Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield - [2004] SASC 373

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
OAKDEN SHOPPING CENTRE PTY LTD v CITY OF PORT ADELAIDE ENFIELD
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Anderson)
25 November 2004
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - CONSENTS, APPROVALS AND PERMITS - CONDITIONS
Appeal against the decision of the Environment, Resources and Development Court ("the ERD Court") - development application for a shopping centre - two sets of development authorisations issued - Council issued an enforcement notice directing appellant to cease erection of pylon signs - whether pylon signs part of the initial application - whether conditions attached to development authorisations exclude the pylon signs - whether second development approval equates to an approval for construction of pylon signs - whether ERD Court failed to consider whether in circumstances it should exercise its discretion and not uphold the enforcement notice - interpetation of development authorisations discussed - appeal dismissed.
Development Act 1993 (SA) s 33, s 33(1)(a), s 33(4), s 39(2), s 39(4), s 42(2), s 44(1), s 84, s 89, s 97(1)b); Development Regulations 1993 (SA) reg 42(4), reg 46(1), reg 47, reg 92(2)(a); Environment Resources and Development Court Act 1993 (SA) s 30(2), referred to.
Shroff v McSporran (1987) 140 LSJS 356; Stebbins v Lismore City Council (1988) 64 LGRA 132; Tipfast Pty Limited v South Sydney City Council (2002) 120 LGERA 292; Loreto Normanhurst Association Inc v Hornsby Shire Council (2002) 122 LGERA 347, considered.

OAKDEN SHOPPING CENTRE PTY LTD v CITY OF PORT ADELAIDE ENFIELD
[2004] SASC 373
Full Court: Doyle CJ, Duggan and Anderson JJ

DOYLE CJ: The Environment, Resources and Development Court (“the ERD Court”) heard an appeal by Oakden Shopping Centre Pty Ltd (“Oakden”) against an enforcement notice issued by the City of Port Adelaide Enfield (“the Council”) under s 84 of the Development Act 1993 (SA) (“the Act”).
The notice recited that the Council has reason to believe that Oakden had breached s 44(1) of the Act by erecting two “pylon signs” on certain land without development approval. By the notice the Council directed Oakden to cease erection of the signs.
By its appeal to the ERD Court Oakden claimed that the Council was wrong in issuing the enforcement notice because Oakden had been granted development approval for the erection of the signs. It was common ground that if Oakden made that contention good, the enforcement notice should be set aside.
The ERD Court dismissed the appeal, and Oakden now appeals to this Court. The appeal is limited to a question of law, no leave having been sought to appeal on a question of fact: s 30(2) of the Environment Resources and Development Court Act 1993 (SA).
The outcome of the appeal turns on the meaning and effect of a provisional development plan consent and a development approval granted by the Council to Oakden in November 1999 and May 2002, and on the meaning and effect of a further provisional development plan consent and development approval granted by the Council in May 2002 and July 2002 respectively.
There are two provisional development plan consents and two development approvals because, as will appear, at a certain stage the proposed development was split into two parts, and made the subject of two development applications.
Facts
The issuing by the Council of the development approval in July 2002 was preceded by a number of applications and consents. This history, no doubt, contributed to the present dispute.
In setting out the facts, I will simplify matters as much as I can.
Initially Oakden applied to the Council on 23 February 1999 for provisional development plan consent for “Single Storey Supermarket, Speciality Shops, Offices and Tavern.” A site plan that came with the application showed the proposed buildings and associated car parking and pedestrian areas. On close inspection of the plan one finds two rectangular shaded blocks, adjacent to each of which are the words “pylon sign.” Having regard to their positioning, one could deduce that they represent some kind of advertising sign.
The Council wrote to Oakden asking for further information, including elevation plans. In all, the letter lists 13 matters requiring attention. Item 13 states:
“The proposed freestanding signs should not exceed 10m in height and should be simple in design and message.”
This item appears to refer to the pylon signs. Elevations and further details relating to the signs were sought.
Oakden then provided elevation plans through its architect. Oakden and its architect replied to each of the 13 items raised by the Council. The response to item 13 was as follows:
“All signage will be part of a separate application.”
The elevation plans are what I would describe as concept plans. Two of the elevations depict what appears to be a freestanding rectangular advertising display, taller than the single storey buildings that are shown.
In the course of considering the application, the Council sought further information, and at various times further plans and drawings were provided by Oakden. The site plans continued to show the pylon signs using the same shaded marking. Sometimes they were in slightly different positions. One of the elevation drawings apparently indicates (by reference to a scale, I gather) that one of the proposed pylon signs is 16.2 metres high. On the relevant elevation drawing or plan the other pylon sign is not shown.
The Council granted provisional development plan consent on 9 November 1999. The consent is for “single storey supermarket, specialty shops, offices, medical centre and tavern.” The consent refers to the initial Development Application. The consent is subject to twenty conditions. Condition 1 is as follows:
“All development must be established strictly in accordance with the plans and details submitted with Development Application dated 040/0358/99.”
That is a reference to the initial application. Condition 9 is as follows:
“No hoardings, flags, flashing lights, bunting or other advertising devices are to be erected or displayed on the subject site at any time, without the appropriate consent, in writing from Council.”
To this stage Oakden had not provided any detail in relation to the pylon signs other than what one might deduce from the fact that they appear on the site plans, and from what is shown on some of the elevations.
Oakden proposed some variations to the development, and further plans and information were provided to the Council. The site plans continued to show the pylon signs, but no greater detail was provided. The Council by letter approved of the variations and stated that the earlier consent continued to apply.
In July 2001 a private certifier granted provisional building rules consent and the Council issued development approval for bulk earth works. The same conditions were attached to the consent and approval.
On 14 February 2002 Oakden made a new application for provisional development plan consent for “specialist shops, offices and tavern.” This application reflected a number of changes to the proposed development, but apparently the supermarket component of the proposed development was unchanged. The Council appears to have agreed, as a matter of convenience, to permit Oakden to split the approval process in relation to the proposed development in this manner. Plans submitted by Oakden continued to show the pylon signs, although not always. In relation to the pylon signs the plans remained what I would describe as concept plans only. The focus of the correspondence between Oakden and the Council and in the plans was on matters other than the pylon signs.
In a letter from the Council of 17 April 2002, referring to the new application, the Council sought further information. Item 5 in its letter stated:
“Signs are not part of this application and will need to be submitted as a separate application.”
The material before the Court does not suggest that Oakden demurred to that statement.
On 8 May 2002 the Council granted development approval for the supermarket component of the proposed development. Subject to some immaterial variations, the same conditions as before were attached, including condition 9 set out above. The development approval referred to the initial Development Application, and to the provisional development plan consent of 9 November 1999.
On 14 May 2002 the Council granted provisional development plan consent in relation to the varied application made in February 2002. The proposed development was described as “Specialty Shops, Offices and Tavern modification to prior layout in [the initial Development Application of February 1999].” Twenty conditions were attached. Although similar to the earlier conditions, there are some significant changes. Condition 1 requires that the development accord with “the details and plans submitted in Development Application Number 040/00413/02”, a reference to the varied application. Condition 4 is as follows:
“Advertising signs are not part of this approval and a separate application must be made to Council.”
Still, as I understand the matter, no detail had been provided to the Council relating to the pylon signs.
A private certifier granted provisional building rules consent on 23 May 2002 in relation to “new speciality shops, offices and tavern”, referring by number to the varied application for approval of February 2002, and referring also to the proposal as an amendment to the initial application for approval made in February 1999. The consent is subject to seven conditions.
Documents before the certifier included a single sheet plan showing a number of different things, including details of concrete panels, a “loading dock gate footing plan”, and a “signage tower elevation” (a drawing containing some details of the construction of what appears to be a free standing tower) and another drawing, apparently showing the footing or foundation for a signage tower. The certifier also had before him a document entitled “STORMWATER CALCULATIONS & SIGN CALCULATIONS”. This was prepared by consulting engineers retained by Oakden. It included several pages of engineering calculations in relation to “proposed signage tower” and three drawings related to “pylon sign towers”. This material appears to contain structural and design details of a signage tower 16 metres tall.
On appeal it was common ground that the provisional building rules consent issued by the private certifier purported to be a provisional building rules consent to the proposed pylon signs. The private certifier acted pursuant to s 89 of the Act. The consent states in part:
“The development has been assessed against the provisions of the Building Rules pursuant to Sec 33 of the Development Act 1993 and complies with the Provisional Development Plan Consent Number 040/413/02 and attached conditions.”
This is a reference to the provisional development plan consent of 14 May 2002 given on the varied application of February 2002.
On 19 July 2002, the Council granted “development approval” in the form of Schedule 11 to the Act. The approval refers to the varied development application of 14 February 2002. It records the provisional development plan consent of May 2002 and the provisional building rules consent of 23 May 2002 and the conditions attached to each of them. It identifies the proposed development as: “Speciality Shops, Offices and Tavern, modification to prior layout in [the initial Development Application]”. Twenty seven conditions were attached. They are the same as those attached to the provisional development plan consent and the provisional building rules consent. Those attached to the former include condition 4 which I repeat for convenience:
“Advertising signs are not part of this approval and a separate application must be made to Council.”
On the hearing before us it was common ground that with the development approval the Council sent to Oakden a copy of the provisional building rules consent, including a copy of documents that were before the private certifier. These, I assume, were provided to the Council by the certifier to comply with reg 92(2)(a) of the Development Regulations 1993 (“the Regulations”). On the plan that included the “signage tower elevation”, the Council stamped “APPROVED COPY”. The private certifier had indicated by a stamp on the same plan that he had granted provisional building rules consent: see reg 92(2)(a). In stamping the plan, the Council presumably acted pursuant to reg 42(4) or reg 47 of the Regulations. Reg 42(4) provides:
“If a private certifier has made a decision in respect of the provisional building rules consent, the relevant authority must attach a copy of the private certifier’s decision (as notified to the relevant authority under section 93 of the Act) to any relevant notice of a decision of the relevant authority.”
Reg 47 provides:
“If an approval which requires a provisional building rules consent is granted by a relevant authority, the relevant authority must return to the successful applicant a copy of the plans, drawings, specifications and other documents and information lodged by the applicant pursuant to regulation 15 and Schedule 5, stamped or otherwise endorsed with the relevant consent”.
Whether it was necessary for the Council, as well as the private certifier, to stamp the plan, need not be decided. No point was taken before us on the fact that apparently only one of the documents before the certifier, being the one referred to by me, was stamped in this way.
It was not disputed that the Council had had an opportunity to examine the material that accompanied the provisional building rules consent before it granted development approval. In a letter of 28 May 2002, the Council said that it had checked these plans “to ensure that they match the Provisional Development Plan Consent”. No reference was made in the letter to the inclusion of plans relating to the pylon signs.
On 21 November 2002, the Council, by an enforcement notice under s 84 of the Act, directed Oakden to cease erecting the pylon signs, asserting that the signs were being erected “without Development Approval”.
No separate application for development approval for the erection of the pylon signs was made by Oakden, until after the present dispute arose.
Oakden has erected two large pylon signs at the site. They are about 16 metres high. The Council is opposed to such tall signs.
Oakden maintains that it has development approval for the signs. The Council denies this.
Submissions on Appeal
Mr Hayes QC, counsel for Oakden, advanced two main arguments. He did not explore in any detail the relationship between the two sets of development authorisations. He put submissions as to the meaning of condition 9 in the first set and condition 4 in the second set. (These are the two conditions that relate to signs). His submission appeared to be based mainly on the meaning of condition 4 in the second set of development authorisations.
The first argument is that the conditions attached to the development authorisations (I will use this term on occasions to cover both the provisional development plan consents and the development approvals) do not have the effect of excluding the proposed towers from the development authorisations. He argues that the conditions, properly understood, require only approval for the advertising material or advertising displays that might be attached to the towers, and not to the towers themselves. This is an argument about the interpretation of the development authorisations.
The second argument is that the second development approval governs the situation. The second development approval refers to the provisional building rules consent. It was accompanied by a copy of that consent, and related documents. The provisional building rules consent apparently relates to the pylon signs. By reg 46, the Council was not to issue the development approval in the form of Schedule 11 unless satisfied that all necessary consents had been obtained and “that all such consents are consistent with each other”.
In light of that, Mr Hayes submits that the second development approval is to be taken as development approval for the erection of the pylon signs. The provisional development plan consent and provisional building rules consent would be consistent only if they each related to the same proposal, and as they must be taken to be consistent, each much be taken to embrace the pylon signs. Any doubt in this respect is resolved by the fact that the Council sent to Oakden a copy of the provisional building rules consent, and stamped as approved a drawing showing the pylon sign.
In the end, the second argument is a construction argument also. The meaning attributed to condition 4 is affected by the fact, so he submits, that the erection of the pylon signs has apparently been consented to.
Mr Hayes and Mr Roder, counsel for the Council, in their submissions each referred to correspondence between Oakden and the Council, and to plans that had been provided to the Council. Mr Roder’s submission relies in particular on statements in the correspondence (referred to above) that the pylon signs were not part of the application, and required a separate consent. Mr Roder also submits that in light of the lack of detail relating to the pylon signs, neither the provisional development plan consent, nor the development approval, could properly be read as extending to the pylon signs. As to Mr Hayes’ second argument, Mr Roder submits that the apparent error by the private certifier in granting consent to a proposal that includes the pylon signs could not affect the scope and effect of the provisional development plan consent or the development approval.
Mr Hayes advanced a further argument. He argued that the ERD Court had failed to consider whether it should, in all the circumstances, exercise its discretion not to uphold the issue of the enforcement notice, if it was against Oakden on the first two points. The argument under this head is that, having regard to all the circumstances, it might not be appropriate to enforce the requirements of the Act, if development approval had not been obtained. The transcript indicates that this issue was raised before the ERD Court. The Judge’s reasons make no reference to the exercise of the discretion. If this argument succeeds, it will be necessary to remit the matter to the ERD Court for further consideration.
Consideration of submissions
The submissions by counsel raise some important questions about what constitutes a development authorisation, how a court should interpret the terms of a development authorisation, and as to the material to which a court may have regard in interpreting a development authorisation.
The questions are important because development authorisations are important documents. They give rise to significant rights and obligations, and they have an enduring effect on the permissible use of land. As well, the answers to the questions are likely to affect the practice of decision makers under the Act and the approach of this Court and of the ERD Court to issues that arise before them.
The questions that I have identified were not the subject of detailed submissions before us. In argument before us, Mr Hayes and Mr Roder referred to the material before the Court, including correspondence, without addressing the issue of whether and when it was permissible to refer to particular documents.

Not having had the benefit of full submissions on the questions referred to by me, it is appropriate that I confine my treatment of them to what is essential to decide this case. The following propositions appear to me to be a safe basis upon which to proceed.
A development authorisation is a unilateral document issued by the relevant authority. It is not an agreement between the applicant and the authority.
The meaning of a development authorisation is to be determined objectively. The inquiry is as to the meaning that the terms of the authorisation would have to a reasonable person. The meaning of a development authorisation is not determined by inquiring into the subjective intention of the applicant for authorisation or of the relevant authority.
A development authorisation is intended to operate for the benefit of the applicant and subsequent owners of the land. It is an important document, with enduring legal effects.
The primary document is the development authorisation itself. This is the case whether one is dealing with a provisional development plan consent or with a development approval. It is the authorisation (here embracing a consent or an approval) the meaning of which is in question. But usually, perhaps always, a development authorisation will be meaningless without reference to the plans or proposals submitted by the applicant. In principle it must be permissible, when deciding the meaning, scope and effect of a development authorisation, to refer to the plans or other documents constituting the proposal submitted for authorisation. This must be permissible when, as here, the development authorisation makes express reference to those plans, by referring to “details and plans” submitted as part of the application.
To support these basic propositions, it is sufficient to refer to the decisions in Shroff v McSporran (1987) 140 LSJS 356; Stebbins v Lismore City Council (1988) 64 LGRA 132; Tipfast Pty Limited v South Sydney City Council [2002] NSWLEC 85; (2002) 120 LGERA 292; Loreto Normanhurst Association Inc v Hornsby Shire Council [2002] NSWLEC 45; (2002) 122 LGERA 347.
As to other documents, including correspondence between the applicant and the relevant authority, it is not possible to lay down a general rule. Generally, reference to other documents would not be permissible when one is considering the meaning and effect of a development authorisation. It is the authorisation, and documents expressly made part of it, that is to be interpreted.
A practical reason for this approach is that difficulties are likely to arise, with the passage of time, if the meaning of a development authorisation is affected by correspondence and other dealings between the relevant authority and the applicant. In this respect, a development authorisation is rather like an instrument of title. But there may be particular circumstances in which it is permissible to refer to other documents. The fact that a relevant authority has power to request additional documents and information under s 39(2) of the Act, and the fact that a relevant authority may permit an applicant to vary an application under s 39(4) of the Act, may mean that other documentation will on occasions have to be considered when determining the scope and effect of a development authorisation.
Applying these principles, I approach the issues before me as involving a decision as to the meaning and effect of the provisional development plan consent of November 1999 and the development approval of May 2002 (the first set), and as to the meaning and effect of the provisional development plan consent of May 2002 and of the development approval of July 2002 (the second set), in light of the development applications and plans that accompanied them or were submitted in response to a request for further information.
For reasons that will appear, it is unnecessary to consider the legal relationship between the two sets of authorisations, or whether the second development authorisation is the critical one.
The provisional development plan consent of November 1999 refers to the initial development application and to the “plans and details” submitted with it, in condition 1. That approval contains condition 9 that I have set out above.
Condition 9 is not restricted to advertising material that might be attached to fixtures or to the walls of buildings. The reference to “advertising devices” that are “erected or displayed” is wider than that. I consider that an advertising device that is erected is an expression that readily encompasses a structure such as the pylon towers. This tentative conclusion is supported by the fact that the pylon towers are substantial freestanding structures, and the fact that the plans submitted with the initial application contain no detail at all relating to the pylon towers. That suggests that they are not the subject of the application.
If attention is to be confined to the consent, the application and the plans, I conclude that this consent is not a provisional development plan consent to the erection of the pylon towers.
It may be permissible in this case to refer to some of the correspondence between the Council and Oakden. That correspondence might constitute details submitted with the application, for the purposes of condition 1. As well, it might be appropriate to refer to the correspondence if it is thought to be uncertain whether the pylon signs were part of the development, the subject of the application. If reference can be made to the correspondence, I consider that correspondence to be decisive against the contention for Oakden. Oakden states specifically that “all signage will be part of a separate application”. This makes it clear, if it was not clear, that the application did not relate to the proposed pylon signs, and that the consent is not to be interpreted as embracing them.
Accordingly, provisional development plan consent was not granted for the erection of the pylon signs in November 1999. For the same reasons, the development approval of May 2002, relating to the supermarket component of the proposed development, is not an authorisation for the erection of the pylon signs.
I turn now to the second development approval.
Taken at face value, the second development approval does not constitute an approval for the erection of the pylon signs. Condition 1 refers to the plans and details submitted with the revised application, and to the provisional development plan consent of May 2002. That material provides no further detail in relation to the pylon signs than was provided at the earlier stage. This suggests that the pylon signs are not part of the application.
In any event, I consider that condition 4 on its face (and taken in isolation from the provisional building rules consent) excludes the pylon signs from the scope of the consent. For convenience I set it out again:
“Advertising signs are not part of this approval and a separate application must be made to Council.”
I do not accept the submission that the reference to “advertising signs” restricts that condition to advertising material that might be attached to a structure such as the pylon towers. Nor do I agree that there is an ambiguity which should be resolved against the Council. The condition is clear.
If reference can be made to the correspondence, that correspondence is, I consider, again decisive against Oakden’s argument. When the Council received the varied application for provisional development plan consent, it responded by stating that “signs are not part of this application” and, as I said earlier in these reasons, Oakden did not demur.
The scope and effect of the conditions that accompanied the second development approval is not affected by the fact that the provisional building rules consent, referred to in that approval, relates to the proposed pylon towers.
I agree with Mr Hayes that there is an inconsistency between the provisional development plan consent and the provisional building rules consent, to that extent. The second provisional development plan consent does not extend to the pylon towers, for the reasons just indicated. The terms of condition 4 and the correspondence (if relevant) lead to that result. The private certifier has failed to ensure, as required by s 97(1)(b) of the Act, that the two consents are consistent. The Council has failed to observe the requirements of reg 46(1) of the Regulations, because it has issued a notice of development approval in terms of Schedule 11, although the two consents referred to are not consistent. But the inconsistency between those two consents is not resolved by giving to the development approval a meaning or effect that it does not have and cannot have as a matter of law.
The proposed pylon towers have not been assessed against the development plan, as required by s 33(1)(a) of the Act, and have not been granted a provisional development plan consent. The construction of them cannot constitute an approved development unless provisional development plan consent has been granted: s 33(4). There is nothing in the terms of the second development approval that is capable of suggesting that it is intended to constitute a provisional development plan consent in respect of the pylon towers. The second development approval records the fact of the second provisional development plan consent, and repeats the 20 conditions attached to that consent, including condition 4. The meaning of that condition was fixed when the provisional development plan consent was granted. The conditions attached to that consent continues to bind Oakden: s42(2) of the Act. The development approval does not, as I understand the Act, re-impose those conditions, giving rise to a need to reconsider their meaning in the light of further events.
The inconsistency to which I refer is an irregularity. There is no need to consider its possible consequences. The inconsistency does not support an argument, by way of construction or interpretation, that results in the development approval having the effect for which Oakden contends. It cannot change the meaning of condition 4, imposed as part of the second provisional development plan consent. The irregularity is regrettable, but I do not agree that it is appropriate to resolve it by giving to the development approval a meaning that it does not bear or an effect that it cannot have.
For those reasons, the development approval does not constitute a development authorisation for the erection of the proposed pylon towers.
It follows that the Council is authorised by the Act to issue the enforcement notice, the construction of the towers not being an approved development under s 33 of the Act.
Oakden did not advance an argument that the Council is estopped from asserting that the construction of the towers is not an approved development. Any such claim would have to be tried on the facts. It is difficult to see how such a claim could succeed. Assuming that an authority such as the Council can be estopped in a case like this (an assumption which is contestable), the course of events suggests that Oakden well understood, at earlier stages of the process, that its application and the provisional development plan consents did not extend to the erection of the pylon signs. It is not easy to see how any confusion that arose surrounding the development approval could, in the circumstances, constitute a representation by the Council on which Oakden could reasonably claim to have acted. Other material suggests that Oakden was, at the least, aware that the scope of the approval was controversial, when it decided to proceed with the erection of the pylon towers. Be that as it may, before this Court the matter was argued purely as one of construction of the development authorisations.
I turn to the question of the discretion of the ERD Court not to uphold the issue of the enforcement notice.
There is no doubt that that discretion was invoked in the proceedings before the ERD Court. The Judge has not said anything about it in her reasons. The explanation for this appears to be that Oakden decided to rest its case on the meanings of the conditions, and not to pursue further an argument that, even if the erection of the towers was a breach of the Act, the Council should not be permitted to enforce the Act. Mr Roder referred us to portions of the transcript recording submissions made after her Honour had decided the interpretation point, indicating that counsel for Oakden invited the Court to dismiss the appeal to the ERD Court. That was in the context of Oakden having made, as I understand it, a fresh application to the Council for a development authorisation in respect of the pylon signs, the Council having refused that application, and Oakden having appealed to the ERD Court against that refusal.
In the circumstances, it is not a cause for complaint in this Court that the ERD Court has not considered the exercise of its discretion to vary or to quash the enforcement notice, notwithstanding the fact that the Council was authorised to issue it.
If the ERD Court has a discretion that it has not yet exercised in this respect, it may be open to Oakden to return to that Court and to invite it to do so. There is no basis for this Court to say that the Judge erred in failing to do so. What passed between counsel and the Judge indicates that the Judge was invited to dispose of the appeal without further delay.
Conclusion
For those reasons I would dismiss the appeal to this Court
DUGGAN J: I would dismiss the appeal for the reasons given by the Chief Justice.
ANDERSON J: I agree with the reasons of Doyle CJ and I would also dismiss the appeal.