Le Cornu v City of Holdfast Bay No ERD-02-540 [2003] SAERDC 8 (22 January 2003)

Last Updated: 20 April 2003

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Her Honour Judge Cole

Hearing

20/11/2002 to 21/11/2002, 20/01/2003.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development Act 1993 - a cream brick two-storey building containing five residential flats was built on the land in 1982/93 - development application for provisional development plan consent to divide land by way of primary strata plan under the Community Titles Act 1996 - refused by Council on grounds of appearance and density - in the Heritage (Conservation) Zone - Residential (New Glenelg) - proposal has no direct planning impact - the appeal is allowed.

• Development Act 1993 ;
• Community Titles Act 1996 , referred to.

Representation

Appellant: SHAUN & BARRY LE CORNU
Counsel: MR J BOTTEN - Solicitors: JAMIE BOTTEN & ASSOCIATES

Respondent: CITY OF HOLDFAST BAY
Counsel: MR M BEAMOND - Solicitors: MELLOR OLSSON

ERD-02-540

Judgment No. [2003] SAERDC 8

22 January 2003

SHAUN & BARRY LE CORNU

v

CITY OF HOLDFAST BAY

ERDC 549 of 2002

[2003] SAERDC 8

THE COURT DELIVERED THE FOLLOWING JUDGMENT

1. By development application dated 10 April 2002 ("the application"), the appellants applied for provisional development plan consent to divide the land at 84 Broadway, Glenelg South ("the land"), by way of primary strata plan under the Community Titles Act 1996. A primary strata plan is a subspecies of a community plan.

The land

2. The land is comprised in certificate of title Register Book Volume 5477 Folio 678. The appellants are the joint owners of the land. The land is within the area of the City of Holdfast Bay.

3. In about 1982-1983, a cream brick two-storey building containing five residential flats was built on the land, together with 6 carparks. That remains the current built form and use of the land. It seemed to be common ground between the parties that the residential flat building does not make a positive contribution, in terms of its appearance and density, to the Heritage (Conservation) Zone - Residential (New Glenelg) Zone in which the land is situated.

Development Act 1993

4. The division of an allotment by community plan under the Community Titles Act 1996 is encompassed in the definition of "division", which in turn is a kind of "development" under the Development Act 1993. It therefore requires provisional development plan consent.

Community Titles Act 1996

5. The division proposed is a simple strata titling of a residential flat building and its subsidiaries. The boundaries of the lots proposed to be created are identified in the proposal plans by reference to the physical dimensions of the residential flat building. If the proposal proceeds, a future proprietor of one of the community titles will have rights over part of the existing residential flat building, a carport and some common property.

The evidence and the arguments

6. Two witnesses were called in the appellants' case - Mr George Capetanakis, a building surveyor, and Mr Barry O'Callaghan, a licensed surveyor. Mr Capetanakis gave evidence that the residential flat building is structurally sound, and likely to remain substantially so for at least the next 30 years. Mr O'Callaghan gave evidence, among other things, of other properties in the vicinity of the land which have been strata titled.

7. In very broad summary, the argument on behalf of the appellants was that the deposit of a community plan would not alter the form or density of the residential flat building, its use or its impact on the locality. Nor would it preclude the future development of the land in accordance with whatever planning regime might be in force at the relevant time. The implication was that the proposal was neutral in planning terms.

8. The respondent planning authority called two expert witnesses - Ms Elizabeth Vines, a heritage architect, and Mr Nathan Grainger, a town planner. Ms Vines provided some information about the process leading up to the creation by the Development Plan of the Heritage (Conservation) Zone - Residential (New Glenelg). It was her view that the proposed development, if approved, had the potential to compromise the achievement of the objectives for the zone. Mr Grainger shared that view.

9. Again, in very broad summary, the argument on behalf of the respondent planning authority was that the division of the land by community title was likely to lead to the fragmentation of the ownership of the land, so that instead of the present two, related, owners, it was likely that there would be five unrelated owners. The fact of the land having five unrelated owners, it was argued, would render it difficult, if not impossible, for the land to be redeveloped in any form other than for five dwellings which could be held separately by the five owners. It was also argued that the relevant provisions of the Development Plan spoke against the development.

The Development Plan

10. A division by a primary strata plan is not a form of development which is specifically dealt with by any provision of the Development Plan relevant to the land. Mr Grainger, in his statement and in his oral evidence, gave his opinion that the proposal offends many of the provisions of the Development Plan. Most of the provisions he cited have to do with the form of buildings and the density of development. This proposal will have no direct impact upon the form of the buildings on the site, or upon the density of development. Really, I think that what Mr Grainger was attempting to convey, was an apprehension that the fact of the existence of five lots in relation to the land, with the potential for five unrelated owners, would make it more difficult for the land to be redeveloped, at some unknowable future time, in accordance with the objectives of the Development Plan. He illustrated this by reference to an assessment of the residential flat building, which is presently part of the land, with the provisions of the Development Plan in force when the development application the subject of this appeal was lodged.

11. Under the community plan, the land would remain one allotment, which would contain five lots, each of which would be defined by reference to the residential flat building which has existed on the land for about 20 years. The density of development on the land, the site area per dwelling, and the impact of the development on the land on neighbours and passers-by will remain the same, whether the community plan is deposited or not. I do not consider that the Development Plan speaks against the proposal.

12. The Community Titles Act 1996 allows for many different kinds of community plans. Many community plans will have planning impacts, and that is why division under the Community Titles Act 1996 constitutes division and development under the Development Act 1993. The particular community plan the subject of this appeal, however, would not have any direct planning impacts.

13. Ms Vines' and Mr Grainger's apprehensions with respect to the consequences of the fragmentation of ownership that the community plan would make possible, was based, principally, upon the possibility of there being five owners who were also occupiers. However, there is a much broader range of possibilities than that. There may be five owners, some or all of whom lease their lots. There may be fewer owners. The owners may not seek to redevelop the land themselves, but may be bought out by a developer. Ms Vines thought that it was a possibility that a redevelopment of the land may be viable now. She acknowledged, though, that it might be some decades before redevelopment was considered. Neither she nor Mr Grainger had undertaken any investigations or made any calculations in relation to the viability of redevelopment of the land. The evidence in this area consisted mostly of speculation, informed to some extent in Ms Vines' case by her experience. I accept that Ms Vines and Mr Grainger genuinely hold the fears that they express. Those fears, however, are based upon a very narrow view of what may happen in the future. Even accepting that there is a possibility that this proposal may give rise to the feared effect, that possibility is an insufficient basis upon which to refuse the application.

14. The other fear held by Ms Vines and Mr Grainger - that the presence of five owners may give rise to an expectation, which the planning system may at some future time in some way be constrained to fulfil that a redevelopment must also comprise five units - is not supported by fact or law. It is ill founded. The basis of a division by strata plan is the existing building on the land, and, if the building ceases to exist, then the ownership arrangement must necessarily change also. There is no proper basis, in law or in planning, in these circumstances, for an expectation to arise that the same number of dwelling units will be allowed on the land as existed in the building which has ceased to be. Once that building has ceased to exist, then the owners must look to the Development Plan of the day for guidance as to what form of redevelopment is likely to gain approval.

15. The appeal will be allowed. An order will be made accordingly.