ROHRLACH & ANOR v CITY OF UNLEY [2011] SAERDC 19 (6 June 2011)

Last Updated: 9 June 2011

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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ROHRLACH & ANOR v CITY OF UNLEY

[2011] SAERDC 19

Judgment of His Honour Judge Costello

6 June 2011

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Appellants made two simultaneous applications for development approval - one for approval to demolish existing house - the other to erect a new dwelling house in its place - development approval for demolition granted - change to Development Plan making existing house a Contributory Item - demolition approval lapsed - whether dwelling application in these circumstances includes demolition - Council declined to proceed to consider dwelling application without demolition approval - whether dwelling application hypothetical - appeal against Council "decision" - whether a "decision" - whether appeal out of time. Appeal out of time but time for appeal extended. In the circumstances dwelling application did not include demolition - appeal not hypothetical but Council correct in declining to deal with it. Appeal dismissed.

Development Act 1993; Development Regulations 2008, referred to.

O'Neill v Kimhi [2008] SASC 109; AG Building & Developments P/L v City of Holdfast Bay [2008] SAERDC 36; Compaction Application Tips Pty Ltd v Australian Waste Pty Ltd (2001) 80 SASR 435; Hackney Hotel v Corporation of the Town of St Peters & Anor (1983) 32 SASR 145; City of Port Adelaide v Moseley [2008] SASC 88; Brown Falconer Group Pty Ltd v City of Mt Gambier & Ors (No.2) [1998] SAERDC 535; Drummoyne Municipal Council v Leban [1974] HCA 34; (1974) 131 CLR 350; Foura v City of Henley & Grange (1977) 17 SASR 10, considered.

ROHRLACH & ANOR v CITY OF UNLEY
[2011] SAERDC 19

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

The Appeal

1. On 25 November 2008, Mr K Rohrlach and Ms W Rohrlach (“the Appellants”) applied to the City of Unley (“the Council”) to undertake a development described by the Council as “construct a single storey dwelling including carport, verandah and install swimming pool”.
2. On 20 August 2010, the Council informed the Appellants that it could not consider the application without a demolition approval and it declined to “progress” the application.
3. On 26 November 2010, the Appellants appealed against the aforementioned “decision” of the Council. The Grounds of Appeal asserted that:

(a) the Council was wrong to decide that the proposed development does not include the demolition of the existing dwelling on the land;
(b) the Council was wrong to decide that the “application is now hypothetical”; and
(c) to the extent that the decision to decline “to further process the application” is a refusal of the application, that decision was wrong as the proposed development warrants development plan consent.

Background to the Appeal

4. On 25 November 2008, the Appellants, or someone on their behalf, lodged two applications with the Council. The applications were lodged simultaneously. They were assigned two consecutive numbers, namely 090/1084/2008 and 090/1085/2008. Two sets of lodgement fees, one for each application, were paid.
5. The first application (“the demolition application”) described the proposed development as “demolition”. The second application, (“the dwelling application”) described the proposed development simply as “planning approval”. However, plans submitted with the dwelling application showed a proposed dwelling. The Powerline Set Back Declaration, which accompanied the dwelling application, described the nature of the proposed development as “single-storey dwelling”.
6. It was also accepted by both parties that the dwelling currently erected on the site could not remain if the proposed dwelling, the subject of the dwelling application, proceeded.
7. In response to the demolition application, by letter dated 17 December 2008, the Council requested the Appellants to provide a completed demolition form, including a plan showing the location of the dwelling and/or outbuildings proposed to be demolished. In the completed demolition form, the Appellants identified the proposed date for demolition as 30 January 2009.
8. On 14 January 2009, a Decision Notification Form was issued in respect of the demolition application. It recorded that development approval was issued for “demolition of existing building – Building Code of Australia Classification: 1A” (“demolition approval”).
9. Although the design of the proposed dwelling, in the dwelling application, was modified from time to time, the activity, for which approval has been sought, has always remained the construction of a dwelling, on the subject land, within a physical area presently occupied by the existing dwelling.
10. At the time of lodgement of the demolition application, the subject land was situated within the Residential A560 Zone. Demolition, of the existing dwelling on the subject land, was a complying form of development for the purposes of Development Plan Consent.
11. On 27 November 2008, the Council’s Development Plan was amended.[1] In the amended Plan the subject land was included within Policy Area 6 of the Residential Historic Conservation Zone. In addition, the existing dwelling, the subject of the demolition approval, was listed as a Contributory Item.
12. Thereafter, demolition of the existing dwelling was no longer a complying form of development.
13. The Appellants did not implement the demolition approval on 30 January 2009, or at all, and that approval lapsed on or about 15 January 2010.
14. By letter dated 19 July 2010, the Appellants sought approval, from the Council, to extend the operative date of the demolition approval.
15. The Council responded (in an undated letter) and declined to extend the demolition approval. The Council also indicated that, as the existing dwelling was now listed as a Contributory Item in its Development Plan, it was unlikely to support an application for its demolition.
16. After lodging the dwelling application in November 2008, the Appellants lodged a series of amended sets of plans, apparently aimed at addressing various concerns raised by the Council, and its heritage advisor, with respect to elements of design.
17. Then, by letter dated 20 August 2010, the Council informed the Appellants that:

... Council cannot implement the development consent without an active demolition approval. In the absence of a valid demolition approval the application 1085/2008 for a new dwelling is considered hypothetical. In this circumstance, Council is unable to progress your development application for a new dwelling any further until such time as a demolition approval is in place.

18. In response to this letter, Greg Tucker, town planner, on behalf of the Appellants, wrote to the Council, on 24 August 2010, and said:

I act for Mr K and Mrs W Rohrlack who are the applicants for the abovementioned development [“the dwelling application”]. This application was lodged with the Council on 25 November 2008. On that same date my clients lodged and had approved an application for the demolition of the existing dwelling on this site. It was the intention of my clients to demolish that dwelling once the replacement dwelling had been approved and they were in a position to commence construction of that new dwelling.
As the finalisation of the design and obtaining approval from Council of the new detached dwelling has taken some considerable time, my clients have not demolished that existing dwelling. Upon realising that the development approval for that demolition had lapsed, my clients sought unsuccessfully to have that approval extended.
As a result of the Council “not accepting” their request to extend that development approval for the demolition of the existing building, my clients therefore hereby seek to vary the current application (090/101085/2008C2) before Council to include the demolition of the existing dwelling. The description of the application should therefore be the “demolition of the existing dwelling and the establishment of a single storey detached dwelling including carport, verandah and swimming pool.” As the application was lodged on 25 November 2008, I am of the opinion that the application must be determined having regard to the provisions of the Development Plan and the Development Act applying on that date.

19. By letter dated 20 September 2010, the Council declined to accept the Appellants’ request to vary the dwelling application. It viewed the request as not constituting a variation but rather an attempt to introduce a new and separate development into the dwelling application.
20. By letter dated 28 October 2010, the Appellants’ solicitors wrote to the Council asserting that the dwelling application necessarily included the demolition of the existing dwelling. They called upon the Council to assess the dwelling application (along with the demolition element) in accordance with the Development Plan, as it existed at the time the dwelling application was lodged.
21. By letter dated 12 November 2010, the Council reiterated its view that the dwelling application did not include demolition. As such, it maintained its position that the dwelling application (without a demolition approval) was hypothetical and declined to further process the application.
22. It is against that factual background that the appeal comes to this Court.

The Parties’ Submissions

23. The Appellants submitted that:
    1. As the Act requires a relevant authority to assess “development”, not merely an application, the Council must consider the application and decide what is the nature of the development for which consent is sought. The dwelling application could only be construed as comprising everything necessary to build the dwelling on the land. By simple necessity, this included demolition of the existing building.
       
    2. Despite the fact that two applications were lodged simultaneously the applications should not have been considered to be staged applications for the purposes of s 39(8) of the Act.
       
    3. The demolition application is not hypothetical because the Appellants could still apply, separately, for an approval to demolish, which may be approved by the Council or this Court.
       
    4. The Council’s “expressed positions”, in its letters to the Appellants in August and September 2010, were not “decisions” within the meaning of the Act and, as such, the Appellants’ appeal from the Council’s decision of 12 November 2008 was instituted within time.
       
    5. In the event that the Council did make a “decision”, in either August or September 2010, rendering the appeal out of time, there are good reasons for extending the time within which to appeal.
       
24. The Respondent submitted that:

1. The dwelling application should not be construed as including demolition because:

(a) approval for demolition was sought separately but at the same time as the dwelling application;

(b) the demolition approval was sought to be extended after it lapsed;

(c) the dwelling application was sought to be “varied” to include demolition of the existing dwelling.

2. In the absence of a demolition approval, the Council was correct to treat the dwelling application as hypothetical.
3. The Council was therefore correct in declining to process the dwelling application and its communication, of that fact, to the Appellants, by letter dated 20 August, constituted a “decision” from which the Appellants could appeal.
   
4. The appeal is out of time and good reasons do not exist for this Court to extend the time for appeal.
   

Discussion

25. The questions, arising from the parties’ contentions, may be summarised as follows:
    1. In the circumstances of this case, does the dwelling application, of necessity, include demolition of the existing dwelling? If no;
       

2. Is the application therefore hypothetical? In any event;

3. Are the “decisions” of the Council, to decline to process the application (in letters of August and September 2010), “decisions” for the purposes of s 86 of the Act, rendering the appeal out of time? If yes;
   
4. Are there proper reasons for this Court to extend the time within which to institute the appeal?
   
26. Because the issues as to whether the appeal is out of time and any extension of time, impinge on a consideration of issues 1 and 2, it is convenient to deal with them first.

The Appeal – Out of Time?

27. The Appellants have appealed, pursuant to s 86(1)(a) of the Act, against the Council’s decisions that the “application does not include demolition” and “declining to further process the application”.
28. The provisions of s 86(1)(a) of the Act speak of “any decision ... under this Act that is relevant to any aspect of the determination of the application” (my underlining).
29. It seems to me that the Council’s “communication of its view”, to use a neutral expression, that the application is deficient (by reason of the absence of a demolition approval) and that it is thereby unable to progress the Development Application, is a sufficient basis to constitute a decision “relevant to an aspect of the determination of the dwelling application” for the purposes of s 86(1)(a).
30. I am therefore satisfied that (whatever might be said with respect to Council’s letter of 20 September 2010) the time for instituting an appeal against the Council’s decision commenced within a few days of its letter, to the Appellants, of 20 August 2010. As the Appellants had two months, after receiving notice of that decision, to appeal, they should have instituted their appeal by around 22 October 2010. The appeal is therefore approximately one month out of time.

An Extension of Time

31. s 86(4) of the Act permits this Court, in its discretion, to extend the time for instituting an appeal.
32. The discretion has been described, as a wide one, by the Supreme Court.[2]
33. In the exercise of its discretion, the Court will have regard, amongst other things, to matters including the length of the delay, the reasons for the delay, whether there is an arguable case and the extent of any prejudice to the parties.[3]
34. At the end of the day however, the overriding concern is to do what the interests of justice require. I now turn to the specific matters just mentioned.

The Delay

35. The appeal should have been instituted by approximately the 22 October 2010. It was not in fact instituted until the 26 November 2010, being some four weeks later. The delay is relatively small.

The Reasons for the Delay

36. The principal explanation for the delay appears to be that the Appellants, and subsequently their representatives, were engaged in a genuine, but ultimately belated, debate with the Council as to the “legalities” of their application.
37. This is not a situation, of an applicant adopting a “wait and see” approach, like the applicant in the AG Building case[4] referred to by counsel for the Council, Mr Billington.
38. On this issue, I also take into account that, whilst time commenced to run from receipt of the “decision” in Council’s letter of 20 August 2010, that “decision” did not comply with the provisions of s 40 of the Act, which require a “refusal decision” to include a reference to any appeal rights which may exist.

Arguable Case

39. For the reasons which follow there is clearly an arguable case on the issue as to the proper construction of the dwelling application.

Prejudice

40. If leave to extend the time for appeal is refused, the Appellants would clearly suffer prejudice.
41. Apart from the general prejudice, occasioned to a public authority, in having its decisions remain open to question beyond the statutory time limit for appeal, no other prejudice is suggested on the part of the Council.
42. In all the circumstances, I think it is appropriate to extend the time for instituting the appeal to 26 November 2010.
43. I now turn to consider the substantive issues involving the nature of the dwelling application and hypothetical development.

Scope and Extent of the Dwelling Application

44. s 32 of the Act provides that “... no development may be undertaken unless the development is an approved development”. Thereafter, in the sections which follow, the Act requires that a proposed development be:

(a) assessed according to specified criteria, i.e. provisions of the appropriate Development Plan or Building Rules (s 33);

(b) considered with respect to its nature and location in order to determine who is the relevant authority (s 34);

(c) assessed to determine, amongst other things, whether it is a complying or non-complying development (s 35);

(d) assessed in order to determine whether it should be referred to a prescribed body (s 37);

(e) assessed for the purposes of public notice and consultation (s 38); and

(f) assessed with respect to any proposed variation to ensure the essential nature of the development is not changed (s 39).

45. This process is reinforced in the Development Regulations (Reg 16) which provide that, if an application requires a relevant authority to assess a proposed development against the provisions of a Development Plan, the relevant authority must determine the nature of the development and proceed to deal with the application according to that determination.
46. The effect of these provisions is that a relevant authority must consider the application and decide what, as a matter of practical reality, is the nature of the development for which consent is sought.[5]
47. I accept the Appellants’ submissions that an applicant may seek multiple approvals, for multiple developments on the same land, and that regardless of there being multiple applications, a planning authority should not be diverted from turning its mind to what is proposed in, or in association with, each application.
48. On the other hand, as the Respondent submits, a development application is largely in the control of an applicant as to the manner and content of the application.
49. It is apparent, from the background facts, that up until, at least, 24 August 2010, the Appellants had operated on the understanding that the dwelling application did not include demolition, hence their application to “vary” it. Equally, the Council appears to have proceeded upon the same understanding.
50. Whilst I agree that there may be instances, where an application, for the construction of a dwelling house on a site occupied by an existing dwelling, could properly be construed as including an application to demolish the existing dwelling, I do not consider that the true nature, of the dwelling application here, includes demolition.
51. In my view, the outcome of a determination, as to the true nature of an application, and hence the development, might be different depending upon the circumstances surrounding that application.
52. An applicant, in the situation of the Appellants may, e.g. be eager to demolish an existing building as part of an overall program of demolition and replacement. In such a case, where two applications are made, one for demolition and one for construction of a new dwelling, there may be little difficulty in construing the construction application as not including demolition. This may be because, apart from anything else, the applicant makes it clear (in correspondence or otherwise) that it wants the Council to determine and deal with the two applications discretely, one for demolition and the other for a subsequent construction.
53. Equally, an applicant may submit one application and invite, in correspondence and documentation, the Council to deal with it as a composite application, involving both demolition and construction. In such a situation, the Council might require (in addition to the application) further details, such as a demolition declaration, to enable it to properly assess all aspects of the application.
54. This is not to say, that it is the applicant who determines the nature of a development, but rather, that the determination of the true nature of a development will often depend on the context in which the application is made.
55. In my view, in this case, factors surrounding the dwelling application (its context) point strongly towards it being an application for construction only and not demolition.
56. These factors include:

1. the making of two applications simultaneously, one of which was for demolition;

2. the indication by the Appellants in the Demolition Declaration (accompanying the demolition application) that demolition was proposed for as early as 30 January 2009;

3. the Appellants’ acknowledgement to the Council, on 19 July 2010, that their Development Approval for demolition had lapsed and their request for it to extend the time for demolition;

4. the Appellants’ subsequent request of the Council that it “vary” the dwelling application to include demolition.

57. Understood in this way, I am satisfied that the true nature of the dwelling application did not include demolition.

A Hypothetical Development

58. In the event that the dwelling application is for construction of a dwelling only and not demolition of the existing building, is the dwelling application now hypothetical?
59. In Hackney Hotel v Corporation of the Town of St Peters, Wells J concluded that “it would be proper to dismiss an application where the proposed implementation is plainly so speculative that the application represents, to all intents and purposes, a request for a theoretical opinion”.[6]
60. The Appellants’ counsel, Mr Levinson, submitted that the application was not hypothetical because, amongst other things, the Appellants could still make an application for demolition which, despite the change in the Development Plan and the Council’s negative intimation, could still be approved.
61. I am inclined to agree, and upon that basis, the application is not strictly hypothetical, in the sense referred to by Wells J.
62. However, the question still remains (regardless of how the application is characterised) as to whether the Council’s decision to decline to deal with it, was correct.
63. In this regard, I was referred, by Mr Billington, to a decision of Debelle J in City of Port Adelaide Enfield v Moseley,[7] a case involving an application for the construction of a second dwelling on an allotment already containing one dwelling. His Honour concluded that, although Mr Moseley intended to divide the allotment, no application for land division had been made by the time his appeal to the Environment Court was heard. His Honour said:

With all respect to the Commissioner, he has erred in stating that an approval of this proposal would not prejudice or pre-empt consideration of a decision whether to approve an application to divide this allotment. That assertion flies in the face of reality. Furthermore, to approve a development not knowing whether there is to be a successful application for land division can only be described as an extraordinary, if not cavalier, approach entirely at odds with the goal of orderly and economic development and the application of sound planning principle.
The fact that Mr Moseley intended to divide the allotment into two has the consequence that it was necessary for him to obtain approval to divide the land before the Council could be required to consider whether it should grant consent to the proposed redevelopment of the two allotments. The fact that the Council had considered the application for provisional development plan consent for the proposed redevelopment of the site, had refused consent, and Mr Moseley had appeared to the Environment Court against that refusal did not mean that the Commissioner was required to hear and determine the appeal. On ascertaining that Mr Moseley intended to divide the allotment, the Commissioner ought to have declined to hear the appeal on the ground that the application for land division had not been determined. The appeal should have been dismissed on that ground or, at least, adjourned until the question of land division had been resolved (my underlining).[8]

64. Although the facts of this decision are not “on all fours” with the present case, it seems to me that His Honour’s remarks are, nevertheless, apposite.
65. For the Council to proceed to deal with the dwelling application in the absence of a demolition approval has, at least, the potential to prejudice or pre-empt any subsequent consideration of a demolition application and would not accord, in my view, with the goal of orderly and economic development and the application of sound planning principle referred to by His Honour.
66. Furthermore, decisions, in both this and other courts, have made it clear that an unconditional planning approval embraces everything necessary to lawfully undertake the approved development.[9] As a result, an approval to the dwelling application would encompass demolition of the existing dwelling, the very outcome the Council seeks to avoid.
67. One answer to this could be for the Council to impose a condition, on the approval to the dwelling application, excluding approval for demolition. However, attempts by planning authorities to impose conditions, limiting the scope of such approvals, are potentially problematic and have not always proved to be successful.[10]
68. Accordingly I consider that, in these circumstances, the Council was correct to decline to deal with the dwelling application in the absence of a demolition approval.

Conclusion

69. I am satisfied that, in these circumstances, the true nature of the dwelling application did not include demolition. Furthermore, for the reasons outlined, the Council was correct to decline to deal with the dwelling application in the absence of a demolition approval. The appeal is therefore dismissed.
    

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[1] Section 53(2) of the Development Act 1993 ("the Act") provides that "The provisions of a Development Plan that are relevant to the consideration of an application for a development plan consent and to the resolution of issues arising in subsequent proceedings based on that application (whether brought under this Act or not) are the provisions of the relevant Development Plan as in force at the time the application was made".

[2] O'Neill v Kimhi [2008] SASC 109

[3] O'Neill v Kimhi at para 28

[4] AG Building and Developments P/L v City of Holdfast Bay [2008] SAERDC 36

[5] Compaction Application Tips Pty Ltd v Australian Waste Pty Ltd (2001) 80 SASR 435

[6] Hackney Hotel v Corporation of the Town of St Peters & Anor (1983) 32 SASR 145, 149

[7] City of Port Adelaide v Moseley [2008] SASC 88

[8] City of Port Adelaide v Moseley at paras 17 & 18

[9] Brown Falconer Group Pty Ltd v City of Mt Gambier & Ors (No.2) [1998] SAERDC 535; Drummoyne Municipal Council v Lebnan [1974] HCA 34; (1974) 131 CLR 350

[10] Foura v City of Henley & Grange (1977) 17 SASR 10