Hyams v City of Onkaparinga - [2005] SASC 123

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
HYAMS v CITY OF ONKAPARINGA
Judgment of The Honourable Justice Debelle
1 April 2005
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING
Development control - skate facility - whether development approval required - whether exempt from definition of development - whether playground equipment - held to be development for which development approval required.
Development Act 1993 s 4; Development Regulations 1993 sch 3; Acts Interpretation Act 1915 s 14; Local Government Act 1999 s 193, referred to.
Arnold v City of Prospect [1999] EDLR 101, not followed.
District Council of Mallala v M & B Farmer Nominees Pty Ltd (2000) 76 SASR 443, considered.

HYAMS v CITY OF ONKAPARINGA
[2005] SASC 123
Land and Valuation Division

DEBELLE J. The plaintiff resides in Willunga. Willunga is within the area of the City of Onkaparinga (“the Council”). On 21 October 2003 the Council resolved to construct what it calls a skate facility on land at the corner of Aldinga Road and Railway Terrace, Willunga. The expression “skate facility” refers to a facility on which skate boarders may demonstrate or practise their skills or lack of them. On 9 March 2005 the Council began the works necessary to construct the facility. Those works were in the nature of preliminary earth works.
The Council intends to construct the skate facility on part of land which has been set aside for recreational use. It is called “the Willunga Recreation Reserve”. The reserve is a large grassed area with trees and includes a rose garden, a small children’s playground, barbecue and picnic facilities and a car parking area. It includes remnants of the original railway to Willunga. The reserve forms part of the land designated by the Council’s Development Plan as the Historic (Conservation) (Willunga) Zone. The Development Plan states that this zone has been established for the purposes of retaining and enhancing the historic character of Willunga as one of South Australia’s oldest country towns. As is apparent from the Development Plan, the objectives of this zone are, among other things, to conserve elements of historic significance and individual places of significance and to ensure that new development is designed and sited in harmony with the distinctive character, scale and pattern of the Willunga township. It is intended that development should be designed to reinforce and maintain the historic character of the township.
The plaintiff resides on the western side of the Willunga Recreation Reserve. He has been residing there for four years. One of the reasons why he decided to live there was because of the proximity of the dwelling in which he resides to the open space of the recreation reserve. The plaintiff opposes the establishment of the skate facility because he believes it will change the nature and the use of the reserve in a manner inconsistent with its present uses. In particular it will dramatically affect, he believes, the atmosphere created by the rose garden.
No development of land can lawfully be undertaken unless development approval has been obtained or unless the development is exempt from the provisions of the Development Act: see s 4 (1) (h) and s 32 of the Development Act.
The plaintiff believes it is necessary for the Council to seek development approval for the construction of the skate facility. He believes that the proposed development is a Category 3 Development and, as such, that he has a right to make representations opposing the proposed development and, if necessary, the right to appeal to the Environment, Resources and Development Court against any decision approving the proposed facility: see s 38 of the Development Act 1993. The Council believes that it is not necessary for it to obtain development approval and has not applied for development approval. I will refer to the grounds on which it relies in a moment.
In this action, the plaintiff seeks a declaration that the proposed skate facility constitutes development within the meaning of the Development Act 1993 and a declaration that the resolution of the Council made on 21 October 2003 is ultra vires and void. He further seeks an injunction restraining the Council from constructing the skate facility without obtaining development approval pursuant to the Development Act.
There is no issue as to the plaintiff’s standing. Although the Council has undertaken preliminary work on the site of the proposed skate facility, it has desisted from proceeding with any further work.
The Skate Facility
The proposed facility will be constructed of concrete. It will be some 14 metres wide and about 20 metres long. It will include two ramps each of which will be 1.2 metres high, a banked wall 1 metre high, and a stepped area. At one end will be a stone clad curved wall 1 metre high and about 18 metres long. The facility will cover an area of about 280 square metres. It is intended that the facility will be used by those who are beginners in the use of skateboards. Those beginners might be children, young men and women, and adults.
A Development?
When examining the question whether the skate facility constitutes development within the meaning of the Development Act, it is necessary to consider the definition of “development” in s 4 of that Act as well as to consider Schedule 3 of the Development Regulations 1993 which excludes certain acts or activities from the definition of development. The statutory provision authorising Schedule 3 is s 4 (1) (h) of the Development Act.
Plainly, it is first necessary to consider whether the facility constitutes development as defined for, if it does not, it will be unnecessary to consider Schedule 3. It is scarcely necessary to add that the definitions in the Development Act apply with equal force to the Development Regulations: s 14 of the Acts Interpretation Act 1915.
Section 4 of the Development Act provides that “development” means, among other things, building work. The expression “building work” is defined in s 4 to mean, among other things, work or activity in the nature of the construction of a building. The noun “building” is also defined in s 4 and means, among other things, “a building or structure”. The noun “structure” is not defined but s 4 provides that “‘structure’ includes a fence or wall”. In ordinary usage the noun “structure” has a wide meaning. The Shorter Oxford English Dictionary defines “structure” in these terms:
“4. That which is built or constructed; a building or edifice of any kind, esp. one of considerable size and imposing appearance. 5. More widely: a fabric or framework of material parts put together.”
The Macquarie Dictionary definition is in similar terms:
“Something built or constructed; a building, bridge, dam, framework, etc.”
There is nothing in s 4 of the Development Act which circumscribes the wide meaning of “structure” in ordinary usage: District Council of Mallala v M & B Farmer Nominees Pty Ltd (2000) 76 SASR 443 at 445. The skate facility will be something which has been built or constructed. It is, therefore, a structure and as such constitutes development. The Council must, therefore, seek development approval unless the skate facility falls within Schedule 3. This much is common ground between the parties.
The parties differ as to the interpretation of the relevant provisions of Schedule 3 of the Development Regulations.
Schedule 3
Schedule 3 of the Development Regulations lists acts and activities which are excluded from the definition of development. Paragraph 2 deals with some kinds of council works which do not constitute development.
Although the Council originally relied on par 2 (1) (f) of Schedule 3, it now relies on par 2 (1) (e) of Schedule 3 as well as on par 2 (1) (f). The relevant provisions of par 2 (1) are in these terms
“2 (1)The construction, reconstruction, alteration, repair or maintenance by a council of …
(e)a recreation area, or a building in a recreation area, other than –
(i)the construction of a new building exceeding 30 square metres in total floor area on a recreation area; or
(ii)an alteration or extension to an existing building on a recreation area which will result in the total floor of the building exceeding 30 square metres; or
(iii)the construction or alteration of, or an extension to, any building within 100 metres of the coast (landward or seaward), measured from mean high water mark on the sea shore at spring tide; or
(iv)the placing or making of any structure or works for coastal protection, including the placement of rocks, stones or other substances designed to control coastal erosion, within 100 metres landward of the coast measured from mean high water mark on the sea shore at spring tide or within 100 metres of the seaward boundary of the recreation area where the recreation area extends seaward from the mean high water mark on the sea shore at spring tide; or
(f)the placement, installation or construction of playground equipment or in a recreation area; or …”
The Council also relies on the definition of “playground equipment” as expressed in Arnold v City of Prospect [1999] EDLR 101.
The Willunga Recreation Reserve is clearly a recreation area as defined in the Development Regulations. It is common ground that the intended work constitutes construction in a recreation area. For the reasons already expressed, the skate facility is a structure.
Mr Roder, who appeared for the Council, contended that par (e) is confined to buildings so that, although the facility is a structure, it does not fall within that paragraph. He also contended that the construction of the skate facility constitutes the installation or construction of playground equipment in a recreation area and so falls within par (f). Mr Costello, for the plaintiff, contended that par (e) applies to structures as well as to buildings. Since the facility will occupy an area in excess of 30 square metres, he submitted that it does not fall within the exemption in par (e). He further contended that the facility is not playground equipment so that it does not fall within the exemption in par (f). I deal first with par (e).
Paragraph (e)
The first question is whether the noun “building” when used in par (e) refers only to a building or whether it includes a structure. In the absence of a contrary intention, the word “building” in the Development Act means “a building or structure”: s 4 of the Development Act. That same meaning applies in the Development Regulations: s 14 of the Acts Interpretation Act. If the word “building” did not include a structure, the exemption in par (e) would have limited utility in that, whenever the Council sought to construct a structure on a recreation area, it would be necessary for it to obtain development approval. The intention of par (e) is to give councils a degree of flexibility in the discharge of the duty to care, control and manage recreation areas created by s 193 of the Local Government Act 1999. In my view, the intention of par (e) is to authorise a council to construct a building or structure provided that it does not fall within the terms of sub-par (i), (ii) and (iv) of par (e).
Once it has been determined that the noun “building” in the opening words of par (e) includes a structure, that meaning must as a matter of consistent drafting also apply in sub-par (i) to (iv). In my view it does. The fact that the word “building” is used in sub-par (i), (ii) and (iii) whereas the expression “any structure or works” is used in sub-par (iv) does not indicate a contrary intention. A reading of sub-par (iii) and (iv) discloses that they each deal with different forms of building work.
Mr Roder submitted that use of the expression “total floor area” in sub-par (i) of par (e) indicated an intention that the word building in par (e) did not include a structure. I do not agree. It must be acknowledged that, as a general rule, the expression “total floor area” would apply only to buildings. However, there are at least two reasons why the expression “total floor area” does not limit the meaning of “building” in par (e) to buildings as distinct from structures.
The first is that elsewhere in Schedule 3 the expression “total floor area” is used to indicate the area occupied by a structure. Paragraph 4 of Schedule 3 lists other acts or activities under the heading “Sundry Minor Operations” which are excluded from the definition of “development”. Paragraph 4 (1) (h) excludes the construction of a water tank which “has a total floor area not exceeding 10 square metres”. One does not readily understand that a tank has a floor area. It is plain that the intention is to refer to a water tank which occupies an area not exceeding 10 square metres. In short, the expression “total floor area” in Schedule 3 is capable of being applied to structures other than buildings with the intention of referring to the area occupied by the structure. To construe the expression “total floor area” to mean “total area” in the case of a structure does not involve an abuse of language. Instead, the concept of floor area in respect of a building translates very readily to the area occupied by a structure. Although there will be instances where the context will require the expression “total floor area” to apply only to a building, this is not one of them.
The second is that, if there were no limit on area of structures, there would be a constraint upon the power of a Council to construct buildings in a recreation area but no like constraint in respect of structures. That would defeat the intention of these provisions.
For these reasons, the word “building” in par (e) means a building or structure. The intended skate facility is a structure. As the area occupied by the skate facility substantially exceeds 30 square metres (it is more than nine times in excess of that area), it does not fall within par (e).
Paragraph (f)
I turn to the question whether the skate facility is playground equipment and so falls within par (f). The expression “playground equipment” is not defined in the Development Regulations. The Shorter Oxford English Dictionary defines a playground as “a piece of ground used for playing on, esp. one attached to a school; hence, any place of recreation”. The Macquarie Dictionary defines a playground in these terms:
“1.ground used specifically for open-air recreation, as one attached to a school.
2.any place of open air recreation.
3.an area where swings, etc, are provided for children.”
The Development Regulations define the expression “recreation area” to mean
“Any park, garden, children’s playground or sportsground that is under the care, control and management of the Crown, or a council, and is open to the public without a charge, but does not include a stadium.”
It will be noticed that the definition distinguishes between a recreation area and a children’s playground. The expression “recreation area” denotes a class of which a children’s playground is but one example. The definition of “recreation area” suggests that the use of the word “playground” in par (f) is confined to a children’s playground so that the expression “playground equipment” denotes equipment usually found in a children’s playground. Even if that is not so, in ordinary usage, the noun “playground” signifies something smaller than a recreation area and something different from an amusement park, pleasure ground and sports ground. Each of the above might include a playground within its area but a playground is to be distinguished from each.
I do not think that the extended meaning of “playground” as any place of open recreation is frequently used in ordinary parlance. While a playground may be any place of recreation, it is more usual to speak of a recreation area, particularly when referring to larger areas available for passive or active recreation. So a playground often forms part of a recreation area. When considering the extended meaning of playground as any place of recreation, it must also be remembered that a number of places of recreation would not be called playgrounds. Some examples which come to mind are a library, a bridge club, a skating rink and a bowling alley. Each is a place of recreation but none is a playground as that word is ordinarily understood. In short, while the extended meaning exists and may even be used in the expression “the playground of the rich”, an expression quite divorced from the usual meaning of playground, in ordinary usage the word “playground” denotes a small area used for recreation by children.
It is for these reasons that the expression “playground equipment” refers to things such as swings, see-saws, slippery dips and climbing apparatus which may often be found in playgrounds. Plainly, the expression is not confined to such things. What is embraced by the expression “playground equipment” will and has, of course, changed over time. It is an evolving concept. However, I do not believe it extends to and includes a skate facility of this kind. Generally speaking, the expression “playground equipment” refers to equipment for a children’s playground. It does not refer to equipment for a larger recreation area. Expressed another way, there is a distinction between playground equipment and recreational equipment, the former denoting equipment for a children’s playground. The expression “playground equipment” does not, therefore, include a skate facility.
The same conclusion may be reached by another route. The skate facility is a relatively large structure and itself constitutes a recreation area, albeit a small recreation area. It is a small skating rink. It is, not, therefore playground equipment in the ordinary sense of that word. Further, the noun “equipment” denotes articles with which a person or place is equipped. It does not signify such a substantial facility as this skate facility.
For all of these reasons the skate facility is not playground equipment and so does not fall within par (f). In reaching this conclusion I have had regard to the decision in Arnold v City of Prospect [1999] EDLR 101. For the reasons already expressed, I respectfully disagree with the conclusion in that decision.
As the skate facility does not fall within either par (e) of par (f), it is not excluded from the definition of “development”. The Council must, therefore, seek development approval in order to proceed lawfully with the proposed development.
Should the Relief be Granted?
Mr Roder submitted that the plaintiff had not acted promptly and, as the construction of the facility was about to start, I should in the exercise of my discretion refuse to grant the relief sought. He further contended that the fact that the Council had incurred expenditure on the project was a further reason why I should not grant the relief sought. It is necessary to review the history of this matter.
Early in 2003 a proposal for a skate facility in the township of Willunga was mentioned in two newspapers circulating in the area of Willunga, “The Southern Times” and “On the Coast”. At that stage what was called “the Rose Garden Reserve” was but one of four possible locations for the facility. The Rose Garden Reserve forms part of the Willunga Recreation Reserve. The plaintiff was aware of the proposal. On 17 January 2003 he sent an e-mail to Mr Buckell, the Council’s Recreation Services Officer, on behalf of himself and his wife, expressing their opposition to a skate facility in or near the rose garden.

On Saturday, 8 February 2003, the Council set up an information stall at the Willunga Quarry Market which was held on the Willunga Recreation Reserve. The same four sites were still under consideration. A form was available on which people were able to indicate their preferred location for the facility. Responses were received from 104 persons of whom 88 stated they lived with the area of the postcode 5172 for Willunga. Fifty four per cent said they preferred the Rose Garden Reserve site. Some respondents expressed a preference for more than one site and it is not known how many of the 54 per cent resided outside the area of the postcode 5172.
On 27 February 2003, at a meeting of the Rural Hills South Community Forum, Council staff explained the proposal and nominated the same four sites. The meeting voted on the proposal. Eighteen persons voted in favour of the facility at the Rose Garden Reserve and one voted against it. The plaintiff was not present at this meeting.
On 19 March 2003 Council staff reported to the Local Heritage Advisory Committee, which appears to be a committee of the Council, upon the proposal to locate the facility within the Rose Garden Reserve. The committee expressed support for the construction of the facility in the vicinity of the Rose Garden Reserve but outside the curtilage of the conservation plan for the Willunga Railway Terminus. The Parks Committee, which also appears to be a committee of the Council, made the same recommendation.
In about July 2003 the Council decided to locate the facility on the corner of Aldinga Road and Railway Terrace on a site outside the curtilage of the conservation plan for the Willunga Railway Terminus but within the Historic (Conservation) (Willunga) Zone.
In early August 2003 the Council distributed to residents in the vicinity of the site a document identifying the site as being at the corner of Aldinga Road and Railway Terrace. The Council exhibited information concerning the proposal in its office in Willunga. It appears that the plaintiff saw this information. He telephoned Mr Buckell and complained about the lack of detail in the published information. By letter dated 29 August 2003 the Willunga branch of the National Trust of South Australia wrote to the Mayor of the Council expressing the view that, while it did not oppose the skate facility, it opposed the location of the facility at the corner of Aldinga Road and Railway Terrace. At about the same time, the branch sent a letter in similar terms to Mr Buckell. A report prepared by Mr Buckell to the Council for a meeting on 8 October 2003 shows that other residents of the area opposed the facility on this site. His report refers also to others who supported the proposal.
At its meeting on 21 October 2003 the Council resolved to construct the facility. The resolution was in these terms
“That
·staff proceed with the design and construction of a local skate facility on the corner of Aldinga Road and Railway Terrace within the Rose Garden Reserve, Willunga, and within the approved budget allocation; and
·the detailed design process ensure that consideration is given to all the issues raised, surrounding the development of the local skate facility as a result of the community consultation conducted in February and August including:
-       community feedback provided at the Quarry Market consultation;
-       recommendations of Local Heritage Advisory Committee;
-       16 written submissions received from residents during consultation conducted in August 2003;
-       two petitions received one opposing the proposed development totalling 29 signatories, and one petition received supporting the proposal totalling 680 signatories; and
-       information provided by groups including Mission Australia, Willunga Recreation Park Inc., Willunga Youth Forum SPYGOGGLE, the Rural Hills South Community Forum, National Trust SA – Willunga Branch, and Deep South Youth Workers Network.”
There is no evidence suggesting that the plaintiff was present at the Council meeting.
On 27 November 2003 the proposal was again discussed at a meeting of the Rural Hills South Community Forum. The plaintiff was present at the meeting. It seems that it was stated at the meeting that construction of the facility was likely to be in June 2004. The plaintiff spoke at the meeting and, according to the minutes of that meeting, he expressed concern concerning the Council approach to the facility and his disappointment at the result. It is not clear from the minutes whether the plaintiff knew that the Council had, in fact, resolved to proceed with the construction of the facility.
Little then occurred until August 2004 when concept drawings of the proposal were exhibited in the Council’s offices in Willunga. At some time between August 2004 and February 2005 the Council obtained final drawings from the contractor, Convic International Pty Ltd.
In February 2005, Mr Taylor, the plaintiff’s solicitor, telephoned Mr Buckell and asked a number of questions concerning the proposed facility. On 16 February 2005 the plaintiff’s solicitor wrote to the Council stating that he acted for “various local ratepayers who opposed the location of the proposed skate facility at the corner of Aldinga Road and Railway Terrace”. The letter asserted that development approval was required for the proposed facility. By letter dated 18 February 2005 the solicitor for the Council responded stating the Council did not believe that it required development approval. The letter referred to par 2 (1) (f) of Schedule 3 of the Development Regulations and to the decision in Arnold v City of Prospect (supra). On 3 March 2005 the plaintiff commenced this action.
There is evidence that, by letter dated 22 August 2004, Mr Buckell informed Mrs Taylor, the wife of the plaintiff’s solicitor, that the Council did not believe that it was obliged to obtain development approval. The letter does not state why the Council held that view. It did not refer to any paragraph in the Development Regulations nor to the decision in Arnold v City of Prospect. There is no evidence that the content of this letter was drawn to the plaintiff’s attention. I find that not until 18 February 2005, when his solicitor received the letter from the Council’s solicitor, was the plaintiff aware that the Council did not intend to apply for development approval.
It is apparent, therefore, that there are residents in Willunga who support and others who object to the location of the proposed facility at the corner of Aldinga Road and Railway Terrace. I do not think that the fact that there are persons who both support and oppose the proposal has any material bearing on the exercise of the Court’s discretion whether to grant the relief which is sought The issues in this action are not to be determined by a head count of those who support or oppose it.
For the purposes of considering whether the plaintiff has been guilty of undue delay in bringing this action, the first relevant date is 21 October 2003, the date when the Council resolved to proceed with the construction of the facility. Until that date four separate sites were under consideration. The plaintiff was, therefore, entitled to wait and see which site was selected.
It is not clear whether the plaintiff became aware of the terms of the Council resolution of 21 October 2003 and, if so, when. The plaintiff has sworn two affidavits, both of which were admitted by consent. He was not cross-examined on either affidavit. The plaintiff states in his second affidavit that in 2003 he was not aware that the Council had passed a resolution with respect to the skate facility. That assertion does not sit easily with a statement he made in a letter to “Coastal Views” published in December 2003 where he stated
“It looks like the beaurocrats [sic] have decided to build a skate park on the corner of Railway Terrace and Aldinga Road.”
Furthermore, it is likely that he would have been informed at the meeting of the Rural Hills South Community on 27 November 2003 that the Council had resolved to construct the facility and that construction was intended to commence in June 2004. He might not then have known of the precise terms of the resolution but would have known that the Council had decided to construct the skate facility on land at the corner of Aldinga Road and Railway Terrace.
In his second affidavit the plaintiff stated, and I find, that in the first part of 2004 he was not aware of any activity on the part of the Council in relation to the facility. He was aware that other groups in the area were making representations to the Council opposing the facility on the proposed site. In the latter part of 2004 the plaintiff noticed that the rose garden had been removed. He telephoned the Council to ask what was occurring. He was directed to plans of the proposed facility in the Willunga Library. On 15 October 2004, in response to a request to the Council, the plaintiff received a copy of a plan of the proposed facility. The plaintiff states that he then thought that the facility still had the status of a proposal and that, if it was of the size shown on the plan, it was not as intrusive as the earlier proposal. He later became aware that the facility was larger than he then believed.
On 12 January 2005 the Council published a notice in “The Southern Times” stating that the development of the facility was to begin by February 2005. No date was specified for the commencement of construction. The plaintiff saw that notice. I find that he first learned of an intended construction date when he saw that notice. In February 2005 he attended a meeting concerning the facility. The plaintiff has stated in his second affidavit that he was then informed for the first time that the Council believed that it did not require development approval for the facility. I accept that evidence. There is nothing which suggests the contrary and his assertion is consistent with the facts. Believing that all other avenues had been exhausted, the plaintiff then sought legal advice. In consequence of that advice he ultimately issued these proceedings. There was a delay of some two weeks in issuing proceedings but I do not think that it was an unduly long period.
I find, although the plaintiff knew at the end of 2003 that the Council intended to proceed with the construction of the facility, he did not then know when the Council intended to commence construction. Indeed, he could not have known that fact because the Council itself did not know when construction would commence. It was not until January 2005 that the Council gave some indication of when construction was to begin. Furthermore, nothing occurred in the greater part of 2004 which should have caused the plaintiff to believe that the work would in fact proceed. No work occurred until October 2004 when the rose garden was removed. The plaintiff was also aware that other groups were expressing opposition to the skate facility being located at the corner of Aldinga Road and Railway Terrace. I find that the absence of any work and his knowledge that other groups opposed the facility were reasonable grounds on which the plaintiff could assume that the work had been delayed by the voiced opposition and might not proceed. I find also that, when he made enquiries in October 2004, he was acting under that assumption. I do not think it was incumbent on the plaintiff to act until it was clear that the Council was in fact going to proceed. That did not occur until 12 January 2005 when the Council publicly announced in “The Southern Times” that the intended construction would commence in February 2005. As already noted, that was the first notice that the plaintiff had that the Council was definitely intending to proceed with the construction of the skate facility. Given the lapse of almost 15 months between the resolution of 21 October 2003 and the publication of the notice on 12 January 2005, the plaintiff was entitled to assume that the work had been delayed by the voiced opposition and might not even proceed. He acted with reasonable expedition once he became aware that the work was in fact going to proceed. I do not think that this is a case of the party sitting on his rights.
There is a further reason for concluding that the plaintiff has not been guilty of undue delay. The skate facility will be a large structure, so large that the plaintiff was entitled to believe that it was necessary for the Council to obtain development approval for its construction. Reference to Table Onka/14 of the Council Development Plan shows that this is a Category 3 development so that he was entitled to be given notice of the development proposal. He was entitled to wait for that notice. He did not learn the Council did not intend to seek development approval until 18 February 2005. He then acted with reasonable expedition.
I have regard also to the fact that no work other than to clear the site has yet occurred. The area where the work was carried out can be made good, if necessary. I also have regard to the fact that it cannot be assumed, nor was it suggested, that development approval will necessarily issue for the proposed facility. In that respect I note that the Council intends to locate the facility in the Historic (Conservation) (Willunga) Zone. As already mentioned, this zone has been established for the purpose of retaining and enhancing the historic character of Willunga as one of South Australia’s oldest country towns. The Plan states that development should be designed to reinforce and maintain the historic character of the township. On its face the development of a modern skate facility of this kind does not reinforce and maintain the historic character of the township. There may, of course, be other considerations. All that needs to be stated at this stage is that, given the terms of the Development Plan, there is a serious question whether development approval should be granted. The fact that the Council had consulted residents in the area was no substitute for development approval. That process was essentially undertaken for the purpose of identifying the site for the proposed facility.
Another factor affecting the exercise of the discretion is the evidence of the costs incurred by the Council to date in relation to the facility. Those costs are
(i)Design cost – these include all costs associated with the design of the skate facility and costs associated with the community consultation $9,856.00
(ii)Tender preparation $675.00
(iii)Design and consultation – this is the cost of staff time involved in preparation and the undertaking of community consultation, preparing reports to committees, preparing the design brief, gathering relevant information $15,200.00
There is nothing to suggest that those costs would not have been incurred in any event. The process of community consultation would have been undertaken in order to decide which of the four sites should be chosen for the proposed facility. It is plainly necessary for the Council to have plans and specifications which adequately depict and explain the proposal for the purpose of obtaining a Council resolution to proceed with the project and for the purpose also of obtaining development approval. There are no further details of these costs. Although some of those costs might not have been incurred if an application for development approval had been made, I am not satisfied that the bulk of the costs so far incurred would not have had to have been incurred in any event. This is not a ground, when considered either alone or with other factors, which requires that I should exercise my discretion not to grant the relief sought.
The Council has proved part of its contract with Convic International Pty Ltd for the design and construction of this and another skate facility. The whole contract has not been proved. It is a fixed price contract. The price is $99,000 for each skate facility. I note that the date for practical completion is stated to be 3 December 2004. There is no evidence that the Council has granted an extension. The contractor may, therefore, already be in default. It has not been demonstrated that Council will incur any liability for any delay if the work does not proceed. It has not been submitted that the Council would be in breach of contract if it were unable to obtain development approval. The Council has not, therefore demonstrated that there is any issue arising out of the contract which might affect the exercise of the discretion. In any event, any cost which the Council occasioned by the terms of the contract would be a consequence of the Council’s failure to obtain development approval at an earlier date and should not lead to an exercise of discretion against the plaintiff.
After weighing all these factors I do not believe that the plaintiff has been guilty of any undue delay or has failed to act with reasonable expedition. I do not believe that there is any other factor which should cause me to refuse to grant the relief which the plaintiff seeks.
Conclusion
For these reasons, the plaintiff is entitled to an order in the nature of a declaration that the skate facility which the Council proposes to construct at the corner of Aldinga Road and Railway Terrace, Willunga constitutes development within the meaning of the Development Act 1993 and is not excluded from the definition of development by reason of the provisions of Schedule 3 of the Development Regulations 1993. The plaintiff is also entitled to an order that the Council be restrained from proceeding with the construction of the proposed skate facility unless and until it has obtained development approval pursuant to the Development Act 1993.
The plaintiff also seeks an order declaring the Council’s resolution of 21 October 2003 ultra vires and void. The Council had the authority to carry such a resolution. It was, however, necessary to obtain development approval. The Council could later have resolved to seek that approval. Its fault lies in the failure to do so. In addition, the plaintiff’s rights are sufficiently protected by the orders already mentioned. For those reasons, it is neither appropriate nor necessary to make an order declaring the Council’s resolution void.
I will hear the parties as to the terms of the orders.