Hall v Development Assessment Commission & Anor No. Scciv-01-299

[2001] SASC 89

HALL v DEVELOPMENT ASSESSMENT COMMISSION &
CITY APARTMENTS PTY LTD
[2001] SASC 89

Land and Valuation Division

1................ DEBELLE J...... On 14 December 2000 the defendant, Development Assessment Commission (“the Commission”), granted provisional development plan consent to an application by the second defendant, City Apartments Pty Ltd (“City Apartments”), to construct a single storey detached dwelling and associated works on land at Glen Osmond.  Subsequently, on 11 January 2001, the Corporation of the City of Burnside (“the Council”) granted development approval.  The plaintiffs apply for orders and declarations including orders to set aside the grant of provisional development plan consent and the development approval.  There are procedural consequences involved in the relief which the plaintiffs seek.  I will return to them.

1. The Commission has filed an affidavit proving how it handled the application.  Beyond that, it has taken no active part in the action.  By its counsel, it has stated that it will abide the order of the court.  Thus, the protagonists to this application are the plaintiffs and City Apartments.

An Application for Development Consent

1. City Apartments is the registered proprietor of land known as 9-13 Government Road, Glen Osmond.  Government Road is unmade.  The land is also known as 7 Gill Terrace, Glen Osmond.  The land is within the area of the Council and is within the Hills Face Zone prescribed by the Council’s Development Plan.  The area of the land is about 7,200 square metres or 1.8 acres.  The land enjoys a right of way over the land at 8 Seaview Road, Mt Osmond which is owned by the plaintiffs.  The subject land forms part of the slope of the Hills Face Zone which faces due west.  It is a prominent site and has views over a large part of the metropolitan area of Adelaide.  The land falls quite steeply in a westerly direction.

2. On 13 April 2000 City Apartments applied to the Council for provisional development plan consent to construct a single storey detached dwelling, a garage and an area for manoeuvring vehicles on the land.  The proposal required earthworks to be carried out in order to provide access to the dwelling and to provide a level area on which to construct the dwelling.  As the site is relatively steep, the proposed earthworks for the building site involved making an excavation into the hill side.  The excavated material was to be placed at the western edge.  The resulting cut and fill was to provide a level area on which to construct the dwelling.

3. At some time which is not clear, the application was varied by deleting the garage.  However, on 15 September 2000, a separate development application was lodged with the Council for approval to erect a garage.  The garage appears to be identical to the garage that was proposed as part of the original application.  It is unnecessary to refer to this application.

4. The Council took the view that the Commission should be the relevant planning authority and asked the Commission to consider and determine the application. It also asked the Minister for Urban Planning to refer the application to the Commission. The Commission took advice. It was advised that it was the relevant planning authority pursuant to s 34(1)(b)(i) of the Development Act 1993. By letter dated 4 September 2000, the Commission informed the Council that it was the relevant planning authority and thereafter dealt with the development application. After the Commission had decided to become the planning authority, the Minister informed the Council that it was unnecessary for her to refer the application to the Commission. The question whether the Commission is the relevant planning authority is an issue in this appeal.

The Council Recommends Refusing Consent

1. By reason of Regulation 38(2)(b) of the Development Regulations 1993, the Council was entitled to report to the Commission upon the proposed development. By letter dated 8 November 2000, the Council reported that, at its meeting on 7 November, it resolved to ask the Commission to refuse development consent. It adopted arguments advanced by the plaintiffs’ solicitor. The letter does not spell out what those arguments were. The Council reported its view that the proposed development is “at serious variance with a number of Development Plan provisions, particularly relating to intrusiveness and fire safety”. The Council also reported that it preferred the dwelling to be sited on a lower portion of the land. Its letter reads:

   “Council prefers, for reasons of compliance with the Development Plan and for safe and convenient vehicular access, that a dwelling is sited on the lower portion of the land and taking access from Gill Terrace.  Nevertheless should the DAC consider the proposed location of the dwelling appropriate, Council prefers, for the reason of safe and convenient vehicle access particularly in relation to fire safety, that access be taken from Gill Terrace.”

The Commission Grants Consent

1. The application was considered by the Commission at its meeting on 14 December.  The Commission was provided with two reports from two of its officers, Mr Johnston and Mr Cooper.  Both reports recommended granting development consent.  On 14 December the Commission granted provisional development plan consent subject to certain conditions.  On 19 December the Commission wrote to the Council authorising the Council to issue development approval once City Apartments had obtained a grant of provisional building rules consent.  City Apartments obtained provisional building rules consent in January 2001.  On 11 January the Council issued development approval.

2. City Apartments appeared to be aware of the impending grant of development approval.  On the very day approval was granted, City Apartments caused work to commence on the subject land.  On 25 January 2001 the solicitor for the plaintiffs wrote to City Apartments stating that he had been instructed to commence an application for judicial review to challenge the grant of development approval.  He briefly stated the grounds of the application.  He asked City Apartments to apply to cancel the planning approval and to state its intention to do so by 29 January.  It seems that City Apartments did not comply with this request because on 31 January the plaintiffs made an oral ex parte application for an interim injunction to restrain City Apartments from proceeding with the building work.  An interim injunction was ordered on the usual undertaking as to damages.  On 6 February 2001, after hearing the parties, a judge of this Court ordered an interlocutory injunction restraining City Apartments from undertaking any building work on the subject land.  Orders were made enabling an early trial of the issues in the judicial review application.

Which Planning Authority?

1. The first question is whether the Commission was the proper planning authority to decide the application by City Apartments. Subject to certain prescribed exceptions, where a proposed development is to be undertaken within the area of a council, the council is the planning authority which decides whether the development consent should be granted: s 34(1)(a) of the Development Act 1993. The exceptions are listed in s 34(1)(b) of the Act and, in those cases, the Commission is the planning authority. (Section 34 was amended by the Act No. 88 of 2000 but, as those amendments came into force after City Apartments had lodged its planning application, they do not apply to this application: s 53 of the Development Act.)  For present purposes, the relevant provisions in s 34(1)(b) are:

   “(i)... the Development Assessment Commission is constituted by the regulations as the relevant authority in relation to a class of development in which the proposed development is comprised; or

   ...

   (iii).. the Minister, acting at the request of the relevant council, declares, by notice in writing served personally or by post on the proponent, that the Minister desires the Development Assessment Commission to act as the relevant authority in relation to the proposed development; or

   ...

   (v).... the Development Assessment Commission and a council would, apart from this provision, both be constituted as relevant authorities in relation to a particular development.”

Paragraph (iii) does not operate in this case as the Minister did not declare the Commission to be the relevant authority.  The issue is whether, by reason of either para (i) or (v), the Commission is the relevant planning authority.

1. I deal first with the question under para (i).  The Development Regulations constitute the Development Assessment Commission as the relevant planning authority in respect of certain classes of development. Those classes of development are prescribed by Schedule 10 of the Development Regulations. (Schedule 10 was amended on 15 March 2001 (see Government Gazette dated 15 March 2001 at p 932) but those amendments do not apply to this application by reason of s 53 of the Development Act.) For present purposes, the only relevant provisions are in para 3 of Schedule 10 which prescribes a schedule of classes of development in the Hills Face Zone in council areas including the Burnside Council’s area for which the Commission is the relevant planning authority. The relevant provisions of the schedule are paras A and B:

   “A.    The construction of a dwelling that is not a detached dwelling.

   B...... The excavation or filling (or excavation and filling) of land, otherwise than–

   (a).... in association with the construction, conversion or alteration of, or addition to, a building; or

   (b)     for the purposes of a dam used, or to be used, for the purpose of primary production; or

   (c).... for the purposes of carrying out earthworks that are ancillary and subordinate to residential or rural development approved under the Act.”

Paragraph A does not apply as City Apartments proposes to construct a detached dwelling.  The issue was whether the excavation and filling proposed on this site fell within para B.  On this application, the plaintiffs contended that para B does not apply as the excavation or filling of the subject land is being undertaken in association with the construction of the dwelling.  City Apartments contended that part, at least, of the earthworks which involved excavation and filling were not associated with the construction of the dwelling.

1. The earthworks proposed by City Apartments involved cutting an access way along the eastern boundary of the land to a car parking area to be constructed on the southern side of the proposed dwelling.  That access way will provide access from the right of way over the plaintiffs’ land to the car park area.  The construction of the access way requires excavation.  Part of the access way includes a manoeuvring area at the north eastern corner of the land.  The construction of the manoeuvring area requires excavation and filling.  In addition to those earthworks, there is also the excavation which has already been mentioned to provide the site for the construction of the dwelling.  The excavation for the site of the dwelling involves in excess of 238 cubic metres and in excess of 205 cubic metres of filling.  The site of the garage requires 66 cubic metres of excavation and filling.  The construction of the turn around area requires 16.2 cubic metres of excavation and filling.

2. The excavation and filling to provide the site for the dwelling are plainly associated with the construction of the dwelling and fall within para B(a) of the Schedule.  The excavation and filling to provide the car parking area has been undertaken to provide a level area for car parking alongside the dwelling.  It is immediately south of the dwelling, albeit at a slightly higher level.  There is no area for parking motor vehicles unless the car parking area is constructed.  It is readily apparent that the car parking area is directly associated with the construction of the dwelling.  In other parts of the metropolitan area, dwellings are constructed on level land which provide areas for cars and other motor vehicles to be parked.  Provision for car parking is an integral part of facilities which are associated with a modern dwelling.  For these reasons, the excavation and filling to provide this car parking area is excavation and filling in association with the construction of the dwelling.

3. City Apartments contends that at least the excavation and filling to construct the access way and manoeuvring area are not being undertaken in association with the construction of the dwelling.  For the reasons which follows, I do not accept that contention.  But for the construction of the dwelling, this access way and manoeuvring area would not have been constructed.  The manoeuvring area forms part of the access way in that it assists vehicular movements up and down the access way.  The access way is intended to serve the same function as a driveway which will be found in most residential developments in the metropolitan area.  If it were not for the construction of the dwelling, the access way and manoeuvring area would not have been made.  In other words, it is the intended construction of the dwelling which causes the intended construction of the access way and manoeuvring area.  Indeed, if this dwelling is to be constructed at a reasonable cost, the access way and the manoeuvring area are necessary to provide access to the building site.  Thus, the earthworks for the access way and manoeuvring area constitute excavation and filling in association with the construction of the dwelling.

4. This conclusion is reinforced by the terms of para B(c) of the Schedule.  It is not entirely clear whether para B(c) applies only to a residential or rural development for which development consent has already been granted or whether it applies as well to residential or rural development for which development consent is being sought.  In my view, it clearly applies to both.  It is manifestly unreasonable, if not absurd, to require the applicant for development approval to lodge an additional application for development approval for earthworks ancillary to a development for which consent is being sought.  The excavation and filling for the access way and manoeuvring area involved in the development proposed by City Apartments are plainly earthworks ancillary to the residential development of the land.  Had the access way and manoeuvring area been constructed after the dwelling, the earthworks would have been characterised as ancillary and subordinate to the existing residential development.  Thus, the excavation and filling for this development would be earthworks within para B(c).

5. City Apartments referred to the decision in Hall v Corporation of the City of Burnside [1999] SASC 536 where it was held that filling for landscape purposes was not associated with proposed alterations to a dwelling within the meaning of para (a) because it was intended only for landscaping purposes to provide a garden or area for recreational purposes. The decision in Hall v Corporation of the City of Burnside was a decision on its own facts and is to be distinguished for the reason that, in this case, there is a direct causal link between the construction of the dwelling and the construction of the access way which was not present in that case. Furthermore, at the time when the development application the subject of that judgment was made, para B(c) was not included in the Schedule. By the time the decision was made it had been included in the Schedule but, by reason of the provisions of s 53 of the Development Act, the applicant could not rely on it.  The applicant could have submitted a fresh application after the Schedule had been amended and would, in all likelihood, have obtained development approval.

6. The proposed development does not, therefore, fall within Schedule 10 of the Development Regulations.  The Council, and not the Commission, was the relevant planning authority.  Although this conclusion is sufficient to dispose of the application, I turn to the other grounds.

7. Given this conclusion, it is unnecessary to consider whether s 34(1)(b)(v) applied.

Which Category?

1. Excavation and filling exceeding nine cubic metres in volume in the Hills Face Zone and in certain other prescribed areas constitutes development: see Schedule 2 of the Development Regulations.  The excavation and filling associated with this development clearly is well in excess of nine cubic metres.  The plaintiffs contend that this development involved two separate developments – the construction of a dwelling as well as the associated earthworks.  For that reason, it should have been treated as a Category 3 application.

2. The construction of a detached dwelling satisfying prescribed requirements as to height is a non-complying development within that part of the Hills Face Zone which is within the Council area. There is a nice question whether a dwelling which is a non-complying development falls within para 2 of Schedule 9 of the Development Regulations. My present view is that, by reason of para 1 of Schedule 9, it does not. However, there is no present need to stay with that question.

3. This development involves more than the construction of the dwelling. It also involves substantial earthworks in the form of the excavation and filling, not only for the site of the dwelling, but also to provide the access way and car parking area. As already noted, that excavation and filling constituted a development. When viewed as a whole, this is not an application for development consent for a dwelling only but an application for development consent for both a dwelling and substantial earthworks in the form of the excavation and filling. The fact that the earthworks are associated with or ancillary to the construction of the dwelling does not mean that the earthworks should not be considered as a separate kind of development. The earthworks constitute a separate kind of development because the excavation and filling will be undertaken in the Hills Face Zone and the volume exceeds nine cubic metres. Excavation and filling of land in the Hills Face Zone has the capacity to impair the face of the Adelaide Hills. There is, therefore, a need for close supervision and control of those forms of development. That no doubt is the rationale for the fact that excavation and filling in excess of nine cubic metres constitutes a form of development. Such a development does not fall within Schedule 9 of the Development Regulations.  It is therefore a Category 3 development.

4. The Commission did not treat the application as a Category 3 application. Had it done so, the plaintiffs would have had the right to make representations to the Commission opposing the grant of development consent and, upon the Commission granting development consent, the plaintiffs could have appealed to the Environment Resources and Development Court: s 38 of the Development Act.  The assigning of the wrong category has adversely affected the rights of these plaintiffs.  It is therefore appropriate to set aside the grant of development consent on the ground that the Commission did not categorise the proposed development as Category 3.

Seriously at Variance?

1. The plaintiffs also contend that the decision of the Commission to grant development consent was unreasonable in that it took into account irrelevant matters and failed to take into account relevant matters when determining whether the development was seriously at variance with the Development Plan: see s 35(2) of the Development Act 1993.

2. The minutes of the Commission show that the Commission resolved that the development proposed by City Apartments is “not seriously at variance with the relevant policies of the Development Plan” and that the Commission granted development consent subject to a number of conditions.  The minutes do not disclose the discussion at the meeting concerning these issues.  The only documents which give any indication of the matters which might have been considered by the Commission are the reports to the Commission of its planning officers, Mr Cooper and Mr Johnston.

1. The relevant matters which the plaintiffs contend the Commission failed to take into account were:

2. The Council’s recommendation that the applicant should be refused development consent.

3. The Council’s recommendation that, if development consent were to be granted, access should be via Gill Terrace to a house on a lower site.

4. Conditions recommended by the Country Fire Service.

Reference to the reports of Mr Cooper and Mr Johnston show that these matters were at least before the Commission.  The Commission is entitled not to accept the recommendations of the Council and the Country Fire Service.

1. The plaintiffs also contended that the Commission failed to give sufficient weight to the recommendations of the Council and the Country Fire Service.  That is not a ground which justifies this Court interfering with the decision.  The plaintiffs can succeed only if they can demonstrate that the Commission failed to take into account relevant matters or took into account irrelevant matters.  It is not a question of the weight which the Commission attaches to them and to those factors: c.f. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J at 39 – 41. The plaintiffs have failed to make good their contention. The factors upon which they rely were before the Commission and there is no evidence to suggest that the Commission failed to take them into account.

2. Finally, the plaintiffs contended that the decision of the Commission that the development was not seriously at variance with the Development Plan was unreasonable in the sense identified in Associated Provincial Theatres v Wednesbury Corporation [1948] 1 KB 223. No sufficient evidence to support that ground was adduced. I am not prepared to set aside the decision on that ground. This is not to say that the development was not seriously at variance with the Development Plan. In this respect, I notice that the Council concluded that the development was seriously at variance.

3. In passing, I note one matter.  The grant of development consent was subject to a large number of conditions.  Even allowing for the fact that the proposed development is in the Hills Face Zone, the number of conditions is large particularly for a dwelling.  This Court has repeatedly referred to the undesirability of seeking to make a development compatible with a Development Plan by imposing conditions: Remove All Rubbish Pty Ltd v City of Salisbury (1989) 51 SASR 26 – 34; SA Housing Trust v Lee (1993) 81 LGERA 378 at 390. The first and essential question is whether the proposed development is appropriate. Framing conditions to make it suitable bypasses that first question. There are real questions as to whether the Commission has correctly considered whether it should grant development consent.

Discretionary Factors

1. The plaintiffs have established that the Council not the Commission was the relevant planning authority and that the Commission did not correctly classify the development as Category 3.  For those reasons, the plaintiffs are entitled to orders setting aside the decision granting development consent.

2. The defendant submitted that I should exercise the discretion available on an application for judicial review and refuse relief.  They rely on the fact that the plaintiffs did not give notice of any opposition to the proposed development until 25 January, some two weeks after the grant of development consent on 11 January 2001 when the plaintiffs knew that work had commenced on the site.  Much of the excavation and filling has been completed.  No work had been done on the construction of the dwelling other than to pour some piles to support part of the dwelling.  I do not think that the plaintiffs were guilty of such delay as to justify refusing to grant the relief they seek, nor has the building work proceeded to such a stage that they should be denied the relief they seek.

3. I have had regard also to the fact that the Council asked the Commission to determine this application.  That was a matter outside the control of City Apartments and, in other circumstances, the court might have refused relief.  Had the Council not made a recommendation to the Commission to refuse development consent, I might have exercised my discretion and refused the application for judicial review.  However, as the Commission assigned the wrong category and as the Council expressly asked the Commission to refuse development consent, there is no alternative but to grant the application.

Procedural Questions

1. The Commission granted provisional development plan consent and the Council issues development approval.  The Council is not a party to these proceedings.  Thus, the only order that the court can make is an order setting aside the decision of the Commission granting provisional development plan consent.  It cannot set aside the decision of the Council granting development approval.  In the ordinary course, unless and until there has been a grant of provisional development plan consent and later a grant of provisional building rules consent, it is not possible to grant development approval.  As it is the Council which has granted development approval, it is not possible to set aside that grant of development approval unless the Council is added as a party.  The Council ought to have been a party to these proceedings from the outset.  City Apartments has stated, through its counsel, that it consents to an order setting aside the grant of development approval, notwithstanding that the Council is not a party to these proceedings.  However, in the absence of an application under s 43 of the Act to set aside the grant of development approval, I cannot act on that statement, particularly as it is the Council which has made the decision to grant development approval not City Apartments.  I will therefore stand the proceedings over to enable the parties to attend to the procedural issues.  If the Council consents to an order setting aside development approval, the procedural issues can be readily resolved.