MOULDEN & ORS v CITY OF MARION & ANOR [2010] SAERDC 59 (29 October 2010)

Last Updated: 2 November 2010

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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MOULDEN & ORS v CITY OF MARION & ANOR

[2010] SAERDC 59

Judgment of Her Honour Judge Cole

29 October 2010

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Application pursuant to s 86(1)(f) of the Development Act 1993 relating to a development plan consent granted to the second respondent - several of the applicants found to not have standing - categorisation of the different elements of the development considered - the Council correctly categorised the proposed development as a Category 2 development - the surviving applications were refused.

Application by second respondent pursuant to s17(4) of the ERD Court Act was refused.

Development Act 1993; Development Regulations 2008; Environment, Resources and Development Court Act 1993, referred to.

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125; Walton v Gardner (1992-93) 177 CLR 378, considered.

MOULDEN & ORS v CITY OF MARION & ANOR
[2010] SAERDC 59

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. The applicants in this matter have made an application to the Court pursuant to s 86(1)(f) of the Development Act 1993 (the Act). The application relates to a development plan consent granted to Ms Papalia by the City of Marion (the Council) over land at 23A Whiteleaf Crescent Glengowrie (the land). At the hearing of the matter, Mr and Mrs Lindner appeared as agents on behalf of the applicants for review, Ms Ryan appeared for the Council, and Mr Game appeared for Ms Papalia.

The applicants in this action

2. It is clear from s 86(1)(f) of the Act that only the owner and occupier of the land which constitutes the site of the proposed development, and the owners and occupiers of land adjacent to that land, have standing to bring an application in this Court under that section. Of the applicants in this action, Ms Heather Moulden, Mr Brian Killian, Ms Sharon Killian, Ms Jan Whitington and Mr Stevens have standing under s 86(1)(f). Mr Glen Lindner, Ms Leona Lindner, Mr Graeme Burton, Ms Christine Burton and Ms Kylie Burton do not have standing, and their applications will be dismissed.

The development plan consent

3. By development application number 100/1308/2010, lodged with the Council in June 2010, Ms Papalia sought development plan consent for a proposed development described on the application form as “Variation of verandah, reduction in height of sections of wall or rear and side boundary and removal of equipment storage areas.” The application was accompanied by plans prepared by BGK Contech Pty Ltd and a letter from Botten Levinson, solicitors for Ms Papalia, dated 8 June 2010 (the Botten Levinson letter). The application was processed by the Council as an application for Category 2 development (see s 38 of the Act). Notice was given by the Council in accordance with s 38(4) of the Act, and five representations were received by the Council. On 4 August 2010, development plan consent was granted to the application, subject to six conditions. The applicants in the present action seek to have the categorisation of the development application reviewed. They say that it should have been processed as a Category 3 development, rather than a Category 2 development.

Background

4. A summary of the background of the matter was given in the affidavit of Mr Brinkworth, a planning officer with the Council. Mr Brinkworth said that there is an existing two storey semi-detached dwelling on the land. The dwelling was approved on 30 November 2007. There is also a swimming pool on the land, which was approved on 24 January 2008. There is also a building which has not received development approval. That building is the subject of an enforcement notice and an appeal against a refusal of development plan consent, neither of which has been resolved to date. It seems that the development application the subject of these proceedings was lodged in an attempt to resolve the situation with respect to the building work which has taken place on the land without development approval.

The proposed development

5. As I have said above, the development application form described the proposed development as “Variation of verandah, reduction in height of sections of wall on rear and side boundary and removal of equipment storage areas”. In the Botten Levinson letter, the proposed development was described as follows:

The proposal seeks consent to vary the previously approved verandah and consent for other works undertaken on the land. Accordingly the proposed development involves:
1. a variation to the form of the verandah as follows:
(a) the area of roofing over the pool is to be removed so that it will be open to the sky, but for a structural beam extending over the pool from the existing residence;
(b) the verandah roof is to extend from the residence to the western boundary of the land and generally over the south western corner of the land as depicted on the enclosed roof plan;

2. removal of two enclosed areas previously marked ‘store’ – those areas will be replaced with paving;

3. retention of the enclosed storage area marked ‘pool equipment’;
4. removal of the sliding doors and windows from the northern edge of the verandah;

5. a variation to the western boundary fence such that it will be reduced to a height of 2.1 metres for its full length;
6. a variation to the southern boundary fence such that, but for the walls of the pool equipment room, it will be reduced to a height of 2.1 metres;

7. the existing 2.95 metre high wall on the eastern boundary is to remain;
The structural beam referred to above is proposed to be retained because of the considerable difficulty, inconvenience and expense associated with removing it.

6. The decision notification form upon which the grant of development plan consent was recorded described the proposed development as “Alterations and additions to existing verandah incorporating walls on eastern and southern boundaries”.

Classification of the proposed development

7. The Act provides, in s 38(1) and (2):

(1) Subject to this section, there will be 4 categories of development for the purposes of this section –
(a) Category 1 development; and
(ab) Category 2A 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 development to these 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 –
(i) if the regulations provide that an assignment by a Development Plan may prevail – the assignment provided by the Development Plan will, to the extent of any inconsistency, prevail (subject to the operation of paragraph (b)); but
(ii) in any other case – the assignment provided by the regulations will, to the extent of any inconsistency, prevail;
(b) the regulations may assign a form of development to Category 2A and this will prevail to the extent of any assignment provided by a Development Plan under paragraph (a);
(c) any development that is not assigned to a category under paragraph (a) or (b) will be taken to be a Category 3 development for the purposes of this section.

8. The land is within the Residential (General) Zone designated in the Council’s Development Plan. Principle of development control (PDC) 10 for the Residential (General) Zone deals with the categorisation of proposed developments for public notification purposes, and provides, relevantly, as follows:

Except where development falls into the list of Category 2 development indicated in italics below, the following kinds of development are assigned Category 1 Development in the Residential (General) Zone:
Domestic Outbuilding
Dwelling, other than a multiple dwelling
...
Where any of the above specific kinds of development involve:
...
(d) a development that has a wall abutting a side or rear property boundary (other than a common wall of semi-detached or row dwellings) unless, by virtue of its length, height and position, the boundary wall proposed has an impact on the adjoining property that, in the opinion of the relevant authority, is of a minor nature;
..
it is assigned as Category 2 Development in the Residential (General) Zone.

9. The Development Regulations 2008 (the Regulations), in Schedule 1, define “dwelling” as follows:-

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

10. The Regulations, in reg. 32(6), provide:

In the case of residential code development, the assignment of a form of that development to a category by Schedule 9 prevails to the extent of any inconsistency with a Development Plan but in any other case an assignment by a Development Plan will prevail.

11. No argument was advanced that the proposed development in this matter was residential code development. I have assumed that it is not. It actually makes no difference to the end result, because the Development Plan and the Regulations are consistent with respect to categorisation when applied to the proposed development.
12. Clause 2(g) of Schedule 9 of the Regulations provides that the following development is Category 1 development:

Except where the development is classified as non-complying under the relevant Development Plan, any development which comprises –
(g) a kind of development which, in the opinion of the relevant authority, is of a minor nature only and will not unreasonably impact on the owners or occupiers of land in the locality of the site of the development.

13. Clause 20 of Schedule 9 of the Regulations provides that the following kind of development is Category 2 development:

Except where the development is classified as non-complying under the relevant Development Plan or falls within Part 1 of this Schedule, any development ancillary to a dwelling that comprises the construction of (or any combination of) a carport, garage, shed, pergola, verandah, swimming pool or outbuilding.

14. For the purpose of categorisation, it is possible to view the proposed development, as set out in the Botten Levinson letter, in several ways. Mr Game argued that the development should be viewed as a single structure, comprised of a roof, an enclosed pool equipment storage area and boundary walls. Viewed in this way, Mr Game argued, the proposed development is a Category 2 development pursuant to PDC 10(d) because it must be either part of the dwelling or a domestic outbuilding, and the qualification in PDC 10(d) applies in either case, bringing it into Category 2.
15. Ms Ryan tendered an affidavit of Mr Brinkworth, the council planning officer who processed the development application. Mr Brinkworth approached the task of the categorisation of the proposed development by considering the components of the proposed development separately. Mr Brinkworth determined that the alterations to the verandah came within clause 20 of Schedule 9 and were therefore Category 2 development. Mr Brinkworth considered the pool enclosure to be a domestic outbuilding, which also came within clause 20 of Schedule 9 and was therefore Category 2 development. Mr Brinkworth acknowledged that he could have applied PDC 10 to the pool enclosure and arrived at the same result. Mr Brinkworth formed the view that the 2.95 metre high wall along portion of the eastern boundary of the land would only have a visual impact on the owners or occupiers of 23 Whiteleaf Crescent, Glengowrie, and he was aware from communication with the owners of that property that they were in favour of the wall. Pursuant to Schedule 9 clause 2(g), Mr Brinkworth formed the view that the 2.95 metre high wall along portion of the eastern boundary would be of a minor nature only and would not unreasonably impact on the owners or occupiers of land in the locality of the site of the development. The wall is therefore Category 1 development. Mr Brinkworth referred to PDC 10(a) of the Residential (General) Zone, which provides:

This Principle and the Public Notice categories are subject to the following:
(a) where development is comprised of a number of components assigned to either Category 1 or Category 2 or a combination of both Categories, the development is assigned to:
Category 1 where each component is Category 1: and
Category 2 if each component is Category 2, or if some components are Category 1 and others are Category 2;
(b) a reference to a particular kind of development expressed in the singular also means the plural and vice versa;
(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 applicable, for the purposes of that kind of development.

16. Mr Brinkworth concluded that because he had categorised the verandah and the pool enclosure as Category 2 development and the wall on portion of the eastern boundary as a Category 1 development, the development application should be processed as an application for Category 2 development.
17. It was implicit in the argument advanced on behalf of all parties that the categorisation of those elements of the proposed development which involved the removal of structures, or the reduction in height of a fence was not in dispute.
18. Mrs Lindner argued that the pool equipment store could not be considered to be a domestic outbuilding, because a domestic outbuilding must necessarily be entirely detached from the dwelling, and the proposal involved part of the verandah roof forming the roof for the pool equipment store. The consequence, Mrs Lindner argued, is that the pool equipment store is a structure which is not dealt with by PDC 10 or the Regulations, and it must therefore be Category 3 (see s 38(2)(c) of the Act). Mrs Lindner relied upon the Oxford English dictionary definition of outbuilding, and referred to the Macquarie Dictionary definition. The Oxford Dictionary (2nd edition) definition of ‘outbuilding’ is:

A detached building, subordinate and accessory to a main building; an outhouse.

19. The Macquarie Dictionary (2nd revised edition) definition of ‘outbuilding’ is:

A detached building subordinate to a main building.

20. The relevant definition of ‘detached’ in the same dictionary is:

Standing apart; separate; unattached (usually applied to houses)

21. It is true that the Oxford English dictionary and the Macquarie Dictionary definition of “outbuilding” both include the concept that the outbuilding is detached from the dwelling, whilst being ancillary or subordinate to it. In the context of the Development Plan provision under consideration here, however, I consider that it is the intention of PDC 10 that a development such as the pool equipment store be viewed as an outbuilding and categorised as Category 1 or Category 2. I consider that the structure is sufficiently separate from the dwelling to be considered as a domestic outbuilding for planning purposes. No planning purpose would be served by treating the structure differently depending upon whether it had its own roof or was covered by part of the verandah, and there would seem to be no reason to treat it differently for notification purposes on that basis. If I am wrong about that, then I would view the pool equipment store as part of the dwelling.
22. In all of the circumstances, I prefer Mr Brinkworth’s approach to the categorisation of the development application. In relation to this particular proposal, I prefer his approach of considering the separate elements of the proposed development for categorisation purposes, as it seems to me that they each have the potential to create different impacts. I agree with Mr Brinkworth that the alterations to the verandah come within clause 20 of Schedule 9 and are therefore Category 2 development. The pool equipment store is an outbuilding and can only be Category 1 or Category 2 development under PDC 10, which is the applicable provision unless the proposed development is residential code development, in which case the outbuilding is Category 2 development pursuant to clause 20 of Schedule 9. I agree with Mr Brinkworth that the wall along portion of the eastern boundary is Category 1 development pursuant to clause 2(g) of Schedule 9. The development application was correctly categorised as Category 2 development.
23. Mrs Lindner complained about a lack of information and about inconsistencies in the information provided to those who received notification of the development application. To some extent, those complaints were justified. It seems to me that there are inconsistencies between the description of the proposed development upon the application form and the decision notification, and in the Botten Levinson letter. There is also some confusion in the plans between the site plan and the northern elevation. There is confusion about the extent of the “pool equipment” or “pool enclosure” area. This was reflected in the argument, but it is not a matter for this application because it makes no difference to the categorisation of the development. I have relied upon the Botten Levinson letter as the most reliable description of the proposed development.

Environment, Resources and Development Court Act 1993 s 17(4)

24. The Environment, Resources and Development Court Act 1993 (the ERD Court Act) provides, in s 17(4) and (4a):

(4) Subject to the rules of the Court, the Court may, if of the opinion that it is appropriate to do so, on its own initiative or on the application of a party to the relevant proceedings –
(a) dismiss or determine any proceedings that appear –
(i) to be frivolous or vexatious; or
(ii) to have been instituted or prosecuted for the purpose of delay or obstruction, or for some other improper purpose;
...
(4a) If the Court takes action under subsection (4), then the Court should also make an order for costs against the party against whom the action is directed unless the Court is of the opinion that there is some good reason for not making an order in the circumstances of the particular case.

25. An application was made on behalf of Ms Papalia for the determination of the proceedings on the basis that they were frivolous. A frivolous application is one that is “so clearly untenable that it cannot possibly succeed” (General Steel Industries Inc v Commissioner for Railways (NSW))[1] or “foredoomed to failure” (Walton v Gardner)[2]. I do not consider that the application in this matter was frivolous or vexatious. It was arguable. I will refuse the application on behalf of Ms Papalia under s 17(4).

Summary and Conclusion

26. The applications pursuant to s 86(1)(f) by Mr Glen Lindner, Ms Leona Lindner, Mr Graeme Burton, Ms Christine Burton and Ms Kylie Burton will be dismissed because none of those applicants have standing to bring their application. Mrs Heather Moulden, Mr Brian Killian, Ms Sharon Killian, Ms Jan Whitington and Mr Ray Stevens do have standing.
27. I have determined that the Council correctly categorised the proposed development as a Category 2 development. The surviving applications pursuant to s 86(1)(f) will be refused.
28. The application on behalf of Ms Papalia that the applications be dismissed pursuant to s 17(4) of the ERD Court Act on the basis that they are frivolous and vexatious will be refused.

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[1] [1964] HCA 69; (1964) 112 CLR 125

[2] (1992-93) 177 CLR 378