Verdouw v City of Unley

[2001] SASC 63

VERDOUW v CITY OF UNLEY
[2001] SASC 63

Full Court:  Olsson, Debelle & Williams JJ

1................ OLSSON J....... I have had the benefit of reading the judgment of Debelle J in draft.  I agree, for the reasons which he has expressed, that this appeal should be allowed.  I also agree with the orders which he proposes.

2................ DEBELLE J.... Central to this appeal is the desire of the appellant to be able to make representations to the Corporation of the City of Unley (“the Council”) concerning the respondent’s application to erect a carport on adjoining land and, if the application is granted, to appeal to the Environment Resources and Development Court.  As will be seen, the question for determination is whether the carport is a Category 1 or a Category 3 development.

1. The Development Act 1993 provides for rights to make representations to a planning authority in relation to an application for consent to develop land. However, a right of objection does not exist in relation to all applications for development consent. The question whether the right to make representations exists and, if it does, the extent to which that right may be pursued depends upon how the proposed development is classified. Three categories of development are prescribed by the Development Act.  They are called Categories 1, 2 and 3.

2. The classification of different kinds of development into those three categories is effected by s 38(2) of the Development Act, by Regulation 32 of the Development Regulations 1993 and by Schedule 9 of the Regulations. Schedule 9 prescribes those developments which are classified as Category 1 or 2. Any development which is not assigned to either Category 1 or 2 is deemed to be a Category 3 development: s 38(2)(b) of the Development Act.  The statutory régime is explained in detail in Polites v City of Holdfast Bay (No 2) (1998) 72 SASR 475 at 478 – 479. It is common ground that the carport is not a Category 2 development. Thus, for present purposes, it is sufficient to note that there is no right to make representations in relation to a proposed Category 1 development. However, in the case of an application for a Category 3 development, notice must be given to the public and to persons directly affected by the development and those persons and members of the public have the right to make representations to the planning authority, to be heard by the planning authority in support of those representations, and, if development consent is granted, to appeal to the Environment Resources and Development Court. Thus, it is important to the parties to determine whether the proposed carport is a Category 1 or a Category 3 development.

3. The appellant and her family reside in a detached dwelling at Lynton Avenue, Millswood.  Their neighbours are Mr and Mrs Mere who also reside in a detached dwelling on an allotment immediately adjoining the appellant’s house to the west.  A carport was erected on the eastern side of the Meres’ house.  The Meres decided to demolish the existing carport and replace it with a considerably larger carport, 13.5 metres long and 3.5 metres wide.  The roof of the carport is a pitched gable roof which is 5 metres high at the highest point of the gable.  They applied to the Council for development consent.

4. The Council classified the proposed development as a Category 1 development.  On 26 July 1999 the Council granted both development plan consent and building rules consent.  The appellant contends that the application should have been classified as a Category 3 development.  She has instituted various proceedings to seek to set aside the grant of development consent.  It is unnecessary to follow the course of those proceedings.  On 23 August 2000 the appellant applied to a single judge of this Court for judicial review seeking a declaration that the Council should have treated the proposed development as a Category 3 development and for an order in the nature of certiorari quashing the grant of provisional development plan consent.  Her application was dismissed.  From that decision she appeals to this Court.

5. To determine into which category the development falls, it is necessary to examine the Development Regulations 1993 and in particular Schedule 9 of those Regulations and the Council’s Development Plan. It is first necessary to determine whether the proposed development is a complying development, a non-complying development or neither: see Schedule 9.

6. The land owned by the Meres is located in a Residential A560 Zone as prescribed by the Council’s Development Plan.  According to the plans lodged on behalf of the Meres when applying for development consent, the carport will extend to the common boundary between the Meres’ land and the appellant’s land.  Principle 5 of the Principles of Development Control for this Residential A560 Zone provide:

   “The following kinds of development are complying in the Residential A560 Zone, with the exception of development associated with Local Heritage Place identified in Table Un/3, subject to compliance with conditions comprising, where applicable the conditions prescribed in Table Un/1:

   The change of use of land, erection of a building, earthworks or other construction for the purpose of:

   Additions to Dwelling  Recreation Area
   Detached Dwelling  Residential Outbuilding.”

Among the kinds of development listed as complying developments are additions to a dwelling and a detached dwelling.  Principle 5 is not clearly expressed but its intent is that additions to a dwelling will be a complying use provided that the development complies with the Conditions in Table Un/1.  Table Un/1 prescribes several conditions with which residential outbuildings and additions to a dwelling must comply.  It is necessary to refer only to para 1 of those Conditions.

“1.     With the exception of carports, verandahs and pergolas which:

(a)     do not have a wall on the common property boundary;

(b)... are not higher than 2.8 metres from the ground at the common property boundary; and

(c)    are no longer than eight metres in length at the common property boundary,

the outbuilding or additions to the dwelling being no closer to the side boundary of the allotment than 600 millimetres.”

The proposed carport does not comply with para 1 in that it is to be longer than 8 metres at the common boundary and it is closer than 600 millimetres to the boundary.  This is consistent with the conditions which apply to a detached dwelling which provide that a detached dwelling shall be no closer than 600 millimetres to the side boundary of an allotment.  The proposed carport is, therefore, not a complying use.  It is common ground that it is not a non-complying use.  It is, therefore, neither a complying nor a non-complying use.

1. Part 1 of Schedule 9 of the Development Regulations prescribes what constitutes a Category 1 development. It is necessary to have regard only to para 1 and paras 2(1)(a), (b) and (f) of Schedule 9. They are in these terms:

   “       1.  Any development classified as a complying development under these regulations or the relevant Development Plan, or which would be a complying development if it were it to meet the conditions associated with the classification where the failure to meet those conditions is, in the opinion of the relevant authority, of a minor nature only.

   2. (1)  Except where the development is classified as non-complying under the relevant Development Plan, any development which comprises–

   (a)     the construction of–

   (i).... a detached dwelling, or of single storey dwelling (or single storey dwellings); or

   (ii)a two-storey semi-detached or row dwelling; or

   (b).... the alteration of, or addition to, a building so as to preserve the building as, or to convert it to, a building of a kind referred to in paragraph (a); or

   ...

   (f)..... a kind of development which, in the opinion of the relevant authority, is of a minor nature only and is unlikely to be the subject of reasonable objection from the owners or occupiers of land in the locality of the site of the development.”

The effect of para 1 is that any development which is a complying development is a Category 1 development.  If the development fails to qualify as a qualifying development because it does not comply with the conditions attached to that kind of development, it may nevertheless be classified as a Category 1 development if the relevant planning authority is of the opinion that the failure to meet the conditions is of a minor nature only.  For example, if regard is had to the Council Development Plan for this Residential A560 Zone, the erection of a dwelling is a complying development provided it complies with the conditions prescribed in Table Un/1.  The conditions in Table Un/1 require that the development of an attached dwelling has an area of not less than 560 square metres.  An obvious example of a minor departure would be if the site was of an area of 558 square metres.

1. It is common ground that the Council did not address the questions in para 2(1)(f).  It is reasonable to infer that it also failed to address the questions in para 1.  In any event, for the following reasons, a like result ensues.  The carport is unusually large.  This carport was so large and its obvious effect on the appellant’s use and enjoyment of her land was so significant that no reasonable planning authority could reasonably conclude that the development was of a minor nature only and unlikely to be the subject of reasonable objection.  In other words, as the question whether the failure to comply with the conditions in Table Un/1 of the Council’s Development Plan and the questions in para 2(1)(f) both turn on the opinion of the Council, and had the Council decided that the proposed development was of a minor nature only, the Council’s decision would have been set aside on the ground of unreasonableness as that expression is defined in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229 – 230; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41. The erection of this carport does not, therefore, comply with the Development Plan and the planning authority could not reasonably find that the non-compliance was of a minor nature only. How then should the development be classified?

2. Plainly, the erection of the carport does not involve the construction of any of the kinds of dwellings listed in para (a).  The Council contends that the carport falls within para (b) in that it is an alteration or addition to the Meres’ dwelling so as to preserve the dwelling.  That was also the conclusion of the judge below.  The Council does not seek to rely on para 2(1)(f).  As already mentioned, it could not do so.

3. The addition of this carport will fall within para (b) if it will preserve the Meres’ dwelling as a detached dwelling or a single storey dwelling.  It is convenient to refer to the Meres’ house as a “dwelling”.  For present purposes, it matters not whether it is properly called a detached dwelling or a single storey dwelling.  None of the other types of building in para (a) are relevant.  The erection of this carport does nothing to preserve the Meres’ dwelling as a dwelling.  That conclusion is reinforced by the fact that the demolition of the existing carport has not caused the Meres’ dwelling to be anything other than a dwelling.  In other words, it remains a dwelling with or without the carport.  The proposed development does not, therefore, fall within para 2(1)(b).

4. This conclusion is further reinforced in a number of other ways.  The Development Regulations define a dwelling to mean “a building or part of a building used as a self-contained residence”.  Carports are not used as a residence.  Although it is true that a carport very often is associated with a dwelling, a carport does not either preserve the dwelling as a dwelling or convert it to a dwelling.  A dwelling will always be a dwelling with or without a carport.  The conclusion is also reinforced by noting that a carport is not necessarily part of a dwelling.  There are many dwellings which have neither a carport nor a garage.  There are many which have a garage but no carport.  There are houses with a freestanding carport.  There are houses with a carport attached and the carport may be attached in a number of different ways.  Apart from statutory definitions, in ordinary usage the nouns “dwelling” and “carport” have different meanings.  It is contrary to the plain meaning of language according to either ordinary usage or statutory definition, to say that to add a carport to a dwelling is to make alterations or additions to the dwelling to preserve it as a dwelling.  The proposition may be shortly stated by adapting facon de parler of Gertrude Stein, a dwelling is a dwelling is a dwelling but a carport is a carport is a carport.  The fact that a carport is not a necessary incident of a dwelling has the consequence that, if a dwelling is altered or added to so as to create a carport, the carport does not preserve the dwelling as a dwelling.

5. Mr Hayes QC pointed to the fact that a cellar, a storeroom or a laundry are often included in a dwelling, or that an additional alteration to include any of them would be regarded as preserving a dwelling as a dwelling.  He submitted that a carport was no different in principle.  The examples to which he pointed are, however, quite different from a carport in that none of them permits vehicular use and, generally speaking, a cellar or storeroom or laundry are under the one roof which a carport often is not.  In the final analysis, the question what preserves a dwelling as a dwelling may be a question of fact and degree.  This carport does not do so.

6. The effect of the decision of the court below is that, because the carport is to be used in association with the existing dwelling, it takes on the character of the dwelling.  That is an untenable line of reasoning.  It is no different from saying that a swimming pool preserves the dwelling as a dwelling because the inhabitants of the dwelling will use it.  This Court has on at least three earlier occasions had to consider whether an application to construe a facility associated with the broader use should take its colour and be classified in the same way as the broader use instead of being classified for what it in truth was.  In each case the court held that the facility had to be classified for what it in truth was.  So in Corporation of the City of West Torrens v McDonalds Properties (Australia) Pty Ltd (1985) 38 SASR 467, the court held that the erection of an advertising pylon in front of a shop and restaurant business should be classified as a pylon and not as a shop, notwithstanding that it was an advertisement for the shop and restaurant. In Wilson v Mitcham City Council and Mercedes College (1986) 130 LSJS 31, it was held that an application to develop a hall and a swimming pool as part of Mercedes College be classified as a hall and a swimming pool and not as an educational establishment. Similarly, in Church of England Collegiate School of St Peter v St Peters Town Council (1990) 70 LGRA 34, a proposal to construct a swimming pool as part of a boys school was classified by the court as a swimming pool and not as an educational establishment. In each case the court held that the correct approach was to classify the proposed development for what it was rather than give it the classification of the use with which the facility was associated. Although the terms of para 2(1)(b) require a somewhat different exercise to be undertaken, the decisions in those cases are a useful reminder that a proposed development should be classified for what it is.

7. This conclusion does not have the consequence that every application to construct a carport is a Category 3 development. If the carport complies with the Regulations or the relevant Development Plan it will be a Category 1 development by reason of the terms in para 1. If it does not comply, the Council be required to address the issues in the proviso to para 1 or in para 2(1)(f) of Part 1 of Schedule 9 and determine whether the development is of a minor nature only and unlikely to be the subject of reasonable objection. Council must consider both requirements of para 2(1)(f). If the Council does not reach such a conclusion, the development will be a Category 3 development.

8. This appeal draws attention to the fact that Councils must vigorously examine even what appear to be relatively straightforward applications.

9. The appeal also draws attention to the question of the relationship between paras 1 and 2 of Part 1 of Schedule 9. It was implicit in the Council’s submission that the construction of a dwelling or of any of the buildings in para 2(1)(a) would be a Category 1 development, notwithstanding that the dwelling did not comply with the conditions in a Development Plan, for example, conditions of the kind found in Table Un/1. That would be an extraordinary result and would seriously erode rights of objection.

10. The effect of the Council’s submission could be illustrated in this way.  Assume an application is made for a detached dwelling which represents a wholesale departure from the conditions prescribed in Table Un/1 and the failure to comply with those conditions could not on any view be found to be of a minor nature only.  Assume also that the proposal is of such a nature that it has a detrimental effect on neighbours who reside on adjoining allotments.  According to the Council, because the application is for a detached dwelling, it is by reason of para 2(1)(a) a Category 1 development and the neighbours have no right of objection.  The Council’s argument also has the consequence that, if a dwelling is initially erected in a way which conforms to Table Un/1, there is no right for neighbours to make representations in a case where additions to a dwelling are subsequently made which adversely affect them and which represent a wholesale departure from the Table Un/1.

11. The effect of the Council’s argument is that para 2 is an exception to para 1 or, more accurately, makes para 1 subject to para 2.  But para 1 is not expressed to be subject to para 2.  The difficulty is avoided if, in the case of those developments which represent a major departure from conditions associated with a complying development, they will be treated as Category 3 developments.  That may well be implicit in para 1.  As the issue was not fully argued, I express no concluded opinion.  It is unnecessary to decide the issue now.  I draw attention to it merely because it represents a potential anomaly.  The anomaly is not answered by stating that Councils may amend their Development Plans to provide that dwellings which do not comply with the conditions associated with the classification similar in kind to Table Un/1 are a non-complying use for that would be to negate the power of a Council to classify the departure as minor pursuant to Schedule 1.

12. For all of these reasons, this appeal should be allowed.  The order below will be set aside and in its place there will be an order that the erection by the Meres of their carport is a Category 3 development.

22.............. WILLIAMS J... I agree.