Paradise Development (Investments) Pty Ltd v District Council of Yorke Peninsula & Anor
[2008] SASC 139
•22 May 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
PARADISE DEVELOPMENT (INVESTMENTS) PTY LTD v DISTRICT COUNCIL OF YORKE PENINSULA & ANOR
[2008] SASC 139
Judgment of The Honourable Justice Debelle
22 May 2008
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS - VALIDITY
Development consent – nature of development – whether development correctly categorised as Category 1 development – whether development is seriously at variance with Development Plan – whether delegations authorised sub-delegate to grant development consent – appeal allowed – development consent set aside.
Development Act 1993 s 20(2), s 20(3), s 20(7), s 33(1)(1), s 34(23), s 34(24), s 34(36), s 35(2), s 35(4), s 38(2), s 39(2), s 39(4)(d), s 42(1); Development Regulations 1993 Reg 16. Sch 9; Community Titles Act 1996 s 12, referred to.
City of Port Adelaide Enfield v Moseley [2008] SASC 88; Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield (2004) 137 LGERA 189; Polites v City of Holdfast Bay (No 2) (1998) 72 SASR 475; Upham v The Grand Hotel (SA) Pty Ltd (1999) SASR 557, applied.
Aedlik Nominees Pty Ltd v District Council of Kingscote [1997] SAERDC 393; Barrick Pty Ltd v Barossa Council [2004] SAERDC 103, not followed.
Adelaide City Council v Frankham [2002] SASC 162; Australian Waste Pty Ltd v Compaction Application Tips Pty Ltd (2001) 79 SASR 532; Compaction Application Tips Pty Ltd v Australian Waste Pty Ltd (2001) 80 SASR 435; Frankham v Adelaide City Council (2004) 89 SASR 372; McKenzie Constructions Pty Ltd v Development Assessment Commission (1999) 74 SASR 539; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; O’Reilly v Commissioners of the State Bank of Victoria (1983) 153 CLR 1; Perpetual Trustee Company (Canberra) Ltd v Lewis (1994) 119 FLR 38; St Ann’s College Inc v Adelaide City Corporation [1999] SASC 479; Telstra Corporation Ltd v Mitcham City Corporation (2001) 79 SASR 509, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"residential flat building", "row dwelling", "tourist accommodation"
PARADISE DEVELOPMENT (INVESTMENTS) PTY LTD v DISTRICT COUNCIL OF YORKE PENINSULA & ANOR
[2008] SASC 139Land and Valuation Division
DEBELLE J. This application for judicial review seeks orders setting aside the grant of a development consent by the first defendant, District Council of York Peninsula (“the Council”). After hearing the parties, I granted the application giving brief reasons for doing so and stating that I would later publish detailed reasons. These are the reasons for the orders then made.
The Port Vincent Marina Development
In 1999, exercising powers in Division 2 of the Development Act 1993 to approve major projects, the Governor approved what is called “the Port Vincent Marina Development”. In that same year, the plaintiff purchased the land which was to be used for the Port Vincent Marina Development. The marina development is at the northern end of the town of Port Vincent. The development comprises 70 residential allotments, 110 marina berths, public lavatories, shower and laundry facilities, a swimming beach, an office for the manager of the marina, a public boat ramp and a new sewerage system. The public lavatories, shower and laundry facilities, the swimming beach and the new sewerage system were constructed at the expense of the plaintiff. The plaintiff has also contributed to the cost of providing improved road access to the site. The plaintiff has expended some $15 to $16 million.
On or about 27 March 2003, the Council introduced an interim planning amendment report for the area the subject of the marina development. On 27 March 2003, that interim amendment was gazetted and on 13 November 2003 the amendments to the Development Plan proposed by the planning amendment report were gazetted. Those amendments affected the land the subject of the marina development.
The effect of the amendments to the Development Plan is that the land the subject of the marina development is now part of the Residential (Port Vincent Marina) Zone (“the Residential Zone”) and the Commercial (Port Vincent Marina) Zone (“the Commercial Zone”). The Residential Zone includes the area developed as residential allotments.
The Commercial Zone contains two allotments. One has been developed as an area in which the public may park boat trailers. The other allotment is the subject land. The rest of the Commercial Zone comprises the marina berths and associated facilities as well as the marina basin. The subject land has an area of 2900 square metres. It is the only allotment on which a development consistent with the objectives for the Commercial Zone can proceed.
Most of the residential allotments have been sold. However, about 19 have not yet been sold. The plaintiff still owns the infrastructure of 43 of the 110 marina berths. The plaintiff has a significant interest in the development of the land in the two marina zones. It formerly owned the subject land. It clearly has a sufficient interest to grant it standing to make this application.
On 18 December 2007, the Council by its delegate purported to grant provisional development plan consent to a development proposed by the second defendant, Christopher John Pty Ltd (“the developer”). The document giving notice of the grant of development consent described the development as units and office building and garage. The plaintiff seeks an order in the nature of certiorari quashing the grant of the development consent and in the alternative a declaration that the grant of development consent is invalid. The application was initially made on the grounds
·that the proposed development was a Category 3 development for the purposes of s 38 of the Act, and
·that the decision granting development consent was made by a person who had no authority to do so.
At the hearing of the application, the plaintiff was granted leave to add further grounds. The effect of those grounds is that the decision is also invalid because
·the Council’s delegate had failed to consider whether the proposed development was seriously at variance with the Development Plan, and
·the proposed development is seriously at variance with the Development Plan.
The protagonists in these proceedings were the plaintiff and the Council. At an early stage in these proceedings, the developer had informed the court by its counsel that it would abide the order of the court.
The Development Plan
As already noted, the land the subject of the proposed development is within the Commercial (Port Vincent Marina) Zone as prescribed by the Council’s Development Plan. The subject land is one of only two allotments of land within the zone. The land in the rest of the zone is a reserve or roadway. A substantial part of the zone is a marine basin housing the marinas and associated facilities as well as providing access to and from the marinas.
The Development Plan prescribes three objectives for the zone. They are:
Objective 1: A zone accommodating a range of marina based business and service activities to serve the day-to-day needs of the marina and the visiting public.
Objective 2: A zone accommodating berthing facilities and areas for the passage and manoeuvring of vessels.
Objective 3: Development designed and sited to complement the zones coastal setting, and in particular the cliffs which form a backdrop to the Marina.
Those objectives are immediately followed by a list of facilities that are anticipated in the fully developed zone. The facilities listed are:
(a) marina berths
(b) marina office and administrative facilities
(c) shop not more than 50 square metres in floor area
(d) chandlery
(e) boat maintenance facilities
(f) fuel outlet (for marine craft only)
(g) a ferry landing
(h) public boat ramp
(i) public car parking
(j) tavern
(k) motel
(l) restaurant
The Principles of Development Control for this zone are complementary to the objectives. It is sufficient to note Principles 1 and 4(g) which are in these terms:
1The size and range of retail and commercial uses should be limited to those serving the day-to-day needs of marina users and residents of the zone.
4(g) development should comprise a mixture of tourist accommodation and waterfront commercial uses, with tourist accommodation uses located over commercial uses in appropriate locations.
The reference to “residents of the zone” in Principle 1 is peculiar given that the list of anticipated facilities does not include dwellings for permanent residents. That reference can only be treated as one of those lapses which, unfortunately, are scattered through the Development Plan. It is not intended that there be residents in this zone. They are in the neighbouring Residential (Port Vincent Marina) Zone and in other zones in the town of Port Vincent.
Principle 15 of the Principles of Development Control for the Commercial Zone lists certain kinds of non-complying development. They include detached dwellings, group dwellings, residential flat buildings, row dwellings and semi-detached dwellings.
The principle that follows Principle 15 is numbered 13. As there is already a Principle 13 for this zone, it is obviously a typographical error and is intended to be Principle 16. I will call it Principle 16. Principle 16 lists developments which are assigned as Category 1 developments. They include hotel, motel, serviced holiday apartments and tourist accommodation. The issues in these proceedings turn in part on the terms of Principles 15 and 16 and what is the nature of the proposed development.
Prior Development Applications
The plaintiff had sold the subject land to the developer so that the developer could construct a tavern on the land. The developer obtained consent pursuant to both the Development Act 1993 and the Liquor Licensing Act 1997 to construct a tavern on the subject land. The developer decided not to proceed with the proposal. The development approval for the proposed tavern lapsed.
In 2006 the developer applied for provisional development plan consent to construct nine self-contained apartments on the subject land. The Council’s Building and Development Officer, Mr Ainsworth, classified the apartments as row dwellings. Row dwellings are a non-complying development within this zone. The Council was, therefore, at liberty either to assess the application under its Development Plan or to refuse to proceed to assess it: s 39(4)(d) of the Development Act. On 28 September 2006 the Council’s Development Assessment Panel refused to proceed with the assessment of the application. There is no right of appeal against that decision: s 35(4) of the Development Act.
A Revised Application
On 28 May 2007 the developer lodged a revision of the earlier application for approval for nine self-contained apartments. The application described the proposed development as “town house development”. A letter from the developer’s then architects accompanied the development application. It described the development as nine smaller town houses. The reference to the town houses being smaller appears to be a reference to the application which the Council had refused to assess.
The proposed development comprises two separate two-storey buildings consisting of what are commonly called town houses. One of those buildings comprises three town houses and the other six. Each town house is a two-storey development. The ground floor of each comprises three bedrooms, one of which has an en-suite bathroom and an additional bathroom. The first floor is disposed as a large open area containing a living area, dining area and kitchen with a balcony at the front. Each unit has a covered area in which two cars can be parked. In addition, there is a small manager’s office attached to a covered carport for four cars. Another covered carport is to be erected on the frontage and is intended to house cars and boats or boat trailers.
On 26 June 2007 the application was considered by the Council’s Development Assessment Panel. The Panel had before it a report from Mr Ainsworth. His report stated that the proposal was a non-complying development. That was the conclusion he had reached in his report on the application made in 2006. Nevertheless, in this report he recommended that the Council proceed to an assessment of the application. The minutes of the meeting on 26 June 2007 disclose that Mr Ainsworth informed the Panel that the application was for serviced holiday apartments which could be treated as a Category 1 development. He was obviously relying on Principle 16 for this Commercial Zone. A motion that the Panel proceed to assess the development application was lost. The minutes record that Mr Ainsworth then withdrew the matter from the agenda. It is not at all clear by what authority Mr Ainsworth withdrew the application.
On 5 July 2007 Mr Ainsworth sent a letter to the developer’s architect seeking further information. As I will later note, the letter did not request all relevant information that the Council required. The information requested was supplied by letter from another firm of architects retained by the developer.
It appears that Mr Ainsworth had also asked the Council’s consultant town planner to report on the development application. He reported by letter dated 2 August 2007. He described the development as “Unit Development (Tourist Accommodation)”. A little later in the report, he described the development as “a unit development, which will be used for self-contained short-term tourist apartments”. He recommended that the application be refused because it was “at variance with” listed provisions of the Council’s Development Plan. Those provisions included Objective 1 and Principles of Development Control 4, 7, 8, 9, 13 and 14 of the Commercial (Port Vincent Marina) Zone. The report also asserted that the proposed development was at variance with provisions of a land management agreement relating to the land. However, there is no evidence of the asserted variations from that agreement. The report did not state that the proposed development was seriously at variance with the Development Plan.
Mr Ainsworth was on leave in the period 18 August to 1 October 2007. On 11 September 2007, an email was sent to the Council by the developer asking that consideration of the application be deferred until after Mr Ainsworth had returned from leave.
By letter dated 12 November 2007 the developer’s architects provided further information to the Council which included a new streetscape.
The Council’s Development Assessment Panel met on 18 December 2007 to consider a number of development applications. The minutes of the meeting do not record any consideration of the developer’s application.
On 18 December, the same day as the Council’s Development Plan had met, Mr Ainsworth, acting as a delegate of the Council, granted provisional development plan consent to the proposed development. The grant of development consent was subject to 21 conditions. Condition 21 was in these terms:
That the proposed development has been assessed as Tourist Accommodation in Council’s Development Plan consolidated 8 February 2007, and is considered to be used as short term accommodation only.
Mr Ainsworth purported to grant development consent pursuant to a delegated power to grant or refuse consent to Category 1 developments.
The Nature of the Development
The Council’s first task was to determine the nature of the proposed development. Regulation 16 of the Development Regulations provides:
16 – Nature of Development
(1) If an application will require a relevant authority to assess a proposed development against the provisions of a Development Plan, the relevant authority must determine the nature of the development, and proceed to deal with the application according to that determination.
(2) If the relevant authority is of the opinion that an application relates to a kind of development that is descried as non-complying under the relevant Development Plan, and the applicant has not identified the development as such, the relevant authority must, by notice in writing, inform the applicant of that fact.
There were at least two ways in which the Council had to assess the proposed development against its Development Plan. The Council had to determine the category to which it should assign the proposed development: s 38(2) of the Development Act. That task required the Council to consider Principles 15 and 16 and to decide whether the development was either a residential flat building or row dwelling or was serviced holiday apartments or tourist accommodation. Secondly, the Council had to determine whether the proposed development was seriously at variance with the Development Plan: see s 35(2) of the Development Act. It is clear, therefore, that the Council had to determine the nature of the development.
The importance of the task of determining the nature of the development was emphasised by this court in Australian Waste Pty Ltd v Compaction Application Tips Pty Ltd (2001) 79 SASR 532 at [14] and on appeal 80 SASR 435 at [23] and [27] as well as in McKenzie Constructions Pty Ltd v Development Assessment Commission (1999) 74 SASR 539 at [19] to [33]. When discharging that task, the planning authority must objectively examine the documents and other information before it and, as a matter of practical reality, decide the nature of the development: Australian Waste Pty Ltd v Compaction Application Tips Pty Ltd (supra) at [22] and on appeal at [10]. It was implicit in the remarks in those two decisions that the planning authority should not simply rely on the description of the proposed development in the development application. Instead, the planning authority has a duty itself to examine the plans which accompany the development application and any other information provided by the applicant and determine the nature of the development.
The Development Regulations define types of dwellings. For present purposes, it is necessary to consider only the definition of “residential flat building” and “row dwelling” which are in these terms:
“residential flat building” means a single building in which there are two or more dwellings, but does not include a semi-detached dwelling, a row dwelling or a group dwelling.
“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 one of three or more dwellings erected side by side, joined together and forming, by themselves, a single building.
It is necessary to notice also the definition of “dwelling” in the Development Regulations which is in these terms:
“dwelling” means a building or part of a building used as a self-contained residence.
Each town house is a dwelling as defined. Each contains all of the elements one expects to find in a dwelling, that is to say, a number of bedrooms, bathrooms, a lounge or living area, a dining area, kitchen and car parking area. As each building contains two or more dwellings, each is a residential flat building as defined.
The definition of “residential flat building” states that it does not include a row dwelling. Each of the proposed two sets of town houses has many of the characteristics of a row dwelling. The letter from the architects which accompanied the development application contained very clear indications that the developer proposed to divide the land into smaller allotments. The third paragraph of the letter included the following:
The Development proposal now offers 9 smaller townhouses for individual ownership which can be utilised on a short term rental basis by up the 3 couples or 2 families per apartment. We understand that the price pointing of the finished product would be such that the apartments would be a reasonable investment and create negative gearing opportunities for individuals/purchasers wanting a straight investment property or a holiday home with a supplementary income.
The expression “individual ownership” combined with the assertions as to an investment opportunity are obvious pointers to that conclusion. In light of these indications, the Council ought to have exercised its powers pursuant to s 39(2) of the Development Act and requested additional information to enable it to assess the application and to determine conclusively the nature of the development. In particular, it ought to have asked whether the developer intended to divide the land and, if so, how it was to be divided. If it was to be divided, the Council should have required the developer to lodge an application for land division which could have been considered together with the application for provisional development plan consent. By its letter dated 5 July 2007 the Council sought additional information but failed to request this important information.
In City of Port Adelaide Enfield v Moseley [2008] SASC 88 at [15] I referred to the reasons why a planning authority should ask a developer if a land division is proposed and the assistance that that could provide in determining the nature of the development.
15Although the question in Pioneer was whether there had been proper disclosure of an intention to use adjoining land to gain access to the intended quarry development, the principle applies with equal force where the applicant for development consent intends to divide an allotment and erect a dwelling or dwellings on the newly created allotment. The question whether the allotment is to be divided may be a relevant factor in determining the nature of the development as required by Regulation 16 of the Development Regulations 1993. As Stephen J observed in Pioneer at 500-501, town planning involves two critical integers, land and use. Thus, an application for development approval involves a question of definition, what land and what use? A planning authority must therefore be able to ascertain the land intended for development when performing its duty under Regulation 16 to determine the nature of the development. That is one reason why the planning authority is entitled to know whether an allotment will be dedicated to the use proposed. More importantly, the question whether an allotment should be divided in a particular way should, as a matter of planning principle, if not also as a matter of common sense, be determined before any development upon that land has taken place. Good town planning requires land to be divided in an appropriate manner consistent with relevant planning principles. Logically, the division of land comes before the approval of any development of the land. If a development is approved before the approval of the land division, it has a real potential to put undesirable constraints upon a planning authority considering whether it is proper to grant consent to the proposed land division. If that is not the position, there is a real potential for undesirable development.
If, as seems clear, the developer intends to divide the land, an application for land division should have been considered with the application for provisional development plan consent for the buildings to be erected. If provisional development plan consent was refused, the application to divide the land could then be withdrawn. In that way, the Council would have been able to decide whether to approve the land division without its discretion being fettered by an existing development consent for the construction of the buildings.
In the absence of any firm information as to whether the developer intends to divide the land, it cannot be conclusively determined that there is to be a site held exclusively with the dwelling and so it cannot be conclusively determined that the proposed development is for two sets of row dwellings. However, there is a real likelihood that it is intended to create row dwellings. The plan gives every indication that there will be a site held exclusively with each dwelling: Polites v City of Holdfast Bay (No 2) (1998) 72 SASR 475 at 481 to 483. Each site is capable of having a frontage to a public road. The likelihood is that these are intended to be row dwellings.
Given the terms of Principle 15 for this Commercial Zone, it is not necessary to choose between each definition since both a residential flat building and row dwellings are non-complying developments in this zone. By reason of the combined effect of Schedule 38(2) of the Development Act, Schedule 9 of the Development Regulations and the Development Plan, a non-complying development of this kind is a Category 3 development.
Because of the terms of Principle 16, it was also necessary for the Council to determine whether the proposed development was for tourist accommodation or for serviced holiday apartments and, if it was, what consequence should follow so far as assigning the proposed development to Category 1. Principle 16 lists what are Category 1 developments in this zone. That list includes serviced holiday apartments and tourist accommodation.
The expression “tourist accommodation” is a collective noun. It is a generic term that embraces a wide variety of kinds of development. It is an instance of what is classified in Fowlers Modern English Usage as an abstract singular used instead of concrete plurals. As is noted in Fowler (under the heading “membership”), “Needless substitution of the abstract for the concrete is one of the surest roads to flabby style”. In this case, the use of the abstract expression also has the capacity to lead to inconsistency. However, I think that inconsistency can be avoided by examination of what the expression “town accommodation” means when used in this Development Plan for this zone.
The noun “accommodation” has a number of meanings. Its primary meaning is the act of accommodating: Shorter Oxford English Dictionary and Macquarie Dictionary. The meaning will therefore vary according to context. In this context it has the sixth meaning as listed in the Shorter Oxford English Dictionary,
Anything which supplies a want, or affords aid or refreshment, or ministers to one’s comfort; a convenience, an appliance.
The fifth meaning of “accommodation” in the Macquarie Dictionary is to like effect. The sixth meaning in the Macquarie Dictionary is “lodging or food and lodging”.
An examination of the Development Plan shows that the expression is used in a variety of ways in the Plan and takes its meaning from its context. When used in the Development Plan, tourist accommodation does not necessarily mean the provision of rooms or lodgings for tourists. It is capable of referring to all that accommodates the needs and desires of tourists. Tourist accommodation is, therefore, that which supplies the wants or needs of tourists or is a convenience to tourists. It is an expression that includes a range of services including provision of lodgings and the provision of food and refreshment as well as the provision of a wide range of other services. In this case, the context is the provisions relating to the Commercial (Port Vincent Marina) Zone. The provisions for that zone are additional to those expressed for the whole Council area and, in the case of apparent conflict or inconsistency, the provisions of the zone prevail: see the preamble to the provisions for the zone. The overall objective for the zone is spelled out in Objective 1 and Principle 4(g). I repeat the terms of both:
Objective 1: A zone accommodating a range of marina based business and service activities to serve the day-to-day needs of the marina and the visiting public.
4(g) development should comprise a mixture of tourist accommodation and waterfront commercial uses, with tourist accommodation uses located over commercial uses in appropriate locations
The list of indicative facilities anticipated in the zone has already been quoted. It is entirely consistent with the objective of retail and commercial areas to serve the marina and tourists. That list does not include the provision of rooms or lodging for tourists except when it refers to a motel. It certainly does not refer to buildings of the kind proposed in this development. Similarly, there is nothing in the Principles of Development Control that suggests a residential development of the kind proposed. The thrust of those principles is that the area should be developed for retail and commercial purposes. That is no more clearly expressed than in Principle 4(g).
The context in which “tourist accommodation” is used in the provisions for this zone, therefore, has the result that that expression is intended to refer to uses that service the marina and tourists who visit the area. The evidence is that the developer had intended to construct a tavern. The developer had obtained the necessary consents to develop the land as a tavern. That would have been a use entirely consistent with the Development Plan. But that is a matter of history. It is sufficient to conclude that the expression “tourist accommodation” when used in this zone in this Development Plan does not include a residential flat building or row dwellings of the kind proposed.
The conclusion that the development is not tourist accommodation can be reached by another route. The nature of the development is to be determined by an assessment of the development application and plans and other information submitted with it together with any other information submitted by the applicant in response to a request by the planning authority pursuant to s 39(2) of the Development Act. The Council should carefully scrutinise all information supplied by the applicant. It should consider the implications of the application. The fact that the applicant describes the proposed development in a way that might on its face suggest that the development falls into a particular category does not necessarily mean that it belongs to that category. As already noted, the Council must make an objective assessment of the nature of the development from all the information before it.
Considerations of this kind were considered by the Full Court in Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield (2004) 137 LGERA 189. In that case the court was considering the meaning and effect of a development authorisation. Speaking for the court Doyle CJ said at [39]:
39The 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.
He continued:
42A development authorisation is a unilateral document issued by the relevant authority. It is not an agreement between the applicant and the authority.
43The 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.
44A 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.
45The 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.
46To support these basic propositions, it is sufficient to refer to the decisions in Shroff v McSporran (1987) 65 LGERA 33; Stebbins v Lismore City Council (1988) 64 LGRA 132; Tipfast Pty Ltd v South Sydney City Council [2002] NSWLEC 85; (2002) 120 LGERA 292; Loreto Normanhurst Association Inc v Hornsby Shire Council (2002) 122 LGERA 347.
47As 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.
48A 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.
One important proposition in these remarks is that a development authorisation is not an agreement between the applicant and the planning authority. The planning authority unilaterally decides whether development consent should be granted. Similarly, it is the planning authority that decides the nature of the development application.
Viewed objectively, the proposed development is not of the kind that falls under the heading of tourist accommodation, even if that expression, when used in the provisions in this zone, includes lodging for tourists. Tourist accommodation refers to the provision of lodgings by a hotel, motel, boarding house, backpacker’s hostel, holiday cabins or the like. It does not refer to substantial three bedroom apartments containing all the paraphernalia of a dwelling including kitchen, living area and dining room. Apartments of this kind might be used regularly or occasionally to provide lodgings for tourist but they are not tourist accommodation, no matter what meaning is given to that expression. In this respect, condition 21 is not only so vaguely expressed as to be unenforceable but it is also unrealistic to expect a Council to be able to frame an enforceable condition which would limit the use of the town houses to tourists.
There is an important policy reason underlying that last conclusion. This and other Development Plans contain provisions relating to the location of residential flat buildings and row dwellings in zones as well as other provisions relating to the design and layout on the particular site. These provisions should not be avoided by classifying an intended development of this kind as tourist accommodation. Similarly, a dwelling or semi-detached dwelling might be used to provide lodgings for tourists. It does not follow that either constitutes tourist accommodation.
In the course of argument, reference was made to two decisions of the Environment, Resources and Development Court, Aedlik Nominees Pty Ltd v District Council of Kingscote [1997] SAERDC 393 and Barrick Pty Ltd v Barossa Council [2004] SAERDC 103. Aedlik concerned an application for development consent to add two holiday cabins to an existing facility providing holiday accommodation. One of the cabins was to be a one bedroom facility and the other a two bedroom facility. In addition, it was proposed to construct a barbeque facility and an area that could be used as a dining area. The nature of the existing facility is not explained in the reasons for judgment. The holiday cabins were plainly a form of tourist accommodation. In the course of the judgment it was suggested that the use of the word “residence” in the definition of “dwelling” implied a degree of permanence as a place of abode. While that might often be its meaning, it is not necessarily the meaning in which it is used in the definition of “dwelling”. That is especially so in the case of residential flat buildings and multiple dwellings. The definition of a residential flat building has already been quoted. A residential flat building often contains flats or apartments which are occupied for a short term and it may not be the usual place of residence for the occupant. The same could be said of those who occupy a multiple dwelling which is defined in these terms:
“multiple dwelling” means one dwelling occupied by more than five persons who live independently of one another and share common facilities within that dwelling;
Furthermore, a person may own two dwellings, residing permanently in one which constitutes that person’s domicile but only occasionally occupying the other for short periods. For these reasons, when used in the definition of “dwelling” in the Development Regulations, the word “residence” simply means part of a building in which persons may reside either for a short term or more permanently.
The reasoning in Aedlik was followed and applied in Barrick, a case concerning what the court called six tourist accommodation units. Each unit was a single bedroom with an attached bathroom. Each was plainly a form of tourist accommodation. The decisions in Aedlik and in Barrick do not assist in the resolution of the issues in this application. They are to be readily distinguished from the proposed development.
There remains the question whether the nature of the proposed development is that of serviced holiday apartments. One immediate difficulty is that holiday apartments, be they serviced or not, can as a general rule be classified as a residential flat building which in every sense is a building containing apartments. The fact that the apartments are intended for those taking holidays or the fact that they are serviced does not mean that they are not apartments in a residential flat building. The fact that an office is provided does not in any respect alter the nature of the development. An office is as compatible with a residential flat building that is not intended to be used as holiday apartments as with one that is intended for that use. Here again, it is necessary to view the proposed development objectively. The nature of the development does not turn on the subjective intentions of the applicant. One good reason for that is that the actual use may be different from that intended. Another is that the developer might change the intended use.
Another difficulty is determining what is meant by the epithet “holiday”. What makes a holiday apartment different from an ordinary apartment for the purposes of determining whether, as a matter of town planning, development consent should be granted? Other questions arise. Does the expression “serviced holiday apartments” apply to an apartment owned by a person normally a resident in Adelaide who uses it as a place of recreation from time to time? Does that expression apply where the apartment is let to a person who resides for six months in Port Vincent while working there? None of these considerations alters the clear fact that there is no material difference for planning purposes between an apartment and a serviced holiday apartment. Both form part of a residential flat building. A serviced holiday apartment may be smaller than the kinds of dwellings proposed by this developer. But that is of no material consequence when determining the nature of the development. The constant factor is that serviced holiday apartments are in fact residential flat buildings. Expressed another way, residential flat buildings will contain apartments owned by those who reside permanently in the apartment as well as by those who own the apartment and let it to tenants for short or long terms. There is, therefore, a direct inconsistency between Principle 15 and Principle 16 of this Development Plan.
In their letter that accompanied the development application the developer’s architects sought to persuade the Council that the development should be classified as serviced holiday apartments. Part of that letter has already been quoted. The letter continues:
There will be an occupation timing agreement attached to each apartment which states an individual can only have a nominated number of continuous weeks’ occupancy. This will overcome the concerns with permanent residency and introduce tenancy of the apartments on a commercial basis.
The 9 apartments will have the option to be serviced by local businesses within the town without creating a permanent retail outlet of services on our site. Our client’s research found the majority of visitors to the marina basin are sailors who already have supplies and tourists in need of 1-2 nights’ accommodation. The current commercial retail arrangements that service the marina and the town have proven to be sufficient.
However, there is nothing to show how it is proposed to enforce the so called “occupancy timing agreement”. If the land is divided and each of the units is sold, there is nothing to indicate any means of enforcing that agreement. If it is assumed that community titles are issued when the land is divided and by-laws prescribe the terms of the occupancy timing agreement, those by-laws could later be varied by special resolution of the community corporation: s 12 of the Community Titles Act 1996. The letter has all the hallmarks of an attempt to persuade the Council to assign a more favourable category to the proposed development. In my view it fails. The development should be classified as a residential flat building.
The inconsistency between Principle 15 and 16 cannot be resolved by the usual principles of statutory interpretation. It is not possible to say that either Principle 15 or Principle 16 should prevail over the other as neither is a more special provision than the other. It is clear that the drafter of the Development Plan has failed to have regard to the fact that a building housing serviced holiday apartments is but one form of a residential flat building. Given that the Development Regulations define a residential flat building, the inconsistency must be resolved by applying that definition. As that expression includes a building that comprises serviced holiday apartments and as serviced holiday apartments are, as a general rule, a form of residential flat building, serviced holiday apartments must be treated as a residential flat building and thereby are a non-complying development.
Expressions defined in the First Schedule to the Development Regulations have the meanings there expressed unless that meaning is inconsistent with the context or unless a contrary intention appears: Regulation 3 of the Development Regulations. Furthermore, the definitions may have to yield to the dictates of particular forms of development. For example, the definition of “shop” in the Development Regulations does not prevent the drafter of the Development Plan from dealing with different categories of shops in different ways: Adelaide City Council v Frankham [2002] SASC 162 at [30]-[31]. It is necessary also to remember that the Development Plan is not a statute and is not to be construed in the same way as a statute: St Ann’s College Inc v Adelaide City Corporation [1999] SASC 479; Telstra Corporation Ltd v Mitcham City Corporation (2001) 79 SASR 509 and Frankham v Adelaide City Council (2004) 89 SASR 372 at [20]. However, in situations like the present where a direct inconsistency appears, regard must be had to the genus into which a particular development might fall. Where the proposed development is but one form of a kind of development, especially a kind of development defined in the Development Regulations, the category to which the proposed development is to be assigned will be determined by the kind of development into which the proposed development falls. In that way, there will be a consistent approach to that kind of development. Expressed another way, if that approach is not adopted, there will be an inconsistency of approach to kinds of development that are essentially the same. I repeat, serviced holiday apartments are but one kind of residential flat building. There is no reason why they should not be consistently treated in the Development Plan when determining whether development consent should be granted. Any other approach is likely to lead to an undesirable inconsistency in the planning approach.
For these reasons, the nature of the proposed development is either that of two residential flat buildings or two row dwellings and is, therefore, a non-complying development. Because it is a non-complying development, the Council had to consider first whether it should refuse to assess the application on that ground: s 39(4)(d). If it decided to assess the application it was, for the reasons already expressed, a Category 3 development.
The Council therefore erred in assigning the proposed development to Category 1. The failure of the Council to assign the proposed development to Category 3 materially affects the plaintiff’s rights. It has been denied the ability to make representations to the Council and, if the Council had granted development consent, denied the ability to appeal to the Environment, Resources and Development Court. That is sufficient ground to set aside the grant of development consent.
Notwithstanding that conclusion, I nevertheless proceed to deal briefly with the remaining grounds of the application.
An Invalid Delegation?
The decision granting provisional development plan consent was made by Mr Ainsworth, an employee of the Council, to whom the Council had delegated the power to grant consent to certain kinds of development including those in Category 1.
Where a Council is the relevant planning authority, the power to determine whether to grant development consent must be exercised by the Council’s Development Assessment Panel, by a Regional Development Assessment Panel, or by a person for the time being occupying a particular office or position, provided that person is not a member of the Council: s 34(23) of the Development Act. The power of a Council to delegate the powers and functions conferred on it under the Development Act is prescribed by s 20 of that Act. For present purposes it is necessary to note only subsections (2), (3) and (7) of s 20 which are in these terms:
(2) A delegation –
(a) may be made –
(i) to a particular person or body; or
(ii) to the person for the time being occupying a particular office or position; or
(iii) to a subsidiary established under the Local Government Act 1999; and
(b) must in prescribed circumstances be made to a committee or subcommittee of the Advisory Committee or Development Assessment Commission established by the regulations; and
(c) may be made subject to conditions and limitations specified in the instrument of appointment; and
(d) subject to any other provision of this Act or the regulations, is revocable at will and does not derogate from the power of the delegator to act in a matter; and
(e) in the case of a delegation by the Advisory Committee, the Development Assessment Commission or another authority under this Act – may continue despite a vacancy in the membership of the body.
(3)A power or function delegated under this section may, if the instrument of delegation so provides, be further delegated.
(7)Where a delegation is made –
(a) to a council, or to a body of which a member, officer or employee of a council is a member; or
(b) by a council to an officer or employee of the council, or to a body of which a member, officer or employee of the council is a member…
Those provisions are supplemented by s 34(24) and (26) of the Development Act:
(24) A council may, in connection with the operation of subsection (23) –
(a) make a series of delegations according to classes of development; and
(b) vary any delegation from time to time,
but a council cannot at any time –
(c) act in its own right in a matter that is subject to delegation under the subsection; or
(d) give a direction with respect to the exercise or performance of a power or function under the delegation.
(26)A power or function delegated under subsection (23) may be further delegated (and any such further delegation may be made subject to specified conditions and limitations, is revocable at will and will not derogate from the power of the panel or person making the delegation to act in any matter).
There is, therefore, a wide power to delegate and sub-delegate powers and functions under the Development Act.
At a meeting of the Council on 13 February 2007 the Council made delegations to its Development Assessment Panel and to its Chief Executive Officer. The delegation to the Chief Executive Officer was in these terms:
In exercise of the powers contained in Section 20 of the Development Act 1993 the powers, functions and duties under the Development Act 1993 and the Development Regulations 1993 which were previously delegated by the Council are hereby revoked and the following powers, functions and duties under the Development Act 1993 and the Development Regulations 1993 contained in (Attachment F) are hereby delegated this 6th day of February 2007 to the person occupying the office of Chief Executive Officer of the Council and such powers, functions and duties may be further delegated by said Chief Executive Officer to an officer or officers of the Council. (Emphasis added).
Although the resolution was carried on 13 February 2007 it purported to operate from 6 February 2007. The plaintiff did not stay with that issue. Attachment F listed the powers and functions delegated to the Chief Executive Officer. They included the power to grant or refuse development consent in respect of Category 1 developments.
On 13 February the Chief Executive Officer delegated the functions delegated to him by Council to the following persons:
·Director, Development and Community Services;
·Manager, Building and Development; and
·Building and Development Officer
The power to make that sub-delegation is provided by s 20(3) and by s 34(26) of the Development Act. There is no challenge to the delegation to the Chief Executive Officer. The challenge is to the delegation by the Chief Executive Officer to each of the three persons holding the offices named in the sub-delegation.
The plaintiff challenges the validity of the delegation to Mr Ainsworth as well as alleging that Mr Ainsworth was not a person who had the delegated authority to determine whether to grant development consent.
The first contention was that the power to delegate was limited to “an officer or officers of the Council”. That argument was not developed. In my view, it fails. Properly interpreted, the power to sub-delegate was a power to delegate to a person holding an office in the employ of the Council. The sub-delegation by the Chief Executive Officer was to a person holding an office in the employ of the Council and was, therefore, valid.
The second ground is that the delegation does not include a power to impose conditions. That argument is misconceived and must fail. The Development Act does not authorise any person or body to impose conditions on the grant of the development consent. Instead, by s 42 of the Act it implicitly authorises whoever is making a decision under Division 1 of the Act to impose conditions. Section 42(1) provides:
(1) A decision under this Division is subject to such conditions (if any) –
(a) as a relevant authority thinks fit to impose in relation to the development; or
(b) as may be prescribed by the regulations or otherwise imposed under this Act.
Thus, whoever is acting as the planning authority, be it a Development Assessment Panel or a delegate, has the power to impose conditions. If the delegation of the power to grant development consent to Mr Ainsworth is valid, he had the power to impose conditions.
The third ground on which the plaintiff challenges the delegation is that Mr Ainsworth was not the Manager, Building and Development at the time when he purported to grant development consent to the developer. Mr Ainsworth was employed by the Council as a Building and Development Officer. He was appointed Acting Manager, Building and Development from 9 July 2007 to 17 August 2007 and from 2 October 2007 to 8 February 2008. He was on leave in the period 18 August to 1 October 2007.
This ground reduces to a question of construction, namely, whether a delegation to the Manager, Building and Development includes a person who is Acting Manager of that position. The powers delegated to the Chief Executive Officer are quite extensive. They include powers to grant or refuse development consent with respect to applications
·involving Category 1 developments;
·involving Category 2 development where either no representations had been received or where any representations received had been withdrawn; and
·involving Category 3 development that is not non-complying and where either no representations had been received or where any representations had been withdrawn. It also included other powers.
The determination whether the proposed development is a Category 1 or a Category 2 development affects the rights of neighbours and others affected by the proposed development to make representations concerning the development. As this application demonstrates, an incorrect classification directly affects the ability of a person who has made representations to appeal to the Environment, Resources and Development Court. The exercise of this delegated authority also affects the rights of those making applications for development consent. The delegated powers, therefore, have the power adversely to affect rights of individuals: O’Reilly v Commissioners of the State Bank of Victoria (1983) 153 CLR 1 at 12. Furthermore, to apply the remarks of Mason J in O’Reilly at 19, the power to grant or refuse development consent is not a purely administrative power having no consequences of significance. It is a power the exercise of which involves a substantial area of discretion. There is no administrative difficulty that requires that the Acting Manager be authorised to grant development consent given that the power has been delegated to others. For these reasons, I think that the sub-delegation by the Chief Executive Officer must be strictly construed: cfPerpetual Trustee Company (Canberra) Ltd v Lewis (1994) 119 FLR 38 at 45.
The person who is the Acting Manager, Building and Development is not the Manager, Building and Development. That person may have been appointed on a temporary basis for any number of reasons. One reason could be that the Manager is absent temporarily, either through illness or while taking annual leave. The Acting Manager may not have the skills and qualifications to determine whether planning consent should be granted and, if so, on what conditions. The person who is Acting Manager is not, therefore, the Manager. If it is intended to delegate to the Acting Manager as a person temporarily holding the office of Manager, Building and Development, the delegation must say so.
However, in the particular facts of this case, these issues do not arise because Mr Ainsworth was employed as a Building and Development Officer of the Council. It is not suggested that, when he assumed the office of Acting Manager, Building Development, he no longer was employed as a Building and Development Officer. He was, therefore, at all times a person to whom a valid delegation had been made. The attack upon his authority to decide to grant development consent fails.
Seriously at Variance?
It is implicitly required by s 35(2) of the Development Act that, before a consent is granted, the planning authority must make an assessment that the development is not seriously at variance with the Development Plan: Upham v The Grand Hotel (SA) Pty Ltd (1999) 74 SASR 557 at [146]. In order to discharge the task committed to him by the Development Act, Mr Ainsworth as the Council’s delegate had to perform two tasks. The first was to consider the proposed development against the provisions of the Development Plan: s 33(1)(a) of the Development Act. The second was to consider whether the development was seriously at variance with the Development Plan as required by s 35(2). Thus, two questions arise on this application. The first is whether Mr Ainsworth has directed his mind to the question whether the proposed development is seriously at variance with the Development Plan. The second is whether grounds exist on which the development can be set aside as being seriously at variance with the Development Plan: Upham at [149].
There is no document by which it is possible to determine whether Mr Ainsworth considered whether the proposed development was seriously at variance with the Development Plan. The only document evidencing his decision is the notice of the fact that development consent had been granted. A planning authority does not have to give detailed reasons for its decision. The court must decide whether Mr Ainsworth had regard to all relevant factors by considering the material before him and the decision he made: Upham at [157]. The decision suggests that he did not have regard to the Development Plan. Mr Ainsworth had the report from the Council’s town planning consultants that stated that the proposal was at variance with the Development Plan and should be refused. There is nothing to show that Mr Ainsworth addressed that question. It is reasonable to infer that he simply proceeded on the footing that the proposal was either tourist accommodation or serviced holiday apartments and was therefore a Category 1 development. He, therefore, failed to consider whether the development was seriously at variance with the Development Plan. That is a further ground for setting aside the decision.
Lest I have erred and Mr Ainsworth did consider the question whether the proposed developer was seriously at variance with the Development Plan, I turn to consider whether that decision is valid. The determination of that question does not turn upon the court’s assessment of the question whether the development is seriously at variance with the Development Plan but on whether the consent is invalid because it results from a mistake of law, from reliance upon an irrelevant matter, from a failure to take into account a relevant matter, or if the decision is one that no reasonable authority could properly have reached: Upham at [149]. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39, Mason J warned of the difficulties in determining what are relevant and irrelevant considerations. As that warning is repeated by the Full Court in its judgment in Upham, I do not repeat it but have regard to it. In this case, what is relevant and irrelevant will turn upon the nature of the development disclosed in the development application and the provisions of the Development Plan: Upham at [156]. The Development Plan expressly directs the relevant planning authority, in this case Mr Ainsworth, to the provisions of the Development Plan in both s 33(1)(a) and in s 35(2) of the Act. The factors to which the planning authority must have regard are those prescribed by the Development Plan and, to the extent to which they are applicable, the provisions of the Development Regulations. There is no relevant provision in the Development Regulations. In this case the factors to which the planning authority should have regard are contained in the provisions of the Council’s Development Plan relating to the Commercial (Port Vincent Marina) Zone. I have already referred to the relevant provisions.
It is readily apparent that the intent of this zone is that it should contain business and service activities to serve the day to day needs of those who use the marina and of the visiting public. It is to contain retail and commercial uses to meet their needs. See Objective 1 and Principles of Development Control 1 and 4(g). A residential use of the kind proposed is inconsistent with the clear expression of the manner in which this zone is to be developed. Furthermore, this is the only allotment in the zone now available for development for the intended retail and commercial purposes, as the other allotment is being used for car and trailer parking. If it proceeded, the proposed residential development on this site would entirely defeat the purposes of the zone. It is therefore seriously at variance with the Development Plan.
Conclusion
For these reasons, I made the order setting aside the grant of provisional development consent made by Mr Ainsworth as the Council’s delegate on 18 December 2007.
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