City of Burnside v Macag Holdings Pty Ltd - [2006] SASC 89

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CITY OF BURNSIDE v MACAG HOLDINGS PTY LTD
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Anderson and The Honourable Justice Layton)
30 March 2006
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - APPLICATIONS - WHETHER REQUIRED
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - WHEN CONSENT REQUIRED - MEANING OF "DEVELOPMENT"
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CLASSIFICATION OF USES
Appeal against decision of a single judge of the Environment Resources and Development Court - application by Council under s 85 of the Development Act seeking to restrain the respondent from storing or depositing fill on vacant land - land division consent already granted for the creation of residential allotments - certain conditions attached to the land division consent pursuant to the relevant Development Plan and s 33 of the Development Act - conditions included provisions for stormwater and sewerage infrastructure - bonding agreement entered into between Council and respondent for creation of stormwater easements - whether storage of fill on vacant land "unauthorised" development and a change of use of the land requiring approval - whether excavation and fill for installing stormwater and sewerage services constituted "building works" and a change of use of the land requiring approval - whether the bonding agreement constituted approval - Held: Appeal dismissed.
Development Act 1993 s 4, s 30, s 33, s 51, s 85 ; Development Regulations 1993 Schedule 2, Pt 9, div 2, reg 38(2)(b), reg 54, referred to.
Budarick v District Council of Elliston [2001] SASC 184; Development Assessment Commission v Macag Holdings Pty Ltd (2001) 80 SASR 104; Development Assessment Commission v Macag Holdings Pty Ltd [2001] SAERDC 3; District Council of Mallala v M & B Farmer Nominees Pty Ltd (2000) 76 SASR 443; Gawler & Barossa Jockey Club v Gawler Town Corporation (1995) 64 SASR 598; Oakden Shopping Centre v City of Port Adelaide Enfield [2004] SASC 373; Papps v Police (2000) 77 SASR 210; Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485; Soulemzis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Building Works"

CITY OF BURNSIDE v MACAG HOLDINGS PTY LTD
[2006] SASC 89
Full Court: Duggan, Anderson & Layton JJ

DUGGAN J: In my view the appeal should be dismissed. I agree with the reasons prepared by Layton J.
ANDERSON J: I have had an opportunity of reading the reasons in draft of Layton J and I agree that the appeal should be dismissed for the reasons given by her Honour.
LAYTON J: This is an appeal from the decision of a single Judge sitting in the Environment Resources and Development Court of South Australia (“the ERD Court”). The decision before the ERD Court concerned an application by the appellant, the City of Burnside, (“the Council”) seeking to restrain the respondent pursuant to an application made under s 85 of the Development Act 1993 (SA) (“the Act”) from what it alleged to be unauthorised storing or depositing of fill on land and sought to restrain such activities until approval had been obtained from the relevant planning authority. The application was refused by the ERD Court on 22 December 2005. The appellant now appeals to the Full Court against this refusal.
The Land
The land the subject of this appeal is situated at Duncan Road Beaumont (“the land”), being land described in Allotment 517 in Filed Plan 19032 within Certificate of Title Register Book Volume 5522 Folio 435.
The site of the proposed development is located east of Duncan Road. It is characterised by sloping land which forms a large steep walled gully, estimated to be 20 to 30 metres in depth. The gully leads to an informal watercourse allowing water runoff to travel north towards First Creek. The locality includes existing detached dwellings on the western side of Duncan Road, with residential development to the north; the rehabilitated Dashwood Gully Council landfill to the south which is now the Dashwood Gully Reserve, and an open space in the form of Mount Osmond Reserve to the east. There is also residential development on large allotments around Evelyn Court on land which includes “a significant level of landfill”.
The land is situated in the Residential Zone (R625) of the Burnside (City) Development Plan (“the Development Plan”). The principle objective of the R625 Zone is:
A zone accommodating residential buildings of a form and scale compatible with the predominant character of the zone, as created by substantial allotment widths, garden areas and front and side set-backs.
The land is also situated in the Hills Face Buffer Zone.
For a proposed division of land Council Wide Principles 6, 8, 9 and 10 are considered relevant and these are contained in the Development Plan:
6Building development should be located and take place with reasonable and effective precautions being taken against the risk of damage from ground instability.
8      Allotments should be located and designed in respect of:
(a)     size, shape and layout of allotments; and
(b)     the slope, nature or liability to inundation by drainage or flood waters of the land therein, to contain a site suitable for building and development or a use of land of a type consistent with the objectives and principles of development control for the zone concerned.
9All allotments should be capable of being provided with safe and convenient vehicular access.
10The boundaries of an allotment should be located where interference with a tree or trees will be minimal.
The respondent, Macag Holdings Pty Ltd (“Macag”) is the registered proprietor of the land. Since purchasing the land in 1999 the directors and shareholders of Macag, Mr Allan Seeley and Mrs Christine Seeley have made several applications seeking to divide the land prior to the three applications which are the subject of this appeal.
Brief history of earlier Development Applications by Macag
In order to place the current appeal in context, it is relevant to briefly summarise the history of various development applications by the respondent regarding the land.
The first application made by Macag dates back to December 1999 when consent was sought for the creation of four allotments and the construction of a road. In June 2000 the subdivision application was refused by the Development Assessment Commission (“the DAC”) on the basis that as filling would be required in order to build the road, it would require planning assessment.
A second application in October 2000 sought consent for the filling of the gully. During this time, Macag indicated in correspondence to the Council and the DAC, that it intended to fill the land on the basis that it did not constitute development. Macag began filling the land although there were objections from the Council.[1] The DAC sought leave to serve a summons on Macag pursuant to s 85 of the Act to restrain it from breaching the Act by the unauthorised filling of the land. The ERD Court refused leave to issue the summons and rejected the arguments that the filling work constituted development.
[1] Development Assessment Commission v Macag Holdings Pty Ltd (2001) 80 SASR 104 [7]- [10].
A second application for leave to issue a summons was made by the DAC on 7 December 2000 in the same terms as the first application in October 2000. Two additional affidavits were filed which had not been included in the first application. The ERD Court on 11 January 2001[2] held that the filling did not constitute development and again refused leave to serve the summons. The Full Court on appeal dismissed the appeal by the DAC citing the second application as an abuse of process but left the conclusion as to whether the filling of the land constituted unauthorised development to be resolved elsewhere.[3] This case will be discussed in greater detail later in these reasons.
[2] Development Assessment Commission v Macag Holdings Pty Ltd [2001] SAERDC 3.
[3] (2001) 80 SASR 104 [114].
The Development Applications the subject of this appeal
Macag then lodged three related Development Application Forms (180/D017/02, 180/D018/02, 180/D019/02) on 28 March 2002 seeking approval to divide the land to create 10 allotments, nine being residential allotments and Lot 10 being one large super-lot behind the residential allotments.
The applications were then forwarded to the Council as the relevant authority for assessment. In April 2002 the Council requested that the Minister declare the DAC as the relevant authority for assessment. The Council owned land adjoining the proposed development and had previously stated its objection to development on the land and foreshadowed a potential conflict of interest with Macag’s plans for development. On 10 May 2002 the DAC was declared the relevant authority and the Council was given an opportunity to report on the planning issues associated with the applications.[4]
[4] Development Regulations 1993, reg 38(2)(b).
On 4 June 2002 the Council provided a report to the DAC which was prepared by the Council’s Manager of Development Assessment, Mr Greg Vincent (“The Vincent Report”). The Vincent Report indicated that the proposed division was consistent with the objectives of the residential zone. The Report also proposed that certain conditions should be attached to any consent and that more information was required as to the management of stormwater, the stability of land, and the level of cut and fill of the land in order that the development meet the provisions of the Development Plan.
The DAC was also provided with a report from Mr Michael Walmesley from the Development Assessment Branch on 25 July 2002 (“the Walmesley Report”). Mr Walmesley considered that the proposed development was in accordance with the Development Plan and in his report he recommended that the DAC grant the development approval to Macag subject to certain conditions.
On 25 July 2002, the DAC considered the applications and granted Macag Provisional Development Plan Consent to the three applications to divide the land. Consent was granted to create nine residential allotments fronting Duncan Road with a “superblock” or “superlot” behind them but with six conditions attached to each of the applications. These conditions inter alia included that the final plans should indicate a three metre wide stormwater drainage easements along the rear boundary of the proposed allotments and allotment 502 which reflected those conditions recommended in the Vincent Report.
After granting Provisional Development Plan Consent, the Act requires that in order to gain “land division consent”, the proposed development must be assessed having regard to the provisions of the relevant Development Plan as well as other named criteria under s 33 of the Act. For a proposed division of land, such as that proposed by Macag, these conditions relevantly included; that the allotments be lawfully used for the purpose proposed; that adequate provision be made for the creation of appropriate easements and reserves for drainage, electricity supply, water supply and sewerage services; and that the South Australian Water Corporation requirements be satisfied.[5]
[5] Development Regulations Pt 9 Div 2; Development Act 1993 1993 s 33(1)(c) (i), (iii) and (iv).
The DAC granted land division consent to each of the three applications on 1 August 2002. The completion date for the three development applications was later extended by the DAC to 25 July 2008 to allow for the substantial development of the site.
The land division consent was subject to a number of conditions. Conditions 5 and 6 are of particular importance to this appeal and I recite them in full:
5.That the final plans shall indicate a minimum 3.0m wide stormwater drainage easement to be created along the northern (rear) boundary of the proposed allotments 5-8 in favour of the City of Burnside which shall be connected to an authorized stormwater disposal system.
6.That the final plans shall indicate a minimum 3.0m wide stormwater drainage easement to be created to the satisfaction of Council, located within or adjacent to the existing SA Water easement within proposed allotment 502 in favour of the City of Burnside.
The respondent subsequently arranged for plans to be drawn up for the disposal of stormwater, being Plan PC040016 drawing CO1A and sewerage plan, SA Water Sewer design, drawing no 04-3139-01.
In respect of a division of land, s 51(1) of the Act requires that the DAC issue a certificate indicating that it is satisfied that the prescribed conditions as to the development have been satisfied or that the applicant has entered into a binding agreement, supported by adequate security for the satisfaction of any conditions. Before the DAC issues a certificate, s 51(2) of the Act provides that it may require the applicant, the Council or any person or body to furnish information as to compliance with a particular condition.
The DAC gave the Council the opportunity to furnish this information. The Council in turn required the respondent to enter into a bonding agreement.
On 29 August 2005, the Council and Macag entered into the Bonding Agreement. The recital to the Bonding Agreement stated that the respondent would enter into the agreement supported by security in order to satisfy the Council as to its intended compliance with Conditions 5 and 6 of the land division consent. The Bonding Agreement contained a description of the works to be carried out, namely the construction of a 225mm diameter stormwater pipe, providing stormwater connection points for allotment numbers one to nine. Plan PC040016 regarding the specifications in relation to the position of the stormwater pipe was attached. This plan referred to the SA Water sewer design drawing number 04-3139-01 which was subsequently provided to the Council in August /September 2004.
After the Bonding Agreement was entered into, the Council indicated to the DAC that it was satisfied that the conditions imposed in relation to the development would be satisfied because it had entered into a bond with Macag. The s 51 certificate was subsequently issued.
In a letter dated 2 November 2005, Macag’s solicitors wrote to the solicitors for the Council giving seven days’ notice of its intention to fill the land from no later than 14 November 2005. This notice was in accordance with the consent interim orders made in the ERD Court on 9 March 2005[6] requiring seven days’ notice before depositing landfill on the land.
[6] There had been an earlier application made in the ERD by DAC pursuant to s 85 of the Act to prevent landfill by the respondent in respect of two Developments Applications 180/0562/03 and 180/0547/03 which DAC had refused. Interim restraining orders were made by consent in the ERD Court.
The text of the letter provides the explanation of the reason for the land fill. The relevant parts of the letter read:
…
In July 2005, my client received Development Approval in respect of three development applications being DA 180/D107/02, DA180/D018/02, DA180/D019/02. Subsequently, my client then entered into a bonding agreement with the City of Burnside in relation to the works contemplated by those development approvals. The approvals require the establishment of an easement at the rear of the approved allotments for the purposes of drainage and sewer. The drainage and sewer works were shown on the plans, which works were approved by SA Water (the works) and required by the City of Burnside.
So as to enable the works to be established fill need to be placed on the land so that the necessary pipe work etc can be established at the appropriate levels for drainage and sewer purposes.
Subsequently, the respondent and its contractors were observed by Council Officers, Neil Twigg and Kishan Madhan Sidhu, depositing and storing fill on the land. Photographs of the site inspection are exhibited to the Affidavit of Mr Sidhu of 15 November 2005 as exhibit KMS 13.
The section 85 application and the ERD Court decision
On 15 November 2005, the Council was granted leave to serve a Summons on the respondent pursuant to s 85 of the Act. The Summons sought a number of orders including that the respondent make good the breaches of the Act and sought an interim order restraining the respondent from further breaching the Act. The alleged breaches concerned, amongst other things, the unauthorised filling of the land; constructing buildings associated with the filling; the commencement of residential use; the commencement of depositing and storing unauthorised fill and solid waste on land without first obtaining approval from the relevant planning authority.
The ERD Court held that the Council failed to satisfy the burden of proof in relation to the s 85 proceedings to prove on the balance of probabilities that Macag had committed a breach of the Act. The ERD Court declined to make the orders sought by the appellant and granted the respondent an adjournment to argue the question of damages under s 85(16) of the Act and costs.
Grounds of appeal
The appellant sought leave to appeal pursuant to s 30(2) of the Act in so far as any grounds of appeal raised questions of fact for which leave was required. Leave was granted on 13 January 2006 by a single judge of this Court.
There are two overarching arguments on this appeal. The first argument relates to Lot 10 on the land which is currently vacant land.[7] Lot 10 according to the respondent is being used to store fill material for the purpose of implementing the already approved development. In particular, the fill is being stored for use in gaining the correct lid levels in the gully area, predominantly for Lots 8 and 9 in order to install infrastructure of stormwater and sewerage pipes associated with the residential use of the nine allotments. The appellant argues that this storage of fill in excess of 2000m³ on Lot 10, in combination with the lot being used for a turning area for vehicles, constitutes “unauthorised development” as it was a change in the use of the land. The appellant argues that the storage and change of use should have been the subject of a separate development application by the respondent or alternatively the fill should have been specifically identified in the land division application as being required for underground services.
[7] Although it is the subject of applications made by the respondent for residential land division before the DAC but has not yet been processed for decision.
The second aspect to this appeal relates to the nine allotments. The appellant argues that the excavation and the fill required for the construction of the stormwater and sewerage pipes were such major works as to amount to “building work” in their own right. They required separate development approval from the relevant planning authority over and above the already approved land division consent in order that the construction be assessed against the Development Plan and the Building Rules. It was also argued that the proposed placement of fill onto the residential lots, should be regarded as the “commencement of the change of the use of the gully”. This was particularly so as it had been indicated that additional soil was required other than that which was already on Lot 10. The total amount including that which was already on site was required to be between 5000 - 6000 tonnes because of the need for compaction to achieve the correct levels. It was argued that this change should be the subject of either a separate application or should have been specifically identified as a permanent change of use when the proposed application for land division was made.

The particular significance of the appellant’s arguments, if successful, is that instead of the development being treated as Category 1 it would fall within Category 3. Further the appellant submits that as the storage and use of fill amounts in its own right to “development” being a “change of use” or alternatively “building work”, then it would require assessment against the Development Plan. Further it would also involve consideration of planning issues such as amenity and topography as it is in the Hills Face Buffer Zone, as well as assessment as to safety under the relevant Building Code of Australia and the Building Rules.
Appeal Grounds, 1, 2, 3 “Unauthorised Development”
Reasons For Decision [9]
The first three appeal grounds relate to the first of the arguments on the use of Lot 10.
The argument of Mr Roder, counsel for the appellant is that the amount of fill on Lot 10 was extensive, it was planned to be stored there for three to four months before placement on the other allotments and it was being used as an area for trucks to turn around. It was submitted that the combination of these factors amounted to a change of use of Lot 10, which had previously been vacant land in the floor of the gully in the Hills Face Buffer Zone. The submission continued that this major change of use required an application for development in its own right and that in the absence of such an approval, it constituted unauthorised development.
The legal argument that supported this submission was that the definition of “development” in s 4 of the Act included a “change in use of the land”. Reliance was placed on a decision of this Court in Development Assessment Commission v Macag Holdings Pty Ltd[8] being a decision in relation to an earlier development application in respect of the land. Attention was drawn to the reasoning of the Chief Justice who made it clear that whilst each case will turn on its own facts, the influencing factors were “the significance of the change in topography of the land, by its permanent nature, as much as …the finding as to the purpose with which the filling was done”.[9] Reference was also made by Mr Roder to the case of Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council[10] which concerned the construction and use of an access road for the purpose of extraction of rock and stone. The road in that case was not the subject of the application for the proposed use of land although it was of itself a change of use of the land.
[8] (2001) 80 SASR 104, 126-127.
[9] (2001) 80 SASR 104, 127 [112].
[10] (1980) 145 CLR 485.
As to the facts of this case, counsel for the appellant referred to several affidavits of Mr Sidhu, a council planning officer, as to the quantity of fill which had already been deposited on the site by November 2005. Mr Sidhu suspected that the fill which was in excess of 2000m³, would not be used for the stormwater and sewerage infrastructure, but instead would be used for the internal road.
Counsel for the respondent, Mr Hayes QC, in response to the appellant’s argument, drew attention to the fact that the fill on Lot 10 is temporary as it would only be on the site for a few months, and the stated purpose for the fill is in order to install the stormwater and sewerage systems for the approved land division. Mr Hayes referred to evidence given by Mr Seeley, a director of Macag, that the fill could not have been used for the construction of a road or turnaround area for trucks as the fill was not compacted and was there solely for the purpose of stockpiling for later use in the construction of the stormwater and sewerage pipes. Mr Hayes indicated that the Council had put its contentions as to the purpose of the fill to Mr Seeley during cross-examination before the ERD Court and these were denied. The Judge noted that Mr Seeley, had “categorically denied” these contentions in his oral evidence and had pointed to the fact that the fill had not been compacted for use as a road.[11]
[11] City of Burnside v Macag Holdings Pty Ltd [2005] SAERDC 128, [14].
Her Honour also commented adversely on the fact that the Council had put forward no evidence to support their argument that the fill on the land was in excess of that which was required for the installation of the stormwater and sewerage infrastructure. Further, the Judge noted that the Council called no evidence as to an alternative interpretation of the plans or gave any evidence as to an alternative method of providing stormwater and sewerage services other than by using land fill.[12] The Judge also rejected the argument put by counsel for the appellant, that the fact that the deposit of the fill was on Lot 10 in some way suggested that the fill was not to be used in relation to the residential land division.
[12] City of Burnside v Macag Holdings Pty Ltd [2005] SAERDC 128, [13].
Mr Hayes submitted that without evidence to the contrary the Judge correctly rejected the arguments of the appellant. Her Honour said at [11] – [14]:
It seems reasonable to me that the fill should be stored on the site prior to use - it can hardly be placed immediately in the stormwater trench. Mr Hilditch argued that the fill was being stored on the superlot - Lot 10 - which is not a residential allotment. He suggested that this fact somehow refuted the evidence that the fill was to be used in relation to the residential land division. I reject this contention.
The arguments by counsel for the appellant, on this point, appear to be a repeat of those arguments which were put to and rejected by the ERD Court. The evidentiary onus fell on the Council to make out that the fill was excessive for the purpose stated by the respondent. The arguments are simply conjecture. Based on the evidence before it, the ERD Court correctly rejected this argument.
For similar reasons to those given by the ERD Court, I do not think that the arguments are persuasive. I reject the argument that the storing of fill on Lot 10 amounts to a “change of use” of the land requiring a separate application for development with separate requirements for assessment or that it required separate identification in the application for land division.
Failure to find the filling of the land constituted “building work”
Appeal Ground 4 and 5 and Reasons For Decision [9]
Grounds four and five of the Notice of Appeal largely concern Lots 1 - 9.
In these grounds, the appellant argues two matters. First, that the excavation and fill required for the proposed construction of the stormwater drain and sewerage pipes was extensive earthworks and constituted “building work” in its own right, being “development” within the meaning of s 4 of the Act. This therefore required approval.[13] Second, that the deposit of the fill on Lot 10, for use on Lots 1 - 9 should be regarded as the “commencement of the change of use of the gully” (particularly Lots 8 and 9) and should have been the subject of a separate application for development or specifically identified in the application for land division as a change of use.
[13] District Council of Mallala v M & B Farmer Nominees Pty Ltd (2000) 76 SASR 443; Gawler & Barossa Jockey Club v Gawler Town Corporation (1995) 64 SASR 598.
Section 4 of the Act provides:
building work means work or activity in the nature of—
(a)     the construction, demolition or removal of a building; or
(b)    the making of any excavation or filling for, or incidental to, the construction,     demolition or removal of a building; or
(c)     any other prescribed work or activity,
but does not include any work or activity that is excluded by regulation from the ambit of this definition;
building means a building or structure or a portion of a building or structure (including any fixtures or fittings which are subject to the provisions of the Building Code of Australia)…
development means—
(a)     building work; or
(b)     a change in the use of land; or
(c)     the division of an allotment; or
(h)an act or activity in relation to land (other than an act or activity that constitutes    the continuation of an existing use of land) declared by regulation to constitute development.
The appellant argues that “building work” in s 4(b) includes the making of any excavation or filling which is for or incidental to the construction of a building which in turn includes fixtures or fittings. The argument continues that as excavation and filling is required in relation to the stormwater and sewerage systems, it requires a separate application to be made for approval and it was not so identified in the present approval.
In response to this argument, the respondent argues that the appellant’s interpretation of the sections and their application to the facts, is incorrect. It was instead submitted that the reference in the definition of “building work” is that the “excavation and filling” must be, for or incidental to the construction of a “building”; the definition of “building” in turn refers to a “building or structure”. Further that fixtures and fittings are also required to be referable to a “building or structure” under the Building Code of Australia. However, the excavation and fill in this case is not required for a “building or structure”. The excavation and fill is required for the stormwater and sewerage system which is not a building or structure nor are they fixtures or fittings on a building or structure. I agree with the respondent’s argument and I note that the classification of “building or structure” under the Building Code of Australia does not encompass underground services such as sewerage pipes and stormwater drains in any event.
The respondent’s argument is further reinforced by other provisions. The definition of “development” in s 4(h) also means “an act or activity in relation to land … declared by regulation to constitute development”.
Schedule 2 of the Development Regulations 1993 (“the Regulations”) at clause A1 1 (1) and (2) provides:
A1         The following acts or activities constitute development.
1   (1)     Any excavating or filling (or excavating and filling) of land within the zones and areas to which this clause applies which involves the excavating or filling (or excavating and filling) of a volume of material which exceeds nine cubic metres in total, but not including the excavating or filling (or excavating and filling) of land—
…
(b)     incidental to the installation, repair or maintenance of any underground services; or
…
(2)     This clause applies to—
(a)     The Hills Face Zone.
It can be seen that Schedule 2 of the Regulations provides that in certain zones, if the cutting and filling of land involves more than 9 cubic metres this in itself may constitute “development”.[14] However where the excavating or filling is “incidental to the installation, repair or maintenance of any underground services” the Regulations themselves stipulate that the excavating and filling is not to be treated as “development”.
[14] Development Regulations 1993, Schedule 2, Clause A1 1(1) & (2).
The respondent submits that the volume of fill required is irrelevant, so long as it is “incidental” to the underground services being installed.
In the circumstances of this case I consider that the excavation and fill is incidental to the installation of underground services namely the stormwater and sewerage services. It would therefore be excluded as “acts or activities” which would amount to development in their own right or indeed would require separate identification in an application for development.
On the matter of separate identification in an application for land division there are still other provisions in the Act and the Regulations which support this interpretation.
The Act and the Regulations contain dedicated provisions which are specifically applicable to land division. Section 33(1)(c) of the Act refers to the conditions which are required to be satisfied in relation to a proposed land division. In particular s 33 (1) (c) (iii) of the Act requires that:
(iii) adequate provision is made for the creation of appropriate easements and reserves for the purposes of drainage, electricity supply, water supply and sewerage services.
Therefore, under the Act, provision for stormwater and sewerage services is integral to the conditions for approval of a land division development, and as previously discussed above, the same provisions are also required for the s 51 certificate.
With regard to the Regulations, in Part 9, Division 2 the prescribed requirements for land division are set out. Regulation 54, a prescribed requirement provides as follows:
54(4) Any drain which is necessary in accordance with recognised engineering practice for the safe and efficient drainage of the land and for the safe and efficient disposal of stormwater and effluent from the land must be provided and constructed.
The respondent submits that on a consideration of the overall legislative and regulatory provisions related to land division, there is no requirement for the details of the excavation and fill to be either the subject of a separate development approval, or to be separately identified in the application for land division. This is so in this case where the excavation and fill are required for the purpose of providing the necessary stormwater and sewerage services required for the approval of land division consent in accordance with s 33(1) (c) and s 51 of the Act.
The appellant argues on the contrary that the excavation and fill associated with the building of the drain required separate assessment and development approval against the Development Plan and the Building Rules.[15] Further that reg 54 is not intended to apply to extensive earthworks which may constitute “development”.[16] The appellant argues that the mere fact that, pursuant to the land division consent certain conditions had to be fulfilled, did not necessarily mean that if those conditions amounted to “development” that they did not need to be separately assessed. It was submitted to be a matter of “fact and degree” in each case.
[15] Oakden Shopping Centre v City of Port Adelaide Enfield [2004] SASC 373, [24].
[16] Budarick v District Council of Elliston [2001] SASC 184.
I reject the appellant’s submission. In an application for land division, there are number of conditions which are required to be addressed. They are not free standing but integral to the application for land division. It would make a nonsense if on an application for land division, there was a requirement to lodge either separate applications or to separately identify each and every aspect of the requirements or the essential components for the approval of a land division as though they were discrete acts or activities. On that interpretation, all roads, street kerbs, culverts, drains, footpaths, electricity supplies and telecommunication supplies and all excavations and fills required for their installation, would prima facie be required to be separately identified, and then assessed and approved under the Development Plan and Building Rules. It is in my view not a matter of “fact and degree” in each case as submitted by the appellant. This interpretation would bring about endless argument and litigation as to whether, in a given case, the particular acts or activities were or were not required to be treated as a discrete development in that way.
The respondent also drew attention to the fact that the exception in the Regulations also applied to the Hills Face Zone. It was submitted that this exception rebutted the appellant’s contention that special consideration was required to be given to the use of the fill in this case because the land was in the Hills Face Buffer Zone, which was of lesser environmental sensitivity than the Hills Face Zone.
Commencement of change of use
In considering the argument that the deposit of the fill on Lot 10 should be regarded as the “commencement of the change of use of the gully” in relation to Lots 1 – 9 and should have been the subject of a separate application for development or have been specifically identified in the present application, I turn first to the Full Court decision in Development Assessment Commission v Macag Holdings Pty Ltd.[17] In that case the Full Court concluded that filling of land would constitute “development” within the meaning of the Act only if it is filling for the purpose of construction of buildings.[18] In that case the filling of land, which was previously vacant and involved a permanent change to the topography for the purpose of facilitating the building of dwellings on the land was, on the facts, such a significant change as to amount to a “change of use of land” which amounted to “development” within the meaning of the Act.
[17] Development Assessment Commission v Macag Holdings Pty Ltd (2001) 80 SASR 104.
[18] Development Assessment Commission v Macag Holdings Pty Ltd (2001) 80 SASR 104, [95].
In this case, the filling is not for the purpose of constructing buildings for the reasons that I have previously indicated. Further, there is a great difference in the facts, degree and purpose of the fill in this case compared with the use of fill in the earlier case before the Full Court in 2001. I therefore reject the appellant’s argument on this aspect of the appeal.
A further argument which was addressed by the appellant as factual support for the submission that there should have been a separate application for the storage and proposed use of the fill, was that there was nothing in the development application for land division before the DAC which adverted to the amount of fill being required for the stormwater and sewerage services. Counsel for the appellant submitted that this was reinforced by the observation made in the Walmesley Report which set out recommendations for approval. In paragraph 7.2 it was asserted that:
The proposal does not include any excavation or landfill.
I note, however, that this paragraph is later qualified by the contents of the summary paragraph at 11.5 which states:
While development of the proposed allotments would be challenging it is certainly not impossible or improbable. The applicant has provided some examples of dwellings that can be accommodated on these sites with relatively minimal disruption to the sites. There are a number of sites in the Burnside area of a similar difficulty that have successfully been developed for residential purposes.
With regard to the issues raised by Council much of the information sought by Council was not considered relevant as it related to future development of the sites. The applicant has made it clear this proposal does not involve landfill [f]or the future dwellings that may be proposed. The applicant has provided information to demonstrate that the land could be developed for the purpose it is intended.
In response to this argument, counsel for the respondent referred to s 33 of the Act and Part 9 Division 2 of the Regulations and argued that in any development authorisation, including the process of granting Provisional Development Plan Consent and Land Division Consent, the provision of stormwater drainage and sewerage are integral to any approval. Therefore the respondent argues that it was entitled to rely on the terms of the development approval for the installation of the underground services and that it was authorised by the development approval to do that work. The respondent further submitted that the DAC had knowledge of the previous applications for land division and residential development, all of which involved fill being placed on the land.
By reason of the lengthy history of applications by Macag which had been rejected, and given the evidence of Mr Seeley who indicated that he did not want to jeopardise any further development applications by filling the land, the DAC knew that a corollary of land division consent and the need to install stormwater and sewerage systems, would necessarily involve significant land fill. Further, that the summary comments in the Walmesley Report clearly adverted to the steep nature of the terrain for the development.

In addition there is the Bonding Agreement and the finding of the ERD Court on this point at [10] of the reasons for decision:
I think it is plain from the scheme of the Act in respect of land division contained in the provisions which I have quoted above [Reg 54 and s 51(1)] that the provision of stormwater drainage and a sewerage system, where appropriate and required, are an integral part of a land division. The Council’s position in this matter is fundamentally irreconcilable with its participation in the bonding agreement which enforces the installation of the stormwater system by Macag.
Leaving aside the reference to the Bonding Agreement, which is dealt with hereafter, I agree with the respondent’s submissions as to the improbability that the DAC was unaware of the need for significant fill to install the underground services.
The “Bonding Agreement”
Appeal Ground 6 and Reasons For Decision [6][10]
The appellant argues that as a matter of law and fact the Bonding Agreement does not constitute approval under reg 54, and that it was nothing more than an agreement to ensure compliance with Conditions 5 and 6, namely the creation of an easement. The appellant further submitted that the plans provided with the Bonding Agreement were not detailed and that as there were no plans for the sewerage works, these works had not been approved.
The respondent in turn argues that the terms of the Bonding Agreement required Macag to comply with the plans and specifications attached to the agreement, namely the stormwater plan, which made reference to the sewerage plan and a failure to undertake this work could mean the Council could step in and do the work itself to ensure it was done. It was submitted that the plans attached and referred to in the Bonding Agreement overtly identified the substantial nature of the filling which was required as incidental to the installation of the underground services. The Council entered into the Bonding Agreement and at no time did the Bonding Agreement require the respondent to obtain separate approval to establish the pipes.
The stormwater plan attached to the Bonding Agreement in summary indicates the easement which runs at the rear of the allotments for a proposed 4m wide drainage and sewerage easement; that taking allotment pits three and four as an example the lid levels are 181.40 and 181.30 respectively with a pit size of 450 x 450; that the lid levels on these allotments are based on the finished surface levels detailed in the SA Water Sewer Design drawing no 04-3139-01. The plan therefore indicates that significant filling is involved in order to install the proposed drainage infrastructure.
I agree with the appellant that the Bonding Agreement does not of itself constitute approval under reg 54, but otherwise I reject the argument of the appellant. The appellant’s submissions ignore the history of this application and the close interaction of land division applications with the s 51 requirements and certificate.
Adequate reasons for decision
Appeal Ground 7
The appellant finally submitted that the reasons of the Judge were inadequate in that the judgment did not set out the findings of the principal contested issues or the other issues put before her Honour.
The appellant cites the case of Papps v Police[19] for the proposition that a failure to give adequate reasons may be an error of law giving rise to a ground of appeal. However in considering whether it is deemed an error of law depends on the circumstances of the case, such that if an appellate court cannot ascertain the reasoning upon which the decision is based and justice is not seen to be done then the reasoning may be inadequate. In my view the judgment adequately set out the appropriate findings on the issues put forward by the appellant and set out the reasoning behind the conclusion. I therefore reject this ground of appeal.
[19] (2000) 77 SASR 210, 219; see Soulemzis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 249.
Conclusion
I consider for the above reasons that the appeal should be dismissed.