City of Burnside v Development Assessment Commission
[2005] SASC 434
•14 October 2005
Supreme Court of South Australia
(Land and Valuation Division: Application for Judicial Review)
CITY OF BURNSIDE & ANOR v DEVELOPMENT ASSESSMENT COMMISSION & ANOR
Judgment of The Honourable Justice Debelle (ex tempore)
14 October 2005
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS
Application for provisional development plan consent – notice to adjoining owners – whether development Category 2 or 3 – whether development correctly classified – meaning of “dwelling” – whether consent should be set aside – held, development plan was Category 3 – consent not quashed but declaration that development was Category 3.
Acts Interpretation Act 1915 s 26; Development Act 1993 s 4, s 33, s 34, s 38, s 39; Development Regulations 1993 reg 3, reg 16, reg 20, reg 32, reg 38, sch 1, sch 9, sch 10, referred to.
Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651; R v SA Planning Commission; ex parte City of Burnside (1986) 45 SASR 487, applied.
Moyes v J & L Developments Pty Ltd (2004) 236 LSJS 211, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"dwelling"
CITY OF BURNSIDE & ANOR v DEVELOPMENT ASSESSMENT COMMISSION & ANOR
[2005] SASC 434Land and Valuation Division
DEBELLE J. In this application for judicial review the plaintiffs seek an order in the nature of certiorari quashing a decision of the Development Assessment Commission granting provisional development plan consent to the South Australian Housing Trust to construct three residential flat buildings. In the alternative, the plaintiffs seek an order in the nature of a declaration that the grant of provisional development consent is invalid. In the further alternative, they seek a declaration that the proper category of the proposed development is Category 3.
On 29 June 2004 the South Australian Housing Trust (“the Trust”) applied to the City of Burnside (“the Council”) for provisional development plan consent to construct three residential flat buildings on land at 240 Greenhill Road, Glenside, near the intersection of that road and Fullarton Road. I have called the proposed development “three residential flat buildings” because that is how the Trust described them in its development application. One of the issues in this application is whether that is the correct description of the development and, if it is, whether it is the only description.
The land on which the Trust proposed to construct the buildings is within the area of the Council and subject to the Council’s Development Plan. The land is within Policy Area 1 of the Mixed Use (Glenside) Zone.
The second plaintiff, the Victoria Grove Retirement Village Pty Ltd (“Victoria Grove”), operates a retirement home on land adjoining the land on which the Trust proposes to construct the three residential flat buildings.
The Development Assessment Commission (“the Commission”) is the relevant planning authority in respect of any development undertaken by the Trust other than certain listed exceptions which are not relevant for present purposes: see s 34(1)(b)(i) of the Development Act1993 and reg 38 and Schedule 10(1)(a) of the Development Regulations 1993.
On 5 July 2004 the Council sent the application to the Commission for determination of the question whether provisional development plan consent should be granted. The Commission classified the application as a Category 2 development. The effect of that classification is that the Commission was required to give notice to owners and occupiers of adjacent land and those persons could make representations to the Commission in respect of the proposed development. However, those owners and occupiers had no right of appeal against the decision of the Commission: s 38 of the Development Act. The Commission gave notice on or about 10 November 2004.
On 23 November 2004 Victoria Grove lodged a representation with the Commission opposing the proposed development on the ground that it was seriously at variance with the Development Plan. On 14 April 2005 Mr Leydon, the solicitor for Victoria Grove, attended a meeting of the Commission and made submissions opposing the development. In the course of his submissions Mr Leydon contended that the proposed development was a Category 3 development.
The Commission did not give notice to the Council pursuant to s 38. Nevertheless, on 2 February 2005 the Council sent the Commission a representation opposing the proposed development and setting out the grounds of its opposition. The Council attended the same meeting of the Commission on 14 April 2005 and made submissions opposing the development. In the course of its submissions, it also contended that the development should be classified as a Category 3 development.
After receiving legal advice the Commission adhered to its decision that the proposal was for a Category 2 development and by notice dated 23 June 2005 it granted provisional development plan consent.
On 2 September 2005 the Council and Victoria Grove issued this application. The grounds on which they seek to quash the decision of the Commission are:
1.That the Commission incorrectly categorised the application as a Category 2 development and failed to categorise it as a Category 3 development.
2.That the Commission failed to notify the Council pursuant to s 38 of the Act.
3.That the Commission failed to notify either the Council or Victoria Grove of the receipt of amended plans in June 2005.
4.The Commission unlawfully permitted the Trust to vary the application pursuant to s 39(4) of the Development Act without repeating the process of notification required by s 39 of the Act, contrary to reg 20(3) of the DevelopmentRegulations because the variations made to the application by the amended plans were substantial.
The protagonists in this application were the two plaintiffs and the Trust. The Commission stated that it would abide the order of the court.
It is necessary to examine the nature of the proposed development in order to determine into which category it falls for the purposes of s 38 of the Development Act. As already mentioned, the Trust described the proposed development as three three‑storey residential flat buildings accommodating 21 dwellings. It is clear, therefore, that the Trust itself believed that the proposal was to develop residential flat buildings. Lest there be any doubt as to what is meant by the expression “three‑storey buildings”, the plans depict three buildings, each with a ground floor and two upper floors.
It is proposed that two buildings will house six flats, that is to say, two flats on each floor. The third building will have three flats on each floor, making a total of nine flats. The total of 21 flats will comprise 9 one bedroom flats and 12 two bedroom flats. Seven flats have been designed so that they can be adapted to provide access for disabled persons. They are all at ground floor level. The development includes a not insignificant area to house rubbish bins.
There is a very large and extensive area set aside for parking 22 vehicles, including one for disabled persons, and another area set aside for parking for four vehicles, including two for disabled persons. The large car parking area for 22 vehicles extends along the length of the allotment. It is served by a very long driveway which extends along the whole of the length of the allotment, a distance of at least 71.5 metres. The driveway is some 16.85 metres wide. A large and extensive area is, therefore, devoted to car parking and the communal driveway.
The classification of forms of development into Categories 1, 2 and 3 is effected by s 38(2) of the Development Act. It provides:
(2)Subject to subsection (2a), the following provisions apply in relation to the assignment of developments to those categories:
(a) the regulations or a Development Plan may assign a form of development to Category 1 or to Category 2 and if a particular form of development is assigned to a category by both the regulations and a Development Plan, the assignment provided by the Development Plan will, to the extent of any inconsistency, prevail within the area to which the Development Plan relates; and
(b) any development that is not assigned to a category under paragraph (a) will be taken to be a Category 3 development for the purposes of this section.
The exception in sub-s (2a) has no present relevance and may be ignored. Thus, a development will be assigned to Categories 1 and 2 either by the DevelopmentRegulations or by a Development Plan. In the case of an inconsistency between the Development Regulations and the Development Plan, the Development Plan will, to the extent of any inconsistency, prevail.
The classification by the Development Regulations into Categories 1 and 2 is effected by reg 32 and Schedule 9 of the Development Regulations. Schedule 9 prescribes those forms of development which are classified a Category 1 or 2. Any development which is not assigned a category is deemed to be a Category 3 development: s 38(2)(b) of the Development Act.
Part 1 of Schedule 9 assigns the kinds of development there listed to Category 1. The development proposed by the Trust does not fall within any of the listed kinds of development, and so is not a Category 1 development. Part 2 of Schedule 9 assigns the kinds of development there listed to Category 2. Paragraph 16 of Part 2 of Schedule 9 lists forms of development which might be assigned to Category 2. It is common ground that the development proposed by the Trust is not one of those listed forms of development in Schedule 9. Thus, the Development Regulations do not classify the proposed development as either Category 1 or Category 2.
If the Development Regulations were the only relevant provision, the Trust’s proposal would be a Category 3 development. However, it is necessary to examine also the provisions of the Development Plan. Principle 12 of the Principles of Development Control for the Mixed Use (Glenside) Zone prescribes the kinds of development which are to be treated as Category 1 developments. It reads:
Public Notification
12Those kinds of development listed in Table Bur/6, together with the following kinds of development are assigned to Category 1:
Dwelling
Fence
Outbuilding for use in association with a dwelling
except where:
(a) the dwelling or outbuilding is two or more storeys in height (where “two storeys” is defined as a total of one habitable floor level directly above another, not including an understorey garage), or more than 6.5 metres building height above natural ground level;
(b) the development has a solid wall located on a side or rear boundary, but excluding a fence or wall of less than two metres building height above natural ground level;
(c) the proposed finished ground floor level of the dwelling or outbuilding, or the level of any outdoor paved surface adjacent thereto, is more than 0.6 metres above natural ground level at any point;
(d) the development will result in more than one dwelling within the area of the site of the development at the time the development is proposed;
in which case the development is assigned to Category 2.
The kinds of development listed in table Bur/6 are different forms of advertisement and may therefore be ignored. The Principles of Development Control for this zone do not assign a category to any other form of development. The Trust contends that the proposed development falls within para (d) of the exceptions and so is a Category 2 development. Victoria Grove contends that the proposed development does not fall within Principle 12 and so is a Category 3 development.
Mr Roder, who appeared for the Trust, submitted that the word “dwelling” in Principle 12 is used in a way which can mean either the singular or the plural according to context. He called in aid s 26 of the Acts Interpretation Act 1915 which provides that in all legislation, unless the contrary intention appears, words in the singular shall include the plural, and words in the plural shall include the singular. The mere fact that the reading of words in a section in an Act of Parliament suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. When considering whether a contrary intention appears, attention need not be confined to any particular section of the Act: Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651 at 656. As Lord Morris noted at 658:
The Interpretation Act is a drafting convenience. It is not to be expected that it would be used so as to change the character of legislation.
One will therefore have regard to the substance and the tenor of the legislation and to its purpose and policy as well as to its context. In the reasons which follow I have regard to the context and to the purpose and policy of the Development Plan.
When Principle 12 is read as a whole, it is apparent that the noun “dwelling”, which first appears, is being used in the singular. Paras (a) and (c) of Principle 12 also point to the use of the singular. The terms of para (d) make it especially clear that, when first used, dwelling means one dwelling since para (d) is expressly directed to an occasion when there is more than one dwelling. When read in its context, it is apparent that para (d) is intended to apply where there is already a dwelling constructed on the land. It would be an abuse of language to reach any other conclusion.
Given that “dwelling” is used in the singular in Principle 12, there could be no other meaning to para (d). If understood in that way there is plenty of work for para (d) to do. It would apply in the case of a proposal to add a granny flat to an existing dwelling or in the case of a proposal to add another flat or home unit to an existing block of residential flats or home units. Thus, Principle 12 is intended to deal with one building used as a self-contained residence, that is to say, a detached dwelling. It is not intended to deal with a residential flat building which is a well known and different form of residential development. In the absence of any other provision in the Principles of Development Control in the Development Plan for this zone assigning a category to forms of development other than a dwelling, the proposal must be classified as a Category 3 development.
There is another line of reasoning which points to the conclusion that this is a Category 3 development. If a development application requires a planning authority to assess a proposal against the provisions of the Development Plan, the planning authority is required by reg 16 of the Development Regulations to determine the nature of the development. It was necessary for the Commission to determine the nature of the proposed development for the purpose of determining whether under the Development Plan the proposal was a Category 1, 2 or 3 development. On any view of the proposal, it is for three buildings each comprising residential flats. In addition, the relatively large enclosure for bins, the large parking area and the long and wide communal driveway clearly indicate the nature of the development is not a dwelling as that expression is ordinarily used or as it is defined in the Development Regulations.
For these reasons the development proposed by the Trust is neither a Category 1 nor a Category 2 development under the Development Plan. It is a Category 3 development. The same conclusion might be expressed another way, that is to say, when one looks at this building and applies the ordinary meaning of the word “dwelling”, the three buildings each comprising a number of residential flats are not “a dwelling”.
There is a further ground which reinforces this conclusion. So far, I have had regard to the meaning of the word “dwelling” in ordinary usage. The conclusion is confirmed if one has regard to the definition of the word “dwelling” in Schedule 1of the Development Regulations. It is defined to mean
a building or part of a building used as a self-contained residence.
By reason of reg 3 of the Development Regulations that is also the meaning of “dwelling” in the Development Plan.
If one were to substitute the first of those two meanings for the word “dwelling” in Principle 12, the meaning of Principle 12 is clear and unambiguous and is consistent with the contention of the plaintiffs. However, if one were to substitute the second meaning (part of a building used as a self‑contained residence), Principle 12 would be rendered meaningless except in the case where the development application proposed to make an addition to an already existing dwelling. Again, an example is the addition of a granny flat to an existing dwelling. There are no doubt other instances.
The other and perhaps more important point to be noticed in the definition of “dwelling” is that it refers to a building. That feature of the definition is also to be found in the definition of other forms of residential building in Schedule 1, namely, group dwelling, residential flat building, row dwelling and semi‑detached dwelling. It is apparent that these definitions establish a dichotomy between a building and a dwelling. In the case of a dwelling, one building used as a residence will constitute the dwelling (a detached dwelling is an obvious example) or a part of a building used as a residence will be a dwelling. Thus, a building may constitute one dwelling or a building may comprise or be constituted by a number of dwellings. That dichotomy is the more apparent in the definition of the four types of building listed above.
group dwelling means one of a group of two or more detached buildings, each of which is used as a dwelling and one or more of which has a site without a frontage to a public road or to a road proposed in a plan of land division that is the subject of a current development authorisation;
residential flat building means a single building in which there are two or more dwellings, but does not include a semi-detached dwelling, a row dwelling or a group dwelling;
row dwelling means a dwelling –
(a) occupying a site that is held exclusively with that dwelling and has a frontage to a public road or to a road proposed in a plan of land division that is the subject of a current development authorisation; and
(b) comprising one of three or more dwellings erected side by side, joined together and forming, by themselves, a single building;
semi detached dwelling means a dwelling –
(a) occupying a site that is held exclusively with that dwelling and has a frontage to a public road or to a road proposed in a plan of land division that is the subject of a current development authorisation; and
(b) comprising one of two dwellings erected side by side, joined together and forming, by themselves, a single building.
It would be an abuse of the meaning of the word “dwelling” both in ordinary usage and as defined in Schedule 1 of the Development Regulations to describe each of those four kinds of building as a dwelling. Each is in fact a particular kind of building which contains a number of dwellings and which, according to the manner in which the dwellings in the building are disposed, will fall into one of the four categories. The definition of multiple dwellings in Schedule 1 speaks of a special kind of building and may be ignored for present purposes. The development proposed by the Trust is, therefore, three buildings each containing a number of dwellings. The development is in no sense a dwelling but, instead, is three residential flat buildings.
Finally, this conclusion is reinforced by para 16 of Schedule 9 of the Development Regulations which create a dichotomy between a building comprising dwellings and dwellings: see, in particular paras (a) and (ab) of para 16.
In my view, the meaning and operation of Principle 12 is clear. At one stage in the course of the argument it seemed to me that each counsel was endeavouring to identify as many anomalies in the argument of his opponent as were possible with the purpose establishing the merit of his argument, or at least the lack of merit in the argument of his opponent. Listing anomalies is not the way to construe the word “dwelling”. It is a convenient means to test a proposition but not a method of construction. In my view, the approach I have adopted avoids that difficulty, although I would be the first to acknowledge that it may, nevertheless, be possible to identify one or two anomalies. I respectfully suggest that the approach I have identified is the more principled and avoids the creation of the kinds of anomalies which were identified by counsel.
One final observation should be made. If there is any doubt as to the meaning of Principle 12 it does not, I think, assist the Trust. In this respect I have had regard to the observations of Jacobs J in R v SA Planning Commission; ex parte City of Burnside (1986) 45 SASR 487 at 492. Although his Honour’s remarks were made concerning a provision in the Development Control Regulations 1982, they are no less apposite in this context. Jacobs J said:
That regulation identifies a number of proposed developments by way of exception to the general statutory obligation to give public notice. For the very reason that it is such an exception, it ought to be construed strictly, for the giving of public notice is the machinery by which important third party rights are conferred and protected, and such rights should only be denied in clear and unambiguous terms. If the language of the exception is not clear and unambiguous, it should be given a restricted rather than a benevolent construction.
The provisions of the Mixed Use (Glenside) Zone prescribe fairly tight controls as to the type of development to be permitted in the zone. The zone contains four policy areas. The proposed development is in Policy Area 1 which promotes continuation of the use of the Glenside Hospital. Policy Area 2 is intended to accommodate residential development of medium density. Policy Area 3 promotes office development with appropriately located residential development. Policy Area 4 is intended primarily to accommodate educational establishments, meeting halls and places of worship. Principle 11 of the Principles of Development Control which apply throughout the zone list certain non‑complying developments. There is no list of complying developments.
As already noted, Principle 12 provides that a dwelling is a Category 1 development with certain forms of dwelling deemed to be Category 2 developments. There is, therefore, an extensive variety of development for which the Development Plan does not provide which, along with non‑complying developments, would constitute Category 3 developments. The legislative scheme in the Development Act1993 is not significantly different from its statutory predecessors, the Planning and Development Act 1996 and the Planning Act1982 in relation to questions affecting public notice of developments and rights to lodge representations in relation to them and rights of appeal. The remarks of Jacobs J are, therefore, apposite.
Broadly speaking, the scheme in the Planning and Development Act 1996 and the Planning Act1982 provided for three forms of development, namely, permitted forms of development, prohibited forms of development, and other kinds of development. In the case of those kinds of development which were neither permitted nor prohibited, it was necessary to obtain development consent and the process of obtaining development consent required public notice of the proposal. This afforded an opportunity to those affected to make submissions to the relevant planning authority, and, if development consent was granted, a right to appeal to the relevant planning appeal tribunal.
The scheme in the Development Act1993 differs slightly but not in its essential character. It provides for permitted developments which are called complying developments, for prohibited developments which are called non‑complying developments and for other kinds of development. To that extent the scheme in each of the three Acts is the same. The Development Act1993, however, has one variation in that certain kinds of development will be classified either Category 1 or Category 2 with differing rights as to notice, but in both cases with no right of appeal to a person affected by the proposed development to the Environment, Resources and Development Court.
In the case of all other kinds of development, where public notice must be given, there is a right to make representations and a right to appeal to the Environment, Resources and Development Court should the planning authority grant provisional development planning consent. Principle 12, therefore, provides a form of exception from the general obligation to give public notice and ultimately from the risk of any grant of development control being subject to appeal by a person who has made a representation.
For all of these reasons, the development proposed by the Trust is neither a Category 1 nor a Category 2 development under the Development Plan. It is, therefore, a Category 3 development.
I turn to the second ground on which the plaintiffs rely, that is to say, that the Commission failed to notify the Council pursuant to s 38 of the Development Act. Regardless of whether any proposed development should have been described as a Category 2 or Category 3 development, the Commission is required by sub-ss (4) and (5) of s 38 to give notice of the proposed development to the owner or occupier of adjacent land. Section 4 of the Development Act defines adjacent land to mean, among other things, land that abuts other land. Greenhill Road abuts the site of the Trust’s development. The Council is the owner of the fee simple of Greenhill Road: see s 208 of the Local Government Act1999. The Council, therefore, contends that the Commission should have given it notice of the application pursuant to s 38.
There are a number of difficulties with the Council’s submission. It is unnecessary to address them all. It is sufficient to note that, assuming that the Commission was obliged to give notice, there has been no prejudice to the Council. The Council has succeeded in establishing that this is a Category 3 development. It cannot improve its position by relying on this ground.
Moreover, had I decided that the proposed development was a Category 2 development, the Council would not have suffered any prejudice. The Trust lodged the application with the Council and the Council sent the application to the Commission. The Council was, therefore, aware of the application. Most significantly, the Commission was required by reg 38(2)(b) to give the Council an opportunity to report on the matters under s 33(1) of the Development Act. On 2 February 2005, the Council made a representation opposing the proposal and in doing so dealt with matters under s 33(1) of the Development Act. In addition, the Council was heard in support of this application by the Commission at its meeting on 14 April 2005. It cannot be said that the Council has suffered any prejudice. This ground does not avail the plaintiffs.
I note in passing that there may be issues as to whether a Council falls within the meaning of the definition of an owner of land when it relies only on the fact that it holds the fee simple in a public street or road. See the definition of “owner” in s 4 of the Development Act. There may be occasions when a Council may wish to make submissions by dint of being the owner of a public street or road which adjoins the development. I prefer, however, not to express any final conclusion on the question whether a Council has a right to receive notice in those circumstances.
Grounds 3 and 4 of the application can be conveniently considered together. Given the conclusion I have reached it is not necessary to express any detailed reasons in relation to this aspect of the plaintiffs’ application. I make the following brief observations. After the Commission had heard objections from the Council and from those who had made written representations, it invited the Trust to vary the proposal. The Trust accepted the invitation and submitted an amended proposal. For the reasons expressed in Moyes v J&L Developments Pty Ltd (2004) 236 LSJS 211, a planning authority should be very circumspect before inviting an applicant for provision development plan consent to vary its proposal particularly after the authority has heard representations on the development application as lodged. However, there was no issue on that ground. Instead, the plaintiffs contend that the Commission has not acted as required by reg 20 of the Development Regulations.
It is necessary to have regard to both s 39(4) of the Development Act and to reg 20. Section 39(4) permits a relevant authority to allow an applicant to vary the development application provided that the essential nature of the proposed development is not changed. The plaintiffs do not contend that the variations made by the Trust changed the essential nature of the proposed development. Regulation 20 relevantly provides:
(1)If a relevant authority permits an applicant to vary an application under section 39(2) of the Act, the date of receipt of the application as so varied (together with any amended plans, drawings, specifications or other documents or information, and appropriate fee) will, for the purposes of the time limits prescribed in Part 8, be taken to be the date of receipt of the application.
(1a) However, subregulation (1) does not apply if the relevant authority is of the opinion that the variations to the application are not substantial.
…
(3)If an application is varied following referral under Part 5 or giving of notice under Part 6, the relevant authority may, if it is of the opinion that the variations are not substantial, consider the application without the need to repeat an action otherwise required under Part 5 or 6.
(4)If a variation would change the essential nature of a proposed development (as referred to in section 39(4)(a) of the Act), the relevant authority and the applicant may, by agreement, proceed with the variation on the basis that the application (as so varied) will be treated as a new application under these regulations.
(The references to Part 5 and Part 6 in reg 20(3) are to those parts of the Development Regulations. The reference to Part 6 is to the requirement to give public notice.) The plaintiffs contend that the variations made by the Trust were so substantial in nature that it was not possible for the Trust to make them without re‑advertising the proposal as required by sub-regs (1) and (3) when read together.
Mr Roder submitted that reg 20 was invalid. He first submitted that sub‑reg 1(a) was invalid as it altered the date of the application and so denied an applicant the benefit of s 53 of the Development Act. That submission must fail because it is founded on a misreading of the terms of sub-reg (1) which, when referring to time limits, refers only to those prescribed in Part 8 of the Development Regulations, which deal with the question of the time within which a planning authority must determine an application.
Mr Roder also contended that sub-reg (3) was invalid in that it altered the effect of s 39(4). For his part, Mr Henry submitted that that argument failed to give effect to the combined operation of ss 38 and 39 of the Development Act. Mr Henry contended that, when read together, it was proper for a regulation to be made which provided for those who made representations to have the capacity to make representations in relation to an amended proposal. If that were not so, he submitted, the provisions as to public notice of a proposal and the opportunity to make representations in relation to such a proposal would be nugatory.
On balance, I believe that the submissions made by Mr Henry are correct. However, it is unnecessary to express a firm conclusion on that issue. Equally, it is unnecessary to reach a firm conclusion on the question whether the proposal was so substantial that it required the Trust to give public notice again so that there could be an opportunity for fresh representations. If I were required to reach a conclusion on that matter, my present view is that the alterations were in fact so substantial that fresh notice had to be given. I repeat, I express no firm conclusion on either of those latter issues.
For these reasons, the Commission erred when it treated this development as a Category 2 development.
The parties have identified a number of issues as to the form of the order which should be made. Mr Roder informed the Court that he had express instructions to give an undertaking on behalf of the Trust that the Trust would consent to an order extending the time within which an appeal may be made to the Environment, Resources & Development Court until a date in about mid November. On that footing, he asked the Court if it would simply make an order declaring that the development was a Category 3 development. He acknowledged that it would be appropriate for notice to be given to the 110 persons, or thereabouts, who had lodged representations opposing the Trust’s development.
Mr Henry, for the Council, submitted that, had the Commission properly treated the application as a Category 3 development, it would have been necessary for it to have given public notice of the proposed development and to have given notice in writing to a wider group of persons than it had.
It is to be noted also that the relief initially sought by the plaintiffs was an order quashing the grant of development consent.
There can be no doubt that the failure of the Commission to classify the development as Category 3 has had the consequence that the procedures which the Commission ought to have implemented in relation to a Category 3 development have not been followed and the rights of those who made representations opposing the development have been curtailed. To the extent that the rights of those who made representations have been curtailed, that can be remedied by an order of the kind which Mr Roder suggested.
The only remaining issue is whether the failure to give public notice disentitles the Trust from the order it seeks.
Generally speaking, where a planning authority has assigned an incorrect category to a proposed development, the consequence is that the grant of development consent will be quashed. However, the remedies, both of an order in the nature of a declaration and of certiorari are discretionary.
The likelihood is that if the decision were quashed and the Trust were required to institute a fresh application, the Commission would reach the same conclusion and there would then be an appeal to the Environment, Resources & Development Court by those who sought to contest the Commission’s decision. In the particular circumstances of this case, I do not perceive that there is any public interest which requires the Trust to start again the process of obtaining provisional development plan consent.
In all the circumstances, I am satisfied that it will be sufficient to make an order declaring the development a Category 3 development. In making that decision I am conscious of the fact that the terms of s 38(14) of the Development Act prescribe that a person who has made a representation and who seeks to appeal against the decision of a planning authority granting provisional development plan consent must appeal within 15 business days after the date of the decision granting consent. The Environment Resources and Development Court has power to extend the time within which an appeal against the grant of development consent might be instituted.
That power exists by reason of the terms of s 38(4) of the Limitation of ActionsAct 1936. Given the undertaking by Mr Roder on behalf of the Trust, it would seem that there will be no difficulty in proceeding in this way. Lest any difficulty should occur, it is appropriate that any order I make should contain within it liberty to apply so that the parties may return to this Court if the Environment Resources and Development Court believes that in all the circumstances it cannot extend the time. If that is so, there will be no alternative but to quash the grant of development consent and require the Trust to initiate or to recommence the process of obtaining provisional development plan consent.
For those reasons there will be orders as follows:
1.Declare that the development proposed by the second defendant for the land at 240 Greenhill Road Glenside comprised and described in certificate of title register book vol 5842 folio 241 which is the subject of development application 180/0061/04 for which the first defendant granted provisional development plan consent on 23 June 2005 is a Category 3 development for the purposes of s 38 of the Development Act 1993;
2.That the second defendant give notice in writing in the form of schedule 1 of this order to the persons listed in schedule 2 of this order;
3.Liberty to apply;
4.That the second defendant pay the costs of the plaintiffs as taxed or agreed.
The above order is made upon the undertaking of the second defendant by its counsel that it will consent to an order extending the time within which an appeal may be made to the Environment Resources and Development Court until 18 November 2005. The terms of the notice in writing which shall be schedule 1 of the order will be the document altered and initialled by me and placed on the court file.
The persons to be listed in schedule 2 of the order will be the persons whose names and addresses appear in exhibit MPD6 to the affidavit of Mr Deb sworn 31 August 2005, that is to say, the persons whose names are listed on pp 1123 to 1137 of that document.
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