Geoffrey Hugh Stewart v Gerrick William George McQuade and Christine Mary McQuade No. Scgrg-96-1711 Judgment No. 6170 Number of Pages 11 Environment Law Development

[1997] SASC 6170

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

DOYLE CJ, LANDER AND BLEBY JJ

Environment law - development - construction of building requiring planning consent - Council did not have power to consent to the erection of more than one dwelling on a single allotment - whether proposed development constituted a change of use of the building and of the land from the use as an ancillary building to an existing dwelling, to one as a dwelling - proposal did not involve a change of use - proposed use is likely to be a more significant factor than form of building. Development Act, 1993 ; Development Regulations , referred to. Prestige Car Sales Ltd v Town of Walkerville & Shuttleworth
(1979) 20 SASR 514; Remove-All Rubbish Co Ltd v The City of Munno Para (1991) 56 SASR 254, discussed.

ADELAIDE, 5 May 1997 (hearing), 28 May 1997 (decision)

#DATE 28:5:1997

#ADD 4:6:1997

Appellant:

Counsel: Mr B R Hayes QC

Solicitors: Mellor Olsson

Respondents:

Counsel: Mr S W Henry

Solicitors: Finlaysons

Order: appeal dismissed.

DOYLE CJ

1. As the judge of the Environment Resources and Development Court said in his judgment, this is an argument over a kitchen sink.

2. The parties have been to that Court at least twice in the course of their argument, and now bring their dispute to this Court. There is every reason to think that there will be further proceedings between the parties.

3. Whatever one might think about the sense of all this, the parties are entitled to insist upon the due application of the law, in this case the Development Act, 1993 ("the Act") and the Development Regulations, 1993 ("the Regulations"). And, it must be added, the dispute gives rise to some difficult issues under the Act and under the Regulations.

The development application

4. It is necessary to recite the history of the matter before identifying and dealing with the issues argued on appeal. I take the history from the judgment of the court below.

5. Mr and Mrs McQuade ("the McQuades") own sixteen acres of land at Stirling. The McQuades live in a house on the land. Mrs McQuade conducts a riding school on the land.

6. The McQuades have constructed another building on the land which is, I gather, several hundred metres from the McQuades' house. They were granted a planning consent, under the repealed Act, for the construction of that building by the District Council of Stirling ("the Council"). The Planning Decision Notification identifies the nature of the proposed development, being the building which the McQuades wished to erect, as "ancillary building to existing dwelling (amended plan)". The Council attached two conditions to its consent. Only the first two are material. They are as follows: "1. That the building shall be constructed in accordance with the plans and written submissions contained in Development Application Number 330 222 92.

2. The building now approved as an ancillary building to the main dwelling shall not be used as a dwelling as defined by the Planning Act 1982 and Regulations thereunder." 7. The plans of the building indicate that it has two levels. The lower level comprises a bedroom, a bathroom and laundry, an area designated as "eating area" and a living room. The upper level is described as an attic.

8. Apparently the plans originally submitted to the Council described the room, now designated "eating area", as "kitchen" and included provision for a sink and stove and related electrical and plumbing connections. The plans were amended to change the designation of the relevant room to "eating area" and to delete the sink and stove. According to the judgment under appeal, the Council regarded these changes as necessary to ensure that it could properly classify the building as it did.

9. The significance of this lies in the fact that if the proposed building was a dwelling house then, under the relevant law as it then stood, the Council would not have had power to give its consent. The reason for that is that the Council did not then have power to consent to the erection of more than one dwelling on a single allotment.

10. It is not necessary to go into the detail of this as it was under the repealed Act. As the law now stands, under the relevant provisions of the Development Plan, the erection of a dwelling where that would result in there being more than one dwelling on an allotment is a non-complying development and accordingly under the Act the Council cannot approve of such a development without the concurrence of the Development Assessment Commission s35(3).

11. It appears that in requiring the relevant alterations to the plan and hence to the proposal, and in expressing its consent as it did, the Council was satisfied that it was approving a development properly described as an ancillary building to an existing dwelling, and not a dwelling. I mention that I am there using the term "dwelling" as defined in Schedule 1 of the Regulations. "Dwelling" is there defined to mean "....a building or part of a building used as a self-contained residence." 12. There has been no challenge, so far as I am aware, to the validity or to the appropriateness of that consent by the Council.

13. Apparently the building was in fact constructed including the stove and sink as originally proposed. The circumstances under which that occurred have not been explained.

14. The appellant, who is a neighbour of the McQuades, apparently formed the view that the McQuades were using the building as a self-contained residence or as tourist accommodation, and in either event contrary to the terms of the planning consent.

15. The appellant brought proceedings in the Environment Resources and Development Court under s85 of the Act. Those proceedings related to the use of the building and also to horseriding activities being undertaken on the McQuades' land. Section 85 of the Act enables any person to apply to the court for an order to restrain a breach of the Act or of the repealed Act. The parties reached an agreement, and on 20 March 1996 a consent order was made. The operative parts of the order are as follows: "1. SUBJECT TO PARAGRAPH 4 hereof, the respondent shall remove all of the elements and features of the kitchen including the stove, sink and refrigerator and cap or otherwise terminate the plumbing including the drainage and hot and cold water supplies in the area shown as 'kitchen (deleted)' on the plan marked as Exhibit 'A1' in these proceedings, but the existing benches, benchtops and cupboards which currently exist in this area can remain but on the basis and understanding that they are not used or regarded as associated with kitchen benches, benchtops and cupboards or as a part of any kitchen.

2. Subject to paragraph 4 hereof, the respondent shall refrain from using the building shown on the said plan marked as Exhibit 'A1' for the purposes of:

(a) a self contained unit;

(b) any form of accommodation on a commercial or fee paying basis;

(c) bed and breakfast accommodation or dining on a commercial or fee paying basis;

(d) functions, lunches, receptions, meetings or conferences on a commercial or fee paying basis; and

(e) any other commercial purpose or purpose where fees are paid for or in association with such purpose.

3. The said building shown on the said plan marked as Exhibit 'A1' shall only be used as ancillary to and in association with the main dwelling known at 'The Gatehouse' on the land comprised and described in Certificate of Title Register Book Volume 5111 Folio 815 being the land situated at 33 Old Carey Gully Road Stirling in the said State and not as an independent dwelling unit provided always that on two occasions during each of the four nominated school holiday periods in any one year the respondent may accommodate up to eight school children and one adult for two consecutive nights as part of riding school tuition.

4. The respondent shall not be required to comply with paragraph 1 hereof until 1 July, 1996. The respondent may use the building referred to in paragraph 2 hereof for no more than 10 individual bookings of no more than 4 days each in the period from the date hereof until 1 July 1996." 16. Before the date for complying with paragraph 1 of the order arrived, the McQuades made a further application to the Council.

17. Their application described the proposed development as "reinstatement of sink and stove." From the plans that accompanied that application, and from the judgment below, I gather that what was sought was approval for the retention of the stove and sink in the room designated "eating area". The application described the existing use as "ancillary building."

18. In correspondence between their solicitors and the Council the McQuades said that they did not seek approval for the use of the building as a dwelling. They acknowledged the continuing force of the conditions attached to the original planning consent and they acknowledged the continuing force of the court order already referred to. They maintained that their application did not relate to the use of the building but to the structural elements or structural form of the building.

19. Under reg16 of the Regulations the Council had to determine the nature of the development. It had to do that before it could assess the development against the Development Plan.

20. Not surprisingly, in view of its earlier attitude to the significance of the sink and the stove, and in view of the court order of which the Council was aware, the Council, according to a letter from its "Manager Planning Services", was of the opinion that the application was for "....a 'change of use' of the land to 'a self contained unit' or 'independent living unit' either of which is a dwelling." On the basis of that opinion the letter said that pursuant to reg 16: "Council has determined that the application is for a 'change of use from Ancillary Building to Dwelling'" 21. The letter added that in council's opinion that was a non-complying development under the Development Plan, because there was an existing dwelling on the allotment.

22. In so determining the Council rejected a submission by the McQuades' solicitor that the application was a complying development and that accordingly provisional development plan consent must be granted by the Council under s35 of the Act. That submission was advanced on the basis that the proposal amounted to "work undertaken within a building that does not increase the total floor area of the building and does not alter the external appearance of the building to a substantial degree" for the purposes of para 1(b) of Part I of Schedule 4 of the Regulations, and thus was a complying development.

23. The consequence of the determination by the Council was that as it had determined the development to be a non-complying development for the purposes of s35(3) of the Act, the development could not be approved by the Council without the concurrence of the Development Assessment Commission pursuant to s35(3) of the Act. A further consequence of Council's determination was that being a non-complying development no appeal would lie against a refusal of consent: s35(4) of the Act.

24. It may be that the conclusion of the Council can be expressed in two different ways. The first is that what was proposed was building work which because of its nature would result in there being more than one dwelling on the allotment. The second is that what was proposed was a development involving a change of use in the land which would involve the building being used as a detached dwelling on an allotment when a habitable dwelling already existed on that allotment. Either way, if Council was right it was a non-complying development.

25. Having determined the nature of the development the Council proceeded to deal with it. By a decision of 16 May 1996 it refused provisional development plan consent to the development which it again described as "change of use of ancillary building to dwelling (second dwelling on allotment)". Council gave two reasons for its decisions. They were as follows: "* The proposal would result in there being more than one dwelling on the allotment (Rural Landscape Principle 14, Mount Lofty Ranges Region Principle 164)

* Two dwellings on the allotment is inconsistent with the objectives of the Rural Landscape Zone and the Mount Lofty Ranges Watershed."

The appeal to the Environment Resources and Development Court

26. The McQuades appealed to the Environment Resources and Development Court against that refusal. The appellant applied to be and was joined.

27. Because no appeal lies against the refusal of a consent to a non-complying development, the Court was asked to determine as a preliminary issue whether the Council's determination of the nature of the application was correct.

28. The availability of an appeal on that ground was not challenged. I assume that the appeal lies under s86(1)(a)(iii) of the Act as an appeal against the assessment made under reg 16.

29. The Court first considered whether the proposal was development at all. If it was not, neither the Council nor the Court had any jurisdiction in respect of the proposal. The Court concluded that the proposal was for the making of alterations to the building, accordingly was building work and so was development for the purposes of the Act. Hence, an approval under the Act was required.

30. The Court then considered whether the proposed development would constitute a change of use of the building and of the land from the use of the building as an ancillary building to an existing dwelling, to one as a dwelling. Once again I mean "dwelling" in the sense in which it is defined in the Schedule to the Regulations referred to above.

31. The approach which the Court took was that taken by Wells J in Prestige Car Sales Ltd v Town of Walkerville and Shuttleworth (1979) 20 SASR 514. There his Honour said (at 520) that the approach to this question must be flexible. He said: "The object of the survey should be to decide whether, having regard to the purpose of the former use of the subject building, and to the purpose of the use that would be made of it after execution of the proposals, there would, as a matter of fact and degree, be a change in the essential nature of the existing use if consent were granted. ....No one factor is necessarily decisive. There should be no resort to a convenient, but undiscriminating and over simplified, formulae." 32. I note that the Court was asked to decide this preliminary issue without hearing oral evidence about the use of the building and that neither party asked the Court to inspect the land or the building.

33. In considering the question of change of use, the Court had regard both to the design of the building and the manner in which it was used. For that reason it did not accept that the inclusion of the sink and stove led as a matter of course to the conclusion that the building became a dwelling rather than an ancillary building. I take the Court to have meant that, having regard to the history of the case and to the rather fine distinctions which have been drawn in the past, it was necessary to look more closely at the matter.

34. The reasons of the Court for concluding that there was no change of use indicate that it was influenced by the fact that the grant of the approval then being sought would not alter the approval granted by the Council in 1992 and would not alter the restrictions relating to the use of the building to be found in paragraphs 2, 3 and 4 of the consent order of 20 March 1996. The Court was also influenced by the minor nature of the works and by the fact that they would have no impact at all upon the external appearance or the floor area of the building.

35. Having reached that conclusion, there was one further issue which the Court considered.

36. The McQuades' land lies within the Mount Lofty Ranges Watershed as identified by the Development Plan. Under relevant principles of the Development Plan all kinds of development in that watershed are prescribed as non-complying developments unless within a list of exceptions which are specified in the relevant principles. The Court took the view that there were only two potentially applicable exceptions. The first of these was "alterations or additions to an existing dwelling ....", meeting certain criteria specified in the Plan. The Court took the view that this exception could not apply because the building was not a dwelling. Neither party argued to the contrary, and so I proceed on the basis that that is correct, although it might be arguable that as the building is an ancillary building to an existing dwelling the building and the dwelling together comprise a dwelling. The other potentially applicable exception appears in the Plan as "outbuildings" a term which is not elsewhere defined. Applying the dictionary meaning of that word, which was a detached building within the grounds of a main building, the Court concluded that, despite the fact that the building was some distance from the McQuades' house, it was an outbuilding because it was used as a building ancillary to the McQuades' house and it stood in the same grounds as their house.

37. Finally, the Court dealt with the submission advanced by counsel for the McQuades that the development was a complying development for the purposes of the Development Plan and therefore, under s35(1) of the Act, the Council had to grant a provision development plan consent. It was said to be a complying development because under Schedule 4 of the Regulations building works were identified as a complying development if they were "(b) work undertaken within a building that does not increase the total floor area of the building and does not alter the external appearance of the building to a substantial degree." 38. The Court acknowledged that its conclusion that there was no change of use, and its apparent acceptance of the corollary that this was a complying development, might mean that the approval of a development subject to conditions might later produce a situation, like the present one, in which the planning authority would be forced to approve changes to its earlier approval if such changes constituted complying development. As the Court noted, and as this case illustrates, such changes might encroach upon an aspect of the earlier development which was specifically the subject of a condition.

39. The Court considered that this approach would not cause such difficulties with the proper administration of the Act that, as a matter of interpretation, it should be rejected. First of all, the Court was of the view that this approach would be available only in the case of developments which were minor in extent and impact. Secondly, the Court was of the view that if the relevant application related to existing conditions that stamped a distinct character on the use of the land or were of such significance that a change of them amounted to a change of use then, in either case, an application which had the effect of varying the relevant condition could not be an application for a complying development because the application would involve a change of use. In so concluding the Court relied upon what was said in this Court in Remove-All Rubbish Co Limited v The City of Munno Para (1991) 56 SASR 254 by King CJ at 255 and by Cox J at 262.

40. For all those reasons the Court concluded that the application for approval did not involve a change of use in the building, was not an application for a non-complying development, would not change the distinct use stamped on the land by the 1992 approval or the character of the use then approved, was a complying development and must be given provision development plan consent by the Council.

The appeal to this Court

41. In this Court the appellant began by submitting that if the proposed development did not involve a change of use of the land, the proposal did not involve development for the purposes of the Act. The consequence of that submission was that the Council had no power to deal with the application made to it.

42. One might wonder why the appellant would advance this submission. The answer lies in the consent order set out above.

43. As already noted, those proceedings were brought under s85 of the Act. That section provides for applications to the court to remedy or restrain a breach of the Act. In the present case the submissions of both parties proceeded on the assumption that if approval to the proposed development was granted by the Council, paragraph 1 of the consent order would become inoperative or, alternatively, on application being made, must be rescinded. The reason for that is that the power of the court is to prevent conduct in breach of the Act, and if approval was granted by the Council for the installation of the sink and stove then no breach of the Act would be involved in the presence of the sink and stove, and the premise upon which paragraph 1 of the consent order rested would have disappeared.

44. This appears to be correct, although, as I have already said, the Court heard no argument to the contrary.

45. That leaves, however, the possibility of an action by Mr Stewart against the McQuades if Mr Stewart can show that there was a binding agreement between him and the McQuades, enforceable as a contract, and not conditional upon the absence of a development consent. Such an agreement would be enforceable as a matter of contract regardless of any planning approval. That, of course, is a matter for another day.

46. The submission by counsel for the appellant was that if there was no change of use then, having regard to the definition of "development" in the Act, the proposal involved development only if it was a proposal for "building work." "Building work" is defined in the Act, and the effect of one part of the definition is that it means work or activity in the nature of the construction of a building. "Construct" in relation to a building is defined to include "to make alterations to the building." The court below had proceeded on the basis that the proposal was for an alteration to the building, and so for building work. The court below also relied on the fact that "building" is defined in the Act to mean a building or portion of a building but "including any fixtures or fittings which are subject to the provisions of the Building Code of Australia." As it happens, Table F2.1 in Part A3 of the Building Code provides that a class 1 building must include a "kitchen sink and facilities for the preparation and cooking of food." Thus, the Court reasoned that a sink was a fixture or fitting subject to the provisions of the Code and so was part of a building as defined and so in turn the proposal was for the alteration or erection of a building in that special sense.

47. Counsel for the appellant submitted that this could not be so. The submission was that if this line of reasoning was correct then all sorts of minor work would be development requiring development consent, and that development authorities would be overwhelmed with minor applications. Routine house renovations would often constitute development. The construction of a building would involve a multitude of development approvals, as the plans became more detailed and further fixtures and fittings were identified and provided for in those more detailed plans. A development approval given on the basis of plans which did not include fixtures and fittings would not be an approval to the fixtures and fittings being provided later.

48. When I asked counsel for the appellant how one did decide if building work constituted development, the answer, to my mind, exposed the difficulty of the submission. The submission was that building work was development only if it was more than a change of fittings, and involved at least a change to fixtures sufficient to be described as a structural alteration. A little later counsel submitted that there must be some substantial and significant building work to the fabric of the building.

49. In my opinion the answer to that submission is that it finds no basis in the Act or in the Regulations, and that the submission would itself introduce considerable uncertainty.

50. In addition, some of the postulated inconveniences are met by the fact that many of the lesser things which constitute development on the court's approach are, by virtue of Schedule 4 of the Regulations, complying development to which planning consent must be granted.

51. Nevertheless, I acknowledge that the submission does raise some difficulties which it is not necessary to decide here, and so I do not decide them. I merely observe that the answer may be in part that the grant of development approval in relation to building work includes approval for all fixtures and fittings normally part of the relevant structure, and the answer may further lie in the fact that to replace an existing fitting or fixture is not to alter a building. I do no more than indicate possible answers that occur to me, without attempting a comprehensive answer.

52. I therefore conclude that the court below was correct in holding that the proposal did involve development.

53. I now turn to the question of whether the proposal involves development which is a change of use of the building, and in particular from use as an ancillary building to one as a dwelling, and so a change to a use which is a non-complying use under the Development Plan.

54. In submissions before us it was accepted that the general approach of the court below, applying what Wells J said in Prestige Car Sales Limited v Town of Walkerville and Shuttleworth (1979) 20 SASR 514 at 520 was correct. But counsel for the appellant argued that the Court had come to the wrong conclusion.

55. The first submission by counsel for the appellant did not depend upon the approach taken in the case just referred to.

56. Counsel submitted that although the Regulations define "dwelling" by reference to use - "'dwelling' means a building or part of a building used as a self-contained residence" in deciding whether a building is a dwelling one must examine both the design of the building and its use, and not just its use. It was submitted that although the Act is concerned with controlling land use, a building on land gives the land use the character that is associated with the design or character of the building. It was for that reason, it was submitted, that a proposal to construct a house on land is a proposal for the use of the land for a dwelling.

57. Drawing on that submission it was argued that in the present case, if the sink and stove were approved, the building would then have all the characteristics of a dwelling and would be fit for use as a self-contained dwelling. Having those characteristics it would be a dwelling as defined in the Regulations and could no longer be regarded as a building ancillary to the McQuades' house.

58. I acknowledge the force of this submission, but I do not accept it.

59. The emphasis in the definition of dwelling is upon the use of the building. No doubt that refers to the proposed use of the building. The form of a building may greatly influence the decision about the proposed use of the building, but in my opinion form cannot be decisive. This is particularly so when the form is deceptive (for example, a house proposed to be used as an office) or when a distinction has to be drawn between different structures which are all part of the one category (for example, distinguishing between a dwelling as defined and a semi-detached dwelling as defined). Thus, as I have already said, while the form of a building may be very influential, in the end it is the proposed use of the building which will provide the answer in many cases.

60. In the present case the issue before the Council and before the court below was whether the proposal was for the use of the building as a dwelling or as a building ancillary to a dwelling. In such a case it seems to me that it is the proposed use that is likely to be more significant than the form of the building. That is not to say that form is irrelevant.

61. In the present case the form of the building is such that it is capable of use as a dwelling, but in my opinion in the particular circumstances of this case that did not provide a decisive answer to the question of the nature of the proposed development.

62. For those reasons I do not accept the submission that the form of the building was decisive, and that the installation of a fitting or fixture which enabled the building to be used as a dwelling necessarily meant that the proposal was for a dwelling. In my opinion it was necessary to look further. In the present case there were existing restrictions on the use of the building and in that context, in my opinion, the court was entitled to conclude that the conclusion about the proposed use which would normally be drawn from the form of the building should not be drawn.

63. I therefore reject the submission that the fact that fixtures or fittings which rendered the building suitable for use as a dwelling necessarily meant that the proposal was for the use of the building as a dwelling.

64. Counsel then submitted that applying the approach in Prestige Car Sales the proposal was for a change of use.

65. To my mind it is an odd feature of the case, as I have already noted, that the parties invited the court below to determine the preliminary question without evidence about the existing and proposed use of the building and without inspecting the building and the McQuades' house. The short passage set out above from Prestige Car Sales emphasises the point that the question of change of use is one of fact and degree. And yet the court below was invited to decide the matter with very little evidence before it.

66. I mention at this point that the appellant had not sought or obtained leave to appeal on questions of fact. However, if leave is required (I do not deal with the submission that leave was not required) I would grant leave because the cases raises issues of law which are intertwined with issues of fact.

67. When one asks what evidence there is to support the conclusion that the proposal involves a change of use, the answer appears to be that the only evidence is the fact that

approval has been sought for the installation of a sink and stove, and that the building would then have the fixtures and fittings required under the Building Code for a class 1 dwelling and could more conveniently be used as a dwelling.

68. In the particular circumstances of this case, those matters are not as significant as they might otherwise be. I refer once again to the existing restrictions on the use of the building.

69. On the slender material before the court below, in my opinion it was open to that Court to conclude that there was no change of use proposed. It was entitled to so conclude because the proposal did no more than make it easier to use the building as a dwelling and because of the existing restrictions upon the use of the building. In short, I am not able to say that the conclusion reached by the court below was wrong.

70. I therefore conclude that the proposal did not involve a change of use of the land.

71. It follows from that, that the proposed development did not alter the use from that of use as a building ancillary to the McQuades' dwelling. That being so, it is not difficult to decide, as the court below decided, that the building was an outbuilding.

72. Accordingly, I conclude that the Court did not err in deciding that there was no change of use, did not err in deciding that the use of the building remained use as a building ancillary to a dwelling, did not err in deciding that the building could be regarded as an outbuilding and did not err in concluding that the proposal was for a complying development and must be given provisional development plan consent.

73. During the course of argument we were invited, if we took the view that questions of fact and degree were involved, to remit the matter to the court below for further hearing, and in particular for evidence about the existing and proposed use and for a view of the premises. In my opinion that should not be done. The parties have chosen to fight the case on limited material, and in my opinion the appeal should be dealt with on the same basis as that on which it was fought below.

74. For what it is worth, I mention that the appellant still has any rights that he might have arising out of the negotiations with the McQuades that led to the making of the consent order, and the appellant and the Council can still bring enforcement proceedings under the Act if the use of the building is in fact contrary to the conditions attached to the original planning consent.

75. For those reasons I would dismiss the appeal.

LANDER J

76. I agree with the reasons of the Chief Justice and that the appeal ought to be dismissed.

BLEBY J

77. I agree.