City of Port Adelaide Enfield v Moseley

[2008] SASC 88

SUPREME COURT OF SOUTH AUSTRALIA

(Land and Valuation Division)

CITY OF PORT ADELAIDE ENFIELD v MOSELEY

[2008] SASC 88

Judgment of The Honourable Justice Debelle

9 April 2008

ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - APPLICATIONS

Application for development plan consent to redevelop residential allotment – construction of single storey dwelling at rear of allotment behind existing dwelling – intention to divide allotment – application for land division not made – whether appropriate to consider development application for proposed dwelling before land division – appeal allowed.

Development Act 1993 s 33(1)(a), s 39(2)(a); Development Regulations 1993 Reg 16, referred to.
Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161; Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485, applied.
Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35; Australian Waste Pty Ltd v Compaction Application Tips Pty Ltd (2001) 79 SASR 532; Australian Waste Pty Ltd v Compaction Application Tips Pty Ltd (2001) 80 SASR 435; City of Mitcham v Freckmann (1999) 74 SASR 56; District Council of Angaston v Hamilton (1995) 64 SASR 110; Town of Gawler v Impact Investment Corporation Pty Ltd (2007) 99 SASR 115, considered.

CITY OF PORT ADELAIDE ENFIELD v MOSELEY
[2008] SASC 88

Land and Valuation Division

1. DEBELLE J.       This is an appeal from a decision of a Commissioner of the Environment, Resources and Development Court.

2. The respondent Mr Moseley applied to the City of Port Adelaide Enfield (“the Council”) for provisional development plan consent to redevelop an allotment of land.  The land is a single residential allotment with an area of approximately 920 square metres.  It has a frontage to Military Road, Semaphore South.  It is rectangular in shape with its frontage to Military Road being a little over 15 metres wide.  It has an average depth of 60 metres.  A single storey detached dwelling with garaging and sheds is already erected on the allotment.

3. Mr Moseley applied for development consent to construct a single storey dwelling at the rear of the allotment behind the existing dwelling.  The development application proposed what would in effect be a hammerhead division of the allotment with a drive extending past the existing dwelling to provide access to the proposed dwelling.  Mr Moseley has not lodged an application for development consent to divide the allotment into two allotments. 

4. The Council refused to grant provisional development plan consent.  Its reasons were:

   1.That the development is seriously at variance with Principle of Development Control 12(a) of the Residential Zone because the rear dwelling site area is below the 450 square metre minimum allotment size.

   2.The private open space of the existing dwelling is below what is required in Principle of Development Control 72 for the Residential Zone.

   3. The fence in front of the existing dwelling is forward of the main face of the adjoining dwelling and is therefore at variance with Principle 12(f) of the Principles of Development Control for the Residential Zone and does not maintain the streetscape of the area.

   4.The minimum width of the driveway does not meet the minimum access point requirement of 4.5 metres in width with a one metre wide landscaped strip.

   5.The retention of the existing dwelling will also impact negatively on the amenity of the locality and in particular its streetscape.

   Mr Moseley appealed to the Environment, Resources and Development Court (“the Environment Court”).  The appeal was heard by a Commissioner.  At the hearing in the Environment Court, Mr Moseley’s planning consultant gave evidence that Mr Moseley intended at some future time to apply for approval for a land division.  The Commissioner allowed the appeal.  The Council has appealed to this court from that decision.

5. Mr Moseley did not present any argument on this appeal either personally or through counsel.  He had informed the court that he would abide the orders of the court.  The Council was the only party represented before the court. 

   The Proposed Development

6. The proposed development involved the demolition of a garage and shed at the rear of the allotment and the removal of a significant portion of a veranda at the rear of the existing dwelling.  Alterations and additions will be made to the existing dwelling.  It is proposed to erect a fence at the rear of the existing dwelling to create a small private area of 88 square metres. 

7. The proposed single storey dwelling at the rear will contain three bedrooms.  An attached double garage will be constructed at the front of that dwelling.  The proposal is explained in more detail in the Commissioner’s reasons.

8. Mr Moseley did not apply for approval for a land division.  He simply sought approval for consent to erect a single storey dwelling at the rear of the allotment.  However, the plan of the proposed development that accompanied his development application made it very clear that he intended to divide the allotment to create a hammerhead shaped allotment with a drive extending past the existing dwelling to provide access to an allotment at the rear on which the new dwelling was to be erected.  Exhibit A1 in the Environment Court is the plan of the proposed development.  It shows the existing dwelling, the proposed alterations to it, the proposed dwelling and the driveway along the side of the allotment to the rear boundary on which the new dwelling will be erected.  It indicates that there will in fact be two allotments.  It not only depicts what is a de facto division of the land but is also entitled “Proposed land division to build new dwelling behind existing at no 49 Military Road, Semaphore for Mr T Moseley”.  There can be no doubt that Mr Moseley intends to divide the allotment.  However, there is no evidence that Mr Moseley has yet lodged an application to divide the land.  He has done no more than lodge the application for development consent to alter the existing dwelling and to construct a new dwelling.

9. The Commissioner noted that Mr Moseley might later divide the land into two allotments but dealt with the appeal on the footing that that eventuality might not occur and could not be assumed.  The plans which accompanied the development did not define the boundaries of the site of each dwelling with any certainty.  It was not, therefore, possible to define precisely the bounds of each allotment and the area of each allotment.  In the Commissioner’s view nothing turned on the precise delineation of either.  The Commissioner said:

   As far as this proposal goes, there is no requirement either in the legislation or the Development Plan for individual sites to be expressly defined in their totality, and that may or may not be the subject of a future development application.  In theory, for example, the two dwellings could be satisfactorily developed and occupied on a rental basis without any change to the current tenure and with a single owner. 

   I will return to the question of the land division.

   Zoning

10. The allotment is situated in a Residential Zone as prescribed by the Council’s Development Plan.  The Residential Zone is divided into a number of policy areas.  The land is in Policy Area 2 entitled “Lefevre Peninsula West Policy Area”.  I will call it “Policy Area 2”.  The structure of the Development Plan is that the Residential Zone prescribes Objectives and Principles of Development Control which apply throughout that zone.  Each policy area has a short note stating the desired future character of that policy area as well as Objectives and one or two Principles of Development Control that seek to bring about that desired future character.  The provisions of the Development Plan relating to Policy Area 2 are in these terms:

    Introduction

    The objectives and principles of development control which follow apply to that part of the Residential Zone referred to as the Lefevre Peninsula West Policy Area shown on Maps PAdE/43, 45 and 50.  They are additional to those expressed for the Residential Zone and the whole of the Council area.

    OBJECTIVE 

    Objective 1:       An area suitable for gradual redevelopment at medium densities through an increase in both the number and diversity of houses primarily by redevelopment of the older and poorer quality housing stock and infill development.

    Desired Future Character

    The policy area should ensure that redevelopment of poorer quality housing stock blends in with existing higher quality housing stock to increase the density and range of housing in the area.  New housing in the suburbs of Osborne, Taperoo and Largs North in the policy area should be designed towards residents with reasonable mobility due to the relative remoteness from community facilities.

    PRINCIPLE OF DEVELOPMENT CONTROL

    1.New dwellings should have a site area per dwelling in the range of 300 square metres to 450 square metres.

    It will have been noticed that the introduction states that the Objectives and Principles of Development Control are in addition to those expressed for the Residential Zone and for the whole of the Council area (“the Council-wide provisions”).  It is, therefore, necessary to consider what Council-wide provisions and what provisions in the Residential Zone are relevant to this proposal.  There are quite a number of them.  They are listed in the Commissioner’s reasons but there has been no attempt to distil from them those which are more relevant or to distil from them their intent and purpose: City of Mitcham v Freckmann (1999) 74 SASR 56 at [18]. It is necessary to recite only those that are relevant to the determination of this appeal.

11. Objective 1 in the Council-wide provisions states the goal of all planning, namely, orderly and economic development.  That goal is repeated in Principle 4 of the Council-wide provisions.  Objectives, 1, 2, 5 and 10 for the Residential Zone are in these terms:

    Objective 1:        A diverse range of housing styles that meet the needs of all people.

    Objective 2:        Containment of housing costs through a full range of design and development techniques.

    Objective 5:        Residential development that complements and reinforces the desired future character and amenity of localities.

    Objective 10:      The orderly development of residential areas in accordance with the Residential Areas Structure Plan, Map PAdE/1 (Overlay 5) and Structure Plan, Maps PAdE/1 (Overlay 1) Part A and PAdE/1 (Overlay) Part B.

    The most relevant Principles of Development Control for the Residential Zone are Principles, 9, 10, 12, 46 and 57.  They are in these terms:

    9Where any portion of land to be divided is used, or proposed to be used in common by two or more ownerships or occupancies for access, services, landscaping, outdoor living or other common function, the land should be divided into Community Title allotments.

    10Residential allotments with frontage to a major collector road or arterial road, as defined in Table PAdE/9, should be of a size that allows for a dwelling to be sited while enabling vehicles to enter and exit the allotment in a forward direction.

    12Hammerhead or “L” Shape allotments are not generally an appropriate form of development within the Residential Zone.  However, proposals may be appropriate where:

    (a)     the minimum allotment size is 450 square metres, excluding the ‘handle’ of the allotment;

    (b)     adequate stormwater drainage of the land can be demonstrated;

    (c)     the amenity of any existing dwelling on the land or adjoining land is not compromised;

    (d)     a sufficient vehicle turn around area is provided to enable a vehicle to egress the land in a forward direction;

    (e)     a minimum access way width of 4.5 metres is provided, which incorporates a minimum landscape strip of 1 metre to enhance the appearance of the access way from the street; and

    (f)     the streetscape character is enhanced through:

    (i)fencing not located forward of the main face of adjoining buildings; and

    (ii)the provision of an adequate separation distance between driveways of adjoining land to ensure driveways do not dominate the streetscape.

    46The visual bulk of buildings facing the street or the private open space of adjoining land should be reduced through design techniques such as colour, building materials, detailing, articulation, windows and other fenestrations.

    Principle 57 deals with set back of dwellings located on side boundaries.  In the ordinary course, the provisions for a policy area will prevail over the more general provisions operating throughout the Residential Zone.  It is an instance of special provisions prevailing over those which have a more general application:  Corporation of the Town ofWalkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161. However, where the provisions in the Development Plan relating to a policy area are silent in relation to a particular form of development, the general provisions in the Residential Zone will operate.

12. As the proposed division intended to create a hammerhead allotment, Principle 12 of the Principles of Development Control for the Residential Zone is of a special relevance.  It is to be noted that the Plan does not favour what it calls “hammerhead or ‘L’ Shape allotments”.  They are appropriate only if they satisfy the criteria specified in Principle 12, one of which is a minimum allotment size of 450 square metres.  Neither the Objective nor Principle 1 of the Principles of Development Control for Policy Area 2 make any provision for hammerhead developments nor do they in any respect qualify the meaning or operation of Principle 12.  Principle 12 must, therefore, be considered in respect of any proposed hammerhead development for an allotment in Policy Area 2.  If there is any inconsistency between Principle 12 and Principle 1 in Policy Area 2, Principle 12 will prevail.  The Commissioner, therefore, erred in deciding that little weight should be given to Principle 12. 

    Absence of Consent for Land Division

13. The question on this appeal can be readily determined by reference to the rationale which underpins all planning controls and all sound planning legislation.  That rationale is that development should be orderly and economic.  As already noted, that rationale is expressed as the first Objective of the Council’s Development Plan.  It is repeated in Principle 4 of the Principles of Development Control that operate throughout the Council area.  Not only is orderly and economic development the rationale for all sound planning, but it is also the goal of this Development Plan.

14. The goal of orderly and economic development requires that an applicant for development control should disclose all aspects of the intended development.  An application for development consent to use land for a particular purpose must not apply piecemeal but at the outset apply for the entirety of the proposed use: Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 at 500 per Stephen J (with whom Murphy J agreed) and at 518 per Wilson J. Stephen J said at 500:

    [W]here…the use proposed is a single use, no piecemeal series of applications is permissible…instead, that use must be stated in appropriate detail in one application and all the land involved in the use must be the subject of the application.

    That decision was followed and applied, albeit in a different context, in Australian Waste Pty Ltd v Compaction Application Tips Pty Ltd (2001) 79 SASR 532 and on appeal (2001) 80 SASR 435 at [28]. As Stephen J noted at 505, this principle does not prevent applications to develop land in stages: see also Brisbane City Council v Cunningham (2001) 115 LGERA 326 at [12]. In that event, a planning authority would be entitled to exercise its powers under s 39(2)(a) of the Development Act 1993 and seek information as to the developer’s intentions in respect of the rest of the land. 

15. Although the question in Pioneer was whether there had been proper disclosure of an intention to use adjoining land to gain access to the intended quarry development, the principle applies with equal force where the applicant for development consent intends to divide an allotment and erect a dwelling or dwellings on the newly created allotment.  The question whether the allotment is to be divided may be a relevant factor in determining the nature of the development as required by Regulation 16 of the Development Regulations 1993.  As Stephen J observed in Pioneer at 500-501, town planning involves two critical integers, land and use. Thus, an application for development approval involves a question of definition, what land and what use? A planning authority must therefore be able to ascertain the land intended for development when performing its duty under Regulation 16 to determine the nature of the development. That is one reason why the planning authority is entitled to know whether an allotment will be dedicated to the use proposed. More importantly, the question whether an allotment should be divided in a particular way should, as a matter of planning principle, if not also as a matter of common sense, be determined before any development upon that land has taken place. Good town planning requires land to be divided in an appropriate manner consistent with relevant planning principles. Logically, the division of land comes before the approval of any development of the land. If a development is approved before the approval of the land division, it has a real potential to put undesirable constraints upon a planning authority considering whether it is proper to grant consent to the proposed land division. If that is not the position, there is a real potential for undesirable development.

16. In this case, the absence of an approved division of the allotment raises a number of questions.  How is the land to be divided?  Is the land intended as a driveway to provide access to the rear allotment to be part of the rear allotment or is it to be a right of way over part of the front allotment?  The answers to those questions will assist in the determination of the nature of the development, that is to say, whether the proposal is for a group dwelling or for two detached dwellings.  The nature of the division will also bear upon the question whether development consent should be granted. 

17. When dealing with the fact that there was no application for land division, the Commissioner said:

    33If a land division of a specific type and delineation is later submitted, it is for the Council (DAP) to determine whether it sufficiently meets the Development Plan as a whole.  It may determine to refuse such application.  That is a risk that the appellant faces.  I proceed on the basis that there may never be any division (Torrens Title or Community Title) placing each dwelling on separate allotments and that they can satisfactorily be developed, occupied and remain on the one title.  A decision to approve the proposal before the Court, does not, in my view, prejudice or pre-empt the decision or fetter the discretion of the Council on a future land division application.

    With all respect to the Commissioner, he has erred in stating that an approval of this proposal would not prejudice or pre-empt consideration of a decision whether to approve an application to divide this allotment.  That assertion flies in the face of reality.  Furthermore, to approve a development not knowing whether there is to be a successful application for land division can only be described as an extraordinary, if not cavalier, approach entirely at odds with the goal of orderly and economic development and the application of sound planning principle. 

1. The fact that Mr Moseley intended to divide the allotment into two has the consequence that it was necessary for him to obtain approval to divide the land before the Council could be required to consider whether it should grant consent to the proposed redevelopment of the two allotments.  The fact that the Council had considered the application for provisional development plan consent for the proposed redevelopment of the site, had refused consent, and Mr Moseley had appealed to the Environment Court against that refusal did not mean that the Commissioner was required to hear and determine the appeal.  On ascertaining that Mr Moseley intended to divide the allotment, the Commissioner ought to have declined to hear the appeal on the ground that the application for land division had not been determined.  The appeal should have been dismissed on that ground or, at least, adjourned until the question of land division had been resolved.  It follows that the Council’s appeal to this court must be allowed.

   Other Errors

2. The Commissioner not only erred in failing to decline to hear the appeal because of the absence of an approved plan for the division of the land but also in his consideration of the question whether the proposed development should be approved. 

3. The Commissioner erred in that he determined that Principles of Development Control such as Principle 12 had no application.  He did so on the footing that they were not mandatory in effect and, secondly, because he held that Principle 12 was in conflict with the specific intention of Policy Area 2 and, in particular, Principle 1 for that policy area.  As already mentioned, in reaching that latter conclusion, the Commissioner has failed to have regard to the fact that Principle 12 is a special provision relating to hammerhead development.  It is not only a provision which operates in the absence of any provision for hammerhead developments in Policy Area 2 but it also prevails over Principle 1 for Policy Area 2 because it is a special provision which qualifies the more general application of Principle 1.

4. A number of aspects of Principle 12 bear upon the consideration of what would be an appropriate division of the land.  They include the minimum allotment size, the minimum width of the access way and the streetscape: see sub-paragraphs (a), (e) and (f) of Principle 12.  The minimum width for the driveway of 4.5 metres prescribed by sub-paragraph (a) includes a landscape strip one metre wide.  Mr Moseley proposes a driveway only 4 metres wide which narrows to three metres for a relatively long distance.  This is but one aspect which points to the constraints which would be imposed on a planning authority considering an application for land division. 

5. It is appropriate to add that, while Principle 12 is not mandatory in its operation, due weight must be given to it.  If that is not so, the purpose of the Development Plan is seriously undermined.  Although it was decided in South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35 that provisions of a Development Plan are not mandatory in their operation, that decision does not negate the fact that due weight must be given to them. The Objectives and Principles of Development Control are important and a planning authority should have regard to them. As King CJ said in South Australian Housing Trust v Development Assessment Commission at 38, in many cases non-compliance with a particular principle may be decisive in a planning authority’s consideration of an application. The Objectives and Principles of Development Control are advisory in the sense of expressing goals and guiding principles: per Prior J at 41. While not mandatory, the provisions of the Development Plan are directory and persuasive and one would normally expect a planning authority to apply them unless, as a matter of planning judgment, there is good reason to depart from them: District Council of Angaston v Hamilton (1995) 64 SASR 110 at 117 to 118 approved in Town of Gawler v Impact Investment Corporation Pty Ltd (2007) 99 SASR 115 at [22] per Doyle CJ and at [79] per Bleby J. If that is not so, the Development Plan becomes a relatively meaningless and ineffectual document. In addition, it would tend to negate the injunction in s 33(1)(a) of the Development Act that a development is to be assessed against the relevant provisions of the Development Plan.

6. The Commissioner’s determination of the proposal had little or no regard to Principle 12.  He failed to give proper weight to Principle 57 which deals with side setback guidelines and Principle 12(f) and Principles 48 and 49 in relation to setback and street scape.  It is unnecessary to examine these issues given that the appeal must be allowed on other grounds.

7. The proposed development suffers from the fact that it seeks to retain the existing building and develop another dwelling on the site.  The existing dwelling imposes constraints on how the overall development is to proceed and results in what is an undesirable development.  If a development of this kind is to proceed, it will require substantial re-consideration which might even require demolition of the existing building.   

   Conclusion

8. Had the only ground on which this appeal been allowed related to the absence of an approved land division, it might have been appropriate to remit the matter to the Commissioner to await the outcome of a land division application.  However, that is not an appropriate course because the Commissioner has erred on other grounds. 

9. For these reasons, the Council’s appeal to this court will be allowed.  The order of the Commissioner will be set aside and in its place, there will be an order dismissing Mr Moseley’s appeal to the Environment Court.

   Law Reform

10. Reference has already been made to the fact that it is desirable for issues of land division to be resolved before a planning authority is called upon to consider a proposed development upon that land. It is not uncommon for a developer to apply for development consent to erect a number of dwellings on a large allotment and, after the application has been approved, apply for consent to divide the land. This is an undesirable practice for the reason already given. Section 39(2)(a) of the Development Act invests planning authorities with the power to require a developer to state his intention as to the division of land.  There is no corresponding obligation on the developer to answer such an enquiry nor any sanction to ensure that the question is honestly answered.  It is desirable that the Development Act be amended to include provisions to that effect so that land is divided appropriately and consistently with relevant planning principle.