Hutchens v City of Holdfast Bay (No 2)

[2007] SASC 401

Supreme Court of South Australia

(Land and Valuation Division)

HUTCHENS & ANOR v CITY OF HOLDFAST BAY & ANOR (No 2)

[2007] SASC 401

Judgment of The Honourable Justice Debelle (ex tempore)

12 November 2007

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS

Application for development consent – construction of 3 storey building on Esplanade – building to obstruct coastal views enjoyed by appellants to rear of subject land – appeal allowed by single judge – second respondent instituted appeal to Full Court – plans of proposed development amended – parties consent to amended proposed development – order varied to allow provisional development consent subject to conditions.

Supreme Court Rules 1987 Rule 84.12; Environment, Resources and Development Court Act 1993 s 33 , referred to.

HUTCHENS & ANOR v CITY OF HOLDFAST BAY & ANOR (No 2)
[2007] SASC 401

1. DEBELLE J:        On 27 June 2007 I allowed the appeal herein against the grant of provisional development plan consent to Mila Enterprises Pty Ltd to construct a three storey building on The Esplanade at Seacliff. The building was to be used as two dwellings and a shop.

2. Mila Enterprises Pty Ltd instituted an appeal to the Full Court against that decision. Before that appeal was heard, Mila Enterprises Pty Ltd amended the plans of the proposed development.  The City of Holdfast Bay and the original appellants before me Gayle Hutchens and Khristina Totos have consented to the proposed development.  The City of Holdfast Bay seeks a number of conditions upon the grant of provisional development plan consent. Mila Enterprises Pty Ltd consents to those conditions.  The amended proposal gives effect to a proposal discussed in the course of the hearing of the appeal before me.

3. Upon the parties agreeing to resolve the matter in this way, the Chief Justice referred the appeal to the Full Court for determination. As the parties have been able to resolve the differences between them, it is appropriate to set aside paragraph 4 of the orders made on 27 June 2007 and in its place make an order granting provisional development plan consent subject to the conditions specified by the City of Holdfast Bay.

4. I make the order pursuant to Rule 84.12. It is in the interests of justice that the order be made as it enables the parties to proceed on the basis of a resolution of the matter upon which they have agreed. The amendments to the plans of the proposed development are not of a scale or of a kind which alters the nature of the development. Essentially, the amendments are confined to do what is necessary to cause a reduction of the overall height of the building thereby preserving the views which the respondents Hutchens and Totos enjoy from their dwelling. I repeat, the proposal gives effect to the proposal discussed in the course of the hearing of the appeal before me.

5. It is unnecessary to require Mila Enterprises Pty Ltd to lodge a fresh application for development consent, since this is the second development application for this site. An earlier application had been refused consent by the Environment Resources and Development Court (“the Environment Court”). Had the amendments been more extensive or had there been some other aspect of the development which required public notice, it would have been necessary for Mila Enterprises Pty Ltd to have lodged a fresh development application. On an appeal from the Environment Court this Court has the powers of that court: s 33 of the Environment, Resources and Development Court Act 1993. The Environment Court has power to approve an amended proposal.

6. For these reasons I will make the orders granting provisional development consent subject to the conditions specified by the City of Holdfast Bay.

7. The orders are made by consent and on the footing that Mila Enterprises Pty Ltd will not prosecute its appeal. That effectively requires an order that the appeal be dismissed.

8. For those reasons orders in terms of the minutes altered and initialled by me.