CICCARELLO v CITY OF CHARLES STURT & ANOR [2010] SAERDC 49 (26 August 2010)

Last Updated: 27 August 2010

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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CICCARELLO v CITY OF CHARLES STURT & ANOR

[2010] SAERDC 49

Judgment of Her Honour Judge Trenorden

26 August 2010

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Application for review of assessment that development not seriously at variance with Development Plan - whether Court has jurisdiction - whether this is a decision as to the nature of the development - interpretation of s 86(1)(f)(i) Development Act

Held - application dismissed

Development Act 1993, referred to.

Upham v The Grand Hotel (SA) Pty Ltd and Development Assessment Commission [1999] SASC 414; 1990 74 SASR 557; Alexander and Anor v The City of Marion and Ors [2010] SASC 86, considered.

CICCARELLO v CITY OF CHARLES STURT & ANOR
[2010] SAERDC 49

1. The appellant, Guiseppe Ciccarello, is not happy with the decision of the City of Charles Sturt (the Council), to grant development plan consent to an application made on behalf of a neighbour, Mr Jason Nejman. The nature of the proposed development was identified by the Council as “garage extension to front of dwelling, ensuite and verandah and removal of a significant tree”.

Background

2. The development application was made on 1 February 2010. The Council identified the development to be a category 2 development, and in consequence Mr Ciccarello was informed of the development application. Mr Ciccarello lodged a representation with the Council on 9 March 2010 opposing the development. On 5 May 2010 the Council’s Development Assessment Panel assessed the proposed development as being not seriously at variance with the relevant provisions of the appropriate Development Plan, and granted development plan consent to the application, subject to six conditions.
3. Mr Ciccarello has instituted an application under s 86(1)(f) of the Development Act 1993, seeking to have the Court review the assessment by the Council (through its Development Assessment Panel) that the development was not seriously at variance with the relevant provisions of the Development Plan. This hearing was in relation to the question of whether the Court has jurisdiction to hear and determine such an application for review.

The Law

4. The Court is a creature of statute and its powers and jurisdiction are sourced in legislation, such as the Development Act. There is no other source of jurisdiction.
5. Section 86 of the Development Act sets out the rights of application to this Court under the Development Act. Section 86(1)(f) is in the following terms:

(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 a review of the matter with respect to –
(i) a decision under the Act as to the nature of the development, including any decision that is relevant to the operation of s 35;
(ii) a decision under s 38 as to the category of the development.

6. Mr Ciccarello has applied to the Court under s 86(1)(f)(i). It is not disputed that he has the requisite interest to apply to the Court.
7. It is important to this argument to understand the structure of the Development Act in relation to the progress of an application for development plan consent. Under the Development Act, no development may be undertaken unless the development is an approved development or the Act otherwise permits development to be undertaken: s 32. For development plan consent, a development has to be assessed against the provisions of the appropriate Development Plan: s 33(1)(a).
8. In order for the relevant authority to properly assess the matter, it must first determine the nature of the development: Regulation 16, Development Regulations 2008. Thereafter the relevant authority must proceed to deal with the application according to the nature of the development.
9. In accordance with s 35 of the Development Act, the relevant authority will have to examine the Development Regulations and the Development Plan to ascertain whether the development, having regard to its nature, is of a kind described as either a complying development or a non-complying development.
10. In due course, the relevant authority will have to assess the development, including as to whether the development is seriously at variance with the relevant Development Plan: s 35(2).
11. Between each of these steps, the Council may either be obliged or have a discretion to embark on other procedural steps in relation to the development application.
12. The clear issue before the Court is whether assessment by the relevant authority that the development is not seriously at variance with the relevant Development Plan is a decision under the Development Act as to the nature of the development, being a decision that is relevant to the operation of s 35 of the Development Act, and therefore reviewable by this Court.

Discussion

13. Section 35 in general, addresses how a relevant authority is to approach the assessment of development, once the nature of that development has been determined. By that I mean s 35 requires the relevant authority to ascertain whether the development, having regard to its nature, is of a complying kind, a non-complying kind or merit development, and then provides directions as to how to proceed with the application, according to the kind of development, or the kinds of aspects of the development.
14. Some assessment of the development may be necessary, to determine, for example, whether development is complying development (s 35(1b)). According to the structure of s 35, it then follows that the relevant authority will have to assess whether merit or non-complying development is or is not, seriously at variance with the relevant Development Plan. This will require an assessment of the development against the Development Plan.
15. It would appear that an assessment as to whether a development is seriously at variance with the relevant Development Plan, may be described as a decision that is relevant to the operation of s 35 of the Act. It would then follow, according to the argument of counsel for Mr Ciccarello, that by the words of s 86(1)(f)(i), an assessment by a relevant authority as to whether a development is seriously at variance with the relevant Development Plan, is also a decision as to the nature of the development. However, this argument might not be sound, appearing as it does to argue that an assessment is a decision as to the nature of the development.
16. In argument, some emphasis was placed on the fact that s 35(2) uses the word “assessed” in relation to a relevant authority’s consideration of whether development is seriously at variance with the relevant Development Plan. This is contrasted with the use of the word “determine” in Regulation 16, in relation to ascertaining the nature of the development. It was suggested that “assessment” means a consideration of the merits in the context of the Development Plan. Part of this consideration of the merits would involve consideration as to whether the development is seriously at variance with the Development Plan and accordingly, such an assessment is truly an assessment and is not a decision under the Act as to the nature of the development.
17. In my view, this argument must succeed. A person with a requisite interest may apply to the Court only with a view to having the Court review one or more decisions preparatory to the assessment of an application for development.
18. In general terms, it is not the role of the Court on an appeal under the Development Act, to review the assessment by a relevant authority of the merits of a development. If a development is determined to be of a complying kind, consent must be given. If a development is determined to be of a non-complying kind, there is no right of appeal by an applicant for consent. If a development is merit development (see s 38(5)) there is a right of appeal to this Court against the decision of the relevant authority, both by the applicant for consent and any representor who was entitled to be given notice of the decision of the relevant authority. On appeal, the Court may proceed to consider the matter de novo: s 88(2)(b). The Court assesses the development itself; it does not review the decision of the relevant authority.
19. When the relevant authority has assessed a development as being seriously at variance with a Development Plan, it is required to refuse to grant consent to the development application (s 35(2)). It is not for a Court itself to determine whether a proposed development is seriously at variance with the Development Plan (see Upham v The Grand Hotel (SA) Pty Ltd and Development Assessment Commission [1999] SASC 414; 1990 74 SASR 557, cited in Alexander and Anor v The City of Marion and Ors [2010] SASC 86 at [9]). The Court does not have jurisdiction to hear an appeal against a refusal of consent, in the circumstances where the relevant authority has assessed the development as seriously at variance with the Development Plan. Given that there is no right of appeal, it is unlikely that Parliament intended in s 86(1)(f)(i) to provide an opportunity to a person with a requisite interest, to challenge the assessment by a relevant authority as to whether a development is seriously at variance with a Development Plan.
20. I turn to the principles of statutory interpretation. What is the purpose of the provision under discussion? It seems that Parliament in s 86(1)(f), intended to provide certain persons including the owner or occupier of the subject land and an owner or occupier of adjacent land, to seek to have the Court review “a matter” with respect to certain decisions made under the Act by the relevant authority. Having regard to the contents of placita (i) and (ii), it seems clear that the purpose of the opportunity provided was to enable a person with the requisite interest to challenge the very bases on which the relevant authority would make or had made its assessment, and not the assessment itself (by way of review).
21. These bases are: (1) a decision as to the nature of the development, and (2) a decision as to the category of the development (under s 38). The choice of words is illuminating. According to s 38, a relevant authority does not actually decide the category of development. Once a relevant authority has made a decision as to the nature of the development, it ascertains whether that form of development has been assigned by either the Regulations or the Development Plan to a particular category, and if there is no assignment, by virtue of s 38 the development is to be regarded as a category 3 form of development. Undoubtedly, there will be occasions when an authority has to determine, quite precisely, the nature of the development to decide whether it is properly assigned to one category or another. Thus, the success of any challenge to the category of development will depend in part upon what the Council has determined to be the nature of the development.
22. Similarly, the success of any challenge as to whether development is non-complying, will depend in part upon what the Council has determined to be the nature of the development.
23. A decision as to the nature of a development is a decision made by the relevant authority taking into account the elements of the development. As I have indicated, this is an essential precursor also to the determination of whether a development is complying, non-complying or merit development. Thus, if a decision as to the nature of the development was incorrect, it may follow that the determination as to whether the development is complying, non-complying or merit development will also be incorrect. Section 35 sets out the direction a relevant authority must take once it has determined in accordance with the section whether a development is complying, non-complying or merit development.
24. In summary, s 35 largely operates to direct a relevant authority as to how to proceed with a development application once a decision has been made as to the nature of the development. It must be read in tandem with s 38 of the Development Act, in relation to the categories of development. Thus, a decision that is relevant to the operation of s 35 is a decision as to whether development is complying, non-complying or merit development. That decision follows upon the decision as to the nature of the development, made under Regulation 16.
25. At first glance, it would seem that the existence of s 35(2) is an anomaly in the section. Certainly, every other subsection of s 35 directs a relevant authority as to how to proceed, once it has been established whether a development is complying, non-complying or merit. In this sense, ss 2 appears to be anomalous, as it addresses a separate issue, that is the assessment of a development against the Development Plan and the path to be followed by a relevant authority once it has assessed that a development is seriously at variance with the relevant Development Plan.
26. On the other hand, s 35 also specifies for a relevant authority the circumstances in which it cannot grant consent to development and s 35(2) sets out one of these circumstances, with s 35(3) setting out another circumstance.

Conclusion

27. I conclude that a decision that is relevant to the operation of s 35 is a decision as to whether development is complying, non-complying or merit, made after consulting the Regulations and the Development Plan. This decision follows the determination by a relevant authority of the nature of the development, pursuant to Regulation 16, and could be said to be part of a decision as to the nature of the development, using “nature” in its broadest sense.
28. For the reasons I have set out, there is no right to apply to this Court under s 86(1) (f) for a review of the assessment by a relevant authority that a development is either seriously at variance or not seriously at variance with the relevant Development Plan.
29. There is no jurisdiction in the Court to hear and determine an application to review the assessment by the Council that the development was not seriously at variance with the Development Plan.
30. It follows that the Court cannot hear and determine the application. It must be and is dismissed. An order is made accordingly.