CHAPPEL SMALLACOMBE JOINT VENTURE v CITY OF MITCHAM & ORS (NO. 1) [2008] SAERDC 39 (4 June 2008)

Last Updated: 6 June 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.

CHAPPEL SMALLACOMBE JOINT VENTURE v CITY OF MITCHAM & ORS (NO. 1)

[2008] SAERDC 39

Judgment of Her Honour Judge Trenorden

4 June 2008

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Preliminary Argument - Application by appellants to construct a Retirement Village - Development Application consent refused by respondent Council - Whether proposed development should have been processed as noncomplying kind of development.

HELD: Proposed development neither complying nor noncomplying form of development. Application for declaration that development is noncomplying dismissed - Court has jursidiction to hear and determine appeal.

Development Act 1993; Development Regulations 1993; Retirement Villages Act 1987, referred to.

Compaction Application Tips Pty Ltd v Australian Waste Pty Ltd [2001] 80 SASR 435; Stewart v McQuade & Ors [1997] EDLR 267; Tarca & District Court of Stirling v Hambrook [1995] EDLR 47; Paradise Development (Investments) Pty Ltd v District Council of Yorke Peninsula & Anor [2008] SASC 139; Mackenzie Constructions Pty Ltd v Development Assessment Commission [1999] SASC 386; (1999) 74 SASR 539; Degenhardt and Anor v City of Happy Valley and Anor (1986) 23 APAD 469, considered.

CHAPPEL SMALLACOMBE JOINT VENTURE v CITY OF MITCHAM & ORS (NO. 1)
[2008] SAERDC 39

Introduction

1	The appellants have appealed to this Court against the decision of the respondent Council to refuse to grant consent to a development application for what was described on the Development Application form as "remediation and existing quarry site and retirement village" on the land described as "a disused quarry site known as Fullers Quarry". The subject land has a frontage to Neweys Road, Mitcham.
2	The Court has heard the parties on a preliminary question of whether the proposed development should have been processed as a noncomplying kind of development. The Court heard evidence and submissions from the appellant and the respondent Council. The parties joined, although present at the hearing of the preliminary question, did not actively participate in the hearing.
3	The respondent Council had not processed the application by the appellants as being for the kind of development that is identified in the relevant development plan as a noncomplying kind of development. However, that is now the contention of the respondent Council.
4	The following are the undisputed facts:
1	The site of the proposed development is comprised within Certificate of Title Registered Book Volume 5904, Folio 599 (the subject land).
2	The subject land is situated in the Residential (Foothills) Zone of the Mitcham (City) Development Plan (Consolidated – 20 September 2001) (the relevant Development Plan).
3	The Development Application was for a Retirement Village.
4	The Retirement Village has the following components:
a.	Manor House – 3 levels comprising 15 apartments and area for community facilities and management office;
b.	Read Homestead – 3 levels comprising 9 apartments;
c.	Fuller Homestead – 3 levels comprising 9 apartments;
d.	Blythewood Homestead – 3 levels comprising 9 apartments;
e.	Coach House – 3 levels comprising 9 apartments;
f.	Gate House – 3 levels comprising 15 apartments;
g.	Eleven Cottages – 5 duplex buildings comprising 2 dwellings each and one detached building comprising a single dwelling; and
h.	Associated earthworks and removal of 5 significant trees.

(The number of levels refers to levels containing apartments and excludes the basement level.)

5

Each of the 66 apartments and 11 cottages has its own kitchen, bathroom and lavatory.

6

Read, Fuller and Blythewood Homesteads are situated to the south of the site, backing onto the Blythewood Road (the side of Blythewood Homestead abuts Tolmer Reserve to the west). Coach House is situated to the west of the site, abutting Tolmer Reserve. Gate House is in the northwest corner of the site. Manor House is in the centre of the site. The 11 cottages are situated to the northeast of the site, backing onto Neweys Road. A reduced copy of the site plan is attached to these reasons.

The Argument

5

In essence, the respondent Council’s argument is that Read Homestead, Fuller Homestead, Blythewood Homestead, Coach House, Manor House, Gate House and Cottages 1 and 2 (together), 3 and 4 (together), 6 and 7 (together), 8 and 9 (together) and 10 and 11 (together) are single buildings in which there are two or more dwellings and therefore constitute residential flat buildings. As the relevant development plan provides that residential flat buildings are a noncomplying form of development in the Residential (Foothills) Zone, it is submitted that the proposed development is a noncomplying form of development.

6

This issue should be determined prior to consideration by the Court of the merits of the appellant’s proposal, as it goes to jurisdiction. The Development Act 1993 in s 35(4)(a) provides that if a development is of a kind described as a noncomplying kind of development under the relevant development plan, no appeal lies against a refusal of consent by the relevant authority.

The Evidence

7

The Court heard evidence from Mr John Hunt, who as a planning consultant engaged by the appellants, has had a significant involvement in the preparation of the development application and is familiar with the proposed project and the earlier retirement village development by the appellants at Leabrook. The Court also heard from Mr James Hazel who has had considerable experience in the retirement village industry in Australia. The Court also received a set of documents comprising the application documents and relevant reports, from the respondent Council (exhibit R1) and a set of 18 proposal plans from the appellants (exhibit A1).

The Retirement Villages Act

8

The appellants submit that their position has always been that the proposed development is to be a retirement village, to be managed and operated under the provisions of the Retirement Villages Act 1987. That Act, through registration of a retirement village, provides a scheme which, under the objects of the Act (s 2), aims to achieve a balance between the rights and responsibilities of residents of a registered retirement village and the administering authority of that retirement village by:

(a) regulating the making, content, operation and termination of residence contracts; and

(b) providing for proper consultation between residents and administering authorities of retirement villages; and

(c) providing for dispute resolution processes.

9

While the Retirement Villages Act governs the relationship between the administrating authority of a retirement village and the residents of that village, and to the extent provided in the Act, creates and protects rights of residents of retirement villages within the scheme provided under the Act, it is of little significance, with respect to an application under the Development Act. However, it is relevant that it is the intention of the appellants to register the proposed retirement village under the provisions of the Retirement Villages Act.

The Nature of the Development

10

When considering an application for development plan consent, the relevant authority must first determine the nature of the development: Regulation 16 of the Development Regulations 1993. In Compaction Application Tips Pty Ltd v Australian Waste Pty Ltd (2001) 80 SASR 435 at para 10, the Full Court of the Supreme Court endorsed the reasoning of the judge at first instance, and in particular the following statement:

When discharging the task imposed on it by Reg 16 (1), the planning authority must objectively examine the documents and other information before it and, as a matter of practical reality, decide what the nature of the development is.

11	A similar statement had earlier been made by the Honourable Justice Debelle in Tarca & District Council of Stirling v Hambrook [1995] EDLR 47 and the statement has very recently been reiterated in Paradise Development (Investments) Pty Ltd v District Council of Yorke Peninsula & Anor [2008] SASC 139 (delivered 22 May 2008). In Stewart v McQuade & Ors [1997] EDLR 267 The Honourable the Chief Justice reasoned that the form of a building is not always determinative of the nature of the development and in Mackenzie Constructions Pty Ltd v Development Assessment Commission [1999] SASC 386; (1999) 74 SASR 539 at [31] the Honourable Justice Bleby concluded that the essential nature of a proposed development is not dictated solely by the impacts of the proposal.
12	It is now the task of the Court to determine the nature of the development, as a matter of practical reality.
13	As has been suggested above, each of the living units, to use a neutral term, has all the elements of a dwelling, for independent and self-contained living. The evidence revealed that each living unit will have at least two bedrooms, a walk-in robe, a bathroom, a kitchen, together with areas for meals, living and laundry as well as a deck, balcony or porch. There are communal areas set aside for clothes drying facilities and the basement of each multilevel building will accommodate the parking of motor vehicles. In the case of the cottages, each has a garage attached.
14	In the building identified as the Manor House, there is an area on the ground floor designated for community facilities and a management office. The detail of the disposition of that area is not yet available; it will be a matter for the management committee established by the residents in due course. What is proposed at this stage is simply that there will be an area set aside within the Manor House building for the establishment of community facilities for the benefit of the residents of the proposed retirement village.
15	In addition, although it is envisaged that some services will be provided within the retirement village for residents, nothing is planned in this regard at this stage. As Mr Hunt said in his evidence;

There is (sic) no absolutes and these things change depending on the needs. ... the essential thing is that the management responds to the needs of residents ...

16	Mr Hunt was drawing on the experience of the appellants with the retirement village established by them at Leabrook.
17	It is proposed that the community facilities and administrative office areas allowed for in the planning of Manor House will be available to serve all of the residents of the proposed retirement village.
18	The following terms are defined in Schedule 1 to the Development Regulations 1993:

‘dwelling’ means a building or part of a building used as a self-contained residence;

‘semi-detached dwelling’ means a dwelling –

(a) occupying a site that is held exclusively with that dwelling and has a frontage to a public road or to a road proposed in a plan of land division that is the subject of a current planning authorisation; and

(b) comprising one of two dwellings erected side by side, joined together and forming, by themselves, a single building;

‘row dwelling’ means a dwelling –

(a) occupying a site that is held exclusively with that dwelling and has a frontage to a public road or to a road proposed in a plan of land division that is the subject of a current development authorisation; and

(b) comprising one of three or more dwellings erected side by side, joined together and forming, by themselves, a single building;

‘group dwelling’ means one of a group of two or more detached buildings, each of which is used as a dwelling and one or more of which has a site without a frontage to a public road or to a road proposed in a plan of land division that is the subject of a current development authorisation;

‘residential flat building’ means a single building in which there are two or more dwellings, but does not include a semi-detached dwelling, a row dwelling or a group dwelling.

19	It is clear that each of the living units will constitute a ‘dwelling’ as that term is defined in the Regulations. However, none of the dwellings will occupy a site that is held exclusively with that dwelling nor will any be situated upon a site that has a frontage to a public road or to a road proposed in a plan of division that is a subject of a current planning authorisation. It follows that none of the dwellings will constitute ‘semi-detached’ or ‘row dwellings’ as defined in the Regulations.
20	Only one of the living units constitutes a single detached dwelling, namely that cottage comprising a single dwelling. However, it is not part of a group of single detached dwellings and therefore is not a ‘group dwelling’, having regard to the definition in the Regulations.
21	Read Homestead, Fuller Homestead, Blythewood Homestead, Couch House, Manor House, Gate House and the Cottages which each contain 2 dwellings, all fall technically within the meaning of ‘residential flat building’ as defined in the Regulations.
22	However, it does not follow that the development proposed is for the purposes of assessment, by its nature, a series or a number of residential flat buildings (with the exception of the single detached dwelling). The question is: As a matter of practical reality, what is the nature of the development?
23	In Stewart (above), the Full Court of the Supreme Court had to determine the nature of development in circumstances where the proposal was to add certain facilities to a building, the effect of which would give the building the character of a dwelling in circumstances where a detached dwelling already existed on the land. The issue was as to the nature of the proposed development, namely whether it was building work or in the alternative, a change in the use of the land. In the course of the Court’s judgment, the Chief Justice (at pg 278) said:

The emphasis in the definition of dwelling is upon the use of the building. No doubt that refers to the proposed use of the building. The form of a building may greatly influence the decision about the proposed use of the building, but in my opinion form cannot be decisive. This is particularly so when the form is deceptive (for example, a house proposed to be used as an office) or when a distinction has to be drawn between different structures, which are all part of the one category (for example, distinguishing between a dwelling, as defined and a semi-detached dwelling, as defined). Thus, as I have already said, while the form of a building may be very influential, in the end it is the proposed use of the building, which will provide the answer in many cases.

In the present case the issue before the Council and before the Court below was whether the proposal was for the use of the building as a dwelling or as a building ancillary to a dwelling. In such a case it seems to me that it is the proposed use that is likely to be more significant than the form of the building. That is not to say that form is irrelevant.

24

In Tarca & District Council of Stirling (above), a judgment of the Supreme Court of South Australia on appeal from the Planning Appeal Tribunal, the Court had to consider the nature of the proposed development in circumstances where the appellant "had submitted that it should be characterised as ‘aged accommodation’ or as ‘aged person’s homes’" and the respondent had submitted that the development was properly characterised as residential flat buildings. The proposal did not include facilities of a communal nature and nor were there any facilities to provide support for elderly people. In his reasons for judgment, the Honourable Justice Debelle said (at page 51):

The kinds of development mentioned in the development plan are not to be viewed as boxes or watertight compartments into which every proposed development may or may not fit. Each development must be viewed in a practical and common sense way. The proper approach is to look at the development as a whole and determine its true nature and character. Although the residential units are contained in 3 buildings, those 3 buildings are linked by verandahs and garages and might be said to form 1 building. Whether there be 1 building or 3, the proposal comprises 4 residential units, which could fairly be described as home units or residential flats. When this proposal is considered there is no feature, which in any practical sense suggests that this is designed to provide accommodation, which is suitable only for elderly people. In truth it is accommodation, which is equally suitable for people of all ages.

25	His Honour concluded that the Tribunal had been correct in determining that the proposed development could not be characterised as ‘aged accommodation’ or ‘aged person’s homes’. A significant difference between the proposed development in Tarca (above) and this case is the avowed intention of the present appellants to register the development under the Retirement Villages Act 1987. In addition, the present appellants have a track record, in that they have already developed a retirement village of the kind here proposed, in Leabrook.
26	While it might be correct to say that the majority of the buildings proposed in the development constitute residential flat buildings as defined in the Regulations, a consideration of the development as a whole, strongly suggests that the proposed development is for a retirement village. The intention is to manage the entire development as a single entity. The living units, while self-contained and capable of being used independently, will be part of a ‘retirement village complex’ as defined by the Retirement Villages Act. The buildings will be part of a ‘retirement village scheme’ as defined under the Retirement Villages Act. That is the clear intention of the appellants. It is that which distinguishes the present proposal from the proposed development the subject of the judgment in Tarca (above).
27	There is another approach to the same conclusion. ‘Development’ as defined in the Development Act 1993 includes building work and a change in the use of land. The construction of a residential flat building or buildings is building work and therefore development. However, there is another question to be asked. That is, as to the intended use of the building or buildings to be constructed. If the intended use of a residential flat building is as a residential flat building, it follows that the nature of the development is a residential flat building. However, if the building is being constructed as part of a development for a nominated purpose, that purpose being a retirement village, then the building is proposed to be constructed for the purpose of a retirement village or part of a retirement village. It follows that in practical terms, the development is for a change in use of the land to that of a retirement village. In those circumstances once approved as a retirement village, any use of the buildings for purposes other than as part of a retirement village, would be a change of use and thus constitute development.

Conclusion

28	I conclude by reiterating the words of the Planning Appeal Tribunal per Judge Bowering in Degenhardt v City of Happy Valley [1986] 23 APAD 469 at 476 to the effect that nothing said in this judgment should "be taken as supporting the view that the mere labelling of residential flat buildings as being for either retired people or as constituting a retirement village necessarily means that such developments can be properly viewed as anything other than residential flat buildings". In the development proposed, there is more than mere labelling.
29	For these reasons I have now expressed, I have determined that the nature of the development is (with the exception of the cottage containing the single living unit) not ‘residential flat buildings’ but is a retirement village, a kind of development which was at the relevant time neither complying nor noncomplying and therefore is to be assessed on its merits. The respondent Council was correct in its characterisation of the development.
30	The argument of the Council is rejected. Its application to have the proposed development declared to be a noncomplying kind of development is dismissed. The Court has jurisdiction to hear and determine the appeal against the decision of the Council.
31	The matter should now proceed to a fresh hearing of the appeal on the merits of the proposed development in the context of the relevant development plan. The matter will be listed for a directions hearing.