McKay v Alexandrina Council

[2003] SASC 167

IAN ROSS McKAY & ORS v ALEXANDRINA COUNCIL & ANOR
[2003] SASC 167

Land and Valuation Division

1. DEBELLE J           In this application for judicial review the plaintiffs seek orders quashing a decision of the Alexandrina Council granting development consent to carry out development associated with the construction of a dwelling by a neighbour.

2. The grant of development consent was made on 23 January 2001.  The application for judicial review was not made until 20 September 2002.  As the application was made more than six months after the decision granting development consent, the plaintiffs have applied pursuant to Rule 98.06 for an extension of time within which to make the application.  It is necessary to note the events leading to the application in order to determine both the application for extension of time and the issues on the application for judicial review.

   The Events Leading to the Application

3. The first and second plaintiffs, Mr and Mrs McKay, own a house property at 24 Ocean Parade, Middleton.  The third and fourth plaintiffs, Mr and Mrs Goudie, own a house property at 28 Ocean Parade, Middleton.  The second defendant, Mr Chrisp, owns an allotment of vacant land between the two sets of plaintiffs at 26 Ocean Parade.  Mr Chrisp seeks to erect a dwelling on his land.  The plaintiffs allege that the location of the proposed dwelling and its method of construction will substantially reduce the coastal views they currently enjoy from their respective properties.  In addition, the plaintiffs, and in particular the McKays, have concerns about other aspects of the proposed development.

4. Middleton is within the area of the first defendant, the Alexandrina Council (“the Council”).  The second defendant, Mr Chrisp, purchased his land in 1999.  It is an allotment within a Residential Zone prescribed by the Council’s Development Plan.  Provided that it complies with certain conditions, a dwelling is a complying development in this zone.  Mr Chrisp’s land slopes relatively steeply up from the Ocean Parade frontage to the rear.  It also slopes from west to east across the allotment.  As will be seen, Mr Chrisp proposes to construct a retaining wall on the eastern side of his land and will bring filling to the site in order to create a level site on which to construct the dwelling for which he has development consent.

5. I set out the main events leading to the present applications.

7 September 1999

Mr Chrisp lodged an application for provisional development plan consent to erect a dwelling.  The proposal included the erection of a garage at the rear of the property to which access would be gained via a right of way at the rear of the property.

9 September 1999

The Council granted provisional development plan consent to construct the dwelling and garage.

11 April 2000

Mr Chrisp informed the Council that he intended to construct a retaining wall on the eastern boundary of his land and to introduce filling.  The application for development consent in September 1999 did not disclose an intention to erect a retaining wall or introduce filling.  It is fair to state that had an officer of the Council inspected the land before granting development consent, it would have been apparent that either excavation or filling was necessary for the purpose of enabling the construction of this dwelling.

April 2000

At some time in April 2000 Mr Goudie became aware of the proposed development on Mr Chrisp’s land.  He inspected the plans at the Council.  He was concerned about the siting of the proposed dwelling and the fact that it was set back some eight metres from the road alignment in Ocean Parade.  Mr Goudie’s dwelling is set back 13.5 metres.  Other houses were set back more than eight metres.  Mr Goudie was concerned that the site of Mr Chrisp’s proposed dwelling would obstruct views which Mr and Mrs Goudie enjoy from their land.  The Council’s Development Plan prescribes a set back of eight metres from the road alignment.

15 April 2000

Mr and Mrs Goudie spoke with Mr Chrisp.  They asked him to reconsider the siting of his proposed dwelling.

16 April 2000

The Goudies sent Mr Chrisp a letter reiterating their request to resite his dwelling.  The Goudies sent a copy of the letter to the Council which was received on 17 April.

19 April 2000

The Council wrote to Mr Chrisp referring to the letter from the Goudies and recommending to Mr Chrisp that he relocate his dwelling to align with adjoining dwellings in Ocean Parade.  The letter also informed Mr Chrisp that a development application was required for the proposed retaining wall.  The Council asked that Mr Chrisp consider lowering the floor level to reduce the amount of filling which would be required and to consider reducing the visual impact of the retaining wall.

26 April 2000

A petition addressed to the Council was signed by the plaintiffs and other persons owning houses in Ocean Parade.  The petition objected to the fact that Mr Chrisp’s house was set back only eight metres from the road alignment on the ground that, when erected, it would substantially affect the views enjoyed from their respective house properties.  The petitioners asked that the Council require Mr Chrisp to set his dwelling back to be in alignment with existing dwellings on Ocean Parade.

27 April 2000

The Goudies wrote a letter to the Council enclosing the petition and formally objecting to the siting of the dwelling proposed by Mr Chrisp.

1 May 2000

The McKays wrote to the Council expressing their concern at the height of the proposed retaining wall and requesting that all structures built along Ocean Parade be on the same alignment.

8 May 2000

The Council wrote to the McKays acknowledging their letter of 1 May and informing them that Mr Chrisp had been informed of their concerns.

24 May 2000

The Council received a letter from Mr Chrisp dated 24 April 2000 applying for an extension of the development consent granted in September 1999.  He sought an extension to 22 September 2000.  By letter dated 27 June 2000, the Council granted an extension to 22 September 2001.

8 August 2000

Mr Chrisp wrote to the Council applying to vary the grant of provisional development plan consent to include the proposed retaining wall.  The wall was to be two metres high.  His letter and plans showed that he intended to introduce filling to level the building site.  The application was received by Council on 10 August.

21 August 2000

The Council wrote to Mr Chrisp informing him that it was necessary to lodge a development application for the proposed retaining wall.  An application form was enclosed.  The Council did not inform Mr Chrisp that he should also apply for development consent for the proposed filling.

5 September 2000

Mr Chrisp wrote to the Council asking him to confirm that it had approved a variation to the provisional development plan consent as requested in his earlier correspondence.

26 September 2000

The Council wrote to Mr Chrisp informing him that it had real concerns with the bulk of the building and the height of the retaining wall.  The letter went on to mention that if the proposed dwelling was set back a little further it would reduce the visual impact of the retaining wall and the height of the building.  The Council expressed its reluctance to approve a retaining wall two metres high.

19 October 2000

Mr Chrisp informed the Council he was willing to reduce the height of the retaining wall to 1.7 metres.

30 October 2000

The Council received a letter dated 27 October from Mr Chrisp including plans of the proposed retaining wall, which had been reduced in height to 1.7 metres.  It is not clear whether the letter enclosed a formal application for development consent.

23 November 2000

The Council wrote to the McKays informing them of the proposal of Mr Chrisp to reduce the height of the retaining wall.  The letter enclosed the plans and letter sent by Mr Chrisp on 27 October 2000.

5 January 2001

Mr Chrisp wrote to the Council enclosing an amended plan for the retaining wall.  The letter also enclosed plans of an amendment to the proposed dwelling.  The letter sought planning approval for the amended design and retaining wall.

23 January 2001

Mr Chrisp wrote to the Council by letter marked “urgent” seeking approval for the amended plans of the dwelling and the retaining wall. The plans showed that the garage had been relocated to the lower floor of the proposed dwelling. It is not clear whether the Council had earlier granted a variation of the consent for the relocated garage but it is unnecessary to pursue that issue. Nor is it clear whether Mr Chrisp’s letter was accompanied by a formal development application which had been sought by the Council. On the same day the Council issued provisional development plan consent for the amended plans and informed the plaintiffs that provisional development plan consent had been granted, stating that the height of the retaining wall had been reduced to 1.7 metres. At this stage, Mr Chrisp had been granted provisional development plan consent only. It was still necessary for him to obtain provisional building rules consent before a development approval could be granted: see s 33 of the Development Act 1993. He was not entitled to commence construction until the development approval had been obtained. As will be seen, that was not obtained until 26 June 2002.

27 January 2001

Mr Goudie wrote to the Council responding to the letter informing him that provisional development plan consent had been granted to Mr Chrisp.  In his letter, Mr Goudie expressed his concern that development consent had been granted.  He referred to the fact that views from his property would be reduced by the proposed dwelling and complained that the sketches which were the basis of the grant of development consent were vague.  He identified a number of concerns including the frequent variations to the grants of development consent.

2 February 2001

The Council received a letter written on 2 February from Mr McKay objecting to the grant of development consent.  The letter voiced a number of concerns including the vague nature of the plans submitted by Mr Chrisp, the overshadowing of his dwelling and the size of the proposed retaining wall.  The Council responded to the letter on 12 February 2001 and, among other things, informed Mr McKay that Mr Chrisp had been asked to reconsider the location of his intended dwelling.

5 February 2001

The Council wrote to Mr Chrisp asking him to resite the proposed dwelling in line with existing dwellings.  The letter referred to the concerns expressed by Mr Goudie in his letter.  On the same day the Council wrote to the plaintiffs informing them that it had written to Mr Chrisp in those terms stating that similar requests had been made also on 19 April and 26 September 2000.  On the same day, Mr Chrisp wrote to the Council seeking approval to delete the proposed garage at the rear of the house and in its place to erect a garage beneath the proposed dwelling.  This was yet a further variation to the development consent.

6 February 2001

Mr Chrisp wrote to the Council informing it that he would not reconsider the siting of his proposed dwelling.  His letter attached amended site plans and plans of the dwelling. 

9 February 2001

The Council wrote to Mr Chrisp seeking further information with respect to the application to vary the grant of provisional development plan consent including:

•       a site plan drawn to scale;

•       elevations drawn to scale; and

•   details of vegetation proposed to be planted along the eastern boundary.

12 February 2001

Mr Chrisp sent yet another set of amended plans to give effect to discussions which he had had with officers of the Council.

21 February 2001

The Council granted provisional development plan consent to the amended plans.  The Council informed Mr Chrisp that the grant of provisional development plan consent made on 21 February superseded the earlier grants of provisional development plan consent made on 22 September 1999 and 23 January 2001.  Mr Chrisp was dissatisfied with the Council’s decision that the development consent granted on 21 February 2001 superseded the previous two approvals.  He appealed to the Environment Resources and Development Court.  On 16 July 2001 a judge of that court held that Mr Chrisp was entitled to proceed on the approval issued on 22 September 1999 as amended by the approval issued on 23 January 2001.  It is relevant to note that on 5 April 2001 Mr Chrisp had informed the Council that he wished to proceed with the development approval granted on 23 January 2001.  The judge extended the time within which the development must be commenced until 22 September 2001.

26 June 2002

The Council granted development approval having granted provisional building rules consent on 25 June.  The development approval related to the provisional development plan consent granted on 22 September 1999 as varied on 23 January 2001.

13 August 2002

At some unspecified time, Mr Chrisp had applied for another extension of time within which to commence the development.  The Council granted an extension but for a period shorter than that sought by Mr Chrisp.  Mr Chrisp appealed to the Environment Resources and Development Court.  The plaintiffs applied to be joined in the appeal.  A conference of all parties was held on 13 August.  It was attended by Mr Chrisp and the plaintiffs and their legal representatives.  The conference was adjourned to 26 August but did not proceed because Mr Chrisp withdrew his appeal.  The withdrawal of the appeal meant that the plaintiff’s application for joinder did not have to be considered.

5 September 2002

Mr Chrisp wrote to the plaintiffs informing them that he had withdrawn his appeal to the Environment Resources and Development Court and that he had lodged a new application for planning approval.  This plan located the front wall of his house closer to Ocean Parade than the plan for which he already had approval.  In that letter he said that he was aware that there could be further court proceedings in relation to his existing approvals and informed the plaintiffs that he would defend those proceedings.  The letter is a long letter and I have dealt only with those aspects which are relevant to the present application.

22 October 2002

Mr Chrisp applied to the Council for provisional development plan consent to erect a dwelling on his land.  The plans contain several differences from the plans approved on 23 January 2001.  It does not include a garage.  A bedroom is deleted.  There are other minor variations.  The plans do not make it clear whether it is intended to construct a garage beneath the house as proposed in the plans for which approval was granted in January 2001.

23 October 2002

Mr Chrisp lodged another set of plans slightly amending those lodged on 22 October.  He asked that the Council amend its provisional development plan consent to take the amendments into account.

28 October 2002

The Council granted provisional development plan consent to the application made on 22 October, as amended on 23 October.  As Mr Chrisp says, the dwelling now proposed is different from the dwelling approved in January 2001.

The plaintiffs assert that Mr Chrisp had applied in November 2001 and February 2002 to make further amendments to the proposed development.  However, no details of those amendments have been provided.

1. Mr Chrisp intends to bring filling on to his land in order to provide a level building site.  In a moment, I will deal with the quantity of filling required.  From about March 2001 to September 2002, Mr Chrisp arranged for a number of loads of fill to be deposited on his land.  Until 19 September 2002 no other work had been done.  On that date excavation was commenced and further filling was deposited on the land.

2. These proceedings were commenced on 20 September 2002.  The plaintiffs say that they first sought legal advice on 25 June 2002 in connection with the application by Mr Chrisp to extend the time in which to commence the development of his land.  In consequence, they applied to be joined in the proceedings in the Environment Resources and Development Court which were ultimately withdrawn.  They say they did not wish to institute proceedings for judicial review while there was a reasonable prospect of achieving a resolution in the Environment Resources and Development Court.  Once Mr Chrisp had withdrawn his appeal they obtained further advice and, on 4 September, gave instructions to issue these proceedings.  It was at that time that Mr Goudie received a letter from Mr Chrisp informing him that a new development application had been lodged with the Council.

   Extension of Time

3. When the Court is asked to exercise its discretion and grant an extension of time, there are, generally speaking, four factors to consider, namely, the length of the delay, the reason for the delay, whether the applicant has prospects of success, and the extent of any prejudice suffered by the respondent to the application: Esther Investments Pty Ltd v Markalinga (1989) 2 WAR 196 at 198; Palata Investments Ltd v Burt & Sinfield Ltd (1985) 1 WLR 942 at 946. Although those principles did not directly apply in the particular circumstances of Jackamarra v Krakouer (1998) 195 CLR 516, they were referred to with approval: see Brennan CJ and McHugh J at 520 – 521 and Kirby J at 542 – 543. As Kirby J pointed out, those four factors are not exhaustive. Nevertheless, in this case, they are sufficient.

4. The application is made very late, some 20 months late.  Often, such a long delay might defeat the application.

5. The plaintiffs explain that delay by referring to the course of their dealings both with Mr Chrisp and with the Council.  The main events in those dealings have already been mentioned.  It is unnecessary to repeat them.  It is sufficient to note that the plaintiffs continually sought to resolve the matter through the Council.  It was not until late in June 2002 that they sought legal advice.  It might be said that they ought to have obtained legal advice earlier, particularly as it must have been apparent to them in February 2001 that Mr Chrisp was not prepared to consider relocating his dwelling.  However, I do not think that the plaintiffs are to be unduly criticised for seeking to resolve the matter through the Council which was the relevant planning authority.  More importantly, the plaintiffs at no time sat on their hands.  They were constantly in touch with the Council.  In addition, they communicated with Mr Chrisp either in conversation or by letter seeking to achieve a solution which was satisfactory to them.  Throughout the long history of this matter, Mr Chrisp was not only aware that the plaintiffs were unhappy with his proposal but also that they were making constant representations to the Council to seek to change the situation.  There was, in short, no delay by the plaintiffs in seeking to challenge Mr Chrisp’s development consent.  They did not sit on their hands.  There is, in my view, a reasonable explanation for the delay in bringing this application.

6. Another important factor is that Mr Chrisp has not suffered any prejudice by the delay in commencing this action.  As is apparent from the above chronology, Mr Chrisp has not substantially commenced construction of the dwelling.  He has not proceeded with his respective grants of provisional development plan consent.  Instead, he has sought several extensions of time in which to commence construction.  Those extensions were not in any way caused by the actions of the plaintiffs.  Furthermore, Mr Chrisp has applied quite frequently to vary the development consent.  It was not until 26 June 2002 that he obtained development approval.  Not until then was Mr Chrisp in a position to commence construction and, even then, he did not begin to commence construction.  The action was commenced within three months of that date.  In short, there is no evidence of any prejudice to Mr Chrisp.  He has delayed the construction of his dwelling and, even at this stage, it is not clear what form the dwelling will take.  He has solicitors acting for him.  Although he has sworn an affidavit, he does not point to any prejudice.  Mr Chrisp is willing to abide the event of this litigation.  I find there is no prejudice to him.

1. Mr Swan, who appeared for the Council, submitted that the Council would suffer prejudice to its administration.  The Council, he said, had administered its area on the footing that a grant of provisional development plan consent had been made in late January 2001.  In the course of that time it has incurred expense and administrative time in respect of this matter.  While it is important that there is a reasonable degree of certainty in public administration, in the particular circumstances of this case, this is not a persuasive reason for refusing the extension of time.  In the first place, the submissions overlook the fact that Mr Chrisp has quite frequently sought to vary the development consent.  He has caused much of the delay.  Much of the expense and administrative time has been incurred in the continued variations which Mr Chrisp has made to his plans.  In addition, the issues in this matter are essentially private, not public, in character.  The issues essentially concern only Mr Chrisp on the one hand and, on the other, the plaintiffs and other residents of Ocean Parade who support the plaintiffs’ objective that Mr Chrisp be required to align his dwelling with others in Ocean Parade.  The issues have no wider ramifications.  If an order is made in favour of the plaintiffs it will not adversely affect the administration of the Council.  I am not satisfied there is any prejudice to the Council.  There is a real question whether prejudice to the Council is relevant but, given the conclusion that it has not suffered any prejudice, it is unnecessary to consider that question.

2. I have regard to the fact that a decision setting aside the development consent may result in a fresh application to the Council, the lodging of representations by the plaintiffs and a hearing by the Council and, whatever decision is made by the Council, the likelihood of an appeal to the Environment Resources and Development Court.  In October 2002, Mr Chrisp obtained a grant of yet another provisional development plan consent to construct a dwelling.  It is not possible to determine whether that will resolve the issues as the application was not examined in the course of this action.  None of those factors persuade me that it is not appropriate to extend time.

3. The Council points to the fact that the plaintiffs are mainly concerned to protect their views and that the issues relating to the retaining wall and filling have little to do with that question.  The plaintiffs are entitled to seek to protect their views of the coast: Day v Pinglen Pty Ltd (1981) 148 CLR 289. It is a proper interest. The capacity to enjoy coastal views is one of the reasons why people resort to seaside areas. They are entitled to pursue all proper avenues to achieve that goal. But it would be wrong to say that the protection of views is the only concern of the plaintiffs. In the case of Mr McKay in particular, there are other issues arising directly out of the retaining wall and the extent of filling. Furthermore, the retaining wall and filling are integral aspects of the dwelling. They ought to have been addressed earlier when the Council was initially considering whether to grant provisional development plan consent.

4. The remaining question is whether the plaintiffs have reasonable prospects of success in this action.  I turn to examine that question.

   The Issues

5. The plaintiffs contend that the Council has wrongly classified the proposed development of the retaining wall and filling. They say it was a Category 3 development. They contend that, although a dwelling is a Category 1 development, the proposal to construct a retaining wall and introduce filling should have been classified as a Category 3 development. If the development is classified as a Category 3 development the plaintiffs have the right to make representations to the Council and, if development consent is granted, to appeal to the Environment Resources and Development Court. If it is classified as Category 1, they do not have those rights. See generally s 38 of the Development Act.

6. It is first necessary to determine whether the filling and retaining wall constitute development and then to determine the category into which the proposed development falls.

7. Filling is a kind of development within the meaning of s 4 of the Development Act. That is because development, as defined in s 4, includes building work and building work is in turn defined to mean:

   “ ‘building work’ means work or activity in the nature of–

   (a)    the construction, demolition or removal of a building; or

   (b)    the making of any excavation or filling for, or incidental to, the construction, demolition or removal of a building; or

   (c)    any other prescribed work or activity,

   but does not include any work or activity that is excluded by regulation from the ambit of this definition.”

   It will be noticed that the three arms of this definition are expressed disjunctively.  Any one of them will constitute building work.  Clearly, the construction of a house is building work and therefore development.  By reason of para (b) of the definition, the introduction of filling on to the site, albeit that it is incidental to the construction of a dwelling is also building work and hence development.  There are obvious policy reasons why excavation and filling should be classified as development.  The excavation could, in some instances, be quite large and bring with it the risk of subsidence of adjoining land.  For its part, filling could cause problems with the stormwater drainage or washing soil on to the adjoining lands.  Alternatively, it might be necessary to examine whether the preferable course is not to introduce filling but instead to excavate or whether some combination of excavation and filling is required.  Obviously, a number of alternatives might have to be considered.

8. Depending on its size and purpose, a retaining wall is also a kind of development. As already mentioned, “development” is defined to include building work and “building work” includes the construction of a building. Section 4 of the Development Act defines “building” to mean, among other things, “a building or structure or portion of a building or structure”. The term “structure” is defined to include a fence or wall. A retaining wall is therefore a structure by reason of the combined operation of the definitions of “development”, “building work”, “building” and “structure” and so constitutes development. However, if the retaining wall is not to be erected, is not in certain prescribed zones and does not retain a difference in ground levels exceeding one metre, it is deemed not to be a development: see para 4(1)(g) of Schedule 3 of the Development Regulations 1993. A substantial portion of the retaining wall proposed by Mr Chrisp retains a difference in levels exceeding one metre. It is, therefore, a development.

9. As both the filling and the retaining wall are development, they cannot be constructed without obtaining development approval: s 32 of the Development Act.

   Which Category?

10. The Council was required to classify the proposed development so that it could decide whether notice of the development should be given and, if so, the manner and form of the notice: s 38 of the Development Act.  The task of classifying the development was made difficult by the unsatisfactory manner in which Mr Chrisp described his proposals.

11. The plaintiffs contend that the whole development should be classified as Category 3. Had Mr Chrisp lodged detailed plans when he first applied for development consent in September 1999, those plans would have disclosed the proposed retaining wall and filling. The whole development might then have been classified as a Category 3 development. But it is unnecessary to determine that question in the particular circumstances of this case. That is a consequence of the fact that when Mr Chrisp applied for provisional development plan consent for the proposed retaining wall and the filling, he was applying to vary the grant of provisional development plan consent made on 8 September 1999. The consent was still on foot having been extended to 22 September 2001 by the Council in its letter dated 27 June 2000. Section 39(7)(b) of the Development Act provides that an application to vary the grant of a development authorisation will, “to the extent of the proposed variation, be treated as a new application for development authorisation”.  The proposed application for variation was limited to the retaining wall.  The plans disclosed that filling was to be introduced on to the land.  Thus, all that the Council had to determine was whether it was appropriate to grant provisional development plan consent to the retaining wall and filling.  It did not have to consider the dwelling.  If the proposed variation affected the height or other aspects of the dwelling, the Council might have had to reconsider its earlier grant of development consent, that is to say, consider the whole development, dwelling, retaining wall and filling.

12. The proposed variations were, therefore, limited to the construction of the retaining wall and the introduction of filling.  As those proposals constituted development, it was necessary for the Council to determine the category of each form of development.  The assignment of categories of development is effected by the Development Regulations and the relevant Development Plan: s 38(2) of the Development Act.  In the case of these two forms of development, there is no relevant provision in the Development Plan, so it is necessary to resort to the Development Regulations.  It is common ground that the relevant provision is para 2(1)(f) of Part 1 of Schedule 9 of the Regulations which provides that the following is a Category 1 development:

    “A kind of development which, in the opinion of the relevant authority, is of a minor nature only and is unlikely to be the subject of reasonable objection from the owners or occupiers of land in the locality of the site of the development.”

    It is also common ground that the proposed development is not a Category 2 development and that, if the development is not a Category 1 development, it is a Category 3 development.

13. The Council determined that the retaining wall was minor in nature and, therefore, classified it as a Category 1 development. The classification was made by Mr Commerford, the Council’s senior planning officer, pursuant to authority delegated to him under s 20 of the Development Act.  It is common ground that the required authority had been lawfully delegated to him.

14. In para 20 of his affidavit, Mr Commerford explained the grounds on which he classified the retaining wall as Category 1.  He said that, after consultation with the McKays and an amendment of the proposed retaining wall to reduce its height from two metres to 1.7 metres, he viewed the development as minor in nature.  I will examine those reasons in a moment.

15. Although the filling and retaining wall are associated with and are incidental to the construction of the dwelling, they must each be considered as separate developments and each must be assigned a separate category of development.  The reason for this requirement of the Development Act and the Development Regulations lies in the fact that either or both the filling and retaining wall might have particular effects upon adjoining or other lands which might be the subject of reasonable objection and should be considered when determining whether development consent should be granted.  Plainly, different factors must be considered when a dwelling is erected on sloping land from those where a dwelling is erected on level land.  Alternatively, the developer may wish to make a substantial excavation below a dwelling on level land to house a garage or other facility.  It is important that, where the work is not minor and gives rise to reasonable objection, neighbours should have an opportunity of making representations in order that the use of their land is not adversely affected by the proposed development.  Thus, although a conventional dwelling on level land is a Category 1 development, a dwelling in other circumstances may give rise to issues which must be addressed when considering whether to grant development consent.  If, however, the filling, say, was quite minimal, the Council is in a position to determine that it is minor and unlikely to be the subject of reasonable objection.  An obvious example of excavation which is a minor development, unlikely to be the subject of objection, is excavation for drainage or sewer pipes.  Thus, it is necessary to consider each of the proposed variations as a separate development and determine into which category each form of development must fall.

    The Filling

16. Mr Commerford did not give careful consideration to the proper classification of the filling. Although Mr Chrisp had not expressly applied to vary the grant of provisional development plan consent to allow filling, it was clearly implicit in the application for consent to erect the retaining wall. More importantly, the plans show that filling was to be introduced. As the filling constituted a form of development, consent was necessary and so the Council was required to classify the development. The failure of the Council and Mr Commerford to classify the development constituted a failure to comply with the procedures prescribed by s 38 of the Development Act and is a ground for setting aside the grant of development consent.  It is, however, necessary to consider whether the filling is minor and unlikely to be the subject of reasonable objection.  If it is, that might be a factor to consider when exercising my discretion whether to grant the relief claimed by the plaintiffs.

17. In para 30 of his affidavit, Mr Commerford said that the quantity of the filling was minor and was incidental to the grant of provisional development plan consent.  He also believed that the earthworks were unlikely to be the subject of reasonable objection from the owners or occupiers of land in the locality.  In his oral evidence he repeated the assertion that the filling was minor.  However, as his evidence shows, Mr Commerford did not at any stage carefully assess the quantity of filling required.  His first mathematical assessment was made in response to questions in the witness box.  The opinions expressed in para 30 were based on an inspection of the land and the fact that filling was required to produce a level site.  Neither is a satisfactory basis on which to determine that filling was a development of a minor nature.  Although “minor” is a relative term often used in a contradistinction to “major”, in this context, it is not being used in contrast to development of a major nature.  It is intended, I think, to signify development which is of little moment or importance.  That conclusion is reinforced by the other limb of para 2(1)(f), namely, the requirement that the development is unlikely to be the subject of reasonable objection.

18. In my view, the filling was not of a minor nature.  The evidence shows that at least 738 cubic metres of filling was to be introduced.  That is a very substantial quantity of filling.  I do not think that any reasonable Council officer would conclude that such a substantial amount of filling was of a minor nature.  I do not accept Mr Commerford’s assertion in his affidavit and in his oral evidence that the filling was minor and unlikely to be the subject of reasonable objection.  His assertion has the hallmarks of an ex post facto exercise in self-justification.

19. This is not a case where it is necessary to consider whether a decision should be set aside as unreasonable in the sense described in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 because the Council and its planning officers have failed to consider the matter. There has been a failure to comply with a prescribed procedure. The only issue is whether that failure is of sufficient moment to warrant setting aside the Council’s decision. In my view, the filling is not development of a minor nature. The failure to comply with the prescribed procedures is of sufficient moment to set aside the Council’s decision on that ground.

    The Retaining Wall

20. Mr Commerford determined that the retaining wall was a development of a minor nature.  It is not possible to say that his conclusion was unreasonable in the Wednesbury sense.  However, there remains the question whether the retaining wall was unlikely to be the subject of reasonable objection by an owner or occupier in the locality.  Mr Commerford concluded that it was not.  The reasons he gave for that conclusion show that, when making that decision, he had regard to an irrelevant factor.

21. When determining the likelihood of a reasonable objection, Mr Commerford was required to do no more than decide whether the retaining wall was unlikely to be the subject of reasonable objection.  It was not his task to go on and determine whether that objection might be upheld.  It is apparent from his affidavit that Mr Commerford has in fact wrongly gone on to determine whether the objection would be upheld.  In his affidavit he said that he had decided that the retaining wall was minor after a conversation with Mr McKay.  The decision should be set aside on the ground that he has had regard to an irrelevant factor.

22. In addition, before 23 January 2001, Mr Commerford knew that the McKays had a number of concerns about the retaining wall.  A number of those concerns are reasonable.  If the opportunity had presented itself, it was highly likely that, at least, the McKays would have lodged an objection.  The decision that the retaining wall would be unlikely to be the subject of reasonable objection is, in my view, wholly unreasonable in the Wednesbury sense.  For that reason too, the decision of the Council classifying the development as Category 1 must be set aside.

    Conclusion

23. For these reasons,

    • the Council has failed to act in accordance with the procedures prescribed by s 38 of the Development Act 1993 in that it failed to determine to which category of development the proposed filling should be assigned;

    •       the Council has had regard to an irrelevant factor and has acted unreasonably in determining that the proposed retaining wall should be classified as Category 1;

    •       the proposed retaining wall and filling should have been classified as Category 3 developments.

    These grounds require that the grant of development consent made on 23 January 2001 be set aside.

24. The examination of the question whether the plaintiffs have reasonable prospects of success leads to the conclusion that they will succeed on the application.  Having regard to all of the other factors discussed earlier in these reasons, I am satisfied that the plaintiff should be granted an extension of time in which to make the application.

25. Mr Chrisp is a party to this action.  As already mentioned, he informed the Court through his counsel that he would abide the order of the Court.  He took no part in the argument.

26. For all of these reasons, I will make an order extending the time within which to make the application for judicial review to 20 September 2002.  I will also make an order setting aside the grant of development consent made on 23 January 2001.

    Notice to Planning Authorities

27. The facts of this application draw attention to the need for planning authorities to require reasonably detailed plans before +they consider whether to grant provisional development plan consent.  Reasonably detailed plans may be necessary even for what, on its face, might be a Category 1 development.  In addition, an inspection of the site is desirable.  Such an inspection may disclose issues which have not been addressed in the application for development consent.  In this case, the plans initially submitted in September 1999 were extremely sketchy.  They did not address all of the problems of the building site.  The proposed dwelling clearly required a level building site.  The site has quite a significant slope and it would have been readily apparent on inspection that either excavation or filling or both was necessary to produce a level building site for the proposed dwelling.  After an inspection, the Council could have required Mr Chrisp to submit more detailed drawings and ask him how he proposed to achieve a level building site.  This would have enabled the Council to address all issues at once and would have avoided much of the present difficulty.