Colmer & Ors v Alexandrina Council & Anor - [2009] SASC 13

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division: Application for Judicial Review)
COLMER & ORS v ALEXANDRINA COUNCIL & ANOR
[2009] SASC 13
Judgment of The Honourable Justice Bleby
23 January 2009
ADMINISTRATIVE LAW - JUDICIAL REVIEW - STANDING TO INSTITUTE PROCEEDINGS
Whether plaintiffs have standing - no private right affected - whether plaintiffs have a special interest in the subject matter of the action - development interferes with view from plaintiffs' land - plaintiffs would have a right to make representations to Council if Development Approval set aside and a future application made - plaintiffs have standing.

ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - EXTENSION OF TIME
Application for extension of time within which to commence judicial review proceedings - proceedings eight months out of time - no good reason for delay - defendant will suffer substantial prejudice if extension of time granted - plaintiff has arguable case.
Extension of time refused - application for judicial review dismissed.

ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - CONSENTS, APPROVALS AND PERMITS
Application for judicial review of Development Approval - whether development properly classified as Category 1 development - whether "site" of development is held exclusively with dwelling - whether curtilage of dwelling includes right of way - site is held exclusively with dwelling - whether development comprises one dwelling - development consists of distinct and separate elements, being a residence and separate garage and studio - development is not a detached dwelling - improperly classified as Category 1.
Development Act 1993 (SA) s 38, s 84, s 85; Development Regulations 1993 (SA) reg 32, sch 9 cl 2, reg 3, sch 1; Supreme Court Civil Rules 2006 (SA) r 117, r 200; Planning and Development Act 1966 (SA); Planning Act 1982 (SA) s 53, referred to.
Australian Conservation Foundation Inc v The Commonwealth of Australia (1980) 146 CLR 493; Hutchens v City of Holdfast Bay (2007) 98 SASR 412, applied.
Bade v Rural City of Murray Bridge (2008) 101 SASR 302, distinguished.
McNamara v City of Charles Sturt [2001] SASC 368; Polites v City of Holdfast Bay (No 2) (1998) 72 SASR 475; Baker v City of Norwood (2003) 127 LGERA 200; Australian Conservation Foundation Inc v The State of South Australia (1990) 53 SASR 349; Day v Pinglen Pty Ltd (1981) 148 CLR 289; Hall v City of Burnside (2006) LSJS 440, discussed.
Jackamarra v Krakouer (1998) 195 CLR 516, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Curtilage"

COLMER & ORS v ALEXANDRINA COUNCIL & ANOR
[2009] SASC 13
Land and Valuation Division
BLEBY J.
Introduction

This is an application for judicial review of a Development Approval granted by the first defendant in respect of land owned by the second defendant. The plaintiffs require an extension of time in which to commence proceedings. Provisional Development Plan consent was granted in July 2007 and, by the time these proceedings were commenced in September 2008, construction was well advanced. The development interferes with the view available from the properties owned by the plaintiffs.
The second defendant, Janice Virgin, is the registered proprietor of an estate of fee simple in the land comprised in Certificate of Title Register Book Volume 5299 Folio 325, being allotment 54 of filed Plan 36838, portion of the Town of Port Elliot. It is one of five adjoining allotments, numbered 51 to 55 inclusive, located between Hutton Street and Rosetta Terrace, Port Elliot. Each allotment has parallel north-south boundaries and a southern boundary to an unmade road reserve known as Merrilli Place. To the south of the road reserve is the coastal reserve and the southern ocean. The allotments slope downwards from north to south and have uninterrupted views of the coastal reserve and the southern ocean.
Allotments 53, 52 and 51, to the west of allotment 54, have all been developed with detached dwellings. Mrs Virgin has built a dwelling on lot 54 which she and her husband intend to use as their permanent residence. It is the Development Approval for this dwelling which is the subject of these proceedings.
To the east of lot 54 is lot 55, also owned by Mrs Virgin, and which has Hutton Street as its eastern boundary. Adjoining allotments 51 to 55 on their northern boundaries is a series of four allotments, also extending between Hutton Street and Rosetta Terrace, which have Barbara Street as their northern boundary and access road. The plaintiff, Mark Landau, is the owner of allotment 772 on the corner of Barbara Street and Hutton Street. Next to his allotment to the west is lot 82 owned by the plaintiffs, Mr and Mrs Goldsmith. The next allotment to the west, allotment 81, is owned by the plaintiffs, Mr and Mrs Colmer. Each of the plaintiffs has on their respective allotment a two-storey residence with picture windows on the upper storey facing to the south and to the west, overlooking the five allotments fronting Merrilli Place, including allotment 54. Because of the slope of the five southern allotments to the south, the houses built on lots 52 and 53 are two-storey houses at the southern end but single storey at the northern end of the allotments, with vehicle garages adjacent to the right of way mentioned below. From the adjacent northern allotments owned by the plaintiffs, the houses on lots 51, 52 and 53 appear to be single-storey residences.
Prior to Mrs Virgin’s development on lot 54, the plaintiffs, from their upper storeys, had views to the south-east, the southern ocean to the south, and south-west across Encounter Bay to Victor Harbor and the Bluff, interrupted only at a relatively low level by the rooflines of the apparently single-storey developments in front of them.
Because there is no vehicular access available from Merrilli Place, although it is a public road reserve, a five-metre right of way has been created at the northern end of each of allotments 52, 53, 54 and 55 whereby each of the servient owners grants to the owners of other allotments a right of way. The common right of way is known as Knight Beach Walk and gives rear access to at least four of the five allotments from Hutton Street. The practical effect is that vehicular access to each of allotments 52, 53 and 54 is only via the right of way.
The second defendant’s development
Mrs Virgin and her husband are builders and developers. They built the house on lot 52 where they presently reside, as well as the house on lot 53, together with others in the vicinity, including Mr Landau’s and Mr and Mrs Goldsmith’s present houses.
By application dated 29 May 2007 Mrs Virgin applied to the Alexandrina Council (“the Council”) for provisional Development Plan consent for what was described as “New Residence” on lot 54. On 2 July 2007 the Council granted Development Plan consent to what was described as “Detached dwelling – Two Storey”. Building Rules consent was subsequently granted on 20 November 2007, and final Development Approval was granted on 27 November 2007. In January 2008 construction commenced.
Although allotment 54 is over 20 m wide, the development itself is constructed close to the western boundary, extending no further than 13 m from that boundary, and occupying most of the full depth of the allotment. At its southern end is a two-storey residence. At the northern end is a garage and visitor’s car park opening off the right of way. Above the garage is a second storey studio and store. The garage floor is at ground level at the northern end of the allotment and the same level as the upper floor of the residence. The two components are linked at the same level by a walkway and out-door entertaining area. The residence component has a series of slightly elevated butterfly roofs rising to the north and south. The studio also bears a shallow butterfly roof rising to the north and south.
That is sufficient description of the development for present purposes. It will be necessary to examine the nature of the structure in more detail when considering whether it constitutes a detached dwelling.
At the time when these proceedings were commenced, most of the external elements of the development were complete, including the second storey studio. However, at the time of the hearing it was not occupied, work having been suspended pending the outcome of these proceedings. The upper storey of the garage and studio part of the structure constitutes a significant interruption to the views of the plaintiffs from the second storeys of their respective residences. For that reason, they have commenced this action for judicial review alleging invalidity of the Development Approval granted to Mrs Virgin in respect of the development on lot 54. However, they have made clear that their ultimate objective is only the removal of the second storey component of the development above the garage and store.
The proceedings
By their further amended inter partes summons, the plaintiffs seek the following orders:
1An order in the nature of certiorari quashing the Development Approval in respect of Development Application 245/600/07 granted on 27 November 2007 by the First Defendant to the Second Defendant for a “detached dwelling – double storey, garage, balcony, deck, swimming pool and fencing” at Lot 54 No 3 Knights Beach Walk Pt Elliot SA (the development).
2A declaration that the said Development Approval is invalid and of no effect.
3A declaration that the development is a Category 3 kind of development for the purposes of section 38 of the Development Act 1993.
4A declaration that the development the subject of DA245/600/07 is seriously at variance with the provisions of the Alexandrina Council Development Plan made under the Development Act.
In fact, the Development Application is wrongly numbered in the summons, but nothing turns on that.
An application for an order in the nature of an injunction requiring Mrs Virgin to remove the garage and studio and to reinstate the land to its previous condition is not pressed before me. If the plaintiffs are successful in these proceedings, the future of the present structure will depend on whether Mrs Virgin makes and succeeds in a fresh application for Development Approval and whether proceedings are brought against her under ss 84 or 85 of the Development Act 1993 (SA).
The Council had treated Mrs Virgin’s application as an application for a Category 1 development under s 38 of the Development Act and one which therefore did not require public notification. The ground on which the plaintiffs challenge the validity of the Development Approval is that the Council’s classification of the development as Category 1 was erroneous because:
(a)The proposal was not for a “detached dwelling” as defined in the Development Regulations 1993 because its “site” was not exclusive; and
(b)The development was not a detached dwelling because of the inclusion of the garage/studio as a separate structure.
The defendants acknowledge that, if the development was not a Category 1 Development, it was a Category 3 development, which required notice of the application to be given to an owner or occupier of “adjacent land”, to the owner or occupiers of land which, according to the determination of the Council, “would be directly affected to a significant degree by the development”[1] and to the public generally. No notice of the application was given to anyone.
[1] Development Act 1993, s 38(5).
For their part, the defendants challenge the standing of the plaintiffs to bring the action. If the development is a Category 1 development, neither they nor their predecessors in title were entitled to notice of the application. However, even if the development is a Category 3 development of which adjoining owners were required to be notified, it is argued that the plaintiffs Mr and Mrs Goldsmith and Mr Landau did not have any interest in their respective properties either at the time of the lodging of the development application (29 May 2007), at the time of the granting of provisional Development Plan Consent (2 July 2007) or at the date of final Development Approval (27 November 2007), they each having acquired their respective interests in the adjoining allotments after those dates. The plaintiffs Mr and Mrs Colmer have been owners and occupiers of their property since before the date when the application for provisional Development Plan Consent was lodged.
Mr Landau and Mr and Mrs Goldsmith are presently the owners of adjacent land. Mr and Mrs Colmer are not, but I am prepared to assume that, had the Council considered the matter, it would probably have determined that they would be “directly affected…” by the development. If the development was not a Category 1 development there was clearly a fundamental procedural defect in the Council’s processing of the application.
The plaintiffs’ original attack on the validity of the Development Approval included the alleged invalidity of a portion of the Council’s Development Plan. As the Minister for Urban Development and Planning has a role in the preparation and promulgation of Development Plans,[2] the State of South Australia was joined as a party but was later disjoined when the plaintiffs indicated that they would not pursue that argument.
[2] See Development Act 1993, Part 3, Division 2.
Rule 200(2) of the Supreme Court Civil Rules 2006 requires that an action for judicial review must be commenced “as soon as practicable after the date when the grounds for the review arose and, in any event, within six months after that date”. The Court has power to extend the time within which the proceedings may be commenced.[3]
[3] Supreme Court Civil Rules 2006, r 117(2)(b).
The plaintiffs commenced these proceedings on 8 September 2008, more than 14 months after the granting of provisional Development Plan Consent and more than nine months after the granting of Development Act approval. If they are to succeed, the plaintiffs therefore need an extension of time within which to commence the proceedings.
The issues
The issues which require consideration are therefore the following:
1The standing of the plaintiffs and each of them to bring the action for judicial review;
2Whether the plaintiffs should be granted an extension of time within which to bring the proceedings. This in turn requires consideration of:
(a)the length of the delay;
(b)the reason for the delay;
(c)whether the plaintiffs have an arguable case; and
(d)the extent of prejudice to the defendants by granting an extension.[4]
3Whether the development is a Category 1 development for the purposes of s 38 of the Development Act. That in turn requires consideration of whether the development is a “detached dwelling”:
(a)as being on a site that is held exclusively with that dwelling; and
(b)because of the inclusion of an allegedly separate garage/studio.
[4] See generally Jackamarra v Krakouer (1998) 195 CLR 516, 520-521; Bade v Rural City of Murray Bridge (2008) 101 SASR 302, 325; [2008] SASC 189, [116].
Because the third issue impinges on a consideration of the first and second issues, it is convenient to deal with that issue first.
Whether the development was a Category 1 development
Section 38 of the Development Act 1993 (SA) relevantly provides that the Regulations or a Development Plan may assign a form of development to Category 1. In this case, the question is whether the development is assigned to Category 1 under the Development Regulations 1993 (“the Regulations”). Regulation 32 relevantly provides:
32—Public notice categories
(1)Subject to subregulation (2), the various forms of development specified in Part 1 of Schedule 9 are assigned to Category 1 for the purposes of section 38 of the Act.
…
(5)For the purposes of the Act and these regulations, a development that comprises 2 or more elements (as set out in the relevant application or as determined by the relevant authority)—
(a) where all of those elements are within Part 1 of Schedule 9, will be assigned to Category 1 for the purposes of section 38 of the Act;
(b) where all of those elements are within Part 1 or Part 2 of Schedule 9 (with at least 1 element within Part 2), will be assigned to Category 2 for the purposes of section 38 of the Act.
Sub-regulation (2) is not relevant for present purposes.
Clause 2 of Part 1 of Schedule 9 of the Regulations relevantly provides:
Schedule 9––Public notice categories
Part 1––Category 1 development
2 (1)Except where the development is classified as non-complying under the relevant Development Plan, any development which comprises—
(a)     the construction of any of the following (or of any combination of any of the following):
(i)     one or more detached dwellings;
...
(ca)   the construction of (or of any combination of) a carport, garage, shed, pergola, verandah, swimming pool, spa pool or outbuilding if—
(i)     it will be ancillary to a dwelling; and
(ii)it will not be constructed any closer to a street frontage than the wall of the dwelling that is closest to the street frontage; and
(iii) it will not be constructed within the following distance of a boundary of the site of the development:
(A)if it will have solid walls (including walls with windows or made of glass)—900 mm; and
(B)in any other case—600 mm; and
(iv)in the case of a carport, garage, shed or outbuilding—
(A)it will not exceed 1 storey; and
(B)if it will have eaves—the eaves will not be more than 3 metres above the ground; and
(C)if it will not have eaves but will have gutters—the gutters will not be more than 3 metres above the ground; and
(D)it will have a floor level that is not more than 0.6 metres above or below natural ground level at any point; and
(E)it will not have a floor area that is more than 54 square metres; and
(F)no wall will be more than 9 metres in length;
...
(f)     a kind of development which, in the opinion of the relevant authority, is of a minor nature only and will not unreasonably impact on the owners of occupiers of land in the locality of the site of the development.
Regulation 3 and Schedule 1 of the Regulations defines “detached dwelling” as follows:
“detached dwelling” means a detached building comprising one dwelling on a site that is held exclusively with that dwelling and has a frontage to a public road, or to a road proposed in a plan of land division that is the subject of a current development authorisation;
“Dwelling” is also defined as meaning “a building or part of a building used as a self-contained residence”.
(a) The “site” of the dwelling and whether it is held exclusively with that dwelling
The plaintiffs argue that this development is not a detached dwelling for two reasons. The first is that the “site” of this development is not held exclusively with that dwelling as required by the definition of “detached dwelling”.
“Site” is also defined in Schedule 1 of the Regulations as follows:
“site” means the area of land on which a building is built, or proposed to be built, including the curtilage of the building, or in the case of a building comprising more than one separate occupancy, the area of land on which each occupancy is built, or proposed to be built, together with its curtilage;
It will be noted that the “site” on which a dwelling is located includes the curtilage of the dwelling. “Curtilage” is not defined in the Regulations.

For the purposes of considering what constitutes the site of this dwelling, it is not necessary to decide whether the development is properly characterised as a detached dwelling standing alone, or whether it is a development which compromises two or more elements. That will become the subject of consideration in the plaintiffs’ alternative argument. The whole of the building work comprising this development is obviously included in the curtilage of whatever constitutes the dwelling.
The plaintiffs argue that the curtilage of this dwelling includes the right of way known as Knight Beach Walk. They argue that that part of the right of way over portion of lot 54, over which the owners of other allotments have rights of way, is therefore not held exclusively with the dwelling.
The plaintiffs rely on my decision in McNamara v City of Charles Sturt[5] in which I held that the whole of the driveway which served as vehicle and pedestrian access to one dwelling on portion of the land in question formed part of the curtilage of that dwelling. However, portion of the same driveway was also used for access to another dwelling on another portion of the land. The curtilage of the first dwelling and therefore its “site” was not held exclusively with that dwelling. However, as I observed in that case, neither of the definitions of “detached dwelling” or “site” require the identification of an allotment or of land comprised in a separate Certificate of Title on which the dwelling is to be erected. I also observed that what constitutes the curtilage of a building was a question of fact in each case. The answer in that case turned on the design and layout of the particular means of access to each of the dwellings in that case.
[5] [2001] SASC 368.
The question in this case is whether the right of way, portion of which abuts this dwelling or its curtilage, is itself part of the curtilage of the dwelling. As I noted in McNamara, what constitutes the curtilage of a building was the subject of a helpful discussion by Debelle J in Polites v City of Holdfast Bay (No 2).[6]In particular, his Honour said:[7]
The question whether a driveway forms part of the curtilage of a dwelling will depend on the facts and circumstances of each case. In those instances where the dwelling has a frontage to a street or road and the rear abuts a lane which provides access for vehicles to the land, the lane is not part of the curtilage. However, in those instances where a driveway provides the only means of entry from a street or road, the driveway may form part of the curtilage. It will be a question of fact and degree in each case.
[6] (1998) 72 SASR 475, 481-482.
[7] Ibid 482.
This right of way has unbarred access to Hutton Street. As dwellings have been built along its southern boundary, apart from a visitor parking space which is plainly part of the exclusive curtilage of the particular dwelling, solid barriers have been erected to separate each dwelling from the right of way, no doubt because there is uncontrolled access to the right of way. This development is no exception.
In Polites Debelle J cited with approval the Oxford English Dictionary definition of “curtilage” as being “adequate”:
a small court, yard, garth or piece of ground attached to a dwelling house, and forming one enclosure with it, or so regarded by the law; the area attached to and containing a dwelling house and its outbuildings.
He also pointed out that the meaning of the term had not altered in its usage in Australia, citing the Macquarie Dictionary definition:
The area of land occupied by a dwelling and its yard and outbuildings, actually enclosed or considered as enclosed.
In this case it is the enclosure of the buildings from the right of way, the lack of enclosure of the right of way from Hutton Street and the public access to the right of way which are significant factors in preventing the right of way from being properly regarded as being part of the curtilage of this development. It therefore does not form part of the “site” of the dwelling. There is nothing to suggest that whatever else constitutes the site of this dwelling is not held exclusively with the dwelling.
The plaintiffs’ first argument must therefore fail.
(b) Whether the development comprises one dwelling
It is then necessary to address the plaintiffs’ alternative argument that the development does not come within Part 1 of Schedule 9 of the Regulations.
The plaintiffs argue that the subject of this application is more than a detached dwelling. It comprises an additional and separate element, namely, the garage and studio. That is not an element within Part 1 of Schedule 9, and so the development cannot be a Category 1 development. Even if the additional element falls within para (ca), it does not comply with a number of the requirements set out in that paragraph. It was not suggested that the additional element could come within para (f) as being one which, in the opinion of the Council, could be of a minor nature only and would not unreasonably impact on the owners or occupiers of land in the locality of the site. The first question is therefore whether the garage and studio is properly considered to be an integral part of the dwelling or whether it is something separate.
It will be noted that reg 32(5) refers to a development that comprises two or more elements “as set out in the relevant application or as determined by the relevant authority”. The application for development consent described the proposed development as “New Residence” and nothing more. However, the accompanying plan, on one of the sheets, depicted the west elevation and east elevation of the “House”, which included the total development, but also included separate elevations of the “House south” and “House north” and “Garage south” and “Garage north”, the latter two depicting, separate from the house, the garage and studio.
The decision notification form issued by the council indicating provisional development plan consent described the development as “DETACHED DWELLING – TWO STOREY” and no more.
The decision notification form relating to the Building Rules Consent given on 20 November 2007 by a private certifier described the nature of the proposed development as “Two storey detached dwelling, garage, balcony, deck, swimming pool and fencing”.
The decision notification form issued by the council on 27 November 2007 granting final development approval described the nature of the proposed development as “DETACHED DWELLING – DOUBLE STOREY, GARAGE, BALCONY, DECK, SWIMMING POOL AND FENCING”.
In his affidavit, Mr Atkinson, the council’s planning officer who issued the final development approval, said that he adopted the Building Rules description in error, and that the description should have read “two storey detached dwelling with associated swimming pool and deck”. I find that explanation somewhat disingenuous. The description on the final approval is not a complete adoption of the description in the Building Rules approval. It is, however, an accurate description, whereas the supposed intended description is not.
It is also significant that in the decision notification of the final development approval, after listing the conditions of Development Plan consent and a reference to the conditions of Building Rules Consent, there is the following section:
BUILDING CLASSIFICATION: 1 Residential Building
10 Non-Habitable Outbuilding
Although it is not entirely clear, it seems that these classifications relate to classifications under the Building Code of Australia. Whether that is so or not, it gives recognition to the fact that there are two buildings or components of the development, the second of which can only relate to the garage and studio.
It would therefore seem that both the application and the Council’s determination acknowledge two or more elements to the development.
Regulation 32(5) contemplates that a development may contain more than one element. Significantly, clause 2(1)(ca) of Part 1 of Schedule 9 contemplates that a carport, garage, shed, pergola, verandah, swimming pool, spa pool and outbuilding may be ancillary to a dwelling, not necessarily part of it. Indeed, the existence of para (ca) gives colour to the meaning of “detached dwellings” in clause 2(1)(a)(i) and to “one dwelling” in the definition of “detached dwelling”. The structures mentioned in para (ca) may be ancillary to a dwelling or may be integral to it. Whichever they are will largely be a matter of impression. If a structure is not integral to a detached dwelling and falls within any of the categories in para (ca), is ancillary to a detached dwelling and complies with the other requirements of the paragraph, it will fall within Category 1. If any of those elements are missing, it will not.
Analysis of the plans is consistent with the apparent acknowledgment in the application and the Council’s determination that there are two or more elements to this development.
The plans show two distinct and separately roofed components of the development. I have already referred to the separate north and south elevations of the two components.
The larger or southern component of the development comprises, on the upper floor, a balcony, living, dining and family room areas opening off a kitchen with an adjacent pantry and office. The north-western section of the upper floor comprises a bathroom, store and laundry. What would comprise the north-eastern section of the upper floor of the building, if it were roofed, is a large entrance court, barbecue and verandah area. To the east of the entrance court and verandah area is part of a narrow swimming pool and external stairs leading to the lower floor level. On the lower floor are three bedrooms, two walk-in wardrobes, two bathrooms, a home theatre and separate gymnasium. The internal floor area of the lower floor appears to be slightly larger than the roofed area of the upper floor. For the sake of convenience I will describe this part of the development as “the residence”. I will describe the northern component of the development as “the garage and studio”. It also contains, on the upper level, besides the studio, a bathroom and store.
The lower level of the garage and studio is on the same level as the upper floor of the residence. On the northern side of the garage and studio, that is approximately natural ground level. However, the southern wall of the garage and studio extends, by way of excavation of the natural soil, to the lower floor level of the residence.
Because of the differing and irregular shapes of the lower and upper floors of the residence, the separation between the two components varies at different points. At the lower floor level of the residence the separation is approximately 8.4 m. On the western side of the development the separation is approximately 4.6 m. At the upper floor level of the residence and ground floor level of the garage and studio, the separation is 12 m on the eastern side and 4.6 m on the western side. The distance on the eastern side is unroofed and includes the large entrance porch, barbecue and verandah area, and swimming pool and surrounds, the top of the swimming pool being at upper floor level of the residence. On the western side at the upper floor level of the residence is a covered walkway between the residence and the entrance porch into the garage and studio.
The two components of the development are joined at the upper floor level of the residence and ground floor level of the garage and studio by a suspended concrete slab which abuts the swimming pool on the eastern side and below which is a substantial rainwater tank storage area. It would appear that the only vertical structures in the area separating the two components are a 1.2 m high swimming pool safety fence and a 2 m high wall on portion of the western side of the covered walkway separating it from a small service yard.
As I said, whether the garage and studio is ancillary to the residence or integral to it is largely a matter of impression. There is undoubtedly a visual linkage, as there is with any artificial structure linking a residence with some other structure or outbuilding. It was argued that there was a structural linkage. That is not apparent from the plans. Each of the residence and the garage and studio appears to be a separate and independent structure. The two are linked by the suspended concrete deck, but neither structure is dependent on the other or on the deck for its integrity. It was also argued that there is a functional linkage, the garage and studio being but part of one facility to be used and enjoyed as such. However, no doubt the same can be said of many of the structures mentioned in clause 2(1)(ca) of Part 1 of Schedule 9.
In Baker v City of Norwood, Payneham and St Peters[8] Debelle J held that a freestanding garage separate from a proposed dwelling but connected by a covered walkway was not part of a detached dwelling for the purpose of clause 2(1)(a)(i) of Part 1 of Schedule 9 of the Regulations, nor did it comprise a kind of development within clause 2(1)(f). As his Honour held, that interpretation of the Regulations was justified by reference to a significant difference between the regulations made under the Planning and Development Act 1966 and the present regulations made under the Development Act. It was also supported by other provisions of the Regulations and sound policy reasons which he expressed as follows:[9]
A garage must be treated separately from a dwelling. There is no single form of garage. Plainly, they vary in size, shape and bulk. They also vary in the location on the site. The present proposal provides an example of how they can vary in size, in this case from a three-car garage to a two-car garage. Many house properties have a garage for one car only but, more frequently, garages are large enough to accommodate two cars. The location of garages also varies. Some are at the rear of the dwelling, others are on the side, and others elsewhere on the allotment. Thus, it was necessary for the Council to consider the overall development, namely, the dwelling and the garage and to determine whether, when viewed together, the dwelling and the garage were of a minor nature only.
The Development Plan and the Development Regulations refer to kinds of development which include a number of different uses. In those cases, it is often necessary to determine the dominant use. For example, a petrol filling station may include a shop and office as well as the petrol filling facilities but it is quite apparent that the dominant use is as a petrol filling station and not some other form of development. Similarly, a warehouse may include an office but, because the dominant purpose is a warehouse, it will, for the purposes of assessing whether development consent should be granted, be regarded as a warehouse and not as some other kind of use: see Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 and Minister of Environment and Planning v District Council of Stirling (1990) 53 SASR 505. However, that principle does not assist, particularly by reason of the fact that para 4 of Sch 3 expressly deals with outbuildings associated with a dwelling. The problem of classification is addressed for some other uses of land by the Development Regulations defining the use of land or buildings as being “primarily” for a specified purpose. See, for example, the definitions of restaurant, road transport terminal, and shop. However, that fact does not assist. Instead, it emphasises the present difficulty.
[8] (2003) 127 LGERA 200; [2003] SASC 282.
[9] Ibid 206-207; [26]-[27].
Although the structures joining the two components in this case are more substantial and more complex than the ground level covered walkway in Baker’s case, the principle is the same. While the whole of the development is integrated, there are nevertheless distinct and separate elements comprising the residence, on the one hand, and at least the garage and studio as the second element, on the other hand. The residence component is no less a residence by the exclusion of the garage and studio, and it would be difficult to classify the garage and the studio as a separate dwelling or self-contained residence.
I return to the definition of “detached dwelling”. It is defined as meaning “a detached building comprising one dwelling”. In other words, the building must consist of one dwelling or “building used as a self-contained residence”. As can be seen, portion of this development answers that description. However, portion does not.
As the garage and studio is not part of a detached dwelling, the development can only be treated as Category 1 if the garage and studio falls within either para (ca) or para (f) of clause 2(1) of Part 1 of Schedule 9 of the Regulations. While a garage is mentioned in para (ca), a studio is not. Neither is a garage and studio. Even if the building qualifies as an outbuilding, the plaintiffs did not argue that it complied in all respects with para (ca), and it does not. It cannot be described as a development of a “minor nature only” and one which will “not unreasonably impact on the owners or occupiers of land in the locality of the site of the development” for the purposes of para (f).
Accordingly, the Council improperly classified the development as Category 1 for the purposes of s 38 of the Development Act. Counsel were agreed that if it was not properly a Category 1 development, it was a Category 3 development. Accordingly, notice of the application which was required under s 38 was not given, and potential objectors were deprived of their right to make representations and, if they were dissatisfied with the result, to appeal to the Environment, Resources and Development Court. There are therefore grounds for setting aside the provisional Development Plan consent and therefore the Development Approval.
The standing of the plaintiffs
It does not follow, however, that the plaintiffs are entitled to the relief they seek. It is necessary to consider first the standing of each of the plaintiffs to seek the relief.
The general principle to be applied was stated by Gibbs J (as he then was) in Australian Conservation Foundation Inc v The Commonwealth of Australia:[10]
It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by the statute to do so.
The rules as to standing are the same whether the plaintiff seeks a declaration or an injunction. In Boyce v. Paddington Borough Council, Buckley J. stated the effect of the earlier authorities as follows:
“A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with …; and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right.” [footnote omitted]
[10] (1980) 146 CLR 493, 526-527. See also 547-548, Mason J (as he then was).
After discussing further authorities, Gibbs J concluded that the expression “special damage peculiar to himself” should, in his opinion, be regarded as equivalent in meaning to “having a special interest in the subject matter of the action”.

The plaintiffs are unable to identify any private right of theirs which has been interfered with. There is no common law right to a view. The position was, with respect, accurately summarised by Debelle J in Hutchens v City of Holdfast Bay:[11]
It is a notorious fact that the capacity to enjoy a pleasant view will be reflected in the value of the land and improvements thereon and that has been recognised by judicial decision: see, for example, Day v Pinglen Pty Ltd (1981) 148 CLR 289 at 300; IDA Safe Constructions Pty Ltd v Woollahra Municipal Council (1981) 48 LGRA 62. Coastal views and views over water and waterways tend to have a higher value than views over land.
However, views, like privacy, are not specifically protected by the common law, although a tort of unjustified invasion of privacy might be developing: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [58], [106]-[111], and [185]-[191]. In William Aldred's Case (1610) 77 ER 816 at 820-821; 9 Co Rep 57b at 58b it was held that, while an action lies for obstructing light or air, no action lies for obstructing a prospect. The court reasoned that a prospect is “a matter only of delight, and not of necessity” and the law does not give an action for such things as delight. Thus, it was not possible to acquire a right in the nature of an easement in a view or prospect; see also Hunter v Canary Wharf Ltd [1997] AC 655 at 685, 709, 726. In addition, the law of nuisance does not protect a view: Gartner v Kidman (1962) 108 CLR 12 at 46; Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201. One difficulty with the protection of a right to enjoy a view is that it might conflict with the principle that an owner of real property owns the airspace above the land, at least to the extent necessary for the ordinary use and enjoyment of the land or structures upon it: Bernstein v Skyviews & General Ltd [1978] QB 479.
[11] (2007) 98 SASR 412, 417; [2007] SASC 238, [11]-[12].
The question is whether the plaintiffs have a special interest in the subject matter of the action.
Section 38 of the Development Act confers a right on certain persons to make representations to a planning authority in respect of a Category 3 development. Where representations are made, representors must be given notice of the decision and, if they are dissatisfied with the decision, they have rights of appeal against the decision to the Environment, Resources and Development Court. Those who must be given notice under s 38 are the owner or occupier of each piece of adjacent land, the owner or occupier of “land which, according to the determination of the relevant authority, will be directly affected to a significant degree by the relevant development if it were to proceed” and the public generally.[12]
[12] Development Act 1993, s 38(5).
In Australian Conservation Foundation Inc v The State of South Australia[13] the Full Court held that the right to make such representations under the predecessor to s 38,[14] which was cast in similar terms, afforded standing to seek declarations and injunctions restraining further action on a proposed development until the procedures were complied with to “any person who seriously intends” to take the steps they were entitled to under that section. King CJ, with whom Cox and Duggan JJ agreed, said:[15]
I would have no difficulty about affirming that the principle that a plaintiff must have an interest in the subject matter of the action beyond that which exists in the public at large, would justify the denial of standing to members of the community who, although possessing theoretical rights to make representations and to appeal if the proposed development were the subject of an application for planning authorisation, have no serious intention of exercising those rights. I cannot see any valid reason, however, for denying standing to maintain an action to prevent a development without compliance with the proper planning process, to a person who seriously intends, if the proper process is followed, to make representations and perhaps appeal against an adverse decision. A person who entertains such a serious intention seems to me to have an interest beyond that of the interest of members of the public generally in the enforcement of the law.
[13] (1990) 53 SASR 349.
[14] Planning Act 1982, s 53.
[15] (1990) 53 SASR 349, 354.
At the time when this application was considered by the Council, neither Mr Landau nor Mr and Mrs Goldsmith had rights to make representations to the Council other than as members of the public. However, at that time they had no special interest, as they were not owners of property in the vicinity, and it is not suggested that at that time they would want to have made representations. They then had no interest at all in any development on lot 54. Mr and Mrs Colmer are not the owners of adjacent land, but as I have already said, I am prepared to assume that, if the Council had considered the matter, it would probably have determined that they would be “directly affected to a significant degree” by the proposed development, and would have been entitled to have been given notice. However, even if they were not, I find that by becoming parties to this application they have demonstrated that, if public notice had been given, they would have seriously intended to make representations against the proposal.
However, notwithstanding that Mr Landau and Mr and Mrs Goldsmith had no special interest at the time when the Council considered the application, at the time when they commenced these proceedings they did have a special interest in this Court holding that the decision of the Council is invalid so that, if the development is to remain, the proper process must now be followed, and their right to make representations and to appeal in respect of any future application is protected. In that sense, they now do have a special interest sufficient to confer standing on them.
Even if I am wrong in that, it is clear from the evidence before me that this development interferes significantly with the existing panoramic views of each of the plaintiffs from their respective properties. Although they have no common law right to protect that view, that has been held to be sufficient special interest to confer locus standi for the purpose of challenging an allegedly invalid planning decision. That was the situation in Day v Pinglen Pty Ltd[16] where the plaintiff enjoyed views over Sydney Harbour and the city. In their joint judgment, Mason, Murphy, Aickin, Wilson and Brennan JJ said:[17]
It becomes necessary for us now to consider the other matters advanced by Pinglen against the grant of any relief. The first of these is the standing of the appellant to maintain the proceedings. The parties agree that, there being no interference with a private right, the appropriate test is whether the appellant has a special interest in the subject matter of the action, being an interest over and above that enjoyed by the public generally: Australian Conservation Foundation Inc. v. The Commonwealth, per Gibbs J. (as he then was), and Mason J. However, they disagree on whether the test is satisfied. The learned trial judge appears to have accepted the appellant’s claim that the proposed development would interfere significantly with her existing panoramic view of Lavender Bay, the Harbour and the city. It seems to us that this finding should be accepted. No doubt the interference would also reflect on the value of her property… The existence of an impending detriment threatened by an unlawful act is sufficient to confer standing to seek an injunction to restrain that act, without regard to theoretical possibilities in other circumstances: cf. Campbell v. Paddington Corporation.[18] [some footnotes omitted]
[16] (1981) 148 CLR 289.
[17] Ibid 299-300.
[18] [1911] 1 KB 869, at 879.
Here, the building having been erected, it is plain to see that each of the plaintiffs had a genuine concern at the interference with the views that they previously enjoyed. That is sufficient special interest to confer standing on them to bring this application.
The application for extension of time
Rule 200(2) of the Supreme Court Civil Rules 2006 requires that an action for judicial review must be commenced “as soon as practicable after the date when the grounds for the review arose and, in any event, within 6 months after that date”. The reason for that relatively short time limit was stated by the Chief Justice in Hall v City of Burnside:[19]
As McHugh J said in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553, the six month limitation period is “the general rule”. It is not “an arbitrary cut off point”. The six month limit represents a judgment as to an appropriate time limit having regard to the public interest and having regard to the interest of individuals who have an interest in the particular case that arises. A limitation period is imposed, and the length of the period is determined, recognising that the limitation period may result in a cause of action being defeated.
...
The relatively short limitation period reflects the fact that judicial review is concerned with the validity of decision making by individuals and bodies exercising statutory and other powers that must be exercised in the public interest. Such decisions often have direct and consequential effects on persons other than those immediately affected. In a range of circumstances it will often be a matter of significance for other persons and authorities to know whether or not such a decision is valid or has been subject to a legal challenge. There is a substantial public interest in being able to say, after a specified time, that such a decision can be treated as beyond attack. The very fact that the standing rules permit challenges to validity to be made by persons other than those directly involved in the decision making process is a reason why there should be a relatively short period within which any such attack should be mounted.
[19] (2006) 245 LSJS 440, 445; [2006] SASC 283, [47], [49].
The decision under challenge is the decision of the Council to grant provisional Development Plan Consent to the development on 2 July 2007. This action was commenced on 8 September 2008. If they are to succeed, the plaintiffs require a substantial extension of time within which to commence the proceeding.
It is well established that, in determining whether an extension of time for the commencement of an action or an appeal should be granted, as opposed to an extension of time for taking a step within an action, there are four main factors to be considered in the exercise of the Court’s discretion, namely, the length of the delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice suffered by the defendant.
(a) The length of the delay
The length of the delay is substantial, particularly when it is realised that, during the time within which proceedings could have been commenced, the external features of the development had largely been completed. Immediately after Development Approval was granted on 27 November 2007 earth works on the site commenced. A toilet, container storage, a builder’s sign and building materials were placed on site. The footings were poured in January 2008. As will appear, Mr Landau and Mr and Mrs Goldsmith were aware in January 2008 of the fact that the Council had approved a development on lot 54. Yet it was another nine months before the proceedings were commenced. In the case of Mr and Mrs Colmer, it is less clear from their evidence when they became aware of the fact that a development had been approved, although it must have been, at the latest, in January 2008, by virtue of the building activity taking place. None of the plaintiffs was aware that the development included a two-storey component over the garage until the commencement of building that second storey.
(b) The reason for the delay
Mr Landau, Mr Goldsmith and Mr Colmer, three of the plaintiffs, each gave evidence as to their respective states of awareness of the nature and progress of the development on lot 54.
Mr Landau purchased lot 772 with its established residence in January 2008 as a beach house. He has visited the premises on several occasions. He was aware, prior to the purchase of lot 772, that Development Approval had been obtained to develop lot 54. He made a telephone enquiry of the Council in order to ascertain the nature of the development, having been advised to do so by the agent with whom he was dealing in respect of the purchase of his house. He eventually spoke on the telephone to a planning officer, who he was unable to identify, who told him that the development was “nothing unusual”. He was somewhat vague about the conversation he did in fact have with the planning officer. He claims that he was told that a copy of the plans could not be made available to him, although he was also vague as to whether this meant that they could not be sent to him or that they could not be inspected by him if he went to the Council office. He interpreted that as being “because of the Privacy Act”. He did not ask how high the building would be.
I cannot rely on Mr Landau’s evidence as to any detail of the conversation he had, although in the light of other evidence to which I will refer, I think it unlikely that he was told that he could not inspect the plans. His evidence was that he had sufficient comfort from his telephone enquiry of the Council that what was being built was a Category 1 development, for which there was no requirement for him to be given notice of the development. He assumed from that that he would have no reason to be concerned. He did not pursue any further enquiries of the Council or visit the Council offices and ask to see a copy of the plans.
At about the same time Mr Landau also spoke to a Mr Holmes, whom he described as “a friend of a friend” and a professional planner, and met with him on site in order to ascertain what type of development could potentially be established on the allotments in front of his house, being allotments 54 and 55. Again, he was vague as to actual conversations. His evidence was that he was informed that, in general terms, the form of development permitted would be similar to the existing built form of the dwellings on allotments 53 and 52. Nevertheless, he acknowledged having been told that there was potential for a two-storey building but understood, from his conversation with Mr Holmes, that he was unlikely to have a problem with any development extending beyond the height of existing developments. From his conversations with the Council planning officer and with Mr Holmes, Mr Landau understood that the development on lot 54 was a Category 1 development in that it did not require a development panel to assess it. It was a “normal type of building, … not unusual and … not likely to cause detriment to surrounding owners”. However, it was apparent from his evidence that he had no specific knowledge of what type of building could be approved as Category 1, and that he made no attempt to find out.
Mr Landau visited his newly acquired beach house frequently during the course of 2008 and was aware of the development taking place on lot 54. He was aware that what appeared to be a substantial garage was being established at the northern end of the allotment. He was aware that Mr Virgin was the builder. He did not attempt to contact Mr Virgin to discuss the project or to ask to see the plans. He was not concerned with what he saw until the second week of August 2008 when he noticed additional work taking place to the garage building, which was the commencement of construction of the second storey. He again approached Mr Holmes and instructed him to investigate what was happening. Mr Holmes apparently had no difficulty in arranging to inspect the plans and other documents held by the Council in relation to the development.
On 26 August 2008 Mr Landau received preliminary advice from Mr Holmes of a possible ground of challenge. He then instructed solicitors in relation to these proceedings which were commenced on 8 September 2008. He says that he did not see an actual copy of the plans himself until 3 September 2008.
As to whether Mr Landau was denied access by the Council to inspect the plans when he enquired by telephone in January 2008, I accept the evidence of Mr Atkinson and Mr Gregory, planning officers employed by the Council, that at the time, although there was no written policy, there was a practice that if a member of the public asked to see some plans, they would be shown them if they appeared to have a legitimate interest in inspecting them. It was apparent that different officers may have held differing views as to who had a legitimate interest and that the practice may not have been uniformly applied. However, as a matter of policy, copies of plans would not be provided on the ground that to do so might constitute a breach of copyright. While Mr Gregory remembered answering a telephone enquiry about this development from a person whom he believed was calling from overseas, it seemed unlikely that the caller was Mr Landau, who was not overseas at any material time. Neither of the Council officers who gave evidence was aware of having had a conversation with Mr Landau.
While I have no doubt that Mr Landau telephoned the Council and spoke to a planning officer, who may have been other than Mr Atkinson and Mr Gregory, I am unable to find, on his evidence, that he was told that he could not inspect the plans. He was vague about the conversation, and to be told so would not have been consistent with what I find to have been the Council policy at the time, even though, as I also find, that policy may have been open to interpretation by different officers at different times. In any event, Mr Landau made no attempt to visit the Council offices and to seek to inspect the plans of the development which he knew was taking place on allotment 54. Had he done so and had he explained his interest and pursued his request, if necessary to a planning supervisor, I believe that he would have been shown the plans.
Mr and Mrs Goldsmith are the owners of lot 82, immediately west of the property owned by Mr Landau. They signed a contract to purchase their property on 9 January 2008. They intended it to be their permanent residence. They were aware that a house could be built on the allotment immediately in front of the one they were considering. They chose to purchase the house not knowing what would be built in front of them. At some stage in January, before settlement on the house, Mr Goldsmith became aware of the fact that a development on lot 54 had been approved. He visited the Council office seeking details of the proposed development. He did not recall asking for a copy of the plans, but he did recall being told by the Council officer to whom he spoke that he could not be shown a copy of the plans. He did not press the enquiry. He did not enquire about the intended height of the building, its shape, bulk, or position on the allotment. He assumed, without enquiry, that the development would be similar to the houses already built to the west of lot 54. He appeared to be satisfied with the assurance given to him by the Council officer that the development met all requirements. However, he did not know and did not enquire as to what those requirements might be. He was unable to say whether he then had an understanding that a two-storey house could be built in that location.
I accept, in the case of Mr Goldsmith, that he was told that he could not see the plans. As I have said, there was evidence from the Council officers of differing applications of the policy with respect to inspection of plans by members of the public. At the time of his enquiring, Mr Goldsmith was not an adjoining owner. Nevertheless, had Mr Goldsmith insisted, had he explained his interest and had he pursued a request to inspect the plans, if necessary to the officer’s supervisor, I have little doubt that he would have been shown them.

Mr Goldsmith observed the building work being carried out on lot 54 from time to time and like Mr Landau, assumed that, at the rear or northern end of the building, it would be single storey. He had various conversations with Mr Virgin, the builder, but at no stage did he ask Mr Virgin to show him the plans, even though Mr Virgin told him that the house would have a different (butterfly) roof style from that of the houses to the west. It did not occur to Mr Goldsmith that he might lose more of his view than he would if the house and garage remained single storey at the northern end. He assumed that the house would have a similar profile to the two to the west of the development. He only became aware of the second storey component when it began to be built. He did not see a copy of the plans until shortly before 8 September 2008, he believes at Mr Landau’s house.
Mr and Mrs Colmer are the owners of lot 81, immediately to the west of Mr Goldsmith’s house. They have owned the property since October 1997 and have used it as a holiday home. Mr Colmer became aware of the development on lot 54 during the course of 2008. He did not enquire of anyone as to what was intended to be built on lot 54, although he was aware that enquiries could be made of the Council. He was aware that Mr Virgin had built the houses on lots 52 and 53, although he had no information as to the owner of those respective buildings or as to the owner of lot 54. He did not expect Mr Virgin to build a building any different from the previous ones he had built on those allotments.
He first became aware of the two-storey extension when its construction commenced in August 2008. He had not attempted to contact Mr Virgin to enquire as to the nature of the building or to inspect the plans. He first saw the plans shortly before 8 September 2008.
This is not a case like Bade v Rural City of Murray Bridge & Davies[20] where the plaintiffs could not reasonably have been expected to be aware of the existence of a decision to grant provisional Development Plan consent until construction of the offending part of the development began. Mr Landau was aware of the fact that consent had been given to a development before he entered into the contract to purchase his house. Mr and Mrs Goldsmith were aware, before signing their contract, that a development could occur on lot 54. They did not inquire at that stage whether any application had been made. They were, however, aware, before settling on their purchase, that a development had been approved. Neither Mr Landau nor Mr and Mrs Goldsmith made any serious inquiries as to what could or could not be built in front of their residences before committing themselves to their respective purchases. Had they done so, they would have become aware that a two-storey building in front of their prospective purchases was a possibility.
[20] (2008) 101 SASR 302; [2008] SASC 189.
When they did become aware that a development was approved, none of them made or pressed any inquiries that could have been made that would have revealed the nature of the intended development. No inquiry was made about the height of the intended development. Even as the building progressed, they appear to have shown little interest in ascertaining what the building plans of Mrs Virgin were. It was not until the second storey component of the garage and studio began to be built that the necessary inquiries were put in train which revealed what had in fact been approved. The plaintiffs were in no better position then to ascertain the facts than they were in January 2008. The fact that they were able to ascertain the facts in August or September 2008 indicates that they could have done so, if they wished, in January.
Mr and Mrs Colmer’s approach was also one of apparent disinterest. They made no inquiry at all of the nature of the development, although Mr Colmer was aware of his ability to make inquiry of the Council.
In my opinion, the level of inquiry that was made by all the plaintiffs was inadequate to justify an extension of time for such a significant period. Much more could and should have been done which, if it had been done, would have enabled the proceedings to have been commenced before or soon after building work was commenced. It was insufficient to base their acquiescence in what was occurring in front of them on an expectation or assumption, without proper inquiry, as to the type of building that might emerge.
It would appear that Mr Landau and Mr and Mrs Goldsmith did not acquire standing until they became the owners of their respective properties, more than six months after the granting of provisional Development Plan consent. It is not necessary to decide, if the true facts had been ascertained by them immediately after they became owners of the adjacent land and proceedings were commenced immediately, whether an extension of time should be granted. There is a respectable argument that it should not, and that late qualifiers for standing in proceedings should not, for that reason, be granted an extension. Other factors might also come into the balance. It is sufficient for present purposes to find that the explanation for the delay from January to September 2008 is inadequate.
(c) Whether there is an arguable case
It is clear from my decision on the merits of the application that there is an arguable case. That is one factor that weighs in favour of the plaintiffs.
(d) Prejudice to the defendant
I find that, if an extension of time is granted, the prejudice to Mrs Virgin would be substantial. She and her husband have outlaid significant cost on what is a substantial residential development, currently safe from attack. If the development approval were set aside, they would either have to demolish what has been built or make a further application for provisional Development Plan consent against what they now know would be fierce opposition. The development they have undertaken might or might not be approved. If it is not, they might obtain approval for a substantially modified development which would allow for the retention of all but the second storey on the garage. Mr Virgin has given an estimate of the order of $56,000 to demolish the studio and re-roof the garage. He estimates that it would cost another $80,000 to $100,000 to build a new studio at ground level elsewhere on lot 54. The plaintiffs are critical of those estimates. There may be some substance in their criticism. I do not attempt to resolve it.
The plaintiffs have also undertaken that, if successful, they would pay $15,000, being their estimate of the cost of removal and re-roofing, by way of compensation. That is probably an underestimate. However, I do not consider that that is of any assistance in these proceedings. It might be in respect of a later application to the Environment, Resources and Development Court or upon a further application being made to the Council or an appeal from that decision to the Environment, Resources and Development Court.
If removal of the studio portion of the development were undertaken, there would necessarily be a substantial cost to Mrs Virgin. However, I consider that the real prejudice to Mrs Virgin is not merely the cost of removal of the second storey and making good what remains. Mr and Mrs Virgin will not have a studio. They will suffer a substantial delay not only by these proceedings but by any subsequent proceedings that might have to be taken, even if approval is eventually given for a substantially modified design.
More significantly, I accept the evidence of Mr and Mrs Virgin that, if their application had not been approved because of the two-storey studio, they would have redesigned the whole development to accommodate, in a different way, the various features that they want to incorporate. On the plaintiffs’ proposal they would be left with a residential development that they do not want and which does not suit their intended lifestyle and which, if they had had the opportunity earlier, they could have redesigned to incorporate the desired features.
Extension of time – Conclusion
The length of the delay is substantial. The reason for the delay is not satisfactorily explained. While there is clearly an arguable case that the development consent is invalid by virtue of the Council treating it as a Category 1 development, the prejudice to the defendant by granting the extension of time is substantial and cannot easily be measured in financial terms. Even though the decision of the Council is vulnerable, the public interest in insulating defective decisions from attack after such a relatively long time has not been displaced.
Conclusion
For these reasons the plaintiffs’ application for extension of time is refused. The application for judicial review is dismissed.