawful use or from having carried out unauthorised works. Nor is it an impediment to a proper consideration of the application on the planning merits.
Early in his reasons the Commissioner noted that he was required to ignore the unauthorised earthworks, and he referred to Kouflides v The City of Salisbury. There would need to be a good reason to think that he later proceeded to ignore that direction.
Although it would appear that Mr Andrews formed his opinion in favour of the proposed development based on his assessment of the existing state of the land including the unauthorised earthworks, Mr Brunning formed a view which excluded the effect of the unauthorised earthworks. He gave the following evidence during the course of his cross-examination:
“QAre you aware of a principle in the planning law which is to the effect that where a development has been undertaken without approval, without authorisation, and you then come to assess it, you disregard and ignore entirely, for the purposes of the assessment, the fact that the development has proceeded. Are you aware of that principle?
AYes, and to that extent I have not formed my opinion solely on the extent to which the situation may be improved by this development. Again, I am of the opinion that the proposal before the Court, which comprises the earthworks and the landscaping, will indeed achieve a result which is better than that existing pre-development of the dwelling, which I believe is significantly superior to that which the development assessment required; which is reflected on R3.
…QTo an extent, you formed your opinion on the basis that the fact is that the proposal will result in a significantly better outcome than what is on the ground now; is that correct?
AThat, and also as I stated earlier; it will achieve a result which is superior to that which was required by the Development Assessment Commission, and, indeed, superior to that which existed pre-development of the dwelling. Ultimately, once the vegetation has been established and matured.”
Although Mr Brunning did not have precise details of the ground levels prior to the unauthorised earthworks, he appears to have been able to form an assessment in a general way. His evidence was evidence on which the Commissioner was entitled to rely. Furthermore, the Commissioner in forming an assessment was entitled to rely on what he saw on the view and his own expertise.
The natural topography or surface features of the land may be a reference to the land as it was prior to European settlement, or it may be a reference to the land as it was immediately prior to the construction of the dwelling and associated works. I think the Commissioner approached the matter by considering what might have been the natural state or condition of the land before European settlement. I do not think that he was wrong to do so.
It must be remembered that the natural topography is only one aspect of the natural character. The Commissioner did not have the precise ground levels for parts of the land. This would not have prevented him from making a general assessment of the natural topography of the land. No doubt it would have been better if evidence of the ground levels before the construction of the dwelling and associated works had been put before him, and the Court must be alert to exclude unauthorised works from its consideration. Furthermore, the Act, regulations and Development Plan show a desire to closely regulate earthworks in the Hills Face Zone, and there will be cases where precise calculations are necessary.
The Commissioner was entitled to look at the proposed development as a whole, and his task was to assess the state of the land under the Commission’s approval and compare it with the state of the land if the proposed development is carried out. There was material upon which the Commissioner could reach the conclusions which he did, and I do not think that he erred in his approach.
Seriously at Variance or Egregious Planning Error
I think the Commissioner reached a conclusion which was open to him on the evidence and having regard to the provisions of the Development Plan. I reject the arguments based on Grounds 5 and 6 of the Notice of Appeal.
Conclusion
For these reasons, I would dismiss the appeal.

[2002] SASC 146

6 May 2002