Lindner v Corporation of the City of Marion - [2015] SASCFC 171

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
LINDNER & ANOR v CORPORATION OF THE CITY OF MARION & ANOR
[2015] SASCFC 171
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Nicholson)
17 November 2015
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONTROL OF PARTICULAR MATTERS - RESIDENTIAL - DWELLINGS AND HOUSES
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENTAL, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - POWERS ON APPEAL
Appeal against dismissal by the Environment Court of application for review of categorisation decisions in respect of two development approval applications.
Mr Majeric lodged successive applications to construct three townhouses each incorporating a garage/carport. The Council characterised the first development as Category 1 being a “row dwelling” and the second as Category 2 being a “row dwelling” with a wall on the boundary.
The appellants appealed to the Environment Court contending that the developments were not row dwellings because they incorporated a garage/carport. The Council maintained that each development was a row dwelling but in any event the wall on the boundary in the second development resulted in its being rendered Category 2 pursuant to the Public Notification table in the residential section of the Development Plan. The appellants contended in the alternative that the grant of development plan consent in respect of the first application was invalid because the Council’s decision maker acted beyond the scope of his delegated authority.
A Judge of the Environment Court dismissed the appeal, holding that the developments were row dwellings and in any event the second development was rendered Category 2 because it had a wall on the boundary. The Judge held that, assuming jurisdiction to entertain the challenge to development plan consent on the ground of want of authority, the Council’s decision maker acted outside the scope of the delegation but this requirement should be dispensed with under section 33 of the Environment Resources and Development Act 1993 (SA).
Held by Blue J (Kourakis CJ and Nicholson J agreeing):
1.       A group of townhouses otherwise meeting the definition of “row dwelling” is a “row dwelling” notwithstanding the incorporation of a garage/carport and, subject to the Public Notification table, the developments were properly characterised as Category 1 (at [57], [64]).
2.       On its proper construction, the Public Notification table did not render a Category 3 development as Category 2 merely because it had a wall on the boundary (at [70]-[71]).
3.       On a section 86(1)(f) review of categorisation, the Environment Court does not have jurisdiction to entertain a challenge to development plan consent on the ground of want of authority of the decision maker or any other ground not connected with the issue of categorisation (at [76]-[77]).
4.       Appeal dismissed (at [83]).
Development Act 1993 (SA), s33, 3s8, s86, s88; Development (Miscellaneous) Variation Regulations 2006 (No 1 of 2006); Development Regulations 2008 (SA); Development Regulations 1993 (Ceased), referred to.
Bade v Rural City of Murray Bridge & Anor [2008] SASC 189; Baker v City of Norwood, Payneham & St Peters [2003] SASC 282; Colmer & Ors v Alexandrina Council & Anor [2009] SASC 13; Evans & Anor v City of Victor Harbor & Anor [2010] SAERDC 64; Polites v City of Holdfast Bay (1998) 72 SASR 475; Verdouw v City of Unley (2001) 113 LGERA 26, discussed.
City of Marion v Paior [2013] SASCFC 77; KA & L May v City of Mitcham Unreported, Environment Resources and Development Court 19 December 1996, Judgment No OE338; Keane v Salisbury City (1995) 87 LGERA 203; Smith v Mt Barker Products P/L & Anor [2000] SASC 164, considered.

LINDNER & ANOR v CORPORATION OF THE CITY OF MARION & ANOR
[2015] SASCFC 171
Full Court: Kourakis CJ, Blue and Nicholson JJ

KOURAKIS CJ: I agree that the appeal should be dismissed for the reasons given by Blue J.
BLUE J.
Mr and Mrs Lindner appeal against the dismissal by the Environment Resources and Development Court of their application for review of decisions by the Corporation of the City of Marion categorising developments the subject of two development approval applications by John Majeric as Category 1 and Category 2 respectively under section 38 of the Development Act 1993 (SA) (the Act).
The Council classified the proposed developments as “row dwellings”, which are Category 1, a categorisation upheld by the Environment Court. The Lindners contend that, because they incorporated a garage or carport dedicated to each residence, the development did not meet the definition of “row dwellings” and therefore comprised a “residential flat building”, which is Category 3. The Council contends that the developments met the definition of “row dwellings” or in the alternative the development the subject of the second application was rendered Category 2 because it had a wall on the boundary.
The Lindners contend in the alternative that the grant of development plan consent in respect of the first application was invalid because the Council’s decision maker acted beyond the scope of his delegated authority and in respect of the second application was invalid because the Council did not give the requisite notices to all adjacent owners or occupiers. The Council contends that the Environment Court did not have jurisdiction to entertain challenges to the development plan consents on any grounds other than wrong categorisation.
The Environment Court held that, assuming jurisdiction to entertain the challenge to the first development plan consent, it had power under section 33 of the Environment, Resources and Development Court Act 1993 (SA) (the Environment Court Act) to dispense with the requirement that the decision maker act within the scope of the delegation and that power should be exercised. The Lindners contend that the Court had no power to do so.
The Council contends that the Lindners did not argue the failure to give notice point in relation to the second development plan consent before the Environment Court and should not now be permitted to do so on appeal and in any event there is no proof of failure to give notice.
The appeal raises the following issues:
1.Do the proposed developments fall within the definition of “row dwellings”?
2.If not, is the second proposed development rendered Category 2 because it has a wall on the boundary?
3.Does the Environment Court have jurisdiction on a section 86(1)(f) review to entertain a challenge to the validity of the ensuing development plan consent on grounds of want of authority of the decision maker granting consent or failure to give notice to adjoining owners or occupiers?
4. Does the Environment Court have power under section 33 of the Environment Court Act to dispense with the requirement for compliance with delegation conditions?
Background
Mr and Mrs Majeric own three adjoining allotments on Whiteleaf Crescent Glengowrie. Lot 3 is situated on the corner of Whiteleaf Crescent and St Peter’s Way. Lots 2 and 1 are situated next to it on Whiteleaf Crescent.
On 13 February 2015, Mr Majeric lodged with the Council an application for development authorisation for construction of “two-storey row dwellings x 3” (the first application).[1] The plans showed three townhouses[2] erected side by side each having a frontage onto Whiteleaf Crescent and lot 3 also having a frontage onto St Peter’s Way.
[1] Mr Majeric had lodged an earlier application in very similar terms on 15 August 2014. This development was categorised by the Council as Category 1. On 10 December 2014, the Council's Development Assessment Panel resolved to grant development plan consent in respect of that application. On 17 December 2014, the Lindners filed at the Environment Court a section 86(1)(f) review application contending that the development should have been categorised as Category 3 and seeking quashing of the development plan consent. However, on 1 April 2015, Mr Majeric withdrew the application and it can be ignored for the purposes of this appeal.
[2] I use “townhouse” as a neutral term to describe the three main components of the proposed development without implying that they are “row dwellings”, being the main issue on the appeal.
The Lot 2 plans showed a front door next to two garage roller doors giving access from Whiteleaf Crescent. Behind the front door was a hallway and behind the roller doors was a double garage. Both the hallway and garage led to a kitchen, dining room, sitting room and laundry. The first floor comprised bedrooms and bathrooms situated above the ground floor areas all under the main roof.
The Lot 1 plans were essentially the same except a minor part of the double carspace was not covered by the first floor bedrooms and bathrooms. The carspace in Lot 1 was called a “carport” whereas the carspace in Lot 2 was called a “garage”. A garage is enclosed (on at least three and perhaps four sides) whereas a carport is covered but open (on at least one and perhaps two sides). Neither party suggests that there is a material difference between a carport and garage for the purpose of the issues raised on appeal. For ease of reference, I use the term “garage” to describe a carspace comprising either a garage or a carport.
The Lot 3 plans showed ground floor kitchen, family room, study, laundry and toilet. At the rear was a double carport attached to the main house. The first floor level comprised bedrooms, rumpus room and bathrooms situated above the ground floor living areas. The carport was partly under its own roof attached to the main structure and partly under the main roof.
The Council was required to make a decision under section 38 of the Act whether the proposed development comprised a Category 1, 2, 2A or 3 development. That decision then dictated whether the Council was required or permitted to give notice to or consult with neighbours or the public about the application. It also dictated whether third parties making representations would have appeal rights.
On 19 February 2015, the Council’s Manager of Development Services, Steve Hooper, decided that the proposed development was Category 1 (the first categorisation decision).
On 20 February 2015, Mr Hooper purported to grant development plan consent for the development (the first approval decision) pursuant to a delegation from the Council to the Chief Executive Officer and a sub-delegation to the Manager of Development Services.
On 5 March 2015 the Council issued a Decision Notification Form granting development approval for ‘three (3) two storey row dwellings with associated fencing.’
On 6 March 2015, the Lindners filed in the Environment Court an application for review pursuant to section 86(1)(f) of the Act in respect of the first categorisation decision.[3] They contended that the development was a “residential flat building” categorised as Category 3 and not “row dwellings” categorised as Category 1. They included independent contentions that the first approval decision was invalid as being outside the power delegated by the Council and the proposed development was seriously at variance with the Marion Council Development Plan.
[3] This was done by amending the original 17 December 2014 application for review: see footnote 1 above.
On 11 March 2015, Mr Majeric lodged with the Council a second application for development authorisation for the construction of “3 x 2storey row dwellings plus pool” (the second application). The plans were essentially the same as those the subject of the first application, except that they moved Lot 3’s garage wall from 320 mm inside the rear boundary to abutting the boundary and included a swimming pool on Lot 3.
Shortly after 11 March 2015, a member of the Council’s staff decided that the proposed development was Category 2 (the second categorisation decision) because the Public Notification table for the Residential Zone of the Marion Council Development Plan assigned developments having a wall abutting the boundary to Category 2. This decision resulted in the Council notifying certain adjacent owners and occupiers (including the Lindners) of the application pursuant to section 38(4) of the Act. This in turn resulted in representations from the Lindners and one other couple opposing the application.
On 15 April 2015, the Council’s Development Assessment Panel granted development plan consent for the second development (the second approval decision).
On 27 April 2015, the Lindners amended their application for review to add the second categorisation decision on the same ground as for the first categorisation decision. They included independent contentions that the second approval decision was invalid because not all adjacent owners had been notified and the proposed development was seriously at variance with the Marion Council Development Plan.
Statutory provisions governing categorisation
Section 38(2)(a) and (b) of the Act empower regulations to assign a form of development to Category 1, 2 or 2A. They also empower a development plan to assign a form of development to Category 1 or 2 provided that in the event of inconsistency the regulations prevail unless they are expressed to be subordinated to a development plan. All other forms of development are assigned by default to Category 3.
Regulation 32(1) and (3) of the Development Regulations 2008 (SA) (the Regulations) assigns various forms of development specified in Parts 1 and 2 of Schedule 9 to Category 1 and 2 respectively for the purpose of section 38 of the Act.[4] Regulation 32(5) requires a particular approach to the categorisation of a development where it comprises more than one element of Part 1 and/or Part 2. If all elements are within Part 1, the whole development is assigned to Category 1 but if any element is within Part 2, the whole development is assigned to Category 2.
[4] This is subject to activities of major environmental significance specified in schedule 22 of the Development Regulations 2008 (SA) which are assigned to Category 2. This exception has no relevance to this appeal.
Schedule 9 Part 1 clause 1 provides that any development classified as a complying development (or would be complying but for minor divergence) is Category 1. In addition, clauses 2 to 16 prescribe 15 types of development (several of which include multiple types of development) that are Category 1. The first of those types as at February/March 2015[5] (clause 2) relevantly included the following:
[5] Schedule 9 was amended by the Development (Miscellaneous) Variation Regulations 2015 (No 178 of 2015) which came into force on 25 June 2015. The amendments included removing the dimensional requirements contained in paragraphs (i) to (iv) of clause 2(d) of Schedule 9 Part 1 and consequentially removing clause 20 from Part 2: see footnote 6.
2Except where the development is classified as non‑complying under the relevant Development Plan, any development which comprises—
(a)     the construction of any of the following (or of any combination of any of the following):
(i)    1 or more detached dwellings;
(ii)    1 or more single storey dwellings;
(iii)1 or more sets of semi‑detached dwellings, provided that no such dwelling is more than 2 storeys high;
(iv)3 or more row dwellings or 1 or more additional row dwellings, provided that no such dwelling is more than 2 storeys high; or
(b)     the alteration of, or addition to, a building so as to preserve the building as, or to convert it to, a building of a kind referred to in paragraph (a); or
…
(d)the construction of (or of any combination of) a carport, garage, shed, pergola, verandah, swimming pool, spa pool or outbuilding if—
(i)it will be ancillary to a dwelling; and
(ii)it will not be constructed any closer to a street frontage than the wall of the dwelling that is closest to the street frontage; and
(iii)it will not be constructed within the following distance of a boundary of the site of the development:
(A)if it will have solid walls (including walls with windows or made of glass)—900 mm;
(B)in any other case—600 mm; and
(iv)in the case of a carport, garage, shed or outbuilding—
(A)it will not exceed 1 storey; and
(B)if it will have eaves—the eaves will not be more than 3 metres above the ground; and
(C)if it will not have eaves but will have gutters—the gutters will not be more than 3 metres above the ground; and
(D)it will have a floor level that is not more than 0.6 metres above or below natural ground level at any point; and
(E)it will not have a floor area that is more than 54 square metres; and
(F)no wall will be more than 9 metres in length; or
…
(g)     a kind of development which, in the opinion of the relevant authority, is of a minor nature only and will not unreasonably impact on the owners or occupiers of land in the locality of the site of the development.
Schedule 9 Part 2 clauses 18 to 26 prescribe nine types of development that are Category 2. One of those types as at February/March 2015[6] relevantly included the following:
20Except where the development is classified as non‑complying under the relevant Development Plan or falls within Part 1 of this Schedule, any development ancillary to a dwelling that comprises the construction of (or of any combination of) a carport, garage, shed, pergola, verandah, swimming pool, spa pool or outbuilding.
[6] Schedule 9 was amended by the Development (Miscellaneous) Variation Regulations 2015 (No 178 of 2015) which came into force on 25 June 2015. The amendments removed clause 20 in light of the amendment removing the qualifications contained in paragraphs (i) to (iv) of clause 2(d) of Schedule 9 Part 1.
It is not suggested that the developments the subject of the applications in this case fall within any of clauses 3 to 16 of Part 1 or any of the clauses of Part 2 of Schedule 9.
Schedule 4 defines developments that are classified as complying developments. Part 1 A1 clause 1(3) provides that construction of a garage or verandah is a complying development if it is ancillary to a dwelling and meets specified dimensional requirements as to size, location and access.
Clause 2B(6) of Schedule 4 Part 1 A1 provides that construction of a new detached or semi-detached dwelling is a complying development if it meets various requirements, including any proposed garage meeting specified dimensional requirements (item (k),[7] and that it contain at least one car parking space if it has one bedroom and at least two car parking spaces if it has two bedrooms which car parking spaces are enclosed or covered or able to be enclosed or covered and meet the item (k) dimensional requirements for a garage.[8]
[7] Development Regulations 2008 (SA) Schedule 4, Part 2B(6)(k).
[8] Development Regulations 2008 (SA) Schedule 4, Part 2B(6)(l).
Schedule 1 defines a “dwelling” as follows:
dwellingmeans a building or part of a building used as a self‑contained residence
and defines four subcategories of dwelling as follows:
detached dwelling means a detached building comprising 1 dwelling on a site that is held exclusively with that dwelling and has a frontage to a public road, or to a road proposed in a plan of land division that is the subject of a current development authorisation;
group dwelling means 1 of a group of 2 or more detached buildings, each of which is used as a dwelling and 1 or more of which has a site without a frontage to a public road or to a road proposed in a plan of land division that is the subject of a current development authorisation;
semi‑detached dwelling means a dwelling—
(a)     occupying a site that is held exclusively with that dwelling and has a frontage to a public road or to a road proposed in a plan of land division that is the subject of a current planning authorisation; and
(b)     comprising 1 of 2 dwellings erected side by side, joined together and forming, by themselves, a single building;
row dwelling means a dwelling—
(a)     occupying a site that is held exclusively with that dwelling and has a frontage to a public road or to a road proposed in a plan of land division that is the subject of a current development authorisation; and
(b)     comprising 1 of 3 or more dwellings erected side by side, joined together and forming, by themselves, a single building;

Schedule 1 defines a “residential flat building” in a residual manner effectively excluding the above four subcategories of dwelling as follows:
residential flat building means a single building in which there are 2 or more dwellings, but does not include a semi‑detached dwelling, a row dwelling or a group dwelling
Section 4(1) of the Act defines a “building” to mean not only a building in its ordinary English meaning but also a structure (which includes a fence or wall) or part of a building or structure.
The reasons of the Judge
The Judge referred to the distinction drawn by Bleby J in Colmer & Ors v Alexandrina Council & Anor[9] between a garage which is ancillary to a dwelling and one which is integral to a dwelling, the difference often being largely a matter of impression.[10]
[9] [2009] SASC 13 at [47] and [54].
[10] Lindner & Anor v The Corporation of the City of Marion & Anor [2015] SAERDC 17 at [21]-[22].
The Judge concluded from the plans that the garages were integral to and form part of the dwellings and hence the development comprised a “row dwelling” within the meaning of the definition in the Regulations. The Judge said:
When one considers the proposal plans here, there is ‘no sense’ in which either the carports or the garage could be said to be separate from their respective dwellings. On the contrary, each carport or garage is physically and functionally integral to and forms part of the dwelling.
I would therefore reject the applicants’ argument that because each of the row dwellings incorporates a garage or carport element, it is therefore something more than a dwelling.
Quite apart from the authorities to which I have referred, the applicants submitted that the dwellings proposed could not constitute a ‘row dwelling’ for the purposes of the definition because none constitutes a ‘dwelling’ or (as the definition of ‘dwelling’ reads, ‘a self contained residence which occupies a site held exclusively with that dwelling’.
Put another way, the applicants submitted that because something more than a self contained residence (i.e. a garage) occupies the ‘site’, it cannot be a ‘row dwelling’.
One answer to this submission is that if the carport/garage is integral to the ‘dwelling’, then the ‘dwelling’, with all its component parts, will occupy a ‘site’ held exclusively with that ‘dwelling’.[11]
[11] [2015] SAERDC 17 at [31]-[35].
The Judge held that in any event the Public Notification table in the Marion Development Plan rendered the development the subject of the second application Category 2. The Judge said:
[T]he respondents pointed to the Public Notification Table for the Zone which, amongst other forms of development, assigns the following form of development to Category 2:
Development that has a wall abutting a side or rear property boundary (other than a common wall of semi detached or row dwellings).
I am quite satisfied that the form of development proposed in DA3 fits this description.[12]
[12] [2015] SAERDC 17 at [57]-[58]. (Emphasis in original)
The Judge assumed for the purpose of argument that the Environment Court had jurisdiction to entertain a challenge to Mr Hooper’s decision to grant development plan consent in section 86(1)(f) proceedings and held that Mr Hooper did not have power under the Council’s delegation to grant such consent. The Judge held however that he had power to dispense with the requirement that Mr Hooper act within the scope of the delegation and considered that power should be exercised. The Judge said:
Although this conclusion would ordinarily mean that the decision on DA2 would now need to be referred to the DAP, it is equally apparent that the Panel has already made a decision to approve a development, in substantially the same form as that proposed in DA2, both prior to and subsequent to, Mr Hooper’s delegated decision.
In these particular circumstances, I would be disposed to exercise the wide power given to this Court pursuant to s 33 of the Environment, Resources and Development Court Act 1993 to dispense with the requirement that the decision to grant DPC be now referred back to the Panel for it to make a third decision granting approval.[13]
[13] [2015] SAERDC 17 at [52]-[53].
Categorisation as row dwellings
The Lindners’ principal contention is that the inclusion of a garage, whether internal or external, with a residence in a development results in the development being categorised as Category 3 regardless of whether the residence would otherwise be a detached, semi-detached, row or group dwelling.
The Council’s principal contention is that the inclusion of a garage, whether internal or external, with and for a residence in a development results in the development being categorised as Category 1 if the residence would otherwise be a detached, semi-detached, row or group dwelling meeting the dimensional requirements of Schedule 9 Part 1 clause 2 of the Regulations.
Each party contends that their favoured construction produces a consistent result regardless of whether the garage is internal or external. While each party puts an alternative contention differentiating between internal and external garages, it is desirable first to consider the position in which the garage is completely detached from but ancillary to the residence.
Detached garage
It is common ground that a completely detached garage is not part of a dwelling although it is ancillary to a dwelling if it is dedicated to the use of the residents of the dwelling and their invitees.
Take for example a detached dwelling with an ancillary detached garage meeting the dimensional requirements. The Council contends that the dwelling itself is rendered a Category 1 development by Schedule 9 Part 1 clause 2(a), the garage itself is rendered a Category 1 development by Schedule 9 Part 1 clause 2(d) and the combination is rendered Category 1 by Schedule 9 Part 1 clause 2 of the Regulations. The Lindners accept the first two contentions but take issue with the third. They accept that an application for such a dwelling would be Category 1 and a subsequent application for such a garage would be Category 1; however they contend that the use of the disjunctive “or” at the end of each subclause of clause 2 indicates that the development can encompass one or other of the types of development mentioned in the subclauses, but not a combination of two or more as part of the same development.
Before addressing textual considerations or authority, this construction has little to commend it from a purposive point of view, particularly when considering a combination of a dwelling under clause 2(a) and an ancillary structure such as a verandah, fence or garage under clause 2(d). A verandah for example is a common and almost universal accompaniment to a dwelling and there seems no purpose in providing that successive development applications for a dwelling and a verandah are Category 1 but a single application for the combination is Category 3.
The Lindners rely on Polites v City of Holdfast Bay[14] in which the developer sought development approval for construction of one detached dwelling and two semi-detached dwellings on an allotment. Schedule 9 clause 2(1)(a) of the Development Regulations 1993 (SA) (the 1993 Regulations) that applied in that case provided:
(a)the construction of–
(i) a detached dwelling or a single storey dwellings or single storey dwellings; or
(ii)a two-storey semi-detached or row dwelling;
[14] (1998) 72 SASR 475.
The 1993 Regulations did not in the chapeau to clause 2(1)(a) contain the words “any of the following (or of any combination of any of the following)”, nor use the plural (other than for single storey dwellings) nor did regulation 32 contain the equivalent of sub-regulation 32(5) of the Regulations. Debelle J decided the case on another ground but held obiter that the use of the disjunctive “or” between the four kinds of dwellings in clause 2(1)(a) evinced an intention that they were strict alternatives and did not contemplate a development consisting of two or more of the four kinds of dwellings. Debelle J said:
A careful reading of par 2(1)(a) shows that in order to qualify as a category 1 development, the proposal must be to construct one of four kinds of development, namely, a detached dwelling or a single story dwelling or a group of single story dwellings or a two-storey semi-detached or row dwelling. Thus, if one or more of these separate kinds of development are grouped together, the development does not qualify as a category 1 development.… In other words, effect must be given to the use of the disjunctive “or” in par 2(1)(a). Paragraph 2(1)(a) is expressed as a series of alternatives and it is not intended that it should permit a composite development other than a group of single story dwellings.[15]
[15] At 483.
The 1993 Regulations were subsequently amended to substitute a new clause 2(1)(a) in schedule 9 in identical terms to the current clause 2(1)(a) of the Regulations, thereby reversing the effect of the decision in Polites v City of Holdfast Bay. The Lindners contend that the reasoning of Debelle J still applies to the use of the disjunctive “or” between the seven subclauses (a) to (g) of clause 2(1) of the Regulations.
The 1993 Regulations were subsequently amended to insert a new subregulation 32(5) in effectively identical terms to regulation 32(5) of the Regulations, namely:
(5)For the purposes of the Act and these regulations, a development that comprises 2 or more elements (as set out in the relevant application or as determined by the relevant authority)—
(a) where all of those elements are within Part 1 of Schedule 9, will be assigned to Category 1 for the purposes of section 38 of the Act;
(b) where all of those elements are within Part 1 or Part 2 of Schedule 9 (with at least 1 element within Part 2), will be assigned to Category 2 for the purposes of section 38 of the Act.
The reference in the chapeau and paragraph (a) of that regulation to “elements” is a reference to two or more of the types of development described in any clause, subclause or paragraph of Part 1 of Schedule 9. For example, it encompasses one element being a semi-detached dwelling referred to in paragraph 2(a)(iii) and another element being a garage referred to in subclause 2(d).
It follows that a development comprising a combination of three row dwellings and three ancillary detached garages meeting the dimensional requirements is assigned by clause 2 of Schedule 9 to Category 1.
Incorporated garage
The Lindners contend that the definitions of detached, group, semi-detached and row dwellings all require that the entire building be used solely as a residence – that is, for human habitation – and no part of the building be used for storage of motor vehicles or other non-human habitation purposes. The Lindners contend that the requirement for exclusive use as a residence arises textually from the definition of “dwelling” as a “self-contained residence”; “detached dwelling” as a “detached building comprising 1 dwelling” connoting it does not comprise anything but a dwelling; “group dwelling” as “detached buildings each of which is used as a dwelling” connoting each is used for no other purpose; and “semi‑detached dwellings” and “row dwellings” as comprising multiple dwellings “forming by themselves a single building” connoting nothing else is contained in the building. The Lindners contend that the requirement for exclusive use as a residence applies at least to “row dwellings” if not to the other species of dwellings.
The Council contends that, while it is a minimum requirement of a dwelling that its use is for the necessities of human habitation (sleeping, cooking, eating, washing, toilet, etc), these minimum requirements do not comprise the outer limits and use as a residence includes non-essential uses commonly accepted as normal uses of residences. For several decades housing the residents’ vehicles in a garage as an integral part of the building housing the human occupants has been commonly accepted as a normal use of a residence, and does not entail the building not being used exclusively as a residence. The Council contends in the alternative that the definitions do not require exclusive use of the building as a residence if, assessed holistically, the building as a whole is nevertheless properly characterised as a residence.
The Lindners’ contentions can be expressed in terms of a major and minor premise. The major premise is that the entire building containing the putative “row dwelling” or other species of dwelling must exclusively comprise a residence. The minor premise is that a building containing an integrated garage together with bedrooms, bathrooms, kitchen, etc does not comprise a residence.
The major premise may be assumed for the purpose of analysis. On that assumption, should the minor premise be accepted in its application to the three structures proposed to be constructed on each of Lots 1, 2 and 3?
The minor premise calls for the characterisation of the proposed structure on each Lot. Is it a “self-contained residence” and thereby a dwelling or does it comprise a self-contained residence and separately a garage? I address this question from first principles before considering previous authorities.
Most detached houses, and most townhouses, have a garage to house the residents’ motor vehicles. It is commonplace for detached houses to have a garage integrated in the same building as bedrooms, bathrooms, kitchen etc although it is perhaps more common to have a standalone garage. In the case of townhouses, due to space constraints it is more common to have an integrated than a standalone garage. The use by residents of motor vehicles is so common that the housing of their motor vehicles when integrated is regarded as part of the residence and not something foreign to it.
There is no fundamental distinction in kind between dedicating a room in a house to storing motor vehicles as opposed to storing bicycles, trophies, art collections or any other objects not used directly for basic human habitation functions such as eating and sleeping. While a standalone garage is not a residence, a residence can contain an integrated garage. A standalone art gallery is not a residence but a residence can contain a room dedicated to an art collection. A standalone gymnasium is not a residence but a residence can contain a gymnasium room. A standalone toilet is not a residence but a residence can and does contain a toilet.
The Regulations evince an intention that housing the residents’ vehicles in a garage is part – and indeed a desirable if not essential part – of the residential use of land. Thus, Schedule 9 Part 1 clause 2(d) proceeds on the basis that a standalone garage is typically ancillary to a dwelling. Schedule 9 Part 1 clause 2(a) and (d) provide that detached, semi-detached or row dwellings with a standalone garage are Category 1 provided that they each meet the dimensional requirements. Schedule 4 Part A1 clause 1 provides that construction of a standalone or integrated garage is a complying development if it is ancillary to a dwelling and meets the dimensional requirements. Most significantly, Schedule 4 Part 1 A1 clause 2B(6) provides that inclusion of a garage meeting the dimensional requirements is a condition of a detached or semi-detached dwelling being a complying development.
Given that construction of a separate dwelling and ancillary garage meeting the dimensional requirements is assigned to Category 1, it would be anomalous and a surprising legislative intention if construction of an integrated dwelling and garage were assigned to Category 3.
Considered from first principles, a building integrating living areas etc with a garage is properly characterised as a self-contained residence and hence a dwelling. There is no authority in this Court inconsistent with this conclusion.
In Verdouw v City of Unley,[16] the Meres applied for development approval to construct a carport attached to the eastern side of their house. The Council categorised the development as Category 1 under Schedule 9 Part 1 clause 2(1) of the 1993 Regulations. That clause contained no equivalent of subclause (d) in the current Regulations. The Council was constrained to argue in support of its categorisation that the development fell within subclause (b) which was in identical terms to subclause (b) in the current Regulations, namely that it was an addition to a building so as to preserve the building as a dwelling. This Court rejected the Council’s contention, holding that the existing building would have equally remained a dwelling without the addition of the carport and did not need a carport to “preserve” it as a dwelling. The decision turned on the meaning of preservation and did not address what would have been the situation if the Meres had sought to construct an integrated dwelling and carport. Debelle J (with whom Olsson and Williams JJ agreed) said:
The erection of this carport does nothing to preserve the Meres’ dwelling as a dwelling. That conclusion is reinforced by the fact that the demolition of the existing carport has not caused the Meres’ dwelling to be anything other than a dwelling. In other words, it remains a dwelling with or without the carport. The proposed development does not, therefore, fall within par 2(1)(b).[17]
[16] [2001] SASC 63, (2001) 113 LGERA 26.
[17] At 12].
In Baker v City of Norwood, Payneham & St Peters,[18] the Rowans applied for development approval to construct a detached dwelling and detached garage. The Council classified the development as Category 1. Again, there was no equivalent in the 1993 Regulations of subclause (d) in the current Regulations. The Council was constrained to argue that the development of both a dwelling and a separate garage fell within subclause (a) as a detached dwelling. Debelle J rejected that argument. The decision turned on the question whether a separate garage could be characterised as a dwelling or part of the dwelling. Debelle J said:
In these days when most people own a motor vehicle, a garage is an ordinary concomitant of a dwelling. It is a use which is incidental or ancillary, albeit important, to the use of a dwelling. However, para 2(1)(a) refers only to a detached dwelling. It does not refer to a detached dwelling as well as to other buildings which might be used for purposes which are ancillary or incidental to the use of a detached dwelling.[19]
[18] [2003] SASC 282.
[19] At [22].
Debelle J observed in the course of his reasons that the former Regulations under the former Act had defined a dwellinghouse to include outbuildings ordinarily used with a house and invited law reform of the current regime for dwellings and outbuildings.[20] The 1993 Regulations were subsequently amended in 2006 to insert into Schedule 9 Part 1 clause 2(1) a new subclause (ca)[21] which was the predecessor of subclause (d) in the current Regulations and to insert into regulation 32 a new subregulation (5)[22] which was the predecessor of regulation 32(5) in the current Regulations.
[20] At [24] and [40]
[21] Development (Miscellaneous) Variation Regulations 2006 (No 1 of 2006).
[22] Development (Miscellaneous No 2) Variation Regulations 2006 (No 40 of 2006).
In Bade v Rural City of Murray Bridge & Anor,[23] Mrs Davies applied in 2005 for development approval to construct a dwelling on the first floor on top of an existing boat shed. The Council classified the development as Category 1. Mrs Davies could not argue that the combined structure was a “detached dwelling” because it did not have a frontage to a public road. Mrs Davies argued rather that the first floor was a single story dwelling under subparagraph (a)(ii) of Schedule 9 Part 1 clause 2(1) of the 1993 Regulations notwithstanding that it was to be erected on the first floor. This Court rejected that argument. Bleby J (with whom Doyle CJ and Anderson J agreed) said:
The dwelling in question could not be a “detached dwelling” within the meaning of placitum (i) of paragraph (a) because the definition of “detached dwelling” in Schedule 1 of the Development Regulations requires, among other things, that the site on which it is erected has a frontage to a public road. Allotment 15 is the relevant “site”. It does not have a frontage to a public road.
Mr Henry relied on placitum (ii) of paragraph (a), namely that the application was for the construction of a single storey dwelling. It did not matter, he submitted, that that single storey dwelling was to be placed on top of an existing boat shed, thereby resulting in a two-storey building.
Mr Henry’s argument must be rejected…
…The development that had to be assessed against the various criteria contained in the Development Plan was a two-storey dwelling and boat shed.[24]
[23] [2008] SASC 189.
[24] At [88], [89], [90] and [92].

In Colmer & Ors v Alexandrina Council & Anor,[25] Mrs Virgin applied for development approval for a detached dwelling and a detached building comprising a garage on the ground floor and a studio on the first floor. The Council categorised the development as Category 1 under Schedule 9 Part 1 clause 2(1) of the 1993 Regulations. The garage/studio did not meet the dimensional requirements contained in subclause (ca) of the 1993 Regulations. Mrs Virgin was constrained to argue that the detached garage/studio was an integral part of the dwelling, which argument failed. Bleby J considered that if the garage and studio had been structurally integrated into the building containing the dwelling, the whole would have comprised a dwelling. Bleby J said:
The structures mentioned in para (ca) may be ancillary to a dwelling or may be integral to it. Whichever they are will largely be a matter of impression. If a structure is not integral to a detached dwelling and falls within any of the categories in para (ca), is ancillary to a detached dwelling and complies with the other requirements of the paragraph, it will fall within Category 1. If any of those elements are missing, it will not.
…
The plans show two distinct and separately roofed components of the development.
…
As the garage and studio is not part of a detached dwelling, the development can only be treated as Category 1 if the garage and studio falls within either para (ca) or para (f) of clause 2(1) of Part 1 of Schedule 9 of the Regulations.[26]
[25] [2009] SASC 13.
[26] At [47], [49] and [58].
There are conflicting decisions in the Environment Court. On the one hand, in Evans & Anor v City of Victor Harbor & Anor, [27] Judge Cole held that a house with an integrated carport was correctly categorised by the Council as a “detached dwelling” within the meaning of the Victor Harbour Development Plan. On the other hand, in KA & L May v City of Mitcham,[28] Commissioner Wallman held that two townhouses which each incorporated a double garage were not correctly categorised as semi-detached dwellings. Commissioner Wallman said:
Mr Botten submitted that the double garages were properly to be regarded as one of a series of rooms of a dwelling which, taken together with the rooms in the adjoining dwellings, “get used ultimately” for the purpose of human habitation. I cannot agree with this. Obviously the garages cannot be used in the same way as integral parts of the residences, parts such as bedrooms, lounge rooms and dining rooms. These rooms are common and proper components of a “self-contained residence”, unlike a garage, in a building or part of a building, which is for the shelter and storage of a motor vehicle. A garage is not an extension of the dwelling with which it is associated and it is not available, are intended to be used, for human habitation. A garage may be a desirable adjunct to a dwelling and it may be ancillary to the use of the dwelling, but it is not part of a dwelling.[29]
[27] [2010] SAERDC 64.
[28] Unreported, Environment Resources and Development Court, 19 December 1996, Judgment No OE338.
[29] At 15-16.
KA & L May v City of Mitcham was decided in the context of a substantially different regime under the 1993 Regulations. For the reasons given above, this decision ought not to be followed.
The Council correctly categorised the developments the subject of both applications as “row dwellings” within the meaning of the Regulations.
Public Notification table: wall abutting boundary
The Marion Council Development Plan contains a Public Notification table (the Table) at the end of the section addressing the Residential Zone. It provides:
Public Notification
Categories of public notification are prescribed in Schedule 9 of the Development Regulations 2008.
Further, the following categories of development (except where the development is non-complying) are designated:

Category 1

Category 2

Domestic outbuilding

Recreation area

A building exceeding a building height of 9.0 metres, or 8.5 metres where located within Watercourse Policy Area 19.

A building of 2 or more storeys on a battleaxe site.

Demolition of a Local heritage place or State heritage place.

Development that has a wall abutting a side or rear property boundary (other than a common wall of semi-detached or row dwellings).

Dwelling on land located wholly or partly within 30 metres of a Commercial Zone, Industry Zone, Light Industry Zone or Mineral Extraction Zone.

Horse keeping and associated facilities where located within Racecourse Policy Area 15.

The development the subject of the second application has a wall abutting the rear property boundary. The Table renders that development Category 2 when it would otherwise be Category 1.
Given this conclusion, is not strictly necessary to consider the Judge’s alternative reasoning that, if the development had been a residential flat building rendered Category 3 by the Regulations, on its proper construction the Table would have rendered it Category 2. Nevertheless, it is important to record that the Judge erred in so construing the Table.
It may be accepted that the six types of development listed in the second column headed Category 2 are not confined to domestic outbuildings and recreational areas listed in the first column headed Category 1. It may be accepted that the Table renders a domestic outbuilding and a recreation area Category 1 notwithstanding that they otherwise would be Category 2 or 3 and renders horse keeping within Racecourse Policy Area 15 Category 2 notwithstanding that it otherwise would be Category 2 or 3.
The manifest intention of the first five items in the second column is to render what would otherwise be a Category 1 development as Category 2 and not to render what would otherwise be a Category 3 development as Category 2.
The features of the first five items listed in the second column are aggravating features resulting in desirability of notification to neighbours (apposite to Category 2 development) rather than mitigating features resulting in taking away the necessity for public notification and third party appeal rights (apposite to Category 3 development). It would be irrational for the Table to result in otherwise identical developments being category 3 for a building 10 metres high but only Category 2 for a building 9 metres high. It would be irrational for the Table to result in a residential flat building being Category 3 if its walls are inside the boundaries but only Category 2 if it has a wall on the external boundary. The very fact that the development has a wall on the boundary is the obvious reason for requiring notice to be given to a neighbour.
Even if the Table were contained in the Regulations, it would not be properly construed so as to render a residential flat building that would otherwise be a Category 3 development as Category 2. However, it is well established that development plans are not to be construed in the same manner as legislation and greater regard is had to evident purpose and rationality than to textual considerations in the case of development plans.[30]
[30] Development Assessment Commission v Lawry & Ors [2011] SASCFC 80 at [45] per Doyle CJ (with whom Vanstone and Peek JJ agreed).
Authority of Mr Hooper to grant development plan consent
The Lindners contend that the development plan consent granted in respect of the first application was invalid because Mr Hooper acted beyond the scope of his delegated authority.
The Council contends that the Environment Court did not have jurisdiction on a section 86(1)(f)(ii) review to entertain a challenge to the development plan consent on the ground of want of authority of the decision maker because it has no connection with the issue of categorisation. The Council’s contention should be accepted.
Section 86(1)(f) of the Act provides:
(1)The following applications may be made to the Court—
…
(f)a person who can demonstrate an interest in a matter that is relevant to the determination of an application for a development authorisation by a relevant authority under this Act by virtue of being an owner or occupier of land constituting the site of the proposed development, or an owner or occupier of a piece of adjacent land, may apply to the Court for a review of the matter with respect to—
(i)a decision under the Act as to the nature of the development, including any decision that is relevant to the operation of section 35;
(ii)a decision under section 38 as to the category of the development.
The Environment Court’s jurisdiction under section 86(1)(f)(ii) is confined to reviewing a categorisation decision under section 38. While the Environment Court has power under section 88(1)(da) and (e) upon finding an erroneous categorisation decision to make consequential orders including setting aside a development authorisation vitiated by the erroneous categorisation,[31] it does not have a freestanding jurisdiction under section 86(1)(f)(ii) to consider the merits or any other defects in the development authorisation itself. This would be inconsistent with the limited right of appeal conferred on third parties against development authorisations conferred by section 86(1)(b) only when the development is category 3.[32]
[31] City of Marion v Paior [2013] SASCFC 77 at [55]-[58] per Blue J (with whom Sulan J agreed).
[32] This Court has jurisdiction to entertain a challenge to development plan consent on the ground of want of authority of the decision maker but the Environment Court has no general judicial review jurisdiction.
The Lindners contend that the Environment Court has power conferred by section 28 of the Environment Court Act to make binding declarations of right “whether or not any consequential relief is or could be claimed”. However, section 28 does not confer jurisdiction but merely power to make declarations “on matters within its jurisdiction”. It has no power to make a declaration if it does not already have jurisdiction over the matter.[33]
[33] Keane v Salisbury City(1995) 87 LGERA 203 at 204 per King CJ (with whom Duggan and Nyland JJ agreed); Smith v Mt Barker Products P/L & Anor [2000] SASC 164 at [25]-[26] per Duggan J (with whom Doyle CJ and Lander J agreed)
The Lindners’ contention that Mr Hooper lacked authority related to his authority to grant development plan consent and not his authority to categorise the development. This was the Lindners’ contention in their application for review. Evidence was adduced in the Environment Court about Mr Hooper’s delegated authority to grant development plan consent but not about his authority to categorise the development.
As the Environment Court had no jurisdiction to entertain the challenge to the development plan consent, the occasion does not arise to consider whether the Judge had power under section 33 of the Environment Court Act to dispense with the requirement that Mr Hooper act within the authority conferred on him by the Council. It is preferable for that question to be determined in a case in which it arises for decision. My silence on that question should not be interpreted as endorsement of the Judge’s decision in this respect.
Notification by Council to adjacent owners
The Lindners contended in their review application that the development plan consent granted in respect of the second application was invalid because the Council did not give the requisite notices to all adjacent owners or occupiers.
The Council contends that the Lindners did not argue the failure to give notice point in relation to the second development plan consent before the Environment Court and should not now be permitted to do so on appeal. The Lindners do not suggest that they did argue this point before the Environment Court. As it raises factual issues, there does not appear to be good reason why they should now be permitted to raise it on appeal.
These questions need not be further considered because the Environment Court did not have jurisdiction to entertain a challenge to the development plan consent on the ground of want of notice for the reasons given at [76]-[77] above.
Conclusion
The appeal should be dismissed.
NICHOLSON J: I agree with Blue J.