City of Onkaparinga v Hyams - [2005] SASC 333

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CITY OF ONKAPARINGA v HYAMS
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Besanko)
31 August 2005
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL
An appeal against a declaration that a proposed construction is not excluded from the definition of development under the Development Act 1993 - the appellant Council proposes to construct a skate facility within an existing recreation area - on appeal - whether it is a building with a floor space for Development Regulations Schedule 3 par 2(1)(e) - whether it is playground equipment for Development Regulations Schedule 3 par 2(1)(f) - appeal dismissed.
Local Government Act 1999 (SA); Development Act 1993 s 4, s 32; Development Regulations 1993 Schedule 1: 3(1); Schedule 3: 2(1)(e), 2(1)(f); Acts Interpretation Act 1915 s 14, referred to.
Hyams v City of Onkaparinga [2005] SASC 123, considered.

CITY OF ONKAPARINGA v HYAMS
[2005] SASC 333
Full Court: Doyle CJ, Duggan and Besanko JJ

DOYLE CJ: The City of Onkaparinga (“the Council”) is the council for the purposes of the Local Government Act 1999 (SA) in respect of an area that includes the township of Willunga. The Council is responsible for the government and management of the area within its boundaries.
The Council proposes to construct a “skate facility” at Willunga. The skate facility will be on land set aside for recreational use, called “the Willunga Recreation Reserve”. The reserve forms part of the land designated by the Council’s Development Plan as the Historic (Conservation) (Willunga) Zone. The skate facility is designed for use by roller skaters and skate boarders. It is a facility designed for beginners. It is about 14 metres wide and 20 metres long. It includes two ramps about 1.2 metres high and a banked wall about 1 metre high. It is constructed of concrete.
It is not now disputed that the construction of the skate facility is development for the purposes of the Development Act 1993 (SA) (“the Act”). Accordingly the construction of the skate facility may not be undertaken unless the development is “an approved development”: s 32 of the Act. The Council has not obtained the consents that are required for the construction of the skate facility to be an approved development. The issue is whether the construction of the skate facility is an act or activity excluded from the definition of development by Schedule 3 to the Development Regulations 1993 (“the Regulations”).
A Judge of this Court declared, in proceedings brought by Mr Hyams, that the skate facility is not excluded from the definition of development: Hyams v City of Onkaparinga [2005] SASC 123.
The Council has appealed.
Development
The Council does not dispute that the skate facility is, for the purposes of the Act, a structure in the ordinary meaning of that term. Accordingly it is a building as defined, its construction is building work, and so is development as defined: see s 4 of the Act for the definitions.
Schedule 3
Schedule 3 to the Regulations sets out acts and activities excluded from the definition of development. It is common ground that to succeed on appeal the Council must establish that the construction of the skate facility is an act or activity set out in Schedule 3, and in particular in par 2, which deals with “Council works”.
It is agreed that the Willunga Recreation Reserve is a recreation area for the purposes of par 2.
The relevant provisions of Schedule 3 are to be found in subpar 2(1)(e) and (f). They exclude from the definition of development the following:
2(1)    The construction, reconstruction, alteration, repair or maintenance by a council of –
…
(e)     a recreation area, or a building in a recreation area, other than –
(i)the construction of a new building exceeding 30 square metres in total floor area on a recreation area; or
(ii)an alteration or extension to an existing building on a recreation area which will result in the total floor of the building exceeding 30 square metres; or
(iii)the construction or alteration of, or an extension to, any building within 100 metres of the coast (landward or seaward), measured from mean high water mark on the sea shore at spring tide; or
(iv)the placing or making of any structure or works for coastal protection, including the placement of rocks, stones or other substances designed to control coastal erosion, within 100 metres landward of the coast measured from mean high water mark on the sea shore at spring tide or within 100 metres of the seaward boundary of the recreation area where the recreation area extends seaward from the mean high water mark on the sea shore at spring tide; or
(f)    the placement, installation or construction of playground equipment on or in a recreation area; or
…”
Schedule 1 to the Regulations sets out definitions that apply “unless inconsistent with the context, or unless the contrary intention appears …”: reg 1(3). Schedule 1 contains a definition of “total floor area” which is as follows:
“total floor area” with respect to a building or other roofed area means the sum of the superficies of horizontal sections thereof made at the level of each floor, inclusive of all roofed areas and of the external walls and of such portions of any party walls as belong to the building.
I understand that this definition was overlooked by counsel when the matter was before the Judge, and was not drawn to the Judge’s attention. However, the approach that the Judge took was that the expression “total floor area” would usually apply only to buildings (as distinct from structures), and so in substance the approach the Judge took was one that accommodated the presence of the definition.
The issue
Mr Roder, for the Council, submits that the construction of the skate facility is the construction of a building in a recreation area, and that it is a new building (being a structure) that does not exceed 30 square metres in total floor area. He submits that the structure in question has no total floor area as defined. It is a building that does not have a floor area at all. Accordingly, it is not within the exception to the exclusion, and so the construction of the skate facility remains an activity excluded from the definition of development. He submits that only a building with a roofed area, or something like a roofed area, can have a total floor area as defined. The skate facility is a structure without a roof or anything akin to a roof. Nor does it have a floor area, he submits, in the ordinary sense of the word.
Mr Roder also submits that the construction of the skate facility is the “construction of playground equipment on or in a recreation area”, and so excluded from the definition of development by subpar 2(1)(f).
Mr Hayes QC, for Mr Hyams, submits that the area covered by the skate facility (an area well in excess of 30 square metres) is the total floor area of the skate facility. He submits that the defined expression “total floor area” can, without any real difficulty, be applied to the area covered by a structure like this. But if it cannot, he submits that the defined expression is one to be employed only when considering a building or structure with a roofed area. When the building or structure is not roofed, one applies the expression “total floor area” in subpar 2(1)(e)(i) in a practical way, and so applied it means the area covered by the skate facility. The definition of “total floor area” provides no more than a method of calculation, and it should not be allowed to control the meaning of the word “building” to which it relates.
That submission suggests that a building or structure will almost always have a floor area. Mr Roder makes two points in answer. First, that there will still be odd results. A huge tower might have a very small floor area. What is the floor area of a ferris wheel? Second, Schedule 6, fixing fees, expressly contemplates that there will be buildings that do not have a floor area. That suggests that the concept of a building (or structure) not having a floor area is contemplated by the drafter.
Mr Hayes submits further that the skate facility is not equipment, nor is it playground equipment. He relies upon the nature of the facility, and on its size.
Matters affecting the construction of the Regulations
Mr Hayes submits that the Regulations should not be construed in a manner that would permit such a substantial structure to be placed in a recreation area, without being subject to development approval. On the other hand Mr Roder submits that there is no reason of policy or principle to treat the Regulations as denying a council, as a local government authority, fairly wide powers in relation to a recreation area, without subjecting the exercise of those powers to development control.
I take the view that in considering the meaning of the Regulations, the Court should not be influenced either way by these considerations. The issue is important to the Council and to the residents who oppose it. But in the end it turns on the detail of the Regulations. I cannot discern in the Regulations any clear or consistent indication that a liberal approach should be taken to what a council can do without requiring development approval, or that a restrictive approach should be taken.
Mr Hayes submits that a provision that would exclude a particular development from the general regime of development control should be construed strictly. I agree with Mr Roder that the issue here is whether the proposal is development for the purposes of the Act, not whether an admitted development is nevertheless outside the regime of development control. Accordingly, there is no reason to construe subpar 2(1)(e) or subpar (2)(1)(f) restrictively.
There is one point of a general nature that is worth making. If Mr Hayes’ submission is correct, the term “building” is used throughout subpar 2(1)(e) in a consistent sense embracing both buildings and structures. It is not limited in subpars 2(1)(e)(i) and (ii) to structures with a roofed area, or with a floor area as generally understood. That is a matter that supports his approach. But, as the submissions outlined above illustrate, this approach will produce some odd results. What is the floor area of a ferris wheel? Does concrete paving have a floor area? Other difficulties can be postulated. If Mr Roder is correct, on the other hand, “building” is used in the opening line of subpar 2(1)(e) in its defined sense of building or structure, but then in subpars (i) and (ii) is used in the narrow sense of a roofed building or one that has a floor area as usually understood. And then in subpar (iii) the expression is again used in its defined sense as any building or structure. On his approach, determining the total floor area of a building should not be troublesome. Thus, Mr Hayes’ submission will give rise to some odd results when one comes to determine total floor area. Mr Roder’s submission will exclude from the definition of development a wide range of buildings (buildings and structures), limiting the exclusion only (for relevant purposes) by reference to buildings that are roofed, and so leaving a wide range of structures free of development control, regardless of size or bulk.
This is not a case to which there is a tidy solution. This is not a criticism of the drafting of the regulations. The issue that arises here illustrates the practical impossibility of drafting regulations to regulate something as varied as development, without throwing up difficulties of interpretation.
Par 2(1)(e)
There is no reason to read “building” in the opening line of par 2(1)(e) in other than its defined sense, as embracing buildings and structures.
Accordingly, subject to the exceptions, the erection of a structure in a recreation area is excluded from the definition of development.
Does the reference to “total floor area” in subpar (i) and (ii) have the effect of limiting the exception to the exclusion to a particular kind of building or structure, one that has a roofed area and so a floor area as that expression is ordinarily understood? As I have indicated, Mr Roder’s submission is that only a building with a roofed area will ordinarily have a floor area as that term is generally understood. While he appeared to acknowledge that there might be some exceptions to that proposition, his fallback position was that the area covered by the skate facility was not a floor area as that term is generally understood, bearing in mind the term’s usual relationship to a roofed structure.
As the Judge pointed out in his reasons, there is an instance in the Regulations of the use of the expression “total floor area” in relation to a structure. Par 4(1)(h) of the third Schedule dealing with “Sundry minor operations” refers to a water tank that “has a total floor area not exceeding ten square metres”. Mr Roder argues that this is not inconsistent with his submission, because his submission contemplates roofed structures, other than buildings in the ordinary sense. Also, Mr Roder rightly points out that when the drafter of the third schedule seeks to deal with structures, the drafter from time to time employs height, depth, capacity and volume as the means of identifying structures that are dealt with. He submits that had the drafter intended to deal with structures in subpar 2(1)(e), the drafter would have used one of these measures, and submits that the failure to do so is an indicator that the drafter did not intend to exclude structures (not being roofed) from the exception that the drafter had created. Mr Roder also made the point, referred to above, that the sixth Schedule, which provides for fees payable in respect of certain applications, distinguishes between buildings that have a floor area and buildings that do not have a floor area. This reflects an intention that the expression “buildings” will embrace structures that do not have a floor area.
It can be seen from these points that there are arguments either way. There is no obvious solution to the issue that Schedule 3 throws up.
In the end, I consider that the issue comes down to this. Subpar 2(1)(e) begins with an exclusion from the definition of development that embraces buildings generally, and so covers buildings and structures. Then there are a number of exceptions. Two of the exceptions refer to a building by reference to total floor area. If the use of that terminology indicates that the drafter is referring only to roofed buildings, or buildings with a floor area as usually understood, then the two relevant exceptions do not cover the same field as is covered by the opening words. If the reference to total floor area is taken as a reference to the area occupied by a building or structure, the definition of “total floor area” being available for more complex structures, then the exceptions to the exclusion cover the same field as the opening words.
To my mind, there is an argument, although not a strong one, for giving the word “building” a consistent meaning throughout par 2(1)(e), and so treating it on each occasion as embracing structures. I recognise the awkwardness in treating “total floor area” as referring to the area occupied by a building or structure, resorting to the defined expression for more complex structures. But I do not regard that as a greater awkwardness than arises from giving “building” a different meaning in different parts of subpar 2(1)(e). There is something to be said for the point that the drafter is unlikely to have excluded buildings (including structures) generally, and then, when considering exceptions to the exclusion in relation to recreation areas, to have limited the drafter’s attention to one species of building, those with a floor area as generally understood.
Taking all of these things into account, I am not persuaded that the Judge erred in deciding, as he did, that the skate facility was a building, the total floor area of which exceeded 30 square metres, and so was excepted from the activities that are excluded from the definition of development in relation to a recreation area.
Playground equipment
I agree with the submission by Mr Hayes that the skate facility is not equipment. The Shorter Oxford English Dictionary defines “equipment” as referring either to the action of equipping or, relevantly, when used with reference to a concrete object, “Anything used in equipping; furniture, outfit, warlike apparatus, necessaries for travelling, etc …”.
My view is that as a matter or ordinary usage, one would not readily call a large concrete structure like the skate facility a piece of equipment. It would be going too far, drawing on the dictionary definition, to limit equipment to articles that are readily portable or movable. But I consider that it is consistent with the general sense of the word to say, as I have suggested, that a sizeable fixture like this would not ordinarily be called a piece of equipment.
In addition, I agree with the Judge that the composite expression “playground equipment” indicates a reference to a children’s playground. As a matter or ordinary usage, “playground” is a term used for an area in which children play or enjoy recreation. The Judge acknowledged the figurative use of the word in expressions such as “the playground of the rich”, but that figurative use does not detract from the ordinary use.
In my view the skate facility is not equipment, nor in any event is it playground equipment. It is not being used to equip a playground. It is being constructed in a recreation area.
Accordingly, the construction of the skate facility is not excluded from the definition of development by subpar 2(1)(f).
Conclusion
The case before the Court has thrown up a real difficulty in relation to the application of Schedule 3 to the Regulations to certain kinds of structure. However I am not persuaded that the Judge whose decision is appealed was wrong, and accordingly I would dismiss the appeal. The arguments that have been put demonstrate that the drafting of subpar 2(1)(e) of Schedule 3 requires reconsideration.
DUGGAN J: I agree that this appeal should be dismissed for the reasons given by the Chief Justice.
BESANKO J. The facts of this matter and relevant legislative provisions are set out in the reasons for judgment of the Chief Justice.
I respectfully agree with the Chief Justice for the reasons he gives, that the skate facility is not excluded from the definition of development by reason of it being an act or activity within the terms of clause 2(1)(f) of Schedule 3 of the Development Regulations 1993. In other words, it is not the placement, installation or construction of playground equipment on or in a recreation area.
The proper interpretation of clause 2(1)(e) raises more difficult questions. I do not think that there is any doubt that the word “building” in the opening words of clause 2(1)(e) has the meaning attributed to it in s 4(1) of the Development Act 1993, namely, a building or a structure (s 14 Acts Interpretation Act 1915). There is nothing to indicate a contrary intention and it seems to me to be far too forced an interpretation to read the word “building” in the opening words narrowly, and to bring structures within the exclusion in clause 2(1)(e) on the basis that they are an “alteration” of a recreation area within the opening words of clause 2(1). I reject the appellant’s argument to that effect.

The word “building” in the opening words of clause 2(1)(e) means a building or a structure and the question is whether the reference to “total floor area” in clause 2(1)(e)(i) controls the meaning of the word “building” in that exception to the exclusion. I think there are arguments either way.
There are a number of arguments in favour of a narrower meaning for the word “building” in clause 2(1)(e)(i) than the opening words of clause 2(1)(e). First, the definition of total floor area in Schedule 1 of the Development Regulations 1993 relates to a roofed area and the definitions in Schedule 1 apply whenever the defined term is used in the Regulations “unless inconsistent with the context, or unless the contrary intention appears” (reg 3(1)). The argument is that the definition of total floor area suggests that only a building in the narrow sense of a building with a roof has a total floor area. Secondly, there are difficulties in determining the total floor area of a number of types of structures and examples are given by the Chief Justice. Thirdly, there are a number of structures excluded from the definition of development by other clauses in Schedule 3 where the relevant criteria in terms of exclusion are height, depth, capacity, volume, diameter, or length. The submission is that if the draftsman of the regulation had intended to include structures within the exception to the exclusion in clause 2(1)(e) he would have used one or more of these criteria which, on the face of it, are easier to apply.
On the other hand, I think the arguments in favour of giving the word “building” the same meaning in clause 2(1)(e)(i) as it has in the opening words of clause 2(1)(e) are more compelling. First, one would need good reason to conclude that, within the space of a few words, the draftsman would go from using the word “building” in one sense to using it in a more limited sense. There is no doubt he could do that but I would wish to be clearly satisfied that that was the intention. Secondly, it is not obvious to me why the draftsman would wish to make buildings above a certain size an exception to the exclusion and not take the same approach with structures. I accept that it is not possible to do anything more than generalise, but in my opinion it is relevant to note that many structures will affect the character and amenity of an area in the same way as buildings in the narrow sense and should be subject to the same scrutiny in planning terms. Thirdly, although I do not put a great deal of weight on this point, I note that clause 4(1)(h) in Schedule 1 defines the exclusion in relation to a water tank by reference to, among other things, total floor area. A water tank is not a building or structure which fits easily within the concept of a building in the narrow sense.
The definition of total floor area and the fact that it is difficult to see how it can be applied to a building other than a building in the narrow sense remains troubling. However, in my opinion, the definition cannot control the meaning of the word “building” in clause 2(1)(e)(i) and the definition does not apply to the term “total floor area” in that clause because the context indicates otherwise.
In my opinion, the word “building” in clause 2(1)(e)(i) includes a structure and the proposed skate facility is a structure. The reference to total floor area should be applied in a practical way and in this case the area covered by the proposed skate facility substantially exceeds 30 square metres. The proposed skate facility falls within the exception to the exclusion and it is development.
In my opinion, the appeal must be dismissed.