CITY OF MITCHAM v HEATHHILL NOMINEES PTY LTD No. SCGRG-99-1008 [2000] SASC 46

Heathhill Nominees Pty Ltd ("Heathhill") owns an allotment of land in Kitchener Street, Netherby. It applied to the Council to divide the allotment into three allotments pursuant to the Community Titles Act, 1996 which repealed the former Strata Titles Act. The proposed division of the allotment was to be as follows. One allotment was to be common property. The other two allotments were to be primary lots. All allotments were to be rectangular in shape. The following diagram illustrates the form of the subdivision. It is not drawn to scale.

As can be seen, the lot which is intended to be common property extends across the whole of the frontage to Kitchener Street. It will have a depth of 5.7 metres. The two remaining lots extend longitudinally along the original allotments, their common boundary extending from the allotment which is common property to the rear of the allotment. Each of those allotments is 8.3 metres wide and 50.69 metres long. The fact that neither of the allotments has a frontage to Kitchener Street gives rise to this appeal.

The subject land is within the Residential (Central Plains) Zone as prescribed by the Development Plan. Principle 4 of the principles of development control which apply to this zone lists the kinds of developments which are non-complying developments in that zone. The question whether a development is a complying or non-complying development is significant in that it determines the manner and procedures by which the proposed development will be assessed for the purpose of granting provisional development plan consent: see s 35 of the Development Act 1993.

One form of non-complying development listed in Principle 4 is a form of land division. The relevant provision reads:

"Land division creating an allotment with a frontage of less than nine metres to a public road (excepting where such an allotment is to contain a row dwelling either existing or under construction)."

Relying on Principle 4, the Council classified the proposed division as a non-complying development. Heathhill appealed from this decision to the Environment Resources and Development Court. A judge of that court upheld the appeal holding that Principle 4 did not apply where an allotment had no frontage to a public road. From that decision the Council appeals to this court.

It is apparent from the terms of this provision in Principle 4 that it is intended that, generally speaking, all allotments created in this zone will have a frontage to a public street or road and that the frontage will be nine metres wide. That is indicated by the fact that there is an express exception in the case of an allotment containing a row dwelling. The ordinary meaning of these words conveys the same intention. The conclusion is reinforced if regard is had to Principle 16 of the principles of development control which apply throughout the Council area. It spells out the desired criteria for, and dimensions of, sites for residential development. Among other things, it prescribes road frontages for dwelling sites abutting a public road. It reads,

"Dwelling sites abutting a public road should have, unless otherwise indicated within a specific zone, a road frontage of not less than (i) 15 metres for detached dwellings; (ii) 9 metres for semi-detached dwellings or, where such sites have frontage to an arterial road, 12 metres ..."

It then goes on to specify requirements for other types of residential building. The clear intention is that dwelling sites should have a frontage to a public road unless there is specific indication to the contrary in a particular zone. The provisions of the Development Plan for this Residential (Central Plains) Zone do not express any contrary intention.

In addition, if these words have the meaning attributed to them by the learned judge, it would be possible to defeat entirely the objectives of the Development Plan and in particular Principle 16 by creating an allotment which is of nominal depth and behind which are several primary allotments each less than the prescribed frontage. In those circumstances, the ability of the Council to regulate and supervise land division would be entirely frustrated. The fact that a proposed allotment will not have a frontage of nine metres does not necessarily mean that proposals for a division of land in this form or for, say, a hammerhead type of land land division cannot be approved. They will be non-complying developments and will be able to proceed if they obtain the approvals prescribed by s 35 of the Development Act.

This conclusion is reinforced if regard is had to the context in which this provision appears. The structure of the Development Plan is that there are objectives and principles of development control for each zone in addition to the objectives and principles of development control which apply throughout the Council area. The objectives state the desired development for the zone. The principles of development control set out in more detail measures designed to assist in achieving the stated objectives. Thus, Principle 4 lists non-complying developments. The fact that a development might constitute a non-complying development does not necessarily mean that it cannot proceed. It will be subjected to a greater scrutiny to determine whether development consent should be granted or refused.

In this zone there are four policy areas numbered 8, 9, 10 and 11. The subject land is in policy area 8. The objectives for this zone indicate that it is intended that development in policy areas 8, 9 and 10 will primarily be for detached dwellings with developments of medium density occurring in policy area 11. That is apparent from the objectives for these zones.

"Objective 1: Development comprising primarily detached dwellings within Residential (Central Plains) Policy Areas 8, 9 and 10 undertaken in a manner that complements the predominant architecture, streetscape and low density character of existing development in the locality. Objective 2: Development that accords with the desired character of the relevant policy area and allows for the retention of existing affordable housing wherever appropriate. Objective 3: Provision of open space sufficient to meet the needs of the community. Objective 4: Development within Residential (Central Plains) Policy Area 11 that results in a diversity of low to medium density housing and ensures the external design of buildings is attractive and visually compatible with existing buildings and enhances streetscape character."

It is apparent that the preservation of the existing streetscape is a primary objective in policy areas 8, 9 and 10. One means by which the Council can seek to maintain the existing streetscape is to control division of land. In this instance the Council seeks to effect that control by ensuring that allotments have a frontage and that the minimum width of the allotment is nine metres. The construction placed by the learned judge on these words in Principle 4 would defeat the clearly stated objective.

For all of these reasons, I would allow the appeal.

WILLIAMS J. I agree with the reasons of Debelle J.

The respondent is seeking to divide a rectangular allotment of land which has a frontage of 16.77 metres to Kitchener Street Netherby within the area of the City of Mitcham. The land has no other street frontage. The proposal, more fully described by Debelle J, involves the creation by subdivision of three allotments of which two will have no street frontage. The question at issue is whether the proposed development is properly classified as a "non-complying development" under the relevant Development Plan so as to attract the procedural requirements of s35(3) of the Development Act 1933.

The land lies within the Residential (Centre Plains) Zone of the Development Plan applicable to the City of Mitcham. The plan describes the kinds of development which are "non complying" in the Zone including:

"Land division creating an allotment with a frontage of less than nine metres to a public road (excepting where such an allotment is to contain a row dwelling either existing or under construction)".

In my opinion the Development Plan should be construed so as to label the Kitchener Street proposal as "non complying". I consider that the intent of the classification scheme is to attach this label to a proposed subdivision creating an allotment which lacks a frontage of at least nine metres to a public road. There is an exception in the case of a row-dwelling which need not now be considered.

The principles of development control for this Zone contemplate development "primarily for detached dwellings" although "other dwelling forms may be appropriate where the external design and appearance of such dwellings complements the predominant architecture, streetscape and low-density character of existing development within the locality." In my view, this general statement provides a guide to the way in which the controls are intended to be applied.

The operation of the tiered system for obtaining development approval has been comprehensively reviewed in the reasons of Bleby J. In my opinion, it would be a curious result if a proposed development which creates new allotments without any street frontage were afforded a different or more favourable treatment procedurally by the planning laws than a proposal which contains allotments with street frontages of less than nine metres.

Upon a literal reading of the language of the Plan, the proposed land division does not give rise to an "allotment with a frontage of less than nine metres to a public road". Nevertheless the development creates two allotments each without frontage to a public road. As now relevant, I consider that lack of the requisite nine metre frontage is the essence of a non-complying development. That situation in a particular instance may exist by reason of absence of any street frontage or by reason of linear insufficiency in the frontage.

BLEBY J. The application which gave rise to this appeal from the Environment, Resources and Development Court relates to an allotment of land at 34 Kitchener Street Netherby. The application sought provisional development consent to divide one allotment into three allotments, in accordance with the provisions of the Community Titles Act, 1996. The original allotment has a frontage to Kitchener Street of 16.77 metres, a depth of 56.39 metres, and is rectangular in shape.

The three proposed allotments comprise one area of common property and two community lots. The common property is rectangular in shape extending across the whole of the Kitchener Street frontage, and has a depth of 5.7 metres. Its total area is, therefore, 95.59 square metres. The two community lots are formed by dividing the balance of the land longitudinally so that they have boundaries with the common property of 8.38 metres and 8.39 metres respectively, and a depth of 50.69 metres. The two community lots, therefore, have areas of 424.78 square metres and 425.28 square metres respectively. For present purposes the important feature of the proposal is that neither of the community lots has a frontage to Kitchener Street or to any other street.

The land lies within the area of the Corporation of the City of Mitcham, and comes within the provisions of the Development Plan applicable to the City of Mitcham. It lies within the Residential (Central Plains) Zone, and in particular within Policy Area 8 of that Zone.

Whilst the application only concerns the division of land, it may be inferred that the ultimate use of the land in question is for the construction of two semi-detached dwellings on the two community lots, the owners of each of the community lots having rights in common over the common property. This is to be inferred largely from the shape of the proposed land division, the narrowness of the community lots and the fact that Principle No 1 of the Residential (Central Plains) Policy Area 8 specifies that the minimum site area for a semi-detached dwelling should be 425 square metres. The allotments by their shape and area would not, consistent with that same principle, accommodate two detached dwellings.

The question at issue is whether the development, the subject of the application, is a non-complying development for the purposes of s 35 of the Development Act, 1993.

The Development Act contemplates that a proposed development will fall into one of four levels or tiers. The first level is what the Act describes as a "complying development". The Regulations under the Act and the relevant Development Plan specify what is a "complying development". Such a development must be granted a provisional Development Plan consent, subject only to such conditions or exceptions as may be prescribed by the Regulations or the relevant Development Plan: s 35(1).

The next level is a development which is neither a complying development nor a non-complying development. Such a development must be considered by the planning authority against the provisions of the Development Plan. When such an application is refused or conditions are imposed, the applicant may appeal to the Environment, Resources and Development Court: s 86(1)(a). Whether a third party may be given a right to make representations to the planning authority in opposition to the application will depend upon whether the Regulations or a Development Plan assign the particular development to Category 2 or Category 3. In the case of a Category 3 development a person who made representations may appeal against the granting of the application: see generally s 38.

The third level of development is a "non-complying development". This class of development is prescribed under the relevant Development Plan. Where the relevant planning authority is a Council, the application cannot be granted provisional Development Plan consent unless the Development Assessment Commission concurs in the granting of the consent. For all practical purposes no appeal lies against a refusal of consent or of concurrence or against a condition attached to a consent or approval which applies by virtue of the non-compliance under the Development Plan: see s 35(3) and s 35(4). As in the case of the second level described above, whether third party representations can be made in respect of the application and whether there can be an appeal against the granting of the application by a third party will depend on whether the development is a Category 2 or Category 3 development: see s 38.

The fourth and final level or tier of development dealt with by the Act is a development which is assessed by the planning authority as being "seriously at variance" with the relevant Development Plan. Such a development must not be granted consent: s 35(2). Provided that the decision of the planning authority on this topic does not result from a mistake of law, from reliance upon an irrelevant matter, from a failure to take into account a relevant matter and is not one which no reasonable authority could properly have reached, then the decision of the planning authority to refuse an application on this ground is not reviewable: Upham v The Grand Hotel (SA) Pty Ltd [1999] SASC 414.

Thus, there are four levels of increasing difficulty in gaining provisional consent to a particular development, depending upon the degree of compliance or non-compliance of the proposed development with the relevant Development Plan. At the first level I described, the development must be granted provisional Development Plan consent. At the fourth level, consent must be refused. The development the subject of this application was not a complying development under the Regulations or the relevant Development Plan. Thus provisional consent was not required to be granted. No-one has suggested that it was seriously at variance with the Development Plan and must not be granted consent.

Within the second and third levels as I have described them, there are grades of difficulty according to the Category to which the development is assigned by the Regulations or the Development Plan. If the present application is not a non-complying development, and as it creates not more than four additional allotments, it would fall into Category 1: see Principles of Development Control, Residential (Central Plains) Zone, Principle 5 and Part 1 of Schedule 9 of the Development Regulations. It would not require public notification of the application or confer any rights of representation on a third party: s 38(3). On the other hand, if it were properly classified as a non-complying development, the effect of Principles 5 and 6 of the Principles of Development Control for the Residential (Central Plains) Zone of the City of Mitcham, Schedule 9 of the Development Regulations 1993 and s 38(2)(b) of the Act is to place the application in Category 3. That requires the application to be publicly advertised; it contemplates the possibility of both written and oral representations to the Council and the possibility of an appeal by a person who has made a representation: see s 38.

Whether or not this application is in respect of a non-complying development depends upon the proper construction of Principle 4 of the Principles of Development Control for the Residential (Central Plains) Zone in the City of Mitcham. Included in the list of non-complying developments in the Zone is:

"Land division creating an allotment with a frontage of less than nine metres to a public road (excepting where such an allotment is to contain a row dwelling either existing or under construction)".

Otherwise stated, the question is whether an allotment with no frontage to a public road is an allotment "with a frontage of less than nine metres to a public road".

If the provision is read literally, I incline to the view that it is based on an assumption that the allotments affected will have a frontage to a public road, and that it does not address those which do not. However, for reasons which follow, I am reluctant to treat the provision as a statutory presumption to which a literal interpretation must necessarily be given. It does, however, sit comfortably with the conclusion which, for other reasons, I have reached.

As can be seen from what I have already written, the resolution of the question does not affect whether provisional Development Plan consent should be granted or withheld. It affects the procedure governing the processing of the application and rights of appeal, both of the applicant and of third parties. Whilst it does only affect procedure, the provisions form part of the Development Plan, which "provides the objectives and principles upon which development planning is to be based": Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 per King CJ at 187. The former Chief Justice went on to endorse what had been said about the status, purpose and importance of a Development Plan by Wells J in Hassen v District Council of Murray Bridge (1984) 35 SASR 448 and by Jacobs J in the case then under appeal that "the Plan is in the nature of a planning document and is couched in the language of planning objectives and principles rather than that of legal obligation" and that the language of the principles was language "appropriate to the expression of goals and guiding principles rather than to the expression of legal mandates" (ibid at 187).

Whilst such expressions are entirely appropriate to the interpretation of the principles by which consent to an application is to be granted or withheld, they may be less appropriate in determining the correct procedure by which the application is to be governed. However, in my opinion, the adaptation of those principles is nevertheless appropriate in determining, in what must be a matter of some doubt, the proper method of processing an application. In such cases of doubt it is appropriate to apply the guiding principles behind the Development Plan in assigning the subject matter of a development application to its appropriate level of difficulty in gaining approval. As I have pointed out, that depends ultimately on the degree of compliance or non-compliance with the principles of the relevant Development Plan, a matter eminently suited to the approach described by King CJ in Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd.

I turn then to the relevant principles to be extracted from the Development Plan. Objective 11 of the Council-wide Objectives of Development Control encourages residential development "of a scale, form, density and appearance that maintains or achieves the desired character of specific zones and, where applicable, policy areas". Objective 15 encourages the establishment of medium density residential development in proximity to certain named district centres within the area, to public transport routes and to areas of public open space. The principles provide for the majority of residential development to occur in any one of six residential zones in the area, each one of which prescribes a different set of objectives and policies for residential development.

Principle 39 of the Council-wide Principles of Development Control relating to land division for residential purposes provides that it should occur in a form consistent with the existing pattern of division in the locality, and in particular should take into account the future development of a dwelling on each proposed allotment and other matters specified as being pertinent to residential developments.

Objective 1 of the Residential (Central Plains) Zone provides for developments "comprising primarily detached dwellings within ... Policy Areas 8, 9 and 10 undertaken in a manner that complements the predominant architecture, streetscape and low density character of existing development in the locality", whilst in Policy Area 11, Objective 4 encourages development that results in diversity of low to medium density housing. Within the objectives of the Residential (Central Plains) Zone is a statement of desired character of each of the policy areas, including Policy Area 8. It notes the area's "distinctive low-density character with generous proportions of open space, both in front of and behind dwellings", and discourages "blocks of low/medium rise flats or townhouses, including residential flat buildings that run down side property boundaries ... as they do not complement or preserve the desired pattern and character of development".

Policy Area 9 has a different set of objectives. It encourages development of the type which is consistent with the character of that area. It discourages "higher density development" but states that residential flat buildings "may be developed in duplex form in appropriate locations where they are in context with existing streetscapes and do not detract from the predominant character of the locality_."_ Likewise, the objectives of Policy Area 10 state that "new residential flat buildings may be developed in duplex dwelling form in suitable locations". Finally, Residential Policy Area 11 encourages redevelopment which results in "a diversity of housing in a low to medium density range, thereby maximizing opportunities for accessibility to services and facilities".

It can therefore be seen that although there is an emphasis on low density, single unit development consistent with the existing character of the several Policy Areas of the Residential (Central Plains) Zone, the principles and the objectives to which I have referred nevertheless contemplate, in appropriate locations, medium density and duplex developments. Furthermore, the principles also contemplate that some of such developments may not have frontages to public roads.

Principle 16 of the Council-wide Principles of Development Control deals with general principles relating to the area and dimensions of sites for residential development. Having stated the general principles, it then provides that dwelling sites abutting a public road should have, unless indicated within a specific zone, certain minimum road frontages for certain types of residential development. The mere fact that it refers to dwelling sites abutting a public road suggests that it recognises that there may be some dwelling sites which, consistent with the principles of the Development Plan, do not abut a public road. That is in fact borne out by subsequent provisions of the Development Plan.

Principle 29 dealing with general site planning and design relating to dwellings states that some nine principles relate to the design of developments "containing two or more dwellings". Much is said about the enhancement of the streetscape and reinforcement of the desired character of the locality and other relevant matters. It is significant that nothing is said about the need for such development to have a street frontage for each such dwelling.

Principle 6 of the Principles of Development Control for the Residential (Central Plains) Zone contemplates the possibility of an application for approval for a "group dwelling". It places such development in Category 2. The definition of "group dwelling" in the Development Regulations 1993, which applies to the Development Plan, makes it clear that in such a group (of two or more detached buildings), one or more of them will have a site without a frontage to a public road.

Finally, in the Policy Area Principles relating to Residential (Central Plains) Policy Area 8, Principle 1 specifies the desirable minimum site areas for particular types of dwellings and then continues:

"2 Where a total development site is greater than 2250 square metres and each boundary of the site is not less than 35 metres long, the land may be developed to a comprehensive scheme with site areas of not less than 325 square metres per dwelling, following a unified design including such elements as building bulk, roof-form, external materials and colours. 3 New housing, and in particular development on sites comprising two or more dwellings, should maintain, or where appropriate, enhance the streetscape in the locality through: (a) front and side boundary set-backs and space around the proposed buildings being similar to that of existing residential development in the locality; (b) the bulk, height and scale of the development being compatible with the predominant single-storey character of detached housing in the locality; (c) dwellings adjoining a street frontage having a siting and orientation to address the street in a manner similar to existing detached dwellings in the locality."

It is quite clear that the development sites contemplated in those principles will not necessarily contain road frontages for each of the dwelling sites forming part of the development. Residential (Central Plains) Policy Area 10 has a similar provision but containing slightly different dimensions to that contained in Principle 2 relating to Policy Area 8. Residential (Central Plains) Policy Area 11 also contains principles relating to low to medium densities of dwellings which would contemplate the possibility of dwellings not having frontages to public roads.

The general thrust of the objectives and policies of the Development Plan is directed towards residential development in character with that already existing in the various Residential (Central Plains) Policy Area. In most places that is directed towards single unit dwellings on single allotments or developments which are not out of character with existing developments. In a number of policy areas, however, the principles clearly contemplate the possibility of multiple unit dwellings and of residential sites not having frontages to public roads. They contemplate that such development, in appropriate locations, will be consistent with the various objectives and principles relating to those policy areas.

That is a matter of some significance. It shows that in some areas such developments will be consistent with the requirements of the Development Plan. It is obviously necessary that the Council, as the relevant planning authority, be able to exercise reasonable control over development applications to ensure so far as possible that the objectives and principles of the Development Plan will be given effect to. That can be done if such developments are placed in the second level as I have described it. Such control will be subject only to a developer's appeal to the Environment, Resources and Development Court in the event of a refusal by the Council. In view of the fact that developments involving multiple dwelling sites without a road frontage are contemplated by the Development Plan in various locations, it seems to me unlikely that the Council would have contemplated placing such developments in the seldom to be granted non-complying development level. To do so would subject all such applications to the requirement of concurrence by the Development Assessment Commission, no matter how few allotments there may be, and without any right of appeal by a developer. That would suggest that the Council did not intend that a land division creating an allotment without any public frontage should be placed in that group. On the other hand, given that if Principle 16 of the Council-wide Principles of Development Control is applied, a nine metre frontage will only accommodate semi-detached dwellings or row dwellings facing a road frontage, it is not surprising that, consistent with the general thrust of the principles and objectives of the Residential (Central Plains) Policy Areas, land division involving frontages less than that would be unlikely to be approved. The Council plainly intended such land division to be a non-complying development, and for justifiable reasons.

Principle 4 of the Principles of Development Control for the Residential (Central Plains) Zone lists many developments which are non-complying for the purposes of the Act. Almost without exception they are developments which are clearly out of character with all of the Policy Areas of the Zone. It is not surprising that they are considered to be non-complying. The same cannot be said about all divisions of land creating an allotment with no road frontage.

One of the important rights that is lost by classifying a development as a non-complying development is the right of appeal by a dissatisfied developer. Land division into smaller allotments without street frontages and the residential development which follows on those allotments can involve quite extensive capital outlay. Such appeals are generally regarded as matters of right rather than mere procedure. "Procedure may and generally does surround it, but the general notion of an appeal is undoubtedly a right": Worrall v Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28 at 31. See also Colonial Sugar Refining Co Ltd v Irving [1905] AC 369. In my opinion the Court should be slow to construe the principles of development control contained in the Development Plan as removing that right of appeal where the principles admit of an interpretation which preserves it.

For these reasons, and in viewing the Development Plan as a whole, I conclude that the development the subject of the application is not a non-complying development. It is one which must be considered by the Council as the planning authority, and the Council will no doubt give close scrutiny to the objects and principles of the Development Plan as they affect land and the policy zone in question.

I realise that my conclusion may be criticised in its application to this particular development because the effect of the development it is little different from applying for approval for the division of land creating two allotments with actual frontages to Kitchener Street which are less than nine metres in length. It might be said that the only difference is that there is an assured building set back of 5.7 metres in order to accommodate the common property attaching to each allotment. If that were the only form of development possible in which allotments could be created without a street frontage, there might be a strong argument for construing the relevant principle, consistent with the principles of the Development Plan, in such a way as to make that a non-complying development. I have endeavoured to approach the matter as a matter of principle as to how, in a variety of situations and developments, the Development Plan treats residential allotments which do not have a road frontage. Because in some circumstances they are plainly regarded as consistent with the objectives and principles behind the Development Plan, I have construed the relevant principle accordingly. If that means that some undesirable development can take place because of a successful appeal against the refusal by the Council to consent to it, then that can be cured by a simple amendment to the relevant principle.