O'NEILL & ANOR v CITY OF CHARLES STURT & ANOR [2007] SAERDC 76 (20 December 2007)

Last Updated: 24 December 2007

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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O'NEILL & ANOR v CITY OF CHARLES STURT & ANOR

[2007] SAERDC 76

Judgment of Her Honour Judge Trenorden

20 December 2007

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Application for review of assignment of category - nature of development - whether development properly assigned to category 2.

Held: Decision of Council confirmed.

Development Act 1993, referred to.

O'NEILL & ANOR v CITY OF CHARLES STURT & ANOR
[2007] SAERDC 76

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1

This matter is an application to the Court for a review of the decision of the relevant authority as to the category of development, pursuant to s86(1)(f)(ii) of the Development Act 1993. The development the subject of the application is proposed on land situated at 70 Seaview Road, Tennyson (the subject land), which is comprised and described in Certificate of Title Register Book Volume 5648 Folio 103. The relevant authority is the City of Charles Sturt (the Council).

2

The relevant provisions of the subsection are as follows:

(1) The following applications may be made to the Court:

(f) a person who can demonstrate an interest in a matter that is relevant to the determination of an application for a development authorisation by a relevant authority under this Act by virtue of being an owner or occupier of land constituting the site of the proposed development, or an owner or occupier of a piece of adjacent land, may apply to the Court for review of the matter with respect to –

(i) (not relevant)

(ii) a decision under section 38 as to the category of the development.

3	Any applicant for review pursuant to the above provision must show that he or she falls within paragraph (f). The applicants are owners and occupiers of an allotment of land that is situated at 68 Seaview Rd Tennyson and adjoins the subject land, on its southern boundary. It follows from this fact and the provisions of s 86(1)(f)(ii) that they have demonstrated an interest sufficient to apply to the court for a review of the Council's decision under s 38 as to the category of the development.
4	The applicants seek to have the Court review the Council's decision, and to find and declare that the development was properly a Category 3 development.
5	With the concurrence of the parties, the matter proceeded by way of written submissions from the applicant and the second respondent. In addition the Council provided through the affidavit of Julie Ann Vanco sworn 20 November 2007, relevant information and material including documents that had been lodged with, or were generated by, the Council.

The Legislation

6

The Development Act 1993 establishes that undertaking development without consent is an offence. Thus, all forms of development require development approval from the relevant authority, unless excluded by the Development Act or the provisions of the Development Regulations 1993. "Development" is defined in section 4 of the Development Act, to include "building work", which is defined in the same section as follows:

"building work" means work or activity in the nature of –

(a) the construction, demolition or removal of a building (including any incidental excavation or filling of land); or

(c) any other prescribed work or activity,

but does not include any work or activity that is excluded by regulation from the ambit of this definition.

7	Section 38 of the Development Act provides that the development the subject of an application may be assigned a category, as follows:

38 – Public notice and consultation

(1) There will be three categories of development for the purposes of this section –

(a) Category 1 development; and

(b) Category 2 development; and

(c) Category 3 development.

(2) Subject to subsection (2a), the following provisions apply in relation to the assignment of developments to those categories:

(a) the regulations or a Development Plan may assign a form of development to Category 1 or to Category 2 and if a particular form of development is assigned to a category by both the regulations and a Development Plan, the assignment provided by the Development Plan will, to the extent of any inconsistency, prevail within the area to which the Development Plan relates; and

(b) any development that is not assigned to a category under paragraph (a) will be taken to be a Category 3 development for the purposes of this section.

8	Thus, the relevant authority in respect of a development application, on receipt of the application, will determine the nature of the development (Development Regulation 16) and then determine by reference to the Development Act, the Development Regulations and the relevant Development Plan, whether the development is in Category 1, 2 or 3.
9	In this case, the relevant authority, being the City of Charles Sturt (the Council) assigned the development to Category 2. The applicants submit that properly assigned, the development should be Category 3.

The Development Application and The Nature of the Development

10	The development the subject of the application requires consent because it falls within the definition of "development" in s 4 of the Development Act. The facts indicate that the proposed development does not constitute "development" because it amounts to a change of the use of the land, or because it meets any other category in the definition of "development" except that of "building work".
11	The definition of "building work" in s 4 of the Development Act is set out above. It is to be noted that the definition includes any excavation or filling of land that is incidental to the construction of a building.
12	In the development application form, the proposed development was described as " 2 2-storey semi-detached dwellings".
13	Subsequently, the Council, having assigned the development to Category 2, gave notification of the application, describing the proposed development as "Two four storey semi-detached dwellings and garages (Two storeys plus roof deck at the Seaview Road end and three storeys plus roof deck at Military Road end)".
14	The applicants took issue with the Council's description of the proposed development. The applicants' case was that the development should have been properly described as "two four storey semi-detached dwellings, and garages and substantial retaining walls", rather than "two four storey semi-detached dwellings and garages".
15	However, it is clear from the definition of "building work" in the Development Act that the excavation of soil necessary to construct the proposed development does not require a separate consent and therefore a separate application for development approval. The excavation is incidental to the construction of the proposed building. The proposed construction of retaining walls is "building work", but according to the proposal plans is clearly part of the building work necessary to construct the proposed building containing the dwellings, in their proposed form and is therefore incidental to the construction of the dwellings.
16	The second respondents, who are the applicants for development consent, have also taken issue with the Council's description. It is submitted on their behalf, that the appropriate description of the development is "two semi-detached dwellings".
17	Given that the plans show that the garages are incorporated into the proposed building that will house the 2 semi-detached dwellings, the Council's description appears to be at odds with the facts of the proposal. However, that may not be of significant concern in this review.
18	Although it would appear that nothing turns on it, it is curious that the Council in its description of the development chose to separately refer to the garages, but not the retaining walls that are part of the proposed development.
19	It is my tentative view at this stage that the better description of the nature of the development is "2 semi-detached dwellings".

The Relevant Development Plan and the Development Regulations

20	The Development Act, in s 38, provides that where both the Development Regulations and the relevant Development Plan assign a category to a form of development, that category assigned by the Development Plan will take precedence.
21	In the relevant Development Plan, under the heading "Residential Zone" at page 90, certain kinds of development in the Residential zone are assigned as either Category 1 or Category 2 development. In the list of Category 1 developments in the Residential zone, set out in Principle of Development Control 6 for the Zone, is the following:

"one or more sets of semi-detached dwellings, provided that no such dwelling is more than two storeys high"

22	A footnote indicates that "two storeys" is "defined as constituting one habitable floor situated directly above another, but not including a floor containing only an undercroft garage or non-habitable space".
23	Among those kinds of development assigned as Category 2 development, in Principle of Development Control 7 for the Residential Zone in the relevant Development Plan, is "dwellings that are not Category 1 or noncomplying".
24	Schedule 9 to the Development Regulations also assigns a category to specified forms of development, for the purposes of s 38 of the Development Act, but I need not be concerned with that given the provisions of s 38, whereby precedence is given to any assignment of category specified in the relevant Development Plan.
25	Having had regard to the definitions of "dwelling" and "semi-detached dwelling" in Schedule 1 to the Development Regulations and having considered the plans for the proposed development, I am satisfied that the development falls within the kinds of development assigned to Category 2 by the relevant Development Plan. I have reached this conclusion because the development is greater than 2 storeys, as it appears to have more than 2 habitable floors, on the basis of the definition given to "2 storeys" in the Development Plan, and it is therefore not a Category 1 development. In addition, the form of development proposed is not expressed in the Development Plan to be a noncomplying kind of development.
26	The Council did not describe the nature of the development as being for 2 semi-detached dwellings, but as "two four storey semi-detached dwellings and garages (two storeys plus roof deck at the Seaview Road end and three storeys plus roof deck at Military Road end)". In the event, I have concluded that even if this description correctly identifies the nature of the development proposed (but I do not accept that is the case), that will not result in the development being other than a category 2 kind of development.
27	I have accepted the submissions of Mr Tredrea for the second respondent, in this regard. The garage in respect of each dwelling is part of the single building proposed which comprises the 2 dwellings. The garages are not comprised in a separate building or buildings or outbuilding. Even if the Council's identification of the nature of the development is correct, the development would properly remain a Category 2 development, by virtue of Principle of Development Control 7 of the Residential Zone provisions in the relevant Development Plan (above) and clause 16B of Part 2 of Schedule 9 of the Development Regulations ("except where the development is classified as noncomplying under the relevant Development Plan or falls within Part 1 of this Schedule, any development ancillary to a dwelling that comprises the construction of ... a garage ...").

Conclusion

28	Having reviewed the assignment of category by the Council, I am satisfied that the Council was correct in assigning Category 2 to the proposed development. That is because all forms of dwelling are either Category 1 or Category 2, unless expressed to be a noncomplying form of development (see Principles of Development Control 6 and 7 for the Residential Zone) and the garages and retaining walls are but aspects of the building work necessary for the construction of the dwellings.
29	Accordingly, the applicants were unsuccessful in their bid to have the assignment of category revised to Category 3. The application has been reviewed but the Court declares that the Council was not in error in assigning the development to Category 2.
30	I add some comments with respect to the material provided to the Court by the applicants. The applicants did not have legal representation and I appreciate the difficulty that they faced in preparing their submissions. Their submissions on the issue were interlinked with material including submissions concerning the merits of the proposed development. That material was ignored by me, as it was not relevant to the Court’s review of the assignment of a category to the development. Such material and submissions could appropriately be put before the Council, which as a relevant authority must assess the development application.