South Australian Housing Trust v City of Burnside - [2006] SASC 107

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
SOUTH AUSTRALIAN HOUSING TRUST v CITY OF BURNSIDE & ORS
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Anderson and The Honourable Justice Layton)
13 April 2006
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS
Appeal against findings, declaration and orders of a single judge hearing an application for judicial review against the decision of the Development Assessment Commission (DAC) granting provisional development plan consent - single judge held proposed development wrongly characterised by DAC as Category 2 - consideration of classification of development as Category 2 or 3 - consideration of notice requirements of a Category 3 development - consideration of relevant Development Plan - meaning of “dwelling” - Held: development proposal properly assigned to Category 3 - appeal dismissed.
Development Act 1993 s 38, s 39(4), s 86(1)(b); Development Regulations 1993 reg 20, reg 29, Schedule 3A, A1: Schedule 10 2 A(c)(ii); Acts Interpretation Act 1915 s 26, referred to.
Walsh v Tattersall (1996) 188 CLR 77; Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Dwelling"

SOUTH AUSTRALIAN HOUSING TRUST v CITY OF BURNSIDE & ORS
[2006] SASC 107
Full Court: Duggan, Anderson and Layton JJ

DUGGAN J. This is an appeal against the decision of a single judge sitting on an application for judicial review of a decision of the Development Assessment Commission (“the Commission”).
The main issue in the appeal is the proper construction of Principle 12 of the Principles of Development Control for Mixed Use (Glenside) Zone set out in the Development Plan of the City of Burnside (“the Development Plan”). Principle 12 is concerned with the categorisation of various kinds of development by reference to the categories of development in s 38 of the Development Act 1993 (“the Act”). The content of procedural rights and duties such as the right to appeal and the requirement to give notice of development applications depends upon the category into which a particular application falls. The appeal raises the question as to which category applies to the development proposal in this mater.
The appellant, the South Australian Housing Trust (“the Trust”) applied to the City of Burnside (“the Council”) for provisional Development Plan consent to construct three residential flat buildings on land at Glenside. According to the proposal, each building would have three storeys. Two of the buildings would comprise six flats for each building and the third building would comprise nine flats.
The application was considered by the Commission, which is the relevant planning authority. The development was opposed by the Council and Victoria Grove Retirement Village Pty Ltd (“Victoria Grove”), the owner of adjoining land.
The Commission determined that the proposal was for a Category 2 development and granted provisional development plan consent on 23 June 2005.
On 2 September 2005, the Council and Victoria Grove applied to this Court for judicial review seeking an order in the nature of certiorari quashing the decision of the Commission. In the alternative, they sought a declaration that the grant of provisional development control was invalid.
The judge decided that the proposed development was a Category 3 development. His Honour ordered the Trust to give notice in writing to those persons who made representations opposing the proposed development notifying them that the Commission had wrongly classified the development as a Category 2 development instead of a Category 3 development, and that they had a right of appeal to the Environment Resources and Development Court against the Commission’s decision to grant provisional development plan consent.
The present appeal is against the finding, declaration and orders of the judge.
Reference has been made to s 38 of the Act which is concerned with public notice and consultation in relation to proposed developments. Regulations made under the Act or a Development Plan may assign a form of development to Category 1 or Category 2. A development that is not assigned to a category is taken to be a Category 3 development for the purposes of the section.
Notice of an application for a Category 2 or Category 3 development must be given to an owner or occupier of adjacent land. In the case of a Category 3 development, notice must also be given to any other owner or occupier of land which, in the view of the relevant authority, would be directly affected to a significant degree by the development if it were to proceed. Notice of a Category 3 development must also be given to the public generally. Section 86(1)(b) of the Act provides that a person who is entitled to be given a notice of decision in respect of a Category 3 development may appeal to the Environment, Resources and Development Court.
If, as the trial judge found, the proposed development is a Category 3 development, then there has not been compliance with the notice requirements applicable to that category. Furthermore, the right of appeal which exists in the case of a Category 3 development would apply.
The Development Regulations 1993 (the “DevelopmentRegulations”) do not assign a form of development of this nature to a particular category. It is necessary, therefore, to have regard to Principle 12 of the plan. It provides as follows:
Public Notification
12 Those kinds of development listed in Table Bur/6, together with the following kinds of development are assigned to Category 1:
Dwelling
Fence
Outbuilding for use in association with a dwelling
except where:
(a)the dwelling or outbuilding is two or more storeys in height (where “two storeys” is defined as a total of one habitable floor level directly above another, not including an understorey garage), or more than 6.5 metres building height above natural ground level;
(b)the development has a solid wall located on a side or rear boundary, but excluding a fence or wall of less than two metres building height above natural ground level;
(c)the proposed finished ground floor level of the dwelling or outbuilding, or the level of any outdoor paved surface adjacent thereto, is more than 0.6 metres above natural ground level at any point;
(d)the development will result in more than one dwelling within the area of the site of the development at the time the development is proposed;
in which case the development is assigned to Category 2.
The learned judge held that Principle 12 was not intended to deal with a proposal such as the present, which involves the construction of multiple dwellings. His Honour concluded that the expression “dwelling”, as it first appears in Principle 12, is used in the singular and that para (d) of the exceptions is concerned with a proposal for the construction of a single dwelling on land on which there is an existing dwelling. He gave the example of a proposal for a “granny flat” to be constructed on a site on which a dwelling was already erected. He held that, as the present development of itself involved the erection of multiple dwellings on a vacant site, it was not assigned to Category 1 or 2 by Principle 12 and, therefore, fell into Category 3.
His Honour was also of the view that, in any event, this development did not come within the definition of “dwelling” in the DevelopmentRegulations, but was a “residential flat building” as defined in the regulations. This was a further reason for concluding that the proposal had not been assigned to Category 1 or 2.
The appellant argued that his Honour construed the Principle too narrowly. It was argued that “dwelling” refers to both single and multiple dwellings. Whilst it was conceded that the single judge’s example of a “granny flat” was a development which came within Principle 12 and, further, that it came within para (d), so also did a proposal for multiple dwellings on a vacant site. In each case, the proposed development fell within para (d) because it would “result in more than one dwelling within the area of the site of the development”.
Mr Roder, for the appellant, challenged the view that the reference to “dwelling” in the first part of Principle 12 was to be read in the singular. He placed reliance on the phrase “kinds of development” in the introductory words of Principle 12. He argued that the reference to “dwelling” simply identified a genus of development and was not intended to refer only to a single dwelling. Furthermore, he relied on the rule of construction in s 26 of the Acts Interpretation Act 1915 that a word in the singular number is to be construed as a word in the plural number.
“Dwelling” is defined in Schedule 1 of the DevelopmentRegulations as “a building or part of a building used as a self-contained residence”. The emphasis in the definition is on the structure, namely, a building or part of a building. The definition contemplates two types of structure. The first is a building which is a self-contained residence. The second is a part of a building which is a self-contained residence. Whereas, in the latter case, a building may contain a number of self-contained residences, the part of the building which comprises each residence is a “dwelling”. In other words, “dwelling” is defined in such a way as to relate it to a self-contained residence. The word is not used as a plural noun, but refers to a single residence.
The singular nature of a “dwelling” is illustrated by the following definitions of particular types of dwelling set out in the Development Regulations.
group dwelling means one of a group of two or more detached buildings, each of which is used as a dwelling and one or more of which has a site without 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;
. . .
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;
semi detached 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 two dwellings erected side by side, joined together and forming, by themselves, a single building.
(emphasis added)
As I have said, a building may contain more than one self-contained residence. However, such a structure is not referred to in the DevelopmentRegulations as a “dwelling” or “dwellings”. This kind of development is referred to in the Regulations as a “residential flat building” and is defined as “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”.
The distinction between “dwelling” and “residential flat building” is maintained in the regulations: see Schedule 3A, A1; Schedule 10 2A(c)(ii).
The wording and content of paras (a) and (c) of Principle 12 reinforce the argument that the Principle is concerned with a single dwelling. Paragraph (b) is neutral in that it relates to whether the proposed development incorporates a solid wall on a side or rear boundary.
The exception in para (d) is the focal point in the present matter. According to the appellant’s argument, the development can result in more than one dwelling within the area of the site of the development, either because the proposal is for a dwelling on a site on which a dwelling is already constructed, or because the proposed development is for multiple dwellings.
The defined concept of a dwelling as a self-contained residence is readily applicable to para (d). It is clear that if a self-contained residence is proposed for a site on which a self-contained residence is already constructed, this will “result in more than one dwelling within the area of the site”. On the other hand, I do not accept that the description of the development in para (d) was meant to include in a roundabout way a kind of development which is defined with some precision in the development regulations as a “residential flat building”.
It follows, in my view, that “dwelling” in Principle 12 refers to a single dwelling and that the development in the present case does not come within the exception set out in para (d) of Principle 12.
I have referred to the argument based on s 26 of the Acts Interpretation Act 1915. The manner in which this provision is to be applied was considered by Gaudron and Gummow JJ in Walsh v Tattersall (1996) 188 CLR 77. Their Honours drew attention to the reasons of the Privy Council in Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651 at 656:
Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole. (See Sin Poh Amalgamated (H.K.) Ltd v Attorney-General of Hong Kong [1965] 1 WLR 62.) In that case a test was indicated which often may be helpful. In the judgment of the Board delivered by Lord Pearce it was said:
“The Interpretation Ordinance was intended to avoid multiplicity of verbiage and to make the plural cover the singular except in such cases as one finds in the context of the legislation reason to suppose that the legislature, if offered such amendment to the bill, would have rejected it [1965] 1 WLR at p 67.”
It is my view that, for the reasons which I have given, a contrary intention appears in the present case.
Reference has also been made to Mr Roder’s argument that the listing of “dwelling” under the heading “kinds of development” in Principle 12 does no more than identify a genus of development and that no inference can be drawn from the fact that the word is in the singular. He argued that the emphasis is on the genus, not whether there is one or more than one dwelling.
The phrase “kinds of development” is used frequently in planning regulations and development plans. Another example of its use is in Principle 11 of the Development Plan, where certain kinds of development are listed as non-complying.
As has been pointed out, s 38(2) of the Act authorises the assignment of forms of development to Category 1 or to Category 2. The kinds of development which are specified in Principle 11 and Principle 12 are necessarily generic in nature. The applicability of each of the Principles in relation to a specific proposal for development will depend, in the first place, on whether the proposal comes within one of the listed genera.
However, the fact that the term “dwelling” is used in the Principle in a generic sense does not detract from the conclusion that it is to be interpreted as referring only to a single dwelling.
Mr Roder also made submissions as to what he argued were absurd consequences arising from the interpretation that multiple dwelling did not fall within Category 2. He argued that some multiple dwellings may have a lower impact on the surrounding environment than a large tall single detached dwelling and yet the former would be in Category 3 and the latter would be Category 2. No doubt many examples, particularly extreme examples, can be conjured in relation to either interpretation, but it must also be taken into account that proposals are considered having regard to particular zoning requirements and not simply by reference to Development Regulations standing alone.
For these reasons, I am of the view that the development proposal is not assigned to Category 2 by reason of para (d) of Principle 12 and that it, therefore, falls into Category 3.
The parties also presented argument on an issue arising out of the variation of the development proposal at a time when the commission was still considering it. After receiving objections from the Council and others, the Commission invited the Trust to vary the proposal. The proposal was then varied and provisional development plan consent was given.
The point raised involves the interrelationship between s 39(4) of the Act and reg. 20 of the DevelopmentRegulations. Section 39(4) provides that a relevant authority may permit an applicant to vary an application provided that the essential nature of the proposed development has not changed. Regulation 20(3) provides that, if an application is varied, the relevant authority may consider the application without the need to repeat various actions required by the development regulations, including the requirement to give public notice. However, these provisions apply only if the authority is of the opinion that the variations are not substantial.
Mr Roder submitted that this provision in reg. 20 was invalid because it qualified rights and discretions conferred by the Act. It was submitted in the alternative that the amendments which were made could not be regarded as “substantial” within the meaning of reg. 29.
Mr Henry, for the respondent, pointed out that s 39(4) did not specify any requirement as to public notice and consultation. He said those requirements were to be found in s 38. According to the argument, notice of any amendment to the proposal would have to be notified under that section.
Mr Henry then submitted that reg. 20 simply regulates the procedure to be adopted if an applicant is permitted to vary an application. As part of that procedure, there is a dispensation from readvertising. The dispensation only applies if the relevant authority is of the opinion that the variations are not substantial. So understood, there is no inconsistency between the Act and the regulations.
The single judge found it unnecessary to resolve this issue in the light of his conclusion as to the proper categorisation of the proposal. As I have reached the same conclusion as his Honour on the question of categorisation, I also consider that it is unnecessary to decide this issue.
I would dismiss the appeal.
ANDERSON J. I have read the reasons of Duggan J and I agree that the appeal should be dismissed for the reasons expressed by him.
LAYTON J. I have had the opportunity of reading the reasons for decision of Duggan J. I agree that the appeal should be dismissed and with his Honour’s reasons.