Sames v Mount Barker District Council - [2004] SASC 374

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
SAMES v THE DISTRICT COUNCIL OF MOUNT BARKER
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Vanstone)
25 November 2004
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL
Appeal from the Land and Valuation Division of the Supreme Court - development of shops and associated car parking subject to a Land Management Agreement - the car parking servicing the shops on two adjoining pieces of land - land sold to separate owners - whether new owner of land bound by Land Management Agreement - whether car parking can be considered as development - whether car parking on adjoining land is reasonably incidental to the use of land for shops - whether the person bound by the Land Management Agreement must be the owner of land on which the development is taking place - appeal dismissed.
Planning Act 1982 (SA) s 4(1), s 61(2), s 61(5), s 61(6); Development Control Regulations 1982 (SA) reg 5(1), clause 10(1) of First Schedule, referred to.

SAMES v THE DISTRICT COUNCIL OF MOUNT BARKER
[2004] SASC 374
Full Court: Doyle CJ, Perry and Vanstone JJ

DOYLE CJ: Mr Sames appeals against a decision by a Judge of this Court, dismissing his claim for a declaration.
Mr Sames owns land at Hahndorf. A memorial of an agreement made under s 61(2) of the Planning Act 1982 (“the Act”) was entered on the title of his land before he bought it. By s 61(6) of the Act the agreement binds him as he is a successor in title to the owner who entered into the agreement.
Mr Sames claimed a declaration that the agreement was not authorised by s 61(2), and so the agreement should not have been recorded on the Certificate of Title. His argument is that s 61(2) of the Act authorised only an agreement with a person who was the owner of land on which development for the purposes of the Act was proposed or was taking place. He argues that in the circumstances there was no development or proposed development of the land in question, and accordingly the agreement was invalid.
The Judge found that the agreement was properly made under the Act. Accordingly, he dismissed the action. I agree with the Judge’s conclusions, subject to one point. My reasons follow.
Facts
In 1991 Mrs Cleggett owned two adjoining parcels of land at Main Street, Hahndorf, No.49 and No.51. Mr Cleggett (presumably with her approval) applied in March 1991 to the District Council of Mount Barker for development consent under the Act for a proposed development. The proposed development was the erection of two shops on the land at No.49, with associated car parking at the rear of No.49 and No.51, the entrance to the car parking area being through No.51 and the exit being through No.49.
The Council resolved in April 1991 to grant consent, subject to “the applicants entering into a Land Management Agreement to provide reciprocal car parking rights” over the two pieces of land. The proposed consent was also subject to conditions relating, among other things, to the construction and layout of the proposed parking area.
Later Mrs Cleggett sold the land at No.49 to Mr and Mrs Eibisch.
The Land Management Agreement was entered into in January 1993 by the Council, Mr and Mrs Eibisch in their capacity as the owners of No.49 and Mrs Cleggett in her capacity as the owner of No.51.
The effect of the agreement is that the proposed car parking area will be established in accordance with conditions imposed by the Council on the grant of consent, that the owner of No.49 will maintain the car parking area in a satisfactory condition, and that each owner will permit the area to be used for car parking and for entry to the car parking area and for exit from it. It is implicit in the agreement that the car parking area is to be available for use in connection with the proposed shops at No.49.
The Council then gave its consent to the proposed development, subject to conditions requiring the establishment and maintenance of the car parking area.
A memorial of the agreement was entered on the Certificate of Title for the land at No.51, which was still owned by Mrs Cleggett.
The shops were erected on the land at No.49, and the car parking area was established on the land at the rear of No.49 and at No.51.
Later Mr Sames became owner of the land at No.51. He now denies that he is bound by the agreement, and has brought these proceedings to establish that.
The Issue
The Act has now been repealed. However, transitional provisions to which it is unnecessary to refer have the effect that if the agreement was validly made and registered, it continues to bind Mr Sames.
Section 61 of the Act relevantly provided:
“(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.
…
(5)    The Registrar-General shall, upon the application of the Minister or the council made with the consent of the owner of the land, register such an agreement and enter a memorial of the agreement on the certificate of title, Crown lease, or other instrument of title to the land.
(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.”
Mr Manetta, counsel for Mr Sames, attacks the validity of the agreement. The argument was put in various ways, but ultimately comes down to the question of whether the proposed development involved development on the land at No.51. The submission is that s 61(2) authorises an agreement only if it is with the owner of land on which development occurs.
Mr Manetta argues that the proposed use of the land at No.51 for car parking is not development for the purposes of the Act, and so to the extent that the agreement binds Mrs Cleggett it is not an agreement with the owner of land on whose land development is to occur or is occurring.
He further submits that it is not sufficient for the purposes of s 61(2) that development takes place on the land at No.49. He argues that s 61(2) does not authorise an agreement with the owner of land simply because the subject matter of the agreement relates to development on land owned by another person. It is essential, he argues, that a person bound by the agreement be the owner of land on which development is taking place.
The second aspect of his submission is that any development that did take place was undertaken only on the land at No.49, and so only by Mr and Mrs Eibisch. He further argues that only they had the benefit of the development consent granted by the Council, and that the only development to which the Council has consented is a proposed development on the land at No.49. I record here that the “planning decision notification” is addressed to Mr Cleggett, and refers to the location of the proposed development as being at No.49. It describes the proposed development as “two shops and associated car parking”.
Mr Manetta further argues that the use of the land at No.51 for car parking cannot be regarded as development of the land at No.49. Also, Mrs Cleggett could not be regarded as a person undertaking development.
For all those reasons the agreement with Mrs Cleggett was not an agreement with an owner of land in relation to the development of land of which she was owner.
Much the same argument was put to the Judge below, and he rejected the argument.
Was the proposal for development of the land at No.51?
The proposed development involved the provision of car parking on the land at the rear of No.49 and at the rear of No.51, to be used in connection with the shops to be erected at No.49. The proposed development involved a change of the use of both parcels of land. Mr Manetta conceded that. The proposal for No.49 was development for the purposes of the Act because it involved the erection of a building, and because it involved the change of use of the land: s 4(1) of the Act. Subject to the argument that follows, the proposed development involved a change in the use of the land at No.51, and for that reason was development for the purposes of the Act.
The First Schedule to the Development Control Regulations 1982 identifies “acts and activities in relation to land” that are, by reg 5(1), “excluded from the ambit of the definition of development”. Clause 10(1) of the Schedule provides that the excluded acts and activities include:
“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 argues that the use of the land at No.51 for the parking of cars is a use which would ordinarily be regarded as, and was in fact, reasonably incidental to the use of the land at No.49 for shops, and was for the substantial benefit of the person using that land for shops. Accordingly, the proposed development did not involve acts or activities that constituted development on the land at No.51. I do not accept that submission.
First, I do not agree that the use of land for car parking by customers of shops established on the land is reasonably incidental to the use of the land for shops. It would be surprising, having regard to the impact of the use of land for car parking, if land on which shops are erected could be used for the parking of cars without the relevant planning authority having the ability to determine whether that use is to take place or not. That, of course, is not a decisive factor. But it remains the case, in my opinion, that this is a use of land which would not ordinarily be regarded as reasonably incidental to the use of land for shops. There is simply no reason why the use of land for car parking should be regarded as incidental to the use of land for shops. The fact that land used for shops is often used for car parking does not establish the proposition for which Mr. Manetta argues.
Second, and independently, clause 10(1) cannot be used to excise from a proposed development integral parts of the proposed development. I agree with the Judge that the proposed development involved the erection of shops and the provision of a parking area, that the car parking was an integral part of the proposal, and that the Council would not have granted its consent unless adequate provision was made for car parking. Clause 10 does not enable an applicant for planning consent to avoid the need for a planning consent to anything other than the core of the proposal, and then to argue that everything else is reasonably incidental to that core and does not require consent. I agree with the Judge on this point.
Underlying the submission by Mr Manetta is an approach which involves treating the two parcels of land as a single parcel of land for the purposes of considering the nature of the proposed development. I agree that that is the correct approach. It was a single proposal, for the establishment of shops and car parking on the land in question. The proposed use of the land at No.51 was part and parcel of the proposed development.
It follows from these conclusions that the proposed development involved development on the land at No.51.
The same conclusion would be reached, even if the two pieces of land were to be considered separately, although, as I have indicated, that is not the appropriate approach. If the land at No.51 is looked at in isolation, it cannot be denied that a change of use of that land was proposed. It was to be used for the parking of cars in association with shops on the adjoining land. The proposed change of use was development for the purposes of the Act. The use of the land at No.51 for the parking of cars in connection with shops to be erected on the land at No.49 could not be regarded as incidental to the use of the land at No.51. Nor would it be for the “substantial benefit” of the person using the land at No.51. Viewed in isolation, the proposed use of the land at No.51 does not fall within clause 10(1).
Accordingly, and contrary to the submission by Mr Manetta, the proposed development involved the development of the land at No.51.
Is the agreement with the owner of land on which development was to take place?
For the purposes of considering whether s 61(2) authorised the making of the agreement, attention must be focused on Mrs Cleggett in her capacity as the owner of the land at No.51.
The short answer to the challenge to the application of s 61(2) to the agreement is that the proposed development involved the development of the land at No.49 and, for the reasons indicated by me, of the land at No.51. Mrs Cleggett owned that land, and so the agreement was between the Council and Mrs Cleggett as the owner of land on which development was to take place.
The identity of the applicant for development consent was irrelevant. The applicant might have been an agent for the owners of the land, or might have been a third party proposing to lease the land. Section 61(2) does not operate by reference to the identity of the applicant for planning consent, or by reference to the undertaker of development, but by reference to ownership of land on which development is to take place. It suffices that Mrs Cleggett was the owner of such land.
In any event, Mr Henry, counsel for the Council, argues that the meaning given by s 4(1) of the Act to the expression “to undertake development” in s 46(1) of the Act is so wide that Mrs Cleggett is a person who undertook development of the land at No.51. Section 4(1) of the Act provides that a person undertakes development if, among other things, that person suffers or permits development to take place. Mr Henry argues that as owner of the land at No.51, Mrs Cleggett must have suffered or permitted the car parking area to be established there. I am inclined to agree with this submission, but it is not necessary to decide it.
I agree with a further submission by Mr Henry to the effect that s 61(2) does not require that the development on the land in question be a development for the benefit of the owner of that land, or that the agreement made under s 61(2) be for the benefit of the owner of the land. The only requirement is that development be taking place on the land.
The Judge appears to have decided that s 61(2) applied even if development was not proposed on the land at No.51. He appears to have held that it was sufficient if there was development on the land at No.49, and the proposed use of the land at No.51 (although not development for the purposes of the Act) related to the development on the land at No.49. Mr Henry did not seek to support that conclusion. I respectfully disagree with the Judge in that respect. I consider it clear that s 61(2) requires that the owner who enters into an agreement with the Council be the owner of land on which development of that land takes place. This aspect of the Judge’s reasons was a subsidiary one only, and does not affect the ultimate conclusion.
Conclusion
For those reasons the Judge rightly decided that the Land Management Agreement was authorised by s 61(2) of the Act. The appeal should be dismissed.
PERRY J: In my view, the appeal should be dismissed. I agree with the reasons of the Chief Justice. I have nothing to add.
VANSTONE J: I agree that the appeal should be dismissed and I have nothing to add to the reasons of the Chief Justice.