Sames v District Council of Mount Barker No. Scciv-03-1338

SAMES v DISTRICT COUNCIL OF MOUNT BARKER
[2004] SASC 35
Land and Valuation Division

DEBELLE J In this action the plaintiff applies for a declaration that a land management agreement made pursuant to s 61 of the Planning Act 1982 is ultra vires and thus is void and unenforceable.
The relevant provisions of s 61 of the Planning Act 1982 were in these terms:
“61. (2) A council may enter into an agreement with any person relating to the development, preservation or conservation of land within the area of the council of which that person is the owner.
....
(4) An owner of land must not enter into an agreement under this section unless all other persons with a legal interest in the land consent.
....
(6) Where a memorial of an agreement has been entered under subsection (5), the agreement is, upon transfer of title to the land, binding on, and enforceable by or against, the successors in title to the owner who entered into the agreement.”
The plaintiff was not a party to the land management agreement. He is a successor in title to an owner of land who signed the agreement and is by reason of s 61(6) bound by the agreement unless it is void. I set out the facts leading to the application.
The plaintiff is the successor in title to a married woman named Betty Margaret Cleggett (“Mrs Cleggett”). His land is at 51 Main Street, Hahndorf. It is within the area of the District Council of Mount Barker (“the Council”). The Council is therefore the relevant planning authority.
In March 1991 Mrs Cleggett owned two adjoining parcels of land in Hahndorf. They were the plaintiff’s land at 51 Main Street, Hahndorf and another parcel at 49 Main Street, Hahndorf. The land at 51 Main Street, Hahndorf was comprised and described in Certificate of Title Register Book Volume 3705 Folio 161. A shop was erected on that land. The other parcel of land at 49 Main Street was comprised and described in Certificate of Title Register Book Volume 4057 Folio 451.
A Development Application
On 4 March 1991 Mrs Cleggett applied to the Council for development consent to construct two shops and an associated car parking area on the land at 49 Main Street. The application was made pursuant to the Planning Act, which then regulated and controlled land development in this State. The plan below is a copy of the essential features of the plan which accompanied the development application.
[A copy of this plan will be retained on the Court file]
It will be noticed that the area of land to be used as a car park included part of the land at the rear of the allotment of 51 Main Street. Two car parking spaces straddle the boundary between the two parcels of land. Access to the car park was to be by means of a driveway on one side of 51 Main Street and egress was to be by means of a driveway on one side of 49 Main Street. Although the development application itself did not refer to the land at 51 Main Street, it was quite apparent from the plans that it included that land.
Land Management Agreement Executed
The Council was prepared to grant development consent only if Mrs Cleggett entered into a land management agreement to enable access to the land at 51 Main Street as well as to the land at 49 Main Street. A resolution to that effect was carried by the Council on 15 April 1991. Mrs Cleggett agreed to enter into the land management agreement. However, on 8 January 1993 Mrs Cleggett had transferred the land at 49 Main Street to Mr and Mrs Eibisch. The land management agreement was executed one week later on 15 January 1993 by Mrs Cleggett, Mr and Mrs Eibisch, and the Council. The agreement was, therefore, signed by each of the owners of 49 and 51 Main Street.
It will have been noticed that s 61(4) of the Planning Act requires the owner of land intended to be the subject of a land management agreement to obtain the consent of each person with a legal interest in the land. Other persons had interests in both parcels of the land. I find that all persons with an interest in both 49 and 51 Main Street, Hahndorf consented to the land management agreement. There is no dispute as to that fact.
On 18 January 1993, an application was lodged to register a memorial of the land management agreement on the certificate of title for both the land at 51 Main Street as well as the land at 49 Main Street, Hahndorf. It was ultimately registered on 5 November 1993. On 25 January 1993 the Council granted development consent.
Mr and Mrs Eibisch proceeded to construct the shops the subject of the development consent. On 28 August 2003 Mr and Mrs Eibisch sold the land at 49 Main Street to Mr and Mrs Hatzinikolas.
In late 1994, Mrs Cleggett sold the land at 51 Main Street to the plaintiff. The transfer was registered on 6 October 1994.
Council Enforces Agreement
The Council has reminded the plaintiff of the fact that he is bound by the terms of the land management agreement. In April 2002 it prevented him from erecting a fence along the boundary at the rear of 49 and 51 Main Street. In October 2002 it required him to remove a bollard restricting access to the driveway which provided access to the car park. From December 2002 until March 2003 there have been issues concerning repaving of the car parking area and driveways. The plaintiff has during this time asked the Council to rescind the land management agreement but the Council has refused to do so. The plaintiff has sought legal advice. On 25 March 2003, his solicitors wrote to the Council asserting that the agreement is invalid. The Council did not agree. These events have caused the plaintiff to commence this action.
A Change in Legislation
The Planning Act 1982 was repealed and replaced by the Development Act 1993. The Development Act came into operation on 15 January 1994 after the land management agreement had been registered and after the grant of Development Consent to Mrs Cleggett. Upon the repeal of the Planning Act, land management agreements made under that Act were deemed to be agreements made under the corresponding provisions of the Development Act and to have the same force and effect as before the commencement of the Development Act: see s 20 of the Statutes Repeal and Amendment (Development) Act 1993. Section 57 of the Development Act corresponds with s 61 of the Planning Act. If valid, this land management agreement, therefore, remains in full force in effect. By virtue of s 61(6) of the Planning Act and of s 57(7) of the Development Act the land management agreement is binding on the person who is for the time being the registered proprietor of the land subject to the land management agreement. If valid, this land management agreement binds the plaintiff.
The Alleged Invalidity
Mr Manetta, who appeared for the plaintiff, pointed to the fact that s 61(2) of the Planning Act permitted a Council to enter into a land management agreement only in relation to the “development, preservation or conservation of land” within the area of the Council. He submitted that the car parking on the plaintiff’s land did not constitute development. In his submission the proper method of securing rights over the plaintiff’s land was by easement.
In order to sustain his submission that car parking was not development, Mr Manetta pointed to Regulation 5 and the First Schedule of the Development Control Regulations 1982. The definition of “development” in s 3 of the Planning Act expressly stated that it does not include an act or activity in relation to land that is excluded by regulation from the ambit of the definition. Regulation 5 provided that acts or activities listed in the First Schedule were excluded from the definition of development. For present purposes it is necessary only to refer to Clause 10(1) of the Schedule which was in these terms:
“10. Use of Land and Buildings
(1) The use of land and the use of any lawfully-erected building which is ordinarily regarded as, and is in fact, reasonably incidental to any particular use of the land and the building, or the land or the building, and which is for the substantial benefit of the person or persons who, in any capacity, is or are making use of the land and the building, or the land or the building.”
Mr Manetta also relied on the fact that, at the time when the land management agreement was executed, Mrs Cleggett was no longer the owner of the land upon which the development of the two shops was proposed.
There are several flaws in the argument advanced by Mr Manetta. In order to determine this action, it is sufficient to deal with two or three of his arguments. It is not necessary to deal with each of them. I turn first to the meaning and effect of s 61 of the Planning Act.
The premise upon which Mr Manetta founds his argument is that the expression “relating to the development... of land” in s 61(2) requires that the agreement be concerned only with the proposed development and not with anything which relates to that development. He reads “development” in s 61(2) strictly and applies the definition of that term in s 3 of the Planning Act so as to exclude anything other than the development itself. The argument fails to give effect to the plain meaning of the words in s 61(2) and to their clear intent. An agreement relating to development of land may deal with any aspect of that development. It would in fact be quite absurd to require that the agreement deal only with the development itself for that would limit the utility of such agreements in a way unintended by the Parliament. Thus, a land management agreement may relate to any aspect of a proposed development. Even if it is assumed that the car parking did not constitute development as defined in s 3 of the Planning Act, it was nevertheless something which the Council wished to ensure was put in place. That is clear from the fact that it required a land management agreement. The Development Plan had car parking standards for shops. Thus, the Council could impose requirements as to car parking in the land management agreement.
It was an essential part of Mr Manetta’s argument that s 61(2) applied only to an agreement made between a council and the owner of land who was also the developer. A land management agreement could not, he said, be made between an owner of land who is not also the developer. So, he said, as Mrs Cleggett had sold the land with the benefit of the development consent to Mr and Mrs Eibisch, it was not competent for the Council to make a land management agreement with her.
There is nothing in s 61(2) or elsewhere in the Planning Act which requires such a conclusion. Section 61(2) is expressed in wide terms. The power of the Council to enter into an agreement relating to the development of land is not limited to an agreement with the developer of that land. Instead, the Council is invested with power to enter into an agreement with any person relating to the development of land within the area of the Council. The Council may enter into an agreement with the developer or any other person.
The proposition may be illustrated by an example. The land which is the subject of the development application may include land owned by the developer and land owned by another person. There may be aspects of the overall development which a council wishes to ensure are put in place and will remain in place notwithstanding later changes in ownership of the land. The council can achieve that in respect of land owned by the developer by imposing conditions on the land owned by the developer. However, in the case of development consents granted under the Planning Act, those conditions bound only those who had the benefit of the development consent: s 47(7) of the Planning Act. (It is not necessary to decide whether the position is the same under s 42 of the Development Act.) The owner of the other land will not necessarily have the benefit of the development consent. If, as here, that land is used for car parking, there is no benefit to the owner of the other land. Thus, the council must have other means of being able to bind not only that owner but also successors in title. Section 61 gives a further power to a council in addition to the power to grant or refuse development consent and to impose conditions on the grant of development consent. If the development is on land owned by the developer and on land owned by another, whom I will call “B”, the council may impose conditions on the developer/owner but will have no power to impose conditions on B. Even if B agreed to the imposition of the conditions, those conditions would not bind successors in title of B as B does not have the benefit of the development consent. Section 61 was enacted for the purpose of enabling a council to enter into arrangements with B so as to bind the successors of B.
In this case the Council entered into an agreement with both Mr and Mrs Eibisch and Mrs Cleggett. Mr and Mrs Eibisch were the persons who owned the land at the time when the land management agreement was executed. The shops were to be erected on that land and some of the car parking and the means of egress from the car park was to be provided on that land. They had the benefit of the development consent. They were in effect the developer. Mrs Cleggett was the owner of the land on which the rest of the car parking was provided as well as the driveway providing ingress to the car park. Mrs Cleggett did not have the benefit of the development consent. The Council could not impose conditions which bound both her and her successors in title. She was willing to enter into the land management agreement. For the reasons given above, s 61(2) invested the Council with the power to enter into a land management agreement with both Mr and Mrs Eibisch and Mrs Cleggett. The agreement relating to the car parking on Mrs Cleggett’s land was related to an important aspect of the proposed development. Even if it is assumed that Mr Manetta’s argument is correct and the car parking on 51 Main Street did not constitute development, the Council had the power to enter into this land management agreement with both Mrs Cleggett and Mr and Mrs Eibisch. For the reasons already given, s 61(2) invested the Council with power to make an agreement dealing with such matters.
The argument that an easement would have been a preferable means of binding the land at 51 Main Street failed to appreciate the purpose of the land management agreement, namely, that the Council can enforce the terms and conditions of the land management agreement. The Council would not be able to enforce an easement granted by Mrs Cleggett to Mr and Mrs Eibisch. Further, a memorial of the land management agreement is registered and gives notice to successors in title in the same way as the registration of an easement.
For these reasons the land management agreement is valid. It follows that the plaintiff’s claim must be dismissed.
That is sufficient to dismiss the plaintiff’s claim. However, for completeness, I deal with Mr Manetta’s contention that the car parking area on Mrs Cleggett’s land did not constitute development. There are two reasons for rejecting that contention.
The first turns on the proper interpretation of Clause 10 of Schedule 1 of the Development Control Regulations 1982. Clause 10 deals with the uses which may be incidental to the use of the land or any lawfully erected building. Clause 10, therefore, presupposes the existence of a lawful land use and a lawfully erected building. So, where development consent has been granted for a particular use of land, any uses which are ordinarily regarded and are in fact reasonably incidental to that use are permitted without the necessity of obtaining a fresh development consent. When Mrs Cleggett applied for development consent, there were no shops on the land at 49 Main Street. She was seeking development consent (and no doubt also building approval) in order to ensure that the shops would be lawfully erected. No doubt, she provided the car parking areas in order to ensure that development consent would be granted. The Development Plan which applied in the Council area had standards for car parking for shops and other kinds of commercial uses. It is plain that the Council would not have granted development consent unless the car parking was in its view adequate. The car parking was an integral, not an incidental, use of the land. That is also apparent from the fact that the Council required the land management agreement before it would grant development consent. In the absence of lawfully erected shops, Clause 10 had no operation. It operated only after the development had been completed in compliance with the development consent and any conditions of that consent. That development included the car parking areas. In these circumstances Clause 10 can only be concerned with what constitutes reasonably incidental use of the development as approved. Mr Manetta misconceived the purpose of Clause 10. It is not intended to displace standards prescribed in the relevant Development Plan. Instead, its purpose is to authorise those activities which are reasonably incidental to an approved use of land or buildings.
The second flaw in the argument is that it entirely overlooks the fact that the development for which Mrs Cleggett sought development consent was not confined to the two shops but was to develop two parcels of land for the shops, roadways and associated car parking. The plans which formed part of the development application depict shops on the land at 49 Main Street and car parking on that land as well as on the land at 51 Main Street. In addition, there is a driveway for ingress to the car park on the land at 51 Main Street and a driveway for egress from the car park on 49 Main Street. The development must be considered as a whole. It is entirely inappropriate to seek to isolate one aspect of the proposal so that it does not constitute part of the development. As noted in the previous paragraph, Mrs Cleggett provided the car parking spaces in order to ensure that development consent would be granted. In addition, the provision of car parking constituted a change of use of the land and so was development as defined by s 3 of the Planning Act. Furthermore, the adequate provision of car parking is an integral part of retail and commercial development. That is not only a planning truism but is demonstrated by the fact that the relevant Development Plan contained standards for car parking for such development as shops, hotels, motels, offices, warehouses and other kinds of commercial development.
When a development application is made, it is necessary to determine what is the form of development and on what land the development is proposed: see Regulation 13 of the Development Control Regulations 1982 (now Regulation 16 of the Development Regulations 1993) and Australian Waste Pty Ltd v Compaction Application Tips Pty Ltd (2001) 115 LGERA 117 at 122 ‑ 124, on appeal, 118 LGERA 215 at 224 ‑ 225. In this case, the clear answer to those questions was that the development comprised shops, car parking and means of access to and from the car park and that the whole of 49 Main Street and part of 51 Main Street was the land used for that development.
For all of these reasons, I dismiss the plaintiff’s claim.

[2004] SASC 35

12 February 2004