District Council of Grant v Pasin - [2010] SASC 73

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
DISTRICT COUNCIL OF GRANT v PASIN & ORS
[2010] SASC 73
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Layton and The Honourable Justice Kourakis)
31 March 2010
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - MATTERS FOR CONSIDERATION BY COUNCIL - OTHER MATTERS
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS - CONDITIONS - CONDITIONS IMPOSED ON SUBDIVISION APPROVALS - OTHER CONDITIONS
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS - CONDITIONS - CONDITIONS REQUIRING DEVELOPER CONTRIBUTIONS - SUBDIVISIONS - CONTRIBUTIONS OF LAND
Appeal from decision of Environment, Resources and Development Court - Court considered a number of conditions imposed by District Council of Grant in granting development approval - Condition 8 required open space contribution to be made to Council - Council appealed against Court's determination that Condition 8 not valid and that Development Assessment Commission entitled to seek open space contribution - whether Condition 8 valid - whether open space contribution due to District Council of Grant or Development Assessment Condition - whether fact that development application comprised stage 3 of three stage development relevant in construing section 50 of the Development Act 1993 (SA).
Held: appeal dismissed - District Council of Grant had no power to impose Condition 8 - despite development application relating to stage 3 of development, application new application - conditions of section 50(2) rather than section 50(1) of Development Act fulfilled - Development Assessment Commission entitled to seek open space contribution.
Development Act 1993 (SA) s 39, s 49, s 50 and s 52; Development Regulations 1993 (SA) reg 48, referred to.

DISTRICT COUNCIL OF GRANT v PASIN & ORS
[2010] SASC 73
Full Court Gray, Layton and Kourakis JJ
GRAY J.

This is an appeal from the decision of the Environment, Resources and Development Court of South Australia.
Section 50 of the Development Act 1993 (SA) provides a mechanism by which developers may be required to contribute land to be applied for use as open space, and in addition or in the alternative, to make a prescribed financial contribution. Section 50 outlines the criterion for the entitlement of either a relevant council or the Development Assessment Commission to require such a contribution.
In the present proceeding, a dispute has arisen between the District Council of Grant and the Development Assessment Commission as to the proper interpretation of section 50. Both claim an entitlement to a section 50 contribution to be paid or made by the developer. Underlying the question of statutory interpretation is a factual dispute - whether the development under consideration formed part of an earlier three stage subdivision, or whether it was a separate, stand-alone subdivision. If the latter, it was accepted that the Development Assessment Commission was entitled to the section 50 contribution.
Background Facts
On or about 29 January 2003, Mr and Mrs Pasin lodged an application with the Development Assessment Commission to subdivide land to create additional allotments. The plan of subdivision showed that the division of land would be undertaken in three stages. The proposed allotments involved the division of a parcel of rural land adjacent to the Yahl Township used by the Pasins for farming. On 7 February 2003 the application documents were forwarded by the Development Assessment Commission to the District Council of Grant.
The Council granted Development Plan Consent and Land Division Consent and full Development Approval in respect of all three stages of the proposed land division. That Approval was described as Development Approval in Development Application No. 732/D005/03 and was granted on 21 July 2003. No open space contribution was sought.
The Pasins began to subdivide, implementing stage 1 and then stage 2. They did not proceed to stage 3 before the Approval, granted on 21 July 2003, lapsed after three years on 21 July 2006.
The chronology of the staged development pursuant to the 2003 Approval was as follows.
On 21 January 2004 the Pasins wrote to the Council enclosing final plans for stage 1, and requested the Council to notify the Commission regarding compliance with conditions. On 17 March 2004 the Council wrote to the Commission advising that the Council’s requirements had been satisfied and that the Council had no objections to the Commission issuing a section 51 certificate.[1] On 23 March 2004 the Pasins wrote to the Council enclosing the updated plans for stage 1. On 8 April 2004 the Council wrote to the Commission confirming that the Council had no objection to the issue of a section 51 certificate based on the amended plans.
[1] Development Act 1993 (SA) section 51 provides:
(1)Subject to any exclusion prescribed by the regulations, the following certificate is required in relation to a development that involves the division of land under this Act, namely a certificate from the Development Assessment Commission that it is satisfied that the prescribed conditions as to development have been satisfied, or that the applicant has, by virtue of an entitlement under the regulations, entered into a binding agreement, supported by adequate security and, if the regulations so require, in a form prescribed by the regulations, for the satisfaction of any such condition.
(2)Before the Development Assessment Commission issues a certificate it may require the applicant, the council for the area in which the land is situated (if any), or any other person or body, to furnish it with appropriate information as to compliance with a particular condition, or to comply with any requirement prescribed by the regulations.
(3)A certificate will be issued in the prescribed manner and form.
(4)The Development Assessment Commission must, as soon as practicable after issuing a certificate under subsection (1) that relates to land within the area of a council, furnish the council with such information as the regulations may require.
(5)The Development Assessment Commission may give a certificate under subsection (1) in relation to a particular stage of a development constituted by the division of land.
(6)A certificate issued under this section will, unless extended by the Development Assessment Commission within the period prescribed by the regulations, lapse at the end of that prescribed period.
The Pasins applied to the Commission for the issue of the section 51 certificate within 12 months from the date of the Development Approval.[2] On 27 May 2004 the Pasins made an application for the deposit of a plan of division. New titles were created on 12 July 2004, before the expiry of 12 months from the date of Development Approval.
[2] Development Regulations 1993 (SA) regulation 48 provides that a Development Approval will lapse 12 months from the operative date of the Development Approval. However, if the developer lodges an application for a section 51 certificate within 12 months from the operative date of the Development Approval, the Development Approval does not lapse until 3 years from the operative date of the Development Approval.
On 29 March 2006 the Pasins wrote to the Council enclosing the final plans for stage 2 and requesting the Council to notify the Commission that the conditions regarding stage 2 had been satisfied. On 11 July 2006 the Council wrote to the Commission confirming that the Council’s requirements for stage 2 had been met and that the Council had no objections to the Commission issuing the section 51 certificate. The Pasins applied to the Commission for the section 51 certificate before the Development Approval lapsed on 21 July 2006. On 3 August 2006 the Pasins made an application for the deposit of a plan of division. New titles were created on 6 September 2006. The Pasins did not act on the Development Approval for any aspect of stage 3 prior to the lapse of the Approval on 21 July 2006.
On 2 July 2007, the Pasins applied again for consent to divide the parcel of land that had been the subject of the earlier stage 3 planned development. The land the subject of the 2007 application has an area of 12.95 hectares and is one parcel of contiguous land owned by the Pasins and as earlier mentioned, used for farming adjacent to the Yahl Township.
The 2007 application described the proposed development as “Land Division – Stage 3 of Dev No. 732/D005/03”. The application documents for development application were forwarded from the Commission to the Council on 11 July 2007.
The Council granted Development Approval, subject to certain conditions. The Pasins appealed, complaining about four of the conditions. This appeal only concerns one; Condition 8. That Condition provides:
Payment shall be made into Council’s Open Space Fund of the amount of $19,240 (8 allotments @ $2,405 per allotment).
The Commission had been given notice by the Council of proposed Condition 8. The Commission had already entered into correspondence with the Pasins and was seeking a payment according to the condition pursuant to the terms of section 50 of the Development Act.The Commission was joined as a party to enable submissions to be put that Condition 8 was beyond the power of the Council and that a condition should be imposed requiring the Pasins to make payment to the Commission instead.
The Environment, Resources and Development Court held, inter alia, that Condition 8 was not a valid condition and should be deleted from the Development Approval. In the course of its reasons, the Court noted that the application before the Court was for stage 3 of the original division:[3]
The first matter to be ascertained is whether the application for land division before the Court is part of the original division approved to be undertaken in stages. In this case, it is clear that the development application is for the third stage of the original division for which application had been made on or about 29 January 2003. The documents forming part of that application made it clear that the application on behalf of the Pasin Family Trust was for the division of land into 28 allotments, in 3 stages, with the first stage comprising 12 allotments, the second stage 8 allotments and the third stage, 8 allotments. The application now before the Court was lodged on 2 July 2007. In the application, the following description of the proposed development was given:
Land Division – Stage 3 of Dev No. 732/D005/03.
That number is the identifier for the original division. We find that the application now before the Court is for stage 3 of the original division.
…
It is clear that the original division included the land the subject of the development now before the Court. We understand that to be acknowledged by all parties. In any event, it is clear from the documents that this is the case.
[3] Pasin v District Council of Grant & Anor [2009] SAERDC 75 at [42]-[43], [48].
The Court went on to discuss the manner in which the relevant Council or the Development Assessment Commission may require an open space contribution, and whether or not that requirement had been fulfilled in the circumstances before the Court: [4]
Under s 50 (1) in relevant circumstances, the Council may require an open space contribution. It is clear that the Council did not require a contribution in relation to the original division. It follows that there were no open space requirements imposed upon the applicant under s 50 in respect of the whole of the land the subject of the original division, which included the land the subject of this appeal.
Section 50 does not apply where an earlier application has already addressed the open space provisions in relation to the land the subject of the current application for division. It follows that where there is an application for development authorisation for land division, which land division was part of an earlier application and the Council or the Commission required an open space contribution in respect of the entire land division earlier approved, no further open space requirement may be exacted.
In other words, neither the Council nor the Commission may exact open space requirements more than once in respect of the same land division.
[4] Pasin v District Council of Grant & Anor [2009] SAERDC 75 at [49]-[51].
The Environment, Resources and Development Court then came to the final conclusion that Condition 8 was not a valid condition as the Development Assessment Commission was the body entitled to require an open space contribution from the Pasins: [5]
In this case, s 50(11) has no work to do because the requirements of s 50 were not addressed by the Council in respect of the original division (development number 732/D005/03). It follows that on the application now before the Court, which is for division of land into 8 allotments, all of which are less than one hectare in area, s 50(2) has application. Thus, it is only the Commission who may require an open space contribution from the applicant.
There is no argument about the amount of the contribution sought. In view of our conclusion, condition 8 is not a valid condition and should be deleted from the development plan consent. The open space requirement sought by the Commission, set out earlier in these reasons, was a valid requirement pursuant to the Commission’s powers in s 50 of the Development Act.
[5] Pasin v District Council of Grant & Anor [2009] SAERDC 75 at [52]-[53].
The appeal to this Court by the Council is limited to the validity of Condition 8. The Pasins have advised that they will abide the order of the Court.
The Legislative Scheme
Section 39 of the Development Act addresses the making of an application for Development Approval.
Section 39(1) requires that an application include any information reasonably required by the relevant authority; be lodged in the manner and accompanied by such plans, drawings, specifications or other documents as may be prescribed; and be accompanied by the appropriate fee. Section 39(4) provides that a relevant authority for the purposes of the provisions may permit an applicant to vary an application or any plans, drawings, specifications or other documents that accompanied an application, provided that the essential nature of the proposed development is not changed.[6] Section 39(5) provides that a relevant authority may grant a permission under section 39(4) unconditionally or subject to such conditions as the relevant authority thinks fit.
[6] Otherwise, the relevant authority may pursuant section 39(4)(b)-(e) Development Act 1993 (SA): permit an applicant to lodge an application without the provision of any information or document required by the regulations; to the extent that the fee is payable to that relevant authority waive payment of whole or part of the application fee, or refund an application fee (in whole or in part); refuse an application that relates to a development of a kind that is described as a non-complying development under the relevant Development Plan without proceeding to make an assessment of the application; if there is an inconsistency between any documents lodged with the relevant authority, or between any such document and a development authorisation that has already been given that is relevant in the circumstances, return or forward any document to the applicant or to any other person and determine not to finalise the matter until any specified matter is resolved, rectified or addressed.
The balance of section 39 relevantly provides:
…
(6)Subject to this section, a person may seek the variation of a development authorisation previously given under this Act (including by seeking the variation of a condition imposed with respect to the development authorisation).
(7)     An application to which subsection (6) applies—
(a)     may only be made if the relevant authorisation is still operative; and
(b)     will, for the purposes of this Part, but subject to any exclusion or modification prescribed by the regulations, to the extent of the proposed variation (and not so as to provide for the consideration of other elements or aspects of the development or the authorisation), be treated as a new application for development authorisation; and
…
(d)     unless otherwise approved by the relevant authority, cannot seek to extend the period for which the relevant authorisation remains operative.
(7a)In addition, the variation of a development authorisation on application under subsection (6)—
(a)     cannot have effect so as to impose a new condition, or to vary an existing condition, with respect to a matter that does not fall within the ambit of the application for variation; and
(b)     cannot affect the operation of a condition imposed with respect to the original authorisation unless the relevant authority has made specific provision for the variation of the condition in its decision on the application for variation.
(8)An application, or a consent, may provide for, or envisage the undertaking of development in stages, with separate consents or approvals for the various stages.
…
As earlier observed, the Development Act provides a mechanism by which developers may be required to contribute land to be applied for use as open space, and in addition or in the alternative,[7] make a prescribed financial contribution.[8] Section 50 provides:
[7]    In the case of a Council, land, or money, or both may be required: Development Act 1993 (SA) section 50(1)(c),(d) and (e). In the case of the Development Assessment Commission, money may be required, or – by agreement with the applicant and the council – land and money will be contributed: Development Act 1993 (SA) section 50(2)(c) and (d), section 50(3).
[8]    Development Act 1993 (SA) section 50(1)(d). If received by the Council, the money is to be paid into a special fund established under section 50(10)(a), applied for the purpose of acquiring or developing land as open space. If received by the Development Assessment Commission, the money must be paid into the Planning and Development Fund to be applied pursuant to section 81 of the Development Act 1993 (SA).
(1)Where an application under this Part provides for the division of land into more than 20 allotments, and one or more allotments is less than one hectare in area—
(a)     the council in whose area the land is situated; or
(b)     if the land is not situated within the area of a council—the Development Assessment Commission,
may require—
(c)     that up to 12.5 per cent in area of the relevant area be vested in the council or the Crown (as the case requires) to be held as open space; or
(d)     that the applicant make the contribution prescribed by the regulations in accordance with the requirements of this section; or
(e)     that land be vested in the council or the Crown under paragraph (c) and that the applicant make a contribution determined in accordance with subsection (7),
according to the determination and specification of the council or the Development Assessment Commission and, in so acting, the council or the Development Assessment Commission must have regard to any relevant provision of the Development Plan that designates any land as open space and, in the case of a council, must not take any action that is at variance with that Development Plan without the concurrence of the Development Assessment Commission.
(2)     Where an application under this Part provides for—
(a)     the division of land into 20 allotments or less, and one or more allotments is less than one hectare in area; or
(b)     the division of land under the Community Titles Act 1996 or the Strata Titles Act 1988,
then, unless the division is of a kind excluded from the operation of this section by the regulations—
(c)     the Development Assessment Commission may require the applicant to pay to the Development Assessment Commission the contribution prescribed by the regulations in accordance with the requirements of this section; or
(d)     the Development Assessment Commission may enter into an agreement with the applicant under which—
(i)certain land described by the relevant plan will be vested (as a separate allotment) in the council in whose area the land is situated or, where the land is not situated within the area of a council, in the Crown, to be held as open space; and
(ii)    the applicant will make a contribution under this section.
(3)Where land referred to in subsection (2) is in the area of a council, the council must be a party to an agreement referred to in subsection (2)(d).
…
(4)The council and the Development Assessment Commission must ensure that there is consistency between—
(a)     a requirement imposed under subsection (1), (2) or (3a), or an agreement entered into under subsection (2); and
(b)     the terms of any development authorisation given under this Act.
…
(9)     Payment by the applicant under subsection (1) must be made—
(a)     to the council in whose area the land is situated;
(b)     if the land is not situated within the area of a council—to the Development Assessment Commission.
(10)    Money received under this section—
(a)     in the case of money received by a council—must be immediately paid into a special fund established for the purposes of this section and applied by the council for the purpose of acquiring or developing land as open space;
(b)     in the case of money received by the Development Assessment Commission—must be paid into the Fund or, in the case of money received under subsection (3a), dealt with in any other manner prescribed by the regulations.
(11)Where a council or the Development Assessment Commission is satisfied that the division of land is being undertaken in stages, this section does not apply to an application for development authorisation to the extent that an earlier application in respect of the same development has addressed the requirements of this section in respect of the area of land as a whole.
…
(13)    In this section, unless the contrary intention appears—
allotment has the same meaning as in Part 19AB of the Real Property Act 1886 and in addition includes a community lot (not being a strata lot) and a development lot within the meaning of the Community Titles Act 1996 but does not include—
(a)     a strata lot within the meaning of the Community Titles Act 1996 or a unit within the meaning of the Strata Titles Act 1988 or common property within the meaning of either of those Acts; or
(b)     a road, street, thoroughfare, reserve or other similar open space delineated on the relevant plan;
strata lot means a strata lot within the meaning of the Community Titles Act 1996 and includes a unit created by a strata plan under the Strata Titles Act 1988;
the relevant area means the area of land delineated on the relevant plan, excluding any allotment that exceeds one hectare in area other than a road, street, thoroughfare, reserve or similar open space delineated on the relevant plan.

Under section 50 there is no liability on the part of an applicant to provide either land or a prescribed financial contribution under the section, unless a requirement has been made under the section by the Council[9] or the Development Assessment Commission.[10]
[9] Development Act 1993 (SA) section 50(1).
[10] Development Act 1993 (SA) section 50(2)(c) – note that section 50(2)(d) provides for an agreement by which money and land is contributed. No such agreement was made and the subsection is irrelevant to the present appeal.
The power to require a section 50 contribution relates to applications made under Part 4[11] of the Development Act, which concerns development assessment. The application referred to in the present proceeding is the application for Development Approval provided for in section 39, which relevantly forms part of Part 4 of the Development Act.
[11] Development Act 1993 (SA) section 50(1).
Such applications may provide for or envisage the undertaking of development in stages, with separate consents or approvals for the various stages.[12] Seeking one application for a project involving stages is one which a developer might choose to undertake development proceeding in stages. However, a developer might, for reasons of commercial expedience, instead choose to make separate applications in respect of separate stages.
[12] Development Act 1993 (SA) section 39(8).
Unsurprisingly, the power to require a section 50(1) or (2) contribution is unaffected by whether an application envisages staged development. The relevant criterion is the number of allotments provided for in a given application.
The scheme dictates that where an application provides for the division of land into more than 20 allotments and one or more allotments is less than one hectare in area, the Council in whose area the land is situated may request the relevant contribution.[13]
[13] Development Act 1993 (SA) section 50(1).
However, where an application provides for the division of land into 20 allotments or less and one or more allotments is less than one hectare in area, the Development Assessment Commission is entitled to require the payment of the relevant financial contribution.[14]
[14] Development Act 1993 (SA) section 50(2).
The 2007 Application
The 2007 application was lodged on 2 July 2007. That application provided for the division of land into eight allotments.
The Council submitted that there was ambiguity in the meaning of section 50 of the Development Act. It was said that the provision was capable of a wide or narrow interpretation. It was contended that the provisions required the Council to exercise its power having regard to the substance of an application. The council submitted that in the present proceeding the substance of the application was the seeking of consent for the third stage of a 28 allotment division. It was said that viewed in this way, the Council had the power to require a section 50(1)(d) contribution. In my view the suggested construction should be rejected. My reasons follow.
There is no question that the 2003 application granted by the Council had provided for a staged subdivision of the same land into 28 allotments. However, that Approval lapsed[15] in respect of the 8 allotments the subject of this matter, necessitating the making of the fresh application on 2 July 2007: Development Application No. 732/D018/07. While the Council was empowered to make a requirement under section 50(1) in respect of the earlier application, it did not do so at any time prior to the lapse of the Approval.
[15] Development Regulations 1993 (SA) regulation 48.
In the 2007 application, the subject proposal is described as “Stage 3 of Dev No. 732/D005/03” – that is, part of the 2003 application. It is to be noted that the layout of the 2007 application is virtually identical to stage 3 of the 2003 application. However, as observed above, the 2003 stage 3 proposal had lapsed. It ceased to have any operative effect on 21 July 2006. The 2007 application, although in the same terms as the earlier stage 3 proposal, was in fact and in law a new and independent development application. It was a stand alone application in its own right.
When dealing with the 2007 application, the Council was functus officio in respect of the earlier, lapsed 2003 application. The time for the Council to exercise its power under section 50(1) was at the time of granting the 2003 application. It could not do so after that application lapsed.
The fact that the 2007 application might historically relate to stage 3 of the earlier 2003 application is irrelevant to the question as to who is entitled to exercise the powers under section 50(1) or (2). That question is to be decided by reference to the application, and the only relevant criterion is the number of allotments for which that application provides.
This construction permits applicants to know and understand the nature and extent of any section 50 contribution liability that might be required of them, and allows them to manage their affairs accordingly. Conversely, allowing retrospective requirements to be made, after an application has been granted, and indeed after an approval has lapsed, would introduce significant uncertainty into the scheme, particularly in staged, longer term developments. A developer would never know whether or when a requirement might be made that demanded the surrender of 12.5 per cent of the land or the equivalent financial contribution.
Section 50(11)
On its proper construction, section 50(11) provides merely that where an earlier application for a staged development has already satisfied the open space requirements of all later stages, the section has no further application in respect of later stages. This is a provision which ensures developers do not have to pay more than once in respect of the overall development, or provide more land than they would be required to if the stages were the subject of one application. Section 50(11) creates a mechanism that provides applicants with some certainty as early as possible about the nature and extent of their liability under section 50. That provision enables applicants to manage their affairs and the development itself, knowing which land would vest in the relevant Council or the Development Assessment Commission, and also whether and how much financial contribution must be paid.
If an earlier, separate development application made by the same applicant, vested sufficient land to cover later proposed applications, or included a voluntary proposal to make a contribution to cover all such applications, then section 50(11) could operate to render sections 50(1) or (2) of no effect in respect of later applications. The earlier application would be taken to have addressed the requirements that would otherwise be demanded in respect of the later applications.
While, in the present proceeding, there was an earlier application by the Pasins relating to the staged development of the one parcel of land, at no time during the currency of that application did the Council exercise its right under section 50(1) to require the Pasins to make a contribution of land or money. Thus, section 50(11) had no operation in relation to the 2007 application. There had been no earlier application which could be said to have addressed the requirements of the section.
The operation of section 50(11) does not permit the Council to retrospectively group together separate applications made prior to the 2007 application, and thereby claim a contribution under section 50(1) on the supposed basis that the sum of the allotments involved in all of those stages exceeded 20.
In short, section 50(11) does not authorise the retrospective requirement by a relevant authority of contributions which it could have required, but did not do so, before the time an application lapsed.
The Council’s construction of section 50(11) suggests that the fact that a development has been staged means that the concept of an “application” no longer refers to each individual application described in section 39, but permits two or more such applications to be treated as one application for the purpose of the Part 4 of the Development Act.
Conclusion
The Council had no power to impose Condition 8. Section 50(1) did not apply as the application related to “20 allotments or less”. As a consequence, the conditions of section 50(2) were fulfilled. The Commission was entitled to require the financial contribution.
I would dismiss this appeal.
LAYTON J: I agree that the appeal should be dismissed for the reasons given by Gray J.
KOURAKIS J: I agree that the appeal should be dismissed for the reasons given by Gray J.