City of Burnside v Macag Holdings Pty Ltd [2005] SAERDC 128 (22 December 2005)

Last Updated: 23 December 2005

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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CITY OF BURNSIDE v MACAG HOLDINGS PTY LTD

Judgment of Her Honour Judge Cole

22 December 2005

LOCAL GOVERNMENT - TOWN PLANNING

Council's application for orders pursuant to s 85 in relation to a quantity of fill being stored on a site - respondent argued that the fill is required to achieve levels necessary for the stormwater and sewer system of an approved land division - issue of whether the respondent has committed a breach of the Development Act - application refused.
Development Act 1993 ; Development Regulations 1993, referred to.
Development Assessment Commission v Macag Holdings Pty Ltd [2001] SASC 189, considered.

CITY OF BURNSIDE v MACAG HOLDINGS PTY LTD
[2005] SAERDC 128


THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1	The City of Burnside ("the Council") seeks orders under s 85 of the Development Act 1993 ("the Act") against Macag Holdings Pty Ltd ("Macag") in relation to a quantity of fill which has recently been placed upon the land at 10 Duncan Road, Beaumont ("the site").
2	On 25 July 2002, the Development Assessment Commission ("the DAC") granted development approval to 3 applications for land division in respect of the site. The effect of the 3 land division approvals, if implemented, would be to create 9 residential allotments on the eastern side of Duncan Road, with one very large superlot behind them. The development approvals have recently been extended in time, and have not expired.
3	A development approval in respect of a land division application follows the grant of a provisional development plan consent, which results from a favourable assessment against the provisions of the applicable Development Plan (s 33(1)(a)), together with the grant of what is generally known as land division consent. Land division consent is the result of the favourable assessment of a proposal in accordance with s 33(1)(c), which provides:-

(1) A development is an approved development if, and only if, a relevant authority has assessed the development against, and granted a consent in respect of, each of the following matters (insofar as they are relevant to the particular development):

...

(c) in relation to a proposed division of land (otherwise than by strata plan under the Community Titles Act 1996 or the Strata Titles Act 1988) - the requirement that the following conditions be satisfied (or will be satisfied by the imposition of conditions under this Act):
(i) the allotments resulting from the division may be lawfully used for the purposes proposed by the applicant;
(ii) open space will be provided, or a payment will be made in accordance with the requirements imposed under this Act;
(iii) adequate provision is made for the creation of appropriate easements and reserves for the purposes of drainage, electricity supply, water supply and sewerage services;
(iv) the requirements of the South Australian Water Corporation relating to the provision of water supply and sewerage services are satisfied;
(iva) where land is to be vested in a council or other authority - the council or authority consents to the vesting;
(v) requirements set out in regulations made for the purposes of this provision are satisfied;

4	I infer from s 33(1)(c) that the Act treats the provision of water supply and sewerage services as part of an application for land division. The Development Regulations, in Part 9, Division 2 sets out prescribed requirements for land division. Reg 54(4) provides:-

54 (4) Any drain which is necessary in accordance with recognised engineering practice for the safe and efficient drainage of the land and for the safe and efficient disposal of stormwater and effluent from the land must be provided and constructed.

5	The Act provides, in s 51(1):

51 (1) Subject to any exclusion prescribed by the regulations, the following certificate is required in relation to a development that involves the division of land under this Act, namely a certificate from the Development Assessment Commission that it is satisfied that the prescribed conditions as to development have been satisfied, or that the applicant has, by virtue of an entitlement under the regulations, entered into a binding agreement, supported by adequate security and, if the regulations so require, in a form prescribed by the regulations, for the satisfaction of any such condition.

6

The Council, on 29 August 2005, entered into a bonding agreement with Macag in relation to the land divisions approved by the DAC. The type of stormwater pipe to be installed by Macag is specified in that bonding agreement. A stormwater drainage plan numbered PCO40016 drawing CO1 A is annexed to the bonding agreement. That plan shows the proposed locations for stormwater pits and gives a level for the pits’ lids. It also shows a cross-section illustrating the relative locations of the stormwater drain and the sewer pipe in the same pit. Note 15 to the plan says:

Lid levels to pits 3 and 4 are based on finished surface levels are detailed on the SA Water Sewer design, drawing no. 04-3139-01.

7	It was the evidence of Mr Seeley, a director of Macag, that drawing No. 04-3139-01 was handed by him to Mr Steve Stefanopoulos, a Council officer, some days prior to the bonding agreement being executed. Drawing No. 04-3139-01 clearly illustrates the fact that the proposed stormwater and sewer scheme involved the placement of fill on the land to achieve the levels necessary to connect with the existing systems.
8	Several affidavits of Mr Sidhu, a Council planning officer, were tendered in evidence. Mr Sidhu observed the placement of a considerable quantity of fill on the site in November 2005. Mr Sidhu did not give oral evidence.
9	It was argued on behalf of the Council that the development approvals issued by the DAC to Macag did not include the approval of the stormwater and sewerage scheme for the allotments, and did not include approval for the filling of the land associated with the installation of those systems. It was further argued that the installation of a sewer pipe and the stormwater infrastructure required further development approval because those works are "building works" and therefore "development" in their own right.
10	I think it is plain from the scheme of the Act in respect of land division contained in the provisions which I have quoted above that the provision of stormwater drainage and a sewerage system, where appropriate and required, are an integral part of a land division. The Council’s position in this matter is fundamentally irreconcilable with its participation in the bonding agreement which enforces the installation of the stormwater system by Macag.
11	The Council complains that the DAC approved the land division applications in reliance upon a report of one of its officers which noted that "this proposal does not involve landfill". The Council put forward no direct evidence that any such representation had been made by Macag in the course of the processing of the application. In any event, such statements must be viewed against the long history of Macag’s attempts to develop this land to ascertain their intended meaning. Macag’s original plans for the land, on the evidence of Mr Seeley, involved filling the entire gully to the level of Duncan Road. The Full Supreme Court in Development Assessment Commission v Macag Holdings Pty Ltd [2001] SASC 189 of 19 July 2001 determined that the substantial excavation and filling of the site for the purpose of preparing it for residential use constituted a change of use of the land, which is development and which is therefore controlled by the Development Act. It is clear from his evidence that Mr Seeley sees the use of fill to install stormwater and sewerage infrastructure as different in nature from the filling of the land he has previously undertaken.
12	The Council put forward no evidence as to whether the extent of the fill now placed on the land is in excess of what is required for the schemes shown on plans PCO40016 CO1 A and 04-3139-01. The only evidence on that point is Mr Seeley’s, who says that he will need one and a half times as much fill again as the quantity placed on the site in November.
13	The Council called no expert witness to provide an alternative interpretation of the plans or to give evidence of any alternative way of providing stormwater and sewerage services to the approved allotments. The certificate pursuant to s 51 of the Act has been provided in relation to the allotments, the plan has been lodged at the Lands Titles Office, and certificates of title are expected to issue shortly. Macag has an unconditional contract for the sale of two of the allotments.
14	Mr Sidhu, in one of his affidavits, provided a land division plan over the entire site which is presently the subject of a development application before the DAC. That plan shows a road in the approximate location where the fill has been placed on the site. Mr Sidhu clearly suspects that the fill will not be used for the stormwater and sewerage infrastructure, but will be used for the internal road. Mr Seeley, in evidence, categorically denied this. He pointed to the fact that the fill had not been compacted appropriately for use as a road. It seems reasonable to me that the fill should be stored on the site prior to use - it can hardly be placed immediately in the stormwater trench. Mr Hilditch argued that the fill was being stored on the superlot - Lot 10 - which is not a residential allotment. He suggested that this fact somehow refuted the evidence that the fill was to be used in relation to the residential land division. I reject this contention.

Summary and Conclusion:

15	The burden of proof in relation to s 85 proceedings falls upon the applicant for relief - in this case the Council. The Council has failed to prove on the balance of probabilities that Macag has committed a breach of the Act.
16	Mr Manos, counsel for Macag, sought an order revoking leave to serve the summons in this matter. I refuse that application, as it seems to me to be inappropriate at this time in the proceedings.
17	Mr Manos also sought time to consider whether his client should make an application pursuant to s 85(16) for damages. Upon considering the terms of s 85(16), I agree that it is appropriate to give him some time for this purpose.
18	I decline to make the orders sought in the summons.
19	I adjourn the matter to 9.40 am on Friday 3 February 2006 for consideration of the question of an application pursuant to s 86(16) and costs.