Fiora v Development Assessment Commission - [2017] SASCFC 52

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 52
Full 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] SASCFC 52
Decision Date: 19 May 2017

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Vanstone, Blue, and Lovell JJ, heard an appeal by Mark Fiora against a decision of the Development Assessment Commission (DAC) and subsequently the Environment, Resources and Development Court. The dispute concerned the classification of Fiora's application for provisional development plan consent for a land division. Fiora sought to reconfigure eight allotments totalling 87 hectares into a different configuration of eight allotments within the Watershed (Primary Production) Zone of the Adelaide Hills Council Development Plan. The DAC classified the application as two separate developments: one involving a southern parcel of 36 hectares (three allotments to be redivided into two) and another involving a northern parcel of 9 hectares (one allotment to be redivided into two). This classification led to the application being deemed non-complying because the southern division created an additional allotment, contrary to a relevant exception in the Development Plan.

The central legal issue before the Court was whether the Judge erred in upholding the DAC's determination that Fiora's application constituted two discrete developments rather than a single composite development. This classification was critical because the Development Act 1993 (SA) imposes significant restrictions on non-complying developments, including limitations on appeals against refusals. The Court was required to assess the "essential nature" of the proposed development, as emphasised in *Compaction Application Tips Pty Ltd v Australian Waste Pty Ltd*, to determine its compliance status.

The Court reasoned that the determination of whether a development is complying or non-complying requires an assessment of its nature, not merely how it is described in an application. Applying this principle, the Court considered factors such as the separate ownership of the parcels, their geographical distance, and the potential for one division to proceed independently of the other, despite a commercial contract linking them. The Court concluded that the "essential nature of the proposed development represents two discrete, independent land divisions," with one of these divisions creating an additional allotment. Therefore, the Court found that both the DAC and the Environment, Resources and Development Court were correct in treating the application as involving a non-complying development.

The appeal was dismissed. The Court affirmed that the classification of the development as non-complying did not equate to an absolute rejection but rather meant that consent was required under section 35(3) of the Development Act 1993 (SA).

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

VANSTONE AND LOVELL JJ

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.

Ratio Decidendi

Legal Principle Established

Established by: VANSTONE AND LOVELL JJ

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