GOUSKOS v CITY OF MARION & ANOR [2008] SAERDC 19 (6 March 2008)

Last Updated: 11 March 2008

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.

GOUSKOS v CITY OF MARION & ANOR

[2008] SAERDC 19

Judgment of Her Honour Judge Trenorden

6 March 2008

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Application for review of assignment of Category by respondent Council - Status of applicant - Whether development properly assigned to Category 1 - Whether should have been assigned Category 3 development - Nature of development.

Held: Decision of Council confirmed.

Development Act 1993, referred to.

Verdouw v City of Unley [2001] SASC 63; Baker v City of Norwood, Payneham & St Peters [2003] SASC 282, considered.

GOUSKOS v CITY OF MARION & ANOR
[2008] SAERDC 19

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

For Review Pursuant to s 86(1)(f)(ii) of the Development Act 1993

1

The decision sought to be reviewed is that made by the respondent Council on or about 9 November 2007 to the effect that the proposed development by the second respondent is a Category 1 development.

2

The applicant resides at 61 Bundarra Road, Marino. The land the subject of the application is occupied by the second respondent, and abuts the applicant’s land on its western boundary. The street address of the subject land is 59 Bundarra Road, Marino. It was not disputed that the applicant for review has sufficient interest to apply to the Court for a review of the Council's decision with respect to the category of the proposed development. I find that the applicant falls within the category of persons entitled to apply to this Court for a review pursuant to s 86(1)(f)(ii) of the Development Act 1993.

Background

3	The applicant’s Supplementary Notice of Application for Review set out succinctly, the background to the application. It is convenient to quote from the notice as follows:

1. The Second Respondent first lodged a development application numbered DA 100/2007/1137 ("the original development application") which was described by the Council as "Verandah, Deck and Screen Harditex Wall" which was partially constructed adjacent to the eastern common side boundary of the Applicant’s land without planning or building consent from Council.

2. The Council assigned the original development application to Category 2 and notice of the application from the Council was received by the Applicant on 10 July 2007. The Applicant made and [sic] various representations to the Council in relation to this original development application including that the Council had erred in determining the public notice category.

3. The original application was subsequently withdrawn by the Second Respondent on 19 October 2007.

4. A new application for the proposed development was made to the Council on 25 October 2007.

5. The Applicant became aware of that new application after enquiries made to the Council staff.

6. The proposed development is now apparently described as "Dwelling Addition to the Rear" and includes substantially the same structure as proposed in the original development application with modifications to the setback of the wall to approximately 920mm from the side boundary for a length of approximately 4 metres.

7. The Applicant sent a representation dated 5 November 2007 to the Council setting out various concerns about the proposed development and contending that the wrong public notice category had been assigned to the application.

8. On or about 9 November 2007 the Council determined that the proposed development is Category 1 under the provisions of the Development Act 1993 and the Development Regulations 1993. This decision was communicated to the Applicant via email from the Council on that date.

The Application

4	The applicant seeks to have the Court determine if the Council was in error in determining that the development is a Category 1 development and that it should have determined that the development is a Category 3 development.
5	Both the applicant’s land and the subject land are situated in the Residential (Foothills) Zone within the area of The City of Marion, according to the relevant Development Plan which is that for Marion (City) consolidated on 10 November 2005.
6	There is no agreed view as to the description of the proposed development. What is proposed will replace an outdoor living area. The plans show a structure including the following:
•	L-shaped timber decking north of and abutting the dwelling.
•	Klip-lok roofing over the deck, with gutters.
•	Harditex clad wall along the eastern edge of the deck, with:
−	250 x 3600 highlight windows inserted at a high-level in the wall.
−	door inserted at the southern end of the wall.
•	1 m high timber balustrade with horizontal timber balusters at the northern end of the deck.
•	timber framed steps leading down from the Western side of the deck.

Assigning a Category

7	Proposed development the subject of an application for development plan consent must be assigned to a category by the relevant authority under s 38 of the Development Act. That section provides that the Development Regulations 1993 or a Development Plan may assign a form of development to either Category 1 or Category 2 but if a form of development is not so assigned it will be taken to be a Category 3 development.
8	Development Regulation 32 assigns various forms of development to either Category 1 or Category 2 by reference to Schedule 9 to the Regulations. Part 1 of Schedule 9 identifies the kind of developments which are Category 1 developments. Even if the proposed development is a pergola, verandah or outbuilding, the development does not fall within Category 1 development as identified in Schedule 9 because it will have gutters more than 3 metres above the ground: see Part 1, Clause 2(1)(ca)(iv)(C).
9	That leaves open the question of whether the development falls within those kinds of development specified to be Category 2 development in Part 2 of Schedule 9. If the proposed development is ancillary to a dwelling and comprises the construction of a pergola, verandah or outbuilding then, by Clause 16B of Part 2 of Schedule 9, the development, being a noncomplying kind of development, would fall within a Category 2 kind of development.
10	On behalf of the applicant, it was submitted that the proposed development is not any of the following: pergola, verandah, outbuilding or domestic outbuilding. On behalf of the respondent Council, it was submitted that the proposed development did not fall within either Part 1 or Part 2 of Schedule 9 to the Development Regulations. That submission amounts to a concession that the proposed development is none of an outbuilding (domestic or otherwise), verandah or pergola.
11	The Development Plan provisions for the relevant zone, namely the Residential (Foothills) Zone, in Principal of Development Control 12, assigns specified forms of development in the zone to Categories of 1 and 2 respectively. However, the principle and the public notice categories are expressed to be subject to, inter alia, the following:

(c) A reference to a particular kind of development includes the construction of, alteration or addition to a building or change in use of land, where application, for the purposes of that kind of development.

12	Presumably, the "public notice categories" means those kinds of development assigned to Categories 1 and 2, by Principle 12.
13	One of the kinds of development assigned to Category 1 development in the zone by Principle 12 is "detached dwelling". Thus, it was argued on behalf of the respondent Council, that the proposed development is an addition to a building being a detached dwelling and is therefore assigned to Category 1 development by Principle 12 for the Residential (Foothills) Zone, in accordance with the provisions of the relevant Development Plan.
14	It is clear that the proposed development will be an extension of the existing dwelling on the subject land, although the plans do not show whether the new structure will be affixed to the dwelling. The plans show that the proposed development will adjoin (without necessarily being affixed to) part of the rear (northern) wall of the existing dwelling, in an area that is presently paved, and will extend to replace, in part, an existing pergola that may have been attached to the existing dwelling. The proposed development can perhaps best be described as a covered deck area extending from the rear of the dwelling and closed on the eastern side by a wall with windows high in the wall and a door at the southern extremity of the wall.
15	The proposed development will provide a partially enclosed living area, adjoining the existing dwelling, which in practical terms, will extend the dwelling.
16	I have concluded that what is proposed is an addition to a building where the building is an existing detached dwelling. It is an addition to the dwelling in the same way that a deck or a verandah might be added to a dwelling. It is not necessary that a wall of the dwelling be breached and walls and the roof extended, to enlarge the dwelling, for a construction to be an "addition" to a dwelling. A commonsense interpretation of the words "addition to a building" would include a structure that is added to or adjoins an existing building, as in the proposal before the court. I do not need to consider whether a new structure that is not an addition to or an extension of a building but stands separated from the building, might be an addition to a dwelling.
17	Counsel for the applicant referred the Court to the judgments in Verdouw v City of Unley [2001] SASC 63 and Baker v City of Norwood, Payneham & St Peters [2003] SASC 282. Having regard to the concession by the respondent Council that Schedule 9 did not apply, these judgments were of no relevance. In addition, they both turned on the particular words in Schedule 9, which has since been amended.

Conclusion

18	The respondent Council correctly identified the development that is the subject of the application as being assigned to Category 1 by the Development Plan.
19	The application for review is dismissed. There will be an order accordingly.