River Gum Homes P/L v DC of The Copper Coast (No. 2) No ERD-03-375 [2004] SAERDC 6 (13 February 2004)

Last Updated: 28 March 2004

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Her Honour Judge Trenorden

Hearing

22/12/2003.

Catchwords and Materials Considered

LOCAL GOVERNMENT

Whether Council estopped - effect of a condition of consent where subsequent consent not consistent - discretion of Court in proceedings - variation of time period in direction - adjournment considered.

• Development Act 1993 ;
• Development Regulations 1993 , referred to.
• Jurkovic v City of Port Adelaide (1979) 23 SASR 434;
• Attorney-General (NSW) v Quin (1990) 170 CLR 1;
• Wilson & Ors v Corporation of City of Mitcham & Mercedes College Springfield Inc (1986) 130 LSJS 31, discussed.

Representation

Appellant: RIVER GUM HOMES PTY LTD
Counsel: MR G MANOS - Solicitors: MANOS & ASSOCIATES

Respondent: DISTRICT COUNCIL OF THE COPPER COAST
Counsel: MR J HILDITCH - Solicitors: HUNT & HUNT

ERD-03-375

Judgment No. [2004] SAERDC 6

13 February 2004

RIVER GUM HOMES PTY LTD

v

DISTRICT COUNCIL OF THE COPPER COAST (NO. 2)

(ERD NO. 375 OF 2003)

[2004] SAERDC 6

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

The Appellant's Estoppel Argument

1. Mr Manos endeavoured to argue, in relation to the validity of the s84 notice, that the Council by its actions, was estopped from issuing that notice. The validity of the notice was determined in River Gum Homes Pty Ltd v District Council of Copper Coast (No. 1) [2003] SAERDC 130. Really, the time for putting arguments as to the validity of the s84 notice had passed. However in the interests of dealing with all arguments in this matter, I will address the estoppel argument.

2. No authority was cited in support of or against Mr Manos' submission that the respondent Council was estopped. The courts do not readily accede to an estoppel argument against a public authority which is charged by statute with the performance of a public duty or with the exercise of a discretion with respect to matters of public concern: Jurkovic v City of Port Adelaide (1979) 23 SASR 434 at 440, Minister for Immigration v Kurtovic (1990) 92 ALR 93 at 111, Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 17.

3. In this matter, the Council issued a notice of development approval which was in one particular, ambiguous. The provisional development plan consent by condition required the dwelling to be sited at least 5.5m from the rear boundary of the land, but the provisional building rules consent determined by the private certifier was for plans which proposed the dwelling (including the balcony) to be set back only 2.3m from the rear boundary. The clear inference is that the Council relied on, but did not go behind, the certificate of the private certifier (issued pursuant to the Development Act s93(b)(iii) and reg92(2) of the Development Regulations 1993) certifying that the provisional building rules consent was consistent with the provisional development plan consent. It accepted both the certificate and the certifier's decision and proceeded to issue a decision notification form that showed that development approval had been granted on 4 April 2003, but with the "date of decision" shown as 7 April 2003.

4. It was argued that the Council failed to perform its duty as the relevant authority, pursuant to reg46 of the Development Regulations 1993, as it had failed to check that both the provisional development plan consent and provisional building rules consent were consistent with each other, with the consequence that the Council as the relevant authority had issued an approval for the dwelling sited as shown in the building rules application, and should be bound by it. Reg46(1) is set out below:

"46. (1) If it appears to a relevant authority that all of the consents necessary for the approval of a particular development have been obtained under Division 1 of Part 4 of the Act, and that no such consent has lapsed and that all such consents are consistent with each other, the relevant authority must, subject to the Act and any other Act or law, forthwith (and in any event within five business days after receiving the last consent) issue a notice of approval in the form set out in Schedule 11."

5. Is that a basis upon which the Council could be estopped from issuing a notice to the appellant whereby the appellant is directed to comply with a condition of the provisional development plan consent? In effect, Mr Manos was arguing that the Council should be bound by its act in granting a development approval which appeared to permit the construction of a building set back 2.3m only, from the rear boundary. Assuming for the argument (contrary to what has already been decided in this matter) that this was the effect of the Council's act, what follows? If the Council failed to perform part of its duty under reg46, but acted to issue development approval, what is the status of:

(a) its act in approving the development;

(b) the decision notification?

6. If the Council acted to approve the development without first checking for consistency between the provisional consents, then it may have acted contrary to the law, and ultra vires, having failed to perform one of the checks required to be carried out as a pre-requisite to the exercise of its obligation to issue a notice of approval, under reg46. However, the development approval and hence, the decision notification will stand until set aside by a court of competent jurisdiction: Wilson & Ors v Corporation of City of Mitcham & Mercedes College Springfield Inc (1986) 130 LSJS 31.

7. Thus, even if the development approval is tainted by an ultra vires act by the Council, it presently stands and has effect according to the law. Does it follow that the Council was estopped from acting to direct the appellant to make good that which it had reason to believe was a breach of the Act?

8. The authority has a discretion with respect to matters of public concern, namely the enforcement of the development law, under s84(2) of the Development Act. It had reason to believe that the appellant had breached the Development Act by undertaking development contrary to s44(4) of the Act.

9. To say that an authority is estopped from seeking to enforce a condition imposed on a consent that is a component of a development approval that has not been set aside by a court, would be contrary to public policy and the interests of the public in having an authority act to enforce the law. In addition, a condition imposed on any consent granted under Part 4 Division 1 of the Development Act, has force of itself, once the consent is activated by the issue of a development approval, as will be seen in what follows hereafter.

10. Division 1 of Part 4 of the Development Act comprises s32 to s45A inclusive. S32 provides that no development may be undertaken unless the development is an approved development. S33(4) specifies that a development becomes an approved development only when all relevant consents have been granted and the relevant authority has indicated that the development is approved. The consents required are set out in s33(1). It is to be noted that the language of s33 distinguishes between consents (eg, provisional development plan consent, building rules consent), which go to make up an approved development (see s33(1)) and "approval" or "approved development".

11. S39 specifies the form of an application "for the purposes of this Division". S40(1) provides that on the making of a decision on an application under Division 1 of Part 4 the relevant authority must give notice of the decision in accordance with the regulations. Reg42 requires that notice of a decision be given in the form set out in Schedule 11, within 5 business days of the decision being made.

12. S42 empowers a relevant authority to impose conditions on a decision made under Division 1 of Part 4. Importantly, subs42(2) provides as follows:

"42 (2) Any such condition-

(a) is binding on, and enforceable against-

(i) the person by whom the development is undertaken; and

(ii) any person who acquires the benefit of the decision or the development; and

(iii) the owners and occupiers of the land on which the development is undertaken; and

(b) may continue to apply in relation to the development unless or until it is varied or revoked by the relevant authority in accordance with an application under this Division."

13. S44 sets out general offences under Division 1 of Part 4 of the Act. Subs44(4) reflects the binding nature of any condition imposed by a decision of a relevant authority pursuant to s42. It specifies that "a person must not contravene, or fail to comply with, a condition imposed under this Division." and provides for penalties in the event of a breach being proved. In addition, a person must not undertake development contrary either to Division1 of Part 4 (subs44(1)), or to a development authorisation (subs44(2)). A development authorisation includes a consent, decision and approval given under the Development Act (s4(1)).

14. The Development Act provides in s45(1) that building work must not be performed except in accordance with technical details, particulars, plans, drawings and specifications "approved in accordance with this Division", and there is a penalty for a breach of this provision. This would suggest that building work may only be performed in accordance with all consents which constitute the approved development, consistently with ss32 and 33 of the Development Act.

15. Thus it appears from the contents of Division 1 of Part 4 of the Act that each condition of each consent whether provisional development plan consent, provisional building rules consent or another kind of consent, is enforceable once development approval is granted. The consents cannot be acted upon in the absence of a development approval, that is "when all relevant consents have been granted and (the) relevant authority has, in accordance with the Act, indicated that the development is approved" (subs33(4)). What happens when there is conflict between consents granted pursuant to Part 1 Division 4 of the Act?

16. The authors of the Development Act tried to ensure against such a conflict arising, especially where a private certifier has the task of assessing an application for provisional building rules consent, by:

1. Establishing a code for private certifiers, a breach of which code is punishable upon conviction; and

2. Providing that the relevant authority must check that all consents are consistent with each other before issuing a development approval.

17. The code for private certifiers is set out in some of the sections contained in Part 12 of the Development Act. One example is subs97(1) which provides that a private certifier must act in accordance with the public interest and the objects of the Development Act and ensure that any development authorisation granted is consistent with any other development authorisation that has already been given in respect of the same proposal. The term "development authorisation" includes "any assessment, decision, permission, consent, approval, authorisation or certificate required by or under" the Development Act (s4 (1)). A penalty is specified for a breach of this subsection.

18. In the circumstances of this matter, it appears that the private certifier failed to properly perform his duty in accordance with the Act. A consequence is that he could be charged under one of the provisions of Part 12 of the Development Act. That is not relevant for the purposes of this matter.

19. Reg46 provides that the relevant authority "must, subject to the Act and any other Act or law, forthwith (and in any event within 5 business days after receiving the last consent) issue a notice of approval in the form set out in Schedule 11" if it appears to that relevant authority that all of the consents necessary for the approval of a development have been obtained, that no consent has lapsed and that all consents are consistent with each other. (In passing I note that the heading under which reg46 is set out is perhaps misleading in that it expresses reg46 to be a "special provision relating to staged consents", but staged consents appear to be the subject of subs39(8) of the Act while the language of sub-reg46(1) appears to be a procedure relevant to subs33(4). In any event, I am not required to take into account the heading that appears above reg46 when interpreting its provision: Acts Interpretation Act s19(3), 14A and 4(1) "statutory instrument".)

20. By force of ss42 and 44(4) the appellant in this matter was on notice, once provisional development plan consent had been issued and it was notified of same, that it would be bound by the conditions of that consent, in the event that the proposed development became an approved development. Thus, it follows that the appellant cannot derive any benefit from the failure by the private certifier to ensure that the provisional building rules consent was consistent with the provisional development plan consent already granted, nor from the failure by the Council to fulfil the prerequisite to the exercise of its obligation to issue a notice of approval; namely to ensure that all consents were consistent with each other.

21. The appellant was always going to be bound by the conditions imposed on the provisional development plan consent once the development was approved. A subsequent consent could not change that position. Indeed, it is arguable that because of the inconsistency between the later provisional building rules consent and the earlier provisional development plan consent, together with the apparently unlawful act by the private certifier, the provisional building rules consent and subsequent notice of approval for the development could be set aside but that is not for me to decide.

22. It is not necessary to address the estoppel argument further. There is no estoppel. The effect of ss42 and 44(4) are clear. To hold that the Council is estopped from endeavouring to uphold the law would be to hold that, in this matter, ss42 and 44(4) have no application. That would be contrary to the clear meaning of those sections, the public interest in the enforcement of the law and proper and orderly planning and development in the state. The estoppel argument fails.

The Court's Discretion

23. The Court heard evidence from Mr Michael Bowman, the business systems administrator of the appellant company which has been responsible for the construction of the subject dwelling for Mr & Mrs Fantasia. It also heard evidence from Mr Paul Gates, a development assessment officer with the respondent Council. Much of the evidence of Mr Bowman purported to go to the exercise of the Court's discretion to enforce the direction the subject of the appeal but in reality questioned the appropriateness of the condition which, it is alleged by the Notice, has been breached. In my view that evidence was misdirected.

24. In applications for civil enforcement orders under s86 of the Development Act, the Court ultimately has a discretion as to whether to make the orders sought by the applicant. In appeals pursuant to s86(1)(d) and s84(9) of the Act, the Court has to consider whether the direction should stand. Where the direction that has been given is to overcome a breach of the Act constituted by the undertaking of development contrary to a condition of consent, the Court cannot, by its decision, sever or otherwise erase the condition of consent the subject of the direction. The Court cannot, in appeal proceedings in relation to a s84 Notice, consider the appropriateness or validity of a condition of provisional development plan consent, as if it were hearing an appeal against that condition. The jurisdiction of the Court in relation to the merits of the condition has not been invoked. The time for the lodgement of an appeal against the condition has passed without an appeal being instituted.

Variation of the Direction

25. I understood clearly from Mr Bowman that if the balcony is to be removed, some re-engineering of the building, and a reworking of the roof will be necessary. This is because as presently constructed, the balcony supports the roof over the whole of the dwelling (including the balcony). Thus demolition work and partial reconstruction of the roof will be necessary, all of which would cost in the order of $10-11,000. It would appear that less demolition work would have been necessary if the building work on the balcony and at that end of the dwelling had ceased upon receipt of the s84 Notice. It appears that work continued, at least for a little time.

26. Mr Bowman indicated that the work required, should the Court uphold the direction, could comfortably be completed by the middle of March, assuming recommencement when subcontractors returned from Christmas holidays on 12 January 2004. I find that it is reasonable that the direction be varied to give the appellant an adequate but not unreasonable period to carry out the necessary work.

Adjournment

27. I have been informed that a development application has been lodged with the Council on behalf of the appellant, which if granted, would make lawful that construction which is now in breach of the Development Act. I was asked by Mr Manos to adjourn the proceedings pending the decision of the Council on the development application. I am satisfied that an order should be made varying the time period in the direction given in the Notice issued pursuant to s84 of the Development Act on 7 October 2003. Otherwise, the direction should stand. However, if I were now to make an order, the effect of which would result in the appellant having to demolish the balcony within a specified time frame, and subsequently a consent and development approval were to issue, the appellant would have to seek revocation of the direction. In these circumstances it would be sensible for this Court to adjourn these proceedings pending the decision on the development application and any appeal from that decision.

28. I will hear the parties further.