Urban Construct Pty Ltd v City of Holdfast Bay
[2006] SASC 201
•13 July 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
URBAN CONSTRUCT PTY LTD v CITY OF HOLDFAST BAY
[2006] SASC 201
Judgment of The Full Court
(The Honourable Justice Nyland, The Honourable Justice Sulan and The Honourable Justice Layton)
13 July 2006
LOCAL GOVERNMENT - TOWN PLANNING
Appeal from the Environment, Resources and Development Court of South Australia. Application to demolish one of a pair of semi detached dwellings - refusal by Council confirmed by ERD Court - Residential (Foreshore) Zone - total demolition of a building complying development in the zone - whether demolition of one dwelling total demolition and therefore complying - nature and impact of proposed development on amenity considered - objectives for policy areas within zone - no evidence as to proposed replacement of building in the event of demolition - appeal dismissed - held application was for partial demolition of building and therefore non-complying.
Development Act 1993 s 4; Development Regulations 1993 Schedule 4, Part 1, s 1(1)(c), referred to.
Urban Construct P/L v City of Holdfast Bay [2005] SAERDC 55 (5 July 2005), discussed.
City of Mitcham v Freckmann & Ors (1999) 74 SASR 46; City of Mitcham v Freckmann (No 2) (2000) 76 SASR 145; Prostar v Petroleum Products (1998 - 1999) 72 SASR 383; Transfield v Adelaide Pty Ltd v Corporation of the City of Port Augusta (1982) 76 SASR 145, considered.
URBAN CONSTRUCT PTY LTD v CITY OF HOLDFAST BAY
[2006] SASC 201Full Court: Nyland, Sulan and Layton JJ
THE COURT: The appellant applied to the City of Holdfast Bay Council (“the Council”) to demolish one of a pair of semi-detached two-storey dwellings situated at No. 3 and No. 5 College Street, Glenelg. The Council refused to grant provisional development planning consent for the demolition of No. 3. The appellant appealed to the Environment, Resources and Development Court (“the ERD Court”) who confirmed the decision of the Council and dismissed the appeal. The appellant now appeals to this Court against that order of dismissal.
The premises at No. 3 College Street were vacant at the time of the hearing before the ERD Court but were formerly an occupied dwelling. They are separately owned from the premises at No. 5 College Street (the remnant building) and the two premises are divided by a common wall and in the roof area by plasterboard. The owner of No. 5 objected to the proposal to demolish No. 3. There did not appear to be any structural reasons for the demolition of No. 3 but it is clear that the proposal was intended to make way for further development of the site. No evidence was provided to the ERD Court as to what that future development might be, nor as to when it might occur.
The land, upon which the premises are situated, is located in Policy Area 4 of the Residential (Foreshore) Zone (“the Zone”), as shown on Map HoB/5 of the Holdfast Bay (City) Development Plan (“the Development Plan”). The total demolition and removal of a building is listed as a complying form of development. The Development Regulations provide that the total demolition and removal of a building is a complying development in respect of a Development Plan.[1]
[1] Development Regulations 1993, Schedule 4, Part 1, s 1(1)(c).
The decision of the Council
Upon initial consideration of the application, the Council concluded:
·The partial demolition of a building did not satisfy the requirements of Table HoB/5 and therefore could not be considered as complying development in that it did not involve building works constituting “the total demolition and removal of a building” in accordance with 1(c); and
·The partial demolition of a building was not a listed form of development in Table HoB/6 or under Schedule 9 of the Development Regulations.
The Council referred the application to the Council’s Development Assessment Panel (“the Panel”). The applicant was requested to provide a survey by an accredited licensed surveyor to verify the location of the party wall and front veranda posts.
The Panel resolved to refuse the application.
In its reasons for refusal, the Council determined that the development was not in accordance with the intent of the Development Plan. The Council specifically referred to the lack of information about a replacement development, noting:
·The partial demolition is a kind of development to be considered on its merits and assessed against all the relevant provisions of the Development Plan. No approval for a replacement development has been sought. It is unclear how long number 3 will remain vacant and the exposed end of number 5 will be visible. The demolition should be considered in conjunction with assessment of the replacement building.
·While the zone anticipates more intensive development of suitable sites than a two storey building, it does not follow that a future application will be approved which increases return on the land. In the meantime, the site of the demolished portion of the building would have little or no return.
·There is case law which supports looking at demolition only in conjunction with the replacement building or new use.
In addition, the Council noted that the demolition of house No. 3 changed the use of the site, including the house at No. 5, which ceased to be a semi-detached dwelling. The Council noted that no approval had been sought for work that needed to be carried out at No. 5, and that the partial demolition proposal did not adequately address the implications for the front veranda post located partly on No. 3 and No. 5 College Street.
Relevant statutory provisions
Section 4 of the Development Act1993 (“the Act”) defines development to include “building work”. “Building work” is defined to include the “demolition of a building”. Section 4 also defines the word “building” to mean “a building or structure or portion of a building or structure …” unless the contrary intention appears. These definitions are also applicable to a Development Plan.
The Development Plan provides for the Residential (Foreshore) Zone which contains relevant Objectives and Principles.
Relevant Zone Objectives of the plan are as follows:
Objective 1: Accommodation of detached and semi-detached dwellings, with row dwellings, multiple dwellings and residential flat buildings of low, medium and high densities in suitable areas.
Objective 6: Accommodation in Policy Area 4 of high buildings for predominantly residential use, including tourist accommodation, to a maximum height of 12 storeys above natural surface level, excluding lift service levels.
Objective 7: Retention of the heritage character of parts of the zone, especially along South Esplanade in Policy Areas 1 and 3.
Objective 8: Protection of the amenity of land in the vicinity of development.
Relevant Zone Principles are:
4. In Policy Area 4:
(a) no building should have more than 12 storeys above natural surface level, excluding lift service levels; and
(b) the average site area per dwelling in residential development should not be less than 80 square metres…
Complying Development
19Those kinds of development listed in Table HoB/5 are complying in the Residential (Foreshore) Zone.
Table HoB/5 provides for complying development specifically in relation to Building Works and includes in section 1:
(c) the total demolition and removal of a building
The decision of the ERD Court
The original proposal lodged by the appellant was amended to be for “the demolition of the dwelling…being one side of the building containing a pair of semi detached dwellings”.[2] It was characterised and assessed as being a “partial demolition of Building”[3] and so argued before the ERD Court; counsel for the appellant conceding that the proposal was non-complying.[4]
[2] AB 349.
[3] AB 350.
[4] Transcript of Proceedings, Urban Construct P/L v City of Holdfast Bay (SAERDC, Judge Trenorden, Commissioner Hodgson and Commissioner Koukourou, 14 February 2005) 5.
As to whether it was a complying development pursuant to the Act, the ERD Court stated:
It is clear from Zone Principal 19 and Table HoB/5 that had the entire building constituting the premises identified as 3 and 5 College Street been the subject of the application to demolish and remove, the development would have been of a complying kind and therefore the planning authority would have been obliged to grant consent: see s 35 Development Act.[5]
[5] Urban Construct P/L v City of Holdfast Bay [2005] SAERDC 55,[9].
The Court held that because both the Development Regulations and the Development Plan refer to the “total” demolition and removal of a building as a complying development, demolition of a part of a building was not a complying development. The Court considered that the word “total” excluded a partial demolition of a building as a complying development. The Court said:
Even if building as used in the relevant Development Plan generally includes a reference to part of a building in accordance with the definition in s 4 of the Development Act, in our view it is clear from the wording of the relevant item in Table HoB/5 that the intention is that the demolition and removal of only an entire building is complying development.[6]
[6] Urban Construct P/L v City of Holdfast Bay [2005] SAERDC 55,[11].
The Court concluded that the fact that the demolition of the entire building constituting No. 3 and No. 5 College Street, would be a complying development for which the planning authority would have been obliged to grant consent, did not support the application for the demolition of only one of those premises. The Court said:
… the appellant can derive no support from the fact that the demolition of the whole of the building would have been complying development.[7]
[7] Urban Construct P/L v City of Holdfast Bay [2005] SAERDC 55,[10].
The Court considered the proper approach to the assessment of the proposed development by reference to City of Mitcham v Freckmann & Ors.[8]In that case, Debelle J, with whom Doyle CJ and Duggan J agreed, said:
In cases such as this, where the proposed development is neither a complying nor a non-complying development, that is to say, where the Plan neither permits nor prohibits the proposed development, the task of the planning authority is to weigh the benefits and detriments, in other words, to weigh “the pros and the cons” of the proposed development by reference to the Plan. Ultimately, the planning authority must make a judgment whether the proposal will be permitted. If it is to grant the application, it must be satisfied that there are sufficient reasons for that decision, reasons which are based on acceptable principles of planning and the relevant provisions of the Plan. That judgment will have regard to the factors mentioned above. Thus, a proposed development might be approved if it is conducive to the objectives and desired character of the zone in which it is to be sited. It will be relatively easy in some cases to decide that the proposal is quite compatible with the amenity of the locality. In other cases, that test will be more difficult. It will be a question of fact and degree in every case, after weighing all relevant considerations, whether the proposed development should be approved.[9]
[8] (1999) 74 SASR 56.
[9] (1999) 74 SASR 56, 63.
The ERD Court proceeded on the basis that there was no presumption, either in favour of or against the proposed development, and that it should assess the proposed development on its merits, having regard to the Development Plan and then exercising its judgment as to whether to refuse or grant consent. In doing so, the Court considered the Development Plan, identified the relevant provisions of it having regard to the Zone Objectives, and assessed whether the proposed development was conducive to the desired character and amenity of the Zone.
The ERD Court determined that relevant matters to be considered included the appearance of the remnant building and whether the demolition would give rise to any structural or safety issues concerning the stability of the remnant building.
The Court referred to the need for “make good” works to enable No. 5 to function as a stand-alone building. The Court considered two proposed options to make good the remnant building and found that neither option was of great moment in terms of the resulting impact on visual amenity.
The Court held that the proposed demolition of part of the building would have a detrimental effect on the amenity of the land in the vicinity and referred to the fact that the remnant building would have a hipped roof at the western end and a gable at the eastern end.
In relation to the effect on the amenity of the surrounding area, the Court said:
The western end of College Street, in amenity terms, according to Mr Wohlstadt “is at the point of transition between a streetscape of good and historic character at the western end and mediocre character at the eastern”. In our view, the amenity of the western end of College Street is not particularly high, with the principal contribution to the amenity of this part of College Street being contributed by the subject building. Should half the building be demolished, with no replacement building but only vacant land resulting, it follows that there will be a negative impact on the amenity of this part of College Street. The demolition of half of the building with no replacement building would allow views from properties on the eastern frontage of Percival Street across the subject land to the imposing car parking station at the rear of the subject land. We do not accept that this prospect would enhance the amenity of the area. Indeed, it would be detrimental, in visual amenity terms, particularly for the occupants of land presently enjoying views of the subject land.
The problem lies in the proposal to demolish half of a building, with no replacement structure. Even if we accept that the remaining building would not look odd or unusual, the demolition of half a building which makes a positive contribution to the amenity with no replacement development, would result in an impairment of the amenity of the land in the vicinity of the subject land.[10]
And further:
Not only is the proposal contrary to the desired character, it is also likely to be detrimental to the existing character of the locality. Development should strive to achieve the desired character for the zone or policy area, or at least not be detrimental to the existing character of the locality (Council Wide Principle of Development Control 49). To encourage the proposed development would not be consistent with good planning.[11]
[10] Urban Construct P/L v City of Holdfast Bay [2005] SAERDC 55,[42]-[43].
[11] Urban Construct P/L v City of Holdfast Bay [2005] SAERDC 55,[47].
The Court concluded:
The proposed development is not consistent with the desired character for the Zone or Policy Area 4.
… it is clear that the impact of the proposed demolition on the amenity of land in the vicinity of the subject land would be detrimental. To uphold the appeal would not be consistent with good planning. The appeal should not be upheld. The decision of the Council is confirmed.[12]
[12] Urban Construct P/L v City of Holdfast Bay [2005] SAERDC 55,[57].
In the course of the proceedings in the ERD Court, the respondent endeavoured to establish that there was a heritage character that applied to the relevant part of the Zone or, in the alternative, that the building or the site upon which it stood was of heritage significance. Those arguments were rejected by the Court and no issue arises with respect to that aspect of the matter in this appeal.
The Court also rejected an argument that the proposal was hypothetical.
Submissions to the Full Court
Despite the concession made in the ERD Court, the appellant endeavoured to argue before this Court that the Court had erred in finding that the development was not complying.
Mr Hayes QC, counsel for the appellant, put two major arguments. The first was that total demolition and removal of “part” of the building was total demolition and removal of a building within the meaning of Table HoB/5. He submitted that the word “total” was linked to the extent of the demolition and did not refer to the building. Hence, he contended that the total demolition of one of the semi‑detached dwellings was a complying development.
Mr Hayes’ second argument was that the proposed demolition in this case was a total demolition of a “building” and not simply the total demolition of “part of a building”. This argument was that each semi-detached dwelling was a building and therefore the proposal to totally demolish one of those dwellings would be a compliant proposal.
In summary therefore it was argued that the proposal was a complying proposal, subject to a further requirement to “make good” the remaining semi‑detached building being of itself a non‑compliant development.
Neither of these arguments had been addressed before the ERD Court at the time of its hearing and indeed the non-compliance was conceded. The respondent, through its counsel Mr Walsh QC, argued in response that the appellant should not now be permitted to put a different case from that which it put to the ERD Court and that it was bound by the conduct of its case at the hearing.[13]
[13] Prostar v Petroleum Products (1998-1999) 72 SASR 383.
In this case the matters raised by the appellant for the main part concern matters of legal interpretation although they include certain factual aspects. The Court therefore considered that it was appropriate to hear the appellant and to determine the issue having regard to these fresh arguments. The respondent also made submissions in reply to the arguments without apparent embarrassment.
As to the first of Mr Hayes’ arguments it is relevant to emphasise that s 4 of the Development Act 1993 defines the word “building” to mean the inclusion of a portion of building unless the contrary intention appears. As previously referred to in these reasons, the semi‑detached dwellings are in Policy Area 4 in the Zone and the clear objective is to allow demolition of buildings to accommodate high buildings for predominately residential use including tourist accommodation up to a maximum height of 12 storeys, provided other relevant principles and objectives are also considered. Table HoB/5 must be read in that context.
HoB/51(c) as previously indicated, provides that “the total demolition and removal of a building” is complying development. The word “demolition” in its ordinary meaning is a noun derived from the verb demolish which is referable to destroying, pulling down or utterly ruining a building.[14] Therefore the word demolition combined with removal adds emphasis to the word demolition referring to complete destruction of a building. We reject the submission of Mr Hayes that the word “total” in that context, is referring to the characteristic of the extent of demolition when the word by itself incorporates destruction. The word would be superfluous.
[14] The Macquarie Dictionary 3rd Edition p.575.
In our view whilst under s 4 of the Development Act a building may include a part or portion of the building, in the overall context of the objectives of the zone, it would make little sense for a demolition of either a portion or a part of a building to be an action which would be a compliant development. It would not enable the objectives of the zone to be achieved. The word total is linked to the fact that in the context of HoB/5, the word “building” is not intended to include a portion or a part of a building but the total or entire building. It would make little sense if a proposed development included the total demolition of part of a building such as a verandah or a garage and that such demolition could be regarded as complying development within the meaning of HoB/5. We therefore reject the first interpretation proffered by the appellant.
As to the second argument, this is one which requires consideration as to whether the two semi‑detached dwellings should be viewed together as a building, or whether each of the dwellings should be separately characterised as a building.
In considering this aspect, it is not necessary for us to reflect on the numerous permutations or possibilities of various forms which structures take, such as row dwellings, multiple dwellings or various forms of residential buildings, in order to decide all potential structural contexts in this case. In the circumstances of this case it appears to us that the two dwellings together form a building. The semi‑detached dwellings share common aspects such as roofing, gabling, balustrading, party walls and potentially aspects of their foundation.[15]
[15] See reports of Mr McBean from Wallbridge & Gilbert dated 3 February 2005 at AB 291-299 and further report of 30 May 2005 AB 354-355 as well as the statement of Mr Gregory Vincent at AB 304.
Therefore in our view the proposal for development was for the demolition of part of a building which becomes in the context only a partial demolition of the building and it was therefore not a complying proposal. This was the manner in which the ERD Court approached it and did so correctly.
The appellant also submitted that the Court’s finding that the amenity in the locality was already low should have supported the view that the development should be permitted. The Court relied on the already low amenity of the area to support its decision.
The appellant relied on a number of factors to support its contention that the ERD Court had erred, apart from the argument that the demolition was a complying development. Those factors included:
(a)The Court ought to have found that it was likely that the vacant land was not a permanent state of affairs.
(b)There was a lack of evidence before the Court regarding views across the land from the east of Percival Street. The evidence only established that one resident had any such view. It is doubtful that any other residences on Percival Street had significant views across the subject land.
(c)The effect of the visibility of the rear of the car park ought to have been assessed against the large-scale development envisaged in the Policy Area, the scale of development already visible to residences in the locality, both behind and adjacent to the subject land and the poor existing amenity of the locality.
In our opinion, there is no inconsistency between the finding of the ERD Court that the demolition of No. 3 College Street would be contrary to the desired character of the area when the total demolition of No. 3 and No. 5 College Street would have been a complying development. The fact that the proposal was not a complying development meant that the Court had to consider the proposal against the principles and objectives of the plan. The Court had a substantial body of evidence on which to base its findings, which included a visit to the premises and the general locality. Considering that the visual amenity of the area surrounding the development is not particularly high, and that no evidence was offered concerning proposed redevelopment, it is not surprising that the Court found that the demolition of one half of a building, which made a positive contribution to the amenity, leaving the remaining half with an altered appearance, would result in a further impairment to the amenity of the land in that area. On the other hand, the creation of a completely vacant block with an unobstructed view might in some circumstances be considered less detrimental in visual amenity terms.
The appellant did not call any evidence as to the proposed replacement for No. 3 College Street in the event of demolition. If that evidence had been before the Court, the Court’s concerns relating to the impact on the amenity might well have been alleviated. Further, there was no evidence as to when any future development might occur, so the Court was not in a position to make any findings as to how long the land might remain in its partially vacant state.
The ERD Court is a specialist court. The Court appears to have carefully considered the proposal and determined it on its merits. This Court has observed in a number of cases that it will be reluctant to interfere with the ERD Court’s conclusions upon essentially planning issues. As Debelle J stated in City of Mitcham v Freckmann (No 2):[16]
The Council has not been able to demonstrate that in any respect the Environment Court has made an error of law. That Court had to make a planning judgment whether consent should be granted. In making that judgment on this occasion, it has had regard to the relevant provisions of the Development Plan and to all relevant factors. It has not had regard to irrelevant factors. Although, as I will note shortly, there are some features of the Environment Court’s reasoning which might be criticised, they do not affect the final outcome. This Court is reluctant to interfere with the Environment Court’s conclusions upon essentially planning issues. It will interfere only where the court has made an identifiable egregious blunder, has made a demonstrable error of fact or principle, or the circumstances are in some other respect quite exceptionable. None of those conditions apply to this case. This Court is reluctant to substitute its planning opinion for that of the Environment Court and will be minded to do so only where the appellant is able to demonstrate some fundamental departure from proper planning principles: Ampol Road Pantry Pty Ltd v Brighton City Corporation (1993) 62 SASR 165 at 173. This is a borderline case.[17]
[16] (2000) 76 SASR 145.
[17] (2000) 76 SASR 145.
In Transfield v Adelaide Pty Ltd v Corporation of the City of Port Augusta,[18] Wells J said:
From the very beginning of this Division, the Court has been insistent that it is only in exceptional cases that it will interfere with conclusions of that kind. There have been far too many grounds of appeal claiming that the Board gave too much or too little weight to this feature or that feature of the “relevant matters” referred to by sub-s. (6) of s. 27 of the Act. In general, the Land and Valuation Division does not sit to hear purely planning issues re-argued, unless the Board have plainly made an identifiable and egregious blunder, or have misdirected themselves in law, or circumstances are, in some respect, quite exceptional. Appeals to this Court are not rehearings. I hope that these remarks will be borne in mind by those asked in the future to advise on the desirability of appeals.[19]
[18] (1982) 76 SASR 145, 148.
[19] (1982) 29 SASR 467, 480.
In our opinion, no error of law has been demonstrated. The complaints of the appellant are that the ERD Court failed to give sufficient weight to factors which are essentially matters that relate to planning issues. No error of fact or principle has been demonstrated.
In our opinion, no basis has been established which would require this Court to interfere with the conclusions reached by the ERD Court.
In our opinion, the appeal should be dismissed.
The respondent has served a notice of alternative contention but in view of the order for dismissal of the appeal it is unnecessary to deal with that aspect of the matter.
0
3
1