Fiora v Development Assessment Commission
[2017] SASCFC 52
•19 May 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
FIORA v DEVELOPMENT ASSESSMENT COMMISSION
[2017] SASCFC 52
Judgment of The Full Court
(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Lovell)
19 May 2017
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS - SUBDIVISION APPROVALS
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONTROL OF PARTICULAR MATTERS - SUBDIVISION - PRINCIPLES GOVERNING CONSENT OR APPROVAL - CONSIDERATION OF DEVELOPMENT PLAN
Appeal against decision of Environment, Resources and Development Court affirming decision of Development Assessment Commission, classifying an application for provisional development plan consent as non-complying. Whether the proposal, while contained in one application, was for two separate developments.
Held per Vanstone and Lovell JJ (Blue J dissenting):
1. Appeal dismissed.
2. The application proposed two discrete developments, one of which was non-complying.
City of Brisbane Town Planning Ordinance (Qld) Ch 8, Pt 2, cl 2 ; City of Brisbane Town Planning Act 1964 (Qld) s 22; Development Act 1993 (SA) s 3, s 4, s 35, Pt 4, reg 16; Development Regulations 2008 (SA) regs 15, 16; Real Property Act 1886 (SA) ss 223LA, 223LB, 223LD, 223LE, 223LH, referred to.
Compaction Application Tips Pty Ltd v Australian Waste Pty Ltd (2001) 80 SASR 435, applied.
Australian Waste Pty Ltd v Compaction Application Tips Pty Ltd (2001) 79 SASR 532; Brisbane City Council v Cunningham [2001] QCA 294; Fox v Brisbane City Council (2003) 127 LGERA 390; Lewiac Pty Ltd v Gold Coast City Council [2007] QPELR 183; Pioneer Concrete (Qld) Proprietary Limited v Brisbane City Council (1980) 145 CLR 485; Stubberfield v Redland Shire Council (1993) 81 LGERA 13; Fiora v Development Assessment Commission (No 2) [2016] SAERDC 14, discussed.
FIORA v DEVELOPMENT ASSESSMENT COMMISSION
[2017] SASCFC 52Full Court: Vanstone, Blue and Lovell JJ
VANSTONE AND LOVELL JJ.
The appellant entered into contractual arrangements with the owners of properties near Verdun. By a single application to the Development Assessment Commission he applied for consent for a division of land from its current composition of eight allotments into a different configuration of eight allotments.
The Development Assessment Commission classified the application as being for two separate developments, although contained within the one application. One of the developments was assessed as being non-complying. Therefore it rejected the application. The appellant appealed to the Environment, Resources and Development Court against that classification. A Judge of that Court dismissed the appeal.
The appellant now appeals to this Court. The grounds raise the argument that the Judge erred in determining that the subject matter of the application was two developments rather than one.
Background
The appellant’s application for provisional development plan consent comprehends a land division of Lot 1 in DP18164, owned by a Mr Adams. It is to occur simultaneously with an aggregation of two allotments and portion of an allotment. There is also a division of Lot 1 in FP129455, which is owned by the appellant and his wife. That land is to be divided to create Lots 205 and 206. The Adams land and the appellant’s land are some distance from each other, and the four parcels of land between them are not owned by anyone involved in the proposed division or amalgamation.
The application is therefore for three land divisions, two of which involve the Adams land and the other which involves the appellant’s land. The Adams land division and the appellant’s land division are geographically distant from each other and are not linked in a planning sense in any way. They are linked only by a commercial contract.
It was common ground between the parties that all the land and the allotments referred to are within the area of the Adelaide Hills Council and within the Watershed (Primary Production) Zone. The relevant Development Plan provision, principle of development control 70 of the Adelaide Hills Council Development Plan (Principle 70) provides that all kinds of development are non-complying in the Zone, except in the case of a land division, where three requirements are met, the relevant one here being that no additional allotments are created. Thus, if a development involves an increase in the number of allotments, it will be classified as non-complying.
The appeal to the Environment, Resources and Development Court from the Development Assessment Commission proceeded on the basis of agreed facts. The Judge considered the statutory scheme. He observed that the Act defined development to include the division of an allotment: s 4 of the Development Act 1993 (SA) (the Act). He noted that where a development was non-complying, subject to some exceptions, no appeal lay against a refusal to consent to it.
The Judge referred to Compaction Application Tips Pty Ltd v Australian Waste Pty Ltd (2001) 80 SASR 435, emphasising the statements of Bleby J, speaking for the Full Court, to the effect that under s 35 of the Act, the determination of whether a development was complying or non-complying required an assessment of its nature; that it was the development, rather than the application that had to be assessed, and so the way the application described the nature of the proposed development was not the important matter: Compaction Application Tips at [23] to [27].
The Judge found that “land divisions (and, in turn, the development) are proposed for both the Northern and Southern parcels of land”: [21]. His Honour considered that there were several factors pointing to the proposal being for two discrete developments, as opposed to one composite development. He referred to the fact that the subject matter of the application constituted separate parcels of land, separately owned, that although the plan was that, in the absence of approval, neither division would proceed, the Southern division could proceed independently. He concluded that the “essential nature of the proposed development represents two discrete, independent land divisions, one of which seeks to divide a single allotment into two”: [38]. Accordingly, he dismissed the appeal.
Submissions on appeal
The appellant submits that the critical question to be determined is whether the application involves a land division where no additional allotments are to be created. The appellant submits that the focus should be on an application of Principle 70 to the application itself. He puts that the division of the northern and southern parcels and the renumbering of four allotments in between are all part of the one development. As there is no net increase in the number of allotments in the proposed scheme, it cannot be described as non-complying.
The appellant further submits that there is nothing in the text of Principle 70 to suggest that allotments, the boundaries of which are to be altered, must be either contiguous or satisfy some other test of proximity. He submits that two questions were to be addressed. The first was whether the development was “land division”. The second was would there be additional allotments created. The first question should have been answered in the affirmative and the second in the negative. In those circumstances the appellant would have come within the relevant exception in Principle 70 and the development would not have been classified as non-complying.
The appellant submits that the Judge erred in relying on Compaction Application Tips. While accepting that the principles there expounded were relevant to cases involving a change in the use of land, those principles were not applicable for a division of land involving no change of land use. It was put that the Environment, Resources and Development Court allowed itself to be diverted from the two relevant questions posed by Principle 70 and to interpolate a question which was not relevant, namely, whether what was proposed was one development or two.
The respondent submits that the application sought approval for two separate and distinct developments one of which proposed to increase the number of allotments. Therefore it was non-complying. The respondent submits, relying on Compaction Application Tips, that the task for the planning authority is first, to ascertain the true nature of the proposed development; then the proposal (or proposals) are to be considered against the relevant provisions of the Development Plan. It submits that Principle 70 was not relevant to the question of whether one development or two developments were proposed, as the determination of the nature of the development logically preceded assessment against the plan.
The respondent emphasises that the statutory task involved the assessment of the development, as opposed to an assessment of the application or applications for consent. It argues that the statutory task could hardly be influenced by the manner in which the applicant chose to present an application.
The respondent accepts that, if the application contained only one development proposal, then no additional allotments were to be created. In those circumstances the development application would not properly be classified as non-complying.
Discussion
The object of the Act is to provide for proper, orderly and efficient planning and development in the state: s 3. The Act provides for the creation of development plans with the object, among others, of enhancing “the proper conservation, use, development and management of land and buildings”: s 3(c).
Planning authorities have the task of determining whether to grant development approval. The structure of the Act and its proper interpretation was discussed in Compaction Application Tips. There it was said that Part 4 of the Act (Sections 32 to 56C) in general terms provides for how a planning authority undertakes the task of assessing a particular development. Bleby J observed that s 33 of the Act required the development to be assessed against a number of criteria. He observed that what is required is the “assessment of the development against one or more of those criteria, not the assessment of an application”: [15]. His Honour went on to say:
[23]The point I am seeking to make is that Division 1 of Part 4 of the Development Act differentiates between an application and a development in respect of which or in relation to which an application may be made. The Division requires that the proposed development be characterized for several different purposes under the Act. In particular, for the purposes of s 35(4), the ascription of the qualification “non complying” is to a development rather than to the subject matter of an application, and it is the nature of that development which must be ascertained by the planning authority in order to determine whether the proposed development is non-complying or not.
[24]In various provisions the Act assumes that the proposed development will be characterized or identified by reference to the development plan or to the regulations. If that is to be done, the relevant authority must make a decision about the nature of the proposed development, however the applicant may choose to describe it.
Bleby J went on to note that, just as the Act required an assessment of the relevant development, so Regulation 16 of the Development Regulations 2008 required a planning authority to first assess the nature of the development and then deal with it accordingly: [25]. Therefore, when discharging the task imposed on it by the legislation and reg 16, the planning authority must determine the nature of the development, and not simply the application as presented.
In Compaction Application Tips four applications, each made by a different applicant, were lodged for the establishment of a single landfill on four contiguous pieces of land. The Court held that the statutory task for the planning authority was to look at all four applications to determine whether what was proposed was, in essence, one development. It held that this task devolved to the planning authority by virtue of the provisions of the Act and reg 16. That case involved an application relating to a change of use of the land, rather than a land division. However, “development” is defined in s 4 of the Act to include both a change in land use and the division of an allotment.
In our view, the statements referred to in Compaction Application Tips are of general application. The Court described the approach to be adopted by a planning authority to developments. Those statements are not confined to developments involving a change of land use.
It is apparent that the Development Plan seeks to restrict land division in the Watershed (Primary Production) Zone. It seeks to limit the intensity of human occupation by restricting and controlling the erection of new buildings in order to protect the watershed from incremental pollution. If the approach of planning authorities to any particular application were to be constrained by the form of that application, the policy and objects of the Act could be undermined.
Accordingly, we agree with the Judge that, antecedent to the question of the application of Principle 70, an assessment of the nature of the proposed development was required. In obedience both to reg 16 and to the Compaction Application Tips principles the Judge undertook that evaluation. Like the Development Assessment Commission, the Judge was required to go behind the form of the application to get to the substance of it and to determine what was the nature of the development. We consider that the factors he took into account were relevant. Critically, one of the developments, the southern one, involved an additional allotment. Therefore, under Principle 70, it was a non-complying development.
That the proposal involved a non-complying development does not imply absolute rejection. Rather, it means that it could not proceed without obtaining consent, as provided in s 35(3) of the Act.
Conclusion
In our view, the essential nature of the proposed development involved two discrete developments, one of which was non-complying. Both the Environment, Resources and Development Court and the Development Assessment Commission were correct to treat it as non‑complying.
The appeal should be dismissed.
BLUE J:
This is an appeal against a judgment of an Environment Resources and Development Judge on appeal against a decision by the Development Assessment Commission classifying a proposed development as non-complying under section 35 of the Development Act 1994 (SA) (the Development Act or more simply the Act).
The appellant Mark Fiora applied for provisional development plan consent for a division of land encompassing 87 hectares[1] at Verdun (the Land) from its present composition of eight allotments into a different configuration of eight allotments. The Land falls within the Watershed (Primary Production) Zone defined in the Adelaide Hills Council Development Plan. All development in that zone is non-complying subject to defined exceptions. The relevant defined exception is land division where no additional allotments are created within the zone and two other conditions are satisfied.
[1] Areas shown as whole numbers are rounded to the nearest whole hectare.
The respondent, the Development Assessment Commission, classified the application as being for two separate developments:
·one development in respect of 36 hectares presently comprised as three allotments to be redivided into two allotments (called the “southern parcel” by the Judge); and
·another development in respect of 9 hectares presently comprised as one allotment to be redivided into two allotments (called the “northern parcel” by the Judge).
The Commission classified the application as non-complying because the southern development created one additional allotment within the zone.
Mr Fiora appealed to the Environment Court against the classification. A Judge of the Environment Court dismissed the appeal and upheld the Commission’s classification.[2]
[2] Fiora v Development Assessment Commission (No 2) [2016] SAERDC 14.
Mr Fiora appeals to this Court against the decision of the Environment Court. Mr Fiora contends that the Judge erred in determining that the subject matter of his development application was two developments rather than one.
Background
The Land is situated on the northern[3] side of the South Eastern Freeway at Verdun. It is bounded to the south by the South Eastern Freeway, to the west and north by the Adelaide to Melbourne Railway and to the east is largely bounded by Beaumont Road, Onkaparinga Road and Grivell Road.
[3] Strictly speaking the Land is situated on the north-eastern side of the Freeway and runs generally from the south-west to the north-east. For simplicity of expression, I adopt the convention that the Land runs from south to north instead.
The Land falls within the area governed by the Adelaide Hills Council (the Council) and, at the time of the development application, was subject to the Adelaide Hills Council Development Plan as last consolidated on 9 January 2014 (the Development Plan). The Land falls within the Watershed (Primary Production) Zone (the Zone) defined in the Development Plan.
The Land is presently comprised in eight allotments. The allotments are summarised in the following table listing the allotments from south to north:
Allotment No Shorthand Owner Area[4] (ha) Lot 1 in FP 129455 (Lot 1S) The Fioras 9.2 Lot 4 in FP 129458 (Lot 4) Scanlon/Danby 12.1 Lot 10 in FP 129464 (Lot 10) Burbidge 3.8 Lot 42 in FP 217949 (Lot 42) ARTC 2.0 Sec 505 in HP 105600 (Lot 505) The Kalnins 23.9 Lot 1 in DP 18164
Lot 101 in DP 77335
Lot 45 in FP 129499(Lot 1N)
(Lot 101)
(Lot 45)The Adams
Gallasch
Fiora5.0
30.7
0.1[4] Areas shown as having one decimal point are rounded to the nearest tenth of a hectare.
Lot 1N and Lot 101 both adjoin and lie to the north of Lot 505. Lot 45 adjoins the Adelaide to Melbourne Railway and is otherwise surrounded by Lot 101 and also lies to the north of Lot 505. Lot 1S adjoins the South Eastern Freeway. Lots 4, 10, 42 and 505 lie between Lot 1S to the south and Lots 1N, 101 and 45 to the north.
On 9 October 2015, Fyfe Pty Ltd on behalf of Mr Fiora lodged with the Commission[5] a development application (the Application) seeking provisional development plan consent for a re-division of the Land into eight differently constituted allotments as shown in the proposed plan of division (the Proposed Plan). The proposed allotments are summarised in the following table:
[5] Regulation 15(3)(b)(i) of the Development Regulations 2008 (SA) requires an application that relates to a proposed development that involves the division of land to be lodged with the Commission and not a Council.
Old Lot No New Lot No Owner Old Area New Area Lot 1S
Lot 206
Lot 205The Fioras 9.2 2.5
6.7Lot 4 Lot 204 Scanlon/Danby 12.1 12.1 Lot 10 Lot 203 Burbidge 3.8 3.8 Lot 42 Lot 202 ARTC 2.0 2.0 Lot 505 Lot 201 The Kalnins 23.9 23.9 Lot 1N
Lot 101
Lot 45Lot 199
Lot 200
NAThe Adams
Gallasch
Fiora5.0
30.7
0.14.5
31.3
Nil
The proposed changes between the boundaries of the allotments involved transferring 0.5 hectare of the Adams’ Lot 1N and the entire 0.1 hectare of Ms Fiora’s Lot 45 to become part of Mr Gallasch’s Lot 101, and dividing the Fioras’ Lot 1S into two allotments. There was no change proposed to the boundaries of the allotments owned by Mr Scanlon/Ms Danby, Mr Burbidge, ARTC and the Kalnins. However, the proposed plan involves the creation of eight new allotments, including new allotments owned by Scanlon/Danby, Burbidge, ARTC and the Kalnins with identical boundaries to their old allotments.
The Application was made in the context that principle of development control 70 (Principle 70) for the Zone (and equivalent principles in respect of several other zones the subject of the Development Plan) provided that the erection of an additional dwelling on an allotment was non-complying development. Although the Commission has power to authorise development involving the erection of an additional dwelling on an allotment, exceptional circumstances are required to justify such authorisation.
The Application was made in the context that Principle 70 excluded land division from being a non-complying development provided that three criteria were satisfied:
·no additional allotments are created, either partly or wholly, within the Zone (the allotment number criterion);
·the development of the proposed allotments does not result in a greater risk of pollution of surface or underground waters than would the development of the existing allotments (the pollution risk criterion); and
·a suitable site for a detached dwelling is available in respect of each of the proposed allotments such that the site and the dwelling would comply with the criteria in table AdHi/5 (the dwelling site criterion).
The Application showed details of the eight existing allotments and their owners and showed the address for each of the eight owners as c/o Fyfe Pty Ltd, thereby confirming that each owner consented as required to the land division.
The Application was lodged and initially treated as a merit form of development (neither complying nor non-complying).
In December 2015, Mr Fiora submitted in support of the application an Assessment Report by Jeff Smith of Planning Chambers Pty Ltd (the Planning Report). Mr Smith explained the character and existing use of the Land and of each existing allotment. Mr Smith addressed the three criteria for exclusion of land division from non-complying development under Principle 70. In relation to the dwelling site criterion, Mr Smith said that, although existing Lot 45 did not have direct access to a public road, the owner of Lot 101 (Mr Gallasch) had agreed to grant a right of way over his land. Mr Smith attached a plan of Lot 45 showing the site of a potential dwelling and driveway on the land and a right of way across Lot 101 and contended that the site would comply with the six criteria in Table AdHi/5 which he listed. In relation to the pollution risk criterion, Mr Smith addressed this by reference to the six criteria in Table AdHi/5 which relate to wastewater, sewerage, water courses and flooding.
On 6 January 2016, a Commission delegate wrote to Mr Fiora informing him that the Commission had classified the Application as being for two separate developments. The letter included the following passages:
The Development Assessment Commission, as the relevant planning authority for this application, has determined the essential nature of the development to comprise two (2) discreet[6] elements:
1.A land division (1 into 2) creating one additional allotment: affecting existing Allotment 1 in FP 129455
2.A boundary realignment (3 into 3) with no additional allotments created: affecting existing Allotment 1 in DP 18164, Allotment 101 in DP 77335, and Allotment 45 in FP 129499
The two elements are separated by a series of four (4) intervening allotments; Allotments 4 in FP 129458, Allotment 10 in FP 129464, Allotment 42 in FP 217949, and Section 505 in HP 105600. The intervening allotments are not altered in any way by the Plan of Division (except to be assigned new legal descriptors) and have only been included to allow the two elements to be lodged in one single Plan of Division.
…
The land division (1 into 2) element of the Plan of Division is a non-complying form of development within the Watershed (Primary Production) Zone, Onkaparinga Slopes Policy Area, as it creates one additional allotment. The boundary realignment (3 into 3) element of the proposal is a merit form of development. As a result of one element of the proposal being non-complying, the whole application will be re-classified and processed as a non-complying application.
[6] A typographical error for discrete.
Mr Fiora appealed to the Environment Court against the Commission’s classification pursuant to section 86(1)(ai) of the Act on the ground that the Commission erred in determining that the development application was for two discrete developments and hence erred in determining that the proposed development was non-complying.
The reasons of the Judge
The Judge concluded that Mr Fiora was proposing one development of what the Judge called the “northern parcel” (the “northern development”) and a separate development of what the Judge called the “southern parcel” (the “southern development”). The Judge said:
The issue which falls for consideration is whether what is proposed in the current appeal involves one composite development or two discrete developments. This, in turn, ‘demands’ of the planning authority that it determine the essential nature of the development.
…
The proposal involves two parcels of land. The two parcels are physically separate. The land between them comprises four separate allotments which, in combination, constitute a sizeable tract of land.
Although the four intervening allotments have been included in the application, in terms of a division of land, ‘the physical form [of these] allotments will not alter in any way save that they will be given a new legal descriptor which will in time be incorporated onto [each] Certificate of Title. Importantly their boundaries will not change. Nor will their ownership or functional relationship with respect to the Northern or Southern parcels.
In summary, the Northern and Southern parcels are neither adjoining nor contiguous parcels of land such that an identifiable ‘whole’ is being divided into separate parts. On the contrary, they are two distinct pieces of land undergoing separate divisions after which they will continue to be separated by those four allotments. In so saying, I do not intend to indicate that in no circumstance can two separate (non contiguous) parcels of land constitute a single development. However, the fact that these parcels are separated by a relatively large tract of land is a significant factor in the assessment of this proposal and represents at least a prima facie indicator that the two divisions should not be treated as a single development.
…
I was informed that if the ‘consolidation’ of the Northern parcel did not occur, the division of the Southern land would not proceed. I understand this to be as a result of contractual arrangements between the parties.
In my view, this does not mean that the divisions are interlocked or interdependent in the sense identified in Compaction Application Tips where Bleby J said:
...it is equally appropriate, in considering four simultaneous applications on adjoining pieces of land where those applications on the face of them purport to be discrete applications, to determine whether, in reality, they constitute one single development. This may be inferred from the interlocking nature of the applications, from the relationship between the activities involved in each proposed development, by whom they are lodged, the relationship between the applicants and whether, in reality, they are truly complementary.
…
In truth, the two divisions may proceed quite independently of each other. The fact that the various owners have elected to enter into commercial arrangements which bind them to a particular arrangement cannot determine the true nature of the development.
The two divisions are separate, discrete developments, in part because they can proceed independently of each other. Importantly, after approval of the two divisions (whether as one development or two) the resultant parcels of land would have no relationship to each other in terms of their ownership, contiguity or function.
I have considered the essential nature of the proposed development in terms of each of these factors individually, which of necessity has introduced a degree of artificiality into my approach to this assessment. A planning authority would need to consider these factors collectively.
I have therefore considered these factors in combination, as a result of which I am satisfied that the essential nature of the proposed development represents two discrete, independent land divisions, one of which seeks to divide a single allotment into two.
Accordingly, in my view, the DAC acted correctly when it determined the division of the Southern parcel of land to be non-complying.
The essential nature of the proposed development involves two discrete developments, one of which is non-complying. The DAC was correct to treat it as non-complying.
The statutory development control regime
In general terms, the Act prohibits development being undertaken within the State unless amongst other things a relevant authority has assessed the proposed development against the appropriate development plan,[7] granted development plan consent[8] and indicated that the development is approved.[9]
[7] And where relevant, the building rules.
[8] And where relevant, building rules consent.
[9] Development Act 1993 (SA) sections 32, 33(1) and 33(4).
The identity of the relevant authority as between the local Council, the regional development assessment panel and the Commission is determined objectively in accordance with criteria in section 34 of the Act and the Development Regulations 2008 (SA) (the Regulations) which operate by reference to the nature and location of the proposed development. The relevant authority to determine an application relating to a proposed development that involves the division of land is the Commission.[10]
[10] Development Regulations 2008 (SA) regulation 15(3)(b)(i).
A request for development authorisation is required by sections 34 and 39 of the Act to be made by formal application to the relevant authority. It must contain information prescribed by the Regulations,[11] information required by the application form prescribed by the Minister[12] and any additional information reasonably required by the relevant authority.[13]
[11] Development Act 1993 (SA) section 39(1)(c) and Development Regulations 2008 (SA) regulation 15(1)(c) and Schedule 5.
[12] Development Act 1993 (SA) section 39(1)(a) and Development Regulations 2008 (SA) regulation 15(1)(b).
[13] Development Act 1993 (SA) section 39(1)(b) and (2).
Upon receipt of a development application, a relevant authority is required by section 35 to assess the proposed development as either complying, non-complying or merit development.[14] The assessment has both substantive and procedural consequences. The substantive consequences include that in general terms a development assessed as complying must be granted development plan consent (the only issue being conditions); and a development assessed as non-complying must not be granted development plan consent if seriously at variance with the relevant development plan and otherwise without the concurrence of the Commission or a regional development assessment panel. The procedural consequences include that, if classified as non-complying, no appeal lies by the applicant against a refusal of consent or a condition attached to consent.
[14] Regulation 16(1) of the Development Regulations 2008 (SA) explicitly requires the relevant authority to determine the nature of the proposed development but in any event it is implicit from section 35 that the relevant authority must classify the development as complying, non-complying or merit development as an essential preliminary to taking the steps required by section 35 depending on the classification.
At the same time, the relevant authority is required by section 38 of the Act to categorise the proposed development as a Category 1, 2A, 2 or 3 development. The categorisation has procedural consequences. They include the existence and level of any obligation by the relevant authority to give notice to, and hear representations by, adjacent owners, other interested persons and the public. They also include the existence of rights of appeal by objectors against a decision by the relevant authority to approve or attach conditions to a development.
In due course, the relevant authority is required by sections 33 and 40 to assess the proposed development against amongst other things the appropriate Development Plan to make an evaluative judgment whether it sufficiently complies with the relevant objectives and principles contained therein and either grant or refuse development plan consent.
Each of the steps summarised at [47] to [50] above operates by reference to the nature, and in some cases the location, of the proposed development. It is necessary for the relevant authority to make a finding as to the nature of the development before it can classify it under section 35, categorise it under section 38 or grant or refuse consent to it under section 33.
Regulation 16 of the Regulations explicitly requires the relevant authority to determine the nature of the development and proceed to deal with the application according to that determination. This is necessary in any event for the reason set out in the previous paragraph.
“Development” is defined broadly by subsection 4(1) of the Act. The primary types of development are a change in the use of land;[15] construction of a building or structure,[16] and division of an allotment (land division).[17] It also includes demolition of a building or structure,[18] prescribed earthworks,[19] road construction[20] and substantial damage to a regulated tree.[21]
[15] Development Act 1993 (SA) subsection 4(1) definition of development paragraph (b).
[16] Development Act 1993 (SA) subsection 4(1) definition of development paragraph (a) and definition of building work.
[17] Development Act 1993 (SA) subsection 4(1) definition of development paragraph (c) and definitions of division and allotment.
[18] Development Act 1993 (SA) subsection 4(1) definition of development paragraph (a) and definition of building work.
[19] Development Act 1993 (SA) subsection 4(1) definition of development paragraph (ga) and Development Regulations 2008 (SA) Schedule 2 clauses 1 to 5.
[20] Development Act 1993 (SA) subsection 4(1) definition of development paragraph (d).
[21] Development Act 1993 (SA) subsection 4(1) definition of development paragraph (fa) and definitions of tree-damaging activity and regulated tree and Development Regulations 2008 (SA) regulation 6A.
In the case of land division, the Act cross refers to, and relies to a large extent on, the concepts in and operation of Part 19AB of the Real Property Act 1886 (SA) (the Real Property Act). The Act and Part 19AB of the Real Property Act operate in conjunction and are to be understood and construed in pari passu.
An allotment is defined by subsection 4(1) of the Act by reference to section 223LA of the Real Property Act which in turn defines it to comprise amongst other things the land comprised in a certificate of title or a separately defined piece of land delineated on a plan of division for the purpose of enabling the separate ownership in fee simple of that land. A plan of division is defined by section 223LA of the Real Property Act to comprise a plan of division deposited by the Registrar-General in pursuance of Part 19AB.[22]
[22] This definition applies to plans of division deposited on or after 4 November 1982. If a plan of division was created before 1 January 1900, it means a plan of division deposited or filed in the Lands Title Registration Office or deposited or enrolled in the General Registry Office; and, if it was created between 1 January 1900 and 3 November 1982, it means a plan of division approved under a predecessor to the Act and deposited or filed with the Registrar-General.
The division of an allotment is defined by subsection 4(1) of the Act to mean amongst other things the division, subdivision or re-subdivision of an allotment.
A Development Plan is to be made by a Council (and in certain circumstances by the Minister) relating to its area or part of its area.[23] A Development Plan typically sets out amongst other things planning or development objectives and principles.[24] Typically it defines different zones based on high level land use categories. Typically it defines forms of development that are complying and non-complying in each zone, with other forms of development being merit forms by default.
[23] Development Act 1993 (SA) sections 23 and 24.
[24] Development Act 1993 (SA) sections 23(3)(a).
Part 19AB of the Real Property Act addresses land division. Section 223LB prohibits a transfer or other dealing in land unless the land constitutes a whole allotment or allotments or is comprised within a single certificate a title. Section 223LD(1) provides that a division of land is initiated by application by a registered proprietor. An application for division of land must:
1. be in the approved form;[25]
2.be accompanied by a plan of division delineating the allotments into which the applicant seeks to divide the land;[26]
3.be accompanied by a certificate of a licensed surveyor in the prescribed form;[27]
4.be endorsed with a certificate signed by every person having an estate or interest in the land to be divided or in any other land affected by the division certifying that they have consented to the deposit of the plan;[28] and
5. comply with any additional requirements of the Registrar-General.[29]
[25] Real Property Act 1886 (SA) section 223LD(2)(a).
[26] Real Property Act 1886 (SA) section 223LD(3)(a).
[27] Real Property Act 1886 (SA) section 223LD(3)(b).
[28] Real Property Act 1886 (SA) section 223LH(1)(a) and (b).
[29] Real Property Act 1886 (SA) section 223LD(3).
After an applicant has obtained development authorisation under the Act for a land division, and the applicant has satisfied the prescribed conditions imposed as a condition of authorisation, section 51 of the Act (subject to certain exceptions) requires the applicant to obtain a certificate from the Commission that those conditions have been satisfied (a section 51 certificate).
Subsection 223LD(5a) of the Real Property Act provides that (subject to certain exceptions) the Registrar-General must not deal with an application for the division of land unless satisfied that a section 51 certificate has been given, and is in force, in relation to the proposed division.
Subsection 223LE(1) provides that, where due application is made to the Registrar-General for the division of land and there is a section 51 certificate from the Commission in force, the Registrar-General may deposit the plan of division to which the application relates.
Subsections 223LE(2) and (4) vest and extinguish estates and interests shown in a deposited plan of division in the persons as stated in the plan of division.
Sections 32 and 33(1)(a) of the Act provide:
32—Development must be approved under this Act
…
Subject to this Act, no development may be undertaken unless the development is an approved development.
33—Matters against which development must be assessed
(1)A development is an approved development if, and only if, a relevant authority has assessed the development against, and granted a consent in respect of, each of the following matters (insofar as they are relevant to the particular development):
(a) the provisions of the appropriate Development Plan (development plan consent)
Section 35 relevantly provides:
35—Special provisions relating to assessment against Development Plan
(1)If a proposed development is of a kind described as a complying development under the regulations or the relevant Development Plan, the development must be granted a development plan consent (subject to such conditions or exceptions as may be prescribed by the regulations or the relevant Development Plan and subject to any other provision made by this Act or applying under the regulations).
…
(2)Subject to subsection (1), a development that is assessed by a relevant authority as being seriously at variance with the relevant Development Plan must not be granted consent.
(3)A development that is of a kind described as a non‑complying development under the relevant Development Plan must not be granted a development plan consent unless—
(a) where the relevant authority is the Development Assessment Commission—the Minister and, if the development is to be undertaken in the area of a council, that council, concur in the granting of the consent;
(b)in any other case—
(i)unless subparagraph (ii) applies—the Development Assessment Commission;
(ii)in prescribed circumstances—a regional development assessment panel,
concurs in the granting of the consent.
…
(4)If a development is of a kind described as a non‑complying development under the relevant Development Plan, no appeal lies against—
(a) a refusal of consent or concurrence under this Act at any stage in the process (including in the circumstances envisaged by section 39(4) and including without hearing (or further hearing) from the applicant); or
(b) a condition attached to a consent or approval that is expressed to apply by virtue of that non-compliance under the Development Plan,
except in relation to a proposed development that has, or will, become necessary by reason of—
(c) a change, or a proposed change, in the law regulating an existing use of land; or
(d)an order under Division 5 or 6 of Part 6.
…
(5)A proposed development that does not fall into a category of development mentioned in a preceding subsection will be merit development (and any such development must be assessed on its merit taking into account the provisions of the relevant Development Plan).
In Pioneer Concrete (Qld.) Proprietary Limited v Brisbane City Council (Pioneer Concrete),[30] Pioneer Gravels (Qld.) Pty Ltd (Pioneer Gravels) owned 1,200 acres of land on the outskirts of Brisbane. This land included 64 acres occupied by Pioneer Concrete (Qld.) Pty Ltd (Pioneer Concrete Qld). Pioneer Concrete Qld applied to the Council for development approval for a change of use of the 64 acres to conduct a quarry crushing aggregates. An application for development approval was required by Chapter 8 Part 2 clause 2 of the City of Brisbane Town Planning Ordinance (Qld) to contain a statement of "the use desired to be made of the land" and "the full description of the land" and an advertisement giving notice of the application was required by section 22(1A)(c) of the City of Brisbane Town Planning Act 1964 (Qld) to disclose inter alia “the nature of the proposed use” and “the real property description of the land to which the application relates”. Pioneer Concrete Qld specified the proposed use as extracting substances for use as aggregates and specified the relevant land as the 64 acres. Pioneer Concrete Qld was obliged to give notice to adjoining landowners and gave notice only to Pioneer Gravels Qld as the owner of the surrounding land. In fact, and undisclosed in its application, Pioneer Concrete Qld intended to construct and use a road passing across part of the balance of Pioneer Gravels Qld’s land and over State Forest 494 to Mount Crosby Road to transport the crushed gravel to its destination. The Council failed to make a decision within 40 days and Pioneer Concrete Qld appealed to the Local Government Court. A number of objectors were present at the appeal. The Local Government Court granted development approval subject to conditions. The objectors appealed to the Full Court of the Supreme Court on the ground amongst others that the Council, and the Local Government Court in its place, had no jurisdiction to grant development approval because Pioneer Concrete Qld breached the legislation by failing to state in its application and advertisement the full proposed use of the land and the full description of the land. The Full Court allowed the appeal and Pioneer Concrete appealed to the High Court.
[30] (1980) 145 CLR 485.
The High Court by majority (Gibbs and Aickin JJ dissenting) held that the proposed use of the land by Pioneer Concrete Qld encompassed the transport of the crushed aggregates to Mount Crosby Road. Hence the land to which the application related included part of the balance of Pioneer Gravels Qld’s land (and State Forest 494 if the Council’s consent were legally required for its use). The application was therefore in breach of the planning legislation and the Local Government Court did not have jurisdiction to grant development approval. The majority held that, on the proper construction of the provisions of the legislation, where land is proposed to be used for a single use at the one time, the entire use must be included in the application and not divided up piecemeal. Stephen J (with whom Murphy J agreed) said:
In any such scheme for the control of land use the two critical integers, land and use, each involves a question of definition, what land and what use? The intending user of land will, in his application for consent, have to specify these two integers but it will be one of them, the integer of use, that will dictate the precise identity and extent of the other integer, the land the subject of the application...
…
…where, as here, the application is restricted to only a relatively small portion of a much larger holding a question may arise whether in truth the proposed use is to be confined to that portion. An examination of the integer of use will provide the answer and may reveal that the use, properly understood, involves more than the land the subject of the application.
…
…I should have thought that the applicant's proposed use must have been regarded as necessarily extending to more than the extraction and processing of quarry products: it included the construction and use of an access road. The land the subject of the use accordingly included the route of that access road…
…
…Clause 2 of Pt 2 of Ch. 8 of the City of Brisbane Ordinances provides for applications for such consent. The application must contain a statement of "the use desired to be made of the land" and of "the full description of the land". By s. 22 of the Act there must be public advertising of the application and it must, by sub-s. (1A) (c), contain a quite full description of "the land to which the application relates or applies" and must particularize the "nature of the proposed use".
Neither of these provisions encourages the view that an application may be restricted to part only of a proposed entire use; they proceed rather on the footing that it is for "the use", that is, for an entire use, that application must be made.
All this, of course, places no obstacle in the way of applications where consent becomes necessary for the extension of an existing use to adjoining land or where an applicant for consent to a proposed use contemplates that there will later be an extension of that use. It is only where land is proposed to be used for the one purpose at the one time that consent for its use must be applied for in the one application.[31]
[31] At 501, 502, 505.
Wilson J reached the same conclusion, saying:
… in my opinion, it is not open to an applicant arbitrarily to nominate a limited area of land and thereby restrict the range of incidental uses which he must disclose in his application. Rather the converse is true. The extent of the land in respect of which an applicant must seek consent is dictated by the proposed use including all incidental uses necessarily associated with the primary use in respect of which consent is required.
…
… in the present case the application should have sought consent to use that part of lot 1 which will be required for the transport of metal from the subject land to the southern boundary, where lot 1 adjoins the State Forest.
…
It follows from the matters that I have discussed that, in my opinion, the appellant's application for consent did not comply with the requirements of the Act and the City of Brisbane Ordinances. The application neglected to include in the description of the land the subject of the application that part of lot 1 over which it was proposed to transport metal from the quarry. This error was then carried into the advertisements of the application, which failed to comply with s. 22 (1A) of the Act, but the defect in the application was itself fatal to the proceedings.[32]
[32] At 514, 516, 517.
In Australian Waste Pty Ltd v Compaction Application Tips Pty Ltd,[33] the Bolderoff family through corporate entities controlled 580 hectares of land at Inkerman comprised in four certificates of title. They wished to operate a landfill operation on the land to dispose of 15.9 million cubic metres of waste over many years at a rate of 79,800 tonnes per annum. The relevant Development Plan provided that use of land for landfill proposing to receive 20,000 tonnes or greater volume of waste per annum was, subject to certain inapplicable exceptions, a non-complying development. In an attempt to avoid this limitation, the Bolderoff family proposed that one company would conduct a landfill operation to receive a maximum of 19,950 tonnes per annum of waste on one site for three months followed by the next company doing the same on the next site and so on. They proposed to use the same equipment (excavator, trackscavator, compactor, dump truck, wheel loader and water truck) and the same staff (site manager and two machine operators) on each site on a rotational three month basis. They simultaneously lodged four applications in respect of the four sites for change of use to landfill.
[33] [2001] SASC 173, (2001) 79 SASR 532.
Debelle J held that it was permissible to have regard to the four applications in conjunction and to extraneous evidence as to what comprised the proposed development or developments. Debelle J held that the motive of the applicants to avoid the restriction in the Development Plan was irrelevant to a determination of what comprised the proposed development. Debelle J found that each application had features that disclosed that the proposed development the subject of the application formed part of one overall development being one large operation for the receipt of 79,800 tonnes of waste per year and hence it was non-complying development. Debelle J said:
When discharging the task imposed on it by reg 16(1), the planning authority must objectively examine the documents and other information before it and, as a matter of practical reality, decide what the nature of the development is. To the extent that the documents and other information before the planning authority may disclose links between one application and another, that is a relevant factor. Similarly, the extent to which the documents and other information may disclose intentions of the applicants, they too are relevant because those intentions may disclose whether, in truth, the four separate applications are for one larger development.
…
Although this application is limited to one parcel of land, it has features which disclose that it is linked with other intended land uses and forms part of one overall development…
…
The documents which form part of each application show that the intention is to operate these sites on a rotational basis moving from one site to another in rotation as the limit of 19,950 tonnes is reached on each site. Thus, it is readily apparent from all of these facts that the four separate applications disclose that the nature of this development is in truth one large operation for the receipt of waste totalling 79,800 tonnes in each year …
…
For these reasons, the nature of this development as disclosed in each of the four applications is to undertake a landfill operation involving disposal of waste with a volume in excess of 20,000 tonnes per annum. It is, therefore, a non-complying development by reason of Principle 12 of the principles of development control in the Enterprise Zone in this Development Plan.[34]
[34] At [24], [25], [33].
In Compaction Application Tips Pty Ltd v Australian Waste Pty Ltd (Compaction Application Tips),[35] this Court dismissed the applicants’ appeal against Debelle J’s decision. Bleby J (with whom Doyle CJ and Lander J agreed) said:
[35] [2001] SASC 409, (2001) 80 SASR 435.
In various provisions the Act assumes that the proposed development will be characterised or identified by reference to the development plan or to the regulations. If that is to be done, the relevant authority must make a decision about the nature of the proposed development, however the applicant may choose to describe it.
…
It seems to me that the planning authority must also be able to take into account other applications for development of which it is aware…
…
…it is equally appropriate, in considering four simultaneous applications on adjoining pieces of land where those applications on the face of them purport to be discrete applications, to determine whether, in reality, they constitute one single development. This may be inferred from the interlocking nature of the applications, from the relationship between the activities involved in each proposed development, by whom they are lodged, the relationship between the applicants and whether, in reality, they are truly complementary.
…
…It is not a question, as appears to have been argued in the ERD Court, of determining whether a combination of applications is designed to subvert some aspect of the planning regime. It is simply a matter of determining the nature and extent of the development to which a particular application relates…
…
…I do not regard questions of evasion of onerous conditions as being relevant to the decision in this case. In most cases, motives and intentions of a developer will be irrelevant…
…
… Whether or not the development was a Category 3 development, in the absence of any acknowledged connection between the four applications, was a matter to be inferred from all the primary material that was placed before the Court. There can be no doubt that the judge of this Court was entitled to draw his own inference from that material. He did so, and determined that the four applications were, in reality, in respect to one development. That was a conclusion which was plainly open to him. Indeed, it was a conclusion which, in my view, was inevitable.[36]
[36] At [24], [32], [33], [35], [37], [39].
In Brisbane City Council v Cunningham,[37] the Eastern Suburbs Leagues Club Ltd was the lessee of a rugby ground/clubhouse and a public swimming pool area. It lodged one development application for intensification of the pool’s use which was a complying form of development.[38] It lodged a second application for redevelopment of the clubhouse. There was an overlap between the applications in the use of a car park. A Judge of the Environment Court held that these were piecemeal applications in respect of a single development under the so-called Pioneer Concrete principle. This was overturned by the Queensland Court of Appeal. Thomas JA (with whom McMurdo P and Hellman J agreed) said:
The essential requirement of the decision in Pioneer Concrete is that the proposed use "must be stated in appropriate detail in one application and all the land involved in the use must be the subject of the application". There is no rule prohibiting the making of more than one application in respect of the one piece of land or part of a parcel of land. The Pioneer principle required that each application for a use for a particular purpose be for the whole of the use (including incidental and necessarily associated uses) and for the whole of the land devoted to that use. It did not require that two separate and distinct uses be combined in one application.
… Pioneer is concerned with the sufficiency of an application by reference to its subject matter (the use and the land on which that use and ancillary uses are intended). It does not forbid the inclusion in one application of multiple uses for multiple purposes. Whilst in certain circumstances it prohibits what are conveniently referred to as "piecemeal applications", it does not place an embargo upon staged development except in the circumstances stated.[39]
[37] [2001] QCA 294.
[38] A “permitted development” form under the Queensland Act being the equivalent of South Australian “complying development”.
[39] At [[11] and [12]. Citations omitted
The Development Plan
The Zone is effectively a residual zone covering most of the area of the Council with various other zones effectively excluded from the Zone. The high level objectives of the Zone are:
Objective 1: The maintenance and enhancement of the natural resources of the south Mount Lofty Ranges.
Objective 2: The enhancement of the Mount Lofty Ranges Watershed as a source of high-quality water.
Objective 3: The long-term sustainability of rural production in the south Mount Lofty Ranges.
Objective 4: The preservation and restoration of remnant native vegetation in the south Mount Lofty Ranges.
Objective 5: The enhancement of the amenity and landscape of the south Mount Lofty Ranges for the enjoyment of residents and visitors.
Objective 6: The development of a sustainable tourism industry with accommodation, attractions and facilities which relate to and interpret the natural and cultural resources of the south Mount Lofty Ranges, and increase the opportunities for visitors to stay overnight.
Principle 70 relevantly provides:
All kinds of development are non-complying in the Watershed (Primary Production) Zone except for the following:
…
Land Division where no additional allotments are created, either partly or wholly, within the Watershed (Primary Production) Zone, and where the development of the proposed allotments does not result in a greater risk of pollution of surface or underground waters than would the development of the existing allotments, and provided a suitable site for a detached dwelling is available such that the site and the dwelling would comply with the criteria in table AdHi/5
The arguments on appeal
The issue on appeal is confined to the single question whether the Judge erred in determining that the subject matter of the appellant’s development application was two developments rather than one.
It is important to observe that it is common ground that the determination of the appeal does not turn on the construction of Principle 70. Thus, the Commission accepts the construction of Principle 70 advanced by Mr Fiora and accepts that its construction is not controversial. The Commission submits that the construction of Principle 70 is irrelevant to the critical question arising in the appeal whether there is one development or two developments.
The Commission did not contend before the Judge, and eschews any contention on appeal, that regardless of whether the application was for one development or two developments, the proposed land division necessarily involves the creation of an additional allotment because Lot 1S is to be divided into two allotments being Lots 205 and 206. The Commission accepts that the reference in Principle 70 to “no additional allotments [being] created” means that no greater number of allotments will exist after the land division than existed at the time the application was filed. The Commission accepts that, if there was only one development proposed, the proposed development was not non-complying under Principle 70. The Commission did not contend before the Judge, and eschews any contention on appeal, that Principle 70 only applies to a land division where all of the allotments are contiguous or nearly contiguous or where the boundary of every existing allotment the subject of the land division is altered.
Mr Fiora contends that the approach which this Court held in Compaction Application Tips was appropriate to determine the ambit of a development proposed by an applicant where the nature of the development is a change of use does not apply where its nature is land division. Mr Fiora also points to the matters identified by the Judge as indicia that there were two developments – the relative size of the land separating the two parcels, the ability of the divisions to proceed independently of each other and the lack of contiguity between the two parcels after division – as illustrating the inapplicability of the Compaction Application Tips approach to land division because the indicia involve vague and amorphous concepts. Mr Fiora contends that, once it is accepted – as it is accepted by the Commission – that Principle 70 is not limited to the adjustment of the boundaries of every allotment involved, there is no reason to conclude that this is not a single development.
The Commission supports the Judge’s conclusion for the reasons given by the Judge. The Commission submits that the northern and southern parcels identified by the Judge are not contiguous, are separated by a considerable distance and are under different ownerships: they are completely independent of each other.
The Commission contends that, if as the Judge held there were two developments, the development of the southern parcel clearly involved the creation of an additional allotment and was therefore non-complying. Mr Fiora accepts that, if the major premise is accepted, the conclusion follows that the development of the southern parcel was non-complying. The Commission accepts that if the major premise is rejected, the conclusion follows that the development was a merit development.
One development or two developments?
In each of Pioneer Concrete and Compaction Application Tips, the form of development was change of use. In each case, the objectors argued that the proposed use (aggregate crushing and landfill operations respectively) was broader and extended over greater land than was disclosed in the development application. In each case, the Court first determined the proposed use and then determined the extent of the land involved by reference to the proposed use.
In each of Pioneer Concrete and Compaction Application Tips, the Court directly applied a requirement imposed by the planning legislation: in the case of Pioneer Concrete being the requirement to identify the proposed use and area of land in the application and advertisement; and in the case of Compaction Application Tips being the requirement to identify the nature of the proposed development. The requirement was firmly anchored in the provisions of the planning legislation rather than being a vague or inchoate concept arising under or applied by the common law. As Rackemann DCJ said in Lewiac Pty Ltd v Gold Coast City Council:[40]
The “Pioneer principle”… is not a principle of the common law, but an interpretation of a statutory requirement.[41]
[40] [2006] QPEC 112; [2007] QPELR 183.
[41] At [13].
There are many reported cases since Pioneer Concrete was decided in 1980 in which the proposed development comprised or included a change of use and an objector argued that the proposed use was broader and/or extended over greater land than was disclosed in the development application invoking the so-called Pioneer Concrete principle. However, no case has been identified in which an objector has argued (successfully or otherwise) that a development application related to proposed uses comprising two separate developments required to be assessed separately: ie the reverse of the Pioneer Concrete or Compaction Application Tips approaches.
It is not necessary for the purpose of this appeal to consider whether or in what circumstances the Act and Regulations might require the relevant authority to characterise a purported development the subject of a development application as in truth two proposed developments, but analysis and experience suggest that that issue is unlikely to arise. It is routinely accepted that a proposed development might incorporate multiple uses and/or incorporate different species of development such as change of use combined with demolition, removal of a regulated tree, prescribed earthworks, road construction and building work.
It is clear that the mere fact that an application could have been lodged in respect of one development that was broader or narrower that the proposed development the subject of the application actually lodged does not entail that the application necessarily relates to such a broader or narrower development. Thus, it is not uncommon for a single application to be lodged for development authorisation comprising demolition of existing structures and construction of a new structure in replacement. The mere fact that two separate applications could have been lodged does not entail that there are necessarily two separate developments. Similarly, it is not uncommon for an application to be lodged for stage one of the construction of a building comprising residential units when the developer’s intention is to develop as stage two an adjoining building on the same land comprising residential units. The mere fact that one application could have been lodged encompassing both stages does not entail that there is necessarily a single development.
There is a critical conceptual difference between a development comprising a change of use (or indeed building or other physical work) on the one hand and a development comprising land division on the other hand. The former involves the physical use of the land and, for the reasons explained by Stephen J in Pioneer Concrete, the extent of the land the subject of the development can only be determined once the extent of the use (or work) is determined. The latter involves a purely abstract conceptual division or re-division of land into allotments capable of being the subject of legal dealings and which exist only as legal concepts. Moreover, whereas change of use is a concept created and governed exclusively by the Development Act, allotments are created by the Real Property Act and governed by the Real Property Act and Development Act operating in tandem. More particularly, the Development Act requires a relevant authority to grant development authorisation in respect of a proposed land division to be effected by a plan of division as a precondition to deposit by the Registrar-General of the plan of division under the Real Property Act. The Development Act leaves it to the Real Property Act to define what is a plan of division and the limits on the area of land that can be the subject of a plan of division.
The Judge did not hold that the mere fact that the boundaries of some allotments the subject of a proposed development will not be altered prevents the proposed development from being characterised as one development rather than two. Nor did the Judge hold that the mere fact that there are two groups of allotments the subject of a proposed development whose boundaries will be altered but are not contiguous with each other prevents the proposed development from being characterised as one development rather than two. The Commission accepts on appeal that an application for land division might relate to a single development notwithstanding that the boundaries of some allotments are not altered or encompasses the alteration of two groups of allotments that are separated by an intervening parcel of land.
The Judge held that whether there is one or two developments is to be the subject of an evaluative exercise by the relevant authority at first instance and by the Environment Court on appeal. Such an approach leaves the answer to the question relatively vague and amorphous and confines attention to the Development Act without regard to the essential role of the Real Property Act in defining the subject matter of a plan of division.
It is the Real Property Act which defines the geographical extent of the land that can be the subject of a plan of division. First, it must be land delineated into proposed allotments in a proposed plan of division lodged with the Registrar-General. Secondly, that land must have been surveyed by a licensed surveyor. Thirdly, every person having an estate or interest in that land must have consented to the plan of division. Fourthly, the Registrar General in the exercise of his or her discretion must decide to accept deposit of the plan of division. The Real Property Act thereby imposes very real limitations on the area of the land that can be the subject of a plan of division. The fact that the applicant must obtain the written consent of all existing landowners greatly restricts the area potentially the subject of a plan of division. Obviously it would not be feasible for an applicant to obtain the consent of a large number of existing landowners in respect of a plan of division involving a large number of allotments in different ownership and in any event the Registrar-General would not be willing to accept deposit of a plan of division which extended over a large number of allotments in different ownership even if all existing landholders granted their consent.
Given that the Real Property Act defines in careful and precise terms the preconditions for a plan of division, and the Development Act looks to the Real Property Act to do so when the nature of proposed development is land division, there is no warrant to apply instead a vague and amorphous test somehow derived from the Development Act of what amounts to a land division rather than the specific and concrete criteria defined by the Real Property Act.
The Commission does not contend that the Proposed Plan submitted by Mr Fiora with his development application does not amount to a plan of division within the meaning of, and is not eligible for deposit by the Registrar-General under, the Real Property Act. On the contrary, the appeal to the Environment Court and to this Court was conducted on the premise that it is eligible for deposit if it receives development authorisation. If the development the subject of the Proposed Plan receives development authorisation and is accepted for deposit by the Registrar-General, the whole of the Land comprised in the Proposed Plan will then be defined exclusively by the newly deposited plan being the Proposed Plan and will comprise allotments 199 to 206 inclusive as defined therein. The former definition of old lots 4, 10, 42 and 505 in their respective filed plans will cease to exist. New allotments 201 to 204 will come into existence and the fact that their boundaries are the same as the old allotments does not entail that they are not new allotments the subject of the newly deposited plan. New certificates of title will issue for all eight allotments, including allotments 201 to 204.
Upon acceptance by the Registrar-General of the Proposed Plan for deposit, there would be a single plan of division comprising a single development. The mere fact that two separate plans of division could have been lodged encompassing the northern parcel and the southern parcel does not gainsay the fact that there is only a single plan of division comprising a single development.
Only two cases have been identified in which an objector has argued that a development application related to a larger land division than that sought in a development application, in both of which the objector was unsuccessful. No case has been identified in which an objector has argued (successfully or otherwise) that a proposed land division in fact comprised two smaller and separate developments required to be assessed separately.
In Stubberfield v Redland Shire Council,[42] Paradise Grove Pty Ltd proposed to develop land into 56 residential allotments. Paradise Grove simultaneously lodged two development applications with the Council. The proposed development the subject of the first application was to divide the land into 27 residential allotments and two large allotments. The proposed development the subject of the second application was to divide the two large allotments into 29 residential allotments. Mr Stubberfield, a neighbour, argued that there was only a single development the subject of two applications each of which was therefore invalid. This argument was rejected by the Queensland Court of Appeal. Fitzgerald P, McPherson JA and Demack J said:
There are no significant parallels between this case and what was decided in Pioneer. Here, the subdivisional application related to the entirety of Paradise Grove's land. While it is correct that that application did not relate to the second phase of what Paradise Grove proposed, it dealt comprehensively with the first phase which was relevantly comprehensive and self-contained. There was no need for the local authority to consider matters which were involved in the combined application and the outcome of the combined application was not determined or influenced by a favourable decision on the subdivisional application. The Council's approval of the subdivisional application permitted Paradise Grove to proceed only to the point of the first stage of its residential subdivision.[43]
[42] (1993) 81 LGERA 13.
[43] At 17.
In Fox v Brisbane City Council,[44] Master Butchers Ltd proposed to develop 44 hectares of land into 39 industrial lots. Master Butchers simultaneously lodged two development applications with the Council. The proposed development the subject of the first application was to divide part of the land into 20 industrial allotments and undertake earthworks. The proposed development the subject of the second application was to undertake earthworks and for a change of use to industrial. Mr and Mrs Fox, adjoining property owners, argued that there was only a single development the subject of two applications each of which was therefore invalid. This argument was rejected by the Queensland Court of Appeal. de Jersey CJ (with whom White J agreed) said:
The so-called Pioneer principle was developed in relation to the proposed use of particular land for a single purpose. The goal is that the local authority should be made aware of all that is proposed, prior to its embarking upon a consideration and determination of the application. But where considerations of convenience otherwise warrant separate applications, there is no legislative prohibition, and the Pioneer principle should not be erected into an equivalent, where, as here, each application makes the overall scope of the project abundantly clear: no relevant intention was “held back”.[45]
[44] [2003] QCA 330, (2003) 127 LGERA 390.
[45] At [12].
The Judge erred in applying the Compaction Application Tips approach, adapted as it is to applications for development in the form of a change of use (or other physical forms of development) to a development in the form of an abstract land division. The proposed development the subject of the application related to one development and not two developments.
Conclusion
The appeal should be allowed. The orders of the Judge should be set aside and in lieu thereof the appeal against the Commission’s classification of the proposed development as non-complying should be allowed. The parties should be heard whether this Court should determine that the development is a merit development or alternatively the matter should be remitted to the Commission to make a fresh classification on the basis that there is only one proposed development (determining whether the pollution risk and dwelling site criteria are satisfied).
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