RENSHAW v CITY OF PORT ADELAIDE ENFIELD [2009] SAERDC 59 (7 August 2009)

Last Updated: 7 August 2009

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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RENSHAW v CITY OF PORT ADELAIDE ENFIELD

[2009] SAERDC 59

Judgment of Her Honour Judge Trenorden

7 August 2009

ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL

Appeal against s 84 Enforcement Notice - Provisional development plan consent granted, subject to 4 conditions - Alleged appellant failed to comply with condition 1 - Whether appellant breached the Development Act - The objective meaning of the specification of corrugated galvanised steel sheeting.

HELD: Court held there was a breach of the Act.

Environment, Resources and Development Court Act 1993; Development Act 1993, referred to.

Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield [2004] SASC 373, considered.

RENSHAW v CITY OF PORT ADELAIDE ENFIELD
[2009] SAERDC 59

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

The Background

1. Ms Renshaw decided to construct an addition to her dwelling at 19-21 Blackler Street, Semaphore. The land was within the Semaphore/Largs Historic (Conservation) Policy Area (Policy Area 6) of the Residential Zone in the area of The City of Port Adelaide Enfield (the Council). Ms Renshaw’s house is a semi-detached house which is listed on the local heritage register (see table PAde/4 in Port Adelaide Enfield (City) Development Plan, consolidated 17 January 2008, at page 420). The house is a local heritage place.
2. After discussions with Council officers and her architect, Ms Renshaw submitted an application and plans to the Council for the addition.
3. On 31 July 2008, the application for a two-storey addition to an historic dwelling was granted provisional development plan consent, subject to 4 conditions. The conditions included that the development was “to be established in strict accordance with the details and plans submitted in development application 040/0609/08”. That was set out in condition 1. The notations on the plans revealed that the roofing on the extension was to be “corrugated galvanised steel roofing” while the external cladding was to be “horizontal corrugated galvanised steel sheeting”. The proposed roofing was alternatively described on the plans under the heading materials schedule as “Galvanised Custom Orb”.
4. The addition was constructed, using Zincalume as the external cladding material on the addition to the dwelling.
5. The Council advised Ms Renshaw that she had failed to comply with condition 1 of the consent. Following exchanges of letters between the parties in which the Council asserted that “galvanised iron sheeting” should have been used in place of the Zincalume sheeting and Ms Renshaw’s architect and builder asserted that Zincalume sheeting was within the description “horizontal corrugated galvanised steel sheeting” and thus in accordance with condition 1 of the approval, the Council issued a Notice dated 3 February 2009, under s 84 of the Development Act 1993, directing Ms Renshaw as follows:

2.1 By 3 May 2009 make good your breach of the Act by replacing the Zincalume sheeting with galvanised iron corrugated sheeting

The Appeal

6. Ms Renshaw appealed against the Notice.
7. This appeal is not a merits appeal as to whether Zincalume sheeting is an appropriate cladding material for an addition to a dwelling that is on the local heritage register. It is not the role of the Court in this matter to consider whether a proposed addition using Zincalume sheeting for external wall cladding merits approval in the Historic (Conservation) Policy Area when assessed against the provisions of the development plan. The question for the Court is whether Ms Renshaw breached the Development Act by failing to comply with condition 1 of the development plan consent.
8. Ms Renshaw’s case is that there has been no breach of the condition because Zincalume sheeting is within the description, “corrugated galvanised steel sheeting”. The Council does not accept that this is so.
9. The Court heard evidence from Ms Renshaw, her architect and builder Mr D C Grieve and Dr G L F Powell, a metallurgist. The Council’s witnesses were Ms Z L J Pfeiffer a town planner, Ms T N Willis and Mr D B Holland, both of whom are heritage architects.

Implementing the Approval

10. From the evidence, it is clear that when development authorisation was granted for the extension, it was not the intention of Ms Renshaw or Mr Grieve to use Zincalume for external wall cladding. Subsequently, it was considered for a variety of reasons, that Zincalume was the most appropriate material for cladding. These reasons included the following:
    • Standard galvanised corrugated steel could not be supplied.
    • The galvanised corrugated product known as “heritage galvanised” was very expensive.
    • Zincalume is more resistant to corrosion than the other products.
      
11. As the dwelling is quite close to the sea, the greater corrosion resistance of Zincalume was, understandably, attractive to Ms Renshaw for the wall cladding.

Whether Zincalume is Galvanised Steel

12. The evidence from Dr Powell included a description of the process involved in strengthening or galvanising steel sheeting. The conclusion to be drawn from the description of the process is that both products, namely galvanised steel sheeting and Zincalume, go through a galvanising process with the difference being that Zincalume is formed by the immersion of steel sheeting in a molten bath of zinc-aluminium alloy, while the other is formed by immersing the steel sheeting in a molten bath of zinc only. In both cases, a continuous coating is formed on the surface of the steel which helps prevent corrosion of the steel. Dr Powell’s conclusion was that steel with a zinc-aluminium coating and steel with a zinc only coating may both be described as galvanised steel. With respect to the technical description of the two products, I accept his evidence.

The Objective Meaning of the Approval

13. The issue is as to the objective understanding of the term “galvanised steel” as it appears in the description of the proposed cladding on the approved plans “corrugated galvanised steel sheeting”. In Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield [2004] SASC 373 the Full Court had to determine what had been approved in a development authorisation. The Honourable the Chief Justice said that the meaning of a development authorisation is to be determined objectively by considering what the terms of the authorisation would have meant to a reasonable person (at [43]). It is clear from the Chief Justice’s reasons in Oakden (above), with which the other members of the Full Court agreed, that what is approved in a development authorisation is not to be determined by the subjective intention of either the applicant for consent or the relevant authority.
14. In considering the objective meaning of the notation on the approved plans, I have concluded that what was approved by way of wall cladding was corrugated galvanised steel sheeting that was not Zincalume.
15. A product name Custom Orb was used in the plans in one description of the roofing material. Given this, if the product Zincalume was reasonably to be read into the description of the wall cladding material, the name Zincalume would have been used. In the absence of Zincalume being specified, a reasonable person would not have expected the cladding to be Zincalume, I so find.
16. It is regrettable that there was a lack of clarity in the approval granted by the Council, such that Ms Renshaw considered, in the circumstances set out above, that it would be within the approved specifications, to use the galvanised steel sheeting Zincalume. If the Council was so opposed to the use of Zincalume, one would have expected that material to be excluded from contemplation by condition, given that the specification for the wall cladding could technically have included Zincalume.
17. The Council compounded the confusion by alleging that the approved plans specified “corrugated iron” cladding and directing Ms Renshaw to replace the Zincalume cladding with “galvanised iron corrugated sheeting”. The lack of precision is regrettable.

Conclusion

18. I am satisfied that there was a breach of the Development Act in that Ms Renshaw failed to comply with condition 1 of the approval of the development authorisation.
19. It remains for the Court to consider whether it should exercise its discretion to uphold the direction in the Notice. I will hear the parties further on the issue of the exercise of discretion.