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MOJIM PTY LTD & ORS v CITY OF PLAYFORD (No 2) [2007] SAERDC 19 (4 April 2007)

Last Updated: 10 April 2007

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.

MOJIM PTY LTD & ORS v CITY OF PLAYFORD (No 2)

[2007] SAERDC 19

Judgment of Her Honour Judge Cole, Commissioner Hodgson and Commissioner Brine

4 April 2007

LOCAL GOVERNMENT - TOWN PLANNING

Two appeals under the Development Act 1993 - appeal against Council's refusal to extend the life of a development approval - application seeks to extend a development to adjacent land - whether the approved development has been lawfully commenced by substantial work on the site - whether application was properly assessed by Council - lawfulness of existing use considered - extension of the development approval declined.
Appeal against the refusal of an application to build a pair of semi-detached transportable dwellings forming an extension to village - approved land use on the site is for a caravan park - whether application is for semi-detached dwellings or for two dwellings of a kind not specifically defined in Schedule 1 - finding that the development is not non-complying and is contrary to the relevant provisions of the Development Plan - appeal dismissed.
Development Act 1993; Environment Protection Act 1993; Residential Tenancies Act 1995; Retirement Villages Act 1987; Equal Opportunity Act 1984, referred to.
Compaction Application Tips Pty Ltd and Others v Australian Waste Pty Ltd and Another (2001) 80 SASR 435; Development Assessment Commission v Macag Holdings Pty Ltd [2001] SASC 189; Drummoyne Municipal Council v Lebnan and Others [1974] HCA 34; (1974) 131 CLR 350; Day v Pinglen Pty Ltd and Others [1981] HCA 23; (1981) 148 CLR 289; Hall v City of Burnside and Another [2005] SASC 199; (2005) 91 SASR 532; Hall and Another v City of Burnside and City Apartments [2005] SASC 343; (2005) 92 SASR 579; Fairmont Homes Pty Ltd v City of West Torrens & Ors [1998] EDLR 126, considered.

MOJIM PTY LTD & ORS v CITY OF PLAYFORD (No 2)
[2007] SAERDC 19

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1 This matter concerns two appeals. One is an appeal by Mojim Pty Ltd against a refusal to grant provisional development plan consent to a development application to build a pair of semi-detached dwellings on Lot 2 Andrews Road, Penfield ("Lot 2"). The other is an appeal by Mojim Pty Ltd and others from the City of Playford’s ("Council") decision pursuant to the Development Act 1993 ("the Act") to refuse an application to extend the time within which it may substantially commence the extension of the Elizabeth Village onto Lot 2. Mojim Pty Ltd trades as Elizabeth Village, and has made some of the applications the subject of this judgment in that name. We will refer to Mojim Pty Ltd, Elizabeth Village and the owners of the land (which include Mojim) as "Mojim" in this judgment.
2 We heard the two appeals together, and the evidence will be treated as common to both. In Mojim’s case, Mr Wohlstadt, a planner, gave evidence, and so did Mr Graetz, a director of Mojim. In the Council’s case, Mr McIntyre, a planner gave evidence, and so did Mr Pace, a planning officer of the Council. In addition, we had the benefit of extensive documentation which was tendered, including the history of development approvals in relation to the Elizabeth Village.
3 The Elizabeth Village is sited on Lot 1 Andrews Road and Lot 6 Bellchambers Road. Lot 1 Andrews Road, which is 4.007 hectares in area, abuts Lot 2 along Lot 2’s northern boundary, and Lot 6 Bellchambers Road, which is 4.313 hectares in area, abuts Lot 2 along Lot 2’s eastern boundary (directions are approximate). The Elizabeth Village was established as a caravan park in the late 1980s. Subsequently, in stages over some years, almost all of the caravan sites were replaced with transportable homes. The Elizabeth Village is now comprised almost entirely of relocatable homes (accessible from an internal roadway network) together with a social club building, a swimming pool, an administration centre, including a kiosk, landscaping and carparking.
4 Lot 2, which is 4.007 hectares in area, is presently vacant, open grassland except for a detached dwelling in the northwestern corner. An application to extend the caravan park onto Lot 2 was granted on 13 April 1993, but that approval was never implemented, and it expired.
5 Lots 1, 2 and 6 are in the Rural Zone in the Playford (City) Development Plan.
6 Mr Wohlstadt identified a locality for the dwelling proposal which included only Lots 1, 2 and 6. Mr McIntyre’s locality went along Bellchambers Road from the boundary of the Rural Zone with the General Industry Zone, to the properties immediately west of Andrews Road, along Womma Road back to and along the Zone boundary. We adopt Mr McIntyre’s locality because it is the area within which the Elizabeth Village has a direct impact. The land within the locality is generally used for horticulture or rural living and has that appearance and character.
7 A development application in respect of Lot 2, dated 2 November 2004 (DA 292/2069/2004) was lodged with the Council. On the application form, the development applied for was described as "Village extension" and the intended use was described as "Residential use". The development application form was accompanied by a letter describing the proposal. There is a dispute about which plans were provided with the applications, which we will deal with below. It is clear that it was proposed to establish 95 transportable house sites together with a network of internal roads, services, some fencing and some landscaping. The existing house on Lot 2 was to be retained. It was clear that the applicant intended to extend the Elizabeth Village onto Lot 2, and that the extension, once developed with relocatable houses, would be managed in conjunction with the existing Elizabeth Village. In fact, vehicular access to Lot 2 was proposed to be taken via Lot 1.
8 The Council granted development approval to the development application, subject to nine conditions, on 12 April 2005.
9 Subsequently, Mojim made a further development application to establish two semi-detached transportable dwellings on Lot 2 (DA 292/1932/2005). The Council refused that application on 6 December 2005. Mojim appealed to this Court against that refusal.
10 Mellor Olsson, the solicitors for Mojim, wrote to the Council on 20 January 2006. That letter said:-

As you are aware, we act for the owners of Elizabeth Village, Andrews Road, Penfield.
On 12^th April 2005, the City of Playford approved an extension to the Elizabeth Village as per Development No. 292/2069/2004.
You will also be aware that on 6^th December 2005, a further application, being Development No. 292/1932/2005, for the construction of two semi-detached transportable dwellings on Lot 2, Andrews Road, Penfield, came before the Development Assessment Panel Council. That development application was refused. We have been instructed to pursue an appeal in the Environment, Resources & Development Court in respect to that refusal.
You will appreciate that the work contemplated in the later development application would have constituted the process of substantial commencement on works on the site of the development in relation to the approval of 12^th April 2005. Given the time that it is likely to take before the appeal can be heard, we believe it may be difficult for our client to undertake substantial commencement on or before 12^th April 2006. We, therefore, seek an extension of the development authorisation of 12^th April 2005 pursuant to Section 40(3) of the Development Act, 1993.
We would seek your urgent attention to this enquiry. If, for some reason, you form the view that the development authorisation should not be extended, then we would seek full particulars of your reasons for that decision.
We look forward to hearing from you as soon as possible.

11 The Council replied by letter dated 21 March 2006 in these terms:-

I refer to your letter dated 20 January 2006, in which you requested an extension of time to substantially commence development application 292/2069/2004 (physical) Extension to Elizabeth Village.
The application to grant an extension of time to substantially commence the Extension to Elizabeth Village, as detailed in Development Application No: 292/2069/2004 has been REFUSED for the following reasons:
Application 292/2069/2004 (land use) showed indicative plans of detached transportable dwellings. The applicant has since lodged an application for semi-detached dwellings as detailed in DA 292/1932/2005 - which are not in the character of the land use approval. The applicant has now submitted 2 semi-detached dwellings which is contrary to that shown on plans and therefore the original plans may have been misleading.
Furthermore, an application to extend the Elizabeth Village over Lot 2 Andrews Road was approved in April 1993, and never implemented. Therefore Council has concerns that the applicant is not serious about proceeding with the development.
It is considered the original application for physical extension of the land use is contrary to the Playford (City) Development Plan objectives and Principles of Development Control as listed:
Council Wide: Objectives, 1, 2, 3, 17, 19, 20, 21, 44, 45, 46, 49 and
Principles of Development Control 31(e), 33(a) (b) (c), 46, 64, 122(b) (d) (e), 125(a), 126, 191, 192(a);
Rural Zone Objectives 1, 2, 4 and Rural Zone Principles of Development Control 1, 5(a) (b), 7, 11(c).
APPEALS
If you are aggrieved by the decision, you may appeal to the Environment, Resources and Development Court within two (2) months of receipt of the Decision Notification for the Consent.

12 On 22 June 2006, Mellor Olsson lodged a notice of appeal in relation to that decision in this Court, and also sought, in the alternative, "a declaration that as at 12 April 2006, the development the subject of the application had been lawfully commenced by substantial work on the site". An extension of time within which to appeal was sought. That extension was granted on 14 July 2006. The judgement in relation to that application sets out the circumstances in some detail.
13 This judgment therefore deals with two appeals: the appeal against the Council’s refusal to extend the life of the development approval issued in relation to DA 292/2069/2004 and the appeal in relation to the refusal of the application to establish two semi-detached transportable dwellings, being DA 292/1932/2005.
14 Before turning to consider whether the life of the development approval in DA 292/2069/2004 should be extended, it is necessary to consider what development it was that was approved by the Council; in other words, we need to ascertain what it is that is proposed to be extended. The concept of ‘an application’ is different from the concept of ‘a development’ under the Development Act 1993. In order to assess a development, a planning authority must first ascertain what that development consists of (see Compaction Application Tips Pty Ltd and Others v Australian Waste Pty Ltd and Another (2001) 80 SASR 435 and reg. 16, Development Regulations 1993). When considering whether to extend a development approval, it must also be necessary for a planning authority (and this Court, on appeal) to know what the development is that is sought to be extended. Often, that will be obvious. In this case, it is not.

The Development Approved on 12 April 2005

15 Mr Pace, the team manager of planning and building at the Council, gave evidence in the Council’s case. Mr Pace had searched the Council’s records in relation to DA 292/2069/2004. He found that the only plans which were on the Council file in relation to that Development Application were the Total Site Allotment Plan and the Site Landscaping Plan. Mr Graetz, however, said that he submitted with the application those two plans together with four further plans, namely the stormwater drainage plan, the Lot 2 contour plan, the site contour plan and allotment plan and the services and roadway plan.
16 The planning report which was before the Council when it considered DA 292/2069/2004 is included in the copy documents. The content of that report is consistent with the Council having only the Total Site Allotment Plan and the Site Landscaping Plan before it. The report treats the development application as being purely for a change of use of Lot 2. It does not offer any assessment of the plans for service provision. No assessment of the stormwater drainage arrangements, the contours or the services and roadway arrangements was undertaken by the primary planning authority, because the Council was quite simply not in possession of the plans. On the evidence before us, we are unable to say how this occurred; Mr Graetz gave evidence that he lodged all of the plans, but we find that they have never been assessed, or placed before the Council. Until the procedures leading up to the hearing of these appeals, the Council was not in possession of those plans.
17 However, notwithstanding the paucity of information before the Council, it is evident from the conditions attached to the face of the development approval that the Council perceived itself to be approving an "Extension to Elizabeth Village" together with some of the site works necessary to bring that extension into existence. Condition 2 of the development approval contemplated the sealing and line marking of internal roadways, and conditions 5, 6 and 7 contemplated the design and establishment of a stormwater treatment system without a further development application. Had the development approval related purely to an extension to the Elizabeth Village without reference to site works, it would have been doubtful whether the development approval actually related to a project which could be described as "development" within the meaning of the Development Act. However, some site works were encompassed within the development approved, and in those circumstances it seems to us that the development approval is for development comprising a change of the use of Lot 2 from non-use (except for the existing dwelling) to use as part of the Elizabeth Village. This is so notwithstanding that the Council was not as well informed about the extent of the site works proposed as it would have been had it been in possession of all of the plans. It is true that further works beyond those encompassed in the development approval would be required before there could be activity in pursuance of the new use, but it is well established that a use of land can change prior to all of the works referrable to that change being approved (see Development Assessment Commission v Macag Holdings Pty Ltd [2001] SASC 189).
18 The next question which arises in relation to the change of the use of the land is the nature of the land use that is the Elizabeth Village, but that question can be dealt with conveniently below.
19 Two questions must be addressed in relation to the question of whether the life of the development approval in DA 292/2069/2004 should be extended; firstly whether the approved development has been commenced by substantial work on the site, in which case it does not need to be extended, and secondly, if the development has not been commenced, whether the operation of the development approval granted subject to nine conditions on 12 April 2005 should be extended.
20 The Development Regulations provide, in reg. 48:-

(1) Subject to this or any other regulation, any consent or approval under Part 4 of the Act (whether subject to conditions or not) will lapse at the expiration of -
(a) subject to the operation of paragraph (b) – 12 months from the operative date of the consent or approval;
(b) if -

(i) the relevant development has been lawfully commenced by substantial work on the site of the development within 12 months from the operative date of the approval - three years from the operative date of the approval, unless the development has been substantially or fully completed within those three years (in which case the approval will not lapse); or
(ii) if the relevant development involves the division of land and an application for a certificate under section 51 of the Act has been lodged with the Development Assessment Commission within 12 months from the operative date of the relevant consent - three years from the operative date of the consent.

(2) A period prescribed by subregulation (1) may be extended by a relevant authority -

(a) when the relevant consent or approval is given; or
(b) at such later time as may be appropriate.
(3) Where an approval is given, any consent which was necessary for that approval will not lapse unless or until the approval lapses.
(4) In this regulation –
the operative date of a consent or approval means -
(a) the date on which the consent or approval is given; or
(b) if the decision to grant the consent or approval has been the subject to an appeal under this Act, the date on which any appeal is dismissed, struck out or withdrawn, or all questions raised by any appeal have been finally determined (other than any question as to costs),
whichever is the later.

Lawful Commencement

21 It was argued on behalf of Mojim that the development had been lawfully commenced by substantial work on the site prior to the expiration of 12 months from the operative date of the development approval. The operative date of the approval is 12 April 2005.
22 The question of what constitutes substantial commencement of a development (a formulation slightly different from that in reg. 48), has been considered by the High Court. In Drummoyne Municipal Council v Lebnan and Others [1974] HCA 34; (1974) 131 CLR 350, Gibbs J said, at 361:-

However, to say that work has been "substantially commenced" does not, in the natural meaning of those words, suggest that what has been done forms a large proportion of the whole work; something can be substantially commenced although it has not been substantially completed. For example, if, in the case of a large city building, work had been done that was in itself very extensive and costly, it would accord with ordinary usage to say that work had been substantially commenced, although what had been done formed only a small proportion of the whole work. The test to be applied for the purposes of s 315 and cl. 38(2) is whether the work or development the subject of the approval or consent has been begun by the performance of some substantial part of that work or development.

23 In Day v Pinglen Pty Ltd and Others [1981] HCA 23; (1981) 148 CLR 289, the Court said:-

We come then to this question of substantial commencement. As has been said, it is a question of degree. The facts must be such as to lead naturally to the conclusion that the commencement is not merely evident, but is substantial, that is, of considerable amount. The statutory purpose must be borne in mind. A substantial commencement involves a commitment of resources of such proportions relative to the approved project as to carry the assurance that the work has really commenced. We note that Samuels J.A. questioned the use by the learned trial judge of the word "significant" in applying the criterion; with respect, we agree because it merely substitutes one word of uncertain content for another. Suffice it to say that in the present case we have no hesitation in concluding that the construction of the slab was not a substantial commencement. Pinglen pressed the analogy with the facts in Lebnan’s Case but it is futile to seek an answer to one case in the facts of another.

24 In requiring "substantial work on the site of the development", we take reg. 48 to be requiring, in the words of the High Court, a considerable amount of work on the site. What constitutes substantial work needs to be decided in the context of how much work would be involved in the development as a whole. In our consideration of the issue, to put the matter at its highest from Mojim’s point of view, we will treat the earthworks, the roadworks and the installation of services as the works associated with the use of the land for an extension of the Elizabeth Village for the purpose of the development approval in contention.
25 On the view, we observed that some earthworks had been undertaken on the site. The photographs which comprise Exhibit A6 show some of those works. They basically consist of the smoothing of the earth on an area of the site, and were performed in late March or early April 2006. In evidence, Mr Graetz explained frankly what his motivation was in arranging for the earthworks to be done. He said, at p.88 of the transcript, in examination in chief:-
Q Can you tell the court in broad terms what the nature of those earthworks were, what purpose, what was being achieved by those earthworks.
A The dilemma we were facing was that we had development approval and then we were refused building approval. To make a substantial start on the development of that nature would have meant expenditure in excess of $500,000. We were really loath to spend substantial amounts of cash on something we may never ever be able to build on so we did some preliminary earthworks to the value of I think it was eight or 10, $12,000 just to show our - I suppose our intend to get it started.
Q What were they actually doing.
A We were trying to level off a section of ground to approximate working levels.
26 In cross examination, at p.104, Mr Graetz said:-
Q And you commissioned the preliminary earthworks to be done to give the impression of commencement of that approval.
A No, it wasn’t the impression, it was to show intent, that we were going to proceed with the development should we be successful in our case from here. It was an intent to show that we would proceed, not that we would not let it lapse.
27 In relation to the extent of the works themselves, the invoices in relation to the works were tendered and became Exhibit A5. The total cost of the works was $4,675. It appears from the invoices that the transport to the site of a bulldozer cost $500 and the hire of the bulldozer cost $2,000. A grader was hired at a cost of $100 per hour for 9.5 hours, amounting to $950. CSA Earthmovers then charged $800 to do the work. The sum of those amounts, plus GST is $4,675. Mr Graetz’ approximation in evidence, quoted above, was a little high. To be fair to him, he may have been including the cost of the plans in Exhibit A8. For reg. 48 purposes, however, only the works performed on site are relevant.
28 In cross-examination, Mr Graetz outlined what he considered to be the works involved in the development approval at p.95 of the transcript:-
Q The estimated development cost of $490,000 on the - application form. I think you mentioned a figure of 500,000 just recently in answer to a question from my learned friend. How did you calculate that cost and what sort of work would be undertaken in your contemplation to represent that expenditure.
A We would at that point in time have used a very simple calculation of approximately $10,000 per site cost development to us. It’s since increased to in excess of $20,000 per site for development and infrastructure.
Q When you say $10,000 per site, is that in relation to the provision of infrastructure, earthworks and the like.
A It would be the entire and it was never our -
Q Or what work exactly is contemplated.
A Well, it would include a piece of land that a house purchaser or a new resident was able to bring his or her or their transportable house into the village and attach it to our underground facilities. So it would include water, power, sewerage, telephone, road works, curbing, fencing, access roads, bitumen roads, all those sort of things. It would include every single requirement we have to give to provide a house site. It was never our intent to do the 100 sites in one fell swoop. We were planning to do it in two stages.
29 At p.105, still in cross-examination, Mr Graetz said:-
Q Were your instructions in relation to the specific work in terms -
A We had provided to them a contour map showing the final levels which we wanted to achieve and I asked those two companies or those two contractors to take us to about 100 mm, those levels, so we could use for road build-up should the application be successful. In that very small part of lot 2, not the entire part of lot 2. It covered two actual road areas, two of our internal road areas, that’s all it covered.
Q Quite a small portion.
A Small portion, approximately one-fifth I suppose.
Q Having regard to the estimated cost of $490,000, a small percentage of that.
A If they had progressed to the earthworks for the balance of lot 2 - certainly the earthworks cost would have increased hugely because there was a large rise in the ground lot just beyond where we asked them to stop. The $490,000 would have got us the underground works for half of the site -
30 We accept that, in arranging for the earthworks to be performed very late in the life of the development approval, Mr Graetz was trying to demonstrate to the Council that he was committed to the extension of the Elizabeth Village onto the site. He was not attempting to set up a sham commencement for the purposes of reg. 48. However, the works undertaken do not constitute substantial commencement having regard to the extent of the siteworks proposed. They are token works, undertaken to make a point to the Council. It is clear from Mr Graetz’ evidence that he decided not to spend any more money on the project because of the uncertainty as to whether it would proceed. We appreciate the difficulty of the situation in which Mr Graetz found himself. The result, however, is that the development has not been substantially commenced.

Application for Extension

31 In the absence of the commencement of the development by substantial works on the site, it is necessary to consider whether the life of the development approval granted on 12 April 2005 should be extended.
32 In Hall v City of Burnside and Another [2005] SASC 199; (2005) 91 SASR 532, Debelle J said, at p.542:

Plainly, any application for an extension made after the consent or approval has expired must be made within a reasonable time after the date of expiry or the date when the holder of the development consent became aware that the consent had expired. If the application is not made within a reasonable time, that may well be an important factor telling against extending the consent or approval. Other relevant factors will be whether the planning legislation has altered, the reasons why the application for extension has been made, and whether others are unfairly prejudiced if the extension is granted. These are not necessarily the only factors. Each case will have to be considered on its own facts.

33 In the Full Court, in Hall and Another v City of Burnside and City Apartments [2005] SASC 343; (2005) 92 SASR 579 at p.598, Bleby J said:-

The granting or withholding of the extension is discretionary. If there has been a material change in the planning legislation or in the relevant Development Plan such that consent to the development could not then be given, or if there has been some other material change of circumstance affecting the granting of consent, those may be relevant factors in the exercise of that discretion, to be weighed carefully against the diligence with which the applicant has pursued the development and against other circumstances which may have frustrated that activity.

34 Mr Leydon argued that there had been a material change in the Development Plan since the approval of the development application. The Development Plan applying to the development application when it was processed by the Council was the Development Plan consolidated on 3 June 2004. The Development Plan in force at the time that the Council considered the application for an extension of the operation of the development approval was the Development Plan consolidated on 25 January 2006. The current Development Plan is 15 February 2007. The only expert town planning evidence in relation to whether there had been a material change in the relevant Development Plan was given by Mr McIntyre, who gave evidence in the Council’s case. Mr McIntyre said that between 2 November 2002 and 14 March 2006, the Development Plan changed four times. Only one of those changes had consequences for the assessment of the works proposed for Lot 2, and that was the inclusion of a number of catchment water management provisions in the 20 January 2006 consolidation of the Development Plan which were inserted by the Catchment Water Plan Amendment Report. Mr McIntyre said, in his statement, Exhibit R5:-

28. The 3 June 2004 Development Plan contained minimal provisions regarding water quality management and stormwater use but relate, in the main, to the assessment of land division proposals or relate to other areas of the Council, such the Mount Lofty Ranges Region or Coastal Areas [sic]. One provision that would have applied to the assessment of the application was Council Wide Objective 62, which read as follows:

Objective 62: Stormwater managed through the adoption of water harvesting techniques to minimise run-off and the degradation of surface and underground water resources, and to assist in the recharge of underground supplies.

29. However, the above Objective was not supported by adequate Principles of Development Control which give guidance as to how to adequately protect surface and ground water from pollution, protect environmental flows, promote sustainable use of natural water resources, ensure detention and retention for reuse. The Catchment Water Resources Plan Amendment Report acknowledged the failings of the Development Plan and introduced numerous provisions to guide developments. Of the additional provisions contained within the 25 January 2006 version the following are most relevant to the proposal:

• Council Wide Objectives 54, 55, 56, 58, 59, 62, 63 and 64;
• Council Wide Principles 17, 225, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248 and 264.

35 The provisions listed by Mr McIntyre are detailed. Principles 235 to 248, which deal with stormwater management, are particularly relevant to the siteworks proposed. Mr McIntyre says, in his statement:

Stormwater management plans would, today, be an essential part of any development application for a proposal such as this. An application lodged since the introduction of the catchment water management provisions would require detention basins which would allow sediments to settle, reduce high velocity drainage and if using wetlands for the cleaning of stormwater, require storage that is able to retain the 25 year, 24 hour rainfall event. In addition, the provisions would require the retention of stormwater for reuse. Such detention and/or retention basins would, in most circumstances, require the assistance of a suitable qualified person to design taking into account stormwater runoff quantities and velocities, treatment methods, reuse methods and area and volume requirements for retention and detention. Such retention and detention methods, be it in the form of basins, wetlands or tanks, and would require space to construct which would have an effect on the number of dwellings able to be accommodated on the land.

And further:

If the application was lodged under the 25 January 2006 version of the Development Plan (and subsequent versions), the application need [sic] to contain considerably more information, especially considering the extent of excavation involved, to demonstrate that the proposal is adequate in relation to the protection of the supply and quality of water resources, the maintenance of natural hydrological systems and environmental flows and the management, treatment and reuse of surface runoff. More importantly, it is likely that the amendments to the Development Plan would have resulted in a significantly different proposal if assessed under the 25 January 2006 Development Plan. The proposal would, as at the date of consideration of the time extension application, need to include adequate areas for the establishment of treatment, retention and detention basins (likely resulting in a reduced number of dwellings) include stormwater treatment, reuse and minimise excavation.

36 We accept Mr McIntyre’s evidence.
37 It was argued on behalf of Mojim that conditions 5, 6 and 7 of the development approval dealt sufficiently with stormwater management. Those conditions said:-

5. Stormwater shall be appropriately treated and/or discharged, to the reasonable satisfaction of Council.
6. Gross pollutant traps are to be provided on each pipe system where it discharges into an open water course or open drain to the reasonable satisfaction of Council.
7. An appropriate Soil Erosion and Drainage Management Plan (as described in the ‘Stormwater Pollution Prevention General Code of Practice for Local, State and Federal Government’) which includes a range of strategies to collect, treat, store and dispose of stormwater during construction and from the final form of the development (ie from roofs, driveways, parking areas, lawns, etc) while minimising disposal into the environment. Given the fact that stormwater can contain a wide range of pollutants (such as suspended solids, nutrients and oils etc) stormwater runoff from future roofs, car parks, and other impermeable surfaces should be directed to large areas of vegetation, wetlands, or to natural or man-made fresh water features, rather than directly to any waterways or Council stormwater systems.

38 Mr Leydon, counsel for the Council, argued that condition 5 was invalid because it was vague and uncertain and lacked finality in the sense that it was unclear whether treatment or disposal or both were required. Mr Leydon further argued that condition 7 was poorly worded and difficult to interpret. He said it was unclear whether the condition required a plan to be prepared for approval, and whether the plan was required to be implemented. He argued that it was vague and uncertain. Further, it did not relate reasonably to the proposed development in that it referred to such matters as dealing with erosion and drainage from roofs, driveways, parking areas and lawns. Mr Leydon pointed out that condition 7 was the kind of condition which had been found to be invalid in Fairmont Homes Pty Ltd v City of West Torrens & Ors [1998] EDLR 126, on the basis that its purpose was to meet the requirements of other legislation, namely the Environment Protection Act 1993.
39 Mojim volunteered to do whatever was necessary to meet the current requirements in relation to stormwater.
40 The proposed siteworks involve a large area of land. Emphasis has now been placed in the Development Plan upon the proper management of water, including stormwater. Those provisions have carried through to the current Development Plan. It is clear from the evidence that the development application was not properly assessed by the Council in the first place, for a number of reasons, including the fact that the Council was not in possession of the set of plans which included the stormwater drainage plan, the contour plan and the services and roadway plan. We are not able to say why this was so, but we are satisfied that it was so. We accept Mr McIntyre’s opinion that stormwater management plans would be required as part of a development application of this type under the January 2006 consolidation of the Development Plan. We further accept that in order to comply with the January 2006 Development Plan, and the Development Plan in force today, a stormwater drainage plan would need to provide for detention and/or retention methods. The approved design for Lot 2 would need to be amended to accommodate these things. Stormwater management measures are now required to be integrated into the design of a development. Compliance with the conditions imposed upon the development approval, even assuming those conditions are valid, will not bring the proposed development into compliance with the more recent requirements without amending the proposal.
41 The development approval should not be extended, both because the application was not properly assessed in the first place, and because even if the Council had been in possession of all of the plans available at the time, the proposal would still not have been sufficiently sophisticated in relation to stormwater management to warrant consideration under the January 2006 consolidation of the Development Plan.

Elizabeth Village

42 Mr Graetz gave extensive evidence about the manner in which the Elizabeth Village has been conducted. It began as a caravan park established pursuant to an approval granted on 14 June 1988. Condition 5 of that approval provided as follows:-

5. Not more than 50% of the sites within the Caravan Park shall be used for permanent residents. In this respect, permanent residents shall include all residents who reside within the caravan park for a period exceeding four continuous calendar months.

43 By letter dated 23 November 1990, a request was made to change condition 5. On 11 December 1990, the Council apparently passed a resolution in these terms:-

That Council approve a variation to condition no. (5) relating to Development Application No. 291/121/88 to read as follows:

(5) Not more than 80% of the sites within the caravan park shall be used for permanent residents. In this respect, permanent residents shall include all residents who reside within the caravan park for a period of six continuous calendar months.

44 In 1993, there was an application to extend the land use, which received development approval, but which was not then proceeded with.
45 The Council has provided the Court with a comprehensive set of documents in this matter, which we understand to include the entire planning history of the Elizabeth Village. The documents are Exhibit R1 and they were tendered by consent. The only land use approved for Lot 1 and Lot 6 is a caravan park, albeit with the ability to provide for 80% of the sites to be used for permanent residents.
46 Mr Graetz was very frank in evidence about the way in which the Elizabeth Village is conducted. There is one site at the Village which is the subject of a registered lease. All of the other sites are offered on the basis of an Agreement, which was tendered in evidence as Exhibit A3. Some of the sites currently occupied are occupied pursuant to an earlier version of the Agreement. The current version requires that new residents pay a "once-only levy payment to Elizabeth Village of $4,500 towards the ongoing maintenance and upgrading of the Village services and facilities. The payment shall be made by the new resident not later than seven days prior to the new resident taking up occupancy." In addition, the Agreement provides on p.4:-

Elizabeth Village requires a site surety deposit of $200 this deposit will be refunded when the resident vacates the site (removes the house from the Village) or sells their house on site. The current site rental for 2 persons at Elizabeth Village is $86.00 per week, to be paid 1 week in advance at all times.

47 The Agreement provides for the issuing of a "termination (eviction) notice" from the Village owner or manager. The Agreement provides that such a notice is to be issued "as an absolute ‘last resort’". It also provides that it will be effective immediately. The Agreement provides, on p.8:-

If a resident or their visitor has carried out or causes any action in the Village area that results in a serious criminal charge being laid against the resident or their visitor by the SA Police then an instant termination (eviction) notice may be issued to the resident by the Village owners.

48 The Agreement further provides, on p.7:-

The residents (sic) right to occupy a site can only be terminated when:

• The resident decides to sell their house on site in the Village.
• The resident abandons the sight (sic) or accommodation (house).
• The resident receives a termination (eviction) notice from the Village owner(s) or manager(s).
• The resident decides to vacate the site (transport their house out of the Village).

The resident must also pay for the transportable home.

49 Mr Graetz said in evidence that children were not allowed to live in the Elizabeth Village. Mr Graetz did not consider that the Elizabeth Village was bound by the Residential Tenancies Act 1995. He did not believe that the relationship between the owners of the Elizabeth Village and its residents was regulated under any piece of legislation, including, presumably, the Retirement Villages Act 1987. The present practice of the management of the Elizabeth Village is to seek tenants who are over the age of 55 years. Mr Graetz gave evidence that anyone seeking to acquire the right to live in the Elizabeth Village who was under 55 years old or wished to live with a child was quoted a less favourable weekly charge than people over 55 without children.
50 It is clear from the evidence of Mr Graetz that residents in the Elizabeth Village obtain entitlements beyond the right to live there. They are able to have resort to the Village managers when they require assistance. They have access to the kiosk, the social club and the swimming pool. They may use the free mini bus provided by the Village management.
51 The nature of a development cannot always be ascertained simply by reference to building form. The way in which a development is managed may, in some circumstances, change the nature of the land use.
52 We have considerable reservations about the lawfulness of the conduct of the Elizabeth Village at present. It seems to us that it may be being managed in contravention of the Development Act 1993. The only land use approved is a "caravan park", but it does not seem to us that the Elizabeth Village could now sensibly be described as a caravan park. It seems to have evolved into some other form of use more akin to a retirement village without, at any stage, obtaining development approval for a change in use.
53 In addition, we are concerned that the entering into of the Agreement by Mojim with residents may, depending upon how the rights granted by that Agreement are characterised, constitute the division of an allotment (which is a kind of development which requires development approval) under the Development Act 1993. The Development Act 1993, in s 4 provides:-

division of an allotment means –

...
(c) the conferral or exercise of a present right to occupy part only of an allotment under a lease or licence, or an agreement for a lease or licence, the term of which exceeds six years or such longer term as may be prescribed, or in respect of which a right or option of renewal or extension exists so that the lease, licence or agreement may operate by virtue of renewal or extension for a total period exceeding six years or such longer period as may be prescribed;
...

54 It is not our function on the hearing of this matter to make final determinations in relation to whether the present use of the Elizabeth Village is lawful, either in terms of the Development Act 1993, the Retirement Villages Act 1987 or the Equal Opportunity Act 1984. However, we do not think that it is appropriate to extend the life of a development approval which would have the effect of extending the existing land use onto Lot 2 in circumstances where there are unanswered questions about the lawfulness of that existing use. It may be that these issues can be resolved. We think they should be resolved before the Elizabeth Village is extended in any way.

DA 292/1932/2005

55 The application on behalf of Mojim Pty Ltd to establish two semi-detached dwellings on Lot 2 was refused by the Council on 6 December 2005. Mojim appealed to this Court against that refusal.
56 There was a dispute about the date upon which the application was lodged with the Council. The Development Application form is dated 8 August 2005 at its foot, but the only copy in the possession of the Council was faxed to the Council on 19 October 2005. The description of the proposed development was amended from "Dwelling" to "2 semi-detached transportable dwellings" on 15 November 2005. Part of the fee due to the Council in relation to the application was paid in August 2005, but the public notification fees were not paid until 15 November 2005. Planning Advisory Services, which lodged the application, has no reliable record of when it was sent. It seems to us that it is most appropriate to take the date of the application as 15 November 2005. The relevant version of the Development Plan is therefore the consolidation of 18 August 2005.
57 The question of how this development should have been categorised is a complex one. Principle 13 of the Rural Zone provides that "more than one freestanding dwelling on an allotment" is non-complying. There was argument before us as to whether the proposed development came within that description. The Council processed the development application as being for two semi-detached transportable dwellings, which is a form of development which is neither complying nor non-complying. In our view, the better description of the proposal is as an extension to a retirement village, which is also a form of development which is neither complying nor non-complying.
58 The proposed development was applied for by Mojim as part of the beginning of the extension of the Elizabeth Village onto Lot 2. There is a real sense in which the two appeals the subject of this judgement form part of one development (see Compaction Application Tips Pty Ltd and Others v Australian Waste Pty Ltd and Another (2001) 80 SASR 435).
59 Council Wide Objective 1 in the applicable Development Plan seeks "Orderly and economic development". The objectives and principles of development control for the Rural Zone seek the use of the land in that Zone for agricultural purposes or for rural living. Plainly, the development proposed, taken alone, (as the Council appears to have viewed it) is contrary to the relevant provisions of the Development Plan, both in terms of its form and its use. Principle 5 of the Rural Zone provides that additional dwellings on an allotment which already accommodates a dwelling should only be allowed if it is designed as an extension to that existing dwelling.
60 As an extension of the Elizabeth Village, in our opinion, the development proposed is premature and should not be approved. It is clearly intended to be integrated into, and form part of, the Elizabeth Village. Only once the status and nature of the Elizabeth Village has been clarified and, if necessary, regularised, should its possible extension be considered. If that point is reached, this application, in order to be properly assessed, needs either to be preceded by, or form part of, an application for the change of use of Lot 2, including necessary site works and services.
61 At present, the application for two attached dwellings on Lot 2 is not orderly and economic, and is not in accordance with the relevant provisions of the Development Plan. The Council’s decision to refuse it will be upheld.

Conclusion and Summary

62 In relation to Development Application No. 292/2069/2004, we find and determine that the development approved has not been commenced by substantial work on the site. The development approval lapsed on 11 April 2006.
63 In relation to the question of whether that development approval should be extended, we find that the Council did not have the plans for the stormwater drainage, the contours and the services and roadways before it when it assessed the application. Nonetheless, the development approval was an approval for the extension of the Elizabeth Village on to Lot 2 including some of the site works necessary for that proposed change in land use. We find that the approved land use of Lots 1 and 6 is for a caravan park. It may, however, now be being used for a retirement village, and the leasing or licensing arrangements may amount to the division of an allotment pursuant to the Development Act 1993. In these circumstances, we decline to extend the development approval.
64 We find that the Development Plan has changed between the lodgement of the original application on the one hand, and both the time when the Council considered the request for an extension of time and the present time, on the other. The material change relates to the policies and practical requirements for the collection, treatment and disposal of stormwater. We are satisfied that the proposal in relation to stormwater, even had the Council considered it fully at first instance, would now be inadequate. This cannot be cured by compliance with the conditions attached to the original development approval. It needs to be integrated into the design of the development.
65 In relation to Development Application No. 292/1932/2005, we determine that the application is not for semi-detached dwellings, but is for two dwellings of a kind which are not separately defined in Schedule 1 and which are intended to form an extension of the Elizabeth Village. The development applied for is not non-complying. If assessed standing alone, it is contrary to the relevant provisions of the Development Plan. When assessed, as we consider it should be, as an extension of the Elizabeth Village, it seeks to extend a use which is not, on the evidence before us, an approved land use. Moreover, as matters stand, it is not supported by approvals for the necessary site works and services. It is, at the very least, premature, and should not be approved.
66 There will be orders accordingly.

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1	This matter concerns two appeals. One is an appeal by Mojim Pty Ltd against a refusal to grant provisional development plan consent to a development application to build a pair of semi-detached dwellings on Lot 2 Andrews Road, Penfield ("Lot 2"). The other is an appeal by Mojim Pty Ltd and others from the City of Playford’s ("Council") decision pursuant to the Development Act 1993 ("the Act") to refuse an application to extend the time within which it may substantially commence the extension of the Elizabeth Village onto Lot 2. Mojim Pty Ltd trades as Elizabeth Village, and has made some of the applications the subject of this judgment in that name. We will refer to Mojim Pty Ltd, Elizabeth Village and the owners of the land (which include Mojim) as "Mojim" in this judgment.
2	We heard the two appeals together, and the evidence will be treated as common to both. In Mojim’s case, Mr Wohlstadt, a planner, gave evidence, and so did Mr Graetz, a director of Mojim. In the Council’s case, Mr McIntyre, a planner gave evidence, and so did Mr Pace, a planning officer of the Council. In addition, we had the benefit of extensive documentation which was tendered, including the history of development approvals in relation to the Elizabeth Village.
3	The Elizabeth Village is sited on Lot 1 Andrews Road and Lot 6 Bellchambers Road. Lot 1 Andrews Road, which is 4.007 hectares in area, abuts Lot 2 along Lot 2’s northern boundary, and Lot 6 Bellchambers Road, which is 4.313 hectares in area, abuts Lot 2 along Lot 2’s eastern boundary (directions are approximate). The Elizabeth Village was established as a caravan park in the late 1980s. Subsequently, in stages over some years, almost all of the caravan sites were replaced with transportable homes. The Elizabeth Village is now comprised almost entirely of relocatable homes (accessible from an internal roadway network) together with a social club building, a swimming pool, an administration centre, including a kiosk, landscaping and carparking.
4	Lot 2, which is 4.007 hectares in area, is presently vacant, open grassland except for a detached dwelling in the northwestern corner. An application to extend the caravan park onto Lot 2 was granted on 13 April 1993, but that approval was never implemented, and it expired.
5	Lots 1, 2 and 6 are in the Rural Zone in the Playford (City) Development Plan.
6	Mr Wohlstadt identified a locality for the dwelling proposal which included only Lots 1, 2 and 6. Mr McIntyre’s locality went along Bellchambers Road from the boundary of the Rural Zone with the General Industry Zone, to the properties immediately west of Andrews Road, along Womma Road back to and along the Zone boundary. We adopt Mr McIntyre’s locality because it is the area within which the Elizabeth Village has a direct impact. The land within the locality is generally used for horticulture or rural living and has that appearance and character.
7	A development application in respect of Lot 2, dated 2 November 2004 (DA 292/2069/2004) was lodged with the Council. On the application form, the development applied for was described as "Village extension" and the intended use was described as "Residential use". The development application form was accompanied by a letter describing the proposal. There is a dispute about which plans were provided with the applications, which we will deal with below. It is clear that it was proposed to establish 95 transportable house sites together with a network of internal roads, services, some fencing and some landscaping. The existing house on Lot 2 was to be retained. It was clear that the applicant intended to extend the Elizabeth Village onto Lot 2, and that the extension, once developed with relocatable houses, would be managed in conjunction with the existing Elizabeth Village. In fact, vehicular access to Lot 2 was proposed to be taken via Lot 1.
8	The Council granted development approval to the development application, subject to nine conditions, on 12 April 2005.
9	Subsequently, Mojim made a further development application to establish two semi-detached transportable dwellings on Lot 2 (DA 292/1932/2005). The Council refused that application on 6 December 2005. Mojim appealed to this Court against that refusal.
10	Mellor Olsson, the solicitors for Mojim, wrote to the Council on 20 January 2006. That letter said:-

12	On 22 June 2006, Mellor Olsson lodged a notice of appeal in relation to that decision in this Court, and also sought, in the alternative, "a declaration that as at 12 April 2006, the development the subject of the application had been lawfully commenced by substantial work on the site". An extension of time within which to appeal was sought. That extension was granted on 14 July 2006. The judgement in relation to that application sets out the circumstances in some detail.
13	This judgment therefore deals with two appeals: the appeal against the Council’s refusal to extend the life of the development approval issued in relation to DA 292/2069/2004 and the appeal in relation to the refusal of the application to establish two semi-detached transportable dwellings, being DA 292/1932/2005.
14	Before turning to consider whether the life of the development approval in DA 292/2069/2004 should be extended, it is necessary to consider what development it was that was approved by the Council; in other words, we need to ascertain what it is that is proposed to be extended. The concept of ‘an application’ is different from the concept of ‘a development’ under the Development Act 1993. In order to assess a development, a planning authority must first ascertain what that development consists of (see Compaction Application Tips Pty Ltd and Others v Australian Waste Pty Ltd and Another (2001) 80 SASR 435 and reg. 16, Development Regulations 1993). When considering whether to extend a development approval, it must also be necessary for a planning authority (and this Court, on appeal) to know what the development is that is sought to be extended. Often, that will be obvious. In this case, it is not.

15	Mr Pace, the team manager of planning and building at the Council, gave evidence in the Council’s case. Mr Pace had searched the Council’s records in relation to DA 292/2069/2004. He found that the only plans which were on the Council file in relation to that Development Application were the Total Site Allotment Plan and the Site Landscaping Plan. Mr Graetz, however, said that he submitted with the application those two plans together with four further plans, namely the stormwater drainage plan, the Lot 2 contour plan, the site contour plan and allotment plan and the services and roadway plan.
16	The planning report which was before the Council when it considered DA 292/2069/2004 is included in the copy documents. The content of that report is consistent with the Council having only the Total Site Allotment Plan and the Site Landscaping Plan before it. The report treats the development application as being purely for a change of use of Lot 2. It does not offer any assessment of the plans for service provision. No assessment of the stormwater drainage arrangements, the contours or the services and roadway arrangements was undertaken by the primary planning authority, because the Council was quite simply not in possession of the plans. On the evidence before us, we are unable to say how this occurred; Mr Graetz gave evidence that he lodged all of the plans, but we find that they have never been assessed, or placed before the Council. Until the procedures leading up to the hearing of these appeals, the Council was not in possession of those plans.
17	However, notwithstanding the paucity of information before the Council, it is evident from the conditions attached to the face of the development approval that the Council perceived itself to be approving an "Extension to Elizabeth Village" together with some of the site works necessary to bring that extension into existence. Condition 2 of the development approval contemplated the sealing and line marking of internal roadways, and conditions 5, 6 and 7 contemplated the design and establishment of a stormwater treatment system without a further development application. Had the development approval related purely to an extension to the Elizabeth Village without reference to site works, it would have been doubtful whether the development approval actually related to a project which could be described as "development" within the meaning of the Development Act. However, some site works were encompassed within the development approved, and in those circumstances it seems to us that the development approval is for development comprising a change of the use of Lot 2 from non-use (except for the existing dwelling) to use as part of the Elizabeth Village. This is so notwithstanding that the Council was not as well informed about the extent of the site works proposed as it would have been had it been in possession of all of the plans. It is true that further works beyond those encompassed in the development approval would be required before there could be activity in pursuance of the new use, but it is well established that a use of land can change prior to all of the works referrable to that change being approved (see Development Assessment Commission v Macag Holdings Pty Ltd [2001] SASC 189).
18	The next question which arises in relation to the change of the use of the land is the nature of the land use that is the Elizabeth Village, but that question can be dealt with conveniently below.
19	Two questions must be addressed in relation to the question of whether the life of the development approval in DA 292/2069/2004 should be extended; firstly whether the approved development has been commenced by substantial work on the site, in which case it does not need to be extended, and secondly, if the development has not been commenced, whether the operation of the development approval granted subject to nine conditions on 12 April 2005 should be extended.
20	The Development Regulations provide, in reg. 48:-

21	It was argued on behalf of Mojim that the development had been lawfully commenced by substantial work on the site prior to the expiration of 12 months from the operative date of the development approval. The operative date of the approval is 12 April 2005.
22	The question of what constitutes substantial commencement of a development (a formulation slightly different from that in reg. 48), has been considered by the High Court. In Drummoyne Municipal Council v Lebnan and Others [1974] HCA 34; (1974) 131 CLR 350, Gibbs J said, at 361:-

24	In requiring "substantial work on the site of the development", we take reg. 48 to be requiring, in the words of the High Court, a considerable amount of work on the site. What constitutes substantial work needs to be decided in the context of how much work would be involved in the development as a whole. In our consideration of the issue, to put the matter at its highest from Mojim’s point of view, we will treat the earthworks, the roadworks and the installation of services as the works associated with the use of the land for an extension of the Elizabeth Village for the purpose of the development approval in contention.
25	On the view, we observed that some earthworks had been undertaken on the site. The photographs which comprise Exhibit A6 show some of those works. They basically consist of the smoothing of the earth on an area of the site, and were performed in late March or early April 2006. In evidence, Mr Graetz explained frankly what his motivation was in arranging for the earthworks to be done. He said, at p.88 of the transcript, in examination in chief:-
Q	Can you tell the court in broad terms what the nature of those earthworks were, what purpose, what was being achieved by those earthworks.
A	The dilemma we were facing was that we had development approval and then we were refused building approval. To make a substantial start on the development of that nature would have meant expenditure in excess of $500,000. We were really loath to spend substantial amounts of cash on something we may never ever be able to build on so we did some preliminary earthworks to the value of I think it was eight or 10, $12,000 just to show our - I suppose our intend to get it started.
Q	What were they actually doing.
A	We were trying to level off a section of ground to approximate working levels.
26	In cross examination, at p.104, Mr Graetz said:-
Q	And you commissioned the preliminary earthworks to be done to give the impression of commencement of that approval.
A	No, it wasn’t the impression, it was to show intent, that we were going to proceed with the development should we be successful in our case from here. It was an intent to show that we would proceed, not that we would not let it lapse.
27	In relation to the extent of the works themselves, the invoices in relation to the works were tendered and became Exhibit A5. The total cost of the works was $4,675. It appears from the invoices that the transport to the site of a bulldozer cost $500 and the hire of the bulldozer cost $2,000. A grader was hired at a cost of $100 per hour for 9.5 hours, amounting to $950. CSA Earthmovers then charged $800 to do the work. The sum of those amounts, plus GST is $4,675. Mr Graetz’ approximation in evidence, quoted above, was a little high. To be fair to him, he may have been including the cost of the plans in Exhibit A8. For reg. 48 purposes, however, only the works performed on site are relevant.
28	In cross-examination, Mr Graetz outlined what he considered to be the works involved in the development approval at p.95 of the transcript:-
Q	The estimated development cost of $490,000 on the - application form. I think you mentioned a figure of 500,000 just recently in answer to a question from my learned friend. How did you calculate that cost and what sort of work would be undertaken in your contemplation to represent that expenditure.
A	We would at that point in time have used a very simple calculation of approximately $10,000 per site cost development to us. It’s since increased to in excess of $20,000 per site for development and infrastructure.
Q	When you say $10,000 per site, is that in relation to the provision of infrastructure, earthworks and the like.
A	It would be the entire and it was never our -
Q	Or what work exactly is contemplated.
A	Well, it would include a piece of land that a house purchaser or a new resident was able to bring his or her or their transportable house into the village and attach it to our underground facilities. So it would include water, power, sewerage, telephone, road works, curbing, fencing, access roads, bitumen roads, all those sort of things. It would include every single requirement we have to give to provide a house site. It was never our intent to do the 100 sites in one fell swoop. We were planning to do it in two stages.
29	At p.105, still in cross-examination, Mr Graetz said:-
Q	Were your instructions in relation to the specific work in terms -
A	We had provided to them a contour map showing the final levels which we wanted to achieve and I asked those two companies or those two contractors to take us to about 100 mm, those levels, so we could use for road build-up should the application be successful. In that very small part of lot 2, not the entire part of lot 2. It covered two actual road areas, two of our internal road areas, that’s all it covered.
Q	Quite a small portion.
A	Small portion, approximately one-fifth I suppose.
Q	Having regard to the estimated cost of $490,000, a small percentage of that.
A	If they had progressed to the earthworks for the balance of lot 2 - certainly the earthworks cost would have increased hugely because there was a large rise in the ground lot just beyond where we asked them to stop. The $490,000 would have got us the underground works for half of the site -
30	We accept that, in arranging for the earthworks to be performed very late in the life of the development approval, Mr Graetz was trying to demonstrate to the Council that he was committed to the extension of the Elizabeth Village onto the site. He was not attempting to set up a sham commencement for the purposes of reg. 48. However, the works undertaken do not constitute substantial commencement having regard to the extent of the siteworks proposed. They are token works, undertaken to make a point to the Council. It is clear from Mr Graetz’ evidence that he decided not to spend any more money on the project because of the uncertainty as to whether it would proceed. We appreciate the difficulty of the situation in which Mr Graetz found himself. The result, however, is that the development has not been substantially commenced.

31	In the absence of the commencement of the development by substantial works on the site, it is necessary to consider whether the life of the development approval granted on 12 April 2005 should be extended.
32	In Hall v City of Burnside and Another [2005] SASC 199; (2005) 91 SASR 532, Debelle J said, at p.542:

36	We accept Mr McIntyre’s evidence.
37	It was argued on behalf of Mojim that conditions 5, 6 and 7 of the development approval dealt sufficiently with stormwater management. Those conditions said:-

38	Mr Leydon, counsel for the Council, argued that condition 5 was invalid because it was vague and uncertain and lacked finality in the sense that it was unclear whether treatment or disposal or both were required. Mr Leydon further argued that condition 7 was poorly worded and difficult to interpret. He said it was unclear whether the condition required a plan to be prepared for approval, and whether the plan was required to be implemented. He argued that it was vague and uncertain. Further, it did not relate reasonably to the proposed development in that it referred to such matters as dealing with erosion and drainage from roofs, driveways, parking areas and lawns. Mr Leydon pointed out that condition 7 was the kind of condition which had been found to be invalid in Fairmont Homes Pty Ltd v City of West Torrens & Ors [1998] EDLR 126, on the basis that its purpose was to meet the requirements of other legislation, namely the Environment Protection Act 1993.
39	Mojim volunteered to do whatever was necessary to meet the current requirements in relation to stormwater.
40	The proposed siteworks involve a large area of land. Emphasis has now been placed in the Development Plan upon the proper management of water, including stormwater. Those provisions have carried through to the current Development Plan. It is clear from the evidence that the development application was not properly assessed by the Council in the first place, for a number of reasons, including the fact that the Council was not in possession of the set of plans which included the stormwater drainage plan, the contour plan and the services and roadway plan. We are not able to say why this was so, but we are satisfied that it was so. We accept Mr McIntyre’s opinion that stormwater management plans would be required as part of a development application of this type under the January 2006 consolidation of the Development Plan. We further accept that in order to comply with the January 2006 Development Plan, and the Development Plan in force today, a stormwater drainage plan would need to provide for detention and/or retention methods. The approved design for Lot 2 would need to be amended to accommodate these things. Stormwater management measures are now required to be integrated into the design of a development. Compliance with the conditions imposed upon the development approval, even assuming those conditions are valid, will not bring the proposed development into compliance with the more recent requirements without amending the proposal.
41	The development approval should not be extended, both because the application was not properly assessed in the first place, and because even if the Council had been in possession of all of the plans available at the time, the proposal would still not have been sufficiently sophisticated in relation to stormwater management to warrant consideration under the January 2006 consolidation of the Development Plan.

44	In 1993, there was an application to extend the land use, which received development approval, but which was not then proceeded with.
45	The Council has provided the Court with a comprehensive set of documents in this matter, which we understand to include the entire planning history of the Elizabeth Village. The documents are Exhibit R1 and they were tendered by consent. The only land use approved for Lot 1 and Lot 6 is a caravan park, albeit with the ability to provide for 80% of the sites to be used for permanent residents.
46	Mr Graetz was very frank in evidence about the way in which the Elizabeth Village is conducted. There is one site at the Village which is the subject of a registered lease. All of the other sites are offered on the basis of an Agreement, which was tendered in evidence as Exhibit A3. Some of the sites currently occupied are occupied pursuant to an earlier version of the Agreement. The current version requires that new residents pay a "once-only levy payment to Elizabeth Village of $4,500 towards the ongoing maintenance and upgrading of the Village services and facilities. The payment shall be made by the new resident not later than seven days prior to the new resident taking up occupancy." In addition, the Agreement provides on p.4:-

49	Mr Graetz said in evidence that children were not allowed to live in the Elizabeth Village. Mr Graetz did not consider that the Elizabeth Village was bound by the Residential Tenancies Act 1995. He did not believe that the relationship between the owners of the Elizabeth Village and its residents was regulated under any piece of legislation, including, presumably, the Retirement Villages Act 1987. The present practice of the management of the Elizabeth Village is to seek tenants who are over the age of 55 years. Mr Graetz gave evidence that anyone seeking to acquire the right to live in the Elizabeth Village who was under 55 years old or wished to live with a child was quoted a less favourable weekly charge than people over 55 without children.
50	It is clear from the evidence of Mr Graetz that residents in the Elizabeth Village obtain entitlements beyond the right to live there. They are able to have resort to the Village managers when they require assistance. They have access to the kiosk, the social club and the swimming pool. They may use the free mini bus provided by the Village management.
51	The nature of a development cannot always be ascertained simply by reference to building form. The way in which a development is managed may, in some circumstances, change the nature of the land use.
52	We have considerable reservations about the lawfulness of the conduct of the Elizabeth Village at present. It seems to us that it may be being managed in contravention of the Development Act 1993. The only land use approved is a "caravan park", but it does not seem to us that the Elizabeth Village could now sensibly be described as a caravan park. It seems to have evolved into some other form of use more akin to a retirement village without, at any stage, obtaining development approval for a change in use.
53	In addition, we are concerned that the entering into of the Agreement by Mojim with residents may, depending upon how the rights granted by that Agreement are characterised, constitute the division of an allotment (which is a kind of development which requires development approval) under the Development Act 1993. The Development Act 1993, in s 4 provides:-

55	The application on behalf of Mojim Pty Ltd to establish two semi-detached dwellings on Lot 2 was refused by the Council on 6 December 2005. Mojim appealed to this Court against that refusal.
56	There was a dispute about the date upon which the application was lodged with the Council. The Development Application form is dated 8 August 2005 at its foot, but the only copy in the possession of the Council was faxed to the Council on 19 October 2005. The description of the proposed development was amended from "Dwelling" to "2 semi-detached transportable dwellings" on 15 November 2005. Part of the fee due to the Council in relation to the application was paid in August 2005, but the public notification fees were not paid until 15 November 2005. Planning Advisory Services, which lodged the application, has no reliable record of when it was sent. It seems to us that it is most appropriate to take the date of the application as 15 November 2005. The relevant version of the Development Plan is therefore the consolidation of 18 August 2005.
57	The question of how this development should have been categorised is a complex one. Principle 13 of the Rural Zone provides that "more than one freestanding dwelling on an allotment" is non-complying. There was argument before us as to whether the proposed development came within that description. The Council processed the development application as being for two semi-detached transportable dwellings, which is a form of development which is neither complying nor non-complying. In our view, the better description of the proposal is as an extension to a retirement village, which is also a form of development which is neither complying nor non-complying.
58	The proposed development was applied for by Mojim as part of the beginning of the extension of the Elizabeth Village onto Lot 2. There is a real sense in which the two appeals the subject of this judgement form part of one development (see Compaction Application Tips Pty Ltd and Others v Australian Waste Pty Ltd and Another (2001) 80 SASR 435).
59	Council Wide Objective 1 in the applicable Development Plan seeks "Orderly and economic development". The objectives and principles of development control for the Rural Zone seek the use of the land in that Zone for agricultural purposes or for rural living. Plainly, the development proposed, taken alone, (as the Council appears to have viewed it) is contrary to the relevant provisions of the Development Plan, both in terms of its form and its use. Principle 5 of the Rural Zone provides that additional dwellings on an allotment which already accommodates a dwelling should only be allowed if it is designed as an extension to that existing dwelling.
60	As an extension of the Elizabeth Village, in our opinion, the development proposed is premature and should not be approved. It is clearly intended to be integrated into, and form part of, the Elizabeth Village. Only once the status and nature of the Elizabeth Village has been clarified and, if necessary, regularised, should its possible extension be considered. If that point is reached, this application, in order to be properly assessed, needs either to be preceded by, or form part of, an application for the change of use of Lot 2, including necessary site works and services.
61	At present, the application for two attached dwellings on Lot 2 is not orderly and economic, and is not in accordance with the relevant provisions of the Development Plan. The Council’s decision to refuse it will be upheld.

62	In relation to Development Application No. 292/2069/2004, we find and determine that the development approved has not been commenced by substantial work on the site. The development approval lapsed on 11 April 2006.
63	In relation to the question of whether that development approval should be extended, we find that the Council did not have the plans for the stormwater drainage, the contours and the services and roadways before it when it assessed the application. Nonetheless, the development approval was an approval for the extension of the Elizabeth Village on to Lot 2 including some of the site works necessary for that proposed change in land use. We find that the approved land use of Lots 1 and 6 is for a caravan park. It may, however, now be being used for a retirement village, and the leasing or licensing arrangements may amount to the division of an allotment pursuant to the Development Act 1993. In these circumstances, we decline to extend the development approval.
64	We find that the Development Plan has changed between the lodgement of the original application on the one hand, and both the time when the Council considered the request for an extension of time and the present time, on the other. The material change relates to the policies and practical requirements for the collection, treatment and disposal of stormwater. We are satisfied that the proposal in relation to stormwater, even had the Council considered it fully at first instance, would now be inadequate. This cannot be cured by compliance with the conditions attached to the original development approval. It needs to be integrated into the design of the development.
65	In relation to Development Application No. 292/1932/2005, we determine that the application is not for semi-detached dwellings, but is for two dwellings of a kind which are not separately defined in Schedule 1 and which are intended to form an extension of the Elizabeth Village. The development applied for is not non-complying. If assessed standing alone, it is contrary to the relevant provisions of the Development Plan. When assessed, as we consider it should be, as an extension of the Elizabeth Village, it seeks to extend a use which is not, on the evidence before us, an approved land use. Moreover, as matters stand, it is not supported by approvals for the necessary site works and services. It is, at the very least, premature, and should not be approved.
66	There will be orders accordingly.