Morony v Cc Adelaide & Madigan No ERD-00-20 [2000] SAERDC 5 (18 January 2000)

Last Updated: 3 April 2000

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of His Honour Judge Bowering

Hearing

14/01/2000.

Catchwords

Development Act 1993 - Section 38 - application to construct dwelling - determination as category 1 development - informal written notice given to neighbours - approval granted - appeal by neighbour - no right of appeal - appeal struck out.

Materials Considered

• Development Act 1993 ;
• Real Property Act , referred to.

Representation

Appellant GARY MORONY:
In Person

Respondent CORPORATION OF THE CITY OF ADELAIDE:
Counsel: MS V JAKOBSEN - Represented by: CORPORATION OF THE CITY OF ADELAIDE

Respondent DJ & DG MADIGAN:
In Person

ERD-00-20

Judgment No. [2000] SAERDC 5

18 January 2000

Gary W MORONY

v

CORPORATION OF THE CITY OF ADELAIDE

and

D J & D G MADIGAN

ERDC 20/2000

[2000] SAERDC 5

JUDGEMENT OF HIS HONOUR JUDGE BOWERING

1 By development application made pursuant to the provisions of the Planning Act 1993 on 1st November, 1999, Deborah and Damian Madigan applied to the Corporation of the City of Adelaide for provisional development plan consent to undertake a development located at 215 Wright Street, Adelaide. The application form described the proposed development as "2 storey house; maintenance of 2 cottage walls to street".

2 The land, the subject of the application, is that contained in Certificate of Title Volume 5700 folio 683. It describes the land as "Allotment 100 filed plan 41072" and depicts the land as "L" shaped with a frontage to Wright Street of 5.07 metres, a side frontage to Wisdom Court of 32 metres and a rear boundary of 11.66 metres. It has an area of approximately 211.75 square metres. The title names the applicants as the registered proprietors in fee simple as joint tenants. The land has the benefit of certain rights of way which are not presently relevant.

3 The land lies within the R34 Whitmore Square West Precinct as defined by the City of Adelaide provisions of the Development Plan. It is one of the local heritage items within that precinct.

4 Upon receipt of the application, the Council classified the development proposed as a category 1 development for the purposes of Section 38 of the Act. This meant that it was not legally required to give any public or other notice that it had received and would consider the application. Nevertheless, it appears that the Council gave notice of the application to at least some local residents. As a consequence it received two representations, one from a Mr R W Dunne who, strangely enough, lives at West Beach, and the other from Mr Gary Morony, who owns and occupies the residential property abutting the western boundary of the subject land. Mr Morony submitted to the Council a quite extensive written submission which raised a number of issues, one of which was the impact which he believes the proposed development is likely to have on his home. However, given that the notification given by the Council was not legally required by Section 38 of the Act, neither Mr Dunne nor Mr Morony were heard by the Council in support of their representations. Having considered the matter the Council resolved to approve the application, which it did by decision notification form issued by it on 13th December, 1999.

5 Mr Morony has appealed to this Court against the Council's decision. Before turning to the specific matters raised by Mr Morony in his appeal, I think it pertinent to note that he has not challenged the decision of the Council to deal with the proposed development as a category 1 development. Nevertheless, I have considered the question. The use of land as a house is one of the desired uses within the R34 Whitmore Square West Precinct and such use is not designated as a non-complying development by the use chart applicable to the precinct, namely Use Chart R. The use of this land as a detached dwelling is designated a category 1 development by the provisions of Regulation 32 and the Ninth Schedule to the Development Regulations. I am of the opinion that the Council's determination of the proposed development as a category 1 development is correct.

6 As I construe Mr Morony's notice of appeal, his principal ground of attack appears to be that the boundary between his land and that of Mr and Mrs Madigan was changed without his consent in such a way as to place within Mr and Mrs Madigan's title land which (presumably) he claims as his. Whether this be true is a matter upon which I cannot comment, although I notice that the current Certificate of Title to the Madigan land, issued on the 14th October, 1999, shows a frontage to Wright Street of 5.07 metres, whilst the superseded title to that land shows a frontage to Wright Street of 4.42 metres. The Wright Street frontage of the Madigan land has grown by 0.65 metres, which expansion appears to have taken up land not included in any of the existing titles as a consequence of a survey error many years ago and not at the expense of the land abutting the western boundary, namely Mr Morony's land. Mr Morony claims that the alteration to the title boundaries occurred without his consent and thus contrary to Section 223j of the Real Property Act, the terms of which are as follows:-

"223j. Where in the opinion of the Registrar-General it is expedient and desirable so to do, he may, with the consent of every person appearing by the Register Book to have any interest, make any correction or amendment to any certificate of title for the purpose of reconciling the boundaries shown in the certificate with the boundaries of the land occupied."

7 Whether the alteration of the boundary between the two properties occurred as a consequence of the exercise by the Registrar General of the powers conferred upon him by Section 223j of the Real Property Act or pursuant to some provision of that Act is not a matter upon which I can pass comment. If there is an error in the Certificate of Title or the Registrar General has acted beyond the powers conferred upon him by the Real Property Act, the remedy - if there be one - lies in the Supreme Court and not in this Court. The Environment, Resources and Development Court has only the jurisdiction conferred upon it by statute. This Court does not have the jurisdiction to deal with the concerns raised by Mr Morony. In the circumstances, Section 69 of the Real Property Act requires this Court to accept the title of Mr and Mrs Madigan as set out in the current Certificate of Title as being both absolute and indefeasible until an order of the Supreme Court to the contrary is made.

8 In his submissions to me, Mr Morony raised a number of concerns, some of them going back many years and involving a previous owner of the Madigan land, namely Mr Gill. He feels that Mr Gill was not dealt with fairly by the Council. Whilst I acknowledge Mr Morony's concerns, they are not relevant to the question now before me, namely whether Mr Morony has a right of appeal against the decision of the Council to approve Mr and Mrs Madigan's development.

9 The rights of appeal by people who have made representations to a planning authority with respect to a proposed development are set out in Section 38 of the Development Act. Those people who have made a representation relating to a category 3 development and who have, in accord with the procedures specified in the Section, received notice of the Council's decision. Mr Morony is not such a person. He thus has no right of appeal to this Court against the Council's decision. In the circumstances the Court must decline to entertain his appeal.

10 The Court has no jurisdiction to hear this appeal. The order of the Court is that this appeal is struck out

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