Polites v City of Holdfast Bay & Anor (No 2) No. Scgrg-98-1304 Judgment No. S6874
[1998] SASC 6874
•25 September 1998
POLITES v CITY OF HOLDFAST BAY and S J SALISBURY CONSTRUCTIONS PTY LTD (No 2)
[1998] SASC 6874
Land & Valuation Division
Debelle J
Application for judicial review
A Development Application
The plaintiff, Mr Con Polites, lives in a house at the corner of The Esplanade and Wilkinson Avenue, Somerton Park. His land has a frontage to both The Esplanade and Wilkinson Avenue. The land is within the area of the City of Holdfast Bay (“the Council”). The land is surrounded on the other two sides by an L-shaped parcel owned by S J Salisbury Constructions Pty Ltd (“Salisbury Constructions”). Salisbury Constructions intends to construct a substantial residential complex on its land. This application stems from a desire by the plaintiff to make representations to the Council concerning the proposed development.
Salisbury Constructions first applied to the Council for development consent to construct two semi-detached dwellings each of two storeys and two detached dwellings each of two storeys on the land. The plaintiff lodged a representation opposing the development. The Council refused the development application. Salisbury Constructions appealed to the ERD Court. The appeal is pending.
Salisbury Constructions has since lodged a fresh application with the Council for development consent to develop its site. It has deleted one of the two-storey detached dwellings. The development the subject of the second application is depicted in a diagrammatic form in the plan below. The plaintiff seeks to make representations to the Council concerning this second application.
| Allotment Boundary |
| LOT 1 |
| PROPOSED RESIDENCE |
| LOT 2 |
| Fence |
| Fence |
| Fence |
| PROPOSED SEMI-DETACHED RESIDENCES |
| POLITES RESIDENCE |
| Fence |
| DRIVEWAY |
As can be seen, the land which Salisbury Constructions seeks to develop has frontages to both The Esplanade and Wilkinson Avenue, Somerton Park. It is proposed to construct a two-storey dwelling on the Wilkinson Avenue frontage and a pair of two-storey semi-detached dwellings on The Esplanade frontage. The land on which these three dwellings will be erected is at present comprised in two allotments. Each allotment is the subject of a separate Certificate of Title. The two allotments are shown on the plans as Lots 1 and 2. The boundary between the allotments is shown by the broken line. The plaintiff’s residence is at the corner of Wilkinson Avenue and The Esplanade.
It is common ground that the proposal is for neither a complying nor a non-complying development but is for a use which requires the consent of the Council. It is an agreed fact that no plan of land division has been lodged to re-divide the land. In other words, the development proposal relates to one large L-shaped parcel of land and there is no evidence of any intention to create a strata plan and strata titles.
The Plaintiff Objects
The plaintiff wishes to make representations to the Council and be heard on those representations. His ability to do so depends on how the development is classified. The Council has determined that this second application is for a Category 1 development. If that is correct, the plaintiff is unable to lodge a representation opposing the development and has no right to appeal to the ERD Court. The plaintiff says that the proposed development is a Category 3 development. If that is correct, he may lodge a representation, the Council must hear the plaintiff in support of his representation and, if the Council grants development consent, the plaintiff has a right to appeal to the ERD Court.
An Application for Judicial Review
In this application for judicial review the plaintiff seeks an order in the nature of prohibition prohibiting the Council from proceeding to deal with the second application by Salisbury Constructions for development consent while it classifies the development in Category 1.
The Entitlement to be Heard
The classification of kinds of development and the right to make representations to a planning authority in respect of a proposed development, the right to be heard in support of a representation and the right of appeal to the ERD Court are matters which are all regulated by the Development Act 1993 and the Development Regulations 1993 made thereunder.
The scheme provided by the Development Act and the Regulations creates three categories of development. They are designated Categories 1, 2 and 3. The question whether a person is entitled to notice of a development application and to make representations to the relevant planning authority turns on the category into which the intended development falls. Similarly, the question whether a person is entitled to appeal against the decision to the ERD Court turns on the category into which the development falls.
Section 38(1) of the Act establishes the three categories. The statutory provisions which assign intended development to Categories 1 or 2 are the Development Regulations and the Development Plan: s38(2)(a) of the Act. Any development which is not assigned a category is deemed to be a Category 3 development: s38(2)(b). It is common ground that, if the development proposed by Salisbury Constructions is not a Category 1 development, it must be dealt with by the Council as a Category 3 development.
In the case of those developments which are within Category 1, the Act does not require that notice be given of the development application and there is no right to make representations to the planning authority or to appeal from the planning authority’s decision: s38(3). There is, however, nothing to prevent a planning authority from giving notice and hearing any representation.
In the case of those developments which are within Category 2, the planning authority must give notice of the development application to
(a) the owner or occupier of each parcel of adjacent land; and
(b) any other person of a prescribed class: s38(4).
As the plaintiff is the owner of land adjoining the site of the development proposed by Salisbury Constructions, it is unnecessary to examine the nature of the prescribed class referred to in paragraph (b) above. A person who receives notice of a Category 2 development is entitled to make representations to the relevant planning authority concerning the proposed development: s38(7). The planning authority has a discretion whether to allow the representor to be heard in support of the representation: s38(10)(a).
In the case of those developments which are within Category 3, the planning authority must give notice of the application to
(a) an owner or occupier of each piece of adjacent land;
(b) any other person of a prescribed class;
(c).... any other owner or occupier of land which, according to the determination of the planning authority, would be directly affected to a significant degree by the development if it were to proceed; and
(d)... the public generally: s38(5).
Any person in those groups has the right to make a representation to the planning authority in respect of the proposed development: s38(7), and the authority is obliged to hear any representor who wishes to be heard in support of the representation: s38(10)(b). Persons who have been given notice of a Category 3 development and who have lodged a representation are entitled to appeal to the ERD Court against a decision granting development consent to the application: s38(12).
As already mentioned, the Council has determined that the application lodged by Salisbury Constructions is for a Category 1 development. The plaintiff submits that the Council’s decision is wrong. He contends that upon a proper construction of the Development Regulations the development is neither a Category 1 nor a Category 2 development, so that it is a Category 3 development. It is, therefore, necessary to examine the terms of the Development Regulations.
Determining the Categories
Regulation 32 and Schedule 9 prescribe the various forms of development which are assigned to Category 1. Regulation 32(1) provides:
“Subject to sub-regulation (2), the various forms of development listed in Part 1 of Schedule 9 are assigned to Category 1 for the purposes of section 38 of the Act.”
In the circumstances of this application, sub-regulation (2) has no application. Thus, it is necessary to turn to Schedule 9. It is common ground that the question whether the proposed development is a Category 1 development turns on the meaning of para 2(1)(a) of Schedule 9. According to para 2(1)(a), unless the development is a non-complying development, Category 1 developments include the construction of
“(i).. a detached dwelling or a single storey dwelling or single storey dwellings; or
(ii) a two-storey semi-detached or row dwelling.”
It is common ground that the proposed development is not a non-complying development. The Council and Salisbury Constructions submit that the development application is for a detached dwelling and a semi-detached dwelling and is within para 2(1)(a). The plaintiff contends that there are two reasons why the development proposal is not a detached dwelling or a two-storey semi-detached dwelling so that it does not fall within that classification. He relies on the definition of “detached dwelling”, “semi-detached dwelling” and “site”.
Schedule 1 of the Development Regulations defines the terms used in the Regulations. I set out the definitions of “detached dwelling”, “semi-detached dwelling” and “site”:
“‘detached dwelling’ means a detached building comprising one dwelling on a site that is held exclusively with that dwelling and has a frontage to a public road, or to a road proposed in a plan of land division that is the subject of a current development authorisation.
‘semi-detached dwelling’ means a building -
(a).... occupying a site that is held exclusively with that dwelling and has a frontage to a public road or to a road proposed in a plan of land division that is the subject of a current planning authorisation; and
(b)... comprising one of two dwellings erected side by side, joined together and forming, by themselves, a single building.
‘site’ means the area of land on which a building is built, or proposed to be built, including the curtilage of the building, or in the case of a building comprising more than one separate occupancy, the area of land on which each occupancy is built, or proposed to be built, together with its curtilage.”
It is necessary also to note the definition of “dwelling”.
“‘dwelling’ means a building or part of a building used as a self-contained residence.”
It will be noticed that the definitions of a detached dwelling and a semi-detached dwelling do not refer to the allotment on which the dwelling is to be built but to the site. Thus, the fact that the site comprises two allotments is irrelevant.
For the purpose of determining whether the proposed development is a Category 1 development, it is convenient to begin with the two attached dwellings said to comprise a semi-detached dwelling. Each of the dwellings has a frontage to The Esplanade; each is a self-contained residence and is, therefore, a dwelling as defined; they are erected side by side; and they form a single building. Thus, almost all of the criteria in the definition are satisfied. The remaining question, which is the critical question in this case, is whether each dwelling comprises a site which is held exclusively with that dwelling. If it does not, it is not a semi-detached dwelling as defined, albeit that in common parlance it may be regarded as a semi-detached dwelling.
The Curtilage
The difference between the parties turns on what constitutes the curtilage of each of the two attached dwellings. The determination of that question will in turn determine whether each dwelling occupies a site held exclusively with that dwelling. The plaintiff contends that the curtilage in each dwelling includes the driveway which provides access from Wilkinson Avenue. The defendants submit that the driveway is not part of the curtilage. They contend that the area at the side and at the front of each dwelling, which is fenced, is the curtilage of each dwelling and that the curtilage extends no further.
The word “curtilage” is a term of art or, if not, is the next best thing: Nourse LJ in Dyer v Dorset County Council [1989] 1QB 347 at 358. As Nourse LJ also noted in the same decision, the derivations mentioned in the Oxford English Dictionary (French, courtil - a little court or garth; Italian, corte; Medieval Latin, cortile or curtile - a court or yard) rather suggest that “curtilage” started life as a word describing a small area enclosed by walls or buildings, the smallness of the area being emphasised by the diminutive suffix “age”, as in village. The need for physical enclosure of the area having disappeared in current usage, the dictionary definition is for most present day purposes adequate:
“a small court, yard, garth or piece of ground attached to a dwelling house, and forming one enclosure with it, or so regarded by the law; the area attached to and containing a dwelling house and its outbuildings”.
The definition in the Oxford Companion to Law is consistent. It reads:
“a courtyard, yard, garden or piece of ground near and belonging to a house”.
The meaning of the term has not altered in its usage in Australia. The Macquarie Dictionary refers to the old French definition “courtil - little court” and defines “curtilage” in these terms:
“The area of land occupied by a dwelling and its yard and outbuildings, actually enclosed or considered as enclosed”.
It should be noted that the term “curtilage” is not confined to dwelling houses. Other buildings may have a curtilage.
What constitutes the curtilage of a dwelling house is a question of fact in each case: Methuen-Campbell v Walters [1979] 1 QB 525 per Goff LJ at 538. As will be seen, although dictionary definitions refer to an enclosed area, it is not necessary for the curtilage to be enclosed. In many cases the curtilage of a dwelling is its garden. But it may extend to and include other areas and buildings. So, in Methuen-Campbell v Walters at 543-544, Buckley LJ said:
“In my judgment, one corporeal hereditament to fall within the curtilage of another, the former must be so intimately associated with the latter as to lead to the conclusion that the former in truth forms part and parcel of the latter. There can be very few houses indeed that do not have associated with them at least some few square yards of land, constituting a yard or a basement area or passageway or something of the kind, owned and enjoyed with the house, which on a reasonable view could only be regarded as part of the messuage and such small pieces of land would be held to fall within the curtilage of the messuage. This may extend to ancillary buildings, structures or areas such as outhouses, a garage, a driveway, a garden and so forth. How far it is appropriate to regard this identity as parts of one messuage or parcel of land as extending must depend on the character and the circumstances of the items under consideration. To the extent that it is reasonable to regard them as constituting one messuage or parcel of land, they will be properly regarded as falling within one curtilage; they constitute an integral whole.”
That passage was approved by the Court of Appeal in Dyer v Dorset County Council (supra) and in Lewis v Rook [1992] 1 WLR 662 at 670. See also Hislop v Spurr [1983] WAR 180 at 182.
The meaning of “curtilage” has also been examined in Royal Sydney Golf Club v Federal Commissioner of Taxation (1955) 91 CLR 610 at 625-626 and in Milro Pty Ltd v Associated Securities Ltd (1970) 92 WN (NSW) 173 at 178-179. In the latter decision, Hope J noted (at 179) that the tests for determining what land falls within the curtilage of a building are:
“What land subserves the purposes of the building? What land actually or supposedly contributes to the enjoyment of the building for the fulfilment of its purposes?”
That passage was followed and applied by the Court of Appeal in Queensland in Grasso v Stanthorpe Shire Council (1996) 91 LGERA 429 at 434.
It must always be remembered that the meaning of curtilage may vary according to the statutory context in which it is used: Milro Pty Ltd v Associated Securities Ltd (supra) at 178-179; Dyer v Dorset County Council (supra) at 355.
The question whether a driveway forms part of the curtilage of a dwelling will depend on the facts and circumstances of each case. In those instances where the dwelling has a frontage to a street or road and the rear abuts a lane which provides access for vehicles to the land, the lane is not part of the curtilage. However, in those instances where a driveway provides the only means of entry from a street or road, the driveway may form part of the curtilage. It will be a question of fact and degree in each case. In this case, there is no means of access for motor vehicles from the two attached dwellings to The Esplanade. The driveway to Wilkinson Avenue provides the only means of access for motor vehicles to and from the two attached dwellings. It is clearly intended that the driveway is to be used by the owner or occupier of both of the attached dwellings. It is reasonable to infer that parts of the driveway will be used for manoeuvring vehicles as well as driving to and from Wilkinson Avenue. The driveway is provided for and thus contributes to the use and enjoyment of the dwellings. It will be an important part of the use and enjoyment of the dwellings. It, thus, forms part of the curtilage.
For these reasons, it is not possible to identify a site which is held exclusively with each of the proposed attached dwellings. Thus, although in ordinary parlance the two attached dwellings in this proposal would be regarded as semi-detached dwellings, they are not semi-detached dwellings as defined by the Regulations. If it is suggested that this is an artificial result, it is a result which is required by the technical and somewhat artificial manner in which the statutory definitions are expressed. Since these attached dwellings are not semi-detached dwellings within the meaning of the Development Regulations, the proposed development does not come within para 2(1)(a) of Schedule 9 and is not a semi-detached dwelling.
It is relevant to add that the construction for which the defendants contend produces the result that, so long as it is possible to identify a site held exclusively with a dwelling, Council will not be required to give notice to adjoining owners or occupiers no matter how many dwellings will be constructed on a parcel of land. That is an absurd proposition. It sets planning controls at nought. Such a result could not have been intended. The conclusion I have reached is consistent with the objects and purposes of the Development Act and the Development Regulations.
It is relevant also to note that the definition of “site” in the Development Regulations has a use which goes beyond its use in the definition of these different kinds of development. When calculating such matters as the floor area ratio or open space ratio of buildings, reference will be made to the area of the site or to the unbuilt portion of the site. Thus, when calculating those ratios it may be necessary to include a driveway on an allotment of land as part of the area of the site or the unbuilt portion of the site. In other words, a driveway on an allotment of land has a different significance in this context than a street or lane at the front or rear of an allotment. The statutory context in which the term “site” is used points to the conclusion that the driveway is part of the curtilage.
An Alternative Approach
The same conclusion can be reached by another route. The proposed development is for a two-storey detached dwelling and for what is described as two semi-detached dwellings each of two storeys. It is one development on an L-shaped parcel of land. A careful reading of para 2(1)(a) shows that in order to qualify as a Category 1 development, the proposal must be to construct one of four kinds of development, namely, a detached dwelling or a single storey dwelling or a group of single storey dwellings or a two-storey semi-detached or row dwelling. Thus, if one or more of these separate kinds of development are grouped together, the development does not qualify as a Category 1 development. The only group of dwellings which might constitute a Category 1 development is a group of single storey dwellings. In other words, effect must be given to the use of the disjunctive “or” in para 2(1)(a). Para 2(1)(a) is expressed as a series of alternatives and it is not intended that it should permit a composite development other than a group of single storey dwellings. On any view it does not contemplate a development consisting of two kinds of two-storey dwellings. Had it been intended that a developer could group together a combination of the alternatives, para 2(1)(a) would have been expressed in different terms.
The fact that the definitions of detached dwellings, dwellings, semi-detached dwellings and row dwellings require reference to be had to the site of each and not to an allotment does not affect this conclusion. At the very least, effect must be given to the fact that two quite different kinds of development are identified in sub-paras (i) and (ii) of para 2(1)(a) with the consequence that a development comprising elements of both paras (i) and (ii) is not a Category 1 development. The definitions cannot override the clear statutory intention expressed in sub-paras (i) and (ii). As this proposal does contain elements of both paras (i) and (ii), it is not a Category 1 development.
There are policy reasons which reinforce the conclusion. A group of single storey dwellings will, as a general rule, have considerably less effect on those occupying adjoining parcels of land than a group of two-storey dwellings. One obvious difference is the likely effect upon privacy. It is, therefore, less likely that Parliament would limit the rights of occupiers of adjoining land in respect of a development proposal for a group of two-storey buildings.
This conclusion stands notwithstanding the fact that it was open to Salisbury Constructions to have made two separate applications on two separate allotments for an almost identical development. On one view of the matter, the developer should not be penalised for making one application instead of two. However, it cannot be overlooked that the application is for a residential complex ignoring allotment boundaries. In that respect, Salisbury Constructions seeks to derive a benefit from the Development Regulations and, in particular, from Schedules 1 and 9. It has contended that the effect of the Regulations leads to a particular result because of the manner in which it makes this application. However, for the reasons already expressed, it does not lead to the result for which Salisbury Constructions contends.
For these additional reasons, the proposal does not qualify as a Category 1 development.
Conclusion
There are, therefore, two means by which one reaches the conclusion that the development proposed by Salisbury Constructions does not fall within para 2(1)(a) of Schedule 9 of the Regulations and is not a Category 1 development. It is common ground that it is not a Category 2 development. It must, therefore, be classified as a Category 3 development. The Council is, therefore, required by s38(5) of the Development Act to give notice of the development application to the plaintiff and the plaintiff has a right to make representations to the Council and be heard in support of those representations.
There will, therefore, be an order in the nature of prohibition prohibiting the Council from hearing or determining or otherwise dealing with the development application. The effect of the order is that the Council cannot deal with the application in any way unless and until it has classified the development as Category 3, has given notice pursuant to s38(5) of the Development Act, and otherwise acts in accordance with s38(5).
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