Polites v City of Holdfast Bay & Anor (No 2) No. Scgrg-98-1304 Judgment No. S6874

Mr Con Polites, a resident of Somerton Park, sought a judicial review of the City of Holdfast Bay's decision to classify a proposed development by S J Salisbury Constructions Pty Ltd as a Category 1 development. The plaintiff argued that this classification deprived him of the right to make representations and appeal to the Environment, Resources and Development Court. The central issue was whether the proposed development, which included a two-storey detached dwelling and two two-storey semi-detached dwellings on an L-shaped parcel of land, qualified as a Category 1 development under the Development Regulations 1993. The court examined the definitions of "detached dwelling," "semi-detached dwelling," and "site" in the Regulations, determining that the proposed development did not fit the strict criteria for a semi-detached dwelling because the curtilage of each dwelling included the driveway, which is not typically considered part of the curtilage. Additionally, the court found that the development did not qualify as a Category 1 development because it did not consist of a single type of development as required by the Regulations. Consequently, the development had to be classified as a Category 3 development, entitling the plaintiff to make representations and be heard by the Council. The court issued an order prohibiting the Council from proceeding with the application until it properly classified the development and notified the plaintiff accordingly.

The final orders of the court were that the City of Holdfast Bay be prohibited from proceeding with the development application by Salisbury Constructions until it correctly classified the development as a Category 3 development, gave notice to Mr Polites, and otherwise complied with the Development Act 1993 and the Development Regulations 1993. This ensured that Mr Polites could exercise his rights to make representations and appeal as provided by law.