Cooke v City of Mitcham [2005] SAERDC 11 (21 February 2005)

Last Updated: 22 February 2005

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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COOKE v CITY OF MITCHAM

Judgment of Her Honour Judge Trenorden

21 February 2005

LOCAL GOVERNMENT - TOWN PLANNING

Application to divide land - one allotment into two - provisional development plan consent granted by respondent subject to conditions - appeal against Condition 2 - issue of validity of condition - determination of objective meaning of condition - issue of severance of the condition - whether condition defeats intent of relevant authority - finding that Condition 2 is beyond the power of the respondent and is therefore invalid, and that the condition is severable - appeal upheld - order varying the provisional development plan consent granted by the respondent.
Development Act 1993 s42; Real Property Act 1886, referred to.
City of Mitcham v Pearce & Pearce [1999] EDLR 498; Eastern Building Group Pty Ltd v City of Burnside [2003] SAERDC 88; DeFazio J v City of Campbelltown (No 2) [2001] SAERDC 58; Twenty Seven Properties Ltd v Corporation of Noarlunga (1975) 11 SASR 188; The Corporation of the City of Adelaide v City of Salisbury & Anor (1998) 100 LGERA 160, applied.
K & C S Bartusek v City of Mitcham PAT No 377 of 1991, considered.

COOKE v CITY OF MITCHAM
[2005] SAERDC 11

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1

The appellant sought consent to undertake development on land situated at 34 Birdwood Street, Mitcham (Certificate of Title Register Book Volume 5827 Folio 713). By the application it was proposed to divide the subject land to create two allotments where there had previously been one allotment. Provisional development plan consent was granted on 21 September 2004 subject to conditions. This appeal is against the second of those conditions which is as follows:

"(2) The footings shall be poured for the detached dwellings detailed in development application number 080/1529/04, prior to clearance of titles."

2	The development application reference is clearly in error. There was no argument that the reference was intended to be to development consent numbered 080/1529/2003.
3	The background to the application the subject of this appeal is that by provisional development plan consent granted on 16 December 2003, the appellant received consent to construct two single storey detached dwellings, garages and verandahs subject to 14 conditions, on the subject land. That was the development application numbered 080/1529/2003, to which reference is made in the condition the subject of this appeal.
4	Thus, it appears that the intention of the relevant authority was to grant consent to the land division for the purposes of creating an allotment for each of the dwellings approved in 2003. Indeed, the evidence of the respondent’s planning officer Mr Robert Ressom was that the land division application had been assessed by him pursuant to delegated authority and that he had granted provisional development plan consent solely because of the existence of the 2003 provisional development plan consent for the two detached dwellings on the subject land. He went so far as to say that "if the dwelling consent did not exist I would have refused the land division application on the basis that it would create allotments with a width significantly less than the desired minimum having regard to the Development Plan". Hence Mr Ressom, acting pursuant to delegation as the relevant authority, endeavoured to tie the land division consent to the dwelling consent by the addition of the condition the subject of this appeal.
5	The appellant argues that the condition is invalid, but may be severed from the consent.

The Issue of Validity

6

Section 42 of the Development Act 1993 provides a relevant authority with a broad power to impose conditions upon a consent in relation to development. It is trite law that the broad power is subject to certain limitations. The limitations were recalled and set out by the Supreme Court in City of Mitcham v Pearce & Pearce [1999] EDLR 498 at 501 and were conveniently summarised by Judge Cole in a judgment of this Court, namely Eastern Building Group Pty Ltd v City of Burnside [2003] SAERDC 88, delivered 28 August 2003, as follows:

"1. A condition cannot be imposed for an ulterior object or purpose.

2. A condition must fairly and reasonably relate to the permitted development.

3. A condition must not be ‘so clearly unreasonable that no reasonable planning authority could have imposed it’, in the sense that it ‘displays a lack of logic or lacks probative material to support an essential step in the reasoning’."

[The sources of the quotes in the third limitation were Kingston-Upon-Thames Royal London Borough Council v Secretary of State for the Environment [1973] 1 WLR 1549 per Lord Widgery CJ at 1553, and Upham v The Grand Hotel (SA) Pty Ltd and Development Assessment Commission [1999] SASC 414, respectively.]

7	In Eastern Building Group (above) Her Honour concluded that a similarly worded condition imposed upon a land division consent had been imposed for an ulterior purpose, namely the administrative convenience of Council’s planning staff.
8	Here, Mr Ressom’s evidence was that the condition had been imposed to limit the construction of dwellings upon the allotments created by the land division, to those for which approval had already been granted. His planning opinion was that the relevant Development Plan did not support the proposed land division, but that in the interests of good planning, in the context of an existing consent for the two detached dwellings, land division consent should be granted. Mr Ressom explained the apparent anomaly of the earlier grant of consent for the two dwellings on the subject land. At the time at which the decision was made to grant consent, he had erroneously thought that he was granting consent to an application for two semi-detached dwellings.
9	The proposed allotments, having an area of 569m2 each, are larger than the preferred minimum site area, expressed to be 500m2 for a detached dwelling in the relevant policy area (Residential (Central Plains) Policy Area 8). However, Council Wide Principle 16 provides that dwelling sites abutting a public road should have a road frontage of not less than 15m for detached dwellings (compared to 9m for semi-detached dwellings), "unless otherwise indicated within a specific zone". There are no contrary indications with respect to road frontage for dwelling sites within the relevant zone provisions. Each of the proposed allotments would have a road frontage of 10.67m only.
10	It was the under-provision of road frontage in the context of the surrounding, existing residential development, together with a concern to ensure any dwelling to be established on each proposed allotment have appropriate front and side setbacks and present only one garage to the street, that led Mr Ressom to impose Condition 2. The previously approved dwellings were suitable having regard to these concerns.
11	The condition in question sought, not to have the previously approved dwellings built on the allotments which are proposed to be created, but to have the footings for them poured "prior to clearance of titles". Thus, despite the expressed intention of Mr Ressom who was acting pursuant to delegation as the relevant authority, the condition does not actually seek the construction of the dwellings that were approved in 2003.
12	It is uncertain what is meant by "clearance of titles". The relevant authority has no role in "clearing titles" if by that is meant authorising the issue of titles or certifying that all necessary approvals have issued and conditions have been met or binding arrangements made with respect to the land division. I find that the phrase is most likely to have meant "prior to a separate title being issued for each allotment". I have come to that conclusion as a result of a consideration of Divisions 1 and 2 of Part 19AB of the Real Property Act 1886.
13	Any interest in land cannot be sold or otherwise transferred unless the land constitutes the whole of an allotment (or a number of allotments): s223LB Real Property Act.
14	It follows that by the condition, the respondent sought to ensure the appellant (or its successor) would have poured the footings for the previously approved detached dwellings, on the proposed allotments, prior to the issue of a Certificate of Title for each allotment, and therefore prior to any dealing, sale or conveyance of either of the proposed allotments. While I concede that the subjective intention behind the imposition of the condition was a planning purpose, I have concluded that the clumsy expression of the condition has resulted in the intention not being achieved. The condition does not require previously approved dwellings to be constructed on each of the proposed allotments. It does no more than require that the footings for those proposed dwellings be constructed prior to any conveyance of an interest in either proposed allotment, or the earlier issue of a Certificate of Title for each. The effect and possible consequences of the condition would be similar to those canvassed in the judgment of Eastern Building Group (above). The pouring of footings does not guarantee the construction of a building.
15	The test as to whether a planning authority has used it powers for an ulterior object or purpose and not a valid planning purpose consistent with the object and purposes of the Act must depend on an objective determination of the meaning of the condition (assuming a bona fide act by the relevant authority) rather than a consideration of subjective intention of the authority. There are two reasons for this: the first being that it will be very difficult to determine the subjective intention of an authority in the ordinary course, where an authority is comprised of more than one natural person; and the second being that a person in the position of the appellant, according to law must comply with the condition according to its objective interpretation. Thus, it follows that it would be less than sensible to uphold a condition intended to be imposed for a planning purpose but which on the face of it, if implemented, would achieve not a planning purpose but some other end. That consequence would be onerous and unfair on a person in the position of the appellant.
16	For the foregoing reasons, I have concluded that the condition does not have a valid planning purpose, despite the evidence of Mr Ressom concerning the purpose sought to be achieved by him, as the relevant authority, pursuant to delegation. It follows that the condition was beyond the power of the respondent and is, therefore, invalid.

The Issue of Severance of the Condition

17

The remaining issue is as to whether the condition, now held to be invalid, can be severed from the provisional development plan consent, thus leaving the consent standing, minus the offending condition. This issue was addressed by this Court per His Honour Judge Bowering in DeFazio J v City of Campbelltown (No 2) [2001] SAERDC 58 (delivered 19 July 2001). There, His Honour looked to the judgment of the Supreme Court per Wells J in Twenty Seven Properties Ltd v Corporation of Noarlunga (1975) 11 SASR 188, as follows:

"In the Twenty Seven Properties matter, Wells J cited, with approval, the observations of Devlin J in the matter of Potato Marketing Board v Merricks (1958) 2 QB 316 wherein His Honour said, when considering the issue of severance, at page 333:-

‘By "effectively severed" I think that the learned Judge meant effectively severed without making nonsense of that which remained. Certainly, this has been the interpretation placed upon the principle in the by-law cases. .....There have been recent cases under the 1947 Act where the invalid condition was held to bring down the whole permission. In the first-- Pyx Granite Ltd. v Ministry of Housing and Local Government Hodson L J said it was ‘impossible to mutilate the Minister’s decision by removing one or more of the conditions.’ Another example was Hall & Co Ltd v Shoreham-by-Sea Urban District Council where, applying the observations of Hodson L J in the Pyx Granite case, the Court of Appeal held that the invalid condition brought down the whole permission. Pearson L J, at p.261, thought that only unimportant or trivial conditions could be rejected, leaving the remainder standing.

In these two cases (clearly correctly decided on this point), however, it is of cardinal importance to note that the invalid conditions went to the root of the planning permission itself and severely restricted the permission applied for, and the observations of Hodson and Pearson L JJ respectively must be read in that light.

But a condition as to time does not go to the root of the permission itself; it is purely collateral and could be altered without affecting the actual grant of the permission.’

Wells J also referred to the judgement of Lord Reid in the matter of Kingsway Investments v Kent County Council (1971) AC 72 wherein His Lordship said, at page 90, that:-

‘Suppose that a planning authority purports to impose a condition which has nothing whatever to do with the planning considerations but is only calculated to achieve some ulterior motive thought to be in the public interest. Clearly, in my view, the condition should be severed and the permission should stand. But suppose, on the other hand, that a condition, thought invalid, because ultra vires or unreasonable, limits the manner in which the land can be developed, then the condition would not be severable, for if it were simply struck out the result would be that the owner could do things on his land for which he had never in fact obtained permission, and that would be contrary to the intention of the statute.’ "

18	The Supreme Court per Bleby J also analysed the authorities in The Corporation of the City of Adelaide v City of Salisbury & Anor (1998) 100 LGERA 160 at 168ff.
19	His Honour commenced his consideration of the authorities with the following:

"The question of severance of invalid conditions attached to planning approval of this nature has attracted a wide and divergent range of judicial approaches. Where a condition can be severed the planning approval remains intact but without the invalid condition. Where a condition has been held to be inseverable, it affects the validity of the whole consent, which is then set aside."

20	After citing the comments of Lords Upjohn and Reid in Kent County Council v Kingsway Investments (above), His Honour said, at p170:

"The questions discussed by Lord Upjohn as being relevant to the question of severability of necessity raised the question of the intention of the planning authority if the question of invalidity had been drawn to its attention at the time. They require an attempt to be made to define the intent of the planning authority in circumstances where that may be quite impossible to answer. In those circumstances the law of contract has devised another test."

21

Bleby J then considered how questions of severance had been dealt with in contract cases and cases relating to subordinate legislation. At p171, prior to returning to the planning cases, he arrived at the following position as a result of his consideration of the cases relating to contract and subordinate legislation:

"Therefore, it seems to me that if the contract cases and the subordinate legislation cases provide any guide, the consistent theme emerging and to be applied in this case would be whether severance will alter the nature of the consent, whether it would be a ‘totally different scheme’ or ‘substantially different a scheme’ from that contemplated by the council, or whether the severed condition goes to the root of the permission itself or is merely collateral."

22	Following further consideration of the planning cases, His Honour concluded as follows, at p172:

"In my opinion these cases merely confirm the approach to be taken, namely to ask oneself whether severance would fundamentally alter the nature or character of the consent; whether the severance would constitute a totally different scheme from that contemplated."

23	If the condition the subject of this appeal was severed from the consent, would that lead to a result in conflict with the intent of the relevant authority? The answer to that question cannot be "yes". The relevant authority, in granting consent to the land division application, has acknowledged that the proposed allotments are each suitable for a detached dwelling (I do not consider that I can take into account Mr Ressom’s evidence that he thought he was granting consent to two semi-detached dwellings). The condition evidences an intent on the part of the authority to limit the nature of the detached dwellings to those previously approved. The planning reasons for that limitation according to Mr Ressom’s evidence, and as can be drawn from the Development Plan, are the achievement of appropriate front and side setbacks, appropriate site coverage and visual amenity (no more than one garage visible from the street on each allotment).
24	It was argued by the appellant and conceded by the respondent that dwelling designs meeting the desired criteria are not limited to those approved for the subject land in 2003.
25	Presently the provisional development plan consent for the dwellings granted in 2003 is current; it having been extended by the relevant authority to 13 October 2005. Under the provisions of the Development Act, any proposed dwelling would require the consent of the relevant authority. Thus, the owner of either allotment proposed to be created, if desiring to construct a detached dwelling on the land, must proceed to construct in accordance with an existing approval, or obtain a new approval under the Development Act. It follows that the owner of the allotments to be created could not proceed lawfully to construct a dwelling except in accordance with a current approval issued under the Development Act, even if the condition the subject of this appeal is severed. Severance of the condition would not defeat the intent of the relevant authority. The condition does not go to the root of the consent.
26	To put what I have concluded in another form, the scheme for the subject land would not be totally different from that contemplated by the respondent authority at the time of granting consent, if the condition is severed. The severance of the condition would not fundamentally alter the character of the consent. The respondent authority has granted a consent to the creation of two allotments where one previously existed. The construction of any building on, and the use of the land thereby created, according to the law, must be in accordance with a current development authorisation or approval issued pursuant to the Development Act by the relevant authority.
27	The condition may lawfully be severed from the provisional development plan consent.

The Bartusek Argument

28	Mr Manos, for the respondent, argued that the Court should incline to the reasoning in K & C S Bartusek v City of Mitcham (PAT No. 377 of 1991, delivered 7 November 1991). In that matter, which was an appeal from the decision of the respondent Council to refuse consent to divide an allotment into two allotments in a situation where a second dwelling had been approved in the "rear yard" of the original allotment, the Planning Appeal Tribunal indicated that consent would be granted for the proposed land division only when the detached dwelling already approved had been substantially completed. Commissioner Pitt who heard the matter also indicated that if the existing consent for the detached dwelling lapsed, consent for the land division would be denied by the Tribunal. He then adjourned the proceedings.
29	Mr Manos put to the Court that this was an alternative course, which the Court could follow. In other words, he submitted that the Court could adjourn the present proceedings, inviting the parties to return to the Court either upon the substantial commencement of building works for the detached dwellings already approved, or when the consent for those dwellings had lapsed.
30	Mr Manos’s submission was based on Mr Ressom’s evidence to the effect that, acting under delegated authority, he had granted provisional development plan consent to the proposed land division solely because there was an existing provisional development plan consent for two detached dwellings on the subject land. In Bartusek, Commissioner Pitt deferred his decision on a land division proposal to await either the substantial completion of the previously approved detached dwelling or the lapsing of consent for same. As Commissioner Pitt said at p7 of the determination, in relation to the consent previously granted for the construction of a detached dwelling in the rear yard of the subject allotment:

"However, circumstances could change ‘overnight’. The building work might not proceed and consequently the consent issued by the Council might lapse – see Regulation 45 of the Development Control Regulations 1982. If that was to happen, then the only reason for the granting of consent by the Tribunal would disappear because, in my opinion, the proposed division of the allotment, considered in isolation from what has happened, should be denied consent."

31

The decision in Bartusek is not apposite here. That case concerned an appeal against a refusal to grant consent to a land division proposal, while in this case what is before the Court is an appeal against a condition of the consent to a land division proposal. The Court must decide the question of the validity of the condition and whether, if held to be invalid, the condition can be severed from the consent. Circumstances do not present an opportunity for the Court to follow the action taken by Commissioner Pitt in Bartusek.

32

Secondly there is no logic in the submission of Mr Manos. On this appeal, the Court either upholds the condition, finds the condition invalid and severs it from the consent, or finds the condition is invalid but unable to be severed with the result that the whole consent falls. In none of those scenarios is there the likelihood of an opportunity for the Court to send the parties away pending either the substantial commencement of the dwellings approved in 2003 or the lapsing of that consent. Now, given my conclusion that the condition is beyond the power of the relevant authority to impose, the result for the appellant would be either a consent to land division without any condition in respect of the previously approved dwellings, or no consent at all. In neither case would I have had the authority to do other than declare that the consent should stand freed of the offending condition or that the consent should be set aside.

Conclusion

33

Condition 2 attached to provisional development plan consent to Development Application No 080/1127/2004 is beyond the power of the Council. The condition is able to be severed. The appeal will be upheld and there will be an order varying the provisional development plan consent granted by the respondent authority by the deletion of Condition 2.