Telstra Corporation Limited v City of Marion No ERD-00-640 [2000] SAERDC 69 (6 October 2000)

Last Updated: 19 December 2000

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Decision of Her Honour Judge Trenorden

Hearing

15/09/2000.

Catchwords

Whether proposed development is a non-complying kind of development - Commercial (South Road) Zone - building with a height greater than two storeys or ten metres listed as non-complying kind of development - question of whether 25 metre high tower constitutes "building" - definition of "building" - context in Development Plan.

Materials Considered

• Development Act 1993 , referred to.
• City of Mitcham v Fusco & Another [2000] SASC 250, applied.
• Optus v CC Kensington & Norwood & Frost [1998] EDLR 565;
• Richman & Another v South Australian Planning Commission (1988) 31 APAD 288, considered.

Representation

Appellant TELSTRA CORPORATION LIMITED:
Counsel: MR S HENRY, ON INSTRUCTIONS - Solicitors: JOHNSON WINTER & SLATTERY

Respondent CITY OF MARION:
Counsel: MR G MANOS - Solicitors: MANOS & ASSOCIATES

ERD-00-640

Judgment No. [2000] SAERDC 69

6 October 2000

TELSTRA CORPORATION LIMITED

v

CITY OF MARION

(ERDC No 640 of 2000)

[2000] SAERDC 69

THE COURT DELIVERED THE FOLLOWING DECISION:

1 This matter involves the question of whether a proposed development is a non-complying kind of development. By application dated 27 March 2000, Telstra Corporation Limited applied to the City of Marion for approval under the Development Act 1993, to erect a "cellular mobile telephone base station" in the carpark of the Tonsley Park Hotel, at South Road, Clovelly Park. The proposed development involved the erection of a tower which would have a height of 25 metres. The subject land is located in the Commercial (South Road) Zone, according to the relevant Development Plan, namely that edition for Marion (City) which was consolidated on 6 April 2000. The objectives for the zone are as follows:

"Objective 1: Accommodation of mixed service trade premises, light and service industrial, transport, motor vehicle related, wholesale, storage, small-scale office, indoor recreation, leisure and retail showroom uses.

 Objective 2: Lower impact uses or activities to provide a transition between development fronting South Road and residential use in adjoining residential zones.

 Objective 3: Development that is complementary to the planning provisions for land on the eastern side of South Road in the City of Mitcham and the City of Unley.

 Objective 4: Development not compromising the arterial road function of South Road by reason of its traffic characteristics and its design.

 Objective 5: Enhancement of the appearance of the zone, particularly land fronting South Road."

2 Principle of Development Control 18 for the zone lists the kinds of development which are non-complying in the zone. The list includes "buildings with a height greater than two storeys or ten metres".

3 The issue before the Court is whether the proposed 25 metre high tower constitutes a "building" and thus, being of a height greater than ten metres, is a non-complying kind of development in the zone.

4 By Section 4 of the Development Act, the term "building" is, unless the contrary intention appears, given the following meaning:

"a building or structure or a portion of a building or structure (including any fixtures or fittings which are subject to the provisions of the Building Code of Australia), whether temporary or permanent, moveable or immovable, and includes a boat or pontoon permanently moored or fixed to land, or a caravan permanently fixed to land."

However, in the same Part of the Act, Section 5 of the Act, the use of terms in the Development Plan is addressed, as follows:

" 5. (1) Subject to subsection (2), if a term defined in this Part is used in a Development Plan then the term has, unless the contrary intention appears, the defined meaning.

(2) The Governor may, by regulation, define a term used in a Development Plan, and such a definition, if inconsistent with a definition in this Part, operates to the exclusion of the latter."

5 The term "building" is not defined in any regulations made under the Development Act.

6 I have come to the conclusion that the proposed development is not a non-complying kind of development.

7 The proposed development is clearly a structure, and thus is within the definition of "building" in the Development Act. The question is whether the term "building" in the description under scrutiny is intended to have the same meaning.

8 My reading of the objectives and principles of development control for the zone leads me to conclude that the discouragement of buildings exceeding two storeys or ten metres in height is related to the impact of the mass and bulk of a building exceeding two storeys or ten metres in height. Zone Principles of Development Control 2, 3, 4 and 5, by their terms, indicate a concern with height in the context of scale, mass and the design and finish of buildings. It is clear from the context, that the term "buildings" in the phrase "buildings with a height greater than two storeys or ten metres" in Principle of Development Control 18 refers to buildings having a greater mass than the proposed development, and thus, "buildings" as the term is used in common parlance. I note in passing that another division of this Court reached a similar decision in relation to a different Development Plan, but a similar development, in Optus v CC Kensington & Norwood & Frost [1998] EDLR 565. However, the decision in that matter is not a precedent. I have decided the matter before me on its own facts and the particular provisions of the relevant Development Plan.

9 Mr Henry, counsel for the appellant, referred me to a number of other provisions of the relevant Development Plan in addition to the zone provisions. It would appear that, notwithstanding the definition of "building" in the Development Act, that by and large, the relevant Development Plan uses the term "buildings" where it is intended to refer to buildings as that term is used in common parlance, and the phrase "buildings and structures" where it is intended to refer to "buildings" as the term is defined in Section 4 of the Development Act. Thus, if it was intended that structures such as the proposed 25 metre high tower were to be a kind of development which is non-complying, Principle of Development Control 18 would have included in the list of non-complying kinds of development, the following "buildings and structures with a height greater than two storeys or ten metres".

10 In the course of submissions by counsel, I was referred to the judgment of the Full Court of the Supreme Court in City of Mitcham v Fusco & Another, Judgment No  [2000] SASC 250. In coming to my conclusion in this matter I have sought to follow the approach to interpretation of kinds of development listed in the Development Plan preferred by the Full Court according to the judgment in Fusco. Mr Manos, counsel for the respondent, referred me to the judgment of this Court in North Adelaide Society Inc v CC of Adelaide & SACA, Judgment No  [2000] SAERDC 8, but I do not agree that His Honour Judge Bowering categorically concluded that the Adelaide Oval light towers constitute "buildings", as that term is defined in the Development Act, where it was used in the relevant Development Plan, in the absence of the words "and structures". I was also referred to a determination of the Planning Appeal Tribunal - Richman & Another v South Australian Planning Commission, (1988) 31 APAD 288, where it was found that the structure described as a "causeway" was not a "building" as the term was used in a particular principle of development control. This reference was useful only as an example of the term "building" having a meaning in a particular provision of the Development Plan according to its context, and not in accordance with the definition in the legislation. Mr Manos suggested that the judgment of the Full Court in District Council of Mallala v M & B Farmer Nominees Pty Ltd, Judgment No [2000] SASC 117, would be of assistance, but the questions there included, not whether the dam and loading pad were "buildings", but whether they were development, within the meaning of the Development Act. In any event, each of those cases have turned on their own facts, and the relevant provisions of the Development Plan. Overall, they were not of much assistance, except as examples of approaches taken to the question I had to determine, in other fact situations.

11 The proposed 25 metre high tower is a structure, but not a "building" as that term is used in the phrase "buildings with a height greater than two storeys or ten metres", expressed to be a non-complying kind of development in the provisions for Commercial (South Road) Zone in the relevant Development Plan. It follows that the proposed development is not a non-complying kind of development, on account of its height. It seems that the most appropriate outcome is that the application be remitted to the City of Marion for further processing, but I will hear the parties as to the form of the final order.